B-122622, MAY 19, 1955, 34 COMP. GEN. 616

B-122622: May 19, 1955

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1955: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 20. REQUESTING A DECISION WHETHER IT IS PROPER TO PAY A VOUCHER IN FAVOR OF MRS. THAT HIS DEATH WAS NOT THE RESULT OF HIS OWN MISCONDUCT. HE WAS NOT SURVIVED BY A WIDOW. ARE THOSE WHICH WERE MADE BY TYPEWRITER. THE NAME OF THE PRINCIPAL BENEFICIARY AND RELATED ENTRIES HAVE BEEN LINED OUT WITH PEN AND INK AND THE NAME OF MRS. SUCH SUBSTITUTED ENTRIES WERE PRINTED WITH PEN AND INK AND NOTHING APPEARS TO SHOW WHEN AND BY WHOM THE CHANGES WERE MADE. TO THE BEST OF THEIR KNOWLEDGE THE CHANGES WERE NOT MADE AT THAT STATION AND IT IS REPORTED THAT THERE IS NO INFORMATION IN THE OFFICIAL RECORDS OF THE DECEDENT RELATING TO THE SUBSTITUTED ENTRIES.

B-122622, MAY 19, 1955, 34 COMP. GEN. 616

GRATUITIES - SIX MONTHS' DEATH - DESIGNATION OF BENEFICIARIES CHANGES IN BENEFICIARY DESIGNATIONS FOR PAYMENT OF THE SIX MONTHS' DEATH GRATUITY AUTHORIZED BY THE ACT OF DECEMBER 17, 1919, MUST COMPLY WITH THE FORMALITIES PRESCRIBED BY REGULATION, AND ANY DEPARTURE FROM THE ESTABLISHED PROCEDURE MUST BE ENTIRELY FREE FROM DOUBT, FRAUD, OR MISTAKE.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO LIEUTENANT COLONEL C. W. GRIFFIN, UNITED STATES AIR FORCE, MAY 19, 1955:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 20, 1954, WITH ENCLOSURES, REQUESTING A DECISION WHETHER IT IS PROPER TO PAY A VOUCHER IN FAVOR OF MRS. HARVEY WOOTEN, RURAL ROUTE NO. 1, FRANKLIN FURNACE, OHIO, FOR $1,146.60, REPRESENTING THE SIX MONTHS' DEATH GRATUITY PAYMENT IN THE CASE OF THE LATE WALTER HERBERT CAMPBELL, STAFF SERGEANT, UNITED STATES AIR FORCE, SERVICE NUMBER AF 3526 7327.

IT APPEARS FROM THE PAPERS FORWARDED WITH THE VOUCHER THAT THE ENLISTED MAN DIED ON APRIL 9, 1954, AND THAT HIS DEATH WAS NOT THE RESULT OF HIS OWN MISCONDUCT. HE WAS NOT SURVIVED BY A WIDOW, OR CHILD, OR BY HIS PARENTS.

ON AUGUST 30, 1951, THE ENLISTED MAN EXECUTED IN DUPLICATE, DD FORM 93, RECORD OF EMERGENCY DATA FOR THE ARMED FORCES OF THE UNITED STATES, NAMING HIS FATHER, APPARENTLY THEN LIVING, AS HIS EMERGENCY ADDRESSEE AND PRINCIPAL BENEFICIARY OF THE SIX MONTHS' DEATH GRATUITY PAYMENT, AND HIS SISTER, OLETA BIGGS, AS ALTERNATE BENEFICIARY OF THE GRATUITY PAYMENT. THE ENTRIES ON THE ORIGINAL COPY OF DD FORM 93, FILED WITH HEADQUARTERS UNITED STATES AIR FORCE, ARE THOSE WHICH WERE MADE BY TYPEWRITER, APPARENTLY ON AUGUST 30, 1951. ON THE DUPLICATE COPY OF DD FORM 93, FILED IN THE FIELD PERSONNEL RECORD FILE, HOWEVER, THE NAME OF THE PRINCIPAL BENEFICIARY AND RELATED ENTRIES HAVE BEEN LINED OUT WITH PEN AND INK AND THE NAME OF MRS. H. WOOTEN, ALSO A SISTER, AND APPROPRIATE RELATED ENTRIES, SUBSTITUTED. SUCH SUBSTITUTED ENTRIES WERE PRINTED WITH PEN AND INK AND NOTHING APPEARS TO SHOW WHEN AND BY WHOM THE CHANGES WERE MADE. RESPONSIBLE OFFICERS AT THE ENLISTED MAN'S LAST STATION AVER THAT, TO THE BEST OF THEIR KNOWLEDGE THE CHANGES WERE NOT MADE AT THAT STATION AND IT IS REPORTED THAT THERE IS NO INFORMATION IN THE OFFICIAL RECORDS OF THE DECEDENT RELATING TO THE SUBSTITUTED ENTRIES.

THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 903, APPLICABLE TO PERSONNEL OF BOTH THE ARMY AND THE AIR FORCE, PROVIDES, IN MATERIAL PART, AS FOLLOWS (QUOTING FROM THE UNITED STATES CODE):

IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OWN MISCONDUCT, OF ANY OFFICER OR ENLISTED MAN ON THE ACTIVE LIST OF THE REGULAR ARMY OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE BRANCH, OFFICE, OR OFFICERS OF THE ARMY THE SECRETARY OF THE ARMY MAY FROM TIME TO TIME DESIGNATE SHALL CAUSE TO BE PAID TO THE WIDOW, AND IF THERE BE NO WIDOW OR CHILD OR CHILDREN, AND IF THERE BE NO WIDOW OR CHILD TO ANY OTHER DEPENDENT RELATIVE OF SUCH OFFICER OR ENLISTED MAN PREVIOUSLY DESIGNATED BY HIM, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF HIS DEATH. THE SECRETARY OF THE ARMY SHALL ESTABLISH REGULATIONS REQUIRING EACH OFFICER AND ENLISTED MAN HAVING NO WIFE OR CHILD TO DESIGNATE THE PROPER DEPENDENT RELATIVE TO WHOM THIS AMOUNT SHALL BE PAID IN CASE OF HIS DEATH. * * * AND PROVIDED FURTHER, THAT IN THE EVENT OF THE DEATH OF ANY BENEFICIARY BEFORE PAYMENT TO AND COLLECTION BY SUCH BENEFICIARY OF THE AMOUNT AUTHORIZED HEREIN, SUCH GRATUITY SHALL BE PAID TO THE NEXT LIVING BENEFICIARY IN THE ORDER OF SUCCESSION ABOVE STATED * * *.

AIR FORCE REGULATION NO. 35-38, JUNE 21, 1950, ANNOUNCED THE AVAILABILITY OF DD FORM 93 FOR THE PURPOSE OF PROVIDING THE AIR FORCE WITH CERTAIN NECESSARY PERSONAL DATA ON ITS MEMBERS TO BE USED IN ANY CASE WHERE THE MEMBER CONCERNED BECOMES A CASUALTY. PARAGRAPH 3 OF THAT REGULATION ROVIDED:

PREPARATION AND DISPOSITION:

(A) PERSONS IN ACTIVE SERVICE. PREPARATION AND DISPOSITION OF THE DD FORM 93 WILL BE IN ACCORDANCE WITH THE FOLLOWING:

(1) THIS FORM WILL BE ACCOMPLISHED AND MAINTAINED CURRENT BY ALL OFFICERS AND AIRMEN.

(2) THIS FORM WILL BE ACCOMPLISHED UPON INITIAL ENTRY INTO THE SERVICE, UPON REENLISTMENT, AND/OR WHEN A CHANGE IN STATUS OCCURS WHICH AFFECTS INFORMATION CONCERNING DESIGNATOR'S NAME, SERVICE NUMBER, NAME OF PERSON TO BE NOTIFIED IN CASE OF EMERGENCY, SPOUSE, AND DEPENDENT RELATIVE DESIGNATED TO RECEIVE SIX MONTH'S GRATUITY PAY.

(3) WITH THE EXCEPTION OF SPOUSE, ONLY NAMES OF LIVING PERSONS WILL BE ENTERED ON THE FORM.

(4) DISPOSITION OF SIGNED COPIES OF DD FORMS 93 WILL BE AS FOLLOWS:

ORIGINAL: FORWARD TO: AIR ADJUTANT GENERAL,

HEADQUARTERS USAF,

WASHINGTON 25, D.C.

DUPLICATE: FILE IN SERVICE RECORD OR FIELD PERSONNEL RECORD FILE.

SUCH REQUIREMENTS ARE CONTINUED IN SUBSEQUENT CHANGES AND ISSUES OF THAT REGULATION.

THE SIX MONTHS' DEATH GRATUITY IS A KIND OF FREE INSURANCE AND WE HAVE APPLIED THE LAW OF INSURANCE IN DETERMINING QUESTIONS ARISING IN CONNECTION WITH PAYMENT OF SUCH GRATUITY. COMPARE 22 COMP. GEN. 85. IS HELD GENERALLY IN THE LAW OF INSURANCE THAT WHERE THE METHOD OF CHANGING THE BENEFICIARIES OF AN INSURANCE POLICY IS PRESCRIBED, THE REQUIRED FORMALITIES MUST BE OBSERVED. IN THAT CONNECTION, IT IS WELL SETTLED THAT THE INSURER MAY PRESCRIBE OR REGULATE THE METHOD OF CHANGING BENEFICIARIES AND, ORDINARILY, A CHANGE OF BENEFICIARY CAN BE ACCOMPLISHED ONLY IN THE MANNER PRESCRIBED, WITH THE RESULT THAT AN ATTEMPT TO MAKE A CHANGE IN ANY OTHER MANNER IS INEFFECTUAL. IF, HOWEVER, THE INSURED HAS DONE ALL IN HIS POWER TO EFFECT THE CHANGE, OR IF IT IS BEYOND HIS POWER TO COMPLY LITERALLY WITH SUCH PROVISIONS OR REGULATIONS, A COURT OF EQUITY MAY TREAT THAT AS DONE WHICH OUGHT TO BE DONE AND THE CHANGE AS HAVING BEEN LEGALLY MADE. SEE 29 AM. JUR., INSURANCE, 1315.

THE REGULATIONS PROMULGATED BY THE SECRETARY OF THE AIR FORCE PRESUMABLY WERE MADE IN THE INTEREST OF ORDERLY PROCEDURE AND TO INSURE TO THE FULLEST EXTENT POSSIBLE AGAINST FRAUD AND MISTAKE. CONSEQUENTLY, IT SEEMS CLEAR THAT SIX MONTHS' DEATH GRATUITY BENEFICIARY DESIGNATIONS SHOULD BE MADE IN ACCORDANCE WITH THE REGULATIONS AND NO DEPARTURE FROM THE REGULATIONS SHOULD BE RECOGNIZED EXCEPT WHERE IT IS ESTABLISHED THAT AN INFORMAL DESIGNATION IS ENTIRELY FREE FROM DOUBT OR FRAUD OR MISTAKE.

THERE HAS BEEN NO COMPLIANCE WITH THE REGULATIONS IN THIS CASE. ASIDE FROM THE PEN AND INK CHANGES ON THE DUPLICATE COPY OF THE DD FORM 93, THERE IS NOTHING IN THE OFFICIAL RECORDS WHICH EVEN SUGGESTS THAT THE DECEDENT ATTEMPTED TO CHANGE THE PRINCIPAL BENEFICIARY OF THE GRATUITY PAYMENT. OBVIOUSLY THE PEN AND INK CHANGES MAY NOT, OF THEMSELVES, BE REGARDED AS ESTABLISHING THAT HE HAD DONE ALL IN HIS POWER TO CHANGE THE PRINCIPAL BENEFICIARY. IN FACT, IT IS NOT EVEN ESTABLISHED THAT SUCH CHANGES WERE MADE BY THE DECEDENT. HENCE, WE MUST CONCLUDE THAT THE BENEFICIARY DESIGNATIONS AS ORIGINALLY MADE BY THE DECEDENT ON AUGUST 30, 1951, WERE IN FULL FORCE AND EFFECT WHEN HE DIED. COMPARE PARKER V. UNITED STATES, 125 F.1SUPP. 731.

SINCE THE PRINCIPAL BENEFICIARY OF THE GRATUITY IS DEAD, THE ALTERNATE BENEFICIARY, OLETA BIGGS, IS ENTITLED TO THE GRATUITY PAYMENT UNDER THE EXPRESS PROVISIONS OF THE GOVERNING STATUTE.

PAYMENT ON THE SUBMITTED VOUCHER, WHICH IS RETAINED IN OUR OFFICE, IS NOT AUTHORIZED.