B-125652, SEP. 30, 1964

B-125652, SEP. 30, 1964

TO MRS. MURIEL NUGENT RICHIE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 23, 1964, TO THE ADJUTANT GENERAL'S OFFICE, DEPARTMENT OF THE ARMY, YOUR LETTER OF FEBRUARY 26, 1964, TO THE ARMY FINANCE CENTER, AND YOUR LETTER OF APRIL 22, 1964, TO THE PRESIDENT OF THE UNITED STATES, IN EFFECT REQUESTING RECONSIDERATION OF OUR DECISION OF DECEMBER 16, 1955, AND OCTOBER 22, 1959, B-125652, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR AMOUNTS WHICH YOU BELIEVE TO BE DUE YOU AS COUSIN OF ROBERT M. NUGENT, SERGEANT, U.S. ARMY, WHO DIED ON JANUARY 17, 1955. YOUR LETTERS WERE FORWARDED HERE BECAUSE SECTION 305 OF THE ACT OF JUNE 10, 1921, CH. 18, 42 STAT. 24, 31 U.S.C. 71, PROVIDES, GENERALLY, THAT ALL CLAIMS AGAINST THE GOVERNMENT OF THE UNITED STATES SHALL BE SETTLED AND ADJUSTED IN THE GENERAL ACCOUNTING OFFICE.

AT THE TIME OF SERGEANT NUGENT'S DEATH, THE PAYMENT OF ARREARS OF PAY AND ALLOWANCES DUE THE ESTATES OF DECEASED OFFICERS AND ENLISTED MEN OF THE ARMY WAS GOVERNED BY THE ACT OF JUNE 30, 1906, CH. 3914, 34 STAT. 750, AS AMENDED, 10 U.S.C 868 (1952 ED.), WHICH PROVIDED:

"IN THE SETTLEMENT OF THE ACCOUNTS OF DECEASED OFFICERS OR ENLISTED PERSONS OF THE ARMY, WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, THE ACCOUNTING OFFICERS MAY ALLOW THE AMOUNT FOUND DUE TO THE DECEDENT'S WIDOW, WIDOWER, OR LEGAL HEIRS IN THE FOLLOWING ORDER OF PRECEDENCE: FIRST, TO THE WIDOW OR WIDOWER; SECOND, IF DECEDENT LEFT NO WIDOW OR WIDOWER, OR THE WIDOW OR WIDOWER BE DEAD AT TIME OF SETTLEMENT, THEN TO THE CHILDREN OR THEIR ISSUE, PER STIRPES; THIRD, IF NO WIDOW, WIDOWER, OR DESCENDANTS, THEN TO THE FATHER AND MOTHER IN EQUAL PARTS; FOURTH, IF EITHER THE FATHER OR MOTHER BE DEAD, THEN TO THE ONE SURVIVING; FIFTH, IF THERE BE NO WIDOW, WIDOWER, CHILD, FATHER, OR MOTHER AT THE TIME OF SETTLEMENT THEN TO THE BROTHERS AND SISTERS AND CHILDREN OF DECEASED BROTHERS AND SISTERS, PER STIRPES: PROVIDED, THAT THIS SECTION SHALL NOT BE SO CONSTRUED AS TO PREVENT PAYMENT FROM THE AMOUNT DUE THE DECEDENT'S ESTATE OF FUNERAL EXPENSES, PROVIDED A CLAIM THEREFOR IS PRESENTED BY THE PERSON OR PERSONS WHO ACTUALLY PAID THE SAME BEFORE SETTLEMENT BY THE ACCOUNTING OFFICERS.'

WITH RESPECT TO THE PAYMENT OF THE SIX MONTHS' DEATH GRATUITY, YOUR ATTENTION IS INVITED TO THE ACT OF DECEMBER 17, 1919, CH. 6, 41 STAT. 367, AS AMENDED, 10 U.S.C. 903 (1952 ED.), WHICH PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OWN MISCONDUCT, OF ANY OFFICER OR ENLISTED MAN ON THE ACTIVE LIST OF THE REGULAR ARMY OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE BRANCH, OFFICE, OR OFFICERS OF THE ARMY THE SECRETARY OF THE ARMY MAY FROM TIME TO TIME DESIGNATE SHALL CAUSE TO BE PAID TO THE WIDOW, AND IF THERE BE NO WIDOW TO THE CHILD OR CHILDREN, AND IF THERE BE NO WIDOW OR CHILD TO ANY OTHER DEPENDENT RELATIVE OF SUCH OFFICER OR ENLISTED MAN PREVIOUSLY DESIGNATED BY HIM, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF HIS DEATH. * * * AND PROVIDED FURTHER, THAT IF THERE BE NO WIDOW, CHILD, OR PREVIOUSLY DESIGNATED DEPENDENT RELATIVE, THE SECRETARY OF THE ARMY SHALL CAUSE THE AMOUNT HEREIN PROVIDED TO BE PAID TO ANY GRANDCHILD, PARENT, BROTHER OR SISTER, OR GRANDPARENT SHOWN TO HAVE BEEN DEPENDENT UPON SUCH OFFICER OR ENLISTED MAN PRIOR TO HIS DEATH, AND THE DETERMINATION OF SUCH FACT BY THE SECRETARY OF THE ARMY SHALL BE FINAL AND CONCLUSIVE UPON THE ACCOUNTING OFFICERS OF THE GOVERNMENT * * *.'

YOU WILL NOTE THAT UNDER SUCH STATUTORY PROVISIONS THE MEMBER WAS AUTHORIZED TO DESIGNATE "ANY OTHER DEPENDENT RELATIVE" TO RECEIVE THE DEATH GRATUITY PAYMENT IN THE EVENT HE WAS NOT SURVIVED BY EITHER A WIFE OR A CHILD. IF, THEREFORE, HE DESIGNATED A PERSON WHO WAS NOT A "DEPENDENT RELATIVE" WITHIN THE INTENT AND MEANING OF SUCH PROVISIONS, SUCH PERSON WAS NOT ELIGIBLE TO RECEIVE THE DEATH GRATUITY PAYMENT.

THE QUOTED PROVISIONS OF LAW WERE IN EFFECT AT THE TIME OF SERGEANT NUGENT'S DEATH AND THEY SPECIFIED DEFINITELY WHAT PERSONS WERE ENTITLED TO RECEIVE THE ARREARS OF PAY AND WHAT PERSONS WERE ENTITLED TO RECEIVE THE SIX MONTHS' DEATH GRATUITY AND THEY DID NOT AUTHORIZE PAYMENT OF EITHER THE ARREARS OF PAY OR THE SIX MONTHS' DEATH GRATUITY TO YOU. WHILE WE ARE IN SYMPATHY WITH THE VIEWS EXPRESSED BY YOU, THOSE PROVISIONS OF LAW CONSTITUTE THE SOLE AUTHORITY FOR DISPOSING OF THE AMOUNTS HERE INVOLVED AND THEY ARE MANDATORY ON ALL PARTIES CONCERNED. THEY MAY NOT BE WAIVED OR MODIFIED BY THE DEPARTMENT OF THE ARMY OR BY OUR OFFICE.

ACCORDINGLY, UPON RECONSIDERATION, WE FIND NO BASIS FOR FAVORABLE ACTION ON YOUR CLAIM.