B-153838, MAY 6, 1964

B-153838: May 6, 1964

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FC: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 18. IT APPEARS FROM THE STATEMENT OF FACTS CONTAINED IN YOUR LETTER THAT COLONEL BAINES WAS PLACED ON THE RETIRED LIST ON OCTOBER 31. WHICH WAS MADE ON DA FORM 1041 PROVIDED FOR THAT PURPOSE. WAS SUBSCRIBED AND SWORN TO BEFORE A NOTARY PUBLIC ON OCTOBER 29. THAT THE ELECTION WAS VALID AND WAS COMPUTED BASED UPON THE WIFE'S BIRTH DATE OF MAY 13. THAT THE MONTHLY REDUCTION IN RETIRED PAY WAS $28.88 AND THE PROSPECTIVE ANNUITY $46.70. THE OFFICIAL RECORDS SHOW THAT COLONEL BAINES HAD STATED THAT HE WAS UNABLE TO FURNISH A BIRTH CERTIFICATE FOR HIS WIFE BECAUSE SHE WAS BORN IN RUSSIA. THAT BOTH OF HER PARENTS WERE DEAD. SINCE HE WAS UNABLE TO OBTAIN DOCUMENTARY EVIDENCE FROM SUCH SOURCES.

B-153838, MAY 6, 1964

TO COLONEL J. L. CLANCY, FC:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 18, 1964, FINCS-EF, AND ENCLOSURES, FORWARDED HERE BY FIRST INDORSEMENT OF MARCH 27, 1964, FROM THE OFFICE OF THE CHIEF OF FINANCE, UNDER DO-A-756 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTING A DECISION AS TO THE PROPRIETY OF PAYING THE ACCOMPANYING VOUCHER TOTALING $957.96, REPRESENTING MONTHLY SURVIVORSHIP ANNUITY PAYMENTS OF $46.18 FOR THE PERIOD MARCH 1, 1962, THROUGH JANUARY 31, 1964, TO ANNE BAINES AS UNREMARRIED WIDOW OF THE LATE LIEUTENANT COLONEL CLARENCE R. BAINES, 0165 270, RETIRED.

IT APPEARS FROM THE STATEMENT OF FACTS CONTAINED IN YOUR LETTER THAT COLONEL BAINES WAS PLACED ON THE RETIRED LIST ON OCTOBER 31, 1952, UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, CH. 708, 62 STAT. 1087; THAT HE ELECTED OPTION 1 AT ONE-HALF REDUCED RETIRED PAY, COMBINED WITH OPTION 4, TO PROVIDE A SURVIVORSHIP ANNUITY FOR HIS WIFE, ANN (ANNE, ANNA) MARY BAINES, UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, CH. 393, 67 STAT. 501; THAT SUCH ELECTION, WHICH WAS MADE ON DA FORM 1041 PROVIDED FOR THAT PURPOSE, WAS SUBSCRIBED AND SWORN TO BEFORE A NOTARY PUBLIC ON OCTOBER 29, 1953; THAT THE ELECTION WAS VALID AND WAS COMPUTED BASED UPON THE WIFE'S BIRTH DATE OF MAY 13, 1898, AS THEN PROVIDED; AND THAT THE MONTHLY REDUCTION IN RETIRED PAY WAS $28.88 AND THE PROSPECTIVE ANNUITY $46.70.

THE OFFICIAL RECORDS SHOW THAT COLONEL BAINES HAD STATED THAT HE WAS UNABLE TO FURNISH A BIRTH CERTIFICATE FOR HIS WIFE BECAUSE SHE WAS BORN IN RUSSIA, THAT BOTH OF HER PARENTS WERE DEAD, AND THAT THE RECORDS OF THE GRADE SCHOOLS WHICH SHE HAD ATTENDED IN CHILDHOOD HAD BEEN DESTROYED BY FIRE, AND THE OFFICIAL RECORDS FURTHER SHOW THAT, SINCE HE WAS UNABLE TO OBTAIN DOCUMENTARY EVIDENCE FROM SUCH SOURCES, HE HAD REQUESTED THAT MAY 13, 1898, BE USED AS THE OFFICIAL DATE OF BIRTH OF HIS WIFE. YOU SAY THAT AFTER THE DEATH OF COLONEL BAINES ON MARCH 5, 1962, OTHER DATES OF BIRTH FOR HIS WIDOW WERE FURNISHED AS FOLLOWS:

"A. APPLICATION FOR ANNUITY UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, COMPLETED BY THE WIDOW, ANN M. BAINES, ON 23 APRIL 1962, SHOWS DATE OF BIRTH AS 10 MAY 1894.

"B. A SWORN AFFIDAVIT FROM WILLIAM D. NASH, SON-IN-LAW OF ANN M. BAINES, NEE PECK, DATED 15 NOVEMBER 1963, STATES THAT THE INFORMATION TAKEN FROM THE CITIZENSHIP PAPERS OF MAX PECK, AS SUPPLIED BY THE UNITED STATES DEPARTMENT OF IMMIGRATION, SHOWING THE DATE OF BIRTH OF ANNA PECK AS 10 JUNE 1897, IS A TRUE AND EXACT COPY.

"C. ABSTRACT FURNISHED BY IMMIGRATION AND NATURALIZATION SERVICE SHOWS THAT WHEN ANNE BAINES, NEE PECK, ENTERED THE UNITED STATES THROUGH THE PORT OF NEW YORK ON 20 DECEMBER 1906 ON THE S.S. FRIEDRICH DER GROSSE, SHE WAS MANIFESTED AS ANNA (GANNA) PASCHERSTNIK, AGE 9, CITIZEN OF RUSSIA, PLACE OF BIRTH, BOBRUISK.'

YOU SAY THAT, IN THE ABSENCE OF PRIMARY EVIDENCE, IT WOULD APPEAR THAT THE DATE OF BIRTH CLOSEST TO THE EVENT ITSELF IS THE SPECIFIC DATE OF JUNE 10, 1897, TAKEN FROM THE NATURALIZATION RECORDS OF THE FATHER OF ANN (ANNE, ANNA) M. BAINES AND THE YEAR OF 1897 AS VERIFIED AND SHOWN BY EARLY 1906 IMMIGRATION RECORDS. YOU ALSO SAY THAT ON SUCH BASIS THE ELECTION HAS BEEN RECOMPUTED ON THE EARLIER DATE OF BIRTH OF RECORD OF THE WIDOW, JUNE 10, 1897, AND THE COST INCREASED FROM $28.88 TO $29.92 WITH AN ANNUITY PAYABLE OF $46.18 AND THAT SUCH ADDITIONAL COST HAS BEEN COLLECTED FROM THE ANNUITY PAYABLE. YOU INDICATE, HOWEVER, THAT IN THE ABSENCE OF PRIMARY EVIDENCE AND SINCE THE INFORMATION FURNISHED IN THE ABSTRACT AND IN THE AFFIDAVIT DATED NOVEMBER 15, 1963, COMES FROM THE SAME SOURCE, BUT IS FURNISHED BY TWO DIFFERENT PARTIES, DOUBT EXISTS AS TO THE DATE AND DOCUMENT TO BE RELIED UPON IF THE RECOMPUTATION IS IN ORDER.

THE EVIDENCE OF RECORD IS SUFFICIENT TO SHOW THAT CLARENCE R. BAINES AND ANNA MARY PECK WERE MARRIED ON OCTOBER 20, 1913, AND THAT HER FATHER'S NAME WAS MAX PECK. IT IS REPORTED IN THE ABSTRACT FURNISHED BY THE IMMIGRATION AND NATURALIZATION SERVICE THAT THE PERTINENT ARRIVAL RECORD SHOWS THAT "ANNE BAINES, AKA PECK, NEE ANNA (GANNA) PASCHERSTNIK" WAS 9 YEARS OLD WHEN SHE ENTERED THE UNITED STATES THROUGH THE PORT OF NEW YORK, NEW YORK, WITH HER FATHER ON DECEMBER 20, 1906. SUCH RECORD, WHICH APPEARS TO CONTAIN THE OLDEST DOMESTIC RECORD OF THE BIRTH OF MRS. BAINES, MAY BE ACCEPTED AS ESTABLISHING THAT SHE WAS BORN IN 1897. MR. NASH, IN HIS AFFIDAVIT OF NOVEMBER 15, 1963, STATES THAT INFORMATION TAKEN FROM THE CITIZENSHIP PAPERS OF MAX PECK, FATHER OF MRS. BAINES, AS SUPPLIED BY THE "U.S. DEPT. OF IMMIGRATION, SHOWS THE DATE OF BIRTH OF "ANNA PECK" AS JUNE 10, 1897. WHILE WE CONSIDER THAT THE DOCUMENT ON WHICH MR. NASH'S AFFIDAVIT IS BASED, AND NOT THE AFFIDAVIT ITSELF, IS THE BEST AVAILABLE EVIDENCE OF WHAT IS CONTAINED IN THE CITIZENSHIP PAPERS OF MAX PECK, WE HAVE BEEN ABLE TO OBTAIN FROM THE IMMIGRATION AND NATURALIZATION SERVICE CORROBORATING EVIDENCE THAT SUCH PAPERS SHOW THAT ANNA PECK, DAUGHTER OF MAX PECK, WAS BORN ON JUNE 10, 1897. IN THE CIRCUMSTANCES, THEREFORE, IT IS OUR VIEW THAT THE INFORMATION FURNISHED BY THE IMMIGRATION AND NATURALIZATION SERVICE FROM THE TWO SOURCES MAY BE ACCEPTED AS ESTABLISHING THAT MRS. BAINES WAS BORN ON JUNE 10, 1897.

WE ARE RETURNING THE VOUCHER AND SUPPORTING PAPERS TO YOU AND PAYMENT ON THE VOUCHER IS AUTHORIZED, IF OTHERWISE CORRECT.