B-166927, JUN. 18, 1969

B-166927, JUN. 18, 1969

TO MRS. BARBARA ANN LONG:

REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 7, 1969, RELATIVE TO YOUR CLAIM AS NATURAL GUARDIAN OF TIMOTHY R. YORK, MINOR, FOR 6 MONTHS' DEATH GRATUITY DUE IN THE CASE OF COMMANDER THOMAS H. YORK, U.S. NAVY, WHO DIED ON SEPTEMBER 22, 1959, WHILE ON ACTIVE DUTY.

THE RECORD SHOWS THAT THE MEMBER WAS SURVIVED BY A SON, TIMOTHY ROBERT YORK, BORN APRIL 29, 1951, AND BY HIS FATHER AND MOTHER. YOUR CLAIM WAS BASED ON AN AFFIDAVIT DATED OCTOBER 30, 1959, THAT YOU WERE MARRIED TO THOMAS HAMPTON YORK ON DECEMBER 20, 1942, AND THAT YOU WERE DIVORCED FROM HIM ON AUGUST 21, 1957. YOU FURTHER STATED THAT YOU ARE THE MOTHER AND NATURAL GUARDIAN OF TIMOTHY ROBERT YORK, AND THAT YOU HAD BEEN ADVISED YOU WOULD BE APPOINTED HIS LEGAL GUARDIAN.

BY LETTER OF DECEMBER 23, 1959, FROM OUR CLAIMS DIVISION YOU WERE ADVISED THAT SINCE THE AMOUNT INVOLVED IN THE CLAIM IS APPROXIMATELY $3,000, PAYMENT MAY ONLY BE MADE TO A DULY APPOINTED LEGAL GUARDIAN OF THE ESTATE OF TIMOTHY R. YORK, AND THAT THE CLAIM OF SUCH LEGAL GUARDIAN MUST BE SUPPORTED BY A CERTIFIED COPY OF LETTERS OF GUARDIANSHIP ISSUED BY A COURT HAVING JURISDICTION OVER THE MINOR.

THE RECORD INDICATES YOU THEN RETAINED AN ATTORNEY, JAMES O. RING, FOR THE PURPOSE OF BEING APPOINTED LEGAL GUARDIAN OF THE ESTATE AND PERSON OF TIMOTHY R. YORK. BY TELEGRAM DATED MAY 5, 1960, HOWEVER, YOU REQUESTED TO BE ADVISED AS TO WHAT WOULD HAPPEN TO THE DEATH GRATUITY IF YOU REFUSED GUARDIANSHIP APPOINTMENT. BY CLAIMS DIVISION LETTER OF MAY 5, 1960, YOU WERE ADVISED THAT IN THE ABSENCE OF A CLAIM BY YOU OR SOME OTHER PERSON AS LEGAL GUARDIAN OF THE ESTATE OF TIMOTHY R. YORK, UNDER AN APPOINTMENT BY A COURT HAVING JURISDICTION OVER THE MINOR, THE AMOUNT DUE WILL BE HELD IN ESCROW UNTIL HE REACHES HIS MAJORITY, AT WHICH TIME HE MAY FILE A CLAIM FOR IT.

IN RESPONSE TO YOUR LETTERS OF FEBRUARY 19 AND MARCH 19, 1969, ADDRESSED TO THE NAVY FINANCE CENTER, CLEVELAND, OHIO, YOU WERE AGAIN ADVISED BY CLAIMS DIVISION LETTER OF APRIL 30, 1969, THAT PAYMENT COULD BE MADE ONLY TO A DULY APPOINTED LEGAL GUARDIAN OF THE ESTATE OF TIMOTHY R. YORK. ALSO, YOU WERE ADVISED THAT SINCE IT DID NOT APPEAR THAT A LEGAL GUARDIAN HAD BEEN APPOINTED, NO PAYMENT COULD BE MADE.

IN YOUR TELEGRAM OF MAY 7, 1969, YOU SAY THAT FOR NINE YEARS PREVIOUSLY YOU HAVE SATISFIED THE NAVY DEPARTMENT, VETERANS ADMINISTRATION, AND THE TRUST DEPARTMENT OF THE FIRST NATIONAL BANK, SAN DIEGO, CALIFORNIA, OF YOUR STATUS AS LEGAL GUARDIAN OF TIMOTHY R. YORK, AND ASK WHAT ADDITIONAL EVIDENCE IS NEEDED.

SECTION 1478 OF TITLE 10, U.S.C. (1958 ED.), PROVIDES THAT THE DEATH GRATUITY SHALL BE EQUAL TO SIX MONTHS' PAY AT THE RATE TO WHICH THE DECEDENT WAS ENTITLED ON THE DATE OF HIS DEATH, EXCEPT THAT THE GRATUITY MAY NOT BE LESS THAN $800 OR MORE THAN $3,000. SECTION 1477 PROVIDES THAT THE GRATUITY SHALL BE PAID TO OR FOR THE LIVING SURVIVOR HIGHEST ON THE LIST SET FORTH THEREIN. THE HIGHEST LIVING SURVIVOR IN THE PRESENT CASE IS YOUR SON, TIMOTHY R. YORK.

WHERE AS HERE, A MINOR IS INVOLVED, A CONCERN OF THE GOVERNMENT IS THAT A GOOD ACQUITTANCE BE OBTAINED WHEN PAYMENT IS MADE. WHERE THE AMOUNT DUE A MINOR IS OVER $1,000, IT LONG HAS BEEN THE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT PAYMENT MAY ONLY BE MADE TO THE LEGAL GUARDIAN APPOINTED BY A COURT HAVING JURISDICTION OVER THE MINOR. 38 COMP. GEN. 436. AS AN EXCEPTION TO SUCH RULE, HOWEVER, WE HAVE RECOGNIZED THAT IF THE LAWS OF THE STATE IN WHICH THE CLAIMANT RESIDES PROVIDE FOR PAYMENT OF A LARGER AMOUNT TO A PARENT AS NATURAL GUARDIAN OF A MINOR, EFFECT MAY BE GIVEN TO SUCH PROVISIONS IF THE PARENT OTHERWISE MEETS THE REQUIREMENTS OF THE STATE LAW. 47 COMP. GEN. 209.

SECTION 1430 OF THE PROBATE CODE OF THE STATE OF CALIFORNIA PROVIDES THAT IF A MINOR HAS NO GUARDIAN OF HIS ESTATE, MONEY BELONGING TO THE MINOR NOT EXCEEDING THE SUM OF $2,000 MAY BE PAID TO THE PARENT ENTITLED TO CUSTODY OF THE MINOR "TO HOLD FOR THE MINOR UNTIL HIS MAJORITY," UPON WRITTEN ASSURANCE THAT THE TOTAL ESTATE OF THE MINOR DOES NOT EXCEED $2,500. SINCE THE DEATH GRATUITY DUE IN THE CASE OF COMMANDER YORK IS $3,000, THESE PROVISIONS OF THE LAWS OF CALIFORNIA, AFFORD NO BASIS TO ALLOW YOU SUCH SUM AS NATURAL GUARDIAN OF HIS MINOR SON.

NOTWITHSTANDING YOUR PRESENT CONTENTION THAT YOU ARE THE LEGAL GUARDIAN OF YOUR SON, YOU HAVE NOT AT ANY TIME FURNISHED DOCUMENTARY EVIDENCE THAT YOU HAVE IN FACT BEEN APPOINTED LEGAL GUARDIAN BY A COURT HAVING JURISDICTION. YOUR CLAIM WAS FILED AS NATURAL GUARDIAN AND SO FAR AS THE RECORD SHOWS THIS HAS NOT BEEN CHANGED NOTWITHSTANDING ANY PAYMENTS YOU MAY HAVE RECEIVED ON BEHALF OF YOUR SON BY REASON OF ENTITLEMENTS OTHER THAN THE DEATH GRATUITY.

THE FACT THAT YOU HAVE BEEN PAID BENEFITS ON BEHALF OF YOUR SON BY OTHER AGENCIES OF THE GOVERNMENT AFFORDS NO BASIS TO ALLOW YOU THE DEATH GRATUITY AS HIS NATURAL GUARDIAN, SINCE THOSE BENEFITS ARE ADMINISTERED UNDER LAWS SEPARATE AND DISTINCT FROM THE PROVISIONS GOVERNING PAYMENT OF THE DEATH GRATUITY.

ACCORDINGLY, YOU ARE AGAIN ADVISED THAT THE DEATH GRATUITY MAY NOT BE PAID TO YOU AS NATURAL GUARDIAN OF YOUR MINOR SON AND THAT YOUR CLAIM MUST BE SUPPORTED BY A CERTIFIED COPY OF LETTERS OF GUARDIANSHIP ISSUED BY A COURT HAVING JURISDICTION OVER YOUR MINOR SON.

YOU ARE FURTHER ADVISED THAT THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A, PROVIDES, WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE, THAT ALL CLAIMS AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE, THAT ARE NOT RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 YEARS FROM THE DATE THEY ACCRUE, SHALL BE FOREVER BARRED. IN THE CASE OF COMMANDER YORK, SUCH 10-YEAR PERIOD WILL EXPIRE ON SEPTEMBER 22, 1969, 10 YEARS FROM THE DATE OF HIS DEATH.

IT IS THEREFORE SUGGESTED THAT CONSIDERATION BE GIVEN TO THE APPOINTMENT PROMPTLY OF A LEGAL GUARDIAN OF YOUR SON, TIMOTHY, BY A COURT OF COMPETENT JURISDICTION IN ORDER THAT A CLAIM BY SUCH DULY QUALIFIED PERSON, ACCOMPANIED BY A CERTIFIED COPY OF THE LETTERS OF GUARDIANSHIP, MAY BE PRESENTED TO US WITHIN THE 10-YEAR PERIOD AND THUS AVOID ANY QUESTION AS TO THE CLAIM BEING BARRED.