B-88358, FEB. 9, 1970

B-88358: Feb 9, 1970

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SINCE ALMOST 25 YEARS HAVE ELAPSED SINCE TIME OF PRESUMPTION OF DEATH OF AIR FORCE MEMBER. ROMEO AMENDOLA PAGLIARO: FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER REGARDING THE AMOUNT DUE THE ESTATE OF YOUR LATE SON RALPH T. YOU STATE THAT YOU COULD USE THE MONEY SINCE YOU AND YOUR HUSBAND ARE RETIRED AND LIVING ON HIS PENSION. PAYMENT OF THE AMOUNTS DUE THE ESTATE OF YOUR LATE SON WAS THE SUBJECT OF DECISION DATED OCTOBER 21. IN THAT DECISION IT WAS POINTED OUT THAT UNDER THE PERTINENT STATUTE. THE DATE HE WAS PRESUMED TO HAVE DIED. WAS RESERVED FOR HIS NATURAL FATHER AND THAT THE FATHER'S SHARE COULD BE ALLOWED TO YOU AS MOTHER ONLY IF IT IS ESTABLISHED THAT THE FATHER IS DEAD. YOU WERE FURTHER ADVISED THAT IN THE ABSENCE OF A SHOWING OF THE FATHER'S ACTUAL DEATH OR A JUDICIAL DETERMINATION OF HIS DEATH BY A PROPER COURT.

B-88358, FEB. 9, 1970

MILITARY--DECEDENTS' ESTATES--MOTHER'S ENTITLEMENT TO FATHER'S SHARE DECISION TO MOTHER OF DECEASED AIR CORPS MEMBER CONCERNING UNPAID BALANCE RESERVED FOR NATURAL FATHER. SINCE ALMOST 25 YEARS HAVE ELAPSED SINCE TIME OF PRESUMPTION OF DEATH OF AIR FORCE MEMBER, CLAIM MADE BY NATURAL FATHER WOULD BE BARRED AS WOULD CLAIM BY MOTHER FOR FATHER'S SHARE. HOWEVER, IF IT CAN BE ESTABLISHED THAT NATURAL FATHER DIED PRIOR TO DECEMBER 17, 1954, CLAIM COULD BE CONSIDERED.

TO MRS. ROMEO AMENDOLA PAGLIARO:

FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER REGARDING THE AMOUNT DUE THE ESTATE OF YOUR LATE SON RALPH T. AMENDOLA, SERGEANT, AIR CORPS. YOU STATE THAT YOU COULD USE THE MONEY SINCE YOU AND YOUR HUSBAND ARE RETIRED AND LIVING ON HIS PENSION.

ALSO YOU ASK ABOUT THE POSSIBILITY OF OBTAINING THE GOLD STAR PIN AND AMERICAN FLAG GIVEN TO ALL GOLD STAR MOTHERS.

PAYMENT OF THE AMOUNTS DUE THE ESTATE OF YOUR LATE SON WAS THE SUBJECT OF DECISION DATED OCTOBER 21, 1949, B-88358. IN THAT DECISION IT WAS POINTED OUT THAT UNDER THE PERTINENT STATUTE, THE UNPAID BALANCE OF APPROXIMATELY $854 DUE YOUR SON'S ESTATE ON APRIL 12, 1945, THE DATE HE WAS PRESUMED TO HAVE DIED, WAS RESERVED FOR HIS NATURAL FATHER AND THAT THE FATHER'S SHARE COULD BE ALLOWED TO YOU AS MOTHER ONLY IF IT IS ESTABLISHED THAT THE FATHER IS DEAD. YOU WERE FURTHER ADVISED THAT IN THE ABSENCE OF A SHOWING OF THE FATHER'S ACTUAL DEATH OR A JUDICIAL DETERMINATION OF HIS DEATH BY A PROPER COURT, THE BALANCE MAY BE ALLOWED ONLY TO A DULY APPOINTED REPRESENTATIVE OF YOUR SON'S ESTATE.

IN A SUBSEQUENT DECISION DATED APRIL 5, 1955, B-88358, WE ADVISED YOU THAT SETTLEMENT OF THE UNPAID BALANCE WAS BEING WITHHELD PENDING EITHER A SHOWING OF THE FATHER'S DEATH, OR A JUDICIAL DETERMINATION OF HIS DEATH BY A PROPER COURT, OR THE RECEIPT OF A CERTIFICATE SHOWING YOUR APPOINTMENT AS THE LEGAL REPRESENTATIVE OF YOUR SON'S ESTATE. WE SUGGESTED THAT YOU SECURE THE ASSISTANCE OF A LOCAL VETERANS' ORGANIZATION FOR ADVICE ON THE REQUIRED LEGAL PROCEDURE IN THE MATTER.

AS TO THE PRESENT STATUS OF THE MATTER, THE DECEDENT'S FATHER HAD A PERIOD OF TEN YEARS FROM APRIL 12, 1945, DATE OF YOUR SON'S PRESUMED DEATH, IN WHICH TO FILE A CLAIM FOR HIS SHARE OF THE PROCEEDS DUE THE DECEDENT'S ESTATE, UNDER THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 UNITED STATES CODE 71A, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"(1) EVERY CLAIM OR DEMAND * * * AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND 236 OF THIS TITLE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM * * * SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: * *

"(2) WHENEVER ANY CLAIM BARRED BY SUBSECTION (1) OF THIS SECTION SHALL BE RECEIVED IN THE GENERAL ACCOUNTING OFFICE, IT SHALL BE RETURNED TO THE CLAIMANT WITH A COPY OF THIS SECTION, AND SUCH ACTION SHALL BE A COMPLETE RESPONSE WITHOUT FURTHER COMMUNICATION."

A PERIOD OF ALMOST 25 YEARS HAS ELAPSED FROM APRIL 12, 1945. NO CLAIM OR INQUIRY HAS BEEN MADE BY HIM DURING THIS PERIOD. THEREFORE, WE ARE BARRED FROM CONSIDERING ANY CLAIM THAT NOW MAY BE FILED BY YOUR LATE SON'S FATHER FOR HIS SHARE OF THE PROCEEDS OF YOUR SON'S ESTATE.

YOUR RIGHT TO CLAIM THE FATHER'S SHARE COULD ACCRUE ONLY UPON THE DEATH OF THE FATHER, SINCE YOU HAD NO RIGHT TO HIS SHARE WHILE HE REMAINS ALIVE. IF, THEREFORE, THE FATHER DIED SUBSEQUENT TO APRIL 12, 1955 (WHICH IS MORE THAN 10 YEARS FROM DATE OF ACCRUAL OF THE CLAIM), ANY CLAIM RECEIVED FROM YOU FOR HIS SHARE AFTER HIS DEATH IS LIKEWISE BARRED BY THE 1940 ACT. IF, HOWEVER, IT CAN BE ESTABLISHED THAT THE FATHER DIED PRIOR TO DECEMBER 17, 1954, THE DATE ON WHICH YOUR LETTER OF NOVEMBER 19, 1954, TO THE PRESIDENT, WAS RECEIVED IN THIS OFFICE, FURTHER CONSIDERATION WILL BE GIVEN YOUR CLAIM FOR THE AMOUNT DUE IN THE CASE.

WITH RESPECT TO YOUR REQUEST FOR A GOLD STAR PIN AND AN AMERICAN FLAG, IT IS SUGGESTED THAT YOU WRITE TO THE OFFICE OF THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, WASHINGTON, D.C; AS TO THE PIN AND TO THE VETERANS ADMINISTRATION, WASHINGTON, D.C; WITH RESPECT TO THE FLAG.