B-148485, JANUARY 8, 1964, 43 COMP. GEN. 503

B-148485: Jan 8, 1964

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WAS LEGALLY DEAD AND WITHOUT INDICATING DATE OF DEATH THAT HE HAD REMAINED ALIVE FOR 7 YEARS. WAS ENTITLED TO THE UNPAID RETIRED PAY FOR THE 7-YEAR PERIOD WILL NOT BE FOLLOWED AS A PRECEDENT. THE PRESUMPTION IS THE MEMBER REMAINED ALIVE FOR 7 YEARS. THAT EITHER PARTY IS FREE TO PROVE AN EARLIER DATE BEING BASED ON THE FACTS OF THE CASE. 1964: REFERENCE IS MADE TO LETTER OF NOVEMBER 15. REQUESTING A DECISION AS TO WHETHER THIS OFFICE WILL FOLLOW THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF HORTENTIA R. DISCUSSION PERTAINING TO THIS MATTER IS CONTAINED IN COMMITTEE ACTION NO. 330 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE. WAS NOT HEARD OF OR SEEN THEREAFTER. WHEN HE DISAPPEARED HE WAS ENTITLED TO NAVY RETIRED PAY AT THE RATE OF $181.55 PER MONTH.

B-148485, JANUARY 8, 1964, 43 COMP. GEN. 503

DECEDENTS' ESTATES - PAY, ETC., DUE MILITARY PERSONNEL - PRESUMPTION OF DEATH THE HOLDING IN HORTENTIA R. ACOSTA V. UNITED STATES, CT.CL. NO. 82 62, DECIDED JULY 12, 1963, THAT THE MISSING HUSBAND OF THE PLAINTIFF, A RETIRED MEMBER OF THE UNIFORMED SERVICES, WAS LEGALLY DEAD AND WITHOUT INDICATING DATE OF DEATH THAT HE HAD REMAINED ALIVE FOR 7 YEARS, AND THAT PLAINTIFF, DESIGNATED ADMINISTRATRIX, WAS ENTITLED TO THE UNPAID RETIRED PAY FOR THE 7-YEAR PERIOD WILL NOT BE FOLLOWED AS A PRECEDENT, AND THE DETERMINATION THAT ABSENT AFFIRMATIVE EVIDENCE AS TO TIME OF DEATH, THE PRESUMPTION IS THE MEMBER REMAINED ALIVE FOR 7 YEARS, AND THAT EITHER PARTY IS FREE TO PROVE AN EARLIER DATE BEING BASED ON THE FACTS OF THE CASE, WITH INDICATION THAT EACH CASE MUST BE DECIDED ON THE PARTICULAR FACTS INVOLVED, THE ADOPTION OF A GENERAL RULE, IN THE SETTLEMENT OF FUTURE CLAIMS FOR RETIRED PAY INVOLVING MISSING RETIRED MILITARY MEMBERS JUDICIALLY DECLARED DEAD, THAT RETIRED PAY SHOULD BE PAID FOR THE PERIOD UNTIL THE EXPIRATION OF 7 YEARS AFTER THE MEMBER'S ABSENCE BEGAN WOULD NOT BE WARRANTED, AND SUCH CLAIMS SHOULD BE REFERRED TO THE GENERAL ACCOUNTING OFFICE FOR DIRECT SETTLEMENT.

TO THE SECRETARY OF DEFENSE, JANUARY 8, 1964:

REFERENCE IS MADE TO LETTER OF NOVEMBER 15, 1963, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION AS TO WHETHER THIS OFFICE WILL FOLLOW THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF HORTENTIA R. ACOSTA V. UNITED STATES, CT.CL. NO. 82-62, DECIDED JULY 12, 1963, AS A PRECEDENT FOR THE PAYMENT OF MILITARY RETIRED PAY. DISCUSSION PERTAINING TO THIS MATTER IS CONTAINED IN COMMITTEE ACTION NO. 330 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

LUIS F. ACOSTA, THE PLAINTIFF'S HUSBAND, DISAPPEARED FROM HIS HOME IN SAN DIEGO, CALIFORNIA, ON FEBRUARY 10, 1950, AND WAS NOT HEARD OF OR SEEN THEREAFTER. WHEN HE DISAPPEARED HE WAS ENTITLED TO NAVY RETIRED PAY AT THE RATE OF $181.55 PER MONTH. ON FEBRUARY 7, 1958, THE PLAINTIFF OBTAINED A DECREE BY A CALIFORNIA STATE COURT TO THE EFFECT THAT MR. ACOSTA WAS LEGALLY DEAD, BUT THE DECREE DID NOT EXPRESSLY INDICATE THE DATE OF DEATH OF THE DECEDENT. THE PLAINTIFF WAS DESIGNATED ADMINISTRATRIX OF THE DECEDENT'S ESTATE.

IN ITS OPINION OF JULY 12, 1963, THE COURT OF CLAIMS HELD THAT, SINCE THE AFFIRMATIVE EVIDENCE AS TO THE TIME OF MR. ACOSTA'S DEATH "IS SO INADEQUATE, THE PLAINTIFF CAN PROPERLY STAND ON THE PRESUMPTION THAT HE REMAINED ALIVE FOR SEVEN YEARS, I.E., UNTIL FEBRUARY 11, 1957.' THE COURT'S DECISION WAS BASED ON THE CONCLUSION THAT IN SUCH CLAIMS AGAINST THE UNITED STATES THE NORMAL PRESUMPTION SHOULD BE THAT DEATH OCCURRED AT THE END OF A 7-YEAR PERIOD OF CONTINUED AND UNEXPLAINED ABSENCE. THE COURT POINTED OUT, HOWEVER, THAT EITHER PARTY IS FREE TO PROVE AN EARLIER DATE. ALSO, THE COURT HELD THAT THE CLAIM OF THE ADMINISTRATRIX FIRST ACCRUED IN FEBRUARY 1957 "WHEN HER HUSBAND DIED (AS WE NOW KNOW) AND WHEN SHE COULD FIRST SUE AS HIS REPRESENTATIVE--- AND THAT SHE IS ENTITLED TO RECOVER ALL OF HIS UNPAID RETIREMENT (PAY) FROM FEBRUARY 1950 TO FEBRUARY 1957.' BY LETTER DATED OCTOBER 24, 1963, THE DEPARTMENT OF JUSTICE ADVISED THIS OFFICE THAT IT "NOW CONSIDERS THIS CASE CLOSED.'

IN OUR DECISION OF NOVEMBER 23, 1934, A-58284, 14 COMP. GEN. 411, IT WAS CONCLUDED THAT APPROPRIATED FUNDS MAY NOT BE CHARGED WITH THE PAY OF A RETIRED OFFICER OF THE NAVY WHEN THE ACTUAL DATE OF DEATH IS NOT ESTABLISHED BY COMPETENT EVIDENCE FOR ANY PERIOD SUBSEQUENT TO THE LAST DAY ON WHICH HE IS KNOWN TO HAVE BEEN ALIVE. ALSO SEE 9 COMP. GEN. 111 (1929) AND 16 COMP. GEN. 384 (1936).

A CASE OF A JUDICIAL DECREE OF PRESUMED DEATH IS TO BE DISTINGUISHED FROM ONE CONCERNING AN ACTUAL DEATH AS EVIDENCED BY THE FACTS REFLECTED IN OFFICIAL PUBLIC RECORDS. EVEN IN CASES WHERE THE JUDICIAL DECREE DECLARES THAT DEATH IS PRESUMED TO HAVE OCCURRED ON A DESIGNATED DATE, SUCH A DEGREE DOES NOT ESTABLISH THAT THE PERSON CONCERNED LIVED FOR ANY FIXED PERIOD OR THAT HIS LIFE DID NOT END IMMEDIATELY AFTER HIS UNEXPLAINED ABSENCE. IN DAVIE V. BRIGGS, 97 U.S. 628 (1878), THE COURT STATED THAT IT COULD NOT ACCEPT AS CONTROLLING THE LEGAL PRESUMPTION THAT THE DEATH OF A PERSON OCCURRED ON THE EXPIRATION OF 7 YEARS FROM THE TIME HE WAS LAST HEARD FROM. EVEN A STATUTORY PRESUMPTION OF DEATH AFTER 7 YEARS' ABSENCE "DOES NOT PURPORT TO CREATE A CONCLUSIVE PRESUMPTION THAT THE INSURED DIED AT THE END OF THE SEVEN YEAR PERIOD," NOR DOES IT PRECLUDE THE INTRODUCTION OF EVIDENCE FROM WHICH IT MIGHT BE CONCLUDED THAT THE PRESUMED DEATH OCCURRED AT AN EARLIER DATE. PEAK V. UNITED STATES, 353 U.S. 43, 45-46. THE OPINION OF THE COURT OF CLAIMS IN THE ACOSTA CASE IS BASED ON THE FACTS APPEARING IN THAT CASE AND, WHILE "PAY CLAIMS AGAINST THE FEDERAL GOVERNMENT" ARE REFERRED TO, IT IS CLEAR FROM THE OPINION THAT IN THE COURT'S VIEW EACH CASE MUST BE DECIDED ON THE PARTICULAR FACTS INVOLVED. WE DO NOT THINK THAT THE ADOPTION OF A GENERAL RULE, IN THE SETTLEMENT OF FUTURE CLAIMS FOR RETIRED PAY INVOLVING MISSING RETIRED MILITARY MEMBERS JUDICIALLY DECLARED DEAD, THAT RETIRED PAY SHOULD BE PAID FOR THE PERIOD UNTIL THE EXPIRATION OF 7 YEARS AFTER THE MEMBERS' ABSENCE BEGAN WOULD BE WARRANTED. ALL SUCH CLAIMS SHOULD BE REFERRED TO THIS OFFICE FOR DIRECT SETTLEMENT.