B-28781, SEPTEMBER 25, 1942, 22 COMP. GEN. 269

B-28781: Sep 25, 1942

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LEAVES TO THE DISCRETION OF THIS OFFICE WHAT EVIDENCE IS REQUIRED IN SUPPORT OF SUCH CLAIMS. THIS OFFICE HAS AUTHORITY TO SETTLE CLAIMS FOR THE PAY AND ALLOWANCES OF OFFICERS AND EMPLOYEES OF THE UNITED STATES WHO HAVE DIED IN THE SERVICE UNDER CIRCUMSTANCES MAKING IT IMPOSSIBLE TO OBTAIN EXACT INFORMATION AS TO THE STATE OF THE ACCOUNT OF THE INDIVIDUAL. IT IS WITHIN THE DISCRETION OF THIS OFFICE IN SUCH CASES TO DETERMINE WHAT EVIDENCE REASONABLY ESTABLISHES THAT THE UNITED STATES IS INDEBTED IN A SPECIFIC AMOUNT TO THE ESTATE OF THE DECEDENT. THE STATEMENT OF ACCOUNT IS MADE. ON THE ASSUMPTION THAT THE DECEDENT WAS PAID IN FULL TO THE LAST DAY OF THE MONTH PRECEDING THAT IN WHICH DEATH OCCURRED.

B-28781, SEPTEMBER 25, 1942, 22 COMP. GEN. 269

DECEDENTS' ESTATES - CLAIMS SETTLEMENTS IN ABSENCE OF EXACT PAY ACCOUNT INFORMATION SECTION 236, REVISED STATUTES, AS AMENDED, PROVIDING THAT ALL CLAIMS BY AND AGAINST THE UNITED STATES SHALL BE SETTLED BY THE GENERAL ACCOUNTING OFFICE, LEAVES TO THE DISCRETION OF THIS OFFICE WHAT EVIDENCE IS REQUIRED IN SUPPORT OF SUCH CLAIMS. BY VIRTUE OF ITS AUTHORITY UNDER SECTION 236, REVISED STATUTES, AS AMENDED, TO SETTLE ALL CLAIMS BY AND AGAINST THE UNITED STATES, THIS OFFICE HAS AUTHORITY TO SETTLE CLAIMS FOR THE PAY AND ALLOWANCES OF OFFICERS AND EMPLOYEES OF THE UNITED STATES WHO HAVE DIED IN THE SERVICE UNDER CIRCUMSTANCES MAKING IT IMPOSSIBLE TO OBTAIN EXACT INFORMATION AS TO THE STATE OF THE ACCOUNT OF THE INDIVIDUAL, AND IT IS WITHIN THE DISCRETION OF THIS OFFICE IN SUCH CASES TO DETERMINE WHAT EVIDENCE REASONABLY ESTABLISHES THAT THE UNITED STATES IS INDEBTED IN A SPECIFIC AMOUNT TO THE ESTATE OF THE DECEDENT. WHERE WAR DEPARTMENT REPORTS ON CLAIMS OF HEIRS FOR ARREARS OF PAY, ETC., DUE MILITARY PERSONNEL WHO DIE IN SERVICE SHOW THAT DEATH OCCURRED UNDER CONDITIONS MAKING IT IMPOSSIBLE TO OBTAIN EXACT PAY ACCOUNT INFORMATION FROM OFFICIAL DISBURSING RECORDS, AND THE STATEMENT OF ACCOUNT IS MADE, BASED ON INFORMATION IN THE WAR DEPARTMENT, ON THE ASSUMPTION THAT THE DECEDENT WAS PAID IN FULL TO THE LAST DAY OF THE MONTH PRECEDING THAT IN WHICH DEATH OCCURRED, SETTLEMENT OF SUCH CLAIMS WILL BE MADE ON THAT BASIS IN THE ABSENCE OF OTHER CONSIDERATIONS, WITH DEDUCTIONS BEING MADE FOR ALLOTMENTS AND OTHER INDEBTEDNESS ITEMS ACCRUING REGULARLY OR REFLECTED BY WAR DEPARTMENT RECORDS OR OTHERWISE BROUGHT TO ATTENTION. WHERE CLAIMS OF HEIRS OF MILITARY PERSONNEL WHO DIE IN SERVICE ARE SETTLED WITHOUT EXACT INFORMATION AS TO THE STATE OF THE ACCOUNT OF THE DECEDENT BEING AVAILABLE FROM OFFICIAL DISBURSING RECORDS, THE SETTLEMENTS WILL BE TREATED AS FINAL WITH RESPECT TO THE LIMITED INFORMATION ON WHICH THEY WERE BASED AND WILL NOT BE REVISED ON SURMISES OR INFERENCES, BUT SUCH SETTLEMENTS WILL BE OPEN TO REVISION ON THE BASIS OF EXACT INFORMATION SUBSEQUENTLY BECOMING AVAILABLE IN THE OFFICIAL RECORDS.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, SEPTEMBER 25, 1942:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 7, 1942, AS FOLLOWS:

IT IS DESIRED TO BRING TO YOUR ATTENTION, FOR SUCH REMEDIAL ACTION AS MAY BE POSSIBLE UNDER THE CIRCUMSTANCES, THE MATTER OF THE SETTLEMENT OF ARREARS OF PAY OF MILITARY PERSONNEL WHO DIE IN THE MILITARY SERVICE UNDER CONDITIONS MAKING IT IMPOSSIBLE OR IMPRACTICABLE TO SECURE COMPLETE INFORMATION ON WHICH TO BASE A SETTLEMENT FOR ARREARS OF PAY IN THE EXACT AMOUNT DUE.

YOU WILL APPRECIATE THAT UNDER PRESENT WAR CONDITIONS, WITH TROOPS SCATTERED THROUGHOUT THE WORLD OPERATING UNDER VARYING CONDITIONS OF COMBAT SERVICE, IT IS IMPOSSIBLE IN MANY INSTANCES FOR THE WAR DEPARTMENT TO MAKE AN ADMINISTRATIVE REPORT ON CLAIMS FILED BY THE HEIRS OF MILITARY PERSONNEL, WHO DIE IN THE SERVICE AS TO THE DATE OF THE LAST PAYMENT OF SUCH PERSONNEL, AS TO THE ITEMS OF INDEBTEDNESS DUE THE UNITED STATES OR ITS INSTRUMENTALITIES, AND, IN MANY CASES, AS TO THE RANK AND GRADE ACTUALLY HELD BY SUCH PERSONNEL ON THE DATE OF DEATH, THIS BEING ESPECIALLY TRUE WHERE RECORDS HAVE BEEN LOST, DESTROYED, CAPTURED BY THE ENEMY, OR ARE OTHERWISE NOT AVAILABLE, OR WHERE MEANS OF COMMUNICATION ARE SUCH THAT COMPLETE INFORMATION CANNOT BE SECURED.

A CONSIDERABLE NUMBER OF SUCH CASES ARE NOW IN THIS UNSATISFACTORY STATUS AND THE WAR DEPARTMENT IS IN RECEIPT OF AN INCREASING VOLUME OF INQUIRIES FROM SUCH HEIRS, AND MEMBERS OF CONGRESS ON BEHALF OF SUCH HEIRS, AS TO THE STATUS OF THE SETTLEMENT FOR ARREARS OF PAY IN SUCH CASES. DOUBTLESS YOUR OFFICE ALSO IS RECEIVING A NUMBER OF SUCH INQUIRIES.

AS ILLUSTRATIVE OF THE GENERAL SITUATION ABOVE DESCRIBED, REFERENCE IS MADE TO THE CASE OF CAPTAIN HENRY SCHIPPER, JR., INFANTRY RESERVE, SERIAL NO. O-270166, WHO DIED IN THE PHILIPPINE ISLANDS ON DECEMBER 25, 1941, UNDER COMBAT CONDITIONS WHICH ALSO RESULTED IN THE LOSS IN WHOLE OR IN PART OF MILITARY AND DISBURSING RECORDS, THUS MAKING IT IMPOSSIBLE IN THIS CASE TO FURNISH YOUR OFFICE WITH COMPLETE ACCOUNTING DATA ON WHICH AN EXACT SETTLEMENT FOR ARREARS OF PAY COULD BE MADE. THE PRINCIPAL LACK OF ACCOUNTING DATA IN THIS CASE CONSISTS OF BEING UNABLE TO FURNISH THE DATE AND AMOUNT OF LAST PAYMENT, AMOUNTS THAT MAY BE DUE THE GOVERNMENT OR ITS INSTRUMENTALITIES, OR EVEN EXACT INFORMATION AS TO THE RANK HELD BY CAPTAIN SCHIPPER AT TIME OF DEATH, THE ONLY DATA AS TO THE LATTER ITEM AVAILABLE TO THE WAR DEPARTMENT BEING THAT NOW OF RECORD IN THE OFFICE OF THE ADJUTANT GENERAL. UNDER DATE OF FEBRUARY 12, 1942, YOUR OFFICE REQUESTED OF THE OFFICE CHIEF OF FINANCE A TRANSCRIPT OF THE FINAL PAY ACCOUNT OF CAPTAIN SCHIPPER. UNDER DATE OF MAY 19, 1942, THE WAR DEPARTMENT MADE AN ADMINISTRATIVE REPORT IN THIS CASE WHICH, HOWEVER, IN VIEW OF THE CAUSES ABOVE INDICATED WAS INCOMPLETE, PARTICULARLY AS TO THE DATE OF LAST PAYMENT OF CAPTAIN SCHIPPER SINCE NO DISBURSING OFFICERS' ACCOUNTS FROM THE PHILIPPINE ISLANDS HAVE BEEN RECEIVED IN THE WAR DEPARTMENT SINCE OCTOBER OF 1941. IT MAY BE ANTICIPATED THAT THE DETAILED INFORMATION REQUESTED IN THIS CASE MAY NEVER BE SECURED, THEREBY RENDERING IMPOSSIBLE UNDER PRESENT PRACTICE A SETTLEMENT OF ARREARS OF PAY. THE SITUATION WITH REFERENCE TO CAPTAIN SCHIPPER'S CASE, AND OTHERS NOW PENDING, GROWS OUT OF CONDITIONS UP TO DATE. HOWEVER, IT IS ANTICIPATED THAT IN THE FUTURE THE NUMBER OF SUCH CASES MAY GREATLY INCREASE TO THE EXTENT WHERE POSSIBLY THOUSANDS WILL EXIST. UNLESS SOME REMEDIAL ACTION CAN BE TAKEN TO ADJUST THEM ON A BASIS OTHER THAN THAT REQUIRED UNDER PRESENT PRACTICE THE HEIRS OF SUCH DECEASED PERSONNEL WILL PROBABLY NEVER BE PAID ANY AMOUNT OF FINAL PAY.

WITH A VIEW, THEREFORE, TO THE SETTLEMENT OF THE ACCOUNT OF CAPTAIN HENRY SCHIPPER, JR., IT IS RECOMMENDED THAT YOUR OFFICE GIVE FAVORABLE CONSIDERATION TO THE SETTLEMENT OF THAT ACCOUNT ON THE BASIS OF THE RANK OR GRADE SHOWN ON THE LAST OFFICIAL RECORDS OF THE WAR DEPARTMENT AND UPON THE ASSUMPTION THAT THE DATE OF LAST PAYMENT, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, WAS MADE ON THE LAST DAY OF THE MONTH PRECEDING THAT IN WHICH HIS DEATH OCCURRED, WITH NECESSARY DEDUCTIONS FOR ALLOTMENTS OR ANY ITEMS OF INDEBTEDNESS WHICH MAY BE SHOWN ON THE RECORDS OF THE WAR DEPARTMENT IN WASHINGTON.

IT IS ALSO RECOMMENDED THAT, IF THE ABOVE BASIS OF SETTLEMENT IS SATISFACTORY, THE SAME PROCEDURE BE APPLIED TO OTHER CASES WHICH ARE PENDING IN THE WAR DEPARTMENT, AND TO THOSE WHICH MAY ARISE IN THE FUTURE WHERE SIMILAR CONDITIONS RENDER IMPOSSIBLE OR IMPRACTICABLE THE FURNISHING OF INFORMATION ON WHICH TO MAKE AN EXACT SETTLEMENT. IF THIS METHOD OF SETTLEMENT UNDER THE AUTHORITY VESTED IN YOUR OFFICE UNDER EXISTING LAW IS DEEMED IMPROPER, IT IS REQUESTED THAT CONSIDERATION BE GIVEN TO SUCH OTHER METHOD OF SETTLEMENT AS MAY BE DEEMED TO BE AUTHORIZED UNDER EXISTING LAW IN ORDER THAT SOME MEASURE OF RELIEF MAY BE GIVEN TO DEPENDENTS OF SUCH PERSONNEL TO MEET THE PRESENT SITUATION.

SECTION 236, REVISED STATUTES, AS AMENDED (31 U.S.C. 71) PROVIDES:

ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED STATES OR AGAINST IT, AND ALL ACCOUNTS WHATEVER IN WHICH THE GOVERNMENT OF THE UNITED STATES IS CONCERNED, EITHER AS DEBTOR OR CREDITOR, SHALL BE SETTLED AND ADJUSTED IN THE GENERAL ACCOUNTING OFFICE.

THIS HAS BEEN THE LAW IN SUBSTANTIALLY THIS FORM SINCE MARCH 3, 1817 (3 STAT. 366). IT WILL BE OBSERVED THAT THE STATUTE DOES NOT PRESCRIBE WHAT EVIDENCE SHALL BE THE BASIS FOR THE ALLOWANCE OF A CLAIM. THAT IS LEFT TO THE DISCRETION OF THE GENERAL ACCOUNTING OFFICE. IN THE PAST, AND IN ORDINARY CIRCUMSTANCES WHERE IT IS PRACTICABLE TO FURNISH COMPLETE INFORMATION AS TO THE STATE OF THE ACCOUNT OF ANY DECEASED INDIVIDUAL FORMERLY EMPLOYED BY THE GOVERNMENT, SUCH COMPLETE INFORMATION HAS BEEN REQUIRED, BUT WHERE SUCH INFORMATION CAN NOT BE FURNISHED THERE IS A DISCRETION AS TO WHAT OTHER EVIDENCE MAY REASONABLY ESTABLISH THAT THE UNITED STATES IS INDEBTED IN A SPECIFIC AMOUNT TO THE ESTATE OF THE DECEASED FORMER OFFICER OR EMPLOYEE. IN SOME CASES WHERE EXACT INFORMATION IS NOT OBTAINABLE STATUTES HAVE PROVIDED WHAT SUBSTITUTE EVIDENCE MAY BE ACCEPTED. SEE, FOR EXAMPLE, SECTIONS 284, 286 AND 287, REVISED STATUTES. BUT EVEN IN SUCH STATUTES A LARGE DISCRETION IS LEFT TO THE ACCOUNTING OFFICERS. BUT NOTWITHSTANDING THE SPECIFIC STATUTES CITED, THERE IS SIMILAR AUTHORITY IMPLIED IN SECTION 236, REVISED STATUTES, TO SETTLE CLAIMS FOR THE PAY AND ALLOWANCES OF OFFICERS OR EMPLOYEES OF THE UNITED STATES WHO HAVE DIED IN ITS SERVICE WHERE, BECAUSE OF THE CIRCUMSTANCES OF DEATH, EXACT INFORMATION AS TO THE STATE OF THE ACCOUNT OF THE INDIVIDUAL CAN NOT BE FURNISHED, IF THE INTERESTS OF THE UNITED STATES ARE ADEQUATELY PROTECTED.

SECTION 1268 OF THE REVISED STATUTES, 10 U.S.C. 861, PROVIDES THAT OFFICERS OF THE ARMY SHALL BE PAID IN MONTHLY PAYMENTS. ACCORDINGLY, IN THOSE CASES WHERE DISBURSING ACTIVITIES WERE MAINTAINED BY THE WAR DEPARTMENT, IT MAY BE ASSUMED THAT PAYMENTS WERE MADE ON THE LAST DAY OF THE MONTH PRECEDING THE MONTH IN WHICH THE OFFICER OR ENLISTED MAN DIED AND THAT PAY THEREAFTER ACCRUED AND WAS IN ARREARS FROM THE FIRST OF THE SUCCEEDING MONTH TO THE DATE OF DEATH.

IF, THEREFORE, IN THE DESCRIBED CASES, REPORTS OF THE WAR DEPARTMENT SHOW THE CIRCUMSTANCES OF DEATH AND STATE THE ACCOUNT ON THE BASIS OF INFORMATION IN THE WAR DEPARTMENT ON THE ASSUMPTION THE DECEASED WAS PAID IN FULL TO THE LAST DAY OF THE PRECEDING MONTH AND THAT THE STATEMENT OF ACCOUNT IS MADE WITHOUT ACCESS TO THE OFFICIAL DISBURSING RECORDS, SETTLEMENT OF SUCH ARREARS IN THESE CASES WILL BE MADE ON THAT BASIS WITH DEDUCTIONS FOR ALLOTMENT PAYMENTS AND OTHER ITEMS OF INDEBTEDNESS ACCRUING REGULARLY OR WHICH MAY BE SHOWN ON THE RECORDS OF THE WAR DEPARTMENT, INCLUDING OTHER PROPER CHARGES COMING TO THE ATTENTION OF THIS OFFICE. COURSE, IF IT IS OFFICIALLY SHOWN THAT THE CIRCUMSTANCES OF A PARTICULAR CASE JUSTIFY A DIFFERENT METHOD OF CALCULATION AND THE INTERESTS OF THE GOVERNMENT SO REQUIRE, THOSE CIRCUMSTANCES AND FACTS NECESSARILY MUST BE TAKEN INTO CONSIDERATION.

SUCH SETTLEMENTS, IT SHOULD BE UNDERSTOOD, WILL NOT BE REVISED ON SURMISES OR INFERENCES BUT WILL BE TREATED AS FINAL WITH RESPECT TO THE LIMITED INFORMATION UPON WHICH THEY WERE BASED. HOWEVER, IF SUBSEQUENTLY EXACT INFORMATION IN THE OFFICIAL RECORDS AS TO THE STATE OF THE ACCOUNT OF THE INDIVIDUAL BECOMES AVAILABLE THE SETTLEMENT WILL BE REVISED ON THE BASIS OF THE OFFICIAL RECORDS THEN REPORTED.