B-142194, MAY 26, 1961

B-142194, MAY 26, 1961

TO MR. WALDO W. WOODS:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 19, 1961, ADDRESSED TO THE DEPARTMENT OF JUSTICE, WASHINGTON, D.C., CONCERNING THE CLAIMS PREVIOUSLY FILED BY YOU AND YOUR BROTHER AND SISTER, LARRY GENE WOODS AND SANDRA RENEE WOODS DUNCAN, AND AN UNCLE, OWEN M. CRISWELL, FOR PROPORTIONATE SHARES OF THE BALANCE OF ARREARS OF PAY DUE THE ESTATE OF YOUR DECEASED UNCLE, REED A. CRISWELL, CORPORAL, UNITED STATES ARMY, ON MARCH 2, 1954, THE PRESUMPTIVE DATE OF HIS DEATH IN THE MILITARY SERVICE. IN THAT LETTER YOU HAVE INQUIRED RELATIVE TO THE STATUS OF THE CLAIM OF THE UNITED STATES AGAINST YOUR AUNT, BETTY GALE BAKER (NOW REMARRIED AND NAMED BETTY GALE WISEMAN) ON ACCOUNT OF AN OVERPAYMENT OF $3,448.85 TO HER MADE BY THIS OFFICE, AND SINCE THE DEPARTMENT OF JUSTICE WAS OF THE BELIEF THAT THE LETTER WAS WRITTEN PRIMARILY FOR THE PURPOSE OF PROSECUTING YOUR CLAIM AND THOSE OF THE OTHER HEIRS, THEY HAVE FORWARDED SUCH LETTER HERE FOR APPROPRIATE REPLY.

BY LETTER OF SEPTEMBER 14, 1959, OUR CLAIMS DIVISION, IN RESPONSE TO YOUR LETTER OF AUGUST 26, 1959, FURNISHED YOU WITH A BRIEF RESUME OF THE FACTS AND DEVELOPMENTS IN THE CASE AS OF THAT DATE. THE SALIENT FACTS MAY AGAIN BE SUMMARIZED. UNDER DATE OF MAY 11, 1954, THE DEPARTMENT OF THE ARMY FORWARDED TO OUR CLAIMS DIVISION AN ADMINISTRATIVE REPORT OF THE PAY AND ALLOWANCES ON ACCOUNT OF THE ESTATE OF REED A. CRISWELL, CORPORAL, SERVICE NUMBER RA 16 314 940, WHICH SHOWED THE AMOUNT OF $4,677.40 TO BE DUE AS OF THE DATE OF TERMINATION OF HIS CASUALTY STATUS UNDER THE MISSING PERSONS ACT. SUCH REPORT WAS ACCOMPANIED BY DEPARTMENT OF THE ARMY "FINDING OF DEATH OF MISSING PERSON" WHICH SHOWED, AMONG OTHER THINGS, THAT THE DECEDENT HAD NAMED HIS UNCLE, SLOAN CRISWELL, AS EMERGENCY ADDRESSEE, AND DESIGNATED HIM AND BETTY GALE BAKER AS BENEFICIARIES. ALSO ACCOMPANYING THE REPORT WERE TWO DEPARTMENT OF THE ARMY FORMS NO. 14 "CLAIM FOR AMOUNTS DUE DECEASED PERSONNEL OF THE ARMED FORCES OF THE UNITED STATES" EXECUTED BY MRS. BAKER, ONE OF WHICH BEARS THE DATE OF MARCH 19, 1954. ON THOSE FORMS, MRS. BAKER CERTIFIED THAT THE DECEDENT WAS NOT SURVIVED BY A WIDOW OR DESCENDANTS, THAT HIS MOTHER AND FATHER WERE DEAD AND THAT HE WAS SURVIVED SOLELY BY ONE SISTER, BETTY GALE CRISWELL BAKER. SETTLEMENT OF THE CLAIM WAS REQUIRED TO BE MADE BY OUR CLAIMS DIVISION UNDER THE THEN GOVERNING LAW, THE ACT OF JUNE 30, 1906, AS AMENDED BY SECTION 4 OF THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, WHICH PROVIDED, IN MATERIAL PART, AS FOLLOWS:

"HEREAFTER 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 * * * FIFTH, IF THERE BE NO WIDOW, WIDOWER, CHILD, FATHER OR MOTHER AT THE DATE OF SETTLEMENT, THEN TO THE BROTHERS AND SISTERS AND CHILDREN OF DECEASED BROTHERS AND SISTERS, PER STIRPES * *

INASMUCH AS THERE WAS NOTHING IN THE DOCUMENTS MENTIONED ABOVE OR ANYTHING ELSE IN THE RECORD TO PLACE OUR CLAIMS DIVISION ON NOTICE OF A POSSIBILITY THAT THE DECEDENT MIGHT BE SURVIVED BY OTHER SURVIVING HEIRS, A SETTLEMENT IN ACCORDANCE WITH THE ABOVE LAW WAS MADE IN JUNE 1954, IN FAVOR OF MRS. BAKER AS SISTER OF REED A. CRISWELL, DECEASED, FOR THE AMOUNT OF $4,677.40.

IT WAS NOT UNTIL NOVEMBER 14, 1955, THAT THIS OFFICE RECEIVED INFORMATION INDICATING THAT THE DECEDENT MAY BE SURVIVED BY OTHER BROTHERS AND SISTERS. ON THAT DATE THERE WAS RECEIVED IN OUR CLAIMS DIVISION LETTER OF OCTOBER 31, 1955, FROM YOUR UNCLE, OWEN M. CRISWELL, INQUIRING AS TO HIS ELIGIBILITY TO A PORTION OF THE ARREARS OF PAY AND ALLOWANCES DUE ON ACCOUNT OF THE DEATH OF HIS HALF BROTHER, REED A. CRISWELL. NO MENTION WAS MADE IN THAT LETTER OF OTHER SURVIVING BROTHERS OR SISTERS OF THE HALF BLOOD. CONSEQUENTLY, THIS OFFICE CORRESPONDED WITH OWEN M. CRISWELL AND MRS. BAKER DURING THE PERIOD DECEMBER 20, 1955, TO JUNE 8, 1956, IN AN ENDEAVOR TO OBTAIN INFORMATION AND SUBSTANTIATING DOCUMENTS TO ESTABLISH THE EXISTENCE OF OTHER BROTHERS OR SISTERS OF THE WHOLE OR HALF BLOOD.

THE ONLY RESPONSE RECEIVED FROM MRS. BAKER WAS HER LETTER OF JANUARY 10, 1956, IN WHICH SHE STATED THAT THE DECEDENT WAS NOT SURVIVED BY ANY BROTHERS OR SISTERS OF THE WHOLE BLOOD OTHER THAN HERSELF, BUT SHE MADE NO DEFINITE STATEMENT CONCERNING THE EXISTENCE OF BROTHERS AND SISTERS OF THE HALF BLOOD. OWEN A. CRISWELL DID NOT RESPOND UNTIL JULY 6, 1956, WHEN HE FORWARDED HERE A TRANSCRIPT OF HIS BIRTH CERTIFICATE AND ADVISED THAT HE HAD MADE EFFORTS TO OBTAIN THE BIRTH RECORD OF THE DECEDENT AND THAT HE WOULD FORWARD IT WHEN OBTAINED. HOWEVER, NOTWITHSTANDING OUR PREVIOUS REQUESTS, HE FURNISHED NO INFORMATION CONCERNING OTHER SURVIVING BROTHERS OR SISTERS OF THE WHOLE OR HALF BLOOD. SINCE THIS OFFICE RECEIVED NO FURTHER INFORMATION OR SUBSTANTIATING EVIDENCE FROM EITHER MRS. BAKER OR OWEN M. CRISWELL PRIOR TO YOUR LETTER OF AUGUST 26, 1959, THE RECORDS DID NOT SHOW WHETHER THERE WERE SURVIVING BROTHERS OR SISTERS OF THE HALF BLOOD OTHER THAN OWEN M. CRISWELL. IN THAT LETTER YOU LISTED THE NAMES AND ADDRESSES OF THE HEIRS OF THE DECEDENT, WHO, IN ADDITION TO THOSE MENTIONED ABOVE AND YOU, ARE HAROLD CRISWELL, HALF BROTHER, AND LARRY G. WOODS AND SANDRA R. WOODS, CHILDREN OF ETHEL MARIE CRISWELL WOODS, DECEASED HALF SISTER. BY LETTER OF OCTOBER 17, 1959, YOU FURNISHED YOUR BIRTH CERTIFICATE AS WELL AS THOSE FOR THE DECEDENT, ETHEL MARIE CRISWELL WOODS, LARRY G. WOODS AND SANDRA R. WOODS.

IT WAS ASCERTAINED SUBSEQUENTLY THAT AN ADDITIONAL AMOUNT OF $236.80, REPRESENTING A REFUND OF INSURANCE DEDUCTIONS, WAS DUE THE ESTATE AND, ON THE BASIS OF THE CLAIMS PRESENTED HERE BY THE PAYEES MENTIONED BELOW, OUR CLAIMS DIVISION MADE INDIVIDUAL SETTLEMENTS FOR THE PROPORTIONATE SHARES DUE EACH OF THEM, AS FOLLOWS:

TABLE

DATE OF SETTLEMENT PAYEE AMOUNT 11/4/59 WALDO G. WOODS $26.31 1/11/60 OWEN M. CRISWELL 78.94 3/3/60 SANDRA RENEE WOODS DUNCAN 26.31 3/3/60 LARRY GENE WOODS 26.31

SETTLEMENT IN FAVOR OF HAROLD CRISWELL WAS NOT MADE, SINCE HE HAS FAILED TO PRESENT A CLAIM WITH THIS OFFICE. THE PAYEES WERE INFORMED BY A STATEMENT ON THE REVERSE SIDE OF THOSE SETTLEMENTS THAT THE ARREARS OF PAY OF $4,677.40 FOUND DUE THE ESTATE OF THE DECEDENT WERE PAID TO MRS. BAKER UPON HER REPRESENTATION THAT SHE WAS THE ONLY SURVIVING SISTER OF THE DECEDENT AND THAT NO ADDITIONAL AMOUNT WOULD BE PAID UNLESS AND UNTIL REFUND IS MADE BY HER.

ON NOVEMBER 5, 1959, A DETERMINATION WAS MADE BY OUR CLAIMS DIVISION, PREDICATED ON THE INFORMATION AND EVIDENCE FURNISHED BY YOU AND OWEN M. CRISWELL ESTABLISHING THAT THE DECEDENT IS SURVIVED BY ONE SISTER, TWO HALF BROTHERS AND THREE CHILDREN OF A DECEASED HALF SISTER, THAT MRS. BAKER, AS A SISTER OF THE DECEDENT, WOULD BE ENTITLED ONLY TO A ONE-FOURTH SHARE OF THE AGGREGATE AMOUNT OF $4,914.20 DUE HIS ESTATE, OR $1,228.55, AND SINCE SHE PREVIOUSLY WAS PAID $4,677.40, SHE WAS INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $3,448.85. ACCORDINGLY, BY LETTER OF THAT DATE A FULL EXPLANATION WAS FURNISHED TO MRS. BAKER COUPLED WITH A REQUEST TO REMIT SUCH AMOUNT TO THIS OFFICE. INASMUCH AS MRS. BAKER DID NOT RESPOND TO THE LETTER OR REMIT ANY PART OF THE INDEBTEDNESS, OUR CLAIMS DIVISION, ON APRIL 27, 1960, REFERRED THE MATTER OF THE INDEBTEDNESS TO THE DEPARTMENT OF JUSTICE FOR FURTHER APPROPRIATE COLLECTION PROCEEDINGS, AND ON THE SAME DAY, THAT DIVISION IN REPLY TO YOUR LETTER OF JANUARY 20, 1960, ADVISED YOU OF SUCH ACTION. OUR FILE DOES NOT REFLECT THE COLLECTION BY THE DEPARTMENT OF JUSTICE OF ANY AMOUNT OF THE INDEBTEDNESS FROM MRS. BAKER.

AS YOU WERE PREVIOUSLY INFORMED, NO FURTHER PAYMENT CAN BE MADE TO YOU OR THE OTHER ENTITLED SURVIVING HEIRS OF THE DECEDENT UNLESS AND UNTIL THE AMOUNT INVOLVED IS COLLECTED FROM MRS. BAKER. IT IS ABUNDANTLY CLEAR FROM THE RECORD THAT, AT THE TIME MRS. BAKER PRESENTED CLAIM TO THIS OFFICE, THERE WAS NOTHING IN THE RECORD TO CAST ANY DOUBT THAT SHE WAS NOT THE ONLY SISTER OF THE DECEDENT. IN VIEW OF THE ARMY RECORDS WHICH DISCLOSED THAT SHE WAS NAMED BY THE DECEDENT AS A CO-BENEFICIARY AND THE FACT THAT SHE HAD SUBMITTED TWO WITNESSED CLAIM APPLICATIONS SPECIFICALLY SHOWING THAT SHE WAS THE ONLY SISTER AND THAT THERE WERE NO CHILDREN OF ANY DECEASED BROTHER OR SISTER, THIS OFFICE HAD NO REASON TO BELIEVE OR SUSPECT THAT THE DECEDENT MIGHT BE SURVIVED BY OTHER ENTITLED HEIRS, AND THEREFORE, CONCLUDE THAT MRS. BAKER WOULD BE ENTITLED ONLY TO A PROPORTIONATE SHARE OF THE AMOUNT DUE THE ESTATE. HENCE, IT CANNOT BE SAID, IN SUCH CIRCUMSTANCES, THAT THE PAYMENT TO MRS. BAKER AT THE TIME IT WAS MADE WAS ERRONEOUS OR IMPROPER. IN THIS SITUATION, WE CANNOT IGNORE THE FACT THAT IT WAS NOT UNTIL AFTER THE LAPSE OF ABOUT A YEAR AND A HALF FROM THE TIME SETTLEMENT WAS MADE TO MRS. BAKER THAT THIS OFFICE INITIALLY WAS PLACED ON NOTICE BY OWEN M. CRISWELL'S LETTER OF OCTOBER 31, 1955, THAT THE DECEDENT WAS SURVIVED BY OTHER HEIRS. IF A CLAIM HAD BEEN TIMELY FILED BY HIM OR BY ANY OF THE OTHER HEIRS, MRS. BAKER EVENTUALLY WOULD HAVE RECEIVED THE PROPORTIONATE SHARE DUE HER RATHER THAN THE FULL AMOUNT THEN CERTIFIED TO BE DUE THE ESTATE. ON THE RECORD BEFORE US, WE MUST CONCLUDE THAT, SINCE THE PAYMENT MADE TO MRS. BAKER WAS NOT DUE TO ANY ERROR OR FAULT ON THE PART OF THIS OFFICE, THERE IS NO LEGAL OBLIGATION TO MAKE PAYMENT TO YOU OR THE OTHER CLAIMANTS IN THIS CASE PRIOR TO SUCH TIME AS COLLECTION OF THE OVERPAYMENT IS EFFECTED. WE UNDERSTAND THAT A SUIT HAS BEEN FILED AGAINST THE RECIPIENT FOR THIS PURPOSE.

IF AND WHEN COLLECTION FROM MRS. BAKER HAS BEEN ACCOMPLISHED BY THE DEPARTMENT OF JUSTICE AND IMMEDIATELY AFTER DUE NOTIFICATION TO THIS OFFICE, PROMPT ACTION WILL BE TAKEN TO EFFECT PAYMENT TO YOU AND THE OTHER CLAIMANTS IN THIS CASE OF THE PROPORTIONATE SHARES OF THE AMOUNT INVOLVED.