B-64495, APR. 11, 1963

B-64495, APR. 11, 1963

TO MRS. CORA AGNES CARTER:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 29, 1962, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR THE SHARE OF PAY AND ALLOWANCES DUE YOUR LATE SON, ROBERT HAROLD CARTER, AT PRESUMPTIVE DATE OF DEATH, FEBRUARY 22, 1945, AS RADIOMAN THIRD CLASS, UNITED STATES NAVY (372 31 22), RESERVED FOR HIS FATHER, WILLIAM ALBERT CARTER, BY CERTIFICATE OF SETTLEMENT NO. 1377802, DATED AUGUST 2, 1946.

BY THE SETTLEMENT OF AUGUST 2, 1946, YOU WERE ALLOWED THE SUM OF $393.94 REPRESENTING ONE-HALF THE BALANCE THEN APPEARING TO BE DUE YOUR SON'S ESTATE AND WERE ADVISED THAT THE REMAINING BALANCE OF $393.93 WAS RESERVED FOR THE FATHER. BY DECISION OF JUNE 6, 1947, B 64495, YOU WERE ADVISED THAT THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, REPEALED ALL PRIOR LAWS IN CONNECTION WITH THE DISTRIBUTION OF AMOUNTS DUE DECEASED PERSONS OF THE ARMED FORCES AND PROVIDED THAT WHERE THE DECEASED PERSON IS NOT SURVIVED BY A WIDOW OR DESCENDANTS AND NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, SUCH AS AN EXECUTOR OR ADMINISTRATOR APPOINTED BY A COURT OF COMPETENT JURISDICTION, THE AMOUNT FOUND DUE MAY BE ALLOWED "TO THE FATHER AND MOTHER IN EQUAL PARTS," WHERE BOTH SURVIVE. YOU WERE PAID YOUR SHARE, BUT THERE IS NO PROVISION OF LAW FOR ALLOWING THE SURVIVING FATHER'S SHARE TO THE MOTHER ON THE GROUND OF ABANDONMENT. THEREFORE YOU WERE ADVISED THAT IN THE ABSENCE OF A CLAIM FROM THE FATHER OR A SHOWING THAT HE IS DEAD, THE BALANCE WITHHELD FOR HIM COULD BE PAID ONLY TO A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, THAT IS, AN ADMINISTRATOR OR EXECUTOR.

BY LETTER OF FEBRUARY 15, 1960, FROM OUR CLAIMS DIVISION, YOU WERE ADVISED THAT ANY CLAIM NOW RECEIVED FROM THE FATHER OR A LEGAL REPRESENTATIVE OF YOUR SON'S ESTATE WOULD BE BARRED FROM CONSIDERATION PURSUANT TO THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, 237. THAT ACT, WITH CERTAIN EXCEPTIONS NOT HERE APPLICABLE, PROVIDES THAT EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE IS FOREVER BARRED UNLESS SUCH CLAIM IS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN TEN FULL YEARS AFTER THE DATE THE CLAIM FIRST ACCRUED.

IN YOUR PRESENT LETTER YOU SAY YOU HAVE NOT HEARD FROM YOUR DECEASED SON'S FATHER SINCE JULY 2, 1931, AND THAT HE WOULD HAVE BEEN 90 YEARS OLD ON OCTOBER 17, 1962. THEREFORE, YOU BELIEVE THE AMOUNT WITHHELD AS HIS SHARE SHOULD BE PAID TO YOU.

WHILE WE APPRECIATE YOUR FEELINGS IN THE MATTER WE MUST COMPLY WITH THE APPLICABLE FEDERAL STATUTES IN SETTLING ACCOUNTS OF DECEASED PERSONNEL OF THE UNIFORMED SERVICES, AND WE HAVE NO AUTHORITY TO ALLOW CLAIMS FOR AMOUNTS DUE THE ESTATE OF SUCH DECEASED PERSONNEL EXCEPT AS AUTHORIZED BY THOSE STATUTES. IN THIS CONNECTION, UNDER THE ABOVE MENTIONED ACT OF FEBRUARY 25, 1964, THE AMOUNT FOUND DUE MAY BE ALLOWED "TO THE FATHER AND MOTHER IN EQUAL PARTS," BUT THAT ACT EXPRESSLY PROVIDED THAT "IF EITHER THE FATHER OR MOTHER BE DEAD, THEN TO THE ONE SURVIVING.' WE MUST NOW ADVISE YOU THAT UNLESS YOU PRESENT EVIDENCE THAT YOUR HUSBAND DIED PRIOR TO NOVEMBER 6, 1946, THE DATE ON WHICH WE RECEIVED YOUR LETTER OF OCTOBER 30, 1946, REGARDING HIS SHARE OF THE ARREARS OF PAY IN YOUR LATE SON'S ESTATE, YOUR CLAIM MUST BE CONSIDERED AS BARRED UNDER THE ABOVE-MENTIONED ACT OF OCTOBER 9, 1940. THE MERE UNEXPLAINED ABSENCE OF A PERSON, REGARDLESS OF THE LENGTH OF HIS ABSENCE, IS NOT SUFFICIENT TO OVERCOME THE PRESUMPTION THAT HE IS STILL LIVING UNLESS SO DETERMINED BY A COURT. CONSEQUENTLY, UNLESS AND UNTIL EVIDENCE IS RECEIVED BY US THAT YOUR LATE SON'S FATHER DIED PRIOR TO NOVEMBER 6, 1946, THERE IS NO LEGAL BASIS UPON WHICH YOUR CLAIM FOR THE BALANCE OF THE ESTATE DUE YOUR SON MAY NOW BE CONSIDERED.