B-169325, APR. 3, 1970

B-169325: Apr 3, 1970

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

1950 WAS ESTABLISHED ON FEB. 3. IS NOT ENTITLED TO FATHER'S SHARE OF MILITARY PAY AND ALLOWANCES SINCE UNDER SEC. 4 OF ACT OF FEB. 25. AFTER HIS CLAIM WAS BARRED IN 1961. MOTHER'S CLAIM FOR FATHER'S SHARE WAS LIKEWISE BARRED. OREN BOWERS REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 9. YOUR LETTER WAS REFERRED TO THIS OFFICE FOR CONSIDERATION. THE RECORD SHOWS THAT YOUR SON WAS HELD BY THE DEPARTMENT OF THE ARMY TO HAVE BEEN IN A MISSING IN ACTION STATUS FROM JULY 25. UNTIL SUCH ABSENCE WAS TERMINATED ON FEBRUARY 3. WAS RECEIVED BY THE SECRETARY OF THE ARMY. THE ACCOUNTING OFFICERS OF THE GOVERNMENT WERE AUTHORIZED TO PAY THE AMOUNT FOUND DUE A DECEASED SOLDIER. IF THERE WAS NO LEGAL REPRESENTATIVE OF THE ESTATE.

B-169325, APR. 3, 1970

DECEDENTS' ESTATES--PAY, ETC; DUE MILITARY PERSONNEL--MOTHER'S ENTITLEMENT TO FATHER'S SHARE MOTHER OF MISSING MEMBER, WHOSE DEATH ON JULY 25, 1950 WAS ESTABLISHED ON FEB. 3, 1951, IS NOT ENTITLED TO FATHER'S SHARE OF MILITARY PAY AND ALLOWANCES SINCE UNDER SEC. 4 OF ACT OF FEB. 25, 1946, 60 STAT. 30, ONLY ONE-HALF OF AMOUNT DUE DECEASED MEMBER CAN BE PAID TO MOTHER WHERE FATHER SURVIVES, NOTWITHSTANDING FACT OF ABANDONMENT OF FAMILY BY FATHER BEFORE MEMBER'S DEATH. SINCE FATHER DIED IN 1968, AFTER HIS CLAIM WAS BARRED IN 1961, MOTHER'S CLAIM FOR FATHER'S SHARE WAS LIKEWISE BARRED.

TO MRS. OREN BOWERS

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 9, 1970, TO THE HONORABLE RICHARD B. RUSSELL, UNITED STATES SENATE, CONCERNING YOUR CLAIM FOR THE ONE-HALF SHARE OF THE MILITARY PAY AND ALLOWANCES RESERVED FOR THE FATHER OF YOUR SON, CORPORAL MELVIN RAY BELL, U.S. ARMY, WHO DIED ON JULY 25, 1950. YOUR LETTER WAS REFERRED TO THIS OFFICE FOR CONSIDERATION.

THE RECORD SHOWS THAT YOUR SON WAS HELD BY THE DEPARTMENT OF THE ARMY TO HAVE BEEN IN A MISSING IN ACTION STATUS FROM JULY 25, 1950, UNTIL SUCH ABSENCE WAS TERMINATED ON FEBRUARY 3, 1951, WHEN EVIDENCE CONSIDERED SUFFICIENT TO ESTABLISH THE FACT OF DEATH ON JULY 25, 1950, WAS RECEIVED BY THE SECRETARY OF THE ARMY. YOU FILED CLAIM AS MOTHER FOR THE MILITARY PAY AND ALLOWANCES DUE YOUR SON AND ALLEGED THAT HIS FATHER HAD ABANDONED HIS FAMILY BEFORE CORPORAL BELL'S BIRTH.

UNDER THE PROVISIONS OF SECTION 4 OF THE ACT OF FEBRUARY 25, 1946, CH. 35, 60 STAT. 30, THE ACCOUNTING OFFICERS OF THE GOVERNMENT WERE AUTHORIZED TO PAY THE AMOUNT FOUND DUE A DECEASED SOLDIER, IF THERE WAS NO LEGAL REPRESENTATIVE OF THE ESTATE, NO WIDOW AND NO CHILD, TO THE FATHER AND MOTHER IN EQUAL PARTS. WHILE THE LAW HAD PROVIDED PRIOR TO FEBRUARY 25, 1946, THAT THE TOTAL AMOUNT DUE THE ESTATE OF A DECEASED SOLDIER COULD BE PAID TO THE MOTHER WHERE HE IS NOT SURVIVED BY A WIDOW OR CHILD AND THE FATHER HAD ABANDONED THE SUPPORT OF HIS FAMILY, THAT PROVISION OF LAW WAS REPEALED EFFECTIVE FEBRUARY 25, 1946. HENCE, ON AND AFTER FEBRUARY 25, 1946, ONLY ONE-HALF OF THE AMOUNT DUE COULD BE PAID TO THE MOTHER WHERE THE FATHER SURVIVED. SINCE YOUR SON'S FATHER DID NOT DIE UNTIL DECEMBER 10, 1968, THERE WAS NO BASIS FOR PAYING YOU THE REMAINING ONE-HALF SHARE PRIOR TO THAT DATE.

THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, PROVIDES THAT EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE---

"* * * SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED. * * *"

UNDER THE 1946 ACT CITED ABOVE, YOUR SON'S FATHER WOULD HAVE BEEN ENTITLED TO THE REMAINING ONE-HALF OF THE AMOUNT DUE YOUR SON IF HE HAD FILED A TIMELY CLAIM. HOWEVER, THE FATHER'S CLAIM FIRST ACCRUED ON FEBRUARY 3, 1951, WHEN EVIDENCE SUFFICIENT TO ESTABLISH THE SON'S DEATH WAS RECEIVED BY THE SECRETARY OF THE ARMY AND, SINCE HE DID NOT FILE CLAIM WITHIN 10 YEARS AFTER THAT DATE, HIS CLAIM BECAME BARRED.

YOUR CLAIM FOR THE FATHER'S SHARE COULD ACCRUE ONLY UPON HIS DEATH SINCE YOU HAD NO RIGHT TO HIS SHARE WHILE HE REMAINED ALIVE. SINCE AT HIS DEATH HIS CLAIM WAS BARRED, YOUR CLAIM FOR HIS SHARE ALSO MUST BE CONSIDERED AS BARRED UNDER THE ACT OF OCTOBER 9, 1940.

ACCORDINGLY, WE MAY NOT CONSIDER YOUR CLAIM AND HENCE PAYMENT THEREOF MUST BE DENIED.