B-124222, DEC. 5, 1955

B-124222: Dec 5, 1955

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LOWE: REFERENCE IS MADE TO YOUR LETTER DATED MAY 3. IT HAD RECEIVED A FINAL REPORT OF THE DEATH OF EARNEST NEWTON SLAGLE IN WHICH HIS PARENTS WERE LISTED AS NEXT OF KIN AND HIS MARITAL STATUS WAS SHOWN AS SINGLE. THERE ALSO WAS RECEIVED A CLAIM FOR ARREARS OF PAY EXECUTED BY ZULA AND NEWTON S. ON WHICH IT WAS CERTIFIED THAT HE WAS NOT SURVIVED BY A WIDOW OR CHILD. THE ARREARS OF PAY WERE CERTIFIED FOR PAYMENT TO THE PARENTS BY SETTLEMENT DATED DECEMBER 31. PAYMENT OF THE SIX MONTHS' DEATH GRATUITY WAS MADE BY THE DEPARTMENT OF THE NAVY ON JANUARY 8. PREDICATED ON THE OFFICIAL RECORDS IN THAT OFFICE WHICH SHOWED THAT WHEN THE DECEDENT ENLISTED HE REPRESENTED TO THE DEPARTMENT OF THE NAVY THAT HE WAS SINGLE.

B-124222, DEC. 5, 1955

TO MR. JOHN A. LOWE:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 3, 1955, WITH ENCLOSURE, RELATIVE TO YOUR CLAIM AS GUARDIAN OF KATHLEEN JEAN SLAGLE, MINOR, FOR THE ARREARS OF PAY AND SIX MONTHS' DEATH GRATUITY IN THE CASE OF EARNEST NEWTON SLAGLE, HOSPITAL MAN, UNITED STATES NAVY, DECEASED.

IN A LETTER DATED APRIL 6, 1955, OUR CLAIMS DIVISION ADVISED YOU THAT ON NOVEMBER 13, 1952, IT HAD RECEIVED A FINAL REPORT OF THE DEATH OF EARNEST NEWTON SLAGLE IN WHICH HIS PARENTS WERE LISTED AS NEXT OF KIN AND HIS MARITAL STATUS WAS SHOWN AS SINGLE. THERE ALSO WAS RECEIVED A CLAIM FOR ARREARS OF PAY EXECUTED BY ZULA AND NEWTON S. SLAGLE, PARENTS OF THE DECEDENT, ON WHICH IT WAS CERTIFIED THAT HE WAS NOT SURVIVED BY A WIDOW OR CHILD. THERE BEING NO OTHER CLAIMANT AND NOTHING OTHERWISE APPEARING TO CAUSE DOUBT AS TO THE PARENTS' ENTITLEMENT TO THE PAY DUE, AS PREFERRED HEIRS, THE ARREARS OF PAY WERE CERTIFIED FOR PAYMENT TO THE PARENTS BY SETTLEMENT DATED DECEMBER 31, 1952. PAYMENT OF THE SIX MONTHS' DEATH GRATUITY WAS MADE BY THE DEPARTMENT OF THE NAVY ON JANUARY 8, 1953, PREDICATED ON THE OFFICIAL RECORDS IN THAT OFFICE WHICH SHOWED THAT WHEN THE DECEDENT ENLISTED HE REPRESENTED TO THE DEPARTMENT OF THE NAVY THAT HE WAS SINGLE, AND NAMED HIS PARENTS AS NEXT OF KIN.

YOU WERE FURTHER ADVISED THAT ALTHOUGH YOU SUBMITTED EVIDENCE THAT THE DECEDENT WAS SURVIVED BY A MINOR CHILD, SUCH CIRCUMSTANCE WOULD NOT RENDER THE GOVERNMENT LIABLE FOR A SECOND PAYMENT TO ONE WHO OTHERWISE MIGHT HAVE BEEN ENTITLED TO THE AMOUNTS INVOLVED, WHERE, AS HERE, THE GOVERNMENT HAD BEEN INDUCED BY REPRESENTATIONS OF THE DECEDENT TO MAKE PAYMENT TO SOMEONE ELSE, CITING THE CASES OF UNITED STATES V. CAMPBELL, 139 F.2D 424, AND UNITED STATES V. BARKER, 70 F.2D 1002.

THE ENCLOSURE WITH YOUR LETTER IS A COPY OF A LETTER DATED APRIL 29, 1955, ADDRESSED TO YOU BY MR. HAL HOUSTON, AN ATTORNEY IN THE OFFICE OF THE CHIEF ATTORNEY, VETERANS ADMINISTRATION, ALBUQUERQUE, NEW MEXICO, WHEREIN HE EXPRESSES THE OPINION THAT, ON THE BASIS OF REPRESENTATIONS MADE BY THE FORMER WIFE OF THE LATE ENLISTED MAN, THE ABOVE-CITED CASES HAVE NO APPLICATION TO THE MATTER HERE CONSIDERED.

WHILE THE OPINION OF THE VETERANS ADMINISTRATION ATTORNEY HAS BEEN CAREFULLY CONSIDERED IT, OF COURSE, IS NOT CONTROLLING IN THE SETTLEMENT OF YOUR CLAIM SINCE THE VETERANS ADMINISTRATION HAS NO JURISDICTION OVER ARREARS OF PAY MATTERS OR PAYMENT OF THE SIX MONTHS' DEATH GRATUITY.

IN VIEW, HOWEVER, OF THE STATEMENTS REPRESENTED TO HAVE BEEN MADE BY MRS. COLLATZ (DIVORCED WIFE OF DECEDENT AND MOTHER OF HIS CHILD), A FURTHER REPORT WAS REQUESTED OF THE DEPARTMENT OF THE NAVY. BY LETTER DATED OCTOBER 21, 1955, THE BUREAU OF NAVAL PERSONNEL, DEPARTMENT OF THE NAVY, FURNISHED THE FOLLOWING INFORMATION:

"2. CERTIFICATION FOR PAYMENT OF THE SIX MONTHS' DEATH GRATUITY TO THE DEPENDENT PARENTS OF SLAGLE WAS BASED ON INFORMATION CONTAINED IN THE CURRENT ENLISTMENT RECORD OF THE SERVICEMAN WHICH EXTENDED FROM 10 MARCH 1951 TO DATE OF DEATH, 18 SEPTEMBER 1952. PRIOR TO HIS CURRENT ENLISTMENT IN THE U.S. NAVY, SLAGLE SERVED IN THE U.S. ARMY FROM 18 FEBRUARY 1948 THROUGH 15 DECEMBER 1949. A CHECK OF THE PREVIOUS NAVY ENLISTMENT RECORDS OF THE DECEDENT WHICH COVERED THE PERIOD FROM 19 MAY 1942 THROUGH 11 NOVEMBER 1947, LATER COMBINED WITH HIS CURRENT NAVAL RECORD, REVEALED EVIDENCE THAT SLAGLE WAS SURVIVED BY A MINOR DAUGHTER, KATHLEEN SLAGLE, AS NAMED ON A BENEFICIARY SLIP DATED 24 NOVEMBER 1946 (ENCLOSURE 1), AND ON AN APPLICATION MADE FOR FAMILY ALLOWANCE IN BEHALF OF ANNABELLE SLAGLE, FORMER WIFE, AND KATHLEEN SLAGLE, DAUGHTER. HOWEVER, IT IS NOTED THAT SLAGLE, UPON AGAIN ENLISTING IN THE U.S. NAVY ON 10 MARCH 1951, STATED ON A BENEFICIARY SLIP AS OF THAT DATE, THAT HE DID NOT HAVE ANY CHILDREN AND LISTED HIS PARENTS AS HIS NEXT OF KIN.'

IT THUS APPEARS THAT THE RECORDS OF THE DECEDENT'S EARLIER NAVAL SERVICE PRIOR TO HIS SERVICE IN THE ARMY WERE NOT ASSOCIATED WITH HIS CURRENT NAVAL SERVICE RECORD UNTIL PAYMENTS OF THE ARREARS OF PAY AND DEATH GRATUITY HAD BEEN ACCOMPLISHED. THE RECORD CLEARLY ESTABLISHES, AS INDICATED IN THE ABOVE REPORT, THAT THE DECEDENT, AT THE TIME OF HIS ENLISTMENT ON MARCH 10, 1951, EXECUTED DD FORM 93, RECORD OF EMERGENCY DATA FOR THE ARMED FORCES OF THE UNITED STATES, IN WHICH HE REPRESENTED THAT HE WAS SINGLE, THAT HE HAD NO SPOUSE AND NO CHILDREN. THE INSERTION OF THE WORD "NONE" IN THE SPACES PROVIDED FOR THE NAMING OF A SPOUSE AND CHILDREN WAS CERTAINLY WILLFUL AND INTENTIONAL, AND IT MUST BE CONCLUDED THAT THE DECEDENT WAS AWARE THAT FULL RELIANCE WOULD BE MADE UPON SUCH STATEMENTS SINCE THE FORM WAS EXECUTED FOR THE SPECIFIC PURPOSE OF AFFORDING THE ENLISTED MAN AN OPPORTUNITY TO DESIGNATE A BENEFICIARY AND FURNISH INFORMATION AS TO HIS NEXT OF KIN FOR USE BY THE DEPARTMENT OF THE NAVY IN THE EVENT OF HIS DEATH OR OTHER EMERGENCY.

CONSIDERATION HAS BEEN GIVEN TO THE ARGUMENT THAT "THE UNITED STATES NAVY COULD NOT CLOSE ITS EYES AND DISREGARD ITS OWN RECORD" AS TO THE EXISTENCE OF A MINOR CHILD. SUCH ARGUMENT APPEARS AMPLY ANSWERED IN THE CASE OF UNITED STATES V. KIEFER, COURT OF APPEALS, DISTRICT OF COLUMBIA, DECIDED AUGUST 18, 1955, WHEREIN IT WAS HELD THAT THE MERE DISCLOSURE IN A NATIONAL SERVICE LIFE INSURANCE REINSTATEMENT APPLICATION OF THE EXISTENCE AND FILE NUMBER OF A VETERANS ADMINISTRATION CLAIM FILE REVEALING THE TRUTH, DOES NOT PRECLUDE THE GOVERNMENT FROM BASING ITS DEFENSE ON THE VETERAN'S FALSE REPRESENTATION. IT WAS HELD THAT THERE WAS NO EVIDENCE OF ACTUAL NOTICE AND THE GOVERNMENT MAY NOT BE CHARGED WITH CONSTRUCTIVE NOTICE IN THE CIRCUMSTANCES OF THE CASE.

SIMILARLY, IN THE PRESENT CASE, THE DEPARTMENT OF THE NAVY AND OUR OFFICE WERE WARRANTED, IN THE ABSENCE OF ACTUAL NOTICE TO THE CONTRARY, IN RELYING UPON THE DECEDENT'S REPRESENTATIONS AS TO THE NONEXISTENCE OF A SPOUSE AND/OR CHILDREN.

ACCORDINGLY, WHILE THE NECESSARY ACTION HAS BEEN INSTITUTED TO RECOVER THE AMOUNT OF THE ARREARS OF PAY AND SIX MONTHS' DEATH GRATUITY PAYMENT ERRONEOUSLY PAID IN RELIANCE ON THE INFORMATION FURNISHED BY THE DECEDENT, WE WOULD NOT BE WARRANTED IN ALLOWING YOUR CLAIM ON BEHALF OF THE CHILD EXCEPT TO THE EXTENT THAT ACTUAL RECOVERY MAY BE MADE.