B-93772, DEC. 23, 1965

B-93772, DEC. 23, 1965

TO MRS. MYRTLE A. PAISLEY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 28, 1965, TO PRESIDENT LYNDON B. JOHNSON CONCERNING YOUR CLAIM FOR THE REMAINING ONE- HALF OF THE ACCRUED PAY DUE IN THE CASE OF YOUR LATE SON, SERGEANT JOHN W. PAISLEY, AIR CORPS, WHICH WAS THE SUBJECT OF OUR DECISIONS OF JUNE 14, 1950, AND DECEMBER 2, 1963, B-93772, TO YOU.

YOU WERE ADVISED IN THOSE DECISIONS THAT THE ACT OF JUNE 30, 1906, AS AMENDED BY SECTION 4 OF THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, 10 U.S.C. 868 (1952 ED.), 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. YOU WERE ALSO ADVISED THAT 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 THAT 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.

YOU WERE FURTHER ADVISED IN THE DECISION OF DECEMBER 2, 1963, THAT SINCE YOUR SON'S WILL WAS NOT PROBATED, HIS FATHER WOULD HAVE BEEN ENTITLED UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 25, 1946, TO THE REMAINING ONE -HALF OF THE ACCRUED PAY DUE HIS SON IF THE FATHER HAD FILED A CLAIM, BUT THAT HIS RIGHT THERETO IS NOW BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061. 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.

THE MATTERS PRESENTED BY YOU IN YOUR LETTER OF NOVEMBER 28, 1965, AS A BASIS FOR RECONSIDERING YOUR CLAIM WERE ALL TAKEN INTO CONSIDERATION IN THE PRIOR ACTIONS ON YOUR CASE, AND AS POINTED OUT IN THE DECISION OF DECEMBER 2, 1963, YOUR CLAIM IN ANY CAPACITY NECESSARILY MUST BE CONSIDERED AS BARRED UNDER THE ACT OF OCTOBER 9, 1940, UNLESS YOU PRESENT EVIDENCE THAT YOUR FORMER HUSBAND DIED PRIOR TO FEBRUARY 10, 1950, THE DATE WE RECEIVED YOUR LETTER OF FEBRUARY 8, 1950, REGARDING HIS SHARE OF THE ARREARS OF PAY DUE IN THE CASE OF YOUR LATE SON. ACCORDINGLY, ON THE PRESENT RECORD, WE MAY NOT ALLOW YOUR CLAIM.

RELATIVE TO THE PRESIDENT'S ACTION IN THIS MATTER, SECTIONS 71 AND 74 OF TITLE 31, UNITED STATES CODE, PROVIDES THAT ALL CLAIMS AND DEMANDS AGAINST THE UNITED STATES SHALL BE SETTLED AND ADJUSTED IN THE GENERAL ACCOUNTING OFFICE AND THAT SUCH SETTLEMENT SHALL BE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. PRESUMABLY FOR THIS REASON, YOUR LETTER TO PRESIDENT JOHNSON WAS FORWARDED TO OUR OFFICE FOR CONSIDERATION AND REPLY. WE TRUST YOU WILL UNDERSTAND THAT OUR OFFICE HAS JURISDICTION IN THE MATTER UNDER THE CITED CODE PROVISIONS AND MUST BE GOVERNED BY THE APPLICABLE STATUTORY PROVISIONS, INCLUDING THE PROVISIONS OF THE BARRING ACT, IN THE CONSIDERATION OF YOUR CLAIM.