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Comptroller General McCarl to the Director, United States Veterans' Bureau, August 10, 1922:
I have your letter of April 22, 1922, requesting decision whether payment in equal shares to Samuel R. Cordon and Lela Cordon Robinson .on account of insurance granted to the late Robert G. Lilley, an illegitimate child of the mother of these claimants, for the period from the death of the insured to January 30, 1920, is authorized. Also I have your letter of May 12, 1922, in which you state that after the letter of April 22 had been transmitted to me you received a copy of my decision of March 27, 1922, on the claim of Samuel R. Cordon for his share of this insurance, which claim had been examined and approved in your bureau and referred to the General Accounting Office for settlement.
The material facts of this case are set forth in the decision of March 27 and need not be repeated here. It is sufficient to say that the Bureau of War Risk Insurance had awarded and paid to legitimate children of the putative father of the insured, who was an illegitimate child of that father by another woman, installments of insurance from the date of death of the insured up to and including January 30, 1920, at which time the awards were canceled presumably because of the discovery of the real relationship of these beneficiaries to the insured. That Samuel R. Cordon and Lela Cordon Robinson are claiming as children of the mother of the insured and next of kin to whom the insurance would be due under the terms of the war risk insurance act and the law of decedents'. domicile if the insured had died without designating a beneficiary either in his lifetime or by last will and testament. And that Lowis T. Holliday and Charlotte A. Holliday claim the insurance as foster parents of the insured designated by the insured as beneficiaries of the insurance in his last will and testament which has been duly admitted to probate. Insurance has been awarded to these testamentary beneficiaries from March 7, 1920. The insurance now in question is those installments accruing between the death of the insured June 8, 1918, and January 30, 1920, erroneously paid to children of the putative father of the insured.
The decision of March 27, 1922, was to the effect that Samuel R. Cordon is not entitled to any part of this insurance as next of kin because of the testamentary designation of other beneficiaries. The claim thereto of the testamentary beneficiaries was not before me and therefore was not decided. In your letter of May 12, 1922, you call attention to those provisions of the war risk insurance act restricting the class of persons who may be designated as beneficiaries of war risk insurance, which class did not specifically include foster parents until the amendment made by section 4 of the act of December 24, 1919, 41 Stat., 371. You also request decision
whether the claims of the testamentary beneficiaries for the in. stallments of insurance in question may be paid.
Section 402 of the war risk insurance act of October 6, 1917, 40 Stat., 409, provides that insurance shall be payable only to certain specified relations of the insured including the relationship of “parent." Section 22 of the said act defines the term parent as used in the act to include father, mother, grandfather, grandmother, stepfather, stepmother, of either the person in service or of a spouse. The act of June 25, 1918, 40 Stat., 609, amended section 22 by adding to the several relationships included in the former definition father by adoption and mother by adoption. Section 4 of the act of December 24, 1919, 41 Stat., 371, further amended the section by adding to it the following subdivision:
(4a) The terms “ father” and “mother" include stepfathers and stepmothers, fathers and mothers through adoption, and persons who have stood in loco parentis to a member of the military or naval forces of the United States at any time prior to his enlistment or induction for a period of not less than one year: Provided, That this subdivision shall be deemed to be in effect as of October 6, 1917.
Section 13 of the act of December 24, 1919, also amended section 402 of the war risk insurance act by providing that the permitted class of beneficiaries in insurance shall be enlarged so as to include in addition to persons theretofore enumerated therein uncles, aunts, nephews, nieces, brothers-in-law, and sisters-in-law of the insured, with the following provisos:
Prorided, That nothing herein shall be construed to interfere with the payment of the monthly installments authorized to be made under the provisions of the said War Risk Insurance Act, as originally enacted and subsequently amended, up to and including the second calendar month after the passage of this Act: Provided further, That all awards of insurance under the provisions of the said War Risk Insurance Act, as originally enacted and subsequently amended, shall be revised as of the first day of the third calendar month after the passage of this Act, in accordance with the provisions of the said War Risk Insurance Act as modified by this amendatory Act.
In the case now in hand the testamentary designation of the foster parents its beneficiaries of the insurance was made in February, 1918, the insured died June 8, 1918, the will is said to have been admitted to probate August 21, 1918, and the final order entered at the March, 1921, term of the court. The amendment of section 22 hereinbefore quoted is a statutory validation of this designation, which was invalid at the time it was made because foster parents were not included at that time within the statutory definition of " parents or of " father” or“ mother” and therefore were not eligible for designation as beneficiaries of insurance. The effect of that validation upon the rights of the several claimants to insurance accrued between the death of the insured and the date the amendment became effective is the matter for determination and decision at this time.
There is no question that the payments heretofore made to the children of the putative father of the insured were without authority
under the war risk insurance laws as they stood before or after the amendment and the law of domicile of the insured, nor is there any question as to the right of the foster parents to insurance accruing after the effective date of the revised award. The question for decision is which, if either, of the class of claimants referred to in your submission is entitled to insurance accrued between the death of insured and the effective date of the revised award.
The bureau has ruled that even though no payments or award had heen made under the former laws at the time of the amendment the bureau might thereafter award and pay accrued insurance to persons entitled under former laws. I am not disposed to question that ruling, which appears to be in accordance with the intent and purpose of the section, in so far as it relates to cases coming within the additions to the permitted class of beneficiaries provided for by section 13 of the amendatory act and therefore coming under the first proviso to the section, but I see no ground for extending either the first proviso itself or the construction given thereto by the bureau to cases coming under section 4 of the said act.
The first proviso to the section clearly relates only to cases coming under the section, but the second proviso deals with all awards of insurance affected by any provision of the amendatory act and therefore deals with cases coming under the amendment made by section 4 of the act. The said second proviso prescribes specifically the action which shall be taken under the amendment; namely, that all such awards shall be revised at the time specified in the proviso to accord with the amendments made by the act.
As to cases coming within the addition to the permitted classes of insurance beneficiaries provided for in section 13 of the amendatory act that section provides in effect that payments under old laws shall continue up to the time set by the section for revision of awards. In other words, the section sets a time when the newly created rights shall begin. As to cases coming within the amended definition of the terms" father” and “mother” given by section 4 of the amendatory act section 13 provides only that awards shall be revised as of the time set by the section. The ground for this distinction may not be entirely clear. It may have been inadvertent or it may rest upon
the fact that section 13 brought within the benefit of the insurance laws classes of beneficiaries who had not theretofore been considered as deserving of such benefit, while section 4 brought in persons standing in loco parentis whose care of the insured entitled them to accrued insurance, subject only to conflicting awards and payments already made by the bureau at the time of the amendment. But whatever may have been the reason for the distinction I think it clearly exists and can not properly be removed by construction of law.
The former decision that Samuel R. Cordon is not entitled to any part of the insurance now in question is correct and must be affirmed. The claim of Lela Cordon Robinson stands upon the same footing as the claim of the said Cordon and has no better basis for allowance.
The claim of Lewis T. Holliday and Charlotte A. Holliday are not sustained by an award of the director. On the contrary the insurance was awarded to the other claimants under legal opinion and finding of the bureau, and you are contending for the correctness of that opinion and finding. Only in case an award of insurance by the director is made does a question of payment of such insurance for decision by the Comptroller General arise. Adverse rulings of the director are not subject to review by the General Accounting Office, nor is the director required or authorized to submit such rulings to the Comptroller General for decision. War risk insurance laws provide for suit in court in such cases.
As the case now stands there is no legal basis for the payment of these latter claims, nor is the director required to make an award to these claimants. This office having decided that no payment to claimants Cordon and Robinson may be made in accordance with the bureau opinion and award, no further payment of this insurance should be made in this case to either class of claimants. Liti. gation may ensue in any event, and the Government should not be subjected to the risk of being required to pay the insurance three times instead of twice if the courts should give the statutes a different construction from that given by this office.
In your letter of May 12, 1922, you also submit for decision the general question whether installments may be paid to claimants found by the bureau to be entitled thereto, irrespective of payments thereof which were made to other claimants who were not entitled thereto under a mistake of fact and irrespective of whether or not the erroneous payments may be recovered by the bureau.
The established ruling and practice is that an officer may correct his own mistakes of law or of fact, but may not correct errors of law of his predecessor. If through his own mistake of law or of fact the director has paid insurance to one clearly not entitled thereto, and it is equally clear that another claimant is entitled thereto, the director may, and it is his duty to do so, make payment to the rightful claimant upon a proper claim therefor, irrespective of recovery by the Government of the amount erroneously paid. The rightful claimant should not be denied a payment to which he is clearly entitled because of the director's error. If a predecessor has erred in point of law there is, generally speaking, no authority in the director to correct that error unless there is statutory authority for so doing, but when newly discovered evidence discloses an error of fact of a predecessor that error may be corrected even though it involves the Government in a duplicate payment, provided, of course, there has been no contributing negligence or other fault chargeable to the person claiming the payment.
I may suggest that in all such cases the error should be apparent and the right of the claimant entirely clear to justify a duplicate payment. All doubtful claims involving a duplication of payment, such as the specific case dealt with in this decision, should be rejected and the claimant left to his statutory remedy in the courts.
RETIRED OFFICERS OF ARMY ORDERED FOR INSTRUCTION AND
DETAILED AS PROFESSORS OF MILITARY SCIENCE AND TACTICS. A retired dental surgeon of the Army ordered to temporary duty for pursuing
a course of instruction at a medical school, and detailed effective there. after as a professor of military science and tactics under section 33 of the act of June 4, 1920, 41 Stat., 777, does not while in the performance of such duty come within the purview of section 51 of said act of June 4, 1920, 41 Stat., 786, and is not possessed of any right thereunder to promotion, pay,
or otherwise. Comptroller General McCarl to Secretary of War, August 11, 1922:
I have your letter of June 16, 1922, asking whether Capt. Clarence E. Lauderdale, U. S. A., retired, is entitled by reason of active duty performed after retirement to advancement to the grade of major or colonel on the retired list.
You state that the Acting Judge Advocate General held, June 10, 1922, that Captain Lauderdale may be advanced upon the retired list to the grade of major as of December 10, 1921, but is not entitled to advancement above that grade, in which opinion you concur, yet as the case is “one of first impression and the question presented largely a financial one" you bring the matter to the attention of this office with request for a decision in advance of formal action by your department.
Captain Lauderdale's record appears as follows: April 15, 1901, to June 19, 1911, a contract dental surgeon. June 20, 1911, accepted appointment as dental surgeon, rank of first lieutenant,
Regular Army. March 27, 1917, ordered retired while holding rank of first lieutenant, with rank
of captain from June 3, 1916, on account of having been examined and found physically disqualified to perform duties of captain by reason of dis
ability incident to service, June 2, 1921, ordered to pursue instructions at Medical Field Service School,
Carlisle, Pa., and detailed as professor of military science and tactics, St. Louis University Dental School, under section 40b of national defense act, as amended by paragraph 39, S. 0. 126-0 (or 226-0), War Depart
ment. His consent to detail is inferred. June 2, 1921, inferred date of reporting under above orders. June 16, 1922, inferred detail under orders still in effect. No duty of any other character shown to have been performed since retire
ment than that under above order.