B-142054, MAY 23, 1960

B-142054, MAY 23, 1960

TO MRS. COLEY L. BAIRD:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 6, 1960, FURTHER CONCERNING YOUR CLAIM FOR THE SIX MONTHS' DEATH GRATUITY DUE IN THE CASE OF YOUR SON, COLEY ROBERT BAIRD, 454 99 74, WHO DIED ON JANUARY 31, 1959, WHILE SERVING AS ELECTRONICS TECHNICIAN, THIRD CLASS, UNITED STATES NAVY, AT THE NAVAL ORDNANCE MISSILE TEST CENTER, WHITE SANDS, NEW MEXICO.

WE ADVISED YOU IN OUR LETTER DATED APRIL 27, 1960, B-142054, THAT A CLAIM FOR SUCH GRATUITY HAD ALSO BEEN SUBMITTED ON BEHALF OF YOUR SON'S STEPCHILDREN, DEBRA LYNN HAMIL AND ROBERT DALE HAMIL, AND THAT IN VIEW OF THE CONFLICTING CLAIMS AND SINCE THERE IS INSUFFICIENT EVIDENCE IN THE FILE TO MAKE A DETERMINATION AS TO THE PERSON ENTITLED TO RECEIVE THE GRATUITY, WE WILL WITHHOLD SETTLEMENT WITH RESPECT THERETO UNTIL SUCH TIME AS A COURT OF COMPETENT JURISDICTION DETERMINES WHETHER OR NOT THE STEPCHILDREN WERE A PART OF YOUR SON'S HOUSEHOLD AT THE TIME OF HIS DEATH.

YOU SAY THAT IT SEEMS TO YOU THAT YOU AND YOUR HUSBAND, AS DESIGNATED PARENTS, ARE ELIGIBLE FOR THE DEATH GRATUITY, UNLESS IT IS ESTABLISHED THAT THE STEPCHILDREN WERE A PART OF YOUR SON'S HOUSEHOLD AT THE TIME OF HIS DEATH AND THAT IT ALSO SEEMS TO YOU THAT THE BURDEN OF ESTABLISHING ELIGIBILITY IS UPON THE CHILDREN AND THEIR GUARDIAN, RATHER THAN UPON YOU. YOU ALSO SAY THAT YOUR LATE SON'S DIARY AND ALL OF THE OTHER AVAILABLE EVIDENCE CLEARLY SHOW THAT ON OR BEFORE JANUARY 9, 1959, OR ABOUT THREE WEEKS BEFORE HIS DEATH, HIS WIFE HAD LEFT THE APARTMENT HE HAD FURNISHED AND, WITH HER TWO CHILDREN, HAD TAKEN UP RESIDENCE ELSEWHERE; THAT HE HAD CLOSED OUT ALL UTILITIES AND HAD GIVEN UP HIS APARTMENT COMPLETELY; AND THAT HE HAD RETURNED TO LIVE IN THE BARRACKS ON THE BASE. YOU THEN SAY IT SEEMS UNEQUIVOCALLY CLEAR, AS A MATTER OF FACT, THAT THE TWO CHILDREN WERE NOT LIVING IN YOUR SON'S HOUSEHOLD AT THE TIME OF HIS DEATH BECAUSE HE WAS THEN LIVING ON THE BASE AND HAD NO HOUSEHOLD AND THAT YOU CANNOT UNDERSTAND WHY THERE IS ANY DOUBT IN THE MATTER. YOU SAY THAT IF THE FACTS, AS REPORTED BY YOU, ARE NOT NOW AVAILABLE TO US, THEN YOU SUGGEST THAT WE CALL UPON THE DEPARTMENT OF THE NAVY OR UPON YOUR LATE SON'S COMMANDING OFFICER FOR THIS INFORMATION FOR YOU ARE SURE IT IS A MATTER OF OFFICIAL RECORD AND WILL PERMIT A PROPER AND CORRECT DETERMINATION THAT YOU ARE ENTITLED TO THE DEATH GRATUITY. YOU ALSO SAY THAT YOU ARE AT A LOSS TO UNDERSTAND WHAT COURT WOULD HAVE JURISDICTION TO MAKE A DECISION, WHEN THE FACTS ARE SO CLEAR AND SO EASILY AVAILABLE ON WHICH TO MAKE A JUST DECISION. IT IS NOTED THAT YOU DO NOT FURNISH ANY DOCUMENTARY EVIDENCE IN SUPPORT OF YOUR STATEMENTS. YOU MENTION, INCIDENTALLY, THAT THE COSTS OF BURIAL OF YOUR SON'S REMAINS AND OTHER INCIDENTAL COSTS INVOLVED WERE BORNE BY YOU, HIS PARENTS.

IN VIEW OF THE STATEMENTS MADE BY YOU IN YOUR LETTER DATED MAY 6, 1960, WE HAVE CAREFULLY REEXAMINED OUR FILE ON THIS CASE. YOUR STATEMENTS REGARDING THE CASE ARE CONTAINED IN THE NOTARIZED AFFIDAVIT EXECUTED BY YOU ON FEBRUARY 16, 1959, AND IN YOUR LETTER DATED MAY 6, 1960. ON THE OTHER HAND, THE FILE ALSO CONTAINS A NOTARIZED AFFIDAVIT EXECUTED ON MARCH 5, 1959, BY HOLLIS E. MATHIS, MATERNAL GRANDFATHER AND CUSTODIAN OF DEBRA LYNN HAMIL AND ROBERT DALE HAMIL. IN SUCH AFFIDAVIT HE STATES THAT COLEY ROBERT BAIRD AND RETA SUE MATHIS BAIRD WERE MARRIED ON OCTOBER 29, 1958; THAT FROM THAT DATE UNTIL ON OR ABOUT JANUARY 1, 1959, THEY MAINTAINED THEIR HOME AT 1512 1/2 FOSTER ROAD, LAS CRUCES, NEW MEXICO, TOGETHER WITH DEBRA LYNN HAMIL AND ROBERT DALE HAMIL, THE MINOR CHILDREN OF RETA SUE BAIRD; AND THAT DURING THAT TIME COLEY ROBERT BAIRD PAID ALL THE EXPENSES INCIDENT TO THE HOUSEHOLD AND AS WELL PROVIDED ALL THE SUPPORT FOR SUCH MINOR CHILDREN. IN THAT AFFIDAVIT HE FURTHER STATES THAT ON OR ABOUT JANUARY 1, 1959, THE PLACE PREVIOUSLY MENTIONED CEASED TO BE THE RESIDENCE OF COLEY ROBERT BAIRD AND FAMILY; THAT FROM THAT DATE UNTIL JANUARY 31, 1959, A RESIDENCE WAS MAINTAINED AT AN APARTMENT IN LAS CRUCES, NEW EXICO; AND THAT TO THE BEST OF HIS KNOWLEDGE HE BELIEVES THAT COLEY ROBERT BAIRD BORE A PART OR ALL OF THE EXPENSES OF THIS LATTER HOUSEHOLD; BUT THAT HE HAS NO KNOWLEDGE AS TO WHETHER COLEY ROBERT BAIRD DID IN FACT LIVE AND RESIDE IN SAID HOUSEHOLD DURING ALL OR ANY OF SAID TIME. SO FAR AS IS DISCLOSED IN THE FILE FORWARDED TO US BY THE DEPARTMENT OF THE NAVY, THAT DEPARTMENT MADE NO DETERMINATION AS TO THE CORRECTNESS OF THE STATEMENTS MADE BY YOU OR AS TO THE CORRECTNESS OF THE STATEMENTS MADE BY HOLLIS E. MATHIS.

IT IS THE LONG ESTABLISHED RULE THAT THE BURDEN IS ON CLAIMANTS TO PROVE THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO REQUISITE TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES AND THEIR RIGHT TO PAYMENT UNDER THE APPROPRIATIONS INVOLVED. 31 COMP. GEN. 340, 341. IN OTHER WORDS, SINCE YOU AND YOUR HUSBAND ARE ENTITLED TO THE DEATH GRATUITY IN THIS CASE ONLY IN THE EVENT THAT YOUR SON'S STEPCHILDREN ARE NOT ENTITLED THERETO, IT IS INCUMBENT UPON YOU TO PROVE THAT THEY ARE NOT SO ENTITLED. THE LAW MAKES NO PROVISION FOR PAYMENT OF THE GRATUITY TO THOSE WHO PAID THE FUNERAL EXPENSES OF THE DECEDENT.

YOU MAY, OF COURSE, SUBMIT ANY ADDITIONAL EVIDENCE WHICH YOU WISH TO SUBMIT FOR CONSIDERATION WITH YOUR CLAIM. IN THIS CONNECTION, IT MAY BE STATED THAT IT WOULD APPEAR THAT A COMPETENT COURT OF THE JURISDICTION IN WHICH YOUR SON WAS RESIDING AT THE TIME OF HIS DEATH COULD MAKE A DETERMINATION AS TO WHETHER OR NOT HIS STEPCHILDREN WERE A PART OF HIS HOUSEHOLD AT THAT TIME. IF YOU ARE DISSATISFIED WITH THE ACTION TAKEN BY US ON YOUR CLAIM, YOU MAY, OF COURSE, FILE SUIT IN THE UNITED STATES COURT OF CLAIMS. SEE 28 U.S.C. 1491.