B-164188, JUN. 3, 1968

B-164188, JUN. 3, 1968

TO MR. W. D. BROWN:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF APRIL 24 AND MARCH 8, 1968 (THE LATTER BEING ADDRESSED TO THE DEPARTMENT OF THE AIR FORCE), IN EFFECT REQUESTING REVIEW OF SETTLEMENT OF OUR CLAIMS DIVISION DATED FEBRUARY 21, 1968, WHEREBY THE AMOUNT OF $2,073.46 REPRESENTING THE PAY AND ALLOWANCES DUE LIEUTENANT COLONEL JOBE HOWELL, FV 674932, DECEASED, WAS ALLOWED WILLIAM C. MILLS AND MILLIE EXA MILLS, AS LEGAL GUARDIANS OF WILLIAM J. HOWELL AND DIXIE LYNN HOWELL, MINORS. HOWEVER, THE AMOUNT ALLOWED WAS WITHHELD IN PARTIAL LIQUIDATION OF THE INDEBTEDNESS OF THE PAYEES BY REASON OF PAYMENT TO THEIR GUARDIANS OF A SIX MONTHS' DEATH GRATUITY IN THE AMOUNT OF $3,000 BEFORE IT WAS DETERMINED THAT THE DECEDENT WAS SURVIVED BY A WIDOW.

COLONEL HOWELL DIED DECEMBER 30, 1965, WHILE SERVING ON ACTIVE DUTY IN THE UNITED STATES AIR FORCE. IN ADDITION TO PAY AND ALLOWANCES DUE AT DATE OF DEATH, THERE WAS PAYABLE A DEATH GRATUITY AS PROVIDED BY 10 U.S.C. 1475. HE HAD ADVISED THE AIR FORCE THAT HE WAS SINGLE AND HAD DESIGNATED HIS SON AND DAUGHTER, WILLIAM J. AND DIXIE L. HOWELL, AS BENEFICIARIES FOR HIS UNPAID PAY AND ALLOWANCES. ON THE BASIS OF HIS REPRESENTATION, THE GRATUITY IN THE AMOUNT OF $3,000 -- MAXIMUM AMOUNT - WAS PAID TO THE LEGAL GUARDIANS OF WILLIAM J. AND DIXIE L. HOWELL IN ACCORDANCE WITH 10 U.S.C. 1477 (A) WHICH PROVIDES IN PERTINENT PART THAT:

"/A) A DEATH GRATUITY PAYABLE UPON THE DEATH OF A PERSON COVERED BY SECTION 1475 OR 1476 OF THIS TITLE SHALL BE PAID TO OR FOR THE LIVING SURVIVOR HIGHEST ON THE FOLLOWING LIST:

"/1) HIS SURVIVING SPOUSE.

"/2) HIS CHILDREN, AS PRESCRIBED BY SUBSECTION (B), IN EQUAL SHARES.'

AFTER PAYMENT OF THE GRATUITY WAS MADE, MARIA FIORAVANTI MCKAY HOWELL OBTAINED A JUDGMENT ON MAY 19, 1966, IN THE 162ND JUDICIAL DISTRICT COURT OF DALLAS COUNTY, TEXAS, DECLARING HER TO BE THE SURVIVING SPOUSE OF COLONEL HOWELL AND THEIR CHILD, KELLY LUISA MCKAY HOWELL, TO BE HIS LAWFUL HEIR. BECAUSE OF THE DOUBT THUS RAISED AS TO THE PARTIES ENTITLED, THE DEPARTMENT OF THE AIR FORCE FORWARDED TO THIS OFFICE FOR CONSIDERATION THE CLAIM OF MR. AND MRS. MILLS IN THEIR REPRESENTATIVE CAPACITIES FOR UNPAID PAY AND ALLOWANCES. CONSIDERATION OF THE MATTER WAS HELD IN ABEYANCE PENDING FINAL DECISION OF THE COURT AS TO THE RIGHTS OF THE PARTIES.

BY THE JUDGMENT DATED DECEMBER 11, 1967, THE COURT, AMONG OTHER THINGS, DECREED THAT A LEGAL MARRIAGE WAS ENTERED INTO BETWEEN THE DECEDENT AND MARIA FIORAVANTI MCKAY HOWELL ON SEPTEMBER 10, 1957, WHICH CONTINUED UNTIL HIS DEATH ON DECEMBER 30, 1965; THAT KELLY LUISA MCKAY IS THE LEGITIMATE CHILD OF THAT MARRIAGE; AND THAT THE SUM OF $3,000, PAID TO MR. AND MRS. MILLS BY REASON OF THE DEATH OF COLONEL HOWELL, WAS DETERMINED TO BE THE PROPERTY OF WILLIAM J. AND DIXIE L. HOWELL. THE COURT DIRECTED THAT THE PARTIES "EXECUTE ALL DOCUMENTS, PAPERS, DEEDS, INSTRUMENTS, AND ANY OTHER THING NECESSARY TO EFFECTUATE THE TERMS OF THIS ORDER.'

WHILE THE PRIOR RIGHT OF THE SURVIVING SPOUSE TO THE DEATH GRATUITY UNDER 10 U.S.C. 1477 IS CLEAR, IN VIEW OF THE FACT THAT THE PAYMENT TO MR. AND MRS. MILLS WAS PROPER WHEN MADE -- HAVING BEEN INDUCED BY INFORMATION FURNISHED BY THE DECEDENT -- AND SINCE THE PARTIES APPEAR TO HAVE AGREED ON THE DISPOSITION OF THE AMOUNTS WHICH BECAME AVAILABLE FOR PAYMENT TO HIS SURVIVORS UPON HIS DEATH AND SUCH AGREEMENT HAS BEEN REFLECTED IN A COURT DECREE, PAYMENT OF THE DEATH GRATUITY TO MR. AND MRS. MILLS WILL NOT BE QUESTIONED FURTHER UPON RECEIPT OF AN ASSIGNMENT EXECUTED (AS NEARLY AS POSSIBLE IN THE MANNER PROVIDED IN 31 U.S.C. 203) BY MRS. HOWELL, TRANSFERRING ALL HER RIGHT, TITLE AND INTEREST TO THE $3,000 DEATH GRATUITY TO THE LEGAL GUARDIANS OF WILLIAM J. AND DIXIE L. HOWELL. PAYMENT OF THE ARREARS OF PAY AND ALLOWANCES WILL BE MADE TO THEM AT THAT TIME.