B-167431, AUG. 4, 1969

B-167431: Aug 4, 1969

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MILITARY - SIX MONTHS' DEATH GRATUITY - ILLEGITIMATE CHILD DECISION TO MARINE CORPS DISBURSING OFFICER HOLDING THAT ON BASIS OF RECORD EVIDENCE IS INSUFFICIENT TO JUSTIFY PAYMENT OF THE SIX MONTHS' DEATH GRATUITY ON BEHALF OF ILLEGITIMATE CHILD OF DECEASED ENLISTED MEMBER OF MARINE CORPS. THOMAS: THIS IS IN REFERENCE TO YOUR LETTER OF APRIL 9. IS SURVIVED BY AN ELIGIBLE CHILD WITHIN THE MEANING OF 10 U.S.C. 1477. IT SUBSEQUENTLY WAS LEARNED BY THE MARINE CORPS THAT HE MAY HAVE BEEN SURVIVED BY AN ILLEGITIMATE CHILD. THE PARENTS WERE REQUESTED TO AND DID REFUND TO THE UNITED STATES THE AMOUNTS THEY HAD RECEIVED. PROVIDES IN SUBSTANCE THAT A MALE DECEASED SERVICE MEMBER'S ILLEGITIMATE CHILD IS AN ELIGIBLE PERSON TO RECEIVE PAYMENT OF THE DEATH GRATUITY IF THERE IS NO SURVIVING SPOUSE AND IF (1) THE CHILD HAD BEEN ACKNOWLEDGED IN WRITING BY HIM.

B-167431, AUG. 4, 1969

MILITARY - SIX MONTHS' DEATH GRATUITY - ILLEGITIMATE CHILD DECISION TO MARINE CORPS DISBURSING OFFICER HOLDING THAT ON BASIS OF RECORD EVIDENCE IS INSUFFICIENT TO JUSTIFY PAYMENT OF THE SIX MONTHS' DEATH GRATUITY ON BEHALF OF ILLEGITIMATE CHILD OF DECEASED ENLISTED MEMBER OF MARINE CORPS.

TO MAJOR DONALD J. THOMAS:

THIS IS IN REFERENCE TO YOUR LETTER OF APRIL 9, 1969 (FILE REFERENCE CGM: JEL 7240.1), SUBMITTING FOR OUR DETERMINATION THE QUESTION WHETHER LANCE CORPORAL REGINALD A. JORDAN, USMC, WHO DIED ON SEPTEMBER 6, 1967, IS SURVIVED BY AN ELIGIBLE CHILD WITHIN THE MEANING OF 10 U.S.C. 1477, FOR PURPOSES OF PAYMENT OF THE SIX MONTHS' DEATH GRATUITY.

THE RECORDS SHOW THAT THE DECEDENT DESIGNATED HIS MOTHER AND FATHER TO RECEIVE EQUAL SHARES OF THE DEATH GRATUITY. BASED ON THIS DESIGNATION THE MARINE CORPS PAID THE PARENTS THE GRATUITY. HOWEVER, IT SUBSEQUENTLY WAS LEARNED BY THE MARINE CORPS THAT HE MAY HAVE BEEN SURVIVED BY AN ILLEGITIMATE CHILD. THEREFORE, THE PARENTS WERE REQUESTED TO AND DID REFUND TO THE UNITED STATES THE AMOUNTS THEY HAD RECEIVED.

THE GRATUITY STATUTE, 10 U.S.C. 1477 (B) (5), PROVIDES IN SUBSTANCE THAT A MALE DECEASED SERVICE MEMBER'S ILLEGITIMATE CHILD IS AN ELIGIBLE PERSON TO RECEIVE PAYMENT OF THE DEATH GRATUITY IF THERE IS NO SURVIVING SPOUSE AND IF (1) THE CHILD HAD BEEN ACKNOWLEDGED IN WRITING BY HIM; (2) THE CHILD HAD BEEN JUDICIALLY DETERMINED TO BE HIS PRIOR TO HIS DEATH; (3) THE CHILD IS PROVED BY EVIDENCE SATISFACTORY TO THE ADMINISTRATOR OF VETERANS' AFFAIRS TO BE HIS CHILD; OR (4) THE DECEASED SERVICE MEMBER HAD BEEN JUDICIALLY ORDERED TO CONTRIBUTE TO THE CHILD'S SUPPORT.

WE ARE OF THE OPINION THAT THE EVIDENCE BEFORE US NOW IS INSUFFICIENT TO JUSTIFY PAYMENT OF THE SIX MONTHS' DEATH GRATUITY TO OR ON BEHALF OF THE ILLEGITIMATE CHILD. THE RECORDS DO NOT INDICATE THAT THERE HAS BEEN ANY JUDICIAL DETERMINATION IN THIS MATTER, OR ANY ACKNOWLEDGMENT OF THE CHILD BY THE DECEASED. WHILE HE ADMITTED IN WRITING AN ACT OF INTIMACY WITH THE CHILD'S MOTHER, THE DECEASED EXPRESSED DOUBT THAT THE CHILD WAS HIS SINCE HE SAID THAT THERE WERE OTHERS WHO HAD HAD SEXUAL INTERCOURSE WITH HER AT ABOUT THE TIME INVOLVED. ALSO, IT APPEARS THAT SHE HAS FAILED FOR ALMOST 2 YEARS TO SUBMIT EVIDENCE REQUESTED BY THE VETERANS ADMINISTRATION IN SUPPORT OF HER CLAIM FOR VA BENEFITS FOR THE CHILD AS THE CHILD OF THE DECEASED. AS A CONSEQUENCE, NO DETERMINATION HAS BEEN MADE AS TO THE MATTER OF PATERNITY IN THIS CASE BY THAT AGENCY.

IN THE CIRCUMSTANCES, IT IS OUR VIEW THAT THERE IS NO LEGAL BASIS FOR PAYMENT OF THE DEATH GRATUITY AT THIS TIME. IT IS WELL ESTABLISHED THAT THE ACCOUNTING OFFICERS OF THE GOVERNMENT SHOULD NOT ALLOW A CLAIM AGAINST THE UNITED STATES IF THERE IS A SUBSTANTIAL BASIS FOR DOUBT THAT A COURT OF COMPETENT JURISDICTION WOULD ALLOW THE CLAIM. SEE LONGWILL V UNITED STATES, 17 CT. CL. 288 (1881) AND CHARLES V UNITED STATES, 19 CT. CL. 316 (1884). SINCE IT APPEARS THAT THE VETERANS ADMINISTRATION WILL CONTINUE TO CONSIDER ANY FURTHER INFORMATION THE CHILD'S MOTHER MAY WISH TO FURNISH IN THIS MATTER, PAYMENT OF THE SIX MONTHS' DEATH GRATUITY SHOULD BE HELD IN ABEYANCE PENDING FURTHER ACTION ON HER PART BY EITHER FURNISHING THE REQUESTED INFORMATION OR BY FORMALLY ABANDONING HER CLAIM OR ACTION BY A COURT OF COMPETENT JURISDICTION.

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