B-168978, FEB. 25, 1970

B-168978: Feb 25, 1970

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MOTHER OF DECEASED SERVICEMAN MAY NOT BE PAID FATHER'S SHARE OF DEATH GRATUITY WHERE THERE IS NO SHOWING THAT FATHER IS DEAD. MABLE SMITH: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 7. WHO IS PRESUMED TO HAVE DIED ON AUGUST 2. THE DETERMINATION OF YOUR SON'S DEATH WAS MADE IN APRIL 1955. YOUR CLAIM FOR THE AMOUNTS DUE INCIDENT TO HIS DEATH WAS RECEIVED IN THIS OFFICE ON JANUARY 16. IN WHICH YOU STATED THAT TO YOUR KNOWLEDGE THE FATHER OF YOUR SON IS NOT DECEASED. YOU WERE ALLOWED $590.63 CONSISTING OF $300 AS SIX-MONTHS' DEATH GRATUITY PAYABLE TO YOU AS DESIGNATED BENEFICIARY. THE SETTLEMENT ADVISED YOU THAT THE REMAINING ONE-HALF SHARE OF HIS PAY WAS HELD IN RESERVE PENDING RECEIPT OF A CLAIM FROM LOYD ROLAND.

B-168978, FEB. 25, 1970

MILITARY--DEATH GRATUITY--FATHER'S SHARE DECISION DISALLOWING CLAIM FOR SHARE OF PAY RESERVED FOR FATHER OF DECEASED SERVICEMAN. MOTHER OF DECEASED SERVICEMAN MAY NOT BE PAID FATHER'S SHARE OF DEATH GRATUITY WHERE THERE IS NO SHOWING THAT FATHER IS DEAD. FACT THAT FATHER DID NOT SUPPORT SERVICEMAN DOES NOT AFFECT DISTRIBUTION REQUIRED BY STATUTE, 10 U.S.C. 868 (1952 ED.).

TO MRS. MABLE SMITH:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 7, 1970, RELATIVE TO YOUR CLAIM FOR THE SHARE OF PAY RESERVED FOR THE FATHER IN THE CASE OF YOUR SON, THE LATE PRIVATE EARNEST ROLAND, WHO IS PRESUMED TO HAVE DIED ON AUGUST 2, 1943.

THE DETERMINATION OF YOUR SON'S DEATH WAS MADE IN APRIL 1955, AND YOUR CLAIM FOR THE AMOUNTS DUE INCIDENT TO HIS DEATH WAS RECEIVED IN THIS OFFICE ON JANUARY 16, 1956. IN SUPPORT OF YOUR CLAIM YOU FURNISHED AN AFFIDAVIT DATED SEPTEMBER 22, 1955, IN WHICH YOU STATED THAT TO YOUR KNOWLEDGE THE FATHER OF YOUR SON IS NOT DECEASED. YOU EXPLAINED THAT YOU AND THE FATHER HAD SEPARATED EITHER IN THE LATTER PART OF 1919 OR EARLY 1920, THAT HE DID NOT SUPPORT YOU OR THE CHILDREN THEREAFTER, THAT YOU UNDERSTOOD HE HAD REMARRIED AND THAT YOU TOO HAD REMARRIED.

BY SETTLEMENT DATED SEPTEMBER 19, 1956, YOU WERE ALLOWED $590.63 CONSISTING OF $300 AS SIX-MONTHS' DEATH GRATUITY PAYABLE TO YOU AS DESIGNATED BENEFICIARY, AND $290.63 AS ONE-HALF, OR THE MOTHER'S SHARE, OF THE ARREARS OF PAY DUE YOUR SON. THE SETTLEMENT ADVISED YOU THAT THE REMAINING ONE-HALF SHARE OF HIS PAY WAS HELD IN RESERVE PENDING RECEIPT OF A CLAIM FROM LOYD ROLAND, FATHER OF THE DECEASED SERVICEMAN.

SUBSEQUENTLY, BY LETTER OF MAY 5, 1958, ADDRESSED TO THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, YOU REQUESTED ADVICE WHETHER THE SHARE HELD FOR THE FATHER COULD BE PAID TO YOU, SAYING THAT YOU HAD NO KNOWLEDGE WHETHER LOYD ROLAND IS STILL LIVING. THAT LETTER WAS RECEIVED IN THIS OFFICE ON MAY 26, 1958. IN REPLY, YOU WERE ADVISED BY OFFICE LETTER OF JUNE 6, 1958, THAT THE FATHER'S SHARE OF THE PAY DUE IN YOUR SON'S CASE COULD NOT BE PAID TO YOU AS LONG AS THE FATHER IS LIVING, AND THAT OUR RECORDS DO NOT SHOW HE IS DEAD. IN YOUR PRESENT LETTER YOU SAY THE FATHER DOES NOT DESERVE HIS SHARE SINCE HE LEFT YOU WHEN THE BOY WAS ONLY FOUR MONTHS OLD AND NEVER SUPPORTED HIM.

THE SETTLEMENT OF YOUR SON'S PAY ACCOUNT (ARREARS OF PAY) IS GOVERNED BY THE ACT OF JUNE 30, 1906, AS AMENDED BY SECTION 4 OF THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, 10 U.S.C. 868 (1952 ED.). SECTION 4 OF THE LATTER ACT, PROVIDES THAT WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, AND THE DECEDENT IS NOT SURVIVED BY A WIDOW OR DESCENDANTS, THE ACCOUNTING OFFICERS MAY ALLOW THE AMOUNT FOUND DUE "TO THE FATHER AND MOTHER IN EQUAL PARTS," WHERE BOTH SURVIVE.

THE DISTRIBUTION TO THE FATHER AND MOTHER IN EQUAL PARTS, AS EXPRESSLY AUTHORIZED, IS PREDICATED SOLELY UPON THEIR BLOOD RELATIONSHIP TO THE DECEDENT. THE CITED ACT MAKES NO PROVISION FOR THE PAYMENT OF THE FULL AMOUNT TO THE MOTHER, EVEN IF THE FATHER HAD ABANDONED THE SUPPORT OF THE FAMILY, BUT PERMITS PAYMENT OF THE ENTIRE AMOUNT TO THE MOTHER ONLY IN THOSE CASES WHERE THE FATHER IS DEAD. THE CONGRESS HAVING EXPRESSLY SO PROVIDED, THIS OFFICE HAS NO WEEK IS DIVIDED INTO SEVEN DAYS OF EQUAL LENGTH; EACH DAY OF THE WEEK EMBRACING 24 HOURS. THAT PART OF TIME OCCURRING IMMEDIATELY AFTER MIDNIGHT AT THE END OF SATURDAY IS NO LONGER A PART OF SATURDAY, BUT SATURDAY AND 12 O'CLOCK MIDNIGHT AT THE BEGINNING OF MONDAY. OUR DISCRETION IN THE MATTER AND MAY NOT ALLOW MORE THAN ONE-HALF OF THE AMOUNT DUE TO ONE PARENT WHILE THE OTHER PARENT IS ALIVE.

THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, PROVIDES THAT EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE IS FOREVER BARRED UNLESS IT IS RECEIVED IN THIS OFFICE WITH 10 FULL YEARS AFTER THE CLAIM FIRST ACCRUED, IN THIS CASE APRIL 1955. YOUR CLAIM FOR THE PAY DUE IN THE CASE ACCRUED AT THAT TIME AND SINCE YOU HAD NO RIGHT TO THE FATHER'S SHARE AS LONG AS HE REMAINED ALIVE, YOUR CLAIM FOR HIS SHARE MAY NOT LEGALLY BE CONSIDERED BY THIS OFFICE UNLESS IT CAN BE ESTABLISHED THAT HE DIED PRIOR TO MAY 26, 1958, THE DATE WE RECEIVED YOUR LETTER OF MAY 5, 1958, TO THE FINANCE CENTER, U. S. ARMY. OUR RECORDS DO NOT SHOW THAT HE IS DEAD.

CONSEQUENTLY, WHILE APPRECIATING YOUR FEELINGS IN THE MATTER, WE TRUST YOU WILL UNDERSTAND THAT ON THE PRESENT RECORD YOUR CLAIM FOR THE BALANCE OF THE PAY DUE MAY NOT RECEIVE FAVORABLE CONSIDERATION.