B-165194, JAN. 13, 1969

B-165194, JAN. 13, 1969

TO MRS. CHARLES H. KELLEY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 17, 1968, AND ENCLOSURES, RELATIVE TO THE SIX MONTHS' DEATH GRATUITY DUE IN THE CASE OF YOUR SON, PATRICK G. KELLEY, WHO DIED SEPTEMBER 4, 1967, WHILE SERVING IN THE UNITED STATES MARINE CORPS.

THE CLAIM OF CHARLES H. KELLEY, AS FATHER AND THE DESIGNATED BENEFICIARY OF YOUR SON, FOR THE SIX MONTHS' DEATH GRATUITY WAS DISALLOWED BY OUR CLAIMS DIVISION ON OCTOBER 10, 1968, IN THE ABSENCE OF EVIDENCE THAT JAMES DALE GILLETTE IS NOT THE CHILD OF YOUR DECEASED SON. YOU SET FORTH CERTAIN FACTS IN YOUR LETTER OF OCTOBER 17, 1968, CONCERNING YOUR SON AND CLARA JO CAUDLE, HIS FORMER WIFE AND MOTHER OF JAMES DALE GILLETTE, AND YOU HAVE FURNISHED A COPY OF THEIR DIVORCE DECREE DATED APRIL 11, 1966. ALSO, YOU HAVE FURNISHED A COPY OF A STATEMENT DATED OCTOBER 17, 1968, BY SUSAN M. HARMAN AND LESTER L. HARMAN, SWORN TO BY SUSAN M. HARMAN IN THE PRESENCE OF A NOTARY PUBLIC, CONCERNING THEIR KNOWLEDGE AS TO THE RELATIONSHIP OF YOUR SON AND HIS FORMER WIFE.

IN YOUR LETTER OF OCTOBER 17, 1968, YOU SAY YOU DO NOT BELIEVE THAT JAMES DALE GILLETE IS YOUR SON'S CHILD; THAT THE CHILD WAS BORN SEPTEMBER 7, 1966, AFTER THE DIVORCE OF YOUR SON AND THE CHILD'S MOTHER BECAME FINAL ON JUNE 9, 1966; AND THAT ON SEPTEMBER 22 OR 23, 1966, THE MOTHER WAS MARRIED TO JAMES GILLETTE, SR. YOU ALSO SAY THAT DURING THE PERIOD OF CONCEPTION OF THE CHILD, DECEMBER 1965 THROUGH JANUARY 1966, YOUR SON WAS SEPARATED FROM HIS WIFE AND SHE WAS LIVING AT THE SAME RESIDENCE AS ANOTHER MAN WHO YOU SAY SHE HAS STATED IS THE FATHER OF THE CHILD. YOUR LETTER WILL BE CONSIDERED AS AN APPEAL BY YOUR HUSBAND TO THE SETTLEMENT OF OCTOBER 10, 1968, DISALLOWING HIS CLAIM.

SECTION 1477 OF TITLE 10, U.S.C. PROVIDES IN PERTINENT PART AS FOLLOWS:

"/A) A DEATH GRATUITY * * * SHALL BE PAID TO OR FOR THE LIVING SURVIVOR HIGHEST ON THE FOLLOWING LIST:

"/1) HIS SURVIVING SPOUSE.

"/2) HIS CHILDREN, AS PRESCRIBED BY SUBSECTION (B) IN EQUAL SHARES.

"/3) IF DESIGNATED BY HIM, ANY ONE OR MORE OF THE FOLLOWING PERSONS:

"/A) HIS PARENTS OR PERSONS IN LOCO PARENTIS, AS PRESCRIBED BY SUBSECTION (C).

THIS SECTION PROVIDING FOR THE PAYMENT OF A DEATH GRATUITY, PLACES A PARENT, EVEN THOUGH DESIGNATED AS BENEFICIARY, THIRD IN THE ORDER OF PRECEDENCE OF ELIGIBLE SURVIVORS. THE SURVIVING SPOUSE AND CHILDREN OF THE DECEDENT ARE PLACED FIRST AND SECOND, RESPECTIVELY, IN THE ORDER OF PRECEDENCE FOR THE RECEIPT OF THIS GRATUITY.

IT IS THE DUTY OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO REJECT CLAIMS AS TO THE VALIDITY OF WHICH THEY ARE IN DOUBT. THOSE PERSONS ASSERTING CLAIMS AGAINST THE UNITED STATES HAVE THE BURDEN OF ESTABLISHING THE VALIDITY OF THEIR CLAIMS, AND THE ACCOUNTING OFFICERS ARE NOT REQUIRED OR AUTHORIZED TO CERTIFY FOR PAYMENT CLAIMS NOT SO ESTABLISHED. LONGWILL V UNITED STATES, 17 CT. CL. 288; CHARLES V UNITED STATES, 19 CT. CL. 316.

WHILE YOUR SON IS NOT SURVIVED BY A WIDOW, THE RECORD INDICATES THAT HE MAY BE SURVIVED BY A CHILD WHO, IF THE RELATIONSHIP IS ESTABLISHED, IS ENTITLED TO PAYMENT OF THE DEATH GRATUITY IN PREFERENCE TO A PARENT DESIGNATED AS BENEFICIARY. IN THIS CONNECTION OUR FILE CONTAINS A COPY OF A LETTER DATED FEBRUARY 11, 1968, FROM CLARA JO KELLEY IN WHICH SHE SAID THAT HER FORMER HUSBAND, PATRICK G. KELLEY, DECEASED, WAS THE FATHER OF HER SON, JAMES DALE. THUS, THERE IS TOO MUCH DOUBT AS TO THE RIGHTFUL BENEFICIARY OF THE GRATUITY AUTHORIZED INCIDENT TO THE DEATH OF YOUR SON TO WARRANT A CONCLUSION ON THE RECORD BEFORE US THAT A GOOD ACQUITTANCE COULD BE OBTAINED BY THE GOVERNMENT UPON SETTLEMENT WITH YOUR HUSBAND.

REGARDING YOUR REQUEST AS TO WHETHER THERE IS ANY FURTHER INFORMATION YOU COULD FURNISH IN CONNECTION WITH THIS MATTER, IT MAY BE STATED THAT SECTION 41.350 (6), OREGON REVISED STATUTES, PROVIDES THAT THE ISSUE OF A WIFE COHABITING WITH HER HUSBAND, WHO IS NOT IMPOTENT, IS CONCLUSIVELY PRESUMED TO BE LEGITIMATE. THE TERM COHABIT MEANS LIVING OR RESIDING TOGETHER, AND IT HAS BEEN HELD THAT THE CONCLUSIVE PRESUMPTION OF LEGITIMACY ARISES ONLY WHERE THE WIFE IS COHABITING WITH THE HUSBAND AT THE TIME OF CONCEPTION OF THE CHILD. BURKE V BURKE (SUPREME COURT OF OREGON, 1959), 340 P.2D 948.

IN VIEW OF YOUR ALLEGATIONS THAT YOUR SON AND HIS WIFE WERE NOT RESIDING TOGETHER AT THE TIME THE CHILD WAS CONCEIVED AND THAT SHE HAS SAID ANOTHER MAN IS THE FATHER OF SUCH CHILD, WE WILL GIVE CONSIDERATION TO AN AFFIDAVIT BY THE MOTHER SETTING FORTH THE FACTS WITH RESPECT TO WHO IS THE FATHER OF THE CHILD. ALSO, IF THE ALLEGED FATHER RECOGNIZES THAT HE IS THE FATHER OF SUCH CHILD WE WILL GIVE CONSIDERATION TO AN AFFIDAVIT TO THAT EFFECT, EXECUTED BY HIM, OR OTHER EVIDENCE SHOWING THAT HE HAS RECOGNIZED IN WRITING THAT HE IS THE FATHER OF THE CHILD.

IF YOU OR YOUR HUSBAND ARE UNABLE TO FURNISH SUCH AFFIDAVITS OR OTHER EVIDENCE WHICH WILL ESTABLISH THAT YOUR SON COULD NOT BE THE CHILD'S FATHER, WE ARE OF THE OPINION THAT THE MATTER IS TOO DOUBTFUL FOR US TO ALLOW YOUR HUSBAND THE GRATUITY IN THE ABSENCE OF A JUDICIAL DETERMINATION OF THE CHILD'S PATERNITY BY A COURT OF COMPETENT JURISDICTION. HOWEVER, YOUR ATTENTION IS INVITED TO THE FACT THAT THE COURT OF CLAIMS OF THE UNITED STATES AND THE UNITED STATES DISTRICT COURTS HAVE JURISDICTION TO CONSIDER AND DETERMINE CLAIMS FOR AMOUNTS BELIEVED TO BE DUE INCIDENT TO THE SERVICE OF MEMBERS OF THE UNIFORMED SERVICES IF SUITS BASED ON SUCH CLAIMS ARE FILED WITHIN 6 YEARS AFTER THEY FIRST ACCRUED. 28 U.S.C. 1346 (A) (2), 1491, 2401 AND 2501.