B-173649, AUG 31, 1971

B-173649, AUG 31, 1971

MILITARY PERSONNEL - RETIRED PAY - MISSING PERSONS DECISION DISALLOWING CLAIM FOR RETIRED PAY ALLEGED TO BE DUE OLIVER E. GREEN, USN, RETIRED, WHO HAS NOT BEEN HEARD FROM SINCE SEPTEMBER 9, 1962, AND WHO WAS DECLARED DEAD BY ORDER OF THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH ON MARCH 10, 1971. BECAUSE THE MEMBER WAS DECLARED DEAD PURSUANT TO A VIRGINIA CODE PROVISION, WHICH RAISES NO PRESUMPTION AS TO THE TIME OF DEATH, THE MATTER ADMITS OF TOO MUCH DOUBT FOR THE COMP. GEN. TO AUTHORIZE PAYMENT OF THE CLAIM FOR RETIRED PAY FROM THE DATE OF THE MEMBER'S DISAPPEARANCE TO THE END OF THE 7-YEAR PERIOD OF CONTINUED AND UNEXPLAINED ABSENCE. THE CLAIM MUST THEREFORE BE DISALLOWED.

TO MRS. FRANCES COLBY GREEN:

THIS REFERS TO YOUR CLAIM FOR RETIRED PAY ALLEGED TO BE DUE YOUR HUSBAND, OLIVER E. GREEN, BM1, USN, RETIRED, WHO WAS DECLARED DEAD BY ORDER OF CIRCUIT COURT OF THE CITY OF PORTSMOUTH DATED MARCH 10, 1971.

THE RECORD SHOWS THAT MR. GREEN WAS TRANSFERRED TO THE FLEET RESERVE EFFECTIVE SEPTEMBER 5, 1962, WITH 21 YEARS, 4 MONTHS AND 1 DAY'S SERVICE FOR TRANSFER. HE LEFT THE VICINITY OF PORTSMOUTH ON OR ABOUT SEPTEMBER 9, 1962, AND HAS NOT BEEN HEARD FROM SINCE. THE COURT DECREED THAT HE IS DEAD, THAT HIS ESTATE MAY BE DISTRIBUTED AND THAT ROLAND W. DODSON BE ADMINISTRATOR OF HIS ESTATE. HOWEVER, THE DECREE DID NOT EXPRESSLY DETERMINE THE DATE OF HIS DEATH.

IN THE CASE OF ACOSTA V UNITED STATES, 162 CT. CL. 631 (1963), THE COURT OF CLAIMS HELD, UNDER THE FACTS AND CIRCUMSTANCES OF THAT CASE, THAT THE ADMINISTRATRIX WAS ENTITLED TO RECOVER RETIRED PAY FROM THE DATE OF HER HUSBAND'S DISAPPEARANCE TO THE END OF THE 7-YEAR PERIOD OF CONTINUED AND UNEXPLAINED ABSENCE. HOWEVER, IN OUR DECISION, 43 COMP. GEN. 503 (1964), COPY HEREWITH, WE DECIDED THAT WE WOULD NOT FOLLOW THE HOLDING IN THE ACOSTA CASE AS A PRECEDENT AND SAID THAT FUTURE CLAIMS FOR RETIRED PAY INVOLVING MISSING RETIRED MILITARY MEMBERS JUDICIALLY DECLARED DEAD SHOULD BE REFERRED TO THE GENERAL ACCOUNTING OFFICE FOR DIRECT SETTLEMENT.

THE ORDER OF THE COURT DECLARING OLIVER EDWIN GREEN TO BE LEGALLY DEAD WAS ENTERED PURSUANT TO SECTION 105 OF TITLE 64.1 OF THE CODE OF VIRGINIA, UNDER THE PROVISIONS OF WHICH ANY RESIDENT OF VIRGINIA WHO ABSENTS HIMSELF THEREFROM FOR SEVEN YEARS AND BE NOT HEARD FROM SHALL BE PRESUMED TO BE DEAD UNLESS PROOF BE MADE THAT HE WAS ALIVE WITHIN THAT TIME. CONSTRUED BY THE VIRGINIA SUPREME COURT OF APPEALS, THAT STATUTE RAISES NO PRESUMPTION AS TO THE TIME OF DEATH: WHERE A CLAIM RESTS UPON DEATH HAVING OCCURRED AT A PARTICULAR TIME, THE DATE OF DEATH MUST BE AFFIRMATIVELY ESTABLISHED BY COMPETENT EVIDENCE. SEE EVANS V STEWART, 81 VA. 724 (1886).

THE COURT'S ORDER IN THIS CASE, THEREFORE, DID NOT AND APPARENTLY COULD NOT FIX A DATE OF DEATH. IN THE ABSENCE OF COMPETENT EVIDENCE ESTABLISHING THE DATE OF DEATH, THE MATTER ADMITS OF TOO MUCH DOUBT FOR THIS OFFICE TO AUTHORIZE PAYMENT OF YOUR CLAIM, SINCE THERE IS NO BASIS UPON WHICH THE AMOUNT DUE MAY BE DETERMINED.

WHEN A CASE ARISES WITH RESPECT TO WHICH THERE IS NO CONTROLLING JUDICIAL PRECEDENT AND AS TO WHICH SUBSTANTIAL DOUBT EXISTS AS TO THE ACTION A COURT OF COMPETENT JURISDICTION MIGHT TAKE, IT IS REGARDED AS THE DUTY OF THE ACCOUNTING OFFICERS TO DENY THE CLAIM AND LEAVE THE CLAIMANT TO HIS REMEDY IN THE COURTS. SEE LONGWILL V UNITED STATES, 17 CT. CL. 288, 291 (1882) AND CHARLES V UNITED STATES, 19 CT. CL. 316, 319 (1884).

ACCORDINGLY, ON THE PRESENT RECORD YOUR CLAIM MUST BE AND IS DISALLOWED.