The opinion of the court was delivered by: MATTHEWS
Plaintiff, a national and resident of the Philippines, filed a complaint on May 13, 1968, seeking gratuitous National Service Life Insurance. The action came on for hearing on plaintiff's motion for summary judgment or, alternatively, for judgment on the pleadings, and defendant's cross-motion for judgment on the pleadings.
The undisputed facts reveal that a typewritten letter, dated June 9, 1956, was sent to the Veterans Administration by Maria Viola, the mother of plaintiff. The letter reads:
"As the natural mother and guardian of the minor, Agustin Viola, I have the honor to apply for death compensation on account of the services rendered by the late veteran, HILARIO DAGOY, captioned-above. My son, Agustin Viola, is the illegitimate son of the late veteran, Hilario Dagoy. In this connection, I will appreciate very much if the necessary application forms for my accomplishment will be sent to me with the least possible delay.
"I trust that this matter will merit your prompt attention and favorable consideration." XC 18 388 577, Exhibit 4.
Opposite the typewritten name "Maria Viola" the letter was signed by thumbprint, and below were the signatures of two witnesses to the thumbprint.
In response to Maria Viola's letter the Veterans Administration sent forms for death compensation claims and instructions for their completion. Following a field examination, it was determined that the veteran was the putative father of the plaintiff, and plaintiff was awarded and paid death compensation.
On December 21, 1964, the Veterans Administration received a letter from plaintiff (dated December 4, 1964) wherein plaintiff requested "the status of [his] claim for gratuitous National Life Insurance." XC 18 388 577, Exhibit 6. Treating this letter as an original claim for insurance, the Administrator disallowed the claim as untimely, in that it was not filed within one year following plaintiff's twenty-first birthday. 38 U.S.C. § 802(d)(5)(1952) provides:
Plaintiff was born on May 7, 1942; he reached his twenty-first birthday on May 7, 1963. Had his application for gratuitous insurance benefits been filed by May 7, 1964 (within one year after the date he became twenty-one) he would be entitled to the insurance. But plaintiff's letter, received by the Veterans Administration on December 21, 1964, was some seven months late.
It is contended by plaintiff, however, that the application for death compensation made by Maria Viola on his behalf in 1956 should be treated as a claim for insurance as well.
Relative to gratuitous insurance benefits, the statutory definition of "claim" is found in 38 U.S.C. § 784(h) (1964), as follows:
The term "claim" as used in this section means any writing which uses words showing an intention to claim insurance benefits * * *.
The United States Court of Appeals for this Circuit recently construed this definition of the term "claim." This was in the unreported case of Lames v. United States, No. 23,656, decided October 23, 1970. There a widow had filed in 1950 a claim for National Service Life Insurance and had listed two minor children as the children of the veteran, one of which was legitimate and one illegitimate. The widow's claim was denied as untimely. Thereafter the insurance was fully paid to the legitimate son, who had filed his own claim. The illegitimate daughter was ignored. When later she sought the insurance, the Government argued that no express claim for insurance had ...