B-128913, SEP. 17, 1956

B-128913: Sep 17, 1956

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N. SCHULZ (RETIRED): REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 7. YOU STATED THAT A CLAIM FOR THE GRATUITY WAS NOT MADE AT THE TIME OF THE DEATH OF YOUR SON SINCE PARENTS WERE NOT ELIGIBLE BENEFICIARIES OF THE GRATUITY EXCEPT IN CASES INVOLVING ACTUAL DEPENDENCY OF THE PARENTS AND THAT IT WAS YOUR UNDERSTANDING THAT THE LAW WAS SUBSEQUENTLY CHANGED SO AS TO ESTABLISH ELIGIBILITY OF PARENTS FOR THE GRATUITY REGARDLESS OF ACTUAL DEPENDENCY. WAS AMENDED BY THE ACT OF DECEMBER 17. TO AUTHORIZE THE SECRETARY OF WAR (NOW THE SECRETARY OF THE ARMY) TO MAKE A DETERMINATION AS TO THE DEPENDENT RELATIVE ENTITLED TO THE GRATUITY WHERE THE DECEDENT WAS NOT SURVIVED BY A WIDOW. YOU WERE FURTHER ADVISED.

B-128913, SEP. 17, 1956

TO BRIGADIER GENERAL JOHN W. N. SCHULZ (RETIRED):

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 7, 1956, CONCERNING YOUR CLAIM AS FATHER AND THAT OF ETTIE L. SCHULZ AS MOTHER FOR THE SIX MONTHS' DEATH GRATUITY BELIEVED TO BE DUE IN THE CASE OF YOUR LATE SON, JOHN W. N. SCHULZ, JR., WHO DIED MARCH 21, 1941, WHILE SERVING AS SECOND LIEUTENANT, UNITED STATES ARMY.

IN YOUR ORIGINAL CLAIM, AS CONTAINED IN YOUR LETTER OF AUGUST 12, 1955, RECEIVED IN OUR OFFICE ON DECEMBER 7, 1955, FROM THE DEPARTMENT OF THE ARMY, YOU STATED THAT A CLAIM FOR THE GRATUITY WAS NOT MADE AT THE TIME OF THE DEATH OF YOUR SON SINCE PARENTS WERE NOT ELIGIBLE BENEFICIARIES OF THE GRATUITY EXCEPT IN CASES INVOLVING ACTUAL DEPENDENCY OF THE PARENTS AND THAT IT WAS YOUR UNDERSTANDING THAT THE LAW WAS SUBSEQUENTLY CHANGED SO AS TO ESTABLISH ELIGIBILITY OF PARENTS FOR THE GRATUITY REGARDLESS OF ACTUAL DEPENDENCY. BY LETTER DATED MARCH 9, 1956, OUR CLAIMS DIVISION ADVISED YOU THAT THE ACT OF DECEMBER 17, 1919, 41 STAT. 367, LIMITING THE PAYMENT OF THE GRATUITY TO THE WIDOW, CHILDREN, OR OTHER DESIGNATED DEPENDENT RELATIVES, WAS AMENDED BY THE ACT OF DECEMBER 17, 1943, 57 STAT. 599, TO AUTHORIZE THE SECRETARY OF WAR (NOW THE SECRETARY OF THE ARMY) TO MAKE A DETERMINATION AS TO THE DEPENDENT RELATIVE ENTITLED TO THE GRATUITY WHERE THE DECEDENT WAS NOT SURVIVED BY A WIDOW, CHILDREN, OR PREVIOUSLY DESIGNATED BENEFICIARY. YOU WERE FURTHER ADVISED, HOWEVER, THAT SUCH AMENDMENT WAS NOT FOR CONSIDERATION IN YOUR CASE SINCE YOUR CLAIM WAS NOT FILED IN THE GENERAL ACCOUNTING OFFICE WITHIN TEN FULL YEARS AFTER THE CLAIM ACCRUED AS REQUIRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061.

IN YOUR LETTER OF AUGUST 7, 1956, IT IS URGED, SINCE YOU SERVED IN THE MILITARY FORCES OF THE UNITED STATES UNTIL NOVEMBER 30, 1946, THAT THE CLAIM BE ALLOWED ON THE BASIS OF THE PROVISO IN THE ACT OF OCTOBER 9, 1940, TO THE EFFECT THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.

RESPECTING THE CLAIM OF THE MOTHER OF THE DECEDENT, YOU ARE ADVISED THAT THE PROVISO OF THE ACT OF OCTOBER 9, 1940, UNDER ITS PLAIN TERMS, RELATES TO CLAIMS OF PERSONS SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES. IT IS ASSUMED THAT SHE HAS HAD NO SUCH SERVICE SINCE THE CLAIM ACCRUED IN 1941, AND, HENCE, THE PROVISO IS NOT FOR APPLICATION IN HER CASE.

AS TO YOUR CLAIM, YOU ARE ADVISED THAT SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT, AS AMENDED, 50 U.S.C. APP. 525, REQUIRES THE EXCLUSION OF ALL PERIODS OF MILITARY SERVICE WHEN COMPUTING PERIODS LIMITED BY LAW AND, THEREFORE, YOUR CLAIM IS NOT BARRED BY THE 1940 ACT. THERE IS NO EVIDENCE, HOWEVER, THAT THE SECRETARY OF THE ARMY HAS DESIGNATED YOU AS A DEPENDENT RELATIVE TO RECEIVE THE GRATUITY. UNDER THE EXPRESS PROVISIONS OF THE ACT OF DECEMBER 17, 1943, THE QUESTION WHETHER THE FATHER IS A "DEPENDENT RELATIVE" WITHIN THE CONTEMPLATION OF THE GRATUITY STATUTE IS SOLELY FOR DETERMINATION BY THE SECRETARY OF THE ARMY. HENCE, UNLESS AND UNTIL IT BE DETERMINED BY THE SECRETARY OF THE ARMY THAT YOU ARE A PROPER DEPENDENT RELATIVE TO RECEIVE THE SIX MONTHS' DEATH GRATUITY, NO FURTHER CONSIDERATION MAY BE GIVEN TO YOUR CLAIM FOR SUCH GRATUITY. ANY FURTHER INQUIRY IN THAT RESPECT SHOULD BE ADDRESSED TO THE SECRETARY OF THE ARMY.