B-155453, JUN. 13, 1966

B-155453: Jun 13, 1966

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MILLER: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 12. APPARENTLY DURING A SCUFFLE IN THEIR TRAILER WHICH WAS PARKED IN TRAILER PARK IN FLOROSA. THERE WERE NO EYE WITNESSES TO THE HOMICIDE. THERE WAS ENTERED A "NOLLE PROSEQUI" ON A MURDER CHARGE. THAT IS. THE WIDOW'S CLAIM AS THE DESIGNATED BENEFICIARY FOR THE ACCRUED PAY AND ALLOWANCES AND AS THE PREFERRED PAYEE (WIDOW) DESIGNATED IN THE LAW TO RECEIVE THE 6-MONTHS' DEATH GRATUITY WAS DISALLOWED BY SETTLEMENT OF OUR CLAIMS DIVISION. FOR THE REASON THAT A CLEAR CASE OF SELF-DEFENSE ON HER PART WAS NOT ESTABLISHED BY THE FACTS AND CIRCUMSTANCES. THAT THE MATTER WAS DOUBTFUL TO WARRANT PAYMENT TO HER. SHE WAS INFORMED THAT IN SUCH CIRCUMSTANCES PAYMENT TO HER COULD BE MADE ONLY PURSUANT TO A JUDICIAL DETERMINATION ESTABLISHING HER RIGHT TO SUCH PAY OR UPON THE SUBMISSION OF SATISFACTORY EVIDENCE ESTABLISHING THAT THE KILLING OF HER HUSBAND WAS IN SELF-DEFENSE.

B-155453, JUN. 13, 1966

TO MR. LOUIE E. MILLER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 12, 1966, AND ENCLOSURES, IN EFFECT REQUESTING RECONSIDERATION OF THE CLAIM PREVIOUSLY PRESENTED BY YOU AND YOUR WIFE, MRS. ELIZABETH MILLER, FOR PAY AND ALLOWANCES AND 6-MONTHS' DEATH GRATUITY DUE IN THE CASE OF YOUR LATE SON, CAPTAIN WALDO H. MILLER, UNITED STATES AIR FORCE, WHO DIED ON OCTOBER 20, 1963.

OUR RECORD SHOWS THAT CAPTAIN WALDO H. MILLER DIED AS THE RESULT OF A KNIFE WOUND INFLICTED BY HIS WIFE, MRS. SHEILA JO MILLER, APPARENTLY DURING A SCUFFLE IN THEIR TRAILER WHICH WAS PARKED IN TRAILER PARK IN FLOROSA, FLORIDA. THERE WERE NO EYE WITNESSES TO THE HOMICIDE, AND ON JULY 15, 1964, THERE WAS ENTERED A "NOLLE PROSEQUI" ON A MURDER CHARGE, THAT IS, THE STATE ELECTED NOT TO PROCEED FURTHER IN THE CASE. THE WIDOW'S CLAIM AS THE DESIGNATED BENEFICIARY FOR THE ACCRUED PAY AND ALLOWANCES AND AS THE PREFERRED PAYEE (WIDOW) DESIGNATED IN THE LAW TO RECEIVE THE 6-MONTHS' DEATH GRATUITY WAS DISALLOWED BY SETTLEMENT OF OUR CLAIMS DIVISION, DATED FEBRUARY 16, 1965, FOR THE REASON THAT A CLEAR CASE OF SELF-DEFENSE ON HER PART WAS NOT ESTABLISHED BY THE FACTS AND CIRCUMSTANCES, AS RELATED IN THE INVESTIGATIONAL REPORTS AND DEPOSITIONS COVERING THE HOMICIDE, AND THAT THE MATTER WAS DOUBTFUL TO WARRANT PAYMENT TO HER. SHE WAS INFORMED THAT IN SUCH CIRCUMSTANCES PAYMENT TO HER COULD BE MADE ONLY PURSUANT TO A JUDICIAL DETERMINATION ESTABLISHING HER RIGHT TO SUCH PAY OR UPON THE SUBMISSION OF SATISFACTORY EVIDENCE ESTABLISHING THAT THE KILLING OF HER HUSBAND WAS IN SELF-DEFENSE.

SUBSEQUENTLY, YOUR WIFE AND YOU, AS PARENTS, FILED CLAIM FOR THE PAY AND ALLOWANCES AND THE 6-MONTHS' DEATH GRATUITY. BY LETTER DATED APRIL 8, 1966, YOU WERE ADVISED THAT UNDER THE ORDER OF PRECEDENCE SET FORTH IN THE LAWS GOVERNING THE PAYMENT OF THE PAY AND ALLOWANCES (10 U.S.C. 2771) AND THE 6-MONTHS' DEATH GRATUITY (10 U.S.C. 1477) MRS. SHEILA JO MILLER AS THE DESIGNATED BENEFICIARY AND AS WIDOW WOULD HAVE A PREFERRED RIGHT TO THE AMOUNT DUE IN THIS CASE. YOU WERE ALSO ADVISED THAT ANY PAYMENT TO HER REQUIRED SUPPORT BY A JUDICIAL DETERMINATION OR EVIDENCE AS DESCRIBED IN THE ABOVE-MENTIONED SETTLEMENT OF FEBRUARY 16, 1965.

YOU SAY IN YOUR LETTER OF APRIL 12, 1966, AMONG OTHER THINGS, THAT THE VETERANS ADMINISTRATION, MINNEAPOLIS, MINNESOTA, MADE AN AWARD TO YOUR WIFE AND YOU ON ACCOUNT OF YOUR SON'S INSURANCE, AND YOU CONTEND THAT SINCE MRS. SHEILA JO MILLER REMARRIED ON JULY 16, 1964, SHE NOW WOULD NOT HAVE ANY "RIGHT" TO THE AMOUNT DUE FROM THE UNITED STATES. IN SUPPORT OF THAT CONTENTION YOU FURNISHED (1) A COPY OF LETTER DATED DECEMBER 31, 1964, FROM THE VETERANS ADMINISTRATION REGIONAL OFFICE, ST. PETERSBURG, FLORIDA, IN WHICH IT IS STATED THAT MRS. SHEILA JO MILLER'S CLAIM FOR DEPENDENCY AND INDEMNITY COMPENSATION WAS DISALLOWED, AND (2) A COPY OF AN AFFIDAVIT DATED JULY 12, 1965, BY MR. DRISCOLL OGLESBY, DEPUTY SHERIFF OF OKALOOSA COUNTY, FLORIDA, SUMMARIZING THE INVESTIGATION CONDUCTED BY HIM IN CONNECTION WITH THE DEATH OF YOUR SON FOR USE IN THE CASE OF JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY AND STATE MUTUAL LIFE ASSURANCE COMPANY OF AMERICA V. SHEILA JO MILLER AND LOUIE HERMAN MILLER, CIVIL ACTION NO. P-1492, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, PENSACOLA DIVISION.

THE LAWS RELATING TO VETERANS' BENEFITS ARE SEPARATE AND DISTINCT FROM THE LAWS RELATING TO THE SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE ARMED FORCES OR THE PAYMENT OF THE 6-MONTHS' DEATH GRATUITY. HENCE, THE DETERMINATION MADE BY THE VETERANS ADMINISTRATION AS TO THE ENTITLEMENT OF YOUR WIFE AND YOU TO THE INSURANCE PAYABLE BY THAT ADMINISTRATION IS NOT CONCLUSIVE OF YOUR ENTITLEMENT TO THE ARREARS OF PAY AND ALLOWANCES AND THE 6-MONTHS' DEATH GRATUITY. SEE THOMPSON V. FLEMMING, 188 F.SUPP. 123 (D.ORE., 1960), IN WHICH THE COURT HELD THAT EACH FACT FINDING AGENCY IS ENTITLED TO MAKE ITS OWN DECISION ON EVIDENCE BEFORE IT AND THE FACT THAT ANOTHER TRIBUNAL HAS REACHED A DIFFERENT CONCLUSION ON THE SAME CASE DOES NOT INVALIDATE ANY DECISION WHICH HAS PROPER EVIDENTIARY SUPPORT, EVEN THOUGH BOTH AGENCIES ARE THOSE OF THE FEDERAL GOVERNMENT. THUS, THE DETERMINATION OF THE VETERANS ADMINISTRATION THAT MRS. SHEILA JO MILLER IS NOT ENTITLED TO DEPENDENCY AND INDEMNITY COMPENSATION MAY NOT BE ACCEPTED BY THIS OFFICE AS PRECLUDING CONSIDERATION OF HER CLAIM FOR THE PAY AND ALLOWANCES AND 6-MONTHS' DEATH GRATUITY IF AND WHEN A JUDICIAL DETERMINATION IS MADE IN HER FAVOR OR UPON RECEIPT OF EVIDENCE CLEARLY ESTABLISHING THAT THE KILLING OF THE LATE CAPTAIN MILLER WAS IN SELF DEFENSE. FURTHERMORE, THE FACT THAT SHE REMARRIED WOULD NOT BY ITSELF BAR HER ENTITLEMENT, IF OTHERWISE ESTABLISHED, TO THE AMOUNTS CLAIMED BY HER INASMUCH AS HER RELATIONSHIP TO THE LATE CAPTAIN MILLER FOR THE PURPOSE OF THE GOVERNING LAWS MUST BE CONSIDERED AS OF THE DATE OF HIS DEATH.

SINCE MRS. SHEILA JO MILLER (NOW MRS. SHEILA JO IVES OR IVEY, ACCORDING TO YOUR LETTER) MAY HAVE A PREFERRED RIGHT TO THE PAY AND ALLOWANCES AS THE DESIGNATED BENEFICIARY OF THE LATE CAPTAIN MILLER (10 U.S.C. 2771) AND TO THE 6-MONTHS' DEATH GRATUITY AS HIS WIDOW (10 U.S.C. 1477) AND SINCE SUCH RIGHT MAY BE ESTABLISHED BY A JUDICIAL DETERMINATION IN HER FAVOR OR BY SATISFACTORY EVIDENCE ESTABLISHING THAT SHE ACTED IN SELF-DEFENSE WHEN SHE KILLED THE LATE CAPTAIN MILLER, THIS OFFICE IS WITHOUT AUTHORITY ON THE PRESENT RECORD TO ALLOW TO YOUR WIFE AND YOU, AS PARENTS, THE AMOUNT DUE FROM THE UNITED STATES. ACCORDINGLY FURTHER ACTION ON YOUR CLAIM AT THIS TIME IS NOT WARRANTED.

IN ACCORDANCE WITH YOUR REQUEST, THE PAPERS WHICH ACCOMPANIED YOUR LETTER ARE RETURNED.