B-176008, SEP 18, 1972

B-176008, SEP 18, 1972

MILITARY PERSONNEL - LIABILITY FOR RETAINER PAY DECISION SUSTAINING DISALLOWANCE OF THE CLAIM OF EDITH HEIN FOR ARREARS OF RETAINER PAY ALLEGEDLY DUE HER FORMER HUSBAND, WILLIAM ROGER TEAGUE, USN. WHERE DEATH IS PRESUMED FROM UNEXPLAINED ABSENCE LONG CONTINUED, THE BURDEN OF PROOF AS TO ACTUAL TIME OF DEATH IS ON THE CLAIMANT AND IS DETERMINED FROM THE CIRCUMSTANCES OF EACH PARTICULAR CASE. DAVIE V. BRIGGS, 97 U.S. 628 (1878). A COURT DECREE BASED ON PRESUMPTIVE EVIDENCE DOES NOT BIND THE UNITED STATES IN AN EX PARTE PROCEEDING TO WHICH IT WAS NOT A PARTY. PRIVETT V. UNITED STATES, 256 U.S. 201 (1921). IN THE ABSENCE OF PROOF THAT MR. TEAGUE WAS ACTUALLY ALIVE AFTER HIS DISAPPEARANCE, THERE IS NO BASIS FOR THIS CLAIM.

TO MRS. EDITH HEIN:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 25, 1972, IN EFFECT REQUESTING RECONSIDERATION OF OUR CLAIMS DIVISION SETTLEMENT DATED NOVEMBER 19, 1971, DISALLOWING YOUR CLAIM FOR ARREARS OF RETAINER PAY ALLEGED TO BE DUE YOUR FORMER HUSBAND, WILLIAM ROGER TEAGUE, UNITED STATES NAVY, SUBSEQUENT TO HIS DISAPPEARANCE ON AUGUST 1, 1964.

THE RECORD SHOWS THAT MR. TEAGUE WAS TRANSFERRED TO THE FLEET RESERVE EFFECTIVE JUNE 8, 1964, AND RECEIVED RETAINER PAY FOR THE PERIOD JUNE 9, 1964 THROUGH JULY 31, 1964. MR. TEAGUE'S RETAINER PAY ACCOUNT WAS SUSPENDED BY THE DEPARTMENT OF THE NAVY EFFECTIVE AUGUST 1, 1964 BECAUSE HIS WHEREABOUTS WERE UNKNOWN, AND HE APPARENTLY HAS NOT BEEN HEARD FROM SINCE THAT TIME.

IN SUPPORT OF YOUR CLAIM FOR ARREARS OF RETAINER PAY INCIDENT TO THE DISAPPEARANCE OF YOUR FORMER HUSBAND, YOU SUBMITTED A COPY OF AN "ORDER ESTABLISHING FACT OF DEATH," ISSUED ON AUGUST 18, 1971, IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF SAN DIEGO, DECLARING "THAT ON THE 4TH DAY OF AUG. A.D., 1971, THE DEATH OF WILLIAM ROGER TEAGUE OCCURRED, AT SAN DIEGO IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA." THE COURT'S ORDER APPEARS TO HAVE BEEN BASED ON THE PROVISION CONTAINED IN DEERING'S CALIFORNIA CODES ANNOTATED, EVIDENCE CODE, SECTION 667, WHICH STATES THAT "A PERSON NOT HEARD FROM IN SEVEN YEARS IS PRESUMED TO BE DEAD." YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION FOR THE REASON THAT THERE WAS NO EVIDENCE THAT YOUR FORMER HUSBAND LIVED FOR ANY PERIOD SUBSEQUENT TO AUGUST 1, 1964, AND THE COURT DECREE SUBMITTED WAS NOT EVIDENCE THAT HE LIVED FOR SEVEN YEARS, OR FOR ANY TIME AFTER HIS DISAPPEARANCE.

IN YOUR CURRENT LETTER YOU ASK WHY THE INFORMATION YOU SUBMITTED FAILED TO MEET THE EVIDENCE REQUIREMENT FOR ALLOWANCE OF YOUR CLAIM. YOU ALSO ASK FOR THE LEGAL AUTHORITY FOR HOLDING THE PRESUMPTIVE DECREE OF DEATH TO BE INSUFFICIENT FOR ALLOWANCE OF YOUR CLAIM. YOU EXPRESS THE BELIEF THAT THE COURT ORDER DECLARING WILLIAM ROGER TEAGUE DEAD AS OF AUGUST 4, 1971 (AFTER A 7-YEAR DISAPPEARANCE), SHOULD SERVE AS A BASIS FOR ALLOWING YOUR CLAIM.

IT SHOULD BE NOTED THAT GENERALLY A JUDICIAL DECREE OF DEATH AT OR AFTER A FIXED TIME BASED UPON PRESUMPTIVE EVIDENCE IS NOT CONCLUSIVE UPON AN ALLEGED DECEDENT WHO WAS IN FACT ALIVE. SEE SCOTT V. MCNEAL, 154 U.S. 34 (1894). SUCH A DECREE IS NO EVIDENCE THAT SUCH PERSON LIVED FOR ANY FIXED LENGTH OF TIME AFTER HIS DISAPPEARANCE. ON THE CONTRARY, LOGICAL DEDUCTION FROM SUCH EVIDENCE LEADS TO THE CONCLUSION THAT LIFE ENDED AT OR IMMEDIATELY AFTER UNEXPLAINED DISAPPEARANCE UNDER ORDINARY CIRCUMSTANCES. WHERE DEATH IS PRESUMED FROM UNEXPLAINED ABSENCE LONG CONTINUED, THE GENERAL RULE IS THAT THERE IS NO PRESUMPTION AS TO THE TIME OF DEATH, WHICH MUST BE DETERMINED FROM THE FACTS AND CIRCUMSTANCES OF EACH PARTICULAR CASE. THE TIME OF DEATH IN SUCH CASES MUST BE ESTABLISHED BY COMPETENT EVIDENCE, AND THE BURDEN OF PROOF IS UPON THE PARTY ASSERTING A CLAIM OF DEATH AT ANY PARTICULAR TIME. SEE DAVIE V. BRIGGS, 97 U.S. 628 (1878), AND AUTHORITIES CITED THEREIN.

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 SAID WE WOULD NOT FOLLOW THE ACOSTA CASE AS A GENERAL PRECEDENT AND THAT PAYMENT OF PAY IN THE CASE OF MISSING RETIRED MILITARY MEMBERS FOR A PERIOD OF 7 YEARS AFTER THE MEMBER'S ABSENCE BEGAN WOULD NOT BE WARRANTED.

WHILE THE COURT DECREE SUBMITTED IN SUPPORT OF YOUR CLAIM DECLARED THAT THE DEATH OF WILLIAM ROGER TEAGUE OCCURRED AS OF AUGUST 4, 1971, THERE IS NOTHING TO INDICATE THAT SUCH DETERMINATION WAS BASED ON EVIDENCE THAT THE MEMBER'S DEATH ACTUALLY OCCURRED ON THAT DATE. THE UNITED STATES IS NOT NECESSARILY BOUND BY A COURT DECREE ENTERED ON THE BASIS OF PRESUMPTIVE EVIDENCE, OR AS A PRESUMPTION OF LAW, IN AN EX PARTE PROCEEDING OR ACTION TO WHICH THE UNITED STATES IS NOT A PARTY. SEE PRIVETT V. UNITED STATES, 256 U.S. 201 (1921); UNITED STATES V. CANDELARIA, 271 U.S. 432 (1926).

IN THE ABSENCE OF PROOF THAT WILLIAM ROGER TEAGUE WAS ALIVE AFTER AUGUST 1, 1964, THERE IS NO BASIS FOR CHARGING APPROPRIATED FUNDS WITH HIS RETAINER PAY AFTER THAT DATE. 14 COMP. GEN. 411 (1934). ACCORDINGLY, SINCE NO AFFIRMATIVE EVIDENCE OF CONTINUANCE OF LIFE AFTER THAT DATE HAS BEEN SUBMITTED, THE SETTLEMENT OF NOVEMBER 19, 1971, DISALLOWING YOUR CLAIM IS SUSTAINED.