B-126185, JAN. 17, 1956

B-126185: Jan 17, 1956

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ATTORNEY AT LAW: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 10. WAS DISALLOWED FOR THE REASON THAT THE FORMER EMPLOYEE FAILED TO DESIGNATE AND FILE WITH THE EMPLOYING AGENCY THE NAME OF A BENEFICIARY TO WHOM PAYMENT WAS TO BE MADE OF HIS UNPAID COMPENSATION. 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. IT WILL BE OBSERVED THAT ALL UNPAID COMPENSATION IS REQUIRED TO BE DISTRIBUTED IN ACCORDANCE WITH THE PROVISIONS OF THE CITED STATUTE IN THE ABSENCE OF A DESIGNATED BENEFICIARY. ASIDE FROM THE FACT THAT NO BENEFICIARY IS SHOWN TO HAVE BEEN DESIGNATED TO RECEIVE UNPAID COMPENSATION.

B-126185, JAN. 17, 1956

TO MR. ALBERT R. FINGERMAN, ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 10, 1955, WITH ENCLOSURES,REQUESTING A REVIEW OF OUR SETTLEMENT DATED NOVEMBER 3, 1955, WHICH DISALLOWED THE CLAIM OF MRS. WILLENA BONNER, 331 GEORGE STREET, CINCINNATI 2, OHIO, FOR UNPAID COMPENSATION DUE JULIUS BONNER, AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, SIERRA ORDNANCE DEPOT, HERLONG, CALIFORNIA, AT THE TIME OF HIS DEATH.

PAYMENT OF THE SUM CLAIMED BY MRS. WILLENA BONNER, AS COMMON-LAW WIFE OF JULIUS BONNER, DECEASED, WAS DISALLOWED FOR THE REASON THAT THE FORMER EMPLOYEE FAILED TO DESIGNATE AND FILE WITH THE EMPLOYING AGENCY THE NAME OF A BENEFICIARY TO WHOM PAYMENT WAS TO BE MADE OF HIS UNPAID COMPENSATION.

THE ACT OF AUGUST 3, 1950, 64 STAT. 395, PROVIDES IN PERTINENT PART AS FOLLOWS:

"THAT IN ORDER TO FACILITATE THE SETTLEMENT OF THE ACCOUNTS OF DECEASED CIVILIAN OFFICERS AND EMPLOYEES OF THE FEDERAL GOVERNMENT * * * ALL UNPAID COMPENSATION DUE SUCH AN OFFICER OR EMPLOYEE AT THE TIME OF HIS DEATH SHALL BE PAID TO THE PERSON OR PERSONS SURVIVING AT THE DATE OF DEATH, IN THE FOLLOWING ORDER OF PRECEDENCE, AND SUCH PAYMENT SHALL BE A BAR TO RECOVERY BY ANY OTHER PERSON OF AMOUNTS SO PAID:

"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, AND RECEIVED BY SUCH AGENCY PRIOR TO THE OFFICER'S OR EMPLOYEE'S DEATH;

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

THUS, IT WILL BE OBSERVED THAT ALL UNPAID COMPENSATION IS REQUIRED TO BE DISTRIBUTED IN ACCORDANCE WITH THE PROVISIONS OF THE CITED STATUTE IN THE ABSENCE OF A DESIGNATED BENEFICIARY. ASIDE FROM THE FACT THAT NO BENEFICIARY IS SHOWN TO HAVE BEEN DESIGNATED TO RECEIVE UNPAID COMPENSATION, THE ADMINISTRATIVE OFFICE REPORTS THAT THE FORMER EMPLOYEE SUPPLIED THE NAME OF ,HELEN WHITLEY BONNER," 525 SMITH STREET, CINCINNATI, OHIO, AS THAT OF HIS WIFE AS LATE AS 1947. HELEN WHITLEY BONNER NOW IS REPORTED TO BE A RESIDENT OF SACRAMENTO, CALIFORNIA, AND NO EVIDENCE HAS BEEN FURNISHED OUR OFFICE TO SHOW THAT THE MARRIAGE WAS NOT VALID OR THAT IT WAS LEGALLY DISSOLVED PRIOR TO AUGUST 29, 1954, THE DATE OF THE DECEDENT'S DEATH. MOREOVER, THE AIMANT,"MRS. WILLENA BONNER," STATES THAT PRIOR TO APRIL 1947 SHE WAS MARRIED TO ONE "HOLLIS APPETON" (APPLETON), FROM WHOM SHE HAS NEVER OBTAINED A DIVORCE.

WITH YOUR LETTER OF NOVEMBER 10, 1955, YOU ENCLOSE A PHOTOSTATIC COPY OF FORM 2806-1, WHICH APPEARS TO HAVE BEEN EXECUTED BY JULIUS BONNER ON NOVEMBER 16, 1949, AND FILED WITH THE UNITED STATES CIVIL SERVICE COMMISSION, WASHINGTON, D.C., ON NOVEMBER 21, 1949, DESIGNATING MRS. WILLENA APPLETON (331 GEORGE STREET, CINCINNATI, OHIO), AS BENEFICIARY TO RECEIVE ANY MONEY TO HIS CREDIT IN THE RETIREMENT AND DISABILITY FUND. HOWEVER, THE EXECUTED FORM APPLIED ONLY TO THE PAYMENT OF FUNDS TO THE CREDIT OF THE FORMER EMPLOYEE IN HIS RETIREMENT ACCOUNT. SEE THE ACT OF JUNE 14, 1950, 64 STAT. 214, EFFECTIVE OCTOBER 1, 1950. CONSEQUENTLY SUCH A DESIGNATION--- EVEN IF VALID AT THIS TIME--- WOULD NOT GOVERN THE DISTRIBUTION OF UNPAID COMPENSATION WHICH IS SUBJECT TO THE ACT OF AUGUST 3, 1950, REFERRED TO ABOVE. FURTHER, WITH REGARD TO THE COPY OF DESIGNATION OF BENEFICIARY SUBMITTED BY YOU, YOUR ATTENTION IS INVITED TO SECTION 3 OF THE ACT OF JUNE 14, 1950, SUPRA, WHICH READS, AS FOLLOWS:

"SECTION 12 (K) OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED, IS HEREBY AMENDED TO READ AS FOLLOWS:

"/K) EACH EMPLOYEE OR FORMER EMPLOYEE TO WHOM THIS ACT APPLIES MAY, UNDER REGULATIONS PRESCRIBED BY THE CIVIL SERVICE COMMISSION, DESIGNATE A BENEFICIARY OR BENEFICIARIES FOR THE PURPOSES OF THIS ACT. EXCEPT WHERE AN APPLICATION FOR BENEFITS BASED ON THE DEATH OF THE DESIGNATOR HAS BEEN RECEIVED IN THE CIVIL SERVICE COMMISSION NOT LATER THAN THREE MONTHS FOLLOWING THE EFFECTIVE DATE OF THIS AMENDMENT, ALL DESIGNATIONS OF BENEFICIARY RECEIVED IN THE CIVIL SERVICE COMMISSION MORE THAN ONE MONTH BEFORE SUCH EFFECTIVE DATE SHALL BE NULL AND VOID.'

WHILE THE UNITED STATES CIVIL SERVICE COMMISSION HAS SOLE JURISDICTION OVER ALL MONEYS IN THE FORMER EMPLOYEE'S RETIREMENT ACCOUNT, IT SEEMS EVIDENT THAT THE FORM DESIGNATING A BENEFICIARY AND EXECUTED IN 1949, NOW IS NULL AND VOID. IT IS UNDERSTOOD THAT AS OF JANUARY 1951, THE CIVIL SERVICE COMMISSION DESTROYED SOME 5,000,000 SIMILAR FORMS PURSUANT TO THE STATUTE LAST CITED.

HOWEVER, MRS. WILLENA BONNER'S CLAIM FOR RETIREMENT BENEFITS HAS BEEN REFERRED TO THE UNITED STATES CIVIL SERVICE COMMISSION FOR APPROPRIATE ACTION.

IN VIEW OF THE MANDATORY PROVISIONS OF THE STATUTE RELATING TO UNPAID COMPENSATION DUE DECEASED CIVILIAN OFFICERS AND EMPLOYEES AT TIME OF DEATH, IT MUST BE CONCLUDED THAT THE SETTLEMENT OF ..END :