B-160128, NOVEMBER 17, 1966, 46 COMP. GEN. 409

B-160128: Nov 17, 1966

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GRATUITIES - SIX MONTHS' DEATH - TIME LIMITATION ON ENTITLEMENT WHERE THE EXACT HOUR OR DATE OF DEATH OF A RETIRED OFFICER OF THE UNIFORMED SERVICES CANNOT BE DETERMINED AND THE OFFICIAL RECORD REFLECTS THE BODY OF THE OFFICER WAS FOUND 121 DAYS AFTER HIS RELEASE FROM ACTIVE DUTY. AS NEITHER THE STATEMENT OF THE DOCTOR SIGNING THE DEATH CERTIFICATE THAT DEATH COULD HAVE OCCURRED ON THE 120TH DAY NOR ANY OTHER DOCUMENT REBUTS THE OFFICIAL RECORD THAT THE DEATH OF THE OFFICER OCCURRED MORE THAN 120 DAYS AFTER RELEASE FROM ACTIVE DUTY. THE MATTER IS TOO DOUBTFUL TO WARRANT PAYMENT OF THE DEATH GRATUITY. 1966: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 5. IS AUTHORIZED TO BE PAID TO THE WIDOW OF COLONEL HUGH E.

B-160128, NOVEMBER 17, 1966, 46 COMP. GEN. 409

GRATUITIES - SIX MONTHS' DEATH - TIME LIMITATION ON ENTITLEMENT WHERE THE EXACT HOUR OR DATE OF DEATH OF A RETIRED OFFICER OF THE UNIFORMED SERVICES CANNOT BE DETERMINED AND THE OFFICIAL RECORD REFLECTS THE BODY OF THE OFFICER WAS FOUND 121 DAYS AFTER HIS RELEASE FROM ACTIVE DUTY, THE DEATH GRATUITY AUTHORIZED BY 10 U.S.C. 1476 (A) TO BE PAID TO THE WIDOW OF AN OFFICER DYING WITHIN A 120-DAY PERIOD AFTER RELEASE FROM ACTIVE DUTY MAY NOT BE PAID, AND AS NEITHER THE STATEMENT OF THE DOCTOR SIGNING THE DEATH CERTIFICATE THAT DEATH COULD HAVE OCCURRED ON THE 120TH DAY NOR ANY OTHER DOCUMENT REBUTS THE OFFICIAL RECORD THAT THE DEATH OF THE OFFICER OCCURRED MORE THAN 120 DAYS AFTER RELEASE FROM ACTIVE DUTY, THE MATTER IS TOO DOUBTFUL TO WARRANT PAYMENT OF THE DEATH GRATUITY.

TO COLONEL H. W. KASSERMAN, DEPARTMENT OF THE ARMY, NOVEMBER 17, 1966:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 5, 1966, REFERENCE FINCS -E JORDAN, HUGH E. 01 041 068 (RETIRED) (DECEASED), REQUESTING AN ADVANCE DECISION AS TO WHETHER A DEATH GRATUITY, AS PROVIDED BY 10 U.S.C. 1476 (A), IS AUTHORIZED TO BE PAID TO THE WIDOW OF COLONEL HUGH E. JORDAN, MRS. MAUDIE MAE JORDAN, DOUBT BEING EXPRESSED AS TO WHETHER COLONEL JORDAN DIED WITHIN THE 120-DAY PERIOD AFTER HIS RELEASE FROM ACTIVE DUTY. YOUR REQUEST WAS FORWARDED TO THIS OFFICE BY THE OFFICE OF THE CHIEF OF FINANCE AND HAS BEEN ALLOCATED D.O. NUMBER 66-169 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

PARAGRAPH (A) OF 10 U.S.C. 1476 PROVIDES AS FOLLOWS:

(A) EXCEPT AS PROVIDED IN SECTION 1480 OF THIS TITLE, THE SECRETARY CONCERNED SHALL HAVE A DEATH GRATUITY PAID TO OR FOR THE SURVIVOR PRESCRIBED IN SECTION 1477 OF THIS TITLE OF EACH PERSON WHO DIES WITHIN 120 DAYS AFTER HIS DISCHARGE OR RELEASE FROM---

(1) ACTIVE DUTY:

THE RECORDS REFLECTS THAT COLONEL JORDAN DIED IN THE CITY OF HIALEAH, DADE COUNTY, FLORIDA, HIS BODY BEING FOUND AT 7:50 A.M. ON AUGUST 29, 1965. SINCE HE WAS RETIRED ON MAY 1, 1965, WITH HIS LAST DAY OF ACTIVE DUTY ON APRIL 30, 1965, THE DATE ON WHICH HIS BODY WAS FOUND WAS 121 DAYS AFTER HIS RELEASE FROM ACTIVE DUTY. A CERTIFICATE OF DEATH SIGNED ON AUGUST 29, 1965, SHOWS THAT DATE AS THE DATE OF DEATH, LISTING THE CAUSE OF DEATH AS MYOCARDIAL FIBROSIS AND CORONARY INSUFFICIENCY DUE TO OCCLUSIVE CORONARY ARTERIOSCLEROSIS. THAT CERTIFICATE IS SIGNED BY ROBERT L. CATHERMAN, M.D; THE ASSISTANT MEDICAL EXAMINER FOR METROPOLITAN DADE COUNTY.

UPON PRESENTATION OF A CLAIM BY MRS. JORDAN FOR DEATH GRATUITY INCIDENT TO COLONEL JORDAN'S DEATH, THE UNITED STATES ARMY FINANCE CENTER DENIED THE CLAIM BY LETTER DATED MARCH 29, 1966, ON THEIR FINDING THAT COLONEL JORDAN DIED 121 DAYS AFTER HIS RELEASE FROM ACTIVE DUTY. AFTER RECEIPT OF THAT LETTER, MRS. JORDAN WROTE TO DR. CATHERMAN, SUGGESTING THE POSSIBILITY THAT COLONEL JORDAN DIED ON AUGUST 28, 1965. DR. CATHERMAN'S REPLY, DATED MAY 11, 1966, NEARLY 9 MONTHS AFTER COLONEL JORDAN DIED, STATES THAT "IT CANNOT BE STATED WITH CERTAINTY THE EXACT HOUR OR DATE" COLONEL JORDAN DIED. THIS POINT WAS FURTHER EMPHASIZED BY DR. CATHERMAN STATING THAT IT COULD NOT BE ESTABLISHED OR PRESUMED THAT THE DEATH OCCURRED ON AUGUST 29, 1965, AND ACCORDING TO THE CIRCUMSTANCES, DEATH COULD HAVE OCCURRED BETWEEN 11 P.M. AND MIDNIGHT ON AUGUST 28, 1965, OR AFTER MIDNIGHT ON AUGUST 29, 1965.

THE ISSUE TO BE RESOLVED IN THIS CASE IS, WHETHER THE EVIDENCE PRESENTED IS SUFFICIENT TO ESTABLISH THAT COLONEL JORDAN DIED WITHIN 120 DAYS OF HIS RELEASE FROM ACTIVE DUTY.

THE OFFICIAL CERTIFICATE RECORDING COLONEL JORDAN'S DEATH LISTS THE DATE OF DEATH AS AUGUST 29, 1965. IN THIS REGARD, SECTION 382.35 (6) OF THE FLORIDA STATUTES, 1965 ED; PROVIDES:

ANY COPY OF ANY RECORD REGISTERED UNDER THE PROVISIONS OF THIS ACT (BUREAU OF VITAL STATISTICS) OR ANY PART THEREOF WHEN PROPERLY CERTIFIED BY THE STATE REGISTRAR SHALL BE PRIMA FACIE EVIDENCE IN ALL COURTS AND CASES OF THE FACTS THEREIN STATED.

NEITHER THE LETTER OF DR. CATHERMAN NOR ANY OTHER DOCUMENT SUBMITTED TO THIS OFFICE APPEARS TO PROVIDE EVIDENCE THAT WOULD CLEARLY REBUT THIS OFFICIAL RECORD. APPARENTLY NO INVESTIGATION OR EXAMINATION WAS MADE AT OR ABOUT THE TIME THE OFFICER DIED TO FIX THE EXACT TIME OF HIS DEATH. DR. CATHERMAN'S LETTER STATES ONLY THE PERIOD OF TIME WITHIN WHICH COLONEL JORDAN COULD HAVE DIED AND ALTHOUGH IT REFLECTS THAT THERE IS NO CERTAINTY THAT HE DIED ON AUGUST 29, 1965, IT CANNOT BE ACCEPTED AS EVIDENCE THAT HE ACTUALLY DID NOT DIE ON THAT DATE.

IT IS OUR VIEW THAT ON THE BASIS OF THE PRESENT RECORD, THE MATTER ADMITS OF TOO MUCH DOUBT TO WARRANT PAYMENT OF THE DEATH GRATUITY. SEE LONGWILL V. UNITED STATES, 17 CT. CL. 288, 291 (1881) AND CHARLES V. UNITED STATES, 19 ID. 316, 319 (1884).

ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE NEGATIVE AND THE VOUCHER IN FAVOR OF MRS. JORDAN IS RETAINED IN THIS OFFICE.