B-134828, FEB. 12, 1958

B-134828: Feb 12, 1958

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THERE WAS RECEIVED IN OUR OFFICE A LETTER DATED JANUARY 16. YOU CERTIFIED THAT YOUR LATE SON WAS NOT SURVIVED BY A WIDOW OR CHILD. THAT HE WAS SURVIVED BY A BROTHER AND TWO SISTERS AS WELL AS YOURSELF. YOU FURTHER STATED THAT YOU HAD NO KNOWLEDGE OF HIS WHEREABOUTS SINCE THAT DATE OR WHETHER HE WAS STILL LIVING. ADVISED YOU THAT THE BALANCE WAS RESERVED FOR THE FATHER. IN WHICH YOU AVERRED THAT YOU AND THE FATHER WERE SEPARATED WHEN THE DECEDENT WAS ONE YEAR OLD. THAT YOU WERE DIVORCED FROM HIM WHEN THE DECEDENT WAS ABOUT THREE AND ONE-HALF YEARS OLD. YOU WERE MARRIED TO YOUR PRESENT HUSBAND. WHO WAS THE ONLY FATHER THE DECEDENT EVER KNEW. WAS IN ACCORDANCE WITH THE ACT OF FEBRUARY 25.

B-134828, FEB. 12, 1958

TO MRS. GOLDEN FORNOS, DISABLED AMERICAN VETERANS:

BY LETTER DATED DECEMBER 16, 1957, THE COMMANDANT, HEADQUARTERS, UNITED STATES MARINE CORPS, FORWARDED TO US A LETTER DATED NOVEMBER 22, 1957, WITH ENCLOSURES, WRITTEN ON YOUR BEHALF BY MR. GOTTSCHALK, CONCERNING YOUR CLAIM FOR THE BALANCE OF THE ARREARS OF PAY DUE IN THE CASE OF YOUR LATE SON, JOE M. DOMINGUEZ, AS OF OCTOBER 25, 1945, THE DATE OF THE RECEIPT OF EVIDENCE OF HIS DEATH AS AN ENLISTED MAN, UNITED STATES MARINE CORPS.

ON JANUARY 18, 1946, THERE WAS RECEIVED IN OUR OFFICE A LETTER DATED JANUARY 16, 1946, FROM MR. S. J. HEINMILLER, SERVICE OFFICER, VETERANS SERVICE AND INFORMATION OFFICE, TAMPA 2, FLORIDA, ENCLOSING YOUR APPLICATION FOR THE AMOUNT DUE THE ESTATE OF THE DECEDENT. YOU CERTIFIED THAT YOUR LATE SON WAS NOT SURVIVED BY A WIDOW OR CHILD, BUT THAT HE WAS SURVIVED BY A BROTHER AND TWO SISTERS AS WELL AS YOURSELF. YOU FURTHER STATED THAT YOU HAD NO KNOWLEDGE OF HIS WHEREABOUTS SINCE THAT DATE OR WHETHER HE WAS STILL LIVING. THE UNITED STATES MARINE CORPS HAVING REPORTED THAT THE ARREARS OF PAY DUE AMOUNTED TO $2,490.77, OUR CLAIMS DIVISION BY SETTLEMENT DATED MARCH 15, 1946, ALLOWED YOU THE SUM OF $1,245.38, REPRESENTING YOUR SHARE OF THE AMOUNT DUE, AND ADVISED YOU THAT THE BALANCE WAS RESERVED FOR THE FATHER.

BY LETTER DATED APRIL 30, 1946, MR. HEINMILLER TRANSMITTED TO US A CERTIFIED TRUE AND CORRECT COPY OF A DECREE ISSUED JUNE 12, 1925, BY THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT OF MONROE COUNTY, FLORIDA, DIVORCING YOU FROM THE FATHER, AND YOUR AFFIDAVIT EXECUTED APRIL 30, 1946, IN WHICH YOU AVERRED THAT YOU AND THE FATHER WERE SEPARATED WHEN THE DECEDENT WAS ONE YEAR OLD, SINCE WHICH TIME YOU HAD NOT SEEN OR HEARD FROM THE FATHER; THAT YOU WERE DIVORCED FROM HIM WHEN THE DECEDENT WAS ABOUT THREE AND ONE-HALF YEARS OLD; THAT HE NEVER CONTRIBUTED TO THE SUPPORT OF YOUR LATE SON; AND THAT ON JUNE 20, 1925, YOU WERE MARRIED TO YOUR PRESENT HUSBAND, WHO WAS THE ONLY FATHER THE DECEDENT EVER KNEW. IN REPLY TO THAT LETTER, OUR CLAIMS DIVISION BY LETTER DATED JULY 10, 1946, ADVISED YOU THAT THE ACTION TAKEN IN THE SETTLEMENT OF MARCH 15, 1946, WAS IN ACCORDANCE WITH THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30. THE PERTINENT PARTS OF THAT ACT, GOVERNING THE SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE MARINE CORPS WHO DIED PRIOR TO JANUARY 1, 1956, WERE QUOTED IN THE LETTER OF JULY 10, 1946. SUBSEQUENTLY, THE CLAIMS DIVISION, BY LETTER DATED SEPTEMBER 4, 1947, ADVISED YOU THAT UNDER THE CITED ACT THE STEP FATHER OF THE DECEDENT WAS NOT WITHIN THE CLASSES OF HEIRS PERMITTED TO SHARE IN THE DISTRIBUTION OF ESTATES OF DECEASED MEMBERS OF THE MARINE CORPS AND THAT THERE WAS NO AUTHORITY TO ALLOW TO HIM THE AMOUNT RESERVED FOR THE FATHER.

IN THE LETTER OF NOVEMBER 22, 1957, MR. GOTTSCHALK REQUESTS THAT YOUR CLAIM BE RE-EXAMINED AND THAT THE AMOUNT RESERVED BE PAID TO YOU ON THE BASIS OF YOUR DIVORCE FROM THE FATHER AND TWO AFFIDAVITS EXECUTED NOVEMBER 12, 1957, ENCLOSED WITH HIS LETTER, TO THE EFFECT THAT THE FATHER ABANDONED THE SUPPORT OF THE DECEDENT WHEN HE WAS ONE YEAR OLD.

AS YOU HAVE BEEN ADVISED, THE ACT OF FEBRUARY 25, 1946, PROVIDES THAT WHERE NO CLAIM HAS BEEN PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE OF THE DECEDENT, AND HE IS NOT SURVIVED BY A WIDOW OR A CHILD, THE AMOUNT DUE MAY BE ALLOWED TO THE FATHER AND MOTHER IN EQUAL SHARES ON THE BASIS OF RELATIONSHIP ONLY, IRRESPECTIVE OF SUCH CONSIDERATION AS ABANDONMENT OR DIVORCE BY EITHER OF THE PARENTS. HENCE, THE ACTION TAKEN IN RESERVING THE FATHER'S SHARE WAS CLEARLY REQUIRED SINCE THERE IS NOTHING IN THE RECORD BEFORE US TO INDICATE THAT HE IS NOT STILL LIVING.

FURTHERMORE, SINCE THE FATHER HAS NOT MADE CLAIM FOR THE AMOUNT RESERVED FOR HIM, IT APPEARS THAT HE COULD NOT NOW BE ALLOWED THAT AMOUNT IN HIS OWN RIGHT SINCE THE ACT OF OCTOBER 9, 1940, 64 STAT. 1061, PROVIDES THAT EVERY CLAIM AGAINST THE UNITED STATES SHALL BE FOREVER BARRED UNLESS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN TEN FULL YEARS AFTER SUCH CLAIM FIRST ACCRUES.

ACCORDINGLY, THE RECORD BEFORE US PRESENTS NO LEGAL BASIS UPON WHICH THE BALANCE DUE THE ESTATE OF YOUR LATE SON MAY BE ALLOWED TO YOU.