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B-127398, OCT. 14, 1957

B-127398 Oct 14, 1957
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H. SCHULTZ: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 20. WITH YOUR LETTER THERE WERE TRANSMITTED COPIES OF VARIOUS DOCUMENTS WHICH. YOU BELIEVE ARE SUFFICIENT TO ESTABLISH THAT YOUR LATE SON WAS THE VICTIM OF A "HOAX" AND THAT IN FACT HE WAS NOT THE FATHER OF THE CHILD. THE COPIES OF DOCUMENTS TRANSMITTED BY YOU ARE NOT RELEVANT TO THE MATTERS INVOLVED IN THIS CASE. THAT IS. THE DECISIVE QUESTIONS FOR CONSIDERATION IN THIS CASE ARE WHETHER YOUR LATE SON WAS THE FATHER OF AND ACKNOWLEDGED HIS PATERNITY OF THE CHILD. IT IS DESIRED TO INVITE YOUR ATTENTION TO A LETTER OF AUGUST 19. YOUR CLAIM WAS HONORED AND PAYMENT MADE. THAT THE DECEDENT WAS NOT SURVIVED BY A WIDOW OR CHILD. THE OFFICIAL REPORT OF DEATH WAS CORRECTED TO SHOW EVELYN MAIR.

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B-127398, OCT. 14, 1957

TO MRS. MARJORIE H. H. SCHULTZ:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 20, 1957, WITH ENCLOSURES, RELATING FURTHER TO THE CLAIM OF THE UNITED STATES AGAINST YOU IN THE AMOUNT OF $959.12, ARISING OUT OF THE ERRONEOUS PAYMENT TO YOU OF SIX MONTHS' DEATH GRATUITY INCIDENT TO THE MILITARY SERVICE OF YOUR LATE SON, DOUGLAS D. HOLMES. WITH YOUR LETTER THERE WERE TRANSMITTED COPIES OF VARIOUS DOCUMENTS WHICH, IT APPEARS, YOU BELIEVE ARE SUFFICIENT TO ESTABLISH THAT YOUR LATE SON WAS THE VICTIM OF A "HOAX" AND THAT IN FACT HE WAS NOT THE FATHER OF THE CHILD, EVELYN MAIR, WHOM HE DESIGNATED AS THE PRINCIPAL BENEFICIARY FOR THE SIX MONTHS' DEATH GRATUITY PAYMENT.

FOR THE MOST PART, THE COPIES OF DOCUMENTS TRANSMITTED BY YOU ARE NOT RELEVANT TO THE MATTERS INVOLVED IN THIS CASE, THAT IS, THEY RELATE TO CERTAIN FACTS AND CIRCUMSTANCES NOT PERTINENT TO THE LEGAL QUESTIONS INVOLVED IN THE GOVERNMENT'S CLAIM AGAINST YOU. THE DECISIVE QUESTIONS FOR CONSIDERATION IN THIS CASE ARE WHETHER YOUR LATE SON WAS THE FATHER OF AND ACKNOWLEDGED HIS PATERNITY OF THE CHILD, EVELYN MAIR, AND WHETHER HE DESIGNATED HER TO RECEIVE THE SIX MONTHS' DEATH GRATUITY PAYMENT. IN THIS CONNECTION, IT IS DESIRED TO INVITE YOUR ATTENTION TO A LETTER OF AUGUST 19, 1954, IN WHICH LIEUTENANT V. E. OVERTURF, FINANCE CORPS, ADVISED YOU, IN PART, AS FOLLOWS:

"THE OFFICIAL REPORT OF DEATH, DATED 18 AUGUST 1953, SHOWS THAT SERGEANT HOLMES HAD DESIGNATED YOU AS THE BENEFICIARY TO RECEIVE THE SIX MONTHS' GRATUITY PAY. IN COMPLIANCE WITH THE STATUTE GOVERNING SUCH PAYMENTS, AND SINCE NO INFORMATION HAD BEEN RECEIVED IN THIS OFFICE AT THAT DATE TO DISPUTE YOUR ENTITLEMENT TO THE GRATUITY, YOUR CLAIM WAS HONORED AND PAYMENT MADE. IN THAT CLAIM YOU CERTIFIED, BY AFFIXING YOUR SIGNATURE IN THE PRESENCE OF TWO (2) WITNESSES, THAT THE DECEDENT WAS NOT SURVIVED BY A WIDOW OR CHILD.

"ON 4 SEPTEMBER 1953, THE OFFICIAL REPORT OF DEATH WAS CORRECTED TO SHOW EVELYN MAIR, DAUGHTER, AS THE PERSON DESIGNATED BY THE SERVICEMAN TO RECEIVE THE GRATUITY PAY. THIS CORRECTION WAS MADE ON THE BASIS OF DA AGO FORM NO. 41,"RECORD OF EMERGENCY DATA FOR THE UNITED STATES ARMY," DATED 4 FEBRUARY 1952, ON WHICH SERGEANT HOLMES EXPRESSLY DESIGNATED EVELYN MAIR AS HIS DAUGHTER AND BENEFICIARY. THE FORM BEARS THE SIGNATURE OF DOUGLAS D. HOLMES, AND IS RECOGNIZED AS AN OFFICIAL DOCUMENT. THERE IS ALSO ON FILE A CERTIFIED COPY OF THE BIRTH CERTIFICATE FOR EVELYN WHICH STATES THAT SERGEANT HOLMES DID ACKNOWLEDGE THE PATERNITY OF THE CHILD. THEREFORE, THE MINOR CHILD MUST BE CONSIDERED THE PROPER BENEFICIARY OF THE GRATUITY PAY.'

IN OUR LETTER OF MAY 9, 1956, WE MADE REFERENCE TO THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 903, WHICH PROVIDES THAT THE WIDOW OF THE DECEDENT, IF ANY, HAS A PRIMARY RIGHT TO THE SIX MONTHS' DEATH GRATUITY PAYMENT, BUT THAT IF THERE BE NO WIDOW, PAYMENT IS THEN TO BE MADE TO THE DECEDENT'S CHILD OR CHILDREN, AND WE ADVISED THAT OUR OFFICE HAS HELD THAT THE SIX MONTHS' DEATH GRATUITY STATUTES ARE TO BE CONSTRUED AS INCLUDING ILLEGITIMATE CHILDREN WHERE SUCH RELATIONSHIP IS PROPERLY ESTABLISHED. THERE IS NO EVIDENCE OR INFORMATION IN THE ENCLOSURES TO YOUR LETTER WHICH MAY BE CONSIDERED AS SUFFICIENT TO OVERCOME THE EVIDENCE SUPPORTING THE DETERMINATION BY THE DEPARTMENT OF THE ARMY THAT YOUR LATE SON WAS SURVIVED BY A CHILD WHO, UNDER THE PROVISIONS OF THE CITED ACT, IS ENTITLED TO THE GRATUITY PAYMENT.

PLEASE BE ASSURED THAT CAREFUL CONSIDERATION HAS BEEN GIVEN TO ALL OF THE "EVIDENCE" SUBMITTED BY YOU, BUT ON THE BASIS OF THE RECORD BEFORE US WE HAVE NO ALTERNATIVE BUT TO CONCLUDE THAT YOU ARE PRESENTLY INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $959.12, WHICH SHOULD BE REMITTED TO OUR OFFICE.

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