B-93772, DEC. 2, 1963

B-93772, DEC. 2, 1963

TO MRS. MYRTLE A. PAISLEY:

REFERENCE IS MADE TO YOUR RECENT LETTER TO THE LATE PRESIDENT JOHN F. KENNEDY IN EFFECT REQUESTING FURTHER CONSIDERATION OF OUR DECISION DATED JUNE 14, 1950, B-93772, TO YOU WHICH SUSTAINED THE SETTLEMENT DATED JULY 20, 1945, BY OUR CLAIMS DIVISION. THAT SETTLEMENT ALLOWED YOU $251.06, OR ONE-HALF OF THE ACCRUED PAY DUE YOUR SON, SERGEANT JOHN W. PAISLEY, AIR CORPS, AT DATE OF RECEIPT OF EVIDENCE OF HIS DEATH, FEBRUARY 9, 1945, AND RESERVED THE OTHER ONE-HALF REPRESENTING THE FATHER'S SHARE PENDING THE RECEIPT OF ADDITIONAL EVIDENCE TO SUBSTANTIATE YOUR ALLEGATION THAT THE FATHER HAD ABANDONED THE SUPPORT OF HIS FAMILY.

YOU WERE ADVISED IN THE DECISION OF JUNE 14, 1950, WITH RESPECT TO FURNISHING EVIDENCE THAT THE FATHER HAD ABANDONED THE SUPPORT OF HIS FAMILY, THAT THE SETTLEMENT OF THE ACCOUNTS OF DECEASED MEMBERS OF THE ARMY WAS THEN GOVERNED BY THE ACT OF JUNE 30, 1906, AS AMENDED BY SECTION 4 OF THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, 10 U.S.C. 868 (1952) ED.). THAT ACT PROVIDES THAT WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE AND THE DECEASED ENLISTED MAN IS NOT SURVIVED BY A WIDOW OR DESCENDANTS, THE AMOUNT MAY BE ALLOWED "TO THE FATHER AND MOTHER IN EQUAL PARTS," WHERE BOTH SURVIVE. YOU WERE ALSO ADVISED THAT THE DISTRIBUTION TO THE SURVIVING PARENTS IN EQUAL PARTS IS PREDICATED UPON RELATIONSHIP ALONE, NOT AFFECTED BY COLLATERAL QUESTIONS OF ABANDONMENT, SUPPORT, ETC., ON THE PART OF EITHER PARENT, AND THAT THE FATHER'S SHARE COULD NOT LEGALLY BE ALLOWED TO YOU, AS MOTHER, WHILE HE WAS ALIVE. THE ORDER OF DISTRIBUTION SET FORTH IN THE 1946 ACT WAS RESTATED WITHOUT CHANGE IN SECTION 29 OF THE ACT OF SEPTEMBER 2, 1958, PUB.L. 85-861, 72 STAT. 1563, GOVERNING THE SETTLEMENT OF THE ACCOUNTS OF MEMBERS WHO DIED BEFORE JANUARY 1, 1956.

YOU WERE ALSO ADVISED IN THE DECISION THAT THE ACT OF FEBRUARY 25, 1946, IS IN THE NATURE OF A STATUTE OF DESCENT AND DISTRIBUTION AND, SINCE THE LAW IS PERMISSIVE ONLY, WHERE IT IS KNOWN THAT THE DECEDENT LEFT A WILL, THE ACCOUNTING OFFICERS IN ORDER TO PROTECT THE INTERESTS OF ALL CONCERNED, INCLUDING THE GOVERNMENT, CONSISTENTLY HAVE REFUSED TO ALLOW THE AMOUNT DUE TO ANY OF THE ENUMERATED DISTRIBUTEES, IN THE ABSENCE OF AN AFFIRMATIVE SHOWING THAT THE WILL WOULD NOT BE PROBATED. YOU WERE FURTHER ADVISED THAT WHILE IT DID NOT APPEAR THAT YOUR SON'S WILL HAD BEEN PROBATED, THERE WAS NO AFFIRMATIVE SHOWING THAT IT WOULD NOT EVENTUALLY BE PROBATED, AND, HENCE, SETTLEMENT FOR THE BALANCE DUE HIS ESTATE COULD NOT ISSUE TO ANYONE INDIVIDUALLY.

YOU SAY IN YOUR LETTER TO THE LATE PRESIDENT KENNEDY THAT YOUR SON'S WILL WAS NOT PROBATED BECAUSE IT WOULD COST MORE THAN $251 TO GO TO KANSAS, THERE BEING NO ESTATE TO SETTLE OTHER THAN HIS ACCRUED PAY FOR MILITARY SERVICE, AND YOU WERE TOLD THAT A WILL MADE BY A MINOR IS NOT VALID IN MICHIGAN. SINCE THE WILL WAS NOT PROBATED, THE FATHER WOULD HAVE BEEN ENTITLED UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 25, 1946, TO THE REMAINING ONE-HALF OF THE ACCRUED PAY DUE HIS SON IF THE FATHER HAD FILED A CLAIM. HOWEVER, OUR RECORDS DO NOT SHOW THAT HE FILED ONE AND AT THIS TIME A CLAIM FROM THE FATHER WOULD BE BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, COPY ENCLOSED. THAT ACT, WITH CERTAIN EXCEPTIONS NOT HERE APPLICABLE, PROVIDES THAT EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE IS FOREVER BARRED UNLESS SUCH CLAIM IS RECEIVED IN THIS OFFICE WITHIN 10 FULL YEARS AFTER THE DATE THE CLAIM FIRST ACCRUED. YOU DID NOT SUBMIT EVIDENCE OF THE FATHER'S ABANDONMENT TO THIS OFFICE PRIOR TO THE ENACTMENT OF THE ACT OF FEBRUARY 25, 1946, AND, AS EXPLAINED IN THE 1950 DECISION, AFTER ENACTMENT OF THE ACT OF FEBRUARY 25, 1946, QUESTIONS OF ABANDONMENT OR SUPPORT BY THE FATHER ARE NO LONGER FOR CONSIDERATION IN SETTLING SUCH ACCOUNTS. THEREFORE, YOUR CLAIM MUST ALSO BE CONSIDERED AS BARRED UNDER THE ACT OF OCTOBER 9, 1940, UNLESS YOU PRESENT EVIDENCE THAT YOUR FORMER HUSBAND DIED PRIOR TO FEBRUARY 10, 1950, THE DATE WE RECEIVED YOUR LETTER OF FEBRUARY 8, 1950, REGARDING HIS SHARE OF THE ARREARS OF PAY DUE IN THE CASE OF YOUR LATE SON.

WHILE WE APPRECIATE YOUR FEELINGS IN THE MATTER WE MUST COMPLY WITH THE APPLICABLE FEDERAL STATUTES IN SETTLING ACCOUNTS OF DECEASED PERSONNEL OF THE UNIFORMED SERVICES, AND WE HAVE NO AUTHORITY TO ALLOW CLAIMS FOR AMOUNTS DUE THE ESTATE OF SUCH DECEASED PERSONNEL EXCEPT AS AUTHORIZED BY THESE STATUTES. CONSEQUENTLY, UNLESS EVIDENCE IS FURNISHED THAT YOUR LATE SON'S FATHER DIED PRIOR TO FEBRUARY 10, 1950, THERE IS NO PROPER BASIS UPON WHICH YOUR CLAIM FOR THE BALANCE DUE MAY RECEIVE FAVORABLE CONSIDERATION BY THIS OFFICE. OUR DECISION OF JUNE 14, 1950, B-93772, WHICH YOU FORWARDED WITH YOUR RECENT LETTER IS RETURNED HEREWITH.