B-148471, APR. 12, 1962

B-148471, APR. 12, 1962

TO MRS. MYRTLE OLSEN EMBICH:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 11, 1962, IN EFFECT REQUESTING THAT WE GIVE FURTHER CONSIDERATION TO YOUR CLAIM FOR THE PAY AND ALLOWANCES DUE FROM THE UNITED STATES IN THE CASE OF COLONEL JOHN R. EMBICH, UNITED STATES ARMY, RETIRED, WHO DIED ON OCTOBER 6, 1961, AT THE UNITED STATES PUBLIC HEALTH SERVICE HOSPITAL IN BALTIMORE, MARYLAND. YOU BASE YOUR CLAIM PRINCIPALLY ON THE GROUND THAT YOU ARE THE LEGAL WIDOW OF COLONEL EMBICH. AS AN ADDITIONAL BASIS FOR YOUR CLAIM, HOWEVER, YOU SAY THAT HE OWED YOU THE AMOUNT OF $700 AND THAT YOU ARE ONLY TRYING TO RECOVER WHAT YOU ARE ENTITLED TO.

THE APPLICABLE STATUTORY PROVISIONS ARE CONTAINED IN SECTION 2771, TITLE 10, U.S. CODE, WHICH READS, IN PERTINENT PART, AS FOLLOWS:

"/A) IN THE SETTLEMENT OF THE ACCOUNTS OF A DECEASED MEMBER OF THE ARMED FORCES WHO DIES AFTER DECEMBER 31, 1955, AN AMOUNT DUE FROM THE ARMED FORCE OF WHICH HE WAS A MEMBER SHALL BE PAID TO THE PERSON HIGHEST ON THE FOLLOWING LIST LIVING ON THE DATE OF DEATH:

"/1) BENEFICIARY DESIGNATED BY HIM IN WRITING TO RECEIVE SUCH AN AMOUNT, IF THE DESIGNATION IS RECEIVED, BEFORE THE DECEASED MEMBER'S DEATH, AT THE PLACE NAMED IN REGULATIONS TO BE PRESCRIBED BY THE SECRETARY CONCERNED.

"/2) SURVIVING SPOUSE.

"/3) CHILDREN AND THEIR DESCENDANTS, BY REPRESENTATION.

"/4)FATHER AND MOTHER IN EQUAL PARTS OR, IF EITHER IS DEAD, THE SURVIVOR.

"/5) LEGAL REPRESENTATIVE.

"/6) PERSON ENTITLED UNDER THE LAW OF THE DOMICILE OF THE DECEASED MEMBER.'

THE CLAIMS DIVISION OF OUR OFFICE ADVISED YOU IN LETTER DATED FEBRUARY 8, 1962, THAT THE CERTIFICATE OF DEATH ON FILE IN THIS CASE SHOWS THAT COLONEL EMBICH WAS "DIVORCED" AND THAT, SINCE IT IS SHOWN THAT THE INFORMATION ON THAT CERTIFICATE WAS FURNISHED BY THE UNITED STATES PUBLIC HEALTH SERVICE HOSPITAL AT BALTIMORE, IT IS ASSUMED THAT SUCH INFORMATION WAS TAKEN FROM THE INFORMATION FURNISHED THAT HOSPITAL BY COLONEL EMBICH WHEN HE WAS ADMITTED THERE. IN LETTER DATED FEBRUARY 27, 1962, THE CLAIMS DIVISION ADVISED YOU THAT, IN THE CIRCUMSTANCES, WE ARE WITHOUT AUTHORITY TO PAY TO YOU THE AMOUNT DUE FROM THE UNITED STATES IN THIS CASE IN THE ABSENCE OF A DETERMINATION BY A COURT OF COMPETENT JURISDICTION THAT COLONEL EMBICH NEVER OBTAINED A DIVORCE FROM YOU.

IN THE REPORT RECEIVED BY US FROM THE DEPARTMENT OF THE ARMY WHEN THE CASE WAS TRANSMITTED TO US FOR APPROPRIATE ACTION IT WAS SHOWN THAT COLONEL EMBICH WAIVED NONE OF HIS RETIRED PAY; THAT HE "DID NOT ELECT SURVIVOR'S ANNUITY IN EFFECT; " AND THAT THERE IS NOT A DESIGNATED BENEFICIARY OF RECORD IN THE CASE. IT WAS POINTED OUT IN SUCH REPORT THAT THE CERTIFICATE OF DEATH SHOWS THAT COLONEL EMBICH WAS DIVORCED AND IT WAS STATED IN THE REPORT THAT YOU HAD RESIDED IN ILLINOIS SINCE 1956 AND THAT HE RESIDED AT THE JAMES WILSON HOTEL, CARLISLE, PENNSYLVANIA, PRIOR TO HIS DEATH. IN THIS CONNECTION THERE HAS BEEN NOTED THE STATEMENT IN YOUR CLAIM FOR THE PAY AND ALLOWANCES DUE FROM THE UNITED STATES IN THIS CASE THAT AT THE TIME OF HIS DEATH COLONEL EMBICH WAS A LEGAL RESIDENT OF BALTIMORE, MARYLAND, AS WELL AS THE STATEMENT ON THE DEATH CERTIFICATE THAT BEFORE HIS ADMISSION TO THE HOSPITAL HIS USUAL RESIDENCE WAS THE BALTIMORE COUNTRY CLUB, BALTIMORE, MARYLAND. OTHER EVIDENCE OF RECORD IN THE FILE INDICATES THAT HIS HOME WAS AT CARLISLE, PENNSYLVANIA, WHEN HE ENTERED THE ARMY IN 1917; THAT HE MAINTAINED A HOME AT FAYETTEVILLE, NORTH CAROLINA, FROM AUGUST 1940 UNTIL JUNE 30, 1949, INCLUDING 2 YEARS AND 7 MONTHS AFTER HIS RETIREMENT FROM THE ARMY; THAT HE RETURNED TO CARLISLE, PENNSYLVANIA, ON OR ABOUT JUNE 30, 1949; AND THAT HE WAS LIVING THERE AS LATE AS MARCH 9, 1953. IN YOUR LETTER DATED MARCH 11, 1962, YOU REFERRED TO THE FACT THAT HE HELD A POSITION AT DICKINSON COLLEGE, WHICH IS LOCATED AT CARLISLE.

YOU SAY THAT YOU ASSUME THAT COLONEL EMBICH GAVE THE INFORMATION THAT HE WAS DIVORCED, BUT THAT THERE IS NO TRUTH IN SUCH STATEMENT AND THAT THE DIVORCE PROCEEDINGS WERE NEVER INITIATED BY YOU OR BY HIM. YOU ALSO SAY THAT HE REALLY DESERTED YOU AND THAT IN 1955 YOU HAD A PETITION FILED BY A BALTIMORE LAWYER IN CIRCUIT COURT TO SECURE ADEQUATE FINANCIAL SUPPORT, BUT THAT THE MATTER WAS NEVER CARRIED OUT AND YOU NEVER APPEARED IN COURT. IN ADDITION TO A MARRIAGE CERTIFICATE EVIDENCING THE MARRIAGE OF JOHN R. EMBICH AND MYRTLE OLSEN ON SEPTEMBER 9, 1920, AT CHINOOK, PACIFIC COUNTY, WASHINGTON, YOU HAVE FURNISHED TWO CERTIFICATES IN SUPPORT OF YOUR CLAIM, BOTH OF WHICH ARE DATED OCTOBER 10, 1961. ONE OF SUCH CERTIFICATES IS THAT OF THE CLERK OF THE CIRCUIT COURT OF BALTIMORE CITY, WHO CERTIFIES THAT THE RECORDS OF THAT COURT HAVE BEEN EXAMINED FROM JANUARY 1, 1933, TO OCTOBER 10, 1961, AND THAT SUCH EXAMINATION DISCLOSES NO APPLICATION FOR DIVORCE ON BEHALF OF EITHER JOHN R. EMBICH OR MYRTLE O. EMBICH. THE OTHER CERTIFICATE IS THAT OF THE CLERK OF THE CIRCUIT COURT NO. 2 OF BALTIMORE CITY, WHO CERTIFIES THAT THE RECORDS OF THAT COURT HAVE BEEN EXAMINED FOR THE YEARS 1930 TO 1960 AND THAT SUCH EXAMINATION DISCLOSES NO APPLICATION FOR DIVORCE ON BEHALF OF EITHER JOHN R. EMBICH OR MYRTLE O. EMBICH. OTHERWISE, YOUR STATEMENT THAT A DIVORCE WAS NEVER OBTAINED BY COLONEL EMBICH IS UNSUPPORTED BY ANY EVIDENCE SHOWING THAT ALL PLACES OF RESIDENCE OF COLONEL EMBICH SINCE YOUR SEPARATION ARE KNOWN TO YOU AND THAT THE RECORDS OF THE COURTS HAVING JURISDICTION OVER SUCH PLACES OF RESIDENCE DO NOT SHOW THE GRANTING OF THE DIVORCE. IT APPEARS THAT COLONEL EMBICH LIVED IN PENNSYLVANIA DURING PART OF THE SEPARATION AND THERE IS NO SHOWING THAT HE DID NOT OBTAIN A DIVORCE THERE. ACCORDINGLY, YOU ARE ADVISED THAT WE CONSIDER THAT THE DOCUMENTS FURNISHED BY YOU ARE NOT SUFFICIENT TO ESTABLISH THAT COLONEL EMBICH DID NOT OBTAIN A DIVORCE AND THAT YOU ARE HIS LEGAL WIDOW. IN CASES SUCH AS THIS, WHERE THERE IS SUBSTANTIAL DOUBT THAT A PERSON CLAIMING AS WIDOW IS PROPERLY ENTITLED TO PAYMENT, IT IS THE ESTABLISHED RULE THAT NO PAYMENT WILL BE MADE UNTIL SUCH DOUBT IS REMOVED.

YOUR MARRIAGE CERTIFICATE AND THE TWO CERTIFICATES REFERRED TO ABOVE ARE RETURNED AS REQUESTED BY YOU.