The opinion of the court was delivered by: MATTHEWS
This case came on for hearing, and the Court has considered the record, the evidence adduced including Veterans Administration Claim File No. XC-6 376 121, and the argument and briefs of counsel.
The plaintiffs are the parents of Ernesto M. Tupaz who was killed in action November 22, 1943, while in the military service of the United States. He is deemed to have been covered by $5,000 of gratuitous insurance pursuant to Section 602(d)(3)(B) of the National Service Life Insurance Act of 1940, 38 U.S.C. (1952 Ed.) § 802(d)(3)(B). It is this insurance which the veteran's parents seek to recover by this action.
On behalf of the United States the claim is made that the Court lacks jurisdiction in this case for the reason that suit was not filed within the applicable limitations period specified in 38 U.S.C. § 784(b). It is also claimed that plaintiffs do not come within the permitted class of beneficiaries for gratuitous National Service Life Insurance because not "dependent" upon their veteran son at the time of his death as required by law. 38 U.S.C. (1952 Ed.) § 802(d)(2)(C).
It is clear that on November 12, 1947 plaintiffs filed a claim with the Veterans Administration for the insurance benefits, showing that the veteran had no widow or child.
Thereafter on June 23, 1952, the Veterans Administration denied the parents' claim on the ground that
"The deceased was not a member of the Armed Forces of the United States on or after December 7, 1941 and prior to April 20, 1942."
The aforesaid denial was not one made after consideration of the claim on its merits. This is so because the defendant, United States of America, through its Department of the Army, erroneously reported to the Veterans Administration that Ernesto M. Tupaz was not a member of the Armed Forces of the United States on or after December 7, 1941 and prior to April 20, 1942 when in truth and in fact he was in the military service of the United States from December 17, 1941 to the date of his death on November 22, 1943.
On July 31, 1952, the plaintiffs wrote the Veterans Administration referring to the disallowance of their claim on June 23, 1952. They took exception to the denial of their claim and asked that the action taken thereon be reviewed.
Moreover, their letter put the Veterans Administration on notice that they were insisting that their son was indeed a veteran who lost his life in the service of the United States.
Nevertheless, there is nothing in the Veterans Administration Claim file or elsewhere to show that the Veterans Administration ever took any action on the plaintiffs' exception to the disallowance of their claim or on their request for a review. Neither is there anything to indicate that the letter of the parents was acknowledged or that the Veterans Administration sought clarification of the service record in question.
In 1958 the Department of the Army corrected its error and certified to the Veterans Administration that Ernesto M. Tupaz had military service for the United States from December 17, 1941 to the date of his death on November 22, 1943. But this recertification did not result in any action by the Veterans Administration, corrective or otherwise, except the mere filing of the document evidencing the recertification.
On March 7, 1966 Mrs. Tupaz, mother of the deceased veteran, wrote the Veterans Administration stating, among other things, that
An application for the National Life Service Insurance had been properly made and submitted, however, up to this writing, we still failed to receive any amount corresponding to this benefit.
In connection with this claim, therefore I and my husband, respectfully request information as to the present status of our ...