B-142017, APR. 15, 1960

B-142017: Apr 15, 1960

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FURTHER CONSIDERATION IS REQUESTED OF THE MATTER OF YOUR INDEBTEDNESS TO THE UNITED STATES. THE RECORDS INDICATE THAT YOUR SON WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OF THE ARMY ON JANUARY 31. HE WAS DIRECTED TO PROCEED FROM HIS HOME IN STRONGSVILLE. UPON THE COMPLETION OF WHICH AND WHEN RELEASED BY THE HOSPITAL COMMANDER HE WAS TO RETURN TO HIS HOME. YOU WERE PAID THE SUM OF $800 AS A SIX-MONTH DEATH GRATUITY BY CHECK DATED SEPTEMBER 25. ON THE BASIS THAT HE WAS IN AN ACTIVE DUTY STATUS AT THE TIME OF HIS DEATH. YOU WERE ADVISED BY THE FINANCE CENTER. THAT THAT PAYMENT HAD BEEN MADE IN ERROR SINCE YOUR SON'S DEATH DID NOT OCCUR WHILE HE WAS IN LINE OF DUTY OR WITHIN 120 DAYS FROM THE DATE OF HIS RETIREMENT.

B-142017, APR. 15, 1960

TO MRS. MILDRED JENNY, C/O THOMAS G. MOSHIER, ATTORNEY AT LAW:

IN A LETTER FROM THOMAS G. MOSHIER, ATTORNEY AT LAW, DATED DECEMBER 18, 1959, FURTHER CONSIDERATION IS REQUESTED OF THE MATTER OF YOUR INDEBTEDNESS TO THE UNITED STATES, IN THE SUM OF $800, REPRESENTING AN AMOUNT ERRONEOUSLY PAID TO YOU AS A SIX-MONTH DEATH GRATUITY INCIDENT TO THE DEATH OF YOUR SON, PRIVATE RONALD H. JENNY, ARMY OF THE UNITED STATES, RETIRED, ON SEPTEMBER 8, 1958.

THE RECORDS INDICATE THAT YOUR SON WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST OF THE ARMY ON JANUARY 31, 1956. IN ORDERS DATED APRIL 21, 1958, HE WAS DIRECTED TO PROCEED FROM HIS HOME IN STRONGSVILLE, OHIO, TO THE VETERANS ADMINISTRATION HOSPITAL, CLEVELAND, OHIO, FOR PERIODIC PHYSICAL EXAMINATION, UPON THE COMPLETION OF WHICH AND WHEN RELEASED BY THE HOSPITAL COMMANDER HE WAS TO RETURN TO HIS HOME. IT APPEARS THAT HE PROCEEDED TO CRILE VETERANS ADMINISTRATION HOSPITAL AT CLEVELAND FOR THAT PURPOSE, AND THAT HE REMAINED AT THAT PLACE UNTIL HIS DEATH ON SEPTEMBER 8, 1958. YOU WERE PAID THE SUM OF $800 AS A SIX-MONTH DEATH GRATUITY BY CHECK DATED SEPTEMBER 25, 1958, UNDER THE PROVISIONS OF TITLE III OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT, 70 STAT. 868, ON THE BASIS THAT HE WAS IN AN ACTIVE DUTY STATUS AT THE TIME OF HIS DEATH. SUBSEQUENTLY, YOU WERE ADVISED BY THE FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS, INDIANA, THAT THAT PAYMENT HAD BEEN MADE IN ERROR SINCE YOUR SON'S DEATH DID NOT OCCUR WHILE HE WAS IN LINE OF DUTY OR WITHIN 120 DAYS FROM THE DATE OF HIS RETIREMENT, AND THAT IT WOULD BE NECESSARY TO REFUND TO THE GOVERNMENT SUCH ERRONEOUS PAYMENT. THE MATTER OF YOUR INDEBTEDNESS LATER WAS REFERRED TO THIS OFFICE FOR DISPOSITION, AND IN RESPONSE TO OUR REQUEST FOR FURTHER INFORMATION THE ADJUTANT GENERAL'S OFFICE, DEPARTMENT OF THE ARMY, IN COMMUNICATION DATED OCTOBER 27, 1959, REPORTED THAT YOUR SON PERFORMED NO ACTIVE DUTY, ACTIVE DUTY TRAINING, OR INACTIVE DUTY TRAINING SUBSEQUENT TO JANUARY 31, 1956.

THE SIX-MONTH DEATH GRATUITY PROVIDED IN TITLE III OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT IS AUTHORIZED TO BE PAID ONLY TO THE SURVIVOR OF A DECEASED MEMBER WHO DIES WHILE ON ACTIVE DUTY, ACTIVE DUTY FOR TRAINING, OR INACTIVE DUTY TRAINING," OR WHO DIES DURING THE 120 DAY PERIOD IMMEDIATELY FOLLOWING THE DATE OF HIS DISCHARGE OR RELEASE IN CASES WHERE DETERMINATION IS MADE THAT THE DEATH RESULTED FROM DISEASE OR INJURY INCURRED OR AGGRAVATED WHILE IN THE PERFORMANCE OF SUCH DUTIES. YOUR SON WAS NOT ENGAGED IN THE PERFORMANCE OF ACTIVE DUTY, ACTIVE DUTY FOR TRAINING, OR INACTIVE DUTY TRAINING ON THE DATE OF HIS DEATH, AND HAD NOT BEEN RELEASED FROM THE PERFORMANCE OF ANY SUCH DUTIES WITHIN THE 120 DAY PERIOD PRECEDING THAT DATE. THE PURPOSE OF HIS ORDERS OF APRIL 21, 1958, ON THE CONTRARY, WAS TO DIRECT HIM TO PROCEED TO THE HOSPITAL AT CLEVELAND FOR THE PERIODIC PHYSICAL EXAMINATION REQUIRED OF THOSE ON THE TEMPORARY DISABILITY RETIRED LIST, IN ORDER TO DETERMINE WHETHER THERE HAS BEEN ANY CHANGE IN THE DISABILITY FOR WHICH THE PERSON CONCERNED HAD BEEN TEMPORARILY RETIRED. SUCH ORDERS WERE NOT LIKE ORDERS TO A MEMBER OF THE ARMED SERVICES IN AN ACTIVE DUTY STATUS, DISOBEDIENCE TO WHICH SUBJECTS HIM TO MILITARY DISCIPLINE, SINCE THE ONLY PENALTY SPECIFICALLY PROVIDED BY LAW FOR FAILURE TO COMPLY WITH SUCH PHYSICAL EXAMINATION ORDERS IS POSSIBLE TERMINATION OF RETIRED PAY. 10 U.S.C. 1210 (A). HAD YOUR SON BEEN ON ACTIVE DUTY AT THE HOSPITAL, OR HAD HE PERFORMED INACTIVE DUTY TRAINING AT THAT PLACE HE WOULD HAVE BEEN PAID FOR SUCH DUTY AS PROVIDED BY LAW. HOWEVER, HE DID NOT PERFORM SUCH DUTY AND IT APPEARS THAT HE CONTINUED TO RECEIVE DISABILITY BENEFITS FROM THE VETERANS ADMINISTRATION WHILE AT THAT PLACE. THE ONLY ALLOWANCES TO WHICH HE BECAME ENTITLED BY VIRTUE OF COMPLYING WITH THE ORDERS OF APRIL 21, 1958, WERE TRAVEL AND TRANSPORTATION ALLOWANCES TO THE HOSPITAL. 10 U.S.C. 1210 (G). EVEN IF HE HAD BEEN FOUND PHYSICALLY FIT FOR ACTIVE DUTY AFTER BEING EXAMINED, HE COULD NOT HAVE BEEN ORDERED TO ACTIVE DUTY UNLESS HE VOLUNTARILY REENLISTED. SEE IN THIS CONNECTION 10 U.S.C. 1211 (A) (3), (4) AND (6). CONSEQUENTLY, THERE WAS NO AUTHORITY UNDER THE PROVISIONS OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT FOR THE DEATH GRATUITY PAYMENT MADE TO YOU.

WHILE IT IS UNFORTUNATE THAT THE GRATUITY PAYMENT WAS MADE TO YOU UNDER THE INDICATED CIRCUMSTANCES AND WE REALIZE YOUR INCONVENIENCE IN THE MATTER, IT IS OUR RESPONSIBILITY AND DUTY TO TAKE THE STEPS NECESSARY TO EFFECT RECOVERY OF THE UNAUTHORIZED PAYMENT. IT IS AGAIN REQUESTED, THEREFORE, THAT PAYMENT OF THE INDEBTEDNESS, OR PARTIAL PAYMENT (ACCOMPANIED BY A STATEMENT OF YOUR PROPOSAL FOR LIQUIDATION OF THE BALANCE OF THE DEBT), BE MADE BY CHECK OR MONEY ORDER PAYABLE TO THE "UNITED STATES GENERAL ACCOUNTING OFFICE" AND ADDRESSED TO THE GENERAL ACCOUNTING OFFICE, BOX 2610, WASHINGTON 13, D.C.

WITH RESPECT TO MR. MOSHIER'S REFERENCE TO YOUR CLAIM FOR FUNERAL EXPENSES IN CONNECTION WITH YOUR SON'S DEATH, IT IS BELIEVED THAT SUCH CLAIM SHOULD BE FILED WITH THE VETERANS ADMINISTRATION UNDER THE PROVISIONS OF 38 U.S.C. 904. IT IS SUGGESTED THAT YOU CONTACT THE VETERANS ..END :