B-158932, SEP. 7, 1966

B-158932: Sep 7, 1966

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TO WILHITE AND BUZBEE: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 22. SINCE VELMA AND THE DECEASED MEMBER WERE MARRIED BEFORE THE EXPIRATION OF THE SIX MONTH PERIOD OF INHIBITION OR RESTRICTION AGAINST HIS REMARRIAGE AS PROVIDED BY OKLAHOMA LAW. THERE IS DOUBT AS THE THE LEGALITY OF VELMA'S CLAIM UNDER THE STATUTE AS SURVIVING SPOUSE AND SHE WAS ADVISED THAT PAYMENT WILL BE HELD IN ABEYANCE UNTIL SUCH TIME AS HER MARITAL STATUS HAS BEEN DETERMINED BY A COURT OF COMPETENT JURISDICTION. YOU HAVE CITED SEVERAL OKLAHOMA COURT CASES FOR OUR CONSIDERATION WHICH YOU INDICATE SUPPORT VELMA'S CLAIM FOR THE SIX MONTHS' DEATH GRATUITY. YOU ALSO REQUEST INFORMATION AS TO WHAT COURT'S DETERMINATION WE WILL RECOGNIZE AS ESTABLISHING THAT VELMA IS THE WIDOW OF THE DECEDENT.

B-158932, SEP. 7, 1966

TO WILHITE AND BUZBEE:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 22, 1966, CONCERNING THE SIX MONTHS' DEATH GRATUITY IN THE CASE OF SERGEANT GEORGE JOE BUCKY EISENBERGER, RA 54 219 952, U.S. ARMY, WHO DIED DECEMBER 5, 1965.

THERE HAS BEEN RECEIVED YOUR LETTER DATED JULY 25, 1966, ENCLOSING A POWER OF ATTORNEY AUTHORIZING YOU TO REPRESENT MRS. VELMA R. EISENBERGER IN THE MATTER OF HER CLAIM FOR THE GRATUITY PAYMENT.

BY LETTER DATED JUNE 9, 1966, OUR CLAIMS DIVISION ADVISED MRS. EISENBERGER THAT THE LAW AUTHORIZING PAYMENT OF A DEATH GRATUITY IN THE CASE OF A MEMBER OF THE ARMED FORCES WHO DIES WHILE ON ACTIVE DUTY PROVIDES THAT SUCH GRATUITY SHALL BE PAID TO THE LIVING SURVIVOR HIGHEST ON THE LIST SET FORTH IN 10 U.S.C. 1477. SINCE VELMA AND THE DECEASED MEMBER WERE MARRIED BEFORE THE EXPIRATION OF THE SIX MONTH PERIOD OF INHIBITION OR RESTRICTION AGAINST HIS REMARRIAGE AS PROVIDED BY OKLAHOMA LAW, FOLLOWING THE DIVORCE DECREE DISSOLVING HIS MARRIAGE TO MARTHA LOU ESENBERGER, THERE IS DOUBT AS THE THE LEGALITY OF VELMA'S CLAIM UNDER THE STATUTE AS SURVIVING SPOUSE AND SHE WAS ADVISED THAT PAYMENT WILL BE HELD IN ABEYANCE UNTIL SUCH TIME AS HER MARITAL STATUS HAS BEEN DETERMINED BY A COURT OF COMPETENT JURISDICTION.

YOU HAVE CITED SEVERAL OKLAHOMA COURT CASES FOR OUR CONSIDERATION WHICH YOU INDICATE SUPPORT VELMA'S CLAIM FOR THE SIX MONTHS' DEATH GRATUITY. YOU ALSO REQUEST INFORMATION AS TO WHAT COURT'S DETERMINATION WE WILL RECOGNIZE AS ESTABLISHING THAT VELMA IS THE WIDOW OF THE DECEDENT. THE SIX MONTHS' DEATH GRATUITY IS NOT AN ASSET OF THE ESTATE OF SERGEANT EISENBERGER AND MUST BE PAID IN ACCORDANCE WITH THE LAW CITED ABOVE. BEFORE THE LETTER OF JULY 9, 1966, WAS PREPARED FULL CONSIDERATION WAS GIVEN TO THE LAW OF OKLAHOMA AS VIEWED BY THE COURTS AND, AS THERE STATED, IT WAS CONCLUDED THAT THE DOUBT AS TO THE LEGALITY OF VELMA'S CLAIM AS SURVIVING SPOUSE PRECLUDES PAYMENT TO HER. IT HAS BEEN THE LONG-STANDING RULE OF THE COURTS THAT DOUBTFUL CLAIMS AGAINST THE GOVERNMENT SHOULD BE DISALLOWED BY THE ACCOUNTING OFFICERS AND THE CLAIMANTS LEFT TO THEIR REMEDY IN THE COURTS. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288 (1881), AND CHARLES V. UNITED STATES, 19 CT.CL. 316 (1884).

AS TO THE COURT IN WHICH ACTION IN THIS MATTER SHOULD BE BROUGHT, WE WILL ACCEPT THE DETERMINATION OF ANY COURT HAVING ORIGINAL JURISDICTION OF THE SUBJECT MATTER AND IT IS IMMATERIAL WHETHER THAT COURT BE STATE OR FEDERAL.

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