B-151501, JUL. 15, 1963

B-151501, JUL. 15, 1963

TO MRS. LULA MAE WASHINGTON:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 17, 1963, AND ENCLOSURE, CONCERNING YOUR CLAIM AS WIDOW FOR PAYMENT OF THE SIX MONTHS' DEATH GRATUITY IN THE CASE OF THE LATE WILLIE B. WASHINGTON, WHO DIED DECEMBER 1, 1961, WHILE SERVING AS AN ENLISTED MAN, UNITED STATES ARMY.

AS YOU WERE ADVISED BY OUR CLAIMS DIVISION LETTER OF JUNE 12, 1962, THE RECORD SHOWS THAT WILLIE B. WASHINGTON AND LORETTA BRAGGS WERE MARRIED AT TULSA, OKLAHOMA, ON JULY 12, 1941. THERE IS NO EVIDENCE OF RECORD THAT THEY WERE DIVORCED PRIOR TO HIS MARRIAGE TO YOU AT QUARTZSITE, ARIZONA, ON SEPTEMBER 19, 1948. THE RECORD BEFORE OUR OFFICE SHOWS THAT WILLIE B. WASHINGTON LEFT LORETTA WASHINGTON (NOW LORETTA BRAGGS COOK, 3639 BARBERRY AVENUE, CINCINNATI, OHIO) IN 1946, UNDER A VOLUNTARY SEPARATION AND THAT HE INFORMED HERE THAT HE INTENDED TO GET A DIVORCE. HOWEVER, NO EVIDENCE HAS BEEN SUBMITTED TO THIS EFFECT AND IT DOES NOT APPEAR THAT A FORMAL DIVORCE WAS EVER SECURED TERMINATING THE MARRIAGE OF WILLIE B. WASHINGTON AND LORETTA WASHINGTON. ON SUCH BASIS YOU WERE ADVISED, BY OUR CLAIM DIVISION LETTER OF JUNE 12, 1962, THAT PAYMENT OF THE SIX-MONTH DEBT GRATUITY CLAIMED WOULD BE WITHHELD BY OUR OFFICE PENDING RECEIPT OF A CERTIFIED COPY OF THE DECREE OF A COURT OF COMPETENT JURISDICTION SHOWING ITS DETERMINATION AS TO THE PERSON WHO WAS THE LEGAL WIFE OF WILLIE B. WASHINGTON AT THE TIME OF HIS DEATH, AND IN SUCH COURT PROCEEDINGS IT WOULD BE NECESSARY THAT LORETTA BRAGGS COOK BE MADE A PARTY THERETO OR AT LEAST HAVE THE OPPORTUNITY TO BE HEARD.

WITH YOUR LETTER OF APRIL 17, 1963, YOU HAVE ENCLOSED A PHOTOSTATIC COPY OF A LETTER DATED MARCH 29, 1963, TO YOU FROM THE VETERANS ADMINISTRATION, VETERANS BENEFITS OFFICE, WASHINGTON 25, D.C., ADVISING YOU OF YOUR CONTINUED ENTITLEMENT TO DEPENDENCY AND INDEMNITY COMPENSATION AS THE ,UNREMARRIED WIDOW" OF W. B. WASHINGTON, CLAIM NO. XC 12803530, IN THE MONTHLY AMOUNT OF $143 BEGINNING JUNE 1, 1962. YOU APPARENTLY BELIEVE THAT, ON THE BASIS OF THIS AWARD TO YOU BY THE VETERANS ADMINISTRATION, PAYMENT OF YOUR CLAIM FOR SIX MONTHS' DEATH GRATUITY SHOULD BE MADE BY OUR OFFICE.

THE VETERANS ADMINISTRATION MADE THEIR FINDING THAT YOU WERE THE WIDOW OF WILLIAM B. WASHINGTON AND THAT A VALID MARRIAGE HAD EXISTED BETWEEN YOU AND THE VETERAN WITHIN THE CONTEMPLATION OF 38 U.S.C. 103; THAT IS, THAT YOU, WITHOUT KNOWLEDGE OF ANY LEGAL IMPEDIMENT, ENTERED INTO A MARRIAGE WITH WILLIAM B. WASHINGTON, WHICH BUT FOR THE LEGAL IMPEDIMENT (HIS PRIOR EXISTING MARRIAGE) WOULD HAVE BEEN VALID, AND THEREAFTER YOU COHABITED WITH HIM FOR FIVE OR MORE YEARS IMMEDIATELY BEFORE HIS DEATH. THE LAWS GOVERNING THE PAYMENT OF BENEFITS BY THE VETERANS ADMINISTRATION, HOWEVER, ARE SEPARATE AND DISTINCT AND HAVE NO APPLICATION TO THE PAYMENT OF THE SIX MONTHS' DEATH GRATUITY. IN THIS RESPECT, SECTION 1477, TITLE 10, U.S. CODE, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/A) A DEATH GRATUITY * * * SHALL BE PAID TO OR FOR THE LIVING SURVIVOR HIGHEST ON THE FOLLOWING LIST:

"/1) HIS SURVIVING SPOUSE. * * *"

THE ACTION BY THE VETERANS ADMINISTRATION IN RECOGNIZING YOU AS THE WIDOW OF THE DECEDENT UNDER 38 U.S.C. 103, AFFORDS NO LEGAL BASIS FOR AUTHORIZING PAYMENT UNDER 10 U.S.C. 1477 OF THE SIX MONTHS' DEATH GRATUITY TO YOU. IT MIGHT BE STATED THAT OUR OFFICE HAS RECEIVED A CLAIM IN THIS MATTER FROM LORETTA BRAGGS WASHINGTON (COOK) THROUGH HER ATTORNEYS, ARONOFF, ROSEN AND LERNER, 604-6 FOUNTAIN SQUARE BUILDING, CINCINNATI 2, OHIO.

IN VIEW OF THE CONFLICTING CLAIMS AND SINCE THERE IS INSUFFICIENT EVIDENCE IN THE RECORD BEFORE US TO MAKE A DETERMINATION AS TO THE PERSON ENTITLED TO RECEIVE THE SIX MONTHS' DEATH GRATUITY UNDER 10 U.S.C. 1477, WE ARE REQUIRED TO WITHHOLD SETTLEMENT WITH RESPECT TO THE GRATUITY UNTIL SUCH TIME AS A COURT OF COMPETENT JURISDICTION HAS RENDERED A JUDGMENT AS TO WHO WAS THE LEGAL WIFE OF WILLIE B. WASHINGTON AT THE TIME OF HIS DEATH. IN THE EVENT SUCH ACTION IS INSTITUTED AND YOU FURNISH US A COPY OF THE FINAL DECREE BY THE COURT MAKING DETERMINATION AS TO THE LAWFUL WIDOW OF THE DECEDENT, CONSIDERATION WILL BE GIVEN TO AUTHORIZING PAYMENT OF THE SIX MONTHS' DEATH GRATUITY AT THAT TIME.