B-134398, JAN. 21, 1958

B-134398: Jan 21, 1958

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REQUESTING AN ADVANCE DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF FANNIE B. THAT AN ORDER OF PUBLICATION WAS INSTITUTED ON MAY 7. THAT NO FURTHER ACTION WAS TAKEN TO COMPLETE THOSE DIVORCE PROCEEDINGS. IS MARGARET LOWENHAUPT ESTOPPED TO ASSERT THAT SHE IS THE LEGAL WIDOW OF AIRMAN MOORE FOR PAYMENT OF DEATH GRATUITY? IF MARGARET IS ESTOPPED. IS THERE A PRESUMPTION OF THE VALIDITY OF THE MARRIAGE BETWEEN MARGARET AND LOWENHAUPT SO MARGARET WOULD BE CONSIDERED THE LEGAL WIFE OF LOWENHAUPT AND NOT THE WIDOW OF AIRMAN MOORE. LOWENHAUPT ALLEGED THAT SHE WAS DIVORCED FROM THE LATE AIRMAN ON MAY 7. THAT SHE WAS NOT ENTITLED TO ANY BENEFITS PAYABLE BY THE GOVERNMENT.

B-134398, JAN. 21, 1958

TO LIEUTENANT COLONEL C. W. GRIFFIN, USAF, DIRECTORATE OF ACCOUNTING AND FINANCE, HEADQUARTERS, UNITED STATES AIR FORCE:

BY AN UNDATED LETTER RECEIVED HERE ON NOVEMBER 14, 1957, THE HEADQUARTERS, UNITED STATES AIR FORCE, FORWARDED YOUR LETTER OF OCTOBER 3, 1957 (SEDG-1 MOORE, IRA W.), REQUESTING AN ADVANCE DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF FANNIE B. MOORE IN THE AMOUNT OF $971.28, REPRESENTING SIX MONTHS' DEATH GRATUITY PAYABLE IN THE CASE OF THE LATE A/2C IRA WATSON MOORE, AF 700 0260.

IT APPEARS FROM THE ENCLOSURES RECEIVED WITH YOUR LETTER THAT THE LATE AIRMAN MARRIED MARGARET JEANETTE SIMMONS ON JULY 2, 1948; THAT MARGARET JEANETTE SIMMONS MOORE INSTITUTED AN ACTION FOR DIVORCE FROM IRA WATSON MOORE IN THE CIRCUIT COURT AT HAMPTON, VIRGINIA; AND THAT AN ORDER OF PUBLICATION WAS INSTITUTED ON MAY 7, 1953, BUT THAT NO FURTHER ACTION WAS TAKEN TO COMPLETE THOSE DIVORCE PROCEEDINGS. EVIDENCE HAS BEEN SUBMITTED WHICH SHOWS THAT UNDER DATE OF OCTOBER 13, 1953, MARGARET JEANETTE SIMMONS MARRIED HERBERT WILLIAM LOWENHAUPT AT WASHINGTON, D.C. ON SEPTEMBER 11, 1953, THE LATE AIRMAN DESIGNATED "MARGERT JENETTE MOORE," WIFE, AS PRIMARY BENEFICIARY TO RECEIVE THE DEATH GRATUITY AND FANNIE B. MOORE, SISTER, AS CONTINGENT BENEFICIARY. UPON THE BASIS OF THE FOREGOING FACTS YOU MAKE THE FOLLOWING INQUIRIES:

"* * * UNDER THESE CIRCUMSTANCES, IS MARGARET LOWENHAUPT ESTOPPED TO ASSERT THAT SHE IS THE LEGAL WIDOW OF AIRMAN MOORE FOR PAYMENT OF DEATH GRATUITY? IF MARGARET IS ESTOPPED, CAN THE DEATH GRATUITY BE PAID TO FANNIE B. MOORE? IS THERE A PRESUMPTION OF THE VALIDITY OF THE MARRIAGE BETWEEN MARGARET AND LOWENHAUPT SO MARGARET WOULD BE CONSIDERED THE LEGAL WIFE OF LOWENHAUPT AND NOT THE WIDOW OF AIRMAN MOORE, THEREBY PERMITTING PAYMENT OF THE DEATH GRATUITY TO FANNIE B. OORE?

THE ACT OF DECEMBER 17, 1919, 41 STAT. 367, AS AMENDED, 10 U.S.C. 903 (1952), PROVIDES THAT IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OWN MISCONDUCT, OF ANY OFFICER OR ENLISTED MAN ON THE ACTIVE LIST OF THE REGULAR ARMY OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE BRANCH, OFFICE, OR OFFICER OF THE ARMY THE SECRETARY OF THE ARMY MAY FROM TIME TO TIME DESIGNATE, SHALL CAUSE TO BE PAID TO THE WIDOW AND IF THERE BE NO WIDOW TO THE CHILD OR CHILDREN, AND IF THERE BE NO WIDOW OR CHILD TO ANY OTHER DEPENDENT RELATIVE OF SUCH OFFICER OR ENLISTED MAN PREVIOUSLY DESIGNATED BY HIM, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF HIS DEATH.

IN A LETTER DATED JANUARY 5, 1956, MRS. LOWENHAUPT ALLEGED THAT SHE WAS DIVORCED FROM THE LATE AIRMAN ON MAY 7, 1953, AND THAT SHE WAS NOT ENTITLED TO ANY BENEFITS PAYABLE BY THE GOVERNMENT. ALSO, IN A COPY OF A LETTER TRANSMITTED BY YOU MRS. LOWENHAUPT ATTEMPTED TO RENOUNCE ANY CLAIM SHE MAY HAVE TO ANY "BENEFITS" PAYABLE IN THE CASE OF THE VETERAN, THAT POSITION BEING TAKEN ON THE GROUND THAT SHE WAS THE EX WIFE OF THE VETERAN AT THE TIME OF HIS DEATH AND THEREFORE DISQUALIFIED TO MAKE ANY CLAIM. MRS. LOWENHAUPT EXPRESSED THE VIEW THAT VETERAN'S BROTHER AND SISTER ARE LEGALLY ENTITLED TO PAYMENT OF THE AMOUNT DUE.

WE ARE INCLINED TO THE VIEW THAT THE RECORD DOES NOT ESTABLISH THAT MRS. LOWENHAUPT IS THE VETERAN'S WIDOW AND THUS IT IS NOT ESTABLISHED THAT SHE IS ENTITLED TO PAYMENT OF THE GRATUITY AUTHORIZED BY THE CITED ACT OF DECEMBER 17, 1919. THAT VIEW IS CONSISTENT WITH THE CONCLUSION REACHED BY THE VETERANS ADMINISTRATION TO THE EFFECT THAT SHE MAY NOT BE ACCEPTED AS THE LEGAL WIDOW OF THE VETERAN FOR THE PURPOSE OF CLAIMING BENEFITS PAYABLE BY THAT AGENCY. SEE ANNOTATION 71 ALR 277. IN ADDITION, THE RECORD CLEARLY SHOWS THAT MRS. LOWENHAUPT DOES NOT INTEND TO ATTEMPT TO ESTABLISH THAT SHE IS THE DECEDENT'S WIDOW, HER STATEMENTS INDICATING THAT SHE HAS RELINQUISHED HER CLAIM. SEE 22 COMP. GEN. 676. UNDER SUCH CIRCUMSTANCES, PAYMENT OF THE SIX MONTHS' DEATH GRATUITY PAY MAY PROPERLY BE MADE TO MRS. FANNIE B. MOORE, THE FIRST CONTINGENT BENEFICIARY. ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE MADE IF OTHERWISE CORRECT.