B-134584, JAN. 20, 1958

B-134584, JAN. 20, 1958

TO MRS. DELORES B. ALCALA:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 4, 1957, WRITTEN ON YOUR BEHALF BY HARRIS H. LOVELY OF THE VETERANS COUNTY-CITY SERVICE, CORPUS CHRISTI, TEXAS, CONCERNING YOUR CLAIM FOR THE UNPAID BALANCE OF THE ARREARS OF PAY AND ALLOWANCES DUE YOUR LATE SON, ALBERTO B. GARZA,SERGEANT FIRST CLASS, UNITED STATES ARMY, AS OF JANUARY 19, 1954, THE DATE OF THE RECEIPT OF EVIDENCE OF HIS DEATH.

BY SETTLEMENT DATED NOVEMBER 10, 1954, YOU WERE ALLOWED THE SUM OF $2,183.76, REPRESENTING YOUR SHARE OF THE AMOUNT OF $4,367.52 REPORTED BY THE DEPARTMENT OF THE ARMY TO BE DUE AS PAY AND ALLOWANCES. YOU WERE ADVISED THAT THE BALANCE WAS RESERVED FOR THE FATHER, ALBERTO H. GARZA. SUBSEQUENTLY, ON FEBRUARY 2, 1955, THERE WAS RECEIVED FROM THE DEPARTMENT OF THE ARMY A COPY OF A LETTER DATED JANUARY 25, 1955, WRITTEN ON YOUR BEHALF BY MR. JOHN E. HUEY, VETERANS SERVICE OFFICER, VETERANS COUNTY-CITY SERVICE OFFICE, CORPUS CHRISTI, TEXAS, IN WHICH HE URGED THAT THE BALANCE OF THE AMOUNT DUE BE ALLOWED TO YOU, SAYING THAT THE FATHER DESERTED YOU AND THE DECEDENT AND HAD NOT SUPPORTED THE LATTER AFTER HE WAS SIX MONTHS OLD. BY LETTER DATED MARCH 4, 1955, OUR CLAIMS DIVISION ADVISED YOU THAT THE PHOTOSTATIC COPY OF THE BIRTH CERTIFICATE OF THE DECEDENT AND A JOINT AFFIDAVIT EXECUTED OCTOBER 27, 1954, BY ANGELITA GARZA AND SOLEDAD T. VDA. DE HERMANDEZ, CONSTITUTED SUFFICIENT EVIDENCE THAT THE DECEDENT WAS THE LEGITIMATE CHILD OF YOU AND ALBERTO R. GARZA. YOU WERE ALSO ADVISED THAT THE ACTION TAKEN IN THE SETTLEMENT OF NOVEMBER 10, 1954, WAS IN ACCORDANCE WITH THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, WHICH GOVERNS THE SETTLEMENT OF ACCOUNTS OF DECEASED PERSONNEL OF THE ARMY, WHO DIED PRIOR TO JANUARY 1, 1956. IN THE LETTER OF NOVEMBER 4, 1957, MR. LOVELY URGES THAT YOUR CLAIM BE ALLOWED, SAYING THAT THE DECEDENT WAS BORN OUT OF WEDLOCK.

IN THE SETTLEMENT OF ACCOUNTS OF DECEASED PERSONNEL OF THE ARMY, WE MUST COMPLY WITH THE APPLICABLE FEDERAL STATUTE, WHICH STATUTE IN THIS CASE IS THE ACT OF FEBRUARY 25, 1946. THAT ACT PROVIDES THAT WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE OF THE DECEDENT AND THE DECEDENT IS NOT SURVIVED BY A WIDOW OR DESCENDANT, THE ACCOUNTING OFFICERS MAY ALLOW THE AMOUNT FOUND DUE "TO THE MOTHER AND FATHER 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 UPON THEIR 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.

AS YOU ARE AWARE, THE PHOTOSTATIC COPY OF THE BIRTH CERTIFICATE OF THE DECEDENT SHOWS THAT HE WAS BORN LEGITIMATELY, THAT YOU WERE HIS MOTHER, AND THAT HIS FATHER WAS ALBERTO R. GARZA. THE AFFIDAVIT EXECUTED OCTOBER 27, 1954, AVERS THAT "DELORES B. ALCALA, SOMETIMES KNOWN AS LOLA, LIVED WITH ALBERTO GARZA AS COMMON LAW MARRIAGE FOR APPROXIMATELY ONE YEAR AND DURING THIS TIME THEY LIVED ON SAN MARCOS ST., SAN ANTONIO, HOWEVER THEY (THE AFFIANTS) DO NOT KNOW THE EXACT NUMBER AND THAT ALBERTO B. GARZA WAS CONCEIVED DURING THIS MARTIAL RELATIONSHIP.' YOU HAVE STATED THAT YOU LIVED WITH MR. GARZA ABOUT 18 MONTHS AFTER THE BIRTH OF YOUR SON.

THE FOREGOING IS COMPETENT EVIDENCE OF A COMMON-LAW MARRIAGE RELATIONSHIP BETWEEN YOU AND ALBERTO R. GARZA. IN THE ABSENCE OF EVIDENCE TO THE CONTRARY AND SINCE COMMON-LAW MARRIAGES ARE RECOGNIZED IN TEXAS (GRIGSBY V. REIB, 105 TEX. 597, 153 S.W. 1124; SMITH V. SMITH, 257 S.W. (2D) 335), THERE IS NO SUFFICIENT BASIS FOR CONCLUDING THAT YOUR SON WAS BORN OUT OF WEDLOCK OR THAT ALBERTO R. GARZA IS NOT ENTITLED, AS HIS FATHER TO THE BALANCE OF THE ARREARS OF PAY AND ALLOWANCES RESERVED FOR HIM.

ACCORDINGLY, IN THE ABSENCE OF A SHOWING THAT THE FATHER HAS BEEN DECLARED DEAD BY A COURT OF COMPETENT JURISDICTION, OR OTHER SATISFACTORY EVIDENCE THAT HE IS NO LONGER ALIVE, WE CAN TAKE NO FURTHER ACTION IN THE MATTER. THE AMOUNT RESERVED FOR THE FATHER COULD, OF COURSE, BE PAID TO A DULY APPOINTED LEGAL REPRESENTATIVE OF YOUR SON'S ESTATE, THAT IS, AN EXECUTOR OR AN ADMINISTRATOR, PROVIDED THAT A CLAIM FROM THE FATHER HASNOT BEEN RECEIVED AND SETTLED IN THE MEANTIME. ANY CLAIM BY SUCH LEGAL REPRESENTATIVE, ACCOMPANIED BY A DULY AUTHENTICATED COPY OF HIS APPOINTMENT, SHOULD BE ADDRESSED TO THE CLAIMS DIVISION, GENERAL ACCOUNTING OFFICE, WASHINGTON 25, D.C. ..END :