B-147478, FEB. 6, 1962

B-147478, FEB. 6, 1962

TO MR. CHARLES R. SHEA:

REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 26, NOVEMBER 22 AND OCTOBER 16, 1961, AND ENCLOSURES, IN EFFECT, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR THE SIX MONTHS' DEATH GRATUITY, MUSTERING-OUT PAY, AND ARREARS OF PAY AND ALLOWANCES BELIEVED TO BE DUE YOU INCIDENT TO THE DEATH OF ALLAN MOORE GEISSLER ON SEPTEMBER 5, 1942, WHILE SERVING AS FIRST LIEUTENANT, AIR CORPS, UNITED STATES ARMY. THERE IS ALSO BEFORE US A COPY OF YOUR LETTER OF DECEMBER 5, 1961, ADDRESSED TO THE PRESIDENT OF THE UNITED STATES, AND YOUR LETTER OF SEPTEMBER 27, 1961, ADDRESSED TO THE COMMANDING GENERAL, FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS, INDIANA.

OUR RECORDS SHOW THAT IT WAS NOT UNTIL JUNE 24, 1955, THAT THIS OFFICE FIRST WAS PLACED ON NOTICE THAT YOU HAD FILED A CLAIM WITH AN AGENCY OF THE GOVERNMENT FOR ANY MONEYS DUE INCIDENT TO THE DEATH OF YOUR FATHER. ON THAT DATE THERE WAS RECEIVED IN OUR CLAIMS DIVISION YOUR LETTER OF MAY 26, 1955, ADDRESSED TO THE DEPARTMENT OF THE ARMY, WHEREIN YOU PRESENTED CLAIM FOR THE SIX MONTHS' DEATH GRATUITY. SINCE ON JUNE 24, 1955, A PERIOD OF MORE THAN 10 YEARS HAD ELAPSED FROM SEPTEMBER 5, 1942, DATE OF YOUR FATHER'S DEATH, AND SINCE THERE WAS NOTHING OF RECORD TO SHOW THAT YOU HAD FILED A PRIOR CLAIM IN THIS OFFICE, OUR CLAIMS DIVISION RETURNED YOUR LETTER OF MAY 26, 1955, WITH A COPY OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, WHICH, AS CODIFIED IN 31 U.S.C. 71A, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/1) EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND 236 OF THIS TITLE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED:* *

"/2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT, WITH A COPY OF THIS SECTION, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION.'

BY LETTER OF SEPTEMBER 14, 1961, YOU AGAIN APPLIED TO THIS OFFICE FOR PAYMENT OF MONEYS WHICH YOU BELIEVED TO BE DUE YOU. TO SUPPORT YOUR VIEW THAT YOU ARE ENTITLED TO SUCH MONEYS AS THE ,ONLY LEGAL NEXT OF KIN TO THE ABOVE VETERAN" YOU ENCLOSED WITH THAT LETTER A COPY OF A LETTER OF SEPTEMBER 11, 1961, FROM LIEUTENANT COLONEL PAUL J. KOVAR, JAGC, CHIEF, GENERAL LAW BRANCH, MILITARY AFFAIRS DIVISION,DEPARTMENT OF THE ARMY, WASHINGTON, D.C., IN WHICH IT WAS INDICATED, AMONG OTHER THINGS, THAT THE DEATH GRATUITY IS PAYABLE TO AND ON BEHALF OF ILLEGITIMATE CHILDREN UNDER CERTAIN SITUATIONS THEREIN MENTIONED. OUR CLAIMS DIVISION BY LETTER OF OCTOBER 11, 1961, RETURNED YOUR LETTER OF SEPTEMBER 14, 1961, AND ENCLOSURE, AS REQUIRED BY THE ABOVE-QUOTED ACT OF OCTOBER 9, 1940, AND ADVISED YOU THAT NO FURTHER ACTION COULD BE TAKEN ON YOUR CLAIM SINCE IT WAS BARRED BY THE PROVISIONS OF THAT ACT. YOU WERE FURTHER ADVISED IN THAT LETTER THAT THE FILING OF A CLAIM WITH ANY OTHER AGENCY OF THE GOVERNMENT DID NOT SATISFY THE REQUIREMENTS OF THE ACT.

YOU SAY IN YOUR LETTER OF OCTOBER 16, 1961, THAT IN 1949 YOU APPLIED TO THE VETERANS ADMINISTRATION, GENERAL SERVICES ADMINISTRATION, AND FINANCE OFFICER (DEPARTMENT OF THE ARMY) FOR MONEYS DUE YOU AND THAT WHILE YOU DO NOT UNDERSTAND THE FUNCTION AND AUTHORITY OF THIS OFFICE YOU HAVE CONCLUDED THAT YOUR CORRESPONDENCE, WHICH WAS ADDRESSED TO OTHER GOVERNMENT AGENCIES PRIOR TO THE STATUTORY LIMITATION PERIOD PRESCRIBED IN THE ACT, WAS FORWARDED HERE. YOU ALSO MAINTAIN THAT SINCE YOU ARE THE "LEGAL NEXT OF KIN" OF THE DECEDENT, THE MONEYS, EXCEPT INSURANCE, RECEIVED BY OTHER INDIVIDUALS ON THEIR CLAIMS WERE FRAUDULENTLY PROCURED AND, THEREFORE, THEIR CLAIMS SHOULD BE CONSIDERED AS VOID AND THE MONEYS RECOVERED. IN YOUR LETTER OF NOVEMBER 22, 1961, A COPY OF WHICH WAS SENT BY YOU TO HONORABLE LAURENCE CURTIS, HOUSE OF REPRESENTATIVES, YOU STATE THAT YOU HAVE BEEN INFORMED THAT THE BROTHER RATHER THAN THE FATHER OF THE DECEDENT APPLIED FOR AND RECEIVED THE MONEYS DUE IN THIS CASE. ACCORDINGLY, YOU DESIRE THAT WE INVESTIGATE THE ENTIRE MATTER AND ADVISE YOU OF OUR FINDINGS.

THE BASIC AUTHORITY OF THE GENERAL ACCOUNTING OFFICE TO SETTLE CLAIMS AGAINST THE UNITED STATES IS CONTAINED IN SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, 31 U.S.C. 71, WHICH PROVIDES:

"ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED STATES OR AGAINST IT, AND ALL ACCOUNTS WHATEVER IN WHICH THE GOVERNMENT OF THE UNITED STATES IS CONCERNED, EITHER AS DEBTOR OR CREDITOR, SHALL BE SETTLED AND ADJUSTED IN THE GENERAL ACCOUNTING OFFICE.'

UNDER THAT ACT AND THE ACT OF OCTOBER 9, 1940, THIS OFFICE HAS JURISDICTION TO TAKE APPROPRIATE ACTION ON ALL THE ITEMS INVOLVED IN YOUR CLAIM.

THE RIGHT TO RECEIVE THE SIX MONTHS' DEATH GRATUITY ACCRUES ON THE DATE OF DEATH OF A SERVICE MEMBER. CLAIMS FOR ARREARS OF PAY AND ALLOWANCES DUE THE ESTATE OF THE DECEDENT ACCRUE NOT LATER THAN THE DATE OF HIS DEATH. WHILE IT APPEARS THAT YOU FILED CLAIMS WITH OTHER AGENCIES OF THE GOVERNMENT PRIOR TO THE EXPIRATION OF THE TEN-YEAR PERIOD OF LIMITATION PRESCRIBED IN THE 1940 ACT, NO SUCH CLAIM WAS FORWARDED HERE FOR APPROPRIATE ACTION. YOUR LETTER OF MAY 26, 1955, WAS RECEIVED HERE MORE THAN 12 YEARS AFTER THE DATE OF YOUR FATHER'S DEATH. THEREFORE, UNDER THE 1940 ACT, OUR CLAIMS DIVISION WAS PRECLUDED BY ITS CLEAR AND UNAMBIGUOUS PROVISIONS FROM CONSIDERING YOUR CLAIM UPON ITS MERITS, BUT WAS REQUIRED TO RETURN IT TO YOU ALONG WITH A COPY OF THE ACT. THE FACT THAT YOU HAD FILED CLAIMS WITH OTHER AGENCIES OF THE GOVERNMENT IS WITHOUT SIGNIFICANCE IN THIS MATTER SINCE SUCH ACTION WAS NOT IN COMPLIANCE WITH THE PROVISIONS OF THE 1940 LAW--- PROVISIONS WHICH REQUIRE THAT CLAIMS MUST BE FILED IN THE GENERAL ACCOUNTING OFFICE WITHIN TEN YEARS AFTER DATE OF ACCRUAL IN ORDER TO BE GIVEN CONSIDERATION. SEE 32 COMP. GEN. 267.

AS AN EXCEPTION TO THE ACT OF OCTOBER 9, 1940, SECTION 205 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, AS AMENDED, 50 U.S.C. APP. 525, PROVIDES THAT THE PERIOD OF MILITARY SERVICE SHALL NOT BE INCLUDED IN COMPUTING ANY PERIOD LIMITED BY LAW FOR THE BRINGING OF ANY ACTION OR PROCEEDING BY OR AGAINST ANY PERSON IN THE MILITARY SERVICE, WHETHER THE CAUSE OF ACTION OR RIGHT SHALL HAVE ACCRUED PRIOR TO OR DURING THE PERIOD OF SUCH SERVICE. SUCH PROVISION OF LAW HAD THE EFFECT OF EXTENDING THE TEN-YEAR PERIOD OF LIMITATION PRESCRIBED IN THE ACT OF OCTOBER 9, 1940, BY THE PERIOD OF YOUR SERVICE IN THE UNITED STATES NAVY, APRIL 2, 1946, TO JANUARY 23, 1948. ON THIS BASIS, THE LAST DAY FOR THE FILING OF YOUR CLAIM IN THIS OFFICE IN ORDER THAT IT COULD BE CONSIDERED ON ITS MERITS WAS JUNE 27, 1954, 1 YEAR, 9 MONTHS, AND 22 DAYS SUBSEQUENT TO SEPTEMBER 5, 1952, DATE OF EXPIRATION OF TEN YEARS AFTER THE DEATH OF YOUR FATHER. SINCE YOUR CLAIM WAS NOT RECEIVED HERE UNTIL JUNE 24, 1955, OR ALMOST ONE YEAR AFTER THE EXPIRATION OF THE TEN-YEAR LIMITATION AS EXTENDED BY YOUR NAVAL SERVICE, IT IS CLEAR THAT SUCH CLAIM IS BARRED FROM CONSIDERATION BY THE ACT OF OCTOBER 9, 1940. THE LIMITATION PRESCRIBED BY THAT ACT UPON CONSIDERATION OF CLAIMS BY THIS OFFICE IS NOT A MERE STATUTE OF LIMITATIONS, BUT IS A CONDITION PRECEDENT TO THE RIGHT TO HAVE CLAIMS CONSIDERED BY THIS OFFICE. SINCE THE 1940 ACT DOES NOT CONFER JURISDICTION UPON THIS OFFICE TO WAIVE ITS PROVISIONS IN ANY PARTICULAR CASE, WE ARE WITHOUT AUTHORITY TO MAKE ANY DISPOSITION OF YOUR CLAIM OTHER THAN ADVISE YOU THAT NO FURTHER ACTION CAN BE TAKEN THEREON BECAUSE IT IS BARRED UNDER THE PLAIN PROVISIONS OF THAT ACT.

IT APPEARS THAT EVEN IF YOUR CLAIM HAD BEEN TIMELY FILED NO AMOUNT COULD BE PAID TO YOU. CONCERNING THE ARREARS OF PAY AND ALLOWANCES DUE THE ESTATE OF THE DECEDENT, THERE WAS FOR APPLICATION THE ACT OF JUNE 30, 1906, 10 U.S.C. 868 (1940 ED.), WHICH, IN PERTINENT PART, PROVIDED AS FOLLOWS:

"HEREAFTER, IN THE SETTLEMENT OF THE ACCOUNTS OF DECEASED OFFICERS OR ENLISTED MEN OF THE ARMY, WHERE THE AMOUNT DUE THE DECEDENT'S ESTATE IS LESS THAN FIVE HUNDRED DOLLARS AND 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 OR LEGAL HEIRS IN THE FOLLOWING ORDER OF PRECEDENCE: FIRST, TO THE WIDOW; SECOND, IF DECEDENT LEFT NO WIDOW, OR THE WIDOW BE DEAD AT TIME SETTLEMENT, THEN TO THE CHILDREN OR THEIR ISSUE, PER STIRPES; * * *.'

SUCH PROVISIONS OF LAW SPECIFICALLY AUTHORIZED THE ALLOWANCE OF THE AMOUNT FOUND DUE TO A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, THAT IS, THE ADMINISTRATOR OR EXECUTOR, AND PAYMENT OF AMOUNTS DIRECTLY TO HEIRS SPECIFIED THEREIN WAS PERMITTED ONLY WHERE "NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE.' IN THIS CONNECTION, OUR RECORDS SHOW THAT ON MARCH 15, 1943, ARTHUR D. GEISSLER, FATHER OF THE DECEDENT, PRESENTED AN APPLICATION FOR THE ARREARS OF PAY AND ALLOWANCES DIRECTLY TO THIS OFFICE, SUCH CLAIM BEING ACCOMPANIED BY A CERTIFIED COPY OF LETTERS OF ADMINISTRATION SHOWING HIS APPOINTMENT BY THE SURROGATE OF THE COUNTY OF NEW YORK, NEW YORK, ON SEPTEMBER 17, 1942, AS ADMINISTRATOR OF THE ESTATE OF ALLAN M. GEISSLER, DECEASED. PURSUANT TO THE PROVISIONS OF THE 1906 ACT, OUR CLAIMS DIVISION EFFECTED TWO SEPARATE SETTLEMENTS TO ARTHUR D. GEISSLER, IN HIS CAPACITY AS ADMINISTRATOR, FOR THE ARREARS OF PAY ($12.53 ON JULY 29, 1943, AND $18.75 ON JULY 8, 1944). IF, AT THE TIME OF THE DECEDENT'S DEATH, ARMY RECORDS HAD SHOWN YOU TO BE HIS SON OR IF ARTHUR D. GEISSLER HAD LISTED YOUR NAME AND RELATIONSHIP IN HIS APPLICATION FOR THE ARREARS OF PAY AND ALLOWANCES, PAYMENT COULD NOT HAVE BEEN LEGALLY MADE TO YOU, BUT WAS REQUIRED BY LAW TO BE MADE TO ARTHUR D. GEISSLER AS THE LEGAL REPRESENTATIVE OF THE ESTATE. IN VIEW OF THAT CLAIM, THE RIGHTS OF THE SURVIVING HEIRS AND NEXT OF KIN WERE NOT FOR CONSIDERATION BY THIS OFFICE.

PAYMENT OF THE SIX MONTHS' DEATH GRATUITY WAS REQUIRED TO BE MADE BY THE WAR DEPARTMENT (NOW THE DEPARTMENT OF THE ARMY) PURSUANT TO THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 903 (1940 ED.), THE PERTINENT PART OF WHICH PROVIDES AS FOLLOWS:

"HEREAFTER, 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 CHIEF OF FINANCE OF THE ARMY 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. THE SECRETARY OF WAR SHALL ESTABLISH REGULATIONS REQUIRING EACH OFFICER AND ENLISTED MAN HAVING NO WIFE OR CHILD TO DESIGNATE THE PROPER DEPENDENT RELATIVE TO WHOM THIS AMOUNT SHALL BE PAID IN THE CASE OF HIS DEATH * * *.'

WHILE YOU INDICATED IN YOUR LETTER OF SEPTEMBER 14, 1961, THAT THE DECEDENT NAMED MRS. PATRICIA BENNER (BERNER) AS "HIS NEXT OF KIN" IN CONNECTION WITH THE SIX MONTHS' DEATH GRATUITY, ARMY RECORDS SHOW THAT SUCH GRATUITY PAY, IN THE AMOUNT OF $1,000, WAS PAID TO ARTHUR D. GEISSLER, FATHER OF THE DECEDENT, IN MAY 1944. PRESUMABLY, THE DECEDENT DESIGNATED HIS FATHER AS THE BENEFICIARY TO RECEIVE THE GRATUITY PAY AND THE WAR DEPARTMENT IN COMPLIANCE WITH THE 1919 ACT, AS AMENDED, EFFECTED PAYMENT TO HIM. IN SUCH CIRCUMSTANCES, OUR DECISION OF AUGUST 22, 1957, 37 COMP. GEN. 131, TO WHICH YOU REFER, WOULD BE FOR APPLICATION, THE PAYMENT HAVING BEEN INDUCED BY THE DESIGNATION MADE BY YOUR FATHER, AND THE GOVERNMENT WOULD NOT BE LIABLE TO MAKE A SECOND PAYMENT TO YOU EVEN IF THE 1940 ACT DID NOT BAR CONSIDERATION OF YOUR CLAIM.

SECTION 4 OF THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT. 9, WHICH WAS MADE EFFECTIVE FROM DECEMBER 7, 1941, PROVIDED IN PERTINENT PART AS FOLLOWS:

"IF ANY MEMBER OF THE ARMED FORCES, AFTER HIS DISCHARGE OR RELIEF FROM ACTIVE SERVICE, SHALL DIE BEFORE RECEIVING ANY PORTION OF OR THE FULL AMOUNT OF HIS MUSTERING-OUT PAYMENT, THE BALANCE OF THE AMOUNT DUE HIM SHALL BE PAYABLE, ON APPROPRIATE APPLICATION THEREFOR, TO HIS SURVIVING SPOUSE, IF ANY; AND IF HE SHALL LEAVE NO SURVIVING SPOUSE, THEN IN EQUAL SHARES TO HIS CHILD OR CHILDREN, IF ANY; * * *.'

THE PAYMENT WHICH WAS AUTHORIZED UNDER THE 1944 LAW WAS PERSONAL TO THE MEMBER CONCERNED AND ACCRUED UPON HIS DISCHARGE OR RELIEF FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS. NO AMOUNT WAS PAYABLE IF THE DEATH OF A MEMBER OCCURRED WHILE HE WAS IN THE ACTIVE MILITARY SERVICE. NO RIGHT ACCRUED TO THE LISTED HEIRS UNLESS HE DIED AFTER HIS DISCHARGE OR RELEASE FROM ACTIVE DUTY AND BEFORE FULL PAYMENT WAS MADE TO HIM. SINCE LIEUTENANT GEISSLER WAS ON ACTIVE DUTY AT THE TIME OF HIS DEATH, NO RIGHT TO A MUSTERING-OUT PAYMENT ACCRUED IN FAVOR OF ANY OF HIS HEIRS OR NEXT OF KIN. ACCORDINGLY, THE ACTION OF OUR CLAIMS DIVISION IN RETURNING YOUR CLAIM WITH A COPY OF THE ACT OF OCTOBER 9, 1940, WAS PROPER AND UPON REVIEW IT IS SUSTAINED.

WE ARE RETURNING THE LETTER OF JUNE 16, 1955, ADDRESSED TO YOU BY THE VETERANS ADMINISTRATION DISTRICT OFFICE, PHILADELPHIA 1, PENNSYLVANIA, SINCE ITS PURPOSE HAS BEEN SERVED.

A COPY OF THIS LETTER IS BEING FURNISHED TO HONORABLE LAURENCE CURTIS.