B-170923, JAN 15, 1971

B-170923: Jan 15, 1971

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THE MOTHER'S CLAIM SUBMITTED IN 1953 FOR THE FATHER'S SHARE WAS DISALLOWED BECAUSE THERE WAS NO EVIDENCE THAT HER HUSBAND WAS NOT LIVING AT THE TIME. THE SUBSEQUENT PRESENTATION OF EVIDENCE OF THE FATHER'S DEATH IN 1970 DOES NOT AFFORD ANY BASIS FOR THE PAYMENT OF HIS SHARE TO THE MOTHER BECAUSE HIS CLAIM IS NOW BARRED BY THE 10-YEAR LIMITATION PERIOD IMPOSED BY THE ACT OF OCT. 9. JUDD: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 21. JUDD WAS THE SUBJECT OF A LETTER FROM OUR CLAIMS DIVISION DATED MARCH 25. IN WHICH YOU WERE ADVISED THAT THE ACT OF JUNE 30. WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE AND THE DECEDENT IS NOT SURVIVED BY A WIDOW OR DESCENDANT.

B-170923, JAN 15, 1971

DECEDENTS' ESTATES - COMBAT DUTY PAY - MOTHER'S ENTITLEMENT TO FATHER'S SHARE WHERE THE FATHER OF A DECEASED ARMY MEMBER DIED WITHOUT EVER FILING A CLAIM FOR HIS ONE-HALF SHARE OF THE MEMBER'S COMBAT DUTY PAY, AND THE MOTHER'S CLAIM SUBMITTED IN 1953 FOR THE FATHER'S SHARE WAS DISALLOWED BECAUSE THERE WAS NO EVIDENCE THAT HER HUSBAND WAS NOT LIVING AT THE TIME, THE SUBSEQUENT PRESENTATION OF EVIDENCE OF THE FATHER'S DEATH IN 1970 DOES NOT AFFORD ANY BASIS FOR THE PAYMENT OF HIS SHARE TO THE MOTHER BECAUSE HIS CLAIM IS NOW BARRED BY THE 10-YEAR LIMITATION PERIOD IMPOSED BY THE ACT OF OCT. 9, 1940.

TO MRS. MARY C. JUDD:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 21, 1970, CONCERNING YOUR CLAIM FOR THE ONE-HALF SHARE OF THE COMBAT PAY RESERVED FOR THE FATHER OF YOUR SON, SERGEANT JOHN CONRAD JUDD, RA 27 345 269, WHO DIED ON OCTOBER 19, 1951, THE OTHER ONE-HALF SHARE IN THE AMOUNT OF $104.24 HAVING BEEN ALLOWED YOU BY SETTLEMENT OF OUR CLAIMS DIVISION DATED JUNE 9, 1953.

THE RECORD SHOWS THAT YOUR CLAIM FOR THE ONE-HALF SHARE RESERVED FOR MR. JUDD WAS THE SUBJECT OF A LETTER FROM OUR CLAIMS DIVISION DATED MARCH 25, 1958, IN WHICH YOU WERE ADVISED THAT THE ACT OF JUNE 30, 1906, 34 STAT. 750, AS AMENDED BY THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, GOVERNS THE MANNER IN WHICH CLAIMS FOR AMOUNTS DUE THE ESTATE OF DECEASED MILITARY PERSONNEL SHALL BE SETTLED. THAT ACT EXPRESSLY PROVIDED 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 DESCENDANT, THE ACCOUNTING OFFICERS MAY ALLOW THE AMOUNT FOUND DUE "TO THE FATHER AND MOTHER IN EQUAL PARTS" OR "IF EITHER THE FATHER OR MOTHER BE DEAD, THEN TO THE ONE SURVIVING." ALTHOUGH YOU SAID THAT YOU HAD NOT SEEN NOR HEARD FROM MR. JUDD SINCE 1942, YOU WERE ADVISED THAT IN THE ABSENCE OF A JUDICIAL DETERMINATION OF HIS DEATH OR OTHER SATISFACTORY EVIDENCE THAT HE WAS NO LONGER ALIVE, THERE WAS NO BASIS FOR THE PAYMENT TO YOU OF THE ONE-HALF SHARE RESERVED FOR HIM.

AS A BASIS FOR ALLOWING YOU THAT RESERVED SHARE, YOU NOW SUBMIT A COPY OF A DEATH CERTIFICATE IN WHICH IT IS STATED THAT THE DECEASED MEMBER'S FATHER, JOHN FRANCIS JUDD, DIED ON JUNE 14, 1970, AND YOU CONTEND THAT, IF MR. JUDD DID NOT RECEIVE HIS SHARE, THEN YOU WOULD NOW BE ELIGIBLE TO RECEIVE SAME.

CLAIMS PRESENTED TO THE GENERAL ACCOUNTING OFFICE FOR MILITARY PAY AND ALLOWANCES, INCLUDING THOSE MADE ON BEHALF OF DECEASED MEMBERS UNDER THE BEFORE MENTIONED PROVISIONS OF LAW, ARE SUBJECT TO THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A. THAT ACT PROVIDES IN PERTINENT PART:

"THAT EVERY CLAIM OR DEMAND *** AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE *** SHALL BE FOREVER BARRED UNLESS SUCH CLAIM *** 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 HAD HE FILED A TIMELY CLAIM. THAT CLAIM, AS DID YOUR CLAIM, ACCRUED ON NOVEMBER 2, 1951, WHEN EVIDENCE SUFFICIENT TO ESTABLISH THAT YOUR SON DIED ON OCTOBER 19, 1951, WAS RECEIVED BY THE SECRETARY OF THE ARMY. WE HAVE NO RECORD OF HAVING RECEIVED A CLAIM FROM MR. JUDD PRIOR TO HIS DEATH ON JUNE 14, 1970, OVER 18 YEARS AFTER HIS CLAIM FIRST ACCRUED. SINCE HE DID NOT MAKE A CLAIM WITHIN 10 FULL YEARS AFTER THAT DATE, HIS CLAIM BECAME BARRED FROM CONSIDERATION BY THIS OFFICE BY VIRTUE OF THE 1940 ACT.

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 HIS CLAIM WAS BARRED AT HIS DEATH ON JUNE 14, 1970, YOUR CLAIM FOR HIS SHARE ALSO MUST BE CONSIDERED AS BARRED UNDER THE ACT OF OCTOBER 9, 1940.

ACCORDINGLY, THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM.