B-149612, DEC. 18, 1962

B-149612, DEC. 18, 1962

TO MRS. EMILY G. BROUSSARD:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 30, 1962, FROM DOMENGEAUX AND WRIGHT, ATTORNEYS AT LAW, LAFAYETTE, LOUISIANA, RELATIVE TO YOUR CLAIM FOR SIX MONTHS' DEATH GRATUITY IN THE AMOUNT OF $800 DUE IN THE CASE OF YOUR SON, DONALD R. HARDESTY, WHO DIED AUGUST 20, 1961, WHILE SERVING AS LANCE CORPORAL IN THE U.S. MARINE CORPS. YOUR CLAIM IS ON THE BASIS THAT YOU ARE THE NATURAL MOTHER OF THE DECEDENT AND IS IN OPPOSITION TO THE CLAIM OF MRS. LAURA THE RIOT WHO CONTENDS SHE STOOD IN LOCO PARENTIS TO THE DECEDENT PRIOR TO HIS ENTRANCE INTO THE SERVICE. IN OUR LETTER TO YOU OF AUGUST 29, 1962, B 149612, WE EXPLAINED THAT THE LAW AUTHORIZES PAYMENT OF THE SIX MONTHS' DEATH GRATUITY TO PERSONS STANDING IN LOCO PARENTIS AS WELL AS TO NATURAL PARENTS AND SINCE BOTH YOU AND MRS. THE RIOT HAVE MADE CONFLICTING STATEMENTS CONCERNING THE DECEDENT'S RESIDENCE AND THE PERSON WITH WHOM HE LIVED IMMEDIATELY PRIOR TO THE DATE HE ENTERED THE SERVICE, A DETERMINATION AS TO WHICH CLAIMANT HAS PREFERENCE COULD NOT BE MADE ON THE EVIDENCE BEFORE US. THEREFORE, WE REQUESTED BOTH YOU AND MRS. THE RIOT TO SUBMIT ADDITIONAL EVIDENCE. WE PARTICULARLY ASKED THAT YOU COMMENT ON THE FACT THAT THE OFFICIAL "REPORT OF CASUALTY" IN YOUR SON'S CASE SHOWS LAKE CHARLES, LOUISIANA, AS HIS HOME OF RECORD AT THE TIME HE ENTERED ON ACTIVE DUTY ON SEPTEMBER 5, 1958.

YOU HAVE NOW FURNISHED AFFIDAVITS EXECUTED BY YOU, YOUR HUSBAND, FRED BROUSSARD, CURLEY JOHN SCHEXNAYDER AND ROBERT P. MOUTON. IN THE AFFIDAVIT EXECUTED BY YOU ON NOVEMBER 30, 1962, IT IS AVERRED, IN PERTINENT PART, AS FOLLOWS:

"* * * THAT ON OR ABOUT FEBRUARY 20, 1958, DONALD HARDESTY RETURNED TO LIVE IN MY HOME IN LAFAYETTE, LOUISIANA, AT 314 SPRINGHILL STREET, LAFAYETTE, LOUISIANA, AND RESIDED IN MY HOME AND WAS UNDER MY CARE, CUSTODY AND CONTROL UNTIL SEPTEMBER 4, 1958, THE DATE PRECEDING THE DATE HE ENTERED ON ACTIVE DUTY IN THE UNITED STATES MARINE CORPS.'

SIMILAR AVERMENTS ARE CONTAINED IN THE AFFIDAVITS EXECUTED BY YOUR HUSBAND AND MESSRS. MOUTON AND SCHEXNAYDER. IT IS NOTED THAT YOU HAVE NOT FURNISHED ANY OTHER DOCUMENTARY EVIDENCE IN SUPPORT OF YOUR CLAIM NOR HAVE YOU EXPLAINED THE REASON WHY THE OFFICIAL "REPORT OF CASUALTY" IN YOUR SON'S CASE SHOWS LAKE CHARLES, LOUISIANA, AS HIS HOME OF RECORD AT THE TIME HE ENTERED ON ACTIVE DUTY ON SEPTEMBER 5, 1958.

ON THE OTHER HAND, THE FILE NOW CONTAINS AFFIDAVITS BY MR. AND MRS. THE RIOT EXECUTED ON SEPTEMBER 10, 1962, IN WHICH IT IS AVERRED THAT THE DECEDENT MADE HIS HOME CONTINUOUSLY WITH THEM UNTIL HE ENTERED THE SERVICE ON OR ABOUT SEPTEMBER 5, 1958. IT IS FURTHER AVERRED THAT HE LEFT THEIR HOME ONLY ON VISITS AT VARIOUS TIMES AND THAT ON ONE OR TWO OCCASIONS HE VISITED YOU AND PROBABLY SPENT THE NIGHT BUT AT ALL TIMES HIS HOME WAS WITH MR. AND MRS. THE RIOT.

THIS IS SUBSTANTIATED BY AN AFFIDAVIT EXECUTED BY RICHARD A. ROBERTS, DEPUTY SHERIFF IN CHARGE OF IDENTIFICATION AT LAKE CHARLES, LOUISIANA, IN WHICH IT IS AVERRED THAT HE HAS READ THE AFFIDAVIT MADE BY MR. AND MRS. THE RIOT CONCERNING THE DECEDENT AND THAT HE HAS BEEN WELL ACQUAINTED WITH THEM AND WITH THE DECEDENT WHILE HE LIVED WITH THEM AND THAT HE KNOWS THAT THE STATEMENTS MADE IN THEIR AFFIDAVIT ARE TRUE AND CORRECT. THUS, THE AFFIDAVITS CONCERNING THE DECEDENT'S RESIDENCE PRIOR TO HIS ENTRY INTO THE SERVICE FURNISHED BY MRS. THE RIOT ARE IN DIRECT CONTRADICTION TO THOSE FURNISHED BY YOU. ALSO, WE HAVE NO BASIS FOR CONCLUDING THAT THE AFFIDAVITS FURNISHED BY EITHER YOU OR MRS. THE RIOT ARE ENTITLED TO GREATER WEIGHT IN CONSIDERATION OF THE SUFFICIENCY OF SUCH AFFIDAVITS AS EVIDENCE.

IN THE SETTLEMENT OF CLAIMS PRESENTED TO THIS OFFICE IT IS THE LONG ESTABLISHED RULE THAT THE BURDEN IS ON THE CLAIMANTS TO PROVE THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO REQUISITE TO ESTABLISH THE CLEAR LIABILITY OF THE UNITED STATES AND THEIR RIGHT TO PAYMENT UNDER THE APPROPRIATIONS INVOLVED. 31 COMP. GEN. 340, 341. IN VIEW OF THE CONFLICTING CLAIMS AND SINCE THERE IS INSUFFICIENT EVIDENCE IN THE RECORD BEFORE US TO MAKE A DETERMINATION AS TO THE PERSON ENTITLED TO RECEIVE THE SIX MONTHS' DEATH GRATUITY, WE WILL WITHHOLD SETTLEMENT WITH RESPECT TO SUCH GRATUITY UNTIL SUCH TIME AS A COURT OF COMPETENT JURISDICTION HAS RENDERED A JUDGMENT ON THE PERSON ENTITLED TO THE GRATUITY OR HAS DETERMINED THE PERSON WITH WHOM THE DECEDENT RESIDED AND WHO EXERCISED THE PARENTAL RELATIONSHIP IMMEDIATELY PRIOR TO THE DATE HE ENTERED THE SERVICE. IF YOU SHOULD FURNISH EVIDENCE SHOWING A COURT OF COMPETENT JURISDICTION HAS DETERMINED THAT THE DECEDENT RESIDED WITH YOU AND THAT YOU EXERCISED THE RELATIONSHIP OF A PARENT IMMEDIATELY PRIOR TO HIS ENTRY INTO THE SERVICE, YOUR CLAIM FOR THE SIX MONTHS' DEATH GRATUITY WILL BE GIVEN FURTHER CONSIDERATION BY OUR OFFICE. SIMILAR ADVICE IS BEING FURNISHED MRS. THE RIOT.