B-80090, MAR. 19, 1964

B-80090: Mar 19, 1964

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

MAE ANDERSON: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 28. YOU WERE ALLOWED $695.29 ON CERTIFICATE OF SETTLEMENT NO. 1347413 AS THE MOTHER OF THE DECEDENT. THE QUESTION OF ENTITLEMENT TO THE FATHER'S SHARE OF THE PAY DUE YOUR SON'S ESTATE WAS THE SUBJECT OF DECISION OF JANUARY 31. IT WAS POINTED OUT. THAT WHERE THE PREFERRED DISTRIBUTEE IS THE FATHER AND THE FATHER IS DEAD. THERE WAS NO LEGAL BASIS FOR ALLOWING THE STEPFATHER THE BALANCE DUE. WAS MADE. PROVIDES THAT WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE. THE DECEASED ENLISTED MAN IS NOT SURVIVED BY A WIDOW OR DESCENDANTS. THE DISTRIBUTION TO THE SURVIVING PARENTS IN EQUAL PARTS IS PREDICATED UPON RELATIONSHIP ALONE.

B-80090, MAR. 19, 1964

TO MRS. MAE ANDERSON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 28, 1964, AND ENCLOSURE, REFERRED TO OUR OFFICE BY THE U.S. NAVY FINANCE CENTER, CLEVELAND, OHIO, 44114, IN EFFECT REQUESTING RECONSIDERATION OF YOUR CLAIM FOR THE AMOUNT OF $695.29 WITHHELD ON CERTIFICATE OF SETTLEMENT NO. 1347413 DATED JUNE 19, 1946, AS THE FATHER'S SHARE OF PAY DUE LLOYD HENRY FORSMAN AT PRESUMPTIVE DATE OF DEATH, DECEMBER 17, 1945, AS SEAMAN FIRST CLASS, UNITED STATES NAVAL RESERVE. YOU WERE ALLOWED $695.29 ON CERTIFICATE OF SETTLEMENT NO. 1347413 AS THE MOTHER OF THE DECEDENT.

THE QUESTION OF ENTITLEMENT TO THE FATHER'S SHARE OF THE PAY DUE YOUR SON'S ESTATE WAS THE SUBJECT OF DECISION OF JANUARY 31, 1949, B 80090, TO MR. DAN J. KENNEY, ATTORNEY AT LAW, FAILING BUILDING, PORTLAND, OREGON. IT WAS POINTED OUT, AMONG OTHER THINGS, THAT WHERE THE PREFERRED DISTRIBUTEE IS THE FATHER AND THE FATHER IS DEAD, UNDER THE STATUTE THE BALANCE DUE WOULD BE FOR ALLOWANCE TO THE SURVIVING MOTHER. IN RESPONSE TO YOUR LETTER OF AUGUST 11, 1952, REQUESTING INFORMATION AS TO WHETHER CONSIDERATION MAY BE GIVEN TO A CLAIM BY THE STEPFATHER OF THE DECEDENT FOR THE FATHER'S SHARE OF THE PAY, OUR CLAIMS DIVISION IN LETTER DATED OCTOBER 20, 1952, ADVISED YOU, AMONG OTHER THINGS, THAT IN THE ABSENCE OF A SHOWING THAT THE STEPFATHER HAD LEGALLY ADOPTED THE DECEDENT, THERE WAS NO LEGAL BASIS FOR ALLOWING THE STEPFATHER THE BALANCE DUE.

THE ACT OF FEBRUARY 25, 1946, UNDER WHICH THE SETTLEMENT DATED JUNE 19, 1946, WAS MADE, PROVIDES THAT WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, AND THE DECEASED ENLISTED MAN IS NOT SURVIVED BY A WIDOW OR DESCENDANTS, THE AMOUNT MAY BE ALLOWED "TO THE FATHER AND MOTHER IN EQUAL PARTS," WHERE BOTH SURVIVE. THE DISTRIBUTION TO THE SURVIVING PARENTS IN EQUAL PARTS IS PREDICATED UPON RELATIONSHIP ALONE, NOT AFFECTED BY COLLATERAL QUESTIONS OF ABANDONMENT, SUPPORT, ETC., ON THE PART OF EITHER PARENT, AND THE FATHER'S SHARE COULD NOT LEGALLY BE ALLOWED TO YOU, AS MOTHER, WHILE HE WAS ALIVE. THE ORDER OF DISTRIBUTION SET FORTH IN THE 1946 ACT WAS RESTATED WITHOUT CHANGE IN SECTION 29 OF THE ACT OF SEPTEMBER 2, 1958, PUB.L. 85-861, 72 STAT. 1563, GOVERNING THE SETTLEMENT OF THE ACCOUNTS OF MEMBERS WHO DIED BEFORE JANUARY 1, 1956.

OUR RECORDS DO NOT SHOW THAT THE FATHER OF YOUR SON FILED A CLAIM AND AT THIS TIME A CLAIM FROM THE FATHER WOULD BE BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, COPY ENCLOSED. 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 THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE THE CLAIM FIRST ACCRUED. IN THIS CASE, THE CLAIM ACCRUED ON DECEMBER 17, 1945, THE PRESUMPTIVE DATE OF DEATH OF YOUR SON. THEREFORE YOUR CLAIM FOR THE FATHER'S SHARE MUST ALSO BE CONSIDERED AS BARRED UNDER THE ACT OF OCTOBER 9, 1940, UNLESS YOU PRESENT EVIDENCE THAT YOUR FORMER HUSBAND DIED PRIOR TO AUGUST 15, 1952, THE DATE WE RECEIVED YOUR LETTER OF AUGUST 11, 1952, REGARDING HIS SHARE OF THE PAY DUE IN THE CASE OF YOUR LATE SON.

WHILE WE APPRECIATE YOUR FEELINGS IN THE MATTER, WE TRUST YOU WILL UNDERSTAND THAT IN THE SETTLEMENT OF THE ACCOUNTS OF DECEASED PERSONNEL OF THE UNIFORMED SERVICES OUR OFFICE MUST BE GOVERNED BY THE FEDERAL STATUTES APPLICABLE IN SUCH CASES. CONSEQUENTLY, UNLESS EVIDENCE IS FURNISHED THAT YOUR LATE SON'S FATHER DIED PRIOR TO AUGUST 15, 1952, THERE IS NO PROPER BASIS UPON WHICH YOUR CLAIM FOR THE REMAINING ONE HALF OF PAY DUE YOUR DECEASED SON MAY RECEIVE FAVORABLE CONSIDERATION BY OUR OFFICE.