B-41440, JULY 24, 1944, 24 COMP. GEN. 46

B-41440: Jul 24, 1944

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IS WITHOUT FORCE OR EFFECT. THERE WAS TRANSMITTED TO THIS OFFICE YOUR LETTER OF MARCH 13. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF MARY ARNOLD. AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF HIS DEATH. * * * THE PROVISIONS OF SAID ACT WERE EXTENDED TO THE OTHER FORCES OF THE ARMY BY THE ACT OF DECEMBER 10. THAT HIS DEATH WAS IN LINE OF DUTY AND WAS NOT DUE TO HIS OWN MISCONDUCT. THERE WERE RECEIVED WITH YOUR SUBMISSION THREE LETTERS ADDRESSED TO THE FINANCE OFFICER. IS. MAILING ADDRESS IS BOX NO. 857. I HAVE NO INFORMATION AS TO THE MANNER OR PLACE OF MARRIAGE. UNDER THE CIRCUMSTANCES I FEEL THAT THE MOTHER AND FATHER OF THE DECEASED ARE ENTITLED TO THE GRATUITY PAY.

B-41440, JULY 24, 1944, 24 COMP. GEN. 46

SIX MONTHS' DEATH GRATUITY PAY - WAIVER OF CLAIM BY WIDOW A WAIVER BY THE LAWFUL WIDOW OF A DECEASED SOLDIER OF HER STATUTORY RIGHT TO THE SIX MONTHS' DEATH GRATUITY PAY AUTHORIZED BY THE ACT OF DECEMBER 17, 1919, AS AMENDED, IS WITHOUT FORCE OR EFFECT, AND DOES NOT OPERATE TO ENTITLE THE MOTHER OF THE DECEASED, HIS DESIGNATED BENEFICIARY, TO PAYMENT OF THE GRATUITY. 22 COMP. GEN. 676, AMPLIFIED.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. CARL WITCHER, U.S. ARMY, JULY 24, 1944:

BY INDORSEMENT OF APRIL 14, 1944, OF THE FISCAL DIRECTOR, ARMY SERVICE FORCES, THERE WAS TRANSMITTED TO THIS OFFICE YOUR LETTER OF MARCH 13, 1944, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF MARY ARNOLD, MOTHER AND DESIGNATED BENEFICIARY OF HERBERT C. ARNOLD, SERIAL NO. 18,015,547, DECEASED, LATE STAFF SERGEANT, AIR CORPS, U.S. ARMY, FOR $576, REPRESENTED AS EQUAL TO THE PAY OF THE DECEASED SIX MONTHS, THE CLAIM ARISING UNDER THE ACT OF DECEMBER 17, 1919, 41 STAT. 367, AS AMENDED.

THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 903, SUPP. III, PROVIDES, INSOFAR AS HERE MATERIAL, AS FOLLOWS:

HEREAFTER, IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OWN MISCONDUCT, OF ANY OFFICER OR ENLISTED MAN ON THE ACTIVE LIST OF THE REGULAR ARMY OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE CHIEF OF FINANCE OF THE ARMY SHALL CAUSE TO BE PAID TO THE WIDOW, AND IF THERE BE NO WIDOW TO THE CHILD OR CHILDREN, AND IF THERE BE NO WIDOW OR CHILD TO ANY OTHER DEPENDENT RELATIVE OF SUCH OFFICER OR ENLISTED MAN PREVIOUSLY DESIGNATED BY HIM, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF HIS DEATH. * * *

THE PROVISIONS OF SAID ACT WERE EXTENDED TO THE OTHER FORCES OF THE ARMY BY THE ACT OF DECEMBER 10, 1941, 55 STAT. 796, RETROACTIVE TO AUGUST 27, 1940. (SEE 10 U.S.C. 456, SUPP. III.)

THE COPY OF REPORT OF DEATH ATTACHED TO THE VOUCHER SHOWS THAT SERGEANT ARNOLD DIED JUNE 20, 1943, NEAR ALBANY, TEXAS, IN AN AIRPLANE ACCIDENT; THAT HIS DEATH WAS IN LINE OF DUTY AND WAS NOT DUE TO HIS OWN MISCONDUCT; AND THAT HE HAD DESIGNATED MARY ARNOLD, MOTHER, AND DANIEL A. ARNOLD, FATHER, AS HIS BENEFICIARIES UNDER THE SAID ACT OF DECEMBER 17, 1919, AS AMENDED AND EXTENDED.

THERE WERE RECEIVED WITH YOUR SUBMISSION THREE LETTERS ADDRESSED TO THE FINANCE OFFICER, U.S. ARMY, WASHINGTON, D.C.; ONE DATED JULY 28, 1943, FROM MRS. MARY ARNOLD; AND TWO DATED AUGUST 12 AND 24, 1943, RESPECTIVELY, FROM MRS. DORIS L. ARNOLD. THE LETTER OF MRS. MARY ARNOLD, IS, IN PERTINENT PART, AS FOLLOWS:

I CANNOT CONSCIENTIOUSLY SIGN UNDER OATH W.D.F.D. FORM NO. 6 WHICH I AM RETURNING TO YOU HEREWITH BECAUSE I AM NOT SURE WHETHER MY SON LEFT A TRUE WIDOW.

MRS. DORIS ARNOLD, MAIDEN NAME UNKNOWN, MAILING ADDRESS IS BOX NO. 857, DEL RIO, TEXAS, AGE TWENTY-THREE, CALLED UPON ME AND STATED THAT SHE HAD BEEN MARRIED TO HIM SINCE MAY 6, 1943. I HAVE NO INFORMATION AS TO THE MANNER OR PLACE OF MARRIAGE. AT THE TIME OF HER VISIT SHE HAD WITH HER TWO CLOSE FRIENDS, ONE AN ENLISTED MAN, ELMO BEARD AND ONE A CIVILIAN, MRS. HELEN BLACKMON, BOTH OF DEL RIO, TEXAS. SHE ALSO TOLD ME THAT ONLY FIVE PERSONS KNEW OF THEIR MARRIAGE.

THE LETTER OF AUGUST 12, 1943, OF MRS. DORIS L. ARNOLD, READS AS FOLLOWS:

IN ANSWER TO YOUR LETTER DATED 4 AUGUST, 1943 REFERRING TO THE DEATH GRATUITY PAY OF S/SGT. HERBERT C. ARNOLD.

UNDER THE CIRCUMSTANCES I FEEL THAT THE MOTHER AND FATHER OF THE DECEASED ARE ENTITLED TO THE GRATUITY PAY. AT PRESENT THEY ARE FINANCIALLY UNABLE TO MEET THE EXPENSES OF HIS BURIAL WITHOUT SUCH PAY. I FEEL THAT I HAVE NO RIGHT TO DEPRIVE THEM OF THIS HELP.

THIS LETTER WILL SERVE AS WAIVER ON MY PART TO ANY CLAIM TO THE DEATH GRATUITY PAY DUE OF THE DECEASED SOLDIER, S/SGT. HERBERT C. ARNOLD.

AND THE LETTER OF AUGUST 24, 1943, OF MRS. DORIS L. ARNOLD, IS AS FOLLOWS:

IN ANSWER TO YOUR LETTER DATED 19 AUGUST 1943 IN REGARD TO MY HUSBAND, S/SGT. HERBERT C. ARNOLD. I HEREBY SIGN ALL MY RIGHTS TO THE SIX MONTHS GRATUITY PAY. I DESIRE THAT HIS MOTHER, MRS. MARY ARNOLD, ROUTE 1, BOX 149, BIG SPRINGS, TEXAS, RECEIVE THIS.

MY HUSBAND WAS A STAFF SERGEANT. HIS NAME, HERBERT C. ARNOLD, SERIAL NUMBER 18,015,547.

I SINCERELY HOPE THIS WILL SERVE AS WAIVER ON MY PART TO THE DEATH GRATUITY PAY OF MY DECEASED SOLDIER.

ALSO, MRS. DORIS L. ARNOLD STATES IN AN AFFIDAVIT EXECUTED BY HER OCTOBER 19, 1943, AS FOLLOWS:

I, DORIS L. ARNOLD BEING FIRST DULY SWORN, SAY THAT I AM THE WIDOW OF STAFF SERGEANT HERBERT C. ARNOLD WHOSE SERIAL NUMBER WAS 18,015,547, AND THAT I WISH TO RELINQUISH ALL MY RIGHT AND CLAIM TO THE SIX MONTHS' DEATH GRATUITY PAY IN FAVOR OF MY DECEASED HUSBAND'S PARENTS AND THAT THE GRATUITY BE PAID TO MRS. MARY ARNOLD, MOTHER OF MY DECEASED HUSBAND.

YOU STATE IN YOUR LETTER THAT IN VIEW OF THE CIRCUMSTANCES AND THE DECISION OF THIS OFFICE IN THE BARTICK CASE, B-28242, AUGUST 27, 1942, JANUARY 20, 1943 (22 COMP. GEN. 676), AND APRIL 9, 1943, YOU ARE "IN DOUBT AS TO WHETHER OR NOT THE WIDOW MAY LEGALLY WAIVE HER RIGHT TO RECEIVE THE GRATUITY IN FAVOR OF THE SOLDIER'S MOTHER, UNDER THE TERMS OF THE STATUTE.' IN SAID DECISION OF JANUARY 20, 1943, IT WAS STATED:

WHERE IT IS CONCLUSIVELY ESTABLISHED THAT THE FIRST DESIGNATED BENEFICIARY IS NOT ENTITLED TO THE SIX MONTHS' DEATH GRATUITY PAYMENT PROVIDED BY THE STATUTE, EITHER BY SAID BENEFICIARY'S OWN ADMISSION OR OTHERWISE, SUCH FACT DOES NOT NECESSARILY DEFEAT THE RIGHT OF THE SECOND BENEFICIARY TO RECEIVE THE PAYMENT. THE DECISION OF AUGUST 27, 1942, IN THIS CASE, CONSIDERED THE QUESTION OF THE RIGHT OF THE FIRST DESIGNATED BENEFICIARY, AUNT OF THE DECEASED SOLDIER, TO TAKE THE GRATUITY PAYMENT ON THE BASIS OF THE FACTS PRESENTED WITH THE VOUCHER SUBMITTED, AND SINCE THE FACTS SUBMITTED DID NOT CLEARLY ESTABLISH THAT SHE WAS DEPENDENT ON HIM FOR SUPPORT, OR OTHERWISE HAD AN INSURABLE INTEREST IN HIM, IT WAS CONCLUDED THAT PAYMENT ON THE VOUCHER SUBMITTED WAS NOT AUTHORIZED. HOWEVER, AS IT DOES NOT APPEAR THAT THE FIRST DESIGNATED BENEFICIARY HAS RELINQUISHED HER RIGHT TO CLAIM THE GRATUITY PAYMENT, HER CLAIM WOULD BE OPEN TO FURTHER CONSIDERATION UPON SUBMISSION OF ADDITIONAL FACTS TENDING TO SHOW THAT SHE WAS A DEPENDENT RELATIVE OF THE DECEASED SOLDIER WITHIN THE MEANING OF THE STATUTE. ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, PAYMENT ON THE VOUCHER NOW SUBMITTED IN FAVOR OF THE SECOND BENEFICIARY IS NOT AUTHORIZED. HOWEVER, THE FIRST NAMED BENEFICIARY WHO IS A RELATIVE, MAY, IF SHE SO DESIRES, SUBMIT ADDITIONAL EVIDENCE TENDING TO SHOW THAT SHE IS DEPENDENT--- EVEN THOUGH SHE WAS NOT IN FACT DEPENDENT ON THE DECEASED SOLDIER--- AND UPON RECEIPT OF SUCH EVIDENCE FURTHER CONSIDERATION WILL BE GIVEN TO THE QUESTION OF HER RIGHT IN THE MATTER; OR, IF SHE IS NOT DEPENDENT ON ANYONE AND THERE BE SUBMITTED A STATEMENT BY HER TO THE EFFECT THAT SHE RELINQUISHES ANY CLAIM SHE MAY HAVE HAD TO THE GRATUITY PAYMENT, FURTHER CONSIDERATION THEN WILL BE GIVEN TO THE QUESTION OF THE RIGHT OF THE SECOND BENEFICIARY TO SUCH PAYMENT.

THEREAFTER, ON MARCH 18, 1943, YOU SUBMITTED A STATEMENT--- DATED MARCH 1, 1943, AND SWORN TO BEFORE A NOTARY PUBLIC MARCH 15, 1943--- OF THE AUNT AND FIRST DESIGNATED BENEFICIARY OF BARTICK, WHICH READS AS FOLLOWS:

I MAKE NO CLAIM TO THE SIX MONTHS' GRATUITY PAY DUE THE HEIRS OF THE LATE CORPORAL EDWARD G. BATTICK (247- NO. 11,035,872). FURTHERMORE, I WISH THIS MONEY TO BE PAID TO HIS NEXT OF KIN, IZ., HIS FOUR BROTHERS AND ONE SISTER. AND IN THE LIGHT OF WHAT WAS SAID IN THAT CASE, AS QUOTED HEREINBEFORE, IT WAS SAID IN DECISION OF APRIL 9, 1943, THAT "THE ABOVE- QUOTED STATEMENT OF THE AUNT AND FIRST DESIGNATED BENEFICIARY CONSTITUTES A RELINQUISHMENT OF HER CLAIM TO THE SIX MONTHS' DEATH GRATUITY PAY; " THAT IS, IT WAS CONSIDERED THAT HER STATEMENT WAS AN ADMISSION ON HER PART THAT SHE WAS NEITHER DEPENDENT ON THE SOLDIER NOR HAD AN INSURABLE INTEREST IN HIM, AND THAT, THEREFORE, HAVING NO LEGAL RIGHT TO PAYMENT OF THE GRATUITY, SHE WITHDREW HER CLAIM THEREFOR.

IN 22 COMP. GEN. 85, AT PAGE 88, IT IS STATED THAT PAYMENT OF THE GRATUITY PROVIDED FOR IN THE STATUTE IS TO BE MADE TO THE WIDOW OR CHILD WITHOUT DESIGNATION AND WITHOUT ANY SHOWING OTHER THAN THE RELATIONSHIP. WHILE, IN THE INSTANT CASE, EVIDENCE HAS NOT BEEN PRODUCED TO SHOW THAT MRS. DORIS L. ARNOLD IS THE LAWFUL WIDOW OF THE DECEASED SOLDIER AND, THEREFORE, HAS A LEGAL RIGHT TO THE GRATUITY PAY, IT HAS BEEN HELD THAT A WAIVER OF A STATUTORY RIGHT WILL NOT ESTOP THE PERSON WAIVING THE RIGHT AND THE COURTS HAVE DECLINED TO GIVE ANY EFFECT TO SUCH A WAIVER. SEE MACMATH V. UNITED STATES, 248 U.S. 151; UNITED STATES V. BANCROFT, 260 U.S. 706; AND DECISION OF THIS OFFICE, 23 COMP. GEN. 109, AT PAGE 112, CITING, ALSO, 20 ID. 41. MORE PARTICULARLY, IT WAS HELD IN DECISION OF JANUARY 4, 1918, OF THE COMPTROLLER OF THE TREASURY, 24 COMP. DEC. 377, QUOTING THE SYLLABUS, AS FOLLOWS:

THE GRATUITY OF SIX MONTHS' PAY, AUTHORIZED UNDER THE ACT OF MAY 11, 1908, AS AMENDED, IS A PURE GRATUITY AND THE RIGHT OF THE BENEFICIARY TO RECEIVE PAYMENT BEING PERSONAL IT MAY NOT BE TRANSFERRED, ASSIGNED, OR WAIVED IN FAVOR OF ANOTHER. ALSO, IN A DECISION OF DECEMBER 8, 1930, A- 34305--- IN THE CASE OF A DECEASED NAVY ENLISTED MAN WHO HAD DESIGNATED HIS FATHER AS BENEFICIARY FOR THE SIX MONTHS' DEATH GRATUITY PROVIDED BY THE ACT OF MAY 22, 1928, 45 STAT. 710--- THE MOTHER, WHO HAD CLAIMED SAID GRATUITY ON THE BASIS OF A WAIVER TO ANY AND ALL CLAIMS BY HER HUSBAND, THE FATHER OF THE DECEASED, WAS ADVISED AS FOLLOWS:

UPON THE EVIDENCE SUBMITTED BY YOUR HUSBAND, IT WAS DETERMINED THAT HE IS NOT A DEPENDENT RELATIVE WITHIN THE MEANING OF THE LAW. AS HE HAD NO VESTED RIGHT TO THE PAYMENT IN QUESTION HIS WAIVER OF HIS RIGHT TO THE PAYMENT TO YOU IS WITHOUT EFFECT EVEN WERE NOT ASSIGNMENTS OF CLAIMS AGAINST THE UNITED STATES NULL AND VOID BY REASON OF THE PROVISION CONTAINED IN SECTION 3477 OF THE REVISED STATUTES. * * *

IN VIEW OF THE FOREGOING, SHOULD MRS. DORIS L. ARNOLD PRODUCE EVIDENCE SHOWING THAT SHE IS THE LAWFUL WIDOW OF THE DECEASED, SHE WOULD UNDER THE PROVISIONS OF THE APPLICABLE STATUTE, HAVE A RIGHT TO PAYMENT OF THE GRATUITY AND ANY WAIVER BY HER OF THAT RIGHT MUST BE CONSIDERED AS BEING WITHOUT FORCE OR EFFECT. IN THE CIRCUMSTANCES, AND UNTIL SHE ADMITS, OR IT IS ESTABLISHED, THAT SHE IS NOT THE LAWFUL WIDOW OF THE DECEASED, PAYMENT OF THE SIX MONTHS' DEATH GRATUITY MAY NOT BE MADE TO THE MOTHER, THE DESIGNATED BENEFICIARY OF THE DECEASED. ACCORDINGLY, ON THE PRESENT RECORD, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER WHICH IS RETAINED IN THIS OFFICE.