B-135424, JUNE 17, 1958, 37 COMP. GEN. 832

B-135424: Jun 17, 1958

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MILITARY PERSONNEL - SAVINGS DEPOSITS - DECEDENTS' ESTATES - DESIGNATED BENEFICIARY SAVINGS DEPOSITS WITH INTEREST THEREON DUE A DECEASED MEMBER OF THE UNIFORMED SERVICES ARE CONSIDERED AS PART OF "THE AMOUNT FOUND DUE" IN THE SETTLEMENT OF A DECEASED MEMBER'S ACCOUNT WITHIN THE MEANING OF THE ACT OF JULY 12. THEREFORE PAYMENT TO THE MEMBER'S DESIGNATED BENEFICIARY AS PROVIDED IN THE ACT IS PROPER. NOTWITHSTANDING THAT THE MEMBER HAD EXECUTED A WILL BEQUEATHING THE DEPOSITS TO A RELATIVE . IT IS STATED THAT MR. THE LATE SERGEANT EXECUTED AN INSTRUMENT WHICH HAS BEEN PROBATED AS HIS LAST WILL AND TESTAMENT IN KNOTT COUNTY. THE ISSUE PRESENTED IN YOUR LETTER IS WHETHER THE DECEASED AIRMAN'S SAVINGS DEPOSITS AND INTEREST THEREON ARE TO BE CONSIDERED AS A PART OF "THE AMOUNT FOUND DUE" IN THE "SETTLEMENT OF * * * (HIS) ACCOUNT" WITHIN THE MEANING OF THE ACT OF JULY 12.

B-135424, JUNE 17, 1958, 37 COMP. GEN. 832

MILITARY PERSONNEL - SAVINGS DEPOSITS - DECEDENTS' ESTATES - DESIGNATED BENEFICIARY SAVINGS DEPOSITS WITH INTEREST THEREON DUE A DECEASED MEMBER OF THE UNIFORMED SERVICES ARE CONSIDERED AS PART OF "THE AMOUNT FOUND DUE" IN THE SETTLEMENT OF A DECEASED MEMBER'S ACCOUNT WITHIN THE MEANING OF THE ACT OF JULY 12, 1955, 37 U.S.C. 361, AND THEREFORE PAYMENT TO THE MEMBER'S DESIGNATED BENEFICIARY AS PROVIDED IN THE ACT IS PROPER, NOTWITHSTANDING THAT THE MEMBER HAD EXECUTED A WILL BEQUEATHING THE DEPOSITS TO A RELATIVE --- NOT THE DESIGNATED BENEFICIARY--- IN TRUST FOR HIS MINOR DAUGHTER.

TO LIEUTENANT COLONEL C. W. GRIFFIN, UNITED STATES AIR FORCE, JUNE 17, 1958:

IN YOUR LETTER OF FEBRUARY 11, 1958, RECEIVED WITH TRANSMITTAL LETTER DATED MARCH 4, 1958, FROM THE DEPUTY DIRECTOR, DIRECTORATE OF ACCOUNTING AND FINANCE, HEADQUARTERS, U.S. AIR FORCE (AND APPROVED FOR SUBMISSION BY MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS AIR FORCE REQUEST NO. 321), YOU ASK FOR A DECISION CONCERNING THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER STATED IN FAVOR OF MR. WATSON C. BACK, AS BROTHER AND DESIGNATED BENEFICIARY OF MASTER SERGEANT BURL BACK, AF 7041873, DECEASED, FOR THE BALANCE REMAINING DUE THE DECEDENT FROM THE U.S. AIR FORCE, CONSISTING ENTIRELY OF DEPOSITS, $11,500, AND INTEREST THEREIN, $986.12, A TOTAL OF $12,486.12. IT IS STATED THAT MR. WATSON C. BACK, THE DECEDENT'S BROTHER, HAS BEEN PAID, IN HIS CAPACITY AS THE SOLE DESIGNATED BENEFICIARY, THE AMOUNT FOUND DUE ON DECEDENT'S FINAL MILITARY PAY RECORD, $158.11.

THE BASIC FACTS APPEAR TO BE AS FOLLOWS:

(A) THE DECEDENT, MASTER SERGEANT BURL BACK, DIED NOVEMBER 12, 1957, WHILE SERVING ON ACTIVE DUTY AT SCOTT AIR FORCE BASE, ILLINOIS;

(B) ON AUGUST 21, 1957, THE LATE SERGEANT EXECUTED DD FORM 93," RECORD OF EMERGENCY DATA" DESIGNATING HIS BROTHER, MR. WATSON C. BACK, AS THE BENEFICIARY (100 PERCENT) TO RECEIVE THE AMOUNT FOUND DUE FROM THE U.S. AIR FORCE IN THE SETTLEMENT OF HIS (THE DECEDENT-S) FINAL MILITARY PAY AND ALLOWANCE ACCOUNT; AND

(C) ON OCTOBER 21, 1957, THE LATE SERGEANT EXECUTED AN INSTRUMENT WHICH HAS BEEN PROBATED AS HIS LAST WILL AND TESTAMENT IN KNOTT COUNTY, KENTUCKY, DEVISING AND BEQUEATHING TO HIS SISTER, MRS. CURRIE NAPIER, IN TRUST FOR HIS MINOR DAUGHTER, MARJORIE GWEN BACK,"ALL FUNDS HELD IN SOLDIERS' DEPOSITS, ALL BANK DEPOSITS, NEGOTIABLE PAPERS, AND CASH OF WHICH I AM POSSESSED.'

THE ISSUE PRESENTED IN YOUR LETTER IS WHETHER THE DECEASED AIRMAN'S SAVINGS DEPOSITS AND INTEREST THEREON ARE TO BE CONSIDERED AS A PART OF "THE AMOUNT FOUND DUE" IN THE "SETTLEMENT OF * * * (HIS) ACCOUNT" WITHIN THE MEANING OF THE ACT OF JULY 12, 1955 ( PUBLIC LAW 147, 84TH CONGRESS), 69 STAT. 295, 296, 37 U.S.C. 361. IF SO, PAYMENT OF SUCH ITEMS PROPERLY MAY BE MADE TO HIS BROTHER AND DESIGNATED BENEFICIARY, MR. WATSON C. BACK. IN PERTINENT PART, THE ACT OF JULY 12, 1955, PROVIDES AS FOLLOWS:

SEC. 2. IN THE SETTLEMENT OF THE ACCOUNT OF ANY DECEASED MEMBER OF THE UNIFORMED SERVICES OR OF THE NATIONAL GUARD OR THE AIR NATIONAL GUARD, THE AMOUNT FOUND DUE THEREIN FROM THE UNIFORMED SERVICE OF WHICH THE DECEDENT WAS A MEMBER SHALL BE PAID TO THE PERSON OR PERSONS SURVIVING AT THE DATE OF DEATH IN THE FOLLOWING ORDER OF PRECEDENCE:

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 CONCERNED;

SECOND, IF THERE BE NO SUCH BENEFICIARY, TO THE WIDOW OR WIDOWER OF SUCH MEMBER;

THIRD, IF THERE BE NO BENEFICIARY OR SURVIVING SPOUSE, TO THE CHILD OR CHILDREN OF SUCH MEMBER, AND DESCENDANTS OF DECEASED CHILDREN, BY REPRESENTATION;

FOURTH, IF NONE OF THE ABOVE, TO THE PARENTS OF THE MEMBER, OR THE SURVIVOR OF THEM; AND

FIFTH, IF THERE BE NONE OF THE ABOVE, TO THE DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE OF THE DECEASED MEMBER, OR IF THERE BE NONE, TO THE PERSON OR PERSONS DETERMINED TO BE ENTITLED THERETO UNDER THE LAWS OF THE DOMICILE OF THE DECEASED MEMBER.

SEC. 5. THE PAYMENT PROVISIONS OF THIS ACT SHALL BE EFFECTIVE ONLY IN CASES WHEREIN THE MEMBER'S DEATH OCCURS ON OR AFTER THE FIRST DAY OF THE SIXTH MONTH FOLLOWING THE MONTH IN WHICH THIS ACT IS ENACTED. THE FOLLOWING STATUTORY PROVISIONS ARE REPEALED AS OF THE EFFECTIVE DATE OF THE PAYMENT PROVISIONS OF THIS ACT, EXCEPT WITH RESPECT TO THE DEATHS OF MEMBERS OCCURRING PRIOR TO SUCH EFFECTIVE DATE:

(1) THE PARAGRAPH OF THE ACT OF JUNE 30, 1906 (34 STAT. 750), WHICH RELATES TO THE SETTLEMENT OF ACCOUNTS OF DECEASED OFFICERS AND ENLISTED MEN OF THE ARMY, AS AMENDED BY THE ACT OF DECEMBER 7, 1944 (58 STAT. 795), AND SECTION 4 OF THE ACT OF FEBRUARY 25, 1946 (60 STAT. 30, 10 U.S.C. 868). * * *

IT IS EVIDENT FROM THE REFERENCE MADE IN YOUR LETTER TO THE DECISION OF SEPTEMBER 25, 1946, B-58926 (QUOTED BY YOU IN PERTINENT PART), THAT YOU ARE FULLY AWARE OF THE WELL-ESTABLISHED RULE THAT SAVINGS DEPOSITS AND INTEREST THEREON WERE CONSIDERED AS AN AMOUNT DUE A DECEASED MEMBER FOR SETTLEMENT UNDER THE PROVISIONS OF THE ACT OF JUNE 30, 1906, 10 U.S.C. (1946 USED.) 868, AS AMENDED. YOU EXPRESS DOUBT WHETHER THE SAME RULE IS APPLICABLE TO SETTLEMENTS UNDER THE 1955 ACT AND QUOTE A STATEMENT APPEARING ON PAGE 1 OF HOUSE REPORT NO. 833 ON THE BILL S. 933, 84TH CONGRESS (WHICH BECAME THE ACT OF JULY 12, 1955), THAT " THIS PAY REFERS TO THE AMOUNT OF MILITARY COMPENSATION DUE THE MEMBER FROM THE TIME HE WAS LAST PAID UNTIL THE DATE OF HIS DEATH.'

THE PROVISIONS OF THE ACT OF JUNE 30, 1906, AS AMENDED (10 U.S.C., 1946 USED., 868), RELATING TO "THE SETTLEMENT OF THE ACCOUNTS OF DECEASED OFFICERS OR ENLISTED PERSONS OF THE ARMY" WERE REPEALED BY CLAUSE (1), SECTION 5 OF THE 1955 LAW, 69 STAT. 296. ALSO, CLAUSES (2), (3), AND (4) OF SECTION 5 REPEALED THE CORRESPONDING PRIOR PROVISIONS OF LAW PERTAINING TO THE NAVY AND MARINE CORPS, THE COAST GUARD, AND THE PUBLIC HEALTH SERVICE, RESPECTIVELY. THE ACT OF JULY 12, 1955, THUS WAS INTENDED TO SUPERSEDE AND REPLACE ALL PRIOR PROVISIONS OF LAW PERTAINING TO THE FINAL SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE UNIFORMED SERVICES AND HENCE, THE SAME ITEMS FOR SETTLEMENT, INCLUDING SAVINGS DEPOSITS AND INTEREST THEREON, THAT WERE COVERED BY THE REPEALED STATUTORY PROVISIONS MUST BE VIEWED AS COMING WITHIN THE SCOPE OF THE 1955 LAW IN THE ABSENCE OF A CLEAR INDICATION OF A LEGISLATIVE INTENT TO CHANGE THE LAW IN THAT REGARD.

IT MUST BE PRESUMED THAT THE CONGRESS, IN ENACTING THE 1955 ACT, WAS FULLY COGNIZANT OF THE WELL-ESTABLISHED RULE ABOVE REFERRED TO, THAT IS, THAT UNDER THE LANGUAGE OF THE ACT OF JUNE 30, 1906, AS AMENDED, SAVINGS DEPOSITS WITH THE INTEREST DUE THEREON WERE CONSIDERED AND SETTLED AS A PART OF THE AMOUNT DUE THE ESTATE OF A DECEASED MEMBER OF THE UNIFORMED SERVICES. THE 1906 ACT, AS AMENDED, PROVIDED, IN PERTINENT PART, THAT " IN THE SETTLEMENT OF THE ACCOUNTS OF * * * ENLISTED PERSONS OF THE ARMY, WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE, THE ACCOUNTING OFFICERS MAY ALLOW THE AMOUNT FOUND DUE TO * * *.' IN THE ACT OF JULY 12, 1955, SIMILAR LANGUAGE APPEARS AS FOLLOWS: " IN THE SETTLEMENT OF THE ACCOUNT OF ANY DECEASED MEMBER OF THE UNIFORMED SERVICES * * * THE AMOUNT FOUND DUE THEREIN FROM THE UNIFORMED SERVICE OF WHICH THE DECEDENT WAS A MEMBER SHALL BE PAID TO * * *.' THUS, THE SIMILARITY OF THE LANGUAGE CONTAINED IN THE ACT OF JULY 12, 1955, TO THAT FOUND IN THE PROVISIONS OF THE ACT OF 1906, AS AMENDED, IS A STRONG INDICATION OF AN INTENTION THAT, INSOFAR AS THE ITEMS FOR SETTLEMENT ARE CONCERNED, THE 1955 ACT WAS TO BE CONSTRUED AND APPLIED IN EXACTLY THE SAME WAY AS THE EARLIER (SUPERSEDED) LAW HAD BEEN.

MOREOVER, THE HEARINGS AND OTHER MATERIAL CONTAINED IN THE LEGISLATIVE HISTORY OF THE ACT OF JULY 12, 1955, CLEARLY DISCLOSE THAT THE PRIMARY PURPOSE OF THE 1955 LAW WAS TO ELIMINATE THE PROBLEMS ARISING UNDER THE FORMER PROVISIONS OF LAW AND FACED BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT IN MAKING DETERMINATIONS CONCERNING THE VALIDITY OF MARRIAGES, DIVORCES, THE LEGITIMACY OF CHILDREN, ETC., WHEN SETTLING THE FINAL ACCOUNTS OF DECEASED SERVICE PERSONNEL. THIS PURPOSE WAS EFFECTIVELY ACCOMPLISHED IN THE 1955 LAW, TO THE EXTENT POSSIBLE, BY PERMITTING EACH MEMBER OF THE UNIFORMED SERVICES TO DESIGNATE A BENEFICIARY OR BENEFICIARIES OF HIS OR HER OWN CHOICE AND PROVIDING FOR PAYMENT OF THE AMOUNT FOUND DUE TO SUCH DESIGNATED BENEFICIARY OR BENEFICIARIES. SEE SECTION 2 OF THE ACT, 69 STAT. 295, 37 U.S.C. 362. ALSO, THE LAW WAS DESIGNED TO PERMIT THE DEPARTMENT CONCERNED, SUBJECT TO REGULATIONS PRESCRIBED BY THE COMPTROLLER GENERAL OF THE UNITED STATES, TO MAKE PAYMENT OF THE AMOUNT DUE A DECEDENT TO HIS DESIGNATED BENEFICIARY.

WHILE, AS YOU POINT OUT, HOUSE REPORT NO. 833 REGARDING THE 1955 ACT CONTAINS A STATEMENT TO THE EFFECT THAT THE AMOUNT FOR SETTLEMENT REFERS TO THE AMOUNT OF PAY DUE THE MEMBER FROM THE TIME HE WAS LAST PAID UNTIL HIS DEATH, THAT STATEMENT AND A SIMILAR STATEMENT IN SENATE REPORT NO. 221, WHEN CONSIDERED IN THE LIGHT OF THE LANGUAGE OF THE 1955 ACT AND THE ENTIRE HISTORY AND BACKGROUND OF THAT ACT, FALL FAR SHORT OF BEING CONVINCING EVIDENCE OF A LEGISLATIVE INTENTION TO MAKE ANY CHANGE IN THE LAW RESPECTING THE ITEMS FOR CONSIDERATION IN THE SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE UNIFORMED SERVICES. IN THAT CONNECTION, THE FOLLOWING COMMENT APPEARS AT PAGE 19, HEARING BEFORE THE COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, APRIL 21, 1955," THE DEPARTMENT OF DEFENSE IS OF THE OPINION THAT PROVISIONS SHOULD BE MADE TO GRANT THE UNIFORMED SERVICE CONCERNED THE AUTHORITY TO MAKE PAYMENT OF ANY PAY AND ALLOWANCES OR OTHER AMOUNTS DUE A SERVICE MEMBER AT DATE OF DEATH TO A DESIGNATED BENEFICIARY.' ( ITALICS SUPPLIED.)

ACCORDINGLY, IT IS OUR CONCLUSION THAT THE ACT OF JULY 12, 1955, DOES NOT RELATE TO ANY NARROWER FIELD OR MORE LIMITED AREA OF OPERATION, RESPECTING THE ITEMS FOR SETTLEMENT, THEN THAT THERETOFORE EXISTING UNDER THE PROVISIONS OF THE 1906 ACT, AS AMENDED, AND THAT SAVINGS DEPOSITS AND INTEREST THEREON, DUE FROM THE UNIFORMED SERVICE OF WHICH A DECEDENT WAS A MEMBER, CONSTITUTE A PART OF THE ,AMOUNT FOUND DUE" IN THE "ACCOUNT" OF THE MEMBER WITHIN THE PURVIEW OF THE 1955 ACT.

PAYMENT ON THE VOUCHER (RETURNED HEREWITH) STATED IN FAVOR OF DECEDENT'S DESIGNATED BENEFICIARY, MR. WATSON C. BACK, IS AUTHORIZED IF OTHERWISE CORRECT.