B-148676, OCTOBER 22, 1962, 42 COMP. GEN. 215

B-148676, OCTOBER 22, 1962, 42 COMP. GEN. 215

DECEDENTS' ESTATES - PAY, ETC., DUE MILITARY PERSONNEL - BENEFICIARY DESIGNATIONS - VALIDITY AFTER DISCHARGE. NATIONAL GUARD - DEATH OR INJURY - PAY AND ALLOWANCES DUE - VALIDITY OF BENEFICIARY DESIGNATION AFTER DISCHARGE. DECEDENTS' ESTATES - COMPENSATION - BENEFICIARY DESIGNATION - VALIDITY OF DESIGNATION AFTER SEPARATION THE DESIGNATIONS OF BENEFICIARIES PRIOR TO DISCHARGE BY ENLISTED MEN OF THE UNIFORMED SERVICES UNDER THE ACT OF JULY 12, 1955, 37 U.S.C. 361 365 (1952 ED; SUPP. III), RELATING TO THE FINAL SETTLEMENT OF THE ACCOUNTS OF DECEASED MEMBERS OF THE UNIFORMED SERVICES, CONTINUE TO BE VALID DESIGNATIONS SUBSEQUENT TO DISCHARGE FOR PURPOSES OF SETTLEMENT OF UNPAID PAY AND ALLOWANCES, THE INTERPRETATION OF THE DERIVATIVE ACT OF JUNE 30, 1906, THAT THE ACT IS SUFFICIENTLY BROAD IN SCOPE TO ENCOMPASS THE ACCOUNTS OF FORMER OFFICERS AND ENLISTED PERSONS BEING FOR APPLICATION TO THE ACT OF SEPTEMBER 2, 1958, WHICH REENACTED AND CODIFIED THE 1955 ACT WITHOUT SUBSTANTIVE CHANGE (10 U.S.C. 2771); THEREFORE, UPON THE DEATH OF A MEMBER, THE PAY AND ALLOWANCES DUE ON DATE OF DISCHARGE AND REMAINING UNPAID AT THE TIME OF THE MEMBER'S DEATH MAY BE ADMINISTRATIVELY SETTLED PURSUANT TO 10 U.S.C. 2771 AND PAYMENT MADE TO THE DESIGNATED BENEFICIARIES. THE BENEFICIARIES DESIGNATED UNDER THE ACT OF JULY 12, 1955, BY MEMBERS OF THE NATIONAL GUARD PRIOR TO DISCHARGE FOR PURPOSES OF SETTLEMENT OF UNPAID PAY AND ALLOWANCES REMAIN VALID DESIGNATIONS SUBSEQUENT TO DISCHARGE, THE PROVISIONS OF 32 U.S.C. 714, GOVERNING THE FINAL SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE NATIONAL GUARD, BEING SIMILAR TO 10 U.S.C. 2771, UNDER WHICH AUTHORITY SETTLEMENT OF PAY AND ALLOWANCES DUE MEMBERS OF THE UNIFORMED SERVICES ON DATE OF DISCHARGE AND REMAINING UNPAID AT THE TIME OF DEATH MAY BE MADE ADMINISTRATIVELY TO THE BENEFICIARIES DESIGNATED BY THE MEMBERS PRIOR TO DISCHARGE. THE COMPENSATION DUE IN THE SETTLEMENT OF THE ACCOUNTS OF DECEASED FORMER CIVILIAN EMPLOYEES OF THE GOVERNMENT WHO PRIOR TO SEPARATION FROM THE SERVICE DESIGNATED BENEFICIARIES UNDER THE ACT OF AUGUST 3, 1950, 5 U.S.C. 61F-K, TO RECEIVE COMPENSATION DUE AND REMAINING UNPAID AT THE TIME OF DEATH MAY BE PAID TO THE BENEFICIARIES DESIGNATED ON THE BASIS OF THE SIMILARITY OF THE 1950 ACT TO 10 U.S.C. 2771, RELATING TO THE SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE UNIFORMED SERVICES, WHICH HAS BEEN CONSTRUED TO AUTHORIZE ADMINISTRATIVE SETTLEMENT OF AMOUNTS DUE DECEDENTS TO BENEFICIARIES DESIGNATED BY THE MEMBERS PRIOR TO DISCHARGE FROM THE UNIFORMED SERVICES, AND THE DESIGNATION OF THE BENEFICIARY BY THE CIVILIAN EMPLOYEE ON STANDARD FORM 1152 SHOULD BE VIEWED AS EFFECTIVE EVEN THOUGH THE DEATH OF THE CIVILIAN EMPLOYEE MAY OCCUR SUBSEQUENT TO SEPARATION FROM THE SERVICE.

TO THE SECRETARY OF DEFENSE, OCTOBER 22, 1962:

THERE HAS BEEN BROUGHT TO OUR ATTENTION A QUESTION RAISED BY THE ARMY AND NAVY DISBURSING AUTHORITIES CONCERNING THE VALIDITY OF THE DESIGNATION OF BENEFICIARIES FOR THE PURPOSE OF PAYING UNPAID PAY AND COMPENSATION DUE IN THE SETTLEMENT OF THE ACCOUNTS OF DECEASED FORMER MEMBERS OF THE UNIFORMED SERVICES AND CIVILIAN EMPLOYEES OF THE GOVERNMENT WHO DIE SUBSEQUENT TO DISCHARGE OR SEPARATION FROM THE SERVICE.

BY LETTERS OF FEBRUARY 6 AND MARCH 14, 1962 (COPIES ENCLOSED), THE CHIEF, CLAIMS DIVISION, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS 49, INDIANA, IN RESPONSE TO INFORMATION REQUESTED BY OUR CLAIMS DIVISION IN PROCESSING TWO SEPARATE CLAIMS, EXPRESSED THE OPINION THAT A DESIGNATION OF BENEFICIARY CEASES TO BE OF VALUE UPON A MEMBER'S DISCHARGE FROM THE SERVICE. REQUESTED THAT HIS OFFICE BE ADVISED IF A DESIGNATION OF BENEFICIARY UNDER PUBLIC LAW 147, 84TH CONGRESS, 37 U.S.C. 361 (1952 ED.), MADE PRIOR TO DISCHARGE IS STILL VALID AND REQUIRED BY OUR OFFICE IN THE SETTLEMENT OF THESE CASES AND, IF SO, WHETHER IT WOULD BE PROPER FOR SETTLEMENT BY HIS OFFICE. ONE OF THE CLAIMS INVOLVED UNPAID BASIC ALLOWANCE FOR SUBSISTENCE FOR 11 DAYS' LEAVE IN THE AMOUNT OF $12.10 DUE THE ENLISTED MAN ON THE DATE OF HIS DISCHARGE, JANUARY 3, 1961. THE RECORD SHOWS THAT THE ENLISTED MAN DESIGNATED BENEFICIARIES (HIS FATHER AND MOTHER) PRIOR TO HIS DISCHARGE THAT HE DIED ON OCTOBER 6, 1961. THE OTHER CLAIM INVOLVED UNPAID SOLDIERS' DEPOSITS AND INTEREST IN THE AMOUNT OF $10.96 DUE THE ENLISTED MAN ON DATE OF HIS DISCHARGE, MARCH 17, 1961. THE RECORD SHOWS THAT THE ENLISTED MAN DESIGNATED BENEFICIARIES (HIS FATHER AND MOTHER) PRIOR TO HIS DISCHARGE AND THAT HE DIED ON JULY 2, 1961. THE CLAIMANT IN EACH OF THESE CASES IS ONE OF THE DESIGNATED BENEFICIARIES.

BY LETTER OF FEBRUARY 1, 1962 (COPY ENCLOSED), FROM THE U.S. NAVY REGIONAL ACCOUNTS OFFICE, WASHINGTON 25, D.C., QUESTION IS RAISED AS TO THE VALIDITY OF THE DESIGNATION OF A BENEFICIARY BY A DECEASED FORMER CIVILIAN EMPLOYEE. IN THIS CASE THERE IS DUE THE DECEDENT UNPAID COMPENSATION IN THE AMOUNT OF $371.62 AS A TEMPORARY CIVILIAN EMPLOYEE OF THE NAVY. HE WAS SEPARATED ON SEPTEMBER 2, 1961, AND DIED ON SEPTEMBER 7, 1961. THE EMPLOYEE DESIGNATED A BENEFICIARY ON JUNE 9, 1961, PRIOR TO HIS SEPARATION FROM THE NAVY. THE CLAIMANT IN THIS CASE IS THE DESIGNATED BENEFICIARY.

PRIOR TO JANUARY 1, 1956, THE EFFECTIVE DATE OF THE ACT OF JULY 12, 1955, 69 STAT. 295, 37 U.S.C. 361-365 (1952 ED., SUPP. III), WHICH SUPERSEDED AND REPLACED ALL PRIOR PROVISIONS OF LAW RELATING TO THE FINAL SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE UNIFORMED SERVICES, THERE WAS IN EFFECT THE ACT OF JUNE 30, 1906, AS AMENDED, 10 U.S.C. 868 (1952 ED.). THAT ACT, AS AMENDED, PROVIDED, IN PERTINENT PART, AS FOLLOWS:

HEREAFTER IN THE SETTLEMENT OF THE ACCOUNTS OF DECEASED OFFICERS OF ENLISTED PERSONS OF THE ARMY, WHERE NO DEMAND IS PRESENTED BY A DULY APPOINTED REPRESENTATIVE OF THE ESTATE, THE ACCOUNTING OFFICERS MAY ALLOW THE AMOUNT FOUND DUE TO * * *.

IN THE APPLICATION OF THIS PROVISION OF LAW, THE ACCOUNTING OFFICERS UNIFORMLY HELD THAT IT WAS SUFFICIENTLY BROAD IN ITS SCOPE TO ENCOMPASS ACCOUNTS OF FORMER OFFICERS AND ENLISTED PERSONS OF THE ARMY. SEE 40 COMP. GEN. 632 AND THE AUTHORITIES THERE CITED. THE 1906 LAW, EXCEPT WITH RESPECT TO ITS APPLICATION IN CASES OF MEMBERS WHO DIED PRIOR TO JANUARY 1, 1956, WAS REPEALED BY THE 1955 LAW. SECTIONS 1 AND 2 OF THE 1955 LAW, 37 U.S.C. 361 AND 362, PROVIDED, IN MATERIAL PART, AS FOLLOWS:

THAT FOR THE PURPOSES OF THIS ACT * * * THE TERMS "UNIFORMED SERVICES," "MEMBER" AND SECRETARY" SHALL HAVE THE RESPECTIVE MEANINGS GIVEN THOSE TERMS IN SECTION 102 OF THE CAREER COMPENSATION ACT OF 1949 (63 STAT. 804), AS AMENDED, ON THE DATE OF ENACTMENT OF THIS ACT, * * *.

SEC. 2. IN THE SETTLEMENT OF THE ACCOUNTS OF ANY DECEASED MEMBER OF THE UNIFORMED SERVICES OR OF THE NATIONAL GUARD OR THE AIR NATIONAL GUARD, * *

SECTION 102 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, 37, U.S.C. 231, PROVIDES, AS FOLLOWS:

(B) THE TERM "MEMBER," UNLESS OTHERWISE QUALIFIED, MEANS A COMMISSIONED OFFICER, A WARRANT OFFICER, FLIGHT OFFICER, AND ENLISTED PERSON, INCLUDING A RETIRED PERSON, OF THE UNIFORMED SERVICES.

THE 1955 LAW WAS REPEALED BY THE ACT OF SEPTEMBER 2, 1958, 72 STAT. 1569. SUBSECTION 1 (56) OF THAT ACT, 72 STAT. 1461, REVISED 10 U.S.C. 2771 TO READ, IN MATERIAL PART, AS FOLLOWS:

(A) IN THE SETTLEMENT OF THE ACCOUNTS OF A DECEASED MEMBER OF THE ARMED FORCES WHO DIES AFTER DECEMBER 31, 1955, AN AMOUNT DUE FROM THE ARMED FORCE OF WHICH HE WAS A MEMBER SHALL BE PAID TO THE PERSON HIGHEST ON THE FOLLOWING LIST LIVING ON THE DATE OF DEATH: * * *.

THE 1958 LAW IS A REENACTMENT OF THE 1955 LAW WITHOUT SUBSTANTIVE CHANGE, FOR THE PURPOSES OF CODIFICATION. SEE SECTION 34 (A), 72 STAT. 1568. SECTION 2771 OF TITLE 10 WAS FURTHER AMENDED BY THE ACT OF JULY 12, 1960, 74 STAT. 473, TO AUTHORIZE CERTAIN PAYMENTS OF DECEASED MEMBERS' FINAL ACCOUNTS WITHOUT THE NECESSITY OF SETTLEMENT BY OUR OFFICE. THE ABOVE- CITED LAWS WERE CONSIDERED BY US IN 40 COMP. GEN. 632, SUPRA, WHEREIN WE CONCLUDED THAT, FOR THE REASONS THERE STATED, THE 1958 LAW, AS AMENDED, SHOULD BE APPLIED IN THE SAME MANNER IN THAT RESPECT AS THE 1906 LAW AND THAT PAYMENT OF ARREARS OF RETIRED PAY IN FAVOR OF A DESIGNATED BENEFICIARY WAS PROPER. PROVISIONS SIMILAR TO 10 U.S.C. 2771 ARE CONTAINED IN 32 U.S.C. 714 AND GOVERN THE SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE NATIONAL GUARD. ACCORDINGLY, IT IS OUR VIEW THAT THE DESIGNATION OF A BENEFICIARY BY A MEMBER FOR THE PURPOSES OF 10 U.S.C. 2771 AND 32 U.S.C. 714 CONTINUES TO BE A VALID DESIGNATION FOR PURPOSES OF SETTLEMENT OF UNPAID PAY AND ALLOWANCES SUBSEQUENT TO DISCHARGE IF OTHERWISE PROPER.

IN THIS CONNECTION, THE GENERAL ACCOUNTING OFFICE POLICY AND PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES AT 4 GAO 3010.10, RELATING TO THE SETTLEMENT OF THE ACCOUNTS OF DECEASED MEMBERS OF THE ARMED FORCES PURSUANT TO 10 U.S.C. 2771 AND 32 U.S.C. 714, AS AMENDED, DEFINES THE TERM ,DECEASED MEMBERS" AS USED IN THAT CHAPTER TO INCLUDE FORMER MEMBERS WHO DIED SUBSEQUENT TO DISCHARGE OR SEPARATION FROM THE SERVICE. IN ORDER, HOWEVER, TO CLARIFY THIS MATTER, A PROVISION WILL BE ADDED TO CHAPTER 3000 OF THE MANUAL TO THE EFFECT THAT A DESIGNATION OF BENEFICIARY MADE BY A MEMBER OF THE ARMED FORCES UNDER 10 U.S.C. 2771 OR 32 U.S.C. 714, REMAINS EFFECTIVE AFTER SEPARATION OF THE SERVICEMAN FROM ACTIVE DUTY UNLESS EXPRESSLY CHANGED OR REVOKED, OR UNTIL THE INDIVIDUAL RETURNS TO SERVICE EITHER IN THE SAME OR A DIFFERENT BRANCH.

BECAUSE OF THE SIMILARITY OF THE ACT OF AUGUST 3, 1950, PUBLIC LAW 636, 64 STAT. 395, AS AMENDED, 5 U.S.C. 61F-61K, TO THE MILITARY STATUTE CODIFIED AS 10 U.S.C. 2771, WE BELIEVE THE CIVILIAN STATUTE AUTHORIZING CIVILIAN EMPLOYEES OF THE GOVERNMENT TO DESIGNATE BENEFICIARIES SHOULD BE CONSTRUED AND APPLIED IN THE SAME MANNER AS THE ABOVE-MENTIONED MILITARY STATUTE, INSOFAR AS RECOGNIZING THE VALIDITY OF THE BENEFICIARY DESIGNATION SUBSEQUENT TO SEPARATION FROM THE SERVICE IS CONCERNED. SEE 4 GAO 2510.10 WHEREIN THE TERM "DECEASED EMPLOYEES" IS DEFINED AS INCLUDING "FORMER CIVILIAN OFFICERS AND EMPLOYEES.' CONSISTENT WITH THAT DEFINITION, WE BELIEVE THE DESIGNATION OF BENEFICIARY BY A CIVILIAN OFFICER OR EMPLOYEE ON SF 1152 SHOULD BE VIEWED AS EFFECTIVE EVEN THOUGH DEATH MAY OCCUR SUBSEQUENT TO HIS SEPARATION FROM THE SERVICE. THEREFORE, PAYMENT MAY BE MADE TO THE DESIGNATED BENEFICIARY IN SUCH CASES. OUR OFFICE WILL MAKE APPROPRIATE REVISIONS TO 4 GAO 2540.40.

THE REVISED PROVISIONS OF THE GAO MANUAL WILL PROVIDE INSTRUCTIONS TO THE EFFECT THAT SETTLEMENT MAY BE MADE IN THESE DESIGNATION-OF- BENEFICIARY CASES BY THE FINANCE OFFICERS INVOLVED. IN THE EVENT OF DOUBT IN ANY PARTICULAR CASE, HOWEVER, THE CLAIM SHOULD BE FORWARDED TO OUR CLAIMS DIVISION FOR DIRECT SETTLEMENT.