B-154689, OCT. 26, 1964

B-154689, OCT. 26, 1964

TO MRS. MARIE F. KRAMER:

REFERENCE IS MADE TO SEVERAL LETTERS WRITTEN IN YOUR BEHALF BY MR. AARON KRAVITCH, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR ARREARS OF PAY AND SIX MONTHS' DEATH GRATUITY INCIDENT TO THE DEATH OF YOUR HUSBAND, THE LATE TECHNICAL SERGEANT COLONEL A. KRAMER, UNITED STATES AIR FORCE, WHICH WAS DISALLOWED BY SETTLEMENT OF OUR OFFICE DATED AUGUST 21, 1964.

MR. KRAVITCH EXPRESSES DISSATISFACTION WITH OUR REPORT OF AUGUST 24, 1964, TO SENATOR RUSSELL IN THE MATTER AND WITH OUR SETTLEMENT DATED AUGUST 31, 1964, WHICH DISALLOWED YOUR CLAIM FOR THE REASON THAT THE MATTER IS TOO DOUBTFUL TO WARRANT PAYMENT TO YOU AND WHICH STATED THAT SUCH PAYMENT MAY BE MADE ONLY PURSUANT TO A JUDICIAL DETERMINATION ESTABLISHING YOUR RIGHT. MR. KRAVITCH SAYS THAT INASMUCH AS WE INDICATED IN OUR LETTER TO SENATOR RUSSELL THAT THE VETERANS BENEFITS OFFICE, VETERANS ADMINISTRATION, DETERMINED ON JULY 24, 1964, THAT YOU HAD NOT FORFEITED YOUR ENTITLEMENT TO VETERANS ADMINISTRATION BENEFITS, WE HAVE OVERRULED THE FINDINGS OF THE VETERANS ADMINISTRATION, ON THE BASIS THAT THE DECISIONS OF THE VETERANS ADMINISTRATION ARE FINAL AND CONCLUSIVE. HOWEVER, HE DID REQUEST INFORMATION ON THE PROCEDURE FOR FILING AN APPEAL EITHER BEFORE A REVIEW BOARD OR THE UNITED STATES DISTRICT COURT.

IT IS STATED FURTHER BY MR. KRAVITCH THAT ALL OF THE EVIDENCE IN SUPPORT OF YOUR CASE WAS NOT FURNISHED AT THE PRELIMINARY HEARING AND IT IS NOT PROPER TO BASE OUR FINDINGS ON AN INCOMPLETE RECORD OF THE RECORDER'S COURT AND A LETTER FROM AN INVESTIGATOR IN THE PROSECUTOR'S OFFICE, RATHER THAN THE FINDINGS OF THE COURT AND JURY BASED ON THE COMPLETE TESTIMONY PRESENTED AT YOUR TRIAL. IN THIS CONNECTION HE SAYS THAT THE RECORD OF THE TRIAL IS IN THE POSSESSION OF THE COURT STENOGRAPHER AND HE INDICATES THE VIEW THAT, IN ORDER TO GIVE THE MATTER PROPER CONSIDERATION, WE SHOULD OBTAIN A TRANSCRIPT OF THE RECORD, AT GOVERNMENT EXPENSE. ALSO HE REPEATED THE STATEMENT THAT THE KILLING WAS NOT WILLFUL OR DELIBERATE, BUT WAS COMMITTED IN SELF DEFENSE WHILE YOU WERE SUFFERING FROM AMNESIA AND SHOCK DUE TO A TERRIFIC BLOW ADMINISTERED TO YOU ON THE FOREHEAD WITH AN ARMY SHOE BY SERGEANT KRAMER, RENDERING YOU TEMPORARILY INCAPABLE OF FORMING ANY INTENT TO KILL AND ON THAT BASIS HE SAYS THE JURY PROMPTLY ACQUITTED YOU.

THE LAWS RELATING TO VETERANS BENEFITS ARE SEPARATE AND DISTRICT FROM THE LAWS RELATING TO THE SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE ARMED FORCES OR THE PAYMENT OF SIX MONTHS' DEATH GRATUITY. SEE 10 U.S.C. 1475-1480 AND 2771 (C). HENCE, THE DETERMINATION MADE BY THE VETERANS ADMINISTRATION AS TO YOUR RIGHT TO VETERANS BENEFITS ADMINISTERED BY THAT AGENCY DOES NOT PRECLUDE THIS OFFICE FROM REACHING A DIFFERENT CONCLUSION WITH RESPECT TO THE GRATUITY AND ARREARS OF PAY. SEE THOMPSON V. FLEMMING, 188 F.SUPP. 123 (1960). AND, THE DECISIONS OF THIS OFFICE ON MATTERS WITHIN ITS JURISDICTION ARE FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. HENCE, OUR DECISION IN THIS CASE IS NOT SUBJECT TO REVIEW BY THE BOARD OF VETERANS APPEALS.

IN OUR LETTER OF AUGUST 24, 1964, B-154689, TO SENATOR RUSSELL, WE OUTLINED THE CONFLICTING TESTIMONY CONTAINED IN THE HEARING IN THE RECORDER'S COURT OF THE CITY OF SAVANNAH AND CONCLUDED ON THE RECORD BEFORE US THAT THE MATTER IS TOO DOUBTFUL TO WARRANT PAYMENT OF THE ARREARS OF PAY AND SIX MONTHS' DEATH GRATUITY WITHOUT A JUDICIAL DETERMINATION ESTABLISHING YOUR RIGHT. THAT CONCLUSION WAS BASED ON THE RECORD FURNISHED US BY THE DEPARTMENT OF THE AIR FORCE IN CONNECTION WITH YOUR CLAIM. ALSO, WE OBTAINED COPIES OF CERTAIN PAPERS ON FILE IN THE VETERANS ADMINISTRATION CONCERNING THE MATTER.

WITH RESPECT TO OBTAINING A TRANSCRIPT OF THE RECORD OF YOUR TRIAL, IT LONG HAS BEEN THE PRACTICE OF OUR OFFICE TO SETTLE CLAIMS ON THE BASIS OF THE RECORD PRESENTED TO US IN SUPPORT OF THE CLAIM. IT IS NOT OUR RESPONSIBILITY TO SEEK EVIDENCE TO ESTABLISH THE VALIDITY OF CLAIMS PRESENTED TO US BUT, RATHER, IT IS THE RESPONSIBILITY OF THE CLAIMANT TO PRESENT SUFFICIENT EVIDENCE TO ESTABLISH ENTITLEMENT TO THE AMOUNT CLAIMED. HENCE, WE MAY NOT ATTEMPT TO OBTAIN A TRANSCRIPT OF THE RECORD OF YOUR TRIAL. WE WILL, HOWEVER, GIVE CAREFUL CONSIDERATION TO ANY ADDITIONAL EVIDENCE THAT YOU SUBMIT IN SUPPORT OF YOUR CLAIM FOR THE AMOUNTS INVOLVED.

ON THE EVIDENCE BEFORE US AS TO THE CIRCUMSTANCES LEADING UP TO THE DEATH OF SERGEANT KRAMER, WE WOULD NOT BE JUSTIFIED IN CONCLUDING THAT A CLEAR CASE OF ACCIDENT OR SELF-DEFENSE IS PRESENT. ACCORDINGLY, IN THE ABSENCE OF EVIDENCE CLEARLY ABSOLVING YOU OF RESPONSIBILITY FOR HIS DEATH, THE MATTER IS TOO DOUBTFUL TO WARRANT PAYMENT OF THE ARREARS OF PAY OR THE SIX MONTHS' DEATH GRATUITY TO YOU EXCEPT PURSUANT TO A JUDICIAL DETERMINATION ESTABLISHING YOUR RIGHT TO SUCH PAYMENTS. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288, 291; CHARLES V. UNITED STATES, 19 CT.CL. 316, 319.

WITH REGARD TO THE PROCEDURE FOR FILING AN APPEAL, YOU ARE ADVISED THAT CERTAIN SUITS MAY BE FILED IN THE APPROPRIATE UNITED STATES DISTRICT COURT OR THE COURT OF CLAIMS. THE LOCAL UNITED ..END :