B-123144, JUN. 6, 1955

B-123144, JUN. 6, 1955

TO MRS. LEAR MOORE:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 24, 1955, REGARDING YOUR CLAIM FOR THE BALANCE OF ARREARS OF PAY AND ALLOWANCES DUE THE ESTATE OF YOUR LATE SON, JAMES A. BAKER, CORPORAL, UNITED STATES ARMY, AS OF DECEMBER 31, 1953, THE PRESUMPTIVE DATE OF HIS DEATH.

BY SETTLEMENT DATED SEPTEMBER 27, 1954, YOU WERE ALLOWED THE SUM OF $1,377.61, REPRESENTING YOUR SHARE OF THE AMOUNT OF $2,755.22 REPORTED BY THE DEPARTMENT OF THE ARMY TO BE DUE AS ARREARS OF PAY AND ALLOWANCES, AND YOU WERE ADVISED THAT THE BALANCE WAS RESERVED FOR THE FATHER. LATER, BY LETTER DATED NOVEMBER 23, 1954, OUR CLAIMS DIVISION FURTHER EXPLAINED THAT THE ACTION TAKEN IN THE SETTLEMENT WAS IN ACCORDANCE WITH THE ACT OF JUNE 30, 1906, 34 STAT. 750, AS AMENDED BY THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, WHICH GOVERNS THE SETTLEMENT OF ACCOUNTS OF DECEASED PERSONNEL OF THE ARMY. IN YOUR LETTERS YOU SAY THAT YOU HAVE NOT SEEN THE FATHER FROM THE TIME YOUR SON WAS THREE OR FOUR YEARS OLD AND THAT YOU DO NOT KNOW WHETHER HE IS LIVING OR DEAD. ALSO, YOU SAY THAT YOU HAVE RECEIVED ALL OF THE BENEFITS FROM THE OTHER BRANCHES OF THE GOVERNMENT, INCLUDING YOUR SON'S GOVERNMENT LIFE INSURANCE. YOU URGE THAT YOU SHOULD BE ALLOWED THE BALANCE OF HIS PAY, WITHOUT REQUIRING YOU TO RESORT TO LEGAL PROCEEDINGS.

THE LAWS GOVERNING THE PAYMENT OF CERTAIN BENEFITS TO DESIGNATED BENEFICIARIES OF DECEASED PERSONNEL OF THE ARMED SERVICES AND THE PAYMENT OF GOVERNMENT LIFE INSURANCE DO NOT APPLY TO THE ARREARS OF PAY DUE HIS ESTATE. THE FACT THAT YOU HAVE BEEN PAID YOUR SON'S GOVERNMENT LIFE INSURANCE AND HAVE RECEIVED OTHER BENEFITS AFFORDS NO LEGAL BASIS FOR ALLOWING YOU THE FATHER'S SHARE OF THE ARREARS OF PAY. WHILE YOUR FEELINGS IN THE MATTER ARE APPRECIATED, WE MUST COMPLY WITH THE APPLICABLE FEDERAL STATUTE IN SETTLING SUCH ACCOUNTS AND HAVE NO AUTHORITY TO ALLOW CLAIMS FOR AMOUNTS DUE A SOLDIER'S ESTATE EXCEPT AS AUTHORIZED BY THAT STATUTE. THE ACT OF FEBRUARY 25, 1946, EXPRESSLY PROVIDES THAT, WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE AND THE DECEDENT IS NOT SURVIVED BY A WIDOW OR DESCENDANT, THE ACCOUNTING OFFICERS MAY ALLOW THE AMOUNT FOUND DUE "TO THE FATHER AND MOTHER IN EQUAL PARTS," OR "IF EITHER THE FATHER OR MOTHER BE DEAD, THEN TO THE ONE SURVIVING.' THE DISTRIBUTION TO THE FATHER AND MOTHER IN EQUAL PARTS, AS EXPRESSLY AUTHORIZED, IS BASED ON THEIR LEGAL RELATIONSHIP TO THE DECEDENT AND IS NOT AFFECTED BY QUESTIONS OF SUPPORT, DIVORCE, OR CUSTODY OF CHILDREN BY EITHER OF THEM. THE CONGRESS HAVING EXPRESSLY SO PROVIDED, WE HAVE NO DISCRETION IN THE MATTER AND MAY NOT ALLOW ONE PARENT MORE THAN ONE-HALF OF THE AMOUNT DUE WHILE THE OTHER IS ALIVE.

ACCORDINGLY, IN THE ABSENCE OF A SHOWING THAT THE FATHER IS DEAD, THE REMAINING AMOUNT DUE YOUR LATE SON'S ESTATE MAY BE ALLOWED ONLY TO THE FATHER, OR TO A DULY APPOINTED LEGAL REPRESENTATIVE OF YOUR SON'S ESTATE, THAT IS, AN ADMINISTRATOR OR EXECUTOR.