B-145243, APR. 14, 1961

B-145243: Apr 14, 1961

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BOODELL AND WILL: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 20. WAS REFERRED TO OUR CLAIMS DIVISION BY LETTER OF FEBRUARY 10. IT WAS INDICATED IN THAT LETTER THAT THEY HAD FURNISHED CERTAIN ADMINISTRATIVE REPORTS IN CONNECTION WITH THE SERVICEMAN'S DEATH AND A RELATED CLAIM. AFTER HAVING ASCERTAINED THAT THE FOLDER WHICH WOULD HAVE CONTAINED THE RECORDS AND PAPERS FILED IN CONNECTION WITH ANY CLAIM RELATING TO THE DEATH OF THE SERVICEMAN. A SPECIAL SEARCH WAS CONDUCTED AND THERE WAS FOUND A COPY OF CERTIFICATE OF SETTLEMENT NO. 1293183 OF APRIL 29. FOR $255.98 WHICH WAS ISSUED IN THAT CASE. YOU WILL OBSERVE FROM THE ENCLOSED PHOTOCOPY OF THAT DOCUMENT THAT SETTLEMENT FOR ARREARS OF PAY FOR $3.33 (MARCH 1 TO 2.

B-145243, APR. 14, 1961

TO NELSON, BOODELL AND WILL:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 20, 1961, AND ENCLOSURE, WITH REGARD TO THE CLAIM FILED BY MARIJA ZDRINSCAK, LOVRAN, RIJEKA, YUGOSLAVIA, FOR SUCH BENEFITS, INCLUDING SIX MONTHS' DEATH GRATUITY ALLOWANCE, AS MAY BE DUE IN CONNECTION WITH THE DEATH OF HER SON, JOHN M. SZRINCSAK, PRIVATE, UNITED STATES ARMY, ON MARCH 2, 1943, AT CAMP CAMPBELL, KENTUCKY.

THE CLAIM OF MRS. ZDRINSCAK, TOGETHER WITH AUTHENTICATED DOCUMENTS ESTABLISHING HER RELATIONSHIP TO THE DECEDENT AS WELL AS THE DEATH OF HIS FATHER, IVAN ZDRINSCAK, ON FEBRUARY 3, 1954, WAS REFERRED TO OUR CLAIMS DIVISION BY LETTER OF FEBRUARY 10, 1960, FROM THE DEPARTMENT OF THE ARMY, FOR THE REASON THAT THE CLAIM APPEARED TO BE BARRED UNDER THE APPLICABLE STATUTE OF LIMITATIONS. IT WAS INDICATED IN THAT LETTER THAT THEY HAD FURNISHED CERTAIN ADMINISTRATIVE REPORTS IN CONNECTION WITH THE SERVICEMAN'S DEATH AND A RELATED CLAIM--- APPARENTLY RECEIVED HERE PRIOR TO FEBRUARY 8, 1946--- FROM MRS. SLARA KRNETA OF DETROIT, MICHIGAN, FOR ARREARS OF PAY AND ALLOWANCES DUE THE DECEDENT AND THAT ON SEPTEMBER 2, 1954, MRS. ZDRINSCAK HAD SUBMITTED A CLAIM THROUGH YOUR OFFICE.

OUR CLAIMS DIVISION, AFTER HAVING ASCERTAINED THAT THE FOLDER WHICH WOULD HAVE CONTAINED THE RECORDS AND PAPERS FILED IN CONNECTION WITH ANY CLAIM RELATING TO THE DEATH OF THE SERVICEMAN, HAD BEEN DESTROYED PURSUANT TO LAW BECAUSE OF AGE (SEE CHAPTER 10 OF TITLE 44 OF THE UNITED STATES CODE (1958 EDITION) (, ADVISED YOU BY LETTER OF FEBRUARY 14, 1961, OF THE DESTRUCTION OF THE FILE AND OF THE PRESUMPTION THAT ANY PENDING CLAIM HAD BEEN DULY CONSIDERED AND SETTLED IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF LAW. UPON RECEIPT OF YOUR LETTER OF FEBRUARY 20, 1961, A SPECIAL SEARCH WAS CONDUCTED AND THERE WAS FOUND A COPY OF CERTIFICATE OF SETTLEMENT NO. 1293183 OF APRIL 29, 1946, FOR $255.98 WHICH WAS ISSUED IN THAT CASE. YOU WILL OBSERVE FROM THE ENCLOSED PHOTOCOPY OF THAT DOCUMENT THAT SETTLEMENT FOR ARREARS OF PAY FOR $3.33 (MARCH 1 TO 2, 1943, OR TWO DAYS AT $50 PER MONTH) AND CASH EFFECTS OF $252.65, WAS MADE IN FAVOR OF SLAVA KRNETA, AS EXECUTRIX OF THE LAST WILL AND TESTAMENT OF JOHN W. SYRINCSAK, DECEASED. UNDER THE PROVISIONS OF THE THEN GOVERNING STATUTE, THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, 10 U.S.C. 868 (1952 EDITION), MRS. KRNETA, AS THE LEGAL REPRESENTATIVE OF THE ESTATE, HAD A PRIOR RIGHT TO THE AMOUNTS DUE AS AGAINST THE CLAIMS OF HEIRS. THE ACT OF FEBRUARY 25, 1946, PROVIDED, IN MATERIAL PART, AS FOLLOWS:

"IN THE SETTLEMENT OF THE ACCOUNTS OF DECEASED OFFICERS OR ENLISTED PERSONS OF THE ARMY, WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, THE ACCOUNTING OFFICERS MAY ALLOW THE AMOUNT FOUND DUE TO THE DECEDENT'S WIDOW, WIDOWER, OR LEGAL HEIRS IN THE FOLLOWING ORDER OF PRECEDENCE: FIRST, TO THE WIDOW OR WIDOWER; SECOND, IF DECEDENT LEFT NO WIDOW OR WIDOWER, OR THE WIDOW OR WIDOWER BE DEAD AT TIME OF SETTLEMENT, THEN TO THE CHILDREN OR THEIR ISSUE, PER STIRPES; THIRD, IF NO WIDOW, WIDOWER, OR DESCENDANTS, THEN TO THE FATHER OR MOTHER IN EQUAL PARTS; FOURTH, IF EITHER THE FATHER OR MOTHER BE DEAD, THEN TO THE ONE SURVIVING; FIFTH, IF THERE BE NOWIDOW, WIDOWER, CHILD, FATHER, OR MOTHER AT THE DATE OF SETTLEMENT, THEN TO THE BROTHERS AND SISTERS AND CHILDREN OF DECEASED BROTHERS AND SISTERS, PER STIRPES: * * *"

IN VIEW OF THE STATEMENT IN YOUR LETTER OF SEPTEMBER 2, 1954, ADDRESSED TO THE CHIEF, SETTLEMENTS DIVISION, FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS 49, INDIANA, THAT "* * * WE ACTED ON BEHALF OF THE CONSUL GENERAL AS ATTORNEY-IN-FACT FOR THE MOTHER AND FATHER OF THE ABOVE DECEDENT IN THE MATTER OF HIS ESTATE, ADMINISTERED IN WAYNE COUNTY, MICHIGAN AND THE PROCEEDS OF HIS ESTATE BEQUEATHED TO THE MOTHER AND FATHER WERE FORWARDED TO THEM" WE ASSUME THAT MRS. ZDRINSCAK AND HER LATE HUSBAND RECEIVED THE AMOUNT COVERED BY THE SETTLEMENT.

THE SETTLEMENT DID NOT INCLUDE THE SIX MONTHS' GRATUITY INASMUCH AS THE THEN GOVERNING STATUTE, THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 903 (1946 EDITION), UNLIKE THE ABOVE ACT OF FEBRUARY 25, 1946, MADE NO PROVISION FOR PAYMENT TO A LEGAL REPRESENTATIVE. MRS. ZDRINSCAK'S ENTITLEMENT AS THE MOTHER OF THE DECEASED SERVICE MEMBER TO THE GRATUITY PAY IS LIMITED, HOWEVER, BY THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061. SECTION 1 OF THAT ACT PROVIDES, IN PART, AS FOLLOWS:

"THAT EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921 (42 STAT. 24), AND THE ACT OF APRIL 10, 1928 (45 STAT. 413), SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: * * *"

THE RIGHT TO RECEIVE THE SIX MONTHS' DEATH GRATUITY ACCRUED ON MARCH 2, 1943, THE DATE OF THE SERVICE MEMBER'S DEATH. BY YOUR LETTER OF SEPTEMBER 2, 1954, YOU INITIALLY MADE AN INQUIRY IN THIS MATTER AND MRS. ZDRINSCAK EXECUTED THE NECESSARY APPLICATION FORM FOR THE GRATUITY PAY AT A LATER DATE. THAT APPLICATION FORM, WHICH BEARS A STAMPED NOTATION SHOWING THAT IT WAS RECEIVED BY THE FINANCE CENTER, UNITED STATES ARMY, ON JUNE 27, 1955, WAS NOT RECEIVED IN THIS OFFICE UNTIL FEBRUARY 15, 1960. SINCE A PERIOD OF MORE THAN 10 YEARS HAS ELAPSED SINCE THE ACCRUAL DATE OF MRS. ZDRINSCAK'S CLAIM, SUCH CLAIM IS BARRED BY THE CLEAR PROVISIONS OF THE ACT OF OCTOBER 9, 1940.

IT APPEARS FROM LETTER OF OCTOBER 28, 1954, COPY OF WHICH WAS ENCLOSED WITH YOUR LETTER OF FEBRUARY 20, 1961, THAT THE FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS, INDIANA, INFORMED YOU, AMONG OTHER THINGS, THAT THE DECEDENT'S PARENTS WOULD BE ELIGIBLE TO RECEIVE THE GRATUITY PAY IN EQUAL SHARES IF HE WAS NOT SURVIVED BY A WIDOW, CHILD, OR GRANDCHILD. HOWEVER, THE ACT OF DECEMBER 17, 1943, 57 STAT. 599, WHICH AMENDED THE ABOVE ACT OF DECEMBER 17, 1919, EFFECTIVE AS OF AUGUST 27, 1940, PROVIDED THAT WHERE THE DECEASED IS NOT SURVIVED BY A WIDOW OR CHILD, OR PREVIOUSLY DESIGNATED DEPENDENT RELATIVE, THE SECRETARY OF THE ARMY SHALL CAUSE PAYMENT OF THE SIX MONTHS' DEATH GRATUITY TO BE MADE TO ANY "GRANDCHILD, PARENT, BROTHER OR SISTER, OR GRANDPARENT SHOWN TO HAVE BEEN DEPENDENT UPON SUCH OFFICER OR ENLISTED MAN PRIOR TO HIS DEATH.' CLEARLY, THEREFOR, IF THE CLAIM OF MRS. ZDRINSCAK WERE NOT BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS, THERE WOULD BE REQUIRED AS A PREREQUISITE TO PAYMENT A DETERMINATION BY THE SECRETARY OF THE ARMY OR HIS DESIGNATED REPRESENTATIVE THAT MRS. ZDRINSCAK WAS IN FACT DEPENDENT UPON THE DECEASED SERVICE MEMBER. SEE, IN THIS CONNECTION, 34 COMP. GEN. 105.

PURSUANT TO YOUR REQUEST, YOUR COPY OF THE LETTER OF OCTOBER 28, 1954, FROM THE FINANCE CENTER IS RETURNED. ALL DOCUMENTS AND PAPERS, IN SUPPORT OF THE CLAIM THAT WERE TRANSMITTED HERE BY THE FINANCE CENTER, HAVE BECOME PART OF THE PERMANENT RECORD OF THIS OFFICE AND FOR THAT REASON THAT PART OF THE FILE WHICH CONSTITUTES PAPERS FORWARDED BY YOU MAY NOT BE RETURNED.