B-149612, DEC. 18, 1962

B-149612, DEC. 18, 1962

TO MR. CHARLES C. JAUBERT:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 11, 1962, IN WHICH YOU ENCLOSED AFFIDAVITS BY RICHARD A. ROBERTS AND MR. AND MRS. ADOLPH J. THE RIOT, IN SUPPORT OF MRS. LAURA THE RIOT'S CLAIM FOR THE SIX MONTHS' DEATH GRATUITY IN THE AMOUNT OF $800 DUE IN THE CASE OF DONALD R. HARDESTY, WHO DIED AUGUST 20, 1961, WHILE SERVING AS LANCE CORPORAL IN THE U.S. MARINE CORPS.

MRS. THE RIOT'S CLAIM IS ON THE BASIS THAT SHE STOOD IN LOCO PARENTIS TO THE DECEDENT PRIOR TO HIS ENTRANCE INTO THE SERVICE AND IS IN OPPOSITION TO THE CLAIM OF MRS. EMILY G. BROUSSARD WHO IS THE NATURAL MOTHER OF THE DECEDENT. IN THE AFFIDAVIT EXECUTED BY MR. AND MRS. THE RIOT IT IS AVERRED THAT THE DECEDENT MADE HIS HOME WITH THEM CONTINUOUSLY 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 THE DECEDENT VISITED HIS MOTHER, MRS. BROUSSARD, AND PROBABLY SPENT THE NIGHT THERE BUT AT ALL TIMES HIS HOME WAS WITH MR. AND MRS. THE RIOT. THIS IS SUBSTANTIATED BY AN AFFIDAVIT EXECUTED ON SEPTEMBER 10, 1962, BY RICHARD A. ROBERTS, DEPUTY SHERIFF IN CHARGE OF IDENTIFICATION AT LAKE CHARLES, LOUISIANA. IT IS NOTED THAT EXCEPT FOR THESE AFFIDAVITS MRS. THE RIOT HAS NOT FURNISHED ANY DOCUMENTARY EVIDENCE IN SUPPORT OF HER STATEMENTS.

ON THE OTHER HAND, THE FILE NOW CONTAINS AN AFFIDAVIT EXECUTED DECEMBER 30, 1962, BY MRS. BROUSSARD, THE NATURAL MOTHER OF THE DECEDENT. IN SUCH AFFIDAVIT 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 DATE HE ENTERED ON ACTIVE DUTY IN THE UNITED STATES MARINE CORPS.'

SIMILAR AVERMENTS ARE CONTAINED IN AFFIDAVITS EXECUTED BY CURLEY JOHN SCHEXNAYDER, ROBERT P. MOUTON, AND MR. BROUSSARD.

THUS, THE AFFIDAVITS CONCERNING THE DECEDENT'S RESIDENCE PRIOR TO HIS ENTRY INTO THE SERVICE FURNISHED BY MRS. BROUSSARD ARE IN DIRECT CONTRADICTION TO THOSE FURNISHED BY MRS. THE RIOT. ALSO, WE HAVE NO BASIS FOR CONCLUDING THAT THE AFFIDAVITS FURNISHED BY EITHER OF THE CLAIMANTS IS 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 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. 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 MONTH'S DEATH GRATUITY UNDER THE PERTINENT STATUTE WHICH EXPLAINED IN OUR LETTER OF AUGUST 29, 1962, WE WILL WITHHOLD SETTLEMENT WITH RESPECT TO THE GRATUITY UNTIL SUCH TIME AS A COURT OF COMPETENT JURISDICTION HAS RENDERED A JUDGMENT AS TO 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 MRS. THE RIOT SHOULD FURNISH EVIDENCE SHOWING A COURT OF COMPETENT JURISDICTION HAS DETERMINED THAT THE DECEDENT RESIDED WITH HER AND THAT SHE EXERCISED THE RELATIONSHIP OF A PARENT IMMEDIATELY PRIOR TO HIS ENTRY INTO THE SERVICE, HER CLAIM FOR THE SIX MONTHS' DEATH GRATUITY WILL BE GIVEN FURTHER CONSIDERATION BY OUR OFFICE. SIMILAR ADVICE IS BEING FURNISHED MRS. BROUSSARD.