B-146435, AUG. 25, 1961

B-146435, AUG. 25, 1961

TO MRS. BETTY ALICE FARIES:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 30, 1961, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM AS GUARDIAN OF THE MINOR CHILDREN OF HERMAN J. MAY, WHO DIED SEPTEMBER 11, 1958, FOR AMOUNTS DUE THE DECEDENT INCIDENT TO HIS SERVICE IN THE UNITED STATES ARMY, AT THE TIME OF HIS DISCHARGE ON JANUARY 27, 1945.

IT APPEARS THAT AT THE TIME OF HIS DEATH THE DECEDENT WAS MARRIED TO TO DOROTHY MAY WALSH, ALTHOUGH THEY WERE LIVING APART. IT ALSO APPEARS THAT YOU AND THE DECEDENT HAD BEEN MARRIED, AND THE PRESENT CLAIM IS MADE IN BEHALF OF THE TWO MINOR CHILDREN OF THAT UNION.

IN LETTER DATED JUNE 27, 1961, OUR CLAIMS DIVISION INFORMED YOU THAT UNDER THE LAW RELATING TO THE DISPOSITION OF AMOUNTS DUE DECEASED PERSONS INCIDENT TO THEIR SERVICE IN THE UNITED STATES ARMY, A NAMED BENEFICIARY TAKES PRECEDENCE OVER ALL OTHER CLAIMANTS, AND IN THE ABSENCE OF A NAMED BENEFICIARY, THE SURVIVING SPOUSE HAS PRIORITY. THE DECEDENT IN THE PRESENT CASE DID NOT NAME A BENEFICIARY, AND HE WAS SURVIVED BY A WIFE.

IN YOUR LETTER YOU STATE THAT IT IS UNFAIR TO THE DECEDENT'S CHILDREN TO RELEGATE THEM TO A POSITION AFTER THE SURVIVING SPOUSE, PARTICULARLY SINCE SHE LIVED WITH THE DECEDENT FOR ONLY 15 DAYS, AND SINCE HIS DEATH HAS REMARRIED. YOU ALSO STATE THAT THE VETERANS ADMINISTRATION HAS INFORMED YOU THAT THE SURVIVING SPOUSE MUST HAVE LIVED WITH THE DECEDENT FOR ONE YEAR IN ORDER TO QUALIFY FOR ANY BENEFITS.

AS WAS STATED IN THE CLAIMS DIVISION LETTER OF JUNE 27, 1961, THE SETTLEMENT OF THE ACCOUNT OF THE LATE HERMAN J. MAY IS GOVERNED BY THE PROVISIONS OF SECTION 2771, TITLE 10, UNITED STATES CODE. UNDER THAT ACT, AN AMOUNT DUE FROM THE UNIFORMED SERVICE OF WHICH THE DECEDENT WAS A MEMBER IS PAYABLE TO THE PERSON OR PERSONS SURVIVING AT THE DATE OF DEATH IN THE ORDER OF PRECEDENCE THERE SET FORTH. THE STATUTE ADMITS OF NO EXCEPTIONS AND NO REQUIREMENT IS MADE THAT THE SURVIVING SPOUSE SHALL HAVE RESIDED WITH THE DECEDENT FOR A MINIMUM OF TIME. HENCE, THERE IS NO LEGAL BASIS FOR PAYMENT OF THE AMOUNT DUE TO YOU IN BEHALF OF THE DECEDENT'S MINOR CHILDREN.

THE FACT THAT THE VETERANS ADMINISTRATION MAY HAVE DETERMINED THAT THE CHILDREN ARE ENTITLED TO RECEIVE DEATH BENEFITS PAYABLE BY REASON OF THE DEATH OF THE FORMER SERVICE MAN, AND THAT HIS SURVIVING WIDOW HAS NOT MET CERTAIN MINIMUM REQUIREMENTS, AFFORD NO PROPER BASIS FOR THE ALLOWANCE TO YOU OF THE AMOUNT DUE HIS ESTATE SINCE MATTERS BEFORE THE VETERANS ADMINISTRATION ARE ADMINISTERED UNDER LAWS SEPARATE AND DISTINCT FROM THE STATUTORY PROVISIONS GOVERNING THE SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE ARMED SERVICES.

ACCORDINGLY, THE CLAIMS DIVISION'S ACTION OF JUNE 27, 1961, IN DENYING YOUR CLAIM, WAS CORRECT, AND UPON REVIEW, IS SUSTAINED.