B-128823, SEP. 19, 1956

B-128823, SEP. 19, 1956

TO MR. ERNEST A. BLANK:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 25, 1956, CONCERNING YOUR CLAIM AS DESIGNATED BENEFICIARY FOR THE ARREARS OF PAY AND ALLOWANCES DUE IN THE CASE OF YOUR LATE GRANDSON, FRANKLIN D. BLANK, WHO DIED JANUARY 3, 1956, WHILE SERVING AS AIRMAN THIRD CLASS, UNITED STATES AIR FORCE, WHICH CLAIM WAS DENIED BY LETTER DATED JUNE 22, 1956, OF OUR CLAIMS DIVISION.

YOU URGE THAT YOUR CLAIM SHOULD BE ALLOWED ON THE BASIS THAT YOU WERE DESIGNATED BENEFICIARY BY THE DECEDENT AND, AS SUCH, WERE ENTITLED TO THE ARREARS OF PAY AND ALLOWANCES UNDER THE PROVISIONS OF THE ACT OF JULY 12, 1955, PUBLIC LAW 147, 84TH CONGRESS, 69 STAT. 295.

THE ACT OF JULY 12, 1955, PROVIDES THAT IN THE SETTLEMENT OF THE ACCOUNT OF ANY DECEASED MEMBER OF THE UNIFORMED SERVICES, THE AMOUNT FOUND DUE SHALL BE PAID, FIRST, TO THE BENEFICIARY OR BENEFICIARIES NAMED IN A WRITTEN DESIGNATION EXECUTED BY THE MEMBER PRIOR TO HIS DEATH, AND SECOND, IF THERE BE NO SUCH BENEFICIARY, TO THE WIDOW OR WIDOWER OF SUCH MEMBER. THE ACT FURTHER PROVIDES THAT DESIGNATIONS OF BENEFICIARY UNDER THE ACT SHALL BE MADE UNDER REGULATIONS PROMULGATED BY THE SECRETARIES OF THE DEPARTMENTS CONCERNED, AND THAT IN THE ABSENCE OF SUCH A DESIGNATION UNDER THE ACT SHALL BE MADE UNDER REGULATIONS PROMULGATED BY THE SECRETARIES OF THE DEPARTMENTS CONCERNED, AND THAT IN THE ABSENCE OF SUCH A DESIGNATION UNDER THE ACT ANY DESIGNATION OF BENEFICIARY MADE FOR THE PURPOSES OF ANY SIX MONTHS' DEATH GRATUITY AND RECEIVED IN THE DEPARTMENT CONCERNED BEFORE JANUARY 1, 1956, SHALL BE CONSIDERED AS A DESIGNATION BENEFICIARY FOR THE PURPOSES OF THE ACT.

THE PAYMENT OF A SIX MONTHS' DEATH GRATUITY IN THE CASE OF DECEASED MEMBERS OF THE AIR FORCE IS GOVERNED BY THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C. 903, AND PROVIDES THAT AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY A DECEASED MEMBER AT THE TIME OF HIS DEATH SHALL BE PAID TO THE WIDOW, AND IF THERE BE NO WIDOW, TO THE CHILD OR CHILDREN OF SUCH DECEASED MEMBER. IF THERE BE NO SUCH WIDOW OR CHILD, PAYMENT IS AUTHORIZED IN FAVOR OF ANY OTHER DEPENDENT RELATIVE PREVIOUSLY DESIGNATED BY SUCH MEMBER.

UNDER THE ACT OF DECEMBER 17, 1919, MENTIONED ABOVE, THE DESIGNATION OF SOMEONE OTHER THAN THE WIDOW OR CHILD CANNOT DEFEAT THE RIGHT OF THE WIDOW OR CHILD TO THE GRATUITY. THUS, ANY DESIGNATION OF "ANY OTHER DEPENDENT RELATIVE" IS CONDITIONAL IN THAT A RIGHT TO RECEIVE THE GRATUITY DOES NOT ATTACH UNLESS THE DECEDENT IS NOT SURVIVIED BY A WIDOW OR CHILD. IT IS OUR VIEW THAT THE REFERENCE IN SECTION 4 OF THE ACT OF JULY 12, 1955, TO ANY DESIGNATION OF BENEFICIARY ,MADE FOR THE PURPOSES OF ANY SIX MONTHS' DEATH GRATUITY" REFERS TO A BENEFICIARY ENTITLED TO RECEIVE THE GRATUITY AS DISTINGUISHED FROM A PERSON NAMED CONDITIONALLY AND WHO HAS NO RIGHT AS A BENEFICIARY WHERE A WIDOW OR CHILD SURVIVE.

WHILE, AS YOU WERE ADVISED IN THE SETTLEMENT OF JUNE 22, 1956, THE RECORD SHOWS THAT THE DECEDENT DESIGNATED YOU TO RECEIVE THE SIX MONTHS' DEATH GRATUITY, SUCH DESIGNATION WAS CONTINGENT UPON HIS NOT BEING SURVIVED BY A WIDOW OR ELIGIBLE CHILD. SINCE THE DECEDENT WAS SURVIVED BY A WIDOW, HIS DESIGNATION OF YOU AS HIS BENEFICIARY WAS NOT EFFECTIVE FOR THE PURPOSES OF PAYMENT OF THE SIX MONTHS' DEATH GRATUITY AT THE TIME OF HIS DEATH, AND IT FOLLOWS THAT SUCH DESIGNATION OF BENEFICIARY WAS WITHOUT EFFECT FOR THE PURPOSES OF THE ACT OF JULY 12, 1955. ACCORDINGLY, THE CLAIMS DIVISION ACTION OF JUNE 22, 1956, DENYING YOUR CLAIM AND ALLOWING THE ARREARS OF PAY AND ALLOWANCES TO THE WIDOW OF THE DECEDENT WAS CORRECT AND IS SUSTAINED.