B-158460, MAR. 8, 1966

B-158460, MAR. 8, 1966

TO MR. NICOLAS B. ESTACIO, COMMANDER DISABLED AMERICAN VETERANS, PHILIPPINE DEPARTMENT MCKINLEY CHAPTER NO. 2:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 11, 1966, ON BEHALF OF MRS. MARIA G. VDA DE COSTA, CONCERNING HER CLAIM FOR THE ACCRUED RETIREMENT PAY OF HER HUSBAND, MASTER SERGEANT MARCELO B. COSTA, PHILIPPINE SCOUTS, WHO YOU SAY DISAPPEARED ON APRIL 18, 1950, AND WAS DECLARED BY THE COURT AS DEAD ON APRIL 18, 1957.

INFORMATION IN OUR FILES INDICATES THAT SERGEANT COSTA DISAPPEARED ON APRIL 18, 1950, BUT THERE IS NO EVIDENCE BEFORE THIS OFFICE THAT HE HAS BEEN DECLARED DEAD BY A COURT OF COMPETENT JURISDICTION, ALTHOUGH THE RECORD INDICATES THAT A FINDING OF DEATH OF SERGEANT COSTA AS OF APRIL 18, 1957, HAS BEEN MADE BY THE VETERANS ADMINISTRATION. THE COPY OF A PHILIPPINE COURT ORDER SUBMITTED BY YOU WHICH WAS ENTERED ON JUNE 30, 1955, IN THE MATTER OF THE ABSENCE OF MARCELO COSTA, SHOWS NOTHING MORE THAN THAT THE COURT DECLARED COSTA TO BE "ABSENTEE.'

THE FINDING OF DEATH ON APRIL 18, 1957, BY THE VETERANS ADMINISTRATION WAS MADE PURSUANT TO SECTION 2102 OF THE ACT OF JUNE 17, 1957, PUB.L. 85- 56, 71 STAT. 15B, NOW 38 U.S.C. 108, WHICH PROVIDES THAT NO STATE LAW PROVIDING FOR PRESUMPTION OF DEATH SHALL BE APPLICABLE TO CLAIMS FOR BENEFITS UNDER LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION AND THAT, IF EVIDENCE SATISFACTORY TO THE ADMINISTRATOR IS SUBMITTED ESTABLISHING THE CONTINUED AND UNEXPLAINED ABSENCE OF ANY INDIVIDUAL FROM HIS HOME AND FAMILY FOR SEVEN YEARS OR MORE, AND ESTABLISHING THAT AFTER DILIGENT SEARCH NO EVIDENCE OF HIS EXISTENCE AFTER THE DATE OF DISAPPEARANCE HAS BEEN FOUND OR RECEIVED, THE DEATH OF SUCH INDIVIDUAL AS OF THE DATE OF THE EXPIRATION OF SUCH PERIOD SHALL BE CONSIDERED AS SUFFICIENTLY PROVED. THAT LAW HAS NO APPLICATION TO THE RETIRED PAY OF RETIRED PHILIPPINE SCOUTS, HOWEVER, AND THEREFORE PROVIDES NO BASIS FOR PAYMENT OF ANY ADDITIONAL RETIRED PAY IN THIS CASE.

THE RECORD INDICATES THAT SERGEANT COSTA WAS LAST SEEN ALIVE ON APRIL 18, 1950, WHEN HE DISAPPEARED FROM HIS HOME, AND THERE IS NO EVIDENCE OF HIS ACTUALLY HAVING BEEN ALIVE AFTER THAT DATE, ALTHOUGH HIS RETIRED PAY CHECK DATED APRIL 30, 1950, WAS NEGOTIATED AND PAID IN DUE COURSE. FOR THE PURPOSE OF ESTABLISHING A CLAIM AGAINST THE UNITED STATES, THE BURDEN OF PROOF IS UPON THE CLAIMANT. SERGEANT COSTA DID NOT NEGOTIATE ANY OF HIS RETIRED PAY CHECKS ISSUED AFTER APRIL 30, 1950, AND UP TO THE PRESENT TIME HE HAS NOT BEEN HEARD FROM BY THE DEPARTMENT OF THE ARMY, AND HAS MADE NO CLAIM FOR RETIRED PAY TO WHICH HE WOULD HAVE BEEN ENTITLED, AND WOULD HAVE KNOWN HE WAS ENTITLED, IF HE WERE ALIVE. THESE FACTS, COUPLED WITH HIS UNEXPLAINED ABSENCE, WOULD APPEAR SUFFICIENT TO REBUT ANY PRESUMPTION OF CONTINUANCE OF LIFE, THE ONLY REASONABLE PRESUMPTION BEING THAT IF HE HAD BEEN ALIVE, MENTALLY ALERT, AND PHYSICALLY ABLE, HE WOULD HAVE MADE CLAIM FOR HIS RETIRED PAY CHECKS. HENCE, IN THE ABSENCE OF SATISFACTORY EVIDENCE THAT SERGEANT COSTA ACTUALLY WAS ALIVE SUBSEQUENT TO APRIL 30, 1950, THERE IS NO BASIS FOR CHARGING APPROPRIATED FUNDS FOR RETIRED PAY AFTER THAT DATE.

WITH RESPECT TO YOUR STATEMENT INDICATING THAT A COURT HAS DECLARED SERGEANT COSTA DEAD AS OF APRIL 18, 1957, GENERALLY A JUDICIAL DECREE OF DEATH IS TO BE DISTINGUISHED FROM ACTUAL DEATH. A JUDICIAL DECREE OF DEATH AT OR AFTER A FIXED TIME BASED UPON PRESUMPTIVE EVIDENCE IS NOT CONCLUSIVE UPON AN ALLEGED DECEDENT WHO WAS IN FACT ALIVE. SEE SCOTT V. MCNEAL, 154 U.S. 34 (1894). SUCH A DECREE IS NO EVIDENCE THAT SUCH PERSON LIVED FOR ANY FIXED LENGTH OF TIME AFTER HIS DISAPPEARANCE. ON THE CONTRARY, LOGICAL DEDUCTION FROM SUCH EVIDENCE LEADS TO THE CONCLUSION THAT LIFE ENDED AT OR IMMEDIATELY AFTER UNEXPLAINED DISAPPEARANCE UNDER ORDINARY CIRCUMSTANCES. WHERE DEATH IS PRESUMED FROM UNEXPLAINED ABSENCE LONG CONTINUED, THE GENERAL RULE IS THAT THERE IS NO PRESUMPTION AS TO THE TIME OF DEATH, WHICH MUST BE DETERMINED FROM THE FACTS AND CIRCUMSTANCES OF EACH PARTICULAR CASE. 25A CORPUS JURIS DECUNDUM, DEATH, SEC. 8; 22 AMERICAN JURISPRUDENCE 2D, DEATH, SEC. 314. THE TIME OF DEATH IN SUCH CASES MUST BE ESTABLISHED BY COMPETENT EVIDENCE, AND THE BURDEN OF PROOF IS UPON THE PARTY ASSERTING A CLAIM OF DEATH AT ANY PARTICULAR TIME. SEE DAVIE V. BRIGGS, 97 U.S. 628 (1878), AND AUTHORITIES CITED THEREIN. ASSUMING FOR THE PURPOSE OF THIS CASE THAT A COURT HAS DECLARED THAT SERGEANT COSTA'S DEATH OCCURRED AS OF APRIL 18, 1957, RATHER THAN IN APRIL OR MAY 1950, THE UNITED STATES IS NOT NECESSARILY BOUND BY A COURT DECREE ENTERED ON THE BASIS OF PRESUMPTIVE EVIDENCE, OR AS A PRESUMPTION OF LAW, IN AN EX PARTE PROCEEDING OR ACTION TO WHICH THE UNITED STATES IS NOT A PARTY. SEE PRIVETT V. UNITED STATES, 256 U.S. 201 (1921); UNITED STATES V. CANDELARIA, 271 U.S. 432 (1926).

IN THE ABSENCE OF PROOF THAT SERGEANT COSTA WAS ALIVE AFTER APRIL 30, 1950, THERE IS NO BASIS FOR CHARGING APPROPRIATED FUNDS WITH HIS RETIRED PAY AFTER THAT DATE. SEE 14 COMP. GEN. 411. ACCORDINGLY, SINCE NO AFFIRMATIVE EVIDENCE OF CONTINUANCE OF LIFE AFTER THAT DATE HAS BEEN SUBMITTED, THE CLAIM FOR RETIRED PAY FOR ANY PERIOD AFTER THAT DATE MUST BE AND IS DENIED.