B-129380, NOV. 14, 1956

B-129380, NOV. 14, 1956

TO MRS. LUCILLE KAPCZYNSKI:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 17, 1956, CONCERNING YOUR CLAIM, AS SISTER AND EXECUTRIX, IN THE CASE OF YOUR LATE BROTHER, JOSEPH H. ELLIS, WHO DIED MARCH 21, 1956, FOR ARREARS OF RETIRED PAY BELIEVED TO BE DUE INCIDENT TO HIS SERVICE AS A RETIRED ENLISTED MAN, UNITED STATES AIR FORCE.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT OF AUGUST 29, 1956, OF OUR CLAIMS DIVISION, FOR THE REASON THAT UNDER THE PROVISIONS OF THE ACT OF JULY 12, 1955, 69 STAT. 295, WHICH GOVERNS THE SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE UNIFORMED SERVICES WHO DIE ON OR AFTER JANUARY 1, 1956, A SURVIVING WIDOW OR WIDOWER IS ENTITLED TO THE AMOUNT DUE WHERE SUCH MEMBER IS NOT SURVIVED BY A DESIGNATED BENEFICIARY. IN YOUR LETTER YOU CONTEND THAT YOUR DAUGHTER, MARIA, THE NIECE OF THE DECEASED AND THE BENEFICIARY NAMED IN HIS WILL, SHOULD BE RECOGNIZED AS DESIGNATED BENEFICIARY TO RECEIVE THE ARREARS OF RETIRED PAY DUE.

AS YOU WERE ADVISED IN THE SETTLEMENT OF AUGUST 29, 1956, THE ACT OF JULY 12, 1955, PROVIDES THAT THE AMOUNT FOUND DUE SHALL BE PAID "FIRST, TO THE BENEFICIARY OR BENEFICIARIES NAMED TO RECEIVE ANY SUCH AMOUNT IN A WRITTEN DESIGNATION EXECUTED BY THE MEMBER AND RECEIVED, PRIOR TO HIS DEATH, IN THE PLACE DESIGNATED FOR SUCH PURPOSE IN THE REGULATIONS OF THE DEPARTMENT ONCERNED; " AND "SECOND, IF THERE BE NO SUCH BENEFICIARY, TO THE WIDOW OR WIDOWER OF SUCH MEMBER.' THE ACT FURTHER PROVIDES THAT IF THERE BE NO DESIGNATED BENEFICIARY, SURVIVING SPOUSE, CHILDREN OR DESCENDANTS OF DECEASED CHILDREN, OR SURVIVING PARENT, PAYMENT MAY BE MADE TO THE DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, THAT IS, TO THE EXECUTOR OR ADMINISTRATOR, IF THERE BE ONE. THE ACT ALSO PROVIDES THAT DESIGNATIONS OF BENEFICIARY UNDER THE ACT AND CHANGES OF DESIGNATION SHALL BE MADE UNDER REGULATIONS PROMULGATED BY THE SECRETARIES OF THE DEPARTMENTS CONCERNED.

PARAGRAPH 61203, AIR FORCE MANUAL 173-20, CHANGE 1, DATED FEBRUARY 10, 1956, PROVIDES THAT IN SETTLING THE ACCOUNTS OF DECEASED MEMBERS OF THE AIR FORCE, PAYMENT OF ANY AMOUNT DUE FROM THE AIR FORCE WILL BE MADE TO SURVIVORS IN THE ORDER OF PRECEDENCE THERE SPECIFIED. PRECEDENCE IS GIVEN ,FIRST, TO THE BENEFICIARY OR BENEFICIARIES DESIGNATED BY THE MEMBER ON DD FORM 93, RECORD OF EMERGENCY DATA, TO RECEIVE ANY UNPAID PAY AND ALLOWANCES. * * *"

THE DECEDENT DID NOT DESIGNATE A BENEFICIARY ON DD FORM 93 PRIOR TO HIS DEATH AND THE NAMING BY HIM IN HIS WILL OF YOUR DAUGHTER AS BENEFICIARY UNDER HIS WILL DID NOT CONSTITUTE A COMPLIANCE WITH SUCH REGULATION. HENCE, THE AMOUNT FOUND DUE WAS PROPERLY PAID TO HIS WIDOW AND THERE IS NO AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM ON BEHALF OF YOUR DAUGHTER. ACCORDINGLY, THE SETTLEMENT OF AUGUST 29, 1956, WAS CORRECT AND IS SUSTAINED.