B-134295, DEC. 9, 1957

B-134295, DEC. 9, 1957

TO LIEUTENANT COLONEL C. W. GRIFFIN, FINANCE OFFICER, UNITED STATES AIR FORCE:

YOUR LETTER DATED OCTOBER 15, 1957, REQUESTS OUR DECISION WHETHER THE ENCLOSED VOUCHER FOR $857.70 IN FAVOR OF MRS. VIOLET IRENE BOWEN MAY BE CERTIFIED FOR PAYMENT. THE VOUCHER REPRESENTS THE SIX MONTHS' DEATH GRATUITY IN THE CASE OF RALPH EDWIN BOWEN, AIRMAN FIRST CLASS, AF 1944 3070.

THE PAYMENT OF THE DEATH GRATUITY IN THIS CASE IS GOVERNED BY THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 903, WHICH PROVIDED THAT THE DEATH GRATUITY SHOULD BE PAID UPON THE DEATH OF ANY OFFICER OR ENLISTED MAN

"* * * TO THE WIDOW, AND IF THERE BE NO WIDOW TO THE CHILD OR CHILDREN, AND IF THERE BE NO WIDOW OR CHILD TO ANY OTHER DEPENDENT RELATIVE OF SUCH OFFICER OR ENLISTED MAN PREVIOUSLY DESIGNATED BY HIM * * *.'

A COPY OF THE CASUALTY REPORT ATTACHED TO THE VOUCHER SHOWS THAT AIRMAN BOWEN DIED ON FEBRUARY 17, 1955, AND THAT HE DESIGNATED MRS. MYRNA J. BOWEN, WIFE, AND MRS. VIOLET IRENE BOWEN, MOTHER, AS PRIMARY BENEFICIARIES, EACH TO RECEIVE FIFTY PERCENT. THE RECORD SHOWS THAT MYRNA BOWEN WAS GRANTED A DECREE OF DIVORCE FROM THE DECEDENT ON FEBRUARY 2, 1955, IN THE CIRCUIT COURT OF THE STATE OF OREGON, FOR THE COUNTY OF MULTNOMAH. ON JULY 31, 1955, A CHILD WAS BORN TO MYRNA BOWEN. INASMUCH AS THE CHILD MUST HAVE BEEN CONCEIVED DURING THE PERIOD OF MARRIAGE, THE CHILD IS PRESUMED TO BE THE POSTHUMOUS CHILD OF THE DECEDENT AND AS SUCH WOULD BE THE PROPER RECIPIENT OF THE SIX MONTHS' DEATH GRATUITY. SEE 34 COMP. GEN. 415. HOWEVER, MYRNA BOWEN HAS FAILED TO CLAIM THESE BENEFITS FOR THE CHILD AND ADMINISTRATIVE EFFORTS TO ESTABLISH NECESSARY FACTS IN ORDER THAT THE GRATUITY AND ARREARS OF PAY BE PAID TO THE PROPER BENEFICIARY HAVE PROVED FUTILE. THEREFORE, YOU REQUEST OUR DECISION AS TO WHETHER PAYMENT OF THE GRATUITY MAY BE MADE TO THE DECEDENT'S MOTHER.

IN REGARD TO DESCENT, SECTION 010 (5), CHAPTER III, OREGON REVISED STATUTES, PROVIDES THAT A POSTHUMOUS CHILD SHALL BE DEEMED LIVING AT THE DEATH OF ITS PARENT. IN THE CASE OF THE STATE V. ATWOOD, 102 P. 295, 297, 54 OR. 526, 21 ANN.CAS. 516, THE SUPREME COURT OF OREGON HELD THAT A ,POSTHUMOUS CHILD" IS IN ESSE FROM THE TIME OF ITS CONCEPTION. THUS, IT IS CLEAR THAT UNDER THE LAW OF THE STATE OF OREGON THE DECEDENT WAS SURVIVED BY HIS CHILD. HENCE, IN THE ABSENCE OF A WIDOW, THE DECEDENT'S POSTHUMOUS CHILD AND NOT HIS MOTHER WOULD BE ENTITLED TO THE DEATH GRATUITY BENEFITS, UNDER THE ACT OF DECEMBER 17, 1919, AS AMENDED. WHILE IT APPEARS TO BE THE CLAIMANT'S VIEW THAT THE CHILD WAS NOT IN FACT FATHERED BY THE DECEDENT, THE GENERAL RULE OF LAW IS THAT A CHILD BEGOTTEN OR BORN DURING WEDLOCK IS PRESUMED LEGITIMATE AND THIS PRESUMPTION OF LEGITIMACY PREVAILS UNTIL OVERTHROWN BY CLEAR AND CONVINCING PROOF. C.J.S. 48, 7 AM.JUR. 656.

IN THESE CIRCUMSTANCES, THE PROTECTION OF THE UNITED STATES AND THE PARTIES CONCERNED REQUIRE THAT PAYMENT OF THE BENEFITS BE WITHHELD FROM THE DECEDENT'S MOTHER UNTIL IT IS DETERMINED IN A COURT OF COMPETENT JURISDICTION THAT THE DECEDENT WAS NOT SURVIVED BY HIS CHILD. IN THIS CONNECTION IT MAY BE STATED THAT THE BURDEN OF ESTABLISHING THE VALIDITY OF THEIR CLAIMS AGAINST THE UNITED STATES RESTS UPON THE CLAIMANTS.