B-117415, JANUARY 27, 1954, 33 COMP. GEN. 316

B-117415, JANUARY 27, 1954, 33 COMP. GEN. 316

DECEDENTS ESTATES - KOREAN COMBAT PAY CLAIMS - RIGHTS OF REMARRIED WIDOWS WHILE COMBAT PAY FOR COMBAT DUTY IN KOREA SUBSEQUENT TO MAY 31, 1950, WAS RETROACTIVELY AUTHORIZED BY THE COMBAT DUTY PAY ACT OF 1952, APPROVED JULY 10, 1952, SUCH PAY DUE A DECEDENT'S ESTATE IS FOR COMPUTATION AND DISTRIBUTION ON THE SAME BASIS AS THOUGH IT HAD BEEN AUTHORIZED AT THE TIME THE DUTY WAS PERFORMED, AND THEREFORE THE REMARRIAGE OF THE DECEDENT'S WIDOW BEFORE PASSAGE OF THE ACT AUTHORIZING SUCH PAY HAS NO BEARING ON HER RIGHT THERETO. UNDER THE ACT OF JUNE 30, 1906, AS AMENDED, WHICH PRESCRIBES THE MANNER IN WHICH AND THE PERSONS TO WHOM AMOUNTS DUE A DECEDENT'S ESTATE MAY BE ALLOWED IN THE ABSENCE OF A DEMAND FROM THE LEGAL REPRESENTATIVES OF THE ESTATE, A WIDOW'S RIGHT TO ARREARS OF PAY ACCRUES BY REASON OF HAVING SURVIVED THE DECEDENT, AND SUCH RIGHT IS NOT AFFECTED BY PENDING DIVORCE PROCEEDINGS OR HER SUBSEQUENT REMARRIAGE.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO MRS. BESSIE B. RODEN, JANUARY 27, 1954:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 26 AND 27, 1953, CONCERNING THE COMBAT PAY DUE THE ESTATE OF YOUR LATE SON, BOBBY SARRON BOX, PRIVATE, UNITED STATES ARMY, AS OF MARCH 14, 1951, THE DATE OF HIS DEATH.

THE RECORD SHOWS THAT YOU MADE CLAIM FOR THE AMOUNT DUE ON THE BASIS THAT YOU ARE THE DECEDENT'S MOTHER. BY LETTERS DATED MAY 11 AND SEPTEMBER 22, 1953, THE CLAIMS DIVISION OF THIS OFFICE ADVISED YOU OF THE TERMS OF THE UNITED STATES STATUTE GOVERNING THE SETTLEMENT OF THE ACCOUNTS OF DECEASED PERSONNEL OF THE ARMY--- THE ACT OF JUNE 30, 1906, 34 STAT. 750, AS AMENDED--- AND YOU WERE INFORMED THAT SINCE THE RECORD INDICATED THAT THE DECEDENT WAS SURVIVED BY A WIDOW--- A PREFERRED HEIR UNDER THE SAID ACT--- THIS OFFICE WAS WITHOUT AUTHORITY TO MAKE PAYMENT OF THE AMOUNT OF COMBAT PAY TO YOU AS MOTHER. YOUR PRESENT LETTERS ARE TO THE EFFECT THAT YOU DO NOT UNDERSTAND WHY YOU ARE NOT ENTITLED TO THE COMBAT PAY INASMUCH AS YOU HAVE BEEN INFORMED THAT WHEN A WIDOW REMARRIES SHE IS NO LONGER ELIGIBLE TO RECEIVE ANY AMOUNT DUE HER FORMER HUSBAND'S ESTATE; THAT A DIVORCE WAS BEING OBTAINED BY YOUR LATE SON'S WIFE AT THE TIME OF HIS DEATH; AND THAT SHE REMARRIED IN APRIL OF 1941, PRIOR TO ENACTMENT OF THE COMBAT DUTY PAY ACT OF 1952, WHICH AUTHORIZED THE PAYMENT OF COMBAT PAY.

AS STATED IN THE CLAIMS DIVISION LETTERS, THE DISTRIBUTION BY THE GOVERNMENT OF AMOUNTS DUE ESTATES OF DECEASED PERSONNEL OF THE ARMY IS GOVERNED BY THE ACT OF JUNE 30, 1906, 34 STAT. 750, AS AMENDED, WHICH PROVIDES THAT WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, THAT IS, AN ADMINISTRATOR OR EXECUTOR, THE AMOUNT DUE MAY BE ALLOWED FIRST TO THE WIDOW AND NEXT TO LEGAL HEIRS IN THE ORDER OF PRECEDENCE MENTIONED. ALLOWANCE TO THE FATHER AND MOTHER IN EQUAL PARTS, OR TO THE SURVIVOR IF EITHER BE DEAD, IS AUTHORIZED ONLY IN THE EVENT THE DECEDENT IS NOT SURVIVED BY A WIDOW OR DESCENDANTS. THE ACT IS IN THE NATURE OF A STATUTE OF DESCENT AND DISTRIBUTION, PRESCRIBING THE MANNER IN WHICH AND THE PERSONS TO WHOM THE ACCOUNTING OFFICERS OF THE GOVERNMENT MAY ALLOW THE AMOUNT DUE A DECEDENT'S ESTATE IN THE ABSENCE OF A DEMAND FROM THE LEGAL REPRESENTATIVE OF THE ESTATE. AND, WHILE CERTAIN BENEFITS PAYABLE TO THE WIDOW OF A SERVICEMAN ARE TERMINATED BY LAW UPON HER REMARRIAGE, THIS IS NOT THE CASE WITH RESPECT TO ARREARS OF PAY SINCE THE WIDOW'S RIGHT THERTO ACCRUES UNDER THE STATUTE BY REASON OF HAVING SURVIVED THE DECEDENT AND SUCH RIGHT IS NOT AFFECTED BY PENDING DIVORCE PROCEEDINGS OR HERE SUBSEQUENT REMARRIAGE. IN OTHER WORDS, HER RIGHT TO PAYMENT OF THE AMOUNT FOUND TO BE DUE IS NOT DEPENDENT UPON HER CONTINUING IN THE STATUS OF A SINGLE PERSON.

WHILE COMBAT PAY FOR COMBAT DUTY IN KOREA SUBSEQUENT TO MAY 31, 1950, WAS RETROACTIVELY AUTHORIZED BY THE COMBAT DUTY PAY ACT OF 1952, APPROVED JULY 10, 1952, 66 STAT. 538, SUCH PAY DUE A DECEDENT'S ESTATE IS FOR COMPUTATION AND DISTRIBUTION ON THE SAME BASIS AS THOUGH IT HAD BEEN AUTHORIZED AT THE TIME THE DUTY WAS PERFORMED AND, HENCE, THE REMARRIAGE OF THE DECEDENT'S WIDOW BEFORE PASSAGE OF THE ACT AUTHORIZING SUCH PAY HAS NO BEARING ON HERE RIGHT THERETO.

THEREFORE WHILE APPRECIATING YOUR FEELINGS IN THE MATTER, I TRUST YOU WILL UNDERSTAND THAT SINCE YOUR SON WAS SURVIVED BY A WIDOW, PAYMENT OF THE AMOUNT DUE HIS ESTATE MAY NOT BE MADE TO YOU AS MOTHER. ACCORDINGLY, THE DENIAL OF YOUR CLAIM WAS PROPER AND IS SUSTAINED.