B-157479, MAY 11,1966

B-157479, MAY 11,1966

TO FREDDIE MCCARTHY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 11, 1966, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT DATED JANUARY 17, 1966, WHICH DISALLOWED YOUR CLAIM AND THE CLAIMS OF YOUR SISTERS, ELIZABETH, ROSIE, EVANGELINE AND AIDA MCCARTHY, FOR YOUR SHARES OF PAY AND ALLOWANCES AND 6 MONTHS' DEATH GRATUITY BELIEVED TO BE DUE INCIDENT TO THE DEATH OF YOUR FATHER, ALBERT MCCARTHY, WHO SERVED AS AN OFFICER IN THE UNITED STATES ARMY IN THE PHILIPPINES DURING WORLD WAR II.

THE RECORD SHOWS THAT WHILE YOUR MOTHER CONCHITA PEREZ AND YOUR FATHER LIVED TOGETHER IN AN OSTENSIBLE MARITAL RELATIONSHIP, THEY DID NOT ENTER INTO A CEREMONIAL MARRIAGE. UNDER THE LAWS OF THE REPUBLIC OF THE PHILIPPINES SUCH MARRIAGE RELATIONSHIP IS NOT LEGALLY RECOGNIZED. SINLAO V. UNITED STATES, 271 F.2D 846; SAMALA V. UNITED STATES, 183 F.SUPP. 601, AND DE LANO V. UNITED STATES, 183 F.SUPP. 781. IT HAS BEEN HELD UNDER PHILIPPINE LAW THAT CHILDREN OF SUCH A RELATIONSHIP MAY IN CERTAIN CIRCUMSTANCES BECOME ACKNOWLEDGED NATURAL CHILDREN WITH RESULTANT CAPACITY TO INHERIT FROM THEIR FATHER AS A RESULT OF HIS RECOGNITION OR ACKNOWLEDGMENT OF PATERNITY. HOWEVER, YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED JANUARY 17, 1966, FOR THE REASON THAT NEITHER OUR OFFICE NOR YOU WERE ABLE TO OBTAIN INFORMATION FROM THE OFFICIAL RECORDS OF THE PHILIPPINES SHOWING THAT YOUR FATHER, ALBERT MCCARTHY, HAD ACKNOWLEDGED THAT YOU AND YOUR SISTERS WERE HIS CHILDREN.

IN YOUR PRESENT LETTER IT IS STATED THAT YOU CANNOT FURNISH ANY BIRTH CERTIFICATE OR ACKNOWLEDGMENT OF YOUR LATE FATHER BECAUSE THE RECORDS WERE LOST OR DESTROYED DURING THE WAR. IN LIEU OF THIS YOU ASK US TO VERIFY THAT YOU AND YOUR SISTERS ARE THE CHILDREN OF ALBERT MCCARTHY BY WRITING TO MRS. AUGUSTINA M. MCCARTHY AND MR. JOSEPH MCCARTHY, THE MOTHER AND BROTHER OF YOUR FATHER WHO ARE RESIDING AT 4810 CASTILLA AVENUE, RICHMOND, CALIFORNIA.

THE RIGHT TO RECEIVE UNPAID PAY AND ALLOWANCES AND 6 MONTHS' DEATH GRATUITY BELIEVED TO BE DUE THE ESTATE OF A MEMBER OF THE UNIFORMED SERVICES RESTS BASICALLY UPON FEDERAL STATUTES. HOWEVER, IN DETERMINING THE LEGAL STATUS OF AN HEIR WHO IS ELIGIBLE UNDER THE FEDERAL STATUTES TO SHARE IN THE ESTATE OF A DECEASED MEMBER OF THE UNIFORMED SERVICES, THE APPLICABLE LAW IS THAT OF THE MEMBER'S RESIDENCE OR DOMICILE AT THE TIME OF HIS DEATH. UNITED STATES V. NORMAN, 184 F.SUPP. 309, AND AUTHORITIES CITED THEREIN. THUS, WHILE OUR FEDERAL STATUTES PROVIDE FOR PAYMENT DUE THE ESTATE OF ALBERT MCCARTHY TO HIS CHILDREN, THE LEGALITY OF YOUR RELATIONSHIP MUST BE ESTABLISHED IN ACCORDANCE WITH THE LAW OF THE REPUBLIC OF THE PHILIPPINES. THIS LAW REQUIRES THAT PARENTAL RELATIONSHIP OF CHILDREN BORN OF PARENTS WHO DID NOT ENTER INTO A CEREMONIAL MARRIAGE MUST BE ESTABLISHED FROM OFFICIAL RECORDS WHICH SHOW THAT THE FATHER ACKNOWLEDGED THEM AS HIS CHILDREN. THE SUFFICIENCY OF ANY SECONDARY EVIDENCE FOR THAT PURPOSE, SUBMITTED ON THE BASIS THAT THE ORIGINAL RECORDS WERE LOST OR DESTROYED, WOULD BE A MATTER FOR DETERMINATION BY A COURT OF COMPETENT JURISDICTION IN THE REPUBLIC OF THE PHILIPPINES. CONSEQUENTLY, WE MAY NOT ACCEPT A STATEMENT BY A GRANDMOTHER AND UNCLE AS ESTABLISHING THAT YOU QUALIFY AS NATURAL CHILDREN UNDER PHILIPPINE LAW. THIS IS A MATTER FOR THE PHILIPPINE COURTS.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, AND IN THE ABSENCE OF EVIDENCE ESTABLISHING THAT ALBERT MCCARTHY ACKNOWLEDGED YOU AND YOUR SISTERS AS HIS CHILDREN, OR A COURT DETERMINATION OF YOUR STATUS, WE ARE WITHOUT LEGAL AUTHORITY TO ALLOW YOUR CLAIM. THEREFORE, THE SETTLEMENT OF JANUARY 17, 1966, IS SUSTAINED.