B-125380, OCT. 6, 1955

B-125380: Oct 6, 1955

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SERAFINA GARCIA: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 15. THE CLAIM OF THE CHILDREN WAS DISALLOWED FOR THE REASON THAT THE DECEDENT LEFT A PERSON WHO. IS ENTITLED TO THE COMPENSATION IN PREFERENCE TO THEM. THE SETTLEMENT BY OUR OFFICE OF CLAIMS FOR UNPAID COMPENSATION DUE IN THE CASE OF A DECEASED CIVILIAN EMPLOYEE OF THE GOVERNMENT IS GOVERNED BY THE ACT OF AUGUST 3. TO THE BENEFICIARY OR BENEFICIARIES DESIGNATED BY THE OFFICER OR EMPLOYEE IN WRITING TO RECEIVE SUCH COMPENSATION FILED WITH THE GOVERNMENT AGENCY IN WHICH THE OFFICER OR EMPLOYEE WAS EMPLOYED AT THE TIME OF HIS DEATH * * *. THE SURVIVING SPOUSE IS FIRST ENTITLED TO CLAIM THE COMPENSATION. THIS STATUTE IS BINDING UPON OUR OFFICE AND WE HAVE NO DISCRETION BUT TO FOLLOW IT.

B-125380, OCT. 6, 1955

TO MRS. SERAFINA GARCIA:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 15, 1955, WRITTEN IN BEHALF OF LEONEL AND PEDRO ARMANDO MENDEZ, RELATIVE TO OUR SETTLEMENT DATED JULY 20, 1955, WHICH DISALLOWED THEIR CLAIM, AS CHILDREN, FOR COMPENSATION DUE PETE G. MENDEZ AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, HARLINGEN AIR FORCE BASE, TEXAS, UPON DATE OF HIS DEATH, NOVEMBER 18, 1954.

THE CLAIM OF THE CHILDREN WAS DISALLOWED FOR THE REASON THAT THE DECEDENT LEFT A PERSON WHO, UNDER THE PROVISIONS OF THE ACT OF AUGUST 3, 1950, 64 STAT. 395, IS ENTITLED TO THE COMPENSATION IN PREFERENCE TO THEM, AS WIDOW OF THE DECEDENT.

AS POINTED OUT IN OUR SETTLEMENT OF JULY 20, 1955, THE SETTLEMENT BY OUR OFFICE OF CLAIMS FOR UNPAID COMPENSATION DUE IN THE CASE OF A DECEASED CIVILIAN EMPLOYEE OF THE GOVERNMENT IS GOVERNED BY THE ACT OF AUGUST 3, 1950, 64 STAT. 395, WHICH PROVIDES THAT THE UNPAID COMPENSATION BE PAID IN THE FOLLOWING ORDER OF PRECEDENCE:

"FIRST, TO THE BENEFICIARY OR BENEFICIARIES DESIGNATED BY THE OFFICER OR EMPLOYEE IN WRITING TO RECEIVE SUCH COMPENSATION FILED WITH THE GOVERNMENT AGENCY IN WHICH THE OFFICER OR EMPLOYEE WAS EMPLOYED AT THE TIME OF HIS DEATH * * *.

"SECOND, IF THERE BE NO BENEFICIARY, TO THE WIDOW OR WIDOWER OF SUCH OFFICER, OR EMPLOYEE;

"THIRD, IF THERE BE NO BENEFICIARY OR SURVIVING SPOUSE, TO THE CHILD OR CHILDREN OF SUCH OFFICER OR EMPLOYEE * * *.'

UNDER THE PLAIN WORDING OF THE ABOVE-QUOTED STATUTE, WHERE AN EMPLOYEE DIES WITHOUT DESIGNATING A BENEFICIARY, SUCH AS HERE, THE SURVIVING SPOUSE IS FIRST ENTITLED TO CLAIM THE COMPENSATION. THIS STATUTE IS BINDING UPON OUR OFFICE AND WE HAVE NO DISCRETION BUT TO FOLLOW IT. SINCE THE INFORMATION ON FILE IN OUR OFFICE, IN THE FORM OF AFFIDAVITS FROM VARIOUS PERSONS, SHOWS THAT THE DECEDENT AND MARIA GUERRERO MENDEZ LIVED TOGETHER AS MAN AND WIFE FOR MANY YEARS, INCLUDING THE PERIOD IMMEDIATELY PRIOR TO THE DEATH OF MR. MENDEZ, IT IS CLEAR THAT UNDER THE LAWS OF THE STATE OF TEXAS MARIA GUERRERO MENDEZ WAS IN FACT THE DECEDENT'S LEGAL WIFE.