B-162473, DEC 21, 1971

B-162473, DEC 21, 1971

MILITARY PERSONNEL - PAY AND ALLOWANCE ACCRUED AT DEATH - DISTRIBUTION DECISION DENYING CLAIM OF MR. ANTHONY TRAPANI TO PAY AND ALLOWANCES DUE MR. ANDREW TRAPANI, CLAIMANT'S DECEASED BROTHER, FROM THE DEPARTMENT OF THE ARMY. SECTION 2771 OF TITLE 10, U.S.C. DECLARES THE ORDER OF DISTRIBUTION OF A MEMBER'S RIGHT TO ACCRUED PAY AND ALLOWANCES EXISTING UPON HIS DEATH. ACCORDINGLY, AT THE TIME OF THE MEMBER'S DEATH HIS RIGHT TO THE UNPAID AMOUNT VESTED IN HIS FATHER, AS DECEASED HAD NOT DESIGNATED ANOTHER INDIVIDUAL AND AS HE WAS NOT SURVIVED BY A SPOUSE OR BY CHILDREN. FACT THAT CLAIMANT HAS BEEN DESIGNATED BY A STATE COURT TO BE SOLE HEIR AND REPRESENTATIVE IS WITHOUT EFFECT. IF THE FATHER HAS SINCE DIED, HIS ESTATE ALONE IS ENTITLED TO PAYMENT.

TO MR. ANTHONY TRAPANI:

WE ARE IN RECEIPT OF YOUR LETTER DATED NOVEMBER 11, 1971, ENCLOSING A COPY OF AN ORDER DATED AUGUST 30, 1971, BY THE PROBATE COURT FOR THE COUNTY OF KENT, STATE OF MICHIGAN, IN THE MATTER OF THE ESTATE OF ANDREW TRAPANI, DECEASED.

THE ORDER ASSIGNS TO YOU, AS SOLE HEIR, DEVISEE, AND LEGATEE OF THE DECEASED, THE RESIDUE OF THE DECEDENT'S PERSONAL ESTATE, INCLUDING THE UNLIQUIDATED CLAIM AGAINST THE DEPARTMENT OF THE ARMY, FOR ACCRUED PAY AND ALLOWANCES DUE THE DECEASED ON DATE OF DEATH, MARCH 11, 1967.

IN YOUR LETTER YOU REQUEST THAT A CHECK COVERING ALL FUNDS BEING HELD BY THE FINANCE CENTER, UNITED STATES ARMY, IN THE NAME OF THE DECEDENT, BE SENT TO HIS SAVINGS ACCOUNT AT THE FIRST NATIONAL BANK OF COLORADO SPRINGS, COLORADO SPRINGS, COLORADO.

IN OUR DECISIONS, B-162473, DATED OCTOBER 5, 1967 AND AUGUST 12, 1971, WE ADVISED YOU THAT UNDER THE PROVISIONS OF THE GOVERNING STATUTE, SECTION 2771 OF TITLE 10, U.S.C. THE AMOUNT DUE FROM THE ARMED FORCE OF WHICH YOUR BROTHER WAS A MEMBER MUST BE DISTRIBUTED IN ACCORDANCE WITH THE ORDER OF PRECEDENCE SET FORTH IN THAT SECTION. PAYMENT IS TO BE MADE TO THE PERSON HIGHEST ON THE LIST LIVING ON THE DATE OF THE MEMBER'S DEATH. THIS ORDER OF PRECEDENCE IS AGAIN LISTED FOR YOUR INFORMATION AS FOLLOWS:

(1) BENEFICIARY DESIGNATED BY THE MEMBER

(2) SURVIVING SPOUSE

(3) CHILDREN AND THEIR DESCENDANTS, BY REPRESENTATION

(4) FATHER AND MOTHER IN EQUAL PARTS, OR, IF EITHER IS DEAD, THE SURVIVOR

(5) LEGAL REPRESENTATIVE

(6) PERSONS ENTITLED UNDER THE LAW OF THE DOMICILE OF THE DECEASED MEMBER

INASMUCH AS YOUR BROTHER DID NOT DESIGNATE A BENEFICIARY AND WAS NOT SURVIVED BY A SPOUSE, CHILDREN, OR MOTHER, HIS FATHER, SAM TRAPANI, WHOM YOU LISTED IN YOUR APPLICATION OF APRIL 10, 1967, AS RESIDING AT 1828 BUCHANAN AVENUE, GRAND RAPIDS, MICHIGAN, TOOK PRECEDENCE OVER A LEGAL REPRESENTATIVE OF THE DECEDENT, OR HIS BROTHERS OR ANY OTHER PERSON ENTITLED UNDER LAW OF THE DOMICILE OF THE DECEASED MEMBER.

AS WE HAVE PREVIOUSLY ADVISED YOU, WE MAY AUTHORIZE PAYMENT OF A CLAIM FROM PUBLIC FUNDS ONLY WHEN SUCH PAYMENT IS AUTHORIZED BY THE APPLICABLE LAW AND REGULATIONS. THE PROVISIONS OF 10 U.S.C. 2771 ARE MANDATORY AND BINDING UPON OUR OFFICE AND THE ARREARS OF PAY DUE UPON THE DEATH OF YOUR BROTHER IS REQUIRED TO BE DISTRIBUTED IN THE ORDER OF PRECEDENCE SET FORTH IN THAT LAW.

SINCE THE RECORD SHOWS THAT ON THE DATE OF SERGEANT TRAPANI'S DEATH, HIS FATHER WAS THE SURVIVOR HIGHEST IN THE ORDER OF PRECEDENCE GOVERNING THE SETTLEMENT OF THE DECEDENT'S ACCOUNT, A RIGHT TO THE AMOUNT DUE VESTED IN THE FATHER AT THAT TIME AND HE IS THE PERSON ENTITLED TO PAYMENT UPON RECEIPT OF A CLAIM FROM HIM OR ON HIS BEHALF BY A PERSON DULY AUTHORIZED TO REPRESENT HIM.

IF THE FATHER IS NO LONGER LIVING, THE AMOUNT DUE CONSTITUTES AN ASSET OF HIS ESTATE AND WE WOULD GIVE CONSIDERATION TO A CLAIM FOR SUCH AMOUNT FILED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE FATHER'S ESTATE, SUPPORTED BY AN AUTHENTICATED COPY OF HIS LETTERS OF APPOINTMENT AS ADMINISTRATOR OR EXECUTOR.

ACCORDINGLY, FOR THE FOREGOING REASONS, THE COURT ORDER WHICH YOU HAVE SUBMITTED AFFORDS NO LEGAL BASIS TO AUTHORIZE PAYMENT TO YOU OR ON YOUR BEHALF AS EITHER THE LEGAL REPRESENTATIVE OR SOLE HEIR OF THE DECEDENT.