B-120238, JUL. 21, 1955

B-120238: Jul 21, 1955

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TO MISS AYAKO KITAI: REFERENCE IS MADE TO LETTER DATED MARCH 23. OF OUR CLAIMS DIVISION YOU WERE ADVISED THAT SINCE THERE WERE CONFLICTING CLAIMS BETWEEN YOU AS MOTHER AND LEGAL GUARDIAN OF THE MINOR CHILD. THAT UNDER JAPANESE LAW A MOTHER IS RECOGNIZED AS THE LEGAL GUARDIAN OF A CHILD BY OPERATION OF LAW AFTER ENTRY IS MADE ON HER "KOSEKI" (FAMILY REGISTER). THE SETTLEMENT OF CLAIMS FOR AMOUNTS DUE THE ESTATES OF DECEASED PERSONNEL OF THE ARMY IS GOVERNED BY THE ACT OF FEBRUARY 25. WHICH PROVIDES THAT WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE. IN CASES WHERE THE STATUS OF THE DISTRIBUTEES NAMED IN THE STATUTE IS CLEARLY ESTABLISHED. THE STATUTE IS PERMISSIVE ONLY AND DOES NOT REQUIRE THAT THE AMOUNT DUE BE ALLOWED TO ANYONE EXCEPT A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE.

B-120238, JUL. 21, 1955

TO MISS AYAKO KITAI:

REFERENCE IS MADE TO LETTER DATED MARCH 23, 1955, WITH ENCLOSURES, WRITTEN ON YOUR BEHALF BY MR. GENTILELLA, CONCERNING YOUR CLAIM AS MOTHER AND LEGAL GUARDIAN OF JIMMY KITAI DELGADO, ALLEGED MINOR SON OF THE LATE PEDRO ALVEREZ DELGADO, PRIVATE FIRST CLASS, UNITED STATES ARMY, FOR ARREARS OF PAY DUE THE ESTATE OF THE DECEDENT.

BY SETTLEMENT DATED JANUARY 14, 1955, OF OUR CLAIMS DIVISION YOU WERE ADVISED THAT SINCE THERE WERE CONFLICTING CLAIMS BETWEEN YOU AS MOTHER AND LEGAL GUARDIAN OF THE MINOR CHILD, AND THE MOTHER OF THE DECEDENT, SETTLEMENT COULD BE MADE ONLY TO A LEGAL REPRESENTATIVE OF THE ESTATE OF THE DECEDENT, SUCH AS AN EXECUTOR OR AN ADMINISTRATOR, APPOINTED BY A COURT OF COMPETENT JURISDICTION OF THE LAST DOMICILE OF THE DECEDENT. THE LETTER OF MARCH 23, 1955, MR. GENTILELLA URGES THAT PAYMENT OF THE ARREARS OF PAY BE MADE TO YOU SINCE THE DEPARTMENT OF THE ARMY HAS RECOGNIZED YOU AS THE MOTHER AND LEGAL GUARDIAN OF JIMMY KITAI DELGADO BY PAYING THE SIX MONTHS' DEATH GRATUITY TO YOU AS SUCH, AND THAT UNDER JAPANESE LAW A MOTHER IS RECOGNIZED AS THE LEGAL GUARDIAN OF A CHILD BY OPERATION OF LAW AFTER ENTRY IS MADE ON HER "KOSEKI" (FAMILY REGISTER).

THE SETTLEMENT OF CLAIMS FOR AMOUNTS DUE THE ESTATES OF DECEASED PERSONNEL OF THE ARMY IS GOVERNED BY THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, WHICH PROVIDES THAT WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, THE ACCOUNTING OFFICERS MAY ALLOW THE AMOUNT FOUND DUE TO THE LEGAL HEIRS IN THE ORDER OF PRECEDENCE STATED IN THE STATUTE. IN CASES WHERE THE STATUS OF THE DISTRIBUTEES NAMED IN THE STATUTE IS CLEARLY ESTABLISHED, OUR OFFICE REGULARLY ALLOWS THE AMOUNT TO SUCH DISTRIBUTEES IN THE ORDER OF PRECEDENCE STATED. HOWEVER, THE STATUTE IS PERMISSIVE ONLY AND DOES NOT REQUIRE THAT THE AMOUNT DUE BE ALLOWED TO ANYONE EXCEPT A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE. OUR OFFICE MAY, IN PARTICULAR CASES WHERE CONFLICTING CLAIMS HAVE BEEN RECEIVED, FOR THE PROTECTION OF ALL CONCERNED, INCLUDING THE GOVERNMENT, WITHHOLD PAYMENT OF THE AMOUNT DUE UNTIL A CLAIM IS SUBMITTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE DECEDENT'S ESTATE, APPOINTED BY A COURT OF COMPETENT JURISDICTION.

THE ONLY EVIDENCE SUBMITTED HERE TENDING TO PROVE THAT THE DECEDENT IS THE FATHER OF JIMMY KITAI DELGADO CONSISTS OF THE ENGLISH TRANSLATION OF (1) A COPY OF A JAPANESE REPORT OF BIRTH DATED FEBRUARY 23, 1950, SHOWING THE BIRTH ON THAT DATE OF A MALE CHILD (JIMMY DELGADO KITAI) TO AYAKO KITAI, MOTHER, AND PEDRO DELGADO, FATHER, AND (2) A PORTION OF YOUR FAMILY HISTORY (KOSEKI TO HON) SHOWING THE BIRTH ON FEBRUARY 23, 1950, OF "JIMMY DELGADO SON OF FATHER: BLANK" "MOTHER: KITAI, AYAKO.' THOSE PAPERS FURTHER SHOW THAT THE INFORMATION RECORDED WAS FURNISHED BY YOU. SUCH UNSUPPORTED STATEMENTS CANNOT BE ACCEPTED AS SUFFICIENT PROOF THAT YOUR CHILD IS THE SON OF THE DECEDENT. WHILE IT ALSO APPEARS THAT THE DEPARTMENT OF THE ARMY PAID THE SIX MONTHS' DEATH GRATUITY TO YOU "AS MOTHER AND LEGAL GUARDIAN OF JIMMY KITAI DELGADO, MINOR ILLEGITIMATE SON OF THE DECEASED," ON THE BASIS OF AN INVESTIGATION CONDUCTED BY THE OFFICE OF THE FINANCE OFFICER IN YOKOHAMA, JAPAN, IT IS NOTED FROM THE FINAL REPORT OF DEATH IN THE CASE THAT THE DECEDENT DID NOT NAME YOUR CHILD AS HIS BENEFICIARY IN PLACE OF HIS MOTHER (MRS. FELIPA DELGADO) ALTHOUGH HIS DEATH DID NOT OCCUR UNTIL DECEMBER 1, 1950, APPROXIMATELY TEN MONTHS AFTER THE BIRTH OF YOUR CHILD. THE PRESENT RECORD MAY NOT BE ACCEPTED AS SUFFICIENT TO ESTABLISH AFFIRMATIVELY THAT YOUR CHILD IS THE "CHILD" OF THE DECEDENT WITHIN THE MEANING OF THAT TERM AS USED IN THE ACT OF FEBRUARY 25, 1946.

ACCORDINGLY, AS YOU WERE ADVISED IN THE SETTLEMENT OF JANUARY 11, 1955, SETTLEMENT OF THE AMOUNT DUE WILL BE HELD IN ABEYANCE PENDING THE RECEIPT OF A CLAIM FROM A LEGAL REPRESENTATIVE OF THE ESTATE OF THE DECEASED ENLISTED MAN, THAT IS, AN ADMINISTRATOR OR EXECUTOR, DULY APPOINTED BY A PROPER COURT IN THE DECEDENT'S DOMICILE AT THE DATE OF HIS DEATH. ANY CLAIM BY SUCH LEGAL REPRESENTATIVE, ACCOMPANIED BY A DULY AUTHENTICATED COPY OR CERTIFICATE OF HIS APPOINTMENT, SHOULD BE ADDRESSED TO THE GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION, WASHINGTON 25, D.C. ..END :