B-61666, MAY 24, 1966

B-61666: May 24, 1966

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VLASTA KLIMES HORAK: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 29. WAS ALLOWED TO YOU ON NOVEMBER 30. BY CERTIFICATE NO. 1194532 AND THAT THE REMAINING ONE-HALF SHARE WAS BEING WITHHELD FOR HIS FATHER. YOU WERE ALSO ADVISED IN THAT DECISION THAT SUCH SETTLEMENT WAS STATED PURSUANT TO THE PROVISIONS OF THE ACT OF MAY 27. THE REQUEST FOR INFORMATION CONTAINED IN THE SETTLEMENT WAS PREDICATED UPON SUCH PROVISIONS. YOU WERE FURTHER ADVISED THAT IN VIEW OF THE ACT OF FEBRUARY 25. THE BALANCE OF PAY DUE IN THIS CASE COULD BE PAID ONLY TO AN APPOINTED LEGAL REPRESENTATIVE OF YOUR SON'S ESTATE (ADMINISTRATOR OR EXECUTOR) IN THE ABSENCE OF A CLAIM FROM THE FATHER OR THE SUBMISSION OF EVIDENCE THAT HE IS DEAD.

B-61666, MAY 24, 1966

TO MRS. VLASTA KLIMES HORAK:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 29, 1966, IN EFFECT REQUESTING RECONSIDERATION OF YOUR CLAIM FOR THE RESERVED ONE HALF SHARE OF PAY AND ALLOWANCES DUE IN THE CASE OF YOUR LATE SON, CHARLES GEORGE KLIMES, WHO DIED ON MAY 1, 1945, WHILE SERVING AS A PRIVATE FIRST CLASS, UNITED STATES MARINE CORPS RESERVE.

IN OUR DECISION OF FEBRUARY 3, 1947, B-61666, COPY ENCLOSED, WE ADVISED YOU THAT THE SUM OF $96.36, REPRESENTING ONE-HALF OF THE PAY AND ALLOWANCES DUE YOUR LATE SON'S ESTATE, WAS ALLOWED TO YOU ON NOVEMBER 30, 1945, BY CERTIFICATE NO. 1194532 AND THAT THE REMAINING ONE-HALF SHARE WAS BEING WITHHELD FOR HIS FATHER, PENDING SUBMISSION BY YOU OF INFORMATION AND EVIDENCE IN SUPPORT OF YOUR ALLEGATION OF ABANDONMENT. YOU WERE ALSO ADVISED IN THAT DECISION THAT SUCH SETTLEMENT WAS STATED PURSUANT TO THE PROVISIONS OF THE ACT OF MAY 27, 1908, AS AMENDED, 34 U.S.C. 941, WHICH PERMITTED THE ACCOUNTING OFFICERS TO ALLOW A SURVIVING FATHER'S SHARE OF THE PAY TO THE MOTHER UPON AN ADEQUATE SHOWING THAT THE FATHER HAD ABANDONED THE SUPPORT OF THE FAMILY, AND THE REQUEST FOR INFORMATION CONTAINED IN THE SETTLEMENT WAS PREDICATED UPON SUCH PROVISIONS. YOU WERE FURTHER ADVISED THAT IN VIEW OF THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, CH. 35, 10 U.S.C. 868 (1952 ED.), WHICH REPEALED AND SUPERSEDED THE 1908 LAW AND ELIMINATED THE AUTHORITY FOR THE ALLOWANCE OF THE FATHER'S SHARE TO THE MOTHER ON THE GROUND OF ABANDONMENT, THE BALANCE OF PAY DUE IN THIS CASE COULD BE PAID ONLY TO AN APPOINTED LEGAL REPRESENTATIVE OF YOUR SON'S ESTATE (ADMINISTRATOR OR EXECUTOR) IN THE ABSENCE OF A CLAIM FROM THE FATHER OR THE SUBMISSION OF EVIDENCE THAT HE IS DEAD. THE REASONS AND PURPOSES FOR THE ENACTMENT OF THE 1946 LAW WERE FULLY EXPLAINED TO YOU IN THAT DECISION.

YOU INFORMED OUR CLAIMS DIVISION ON MARCH 12, 1966, THAT THE FATHER DIED IN MAY 1965 AND YOU INQUIRED WHETHER THE WITHHELD SHARE OF $96.35 WAS EVER PAID TO HIM. ALSO, YOU STATED THAT IF PAYMENT WAS NOT MADE, YOU WOULD SEEK APPOINTMENT AS ADMINISTRATOR OR EXECUTOR OF YOUR SON'S ESTATE IN ORDER TO COMPLY WITH OUR DECISION TO YOU. IN REPLY, OUR CLAIMS DIVISION ADVISED YOU BY LETTER OF MARCH 24, 1966, THAT THE CLAIMS FILE (CLAIM NO. 1949835) HAD BEEN DESTROYED IN ACCORDANCE WITH LAW AND THAT THERE IS NO WAY THIS OFFICE CAN DETERMINE WHETHER THERE IS STILL AN UNPAID BALANCE DUE THE ESTATE OF YOUR LATE SON. ADDITIONALLY, YOU WERE ADVISED THAT THERE IS ON FILE CERTAIN INFORMATION WHICH INDICATES THAT A SECOND ALLOWANCE WAS MADE ON FEBRUARY 27, 1947, AND THAT SUCH INFORMATION DOES NOT REFLECT THE AMOUNT ALLOWED OR TO WHOM IT WAS PAID.

IT IS STATED IN YOUR LETTER OF MARCH 29, 1966, THAT PRIOR TO HIS DEATH THE FATHER HAD INFORMED YOU THAT HE NEVER MADE OR WOULD MAKE CLAIM FOR HIS ONE-HALF SHARE OF THE PAY AND ALLOWANCES DUE IN THIS CASE. ALSO IN THAT LETTER YOU AGAIN EXPRESS THE INTENTION TO BE APPOINTED THE ADMINISTRATOR OF YOUR SON'S ESTATE IF THE FATHER DID NOT RECEIVE HIS SHARE OF SUCH PAY AND ALLOWANCES.

WE HAVE OBSERVED THAT YOU LISTED IN THE HEADING OF YOUR LETTER OF MARCH 29, 1966, NOT ONLY CERTIFICATE NO. 1194532, MENTIONED ABOVE, BUT ALSO "CERTIFICATE NUMBER 1514329 $4.65 PAID 2/27- -47.' THAT SPECIFIC INFORMATION HAS ENABLED US TO OBTAIN A COPY OF CERTIFICATE NO. 1514329, DATED FEBRUARY 27, 1947, FROM ANOTHER SPECIAL FILE. IT IS SHOWN IN THIS CERTIFICATE THAT THE AMOUNT OF $4.65, REPRESENTING A ONE-HALF SHARE OF THE PROCEEDS OF JAPANESE CURRENCY FOUND AMONG THE PERSONAL EFFECTS OF YOUR LATE SON, WAS ALLOWED TO YOU AS MOTHER AND THE OTHER ONE-HALF SHARE WAS RESERVED PENDING RECEIPT OF A CLAIM THEREFOR BY THE FATHER. EVIDENTLY THOSE CERTIFICATES, COPIES OF WHICH APPARENTLY ARE IN YOUR POSSESSION, REFLECT THE TWO SEPARATE ALLOWANCES MADE BY OUR CLAIMS DIVISION AND NOTED IN THE SPECIAL INFORMATION FILE. THUS, NOTWITHSTANDING THE UNAVAILABILITY OF THE ORIGINAL CLAIMS FILE, OTHER OFFICIAL RECORDS APPEAR TO ESTABLISH THE FACT THAT THE RESERVED ONE HALF SHARE OF THE PAY AND ALLOWANCES AND THE RESERVED ONE-HALF SHARE OF THE PROCEEDS OF THE ABOVE-MENTIONED JAPANESE CURRENCY WERE NEVER ALLOWED TO THE FATHER.

SINCE A PERIOD OF MORE THAN 10 YEARS HAS ELAPSED SINCE THE DEATH OF YOUR SON, THERE IS FOR APPLICATION IN THIS MATTER THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, COPY ALSO ENCLOSED. THAT ACT, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, PROVIDES THAT EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE IS FOREVER BARRED UNLESS SUCH CLAIM SHALL BE RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE THE CLAIM FIRST ACCRUED. IN CONSIDERATION OF THAT LAW, OUR DECISION OF FEBRUARY 3, 1947, TO YOU, CONTEMPLATED ALLOWANCE OF THE RESERVED ONE-HALF SHARE OF THE PAY AND ALLOWANCES TO A LEGAL REPRESENTATIVE OF THE ESTATE OR THE FATHER UPON A CLAIM BEING RECEIVED IN THIS OFFICE WITHIN 10 YEARS AFTER MAY 1, 1945, THE DATE OF YOUR LATE SON'S DEATH AND DATE OF ACCRUAL OF THE CLAIM. BY THE SAME TOKEN IT CONTEMPLATED, AS AN ALTERNATIVE, PAYMENT TO YOU UPON THE RECEIPT OF EVIDENCE SHOWING THAT THE FATHER DIED BEFORE THE EXPIRATION OF THAT 10- YEAR LIMITATION PERIOD, THAT IS, BEFORE MAY 1, 1955. HENCE, IN VIEW OF THE ACT OF OCTOBER 9, 1940, ANY CLAIM PRESENTED BY A LEGAL REPRESENTATIVE OF YOUR SON'S ESTATE MAY NOT BE CONSIDERED BECAUSE IT IS BARRED BY LAW. WE MAY ADD THAT BY VIRTUE OF THAT ACT ANY CLAIM WHICH MIGHT HAVE BEEN FILED BY THE FATHER ON OR AFTER MAY 1, 1955, WOULD HAVE BEEN CONSIDERED BY THIS OFFICE AS BARRED BECAUSE IT WAS NOT TIMELY FILED. HIS DEATH ON A DATE AFTER MAY 1, 1955, OF COURSE, COULD NOT SERVE TO CREATE A RIGHT OR ENTITLEMENT IN HIS HEIRS OR NEXT OF KIN TO THE ONE-HALF SHARE OF THE PAY AND ALLOWANCES PREVIOUSLY RESERVED FOR HIM.

YOU DID NOT SUBMIT EVIDENCE OF THE FATHER'S ABANDONMENT TO THIS OFFICE PRIOR TO THE ENACTMENT OF THE 1946 LAW (ACT OF FEBRUARY 25, 1946) AND, AS EXPLAINED IN OUR DECISION OF FEBRUARY 3, 1947, TO YOU, AFTER FEBRUARY 25, 1946, QUESTIONS OF ABANDONMENT OR SUPPORT BY THE FATHER WERE NO LONGER FOR CONSIDERATION IN SETTLING SUCH ACCOUNTS. THEREFORE, AND AS THE FATHER DIED AFTER MAY 1, 1955, WITHOUT EVER HAVING FILED CLAIM, YOUR CLAIM FOR THE ONE-HALF SHARE RESERVED FOR HIM MUST ALSO BE CONSIDERED AS BARRED UNDER THE ACT OF OCTOBER 9, 1940, AND NO FURTHER ACTION THEREON MAY BE TAKEN BY THIS OFFICE.