B-127398, MAY 9, 1956

B-127398, MAY 9, 1956

TO MRS. MARJORIE SCHULTZ:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 12, 1956, REGARDING YOUR INDEBTEDNESS TO THE UNITED STATES REPRESENTING AN ERRONEOUS SIX MONTHS' DEATH GRATUITY PAYMENT MADE TO YOU INCIDENT TO THE MILITARY SERVICE OF YOUR LATE SON, DOUGLAS D. HOLMES. WHILE THE GRATUITY PAYMENT MADE TO YOU AMOUNTED TO $1,059.12, IT APPEARS THAT THE DEPARTMENT OF THE ARMY DETERMINED THAT YOU WERE ENTITLED TO THE AMOUNT OF $100 DUE YOUR LATE SON'S ESTATE AS PAY AND ALLOWANCES DUE AT DATE OF DEATH AND SUCH AMOUNT WAS APPLIED IN PARTIAL LIQUIDATION OF YOUR INDEBTEDNESS TO THE UNITED STATES THEREBY REDUCING SUCH INDEBTEDNESS TO $959.12.

THE GRATUITY PAYMENT WAS MADE TO YOU ON THE BASIS OF A REPORT OF DEATH DATED AUGUST 18, 1953, WHICH SHOWED YOU AS THE PRINCIPAL BENEFICIARY TO RECEIVE THE GRATUITY PAY, THERE BEING NO INDICATION ON RECORD AT THAT TIME THAT YOUR LATE SON WAS SURVIVED BY A WIDOW OR CHILD. HOWEVER, ON FEBRUARY 4, 1952, YOUR SON HAD EXECUTED A DA AGO FORM 41 (RECORD OF EMERGENCY DATA FOR THE UNITED STATES ARMY), NAMING A DAUGHTER, EVELYN MAIR, AS HIS PRINCIPAL BENEFICIARY FOR THE SIX MONTHS' DEATH GRATUITY PAYMENT AND A CORRECTED REPORT OF DEATH WAS ISSUED ON SEPTEMBER 4, 1953, TO SHOW SUCH CHANGE IN THE NAME OF THE PRINCIPAL BENEFICIARY. THE DEPARTMENT OF THE ARMY HAS REPORTED THAT THE BIRTH CERTIFICATE OF THE CHILD, EVELYN, BEARS THE STATEMENT THAT DOUGLAS D. HOLMES DID ACKNOWLEDGE THE PATERNITY OF SUCH CHILD. ALSO, IT IS REPORTED THAT HE OTHERWISE OPENLY ANNOUNCED HIMSELF TO BE THE FATHER OF THE CHILD, EVELYN, AND ANNOUNCED HIS INTENTION OF WEDDING THE MOTHER, ANNA MAIR, WHEN REGULATIONS PERMITTED. IN THAT CONNECTION, THE VETERANS ADMINISTRATION HAS ADVISED THAT A COURT DOCUMENT, SIGNED BY YOUR LATE SON, HAS BEEN FILED EVIDENCING THE FACT THAT HE ACKNOWLEDGED IN COURT IN GERMANY THAT HE WAS THE FATHER OF THE CHILD.

THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 903, PROVIDES THAT "IMMEDIATELY UPON OFFICIAL NOTIFICATION OF DEATH" OF A MEMBER OF THE REGULAR ARMY, LEAVING NO WIDOW OR CHILD THERE SHALL BE PAID TO ANY OTHER "DEPENDENT RELATIVE" PREVIOUSLY DESIGNATED BY THE MEMBER AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE THE MEMBER WAS RECEIVING AT THE TIME OF HIS DEATH. UNDER THE ACT THE WIDOW OF THE DECEDENT (IF ANY) HAS A PRIMARY RIGHT TO THE GRATUITY. IF THERE BE NO WIDOW, PAYMENT IS TO BE MADE TO THE DECEDENT'S CHILD OR CHILDREN AND ONLY IF THERE BE NO WIDOW OR CHILD IS PAYMENT AUTHORIZED TO ANY OTHER DEPENDENT RELATIVE PREVIOUSLY DESIGNATED.

IT HAS BEEN HELD THAT THE SIX MONTHS' DEATH GRATUITY STATUTES SHOULD BE VIEWED AS INCLUDING ILLEGITIMATE CHILDREN WHERE SUCH RELATIONSHIP IS PROPERLY ESTABLISHED. 30 COMP. GEN. 277; 34 COMP. GEN. 415. NO EVIDENCE OR INFORMATION HAS BEEN FURNISHED BY YOU SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF THE DETERMINATION MADE BY THE DEPARTMENT OF THE ARMY THAT YOUR SON WAS SURVIVED BY A CHILD WHO, UNDER THE CITED ACT, WOULD BE ENTITLED TO THE GRATUITY PAYMENT RATHER THAN A DESIGNATED RELATIVE.

IN THE CIRCUMSTANCES, THE RECORD AVAILABLE MUST BE VIEWED AS ESTABLISHING THAT YOU WERE NOT ENTITLED TO THE GRATUITY PAYMENT MADE TO YOU. ACCORDINGLY, YOU SHOULD MAKE ARRANGEMENTS TO REFUND THE BALANCE OF THE ERRONEOUS PAYMENT TO THE GOVERNMENT IN SUCH AMOUNTS AND AS PROMPTLY AS THE CIRCUMSTANCES PERMIT. OF COURSE, IF YOU HAVE SOME DOCUMENTS OR OTHER TANGIBLE EVIDENCE YOU DESIRE TO SUBMIT IN SUPPORT OF YOUR CONTENTION THAT EVELYN MAIR IS NOT YOUR LATE SON'S CHILD SUCH EVIDENCE WILL BE CONSIDERED.