B-166605, APR. 25, 1969, 48 COMP. GEN. 706

B-166605: Apr 25, 1969

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RETIRED PAY THE RETIRED PAY CHECKS OF AN ARMY MASTER SERGEANT RETIRED UNDER 10 U.S.C. 3914 THAT DURING HIS EMPLOYMENT OUTSIDE THE CONTINENTAL UNITED STATES BY A PRIVATE FIRM ARE TO BE SENT TO A BANK IN THE UNITED STATES. THE RIGHT OF A RETIRED MEMBER OF THE UNIFORMED SERVICES TERMINATES UPON HIS DEATH AND A POWER OF ATTORNEY EXECUTED BY HIM IS AUTOMATICALLY REVOKED BY HIS DEATH. WHETHER OR NOT THE FACT OF DEATH IS KNOWN. BECAUSE THE PRESUMPTION OF DEATH AFTER A LAPSE OF 7 YEARS RULE IS NOT APPLICABLE. THE PAYMENT OF RETIRED PAY ON BEHALF OF THE MISSING SERGEANT MUST BE HELD IN ABEYANCE UNTIL IT IS ESTABLISHED THAT HE IS NOT DEAD. 1969: REFERENCE IS MADE TO YOUR LETTER OF MARCH 11. SERGEANT ERSKINE WAS PLACED ON THE RETIRED LIST UNDER THE PROVISIONS OF 10 U.S.C. 3914 ON MAY 1.

B-166605, APR. 25, 1969, 48 COMP. GEN. 706

PAY--MISSING, INTERNED, ETC; PERSONS--RETIRED PAY THE RETIRED PAY CHECKS OF AN ARMY MASTER SERGEANT RETIRED UNDER 10 U.S.C. 3914 THAT DURING HIS EMPLOYMENT OUTSIDE THE CONTINENTAL UNITED STATES BY A PRIVATE FIRM ARE TO BE SENT TO A BANK IN THE UNITED STATES, UPON HIS ALLEGED CAPTURE BY ENEMY FORCES MAY NOT BE ISSUED TO THE BANK OR ANY OTHER PERSON ON HIS BEHALF FOR THE SUPPORT OF HIS FAMILY. THE RIGHT OF A RETIRED MEMBER OF THE UNIFORMED SERVICES TERMINATES UPON HIS DEATH AND A POWER OF ATTORNEY EXECUTED BY HIM IS AUTOMATICALLY REVOKED BY HIS DEATH, WHETHER OR NOT THE FACT OF DEATH IS KNOWN, AND IN THE ABSENCE OF STATUTORY AUTHORITY PROVIDING OTHERWISE, AND BECAUSE THE PRESUMPTION OF DEATH AFTER A LAPSE OF 7 YEARS RULE IS NOT APPLICABLE, THE PAYMENT OF RETIRED PAY ON BEHALF OF THE MISSING SERGEANT MUST BE HELD IN ABEYANCE UNTIL IT IS ESTABLISHED THAT HE IS NOT DEAD.

TO LIEUTENANT COLONEL J. E. FARR, DEPARTMENT OF THE ARMY, APRIL 25, 1969:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 11, 1969, REQUESTING A DECISION CONCERNING THE CONTINUED PAYMENT OF RETIRED PAY IN THE CASE OF MASTER SERGEANT E-7 JACK D. ERSKINE, U.S. ARMY (RETIRED). YOUR REQUEST FOR DECISION HAS BEEN ASSIGNED D. O. NUMBER A-1032 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SERGEANT ERSKINE WAS PLACED ON THE RETIRED LIST UNDER THE PROVISIONS OF 10 U.S.C. 3914 ON MAY 1, 1966. HE HAS ACCEPTED EMPLOYMENT WITH THE GEOTRONICS COMPANY WORKING OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. AN OFFICIAL NOTICE ADDRESSED TO THE DEPARTMENT OF STATE FROM THE AMERICAN EMBASSY, SAIGON, STATES THAT HE WAS ALLEGEDLY CAPTURED ON NOVEMBER 13, 1968, AND WAS LAST SEEN ALIVE ON THAT DATE BEING LED AWAY BY HIS CAPTORS. YOU SAY THAT THERE HAS BEEN NO ACCURATE CONFIRMATION THAT HE IS ALIVE AND A PRISONER OF THE VIET CONG, ALTHOUGH CONTINUING EFFORTS ARE BEING MADE TO ESTABLISH SOME TYPE OF EXCHANGE FOR AMERICANS BEING HELD PRISONER OR CONFIRMATION OF IDENTITIES.

YOU ALSO SAY THAT, WHEN THE COPY OF THE OFFICIAL REPORT OF HIS CAPTURE WAS RECEIVED, ACTION WAS TAKEN TO WITHHOLD PAYMENT OF HIS RETIRED PAY BEGINNING JANUARY 1, 1969, EXCEPT FOR TWO ALLOTMENTS FOR LIFE INSURANCE; THAT HIS WIFE IS UNABLE TO PROVIDE PROPER SUPPORT FOR THEIR THREE DEPENDENT CHILDREN AND SHE IS IN NEED OF FUNDS; AND THAT HIS EMPLOYER HAS PUT ASIDE HIS WAGES IN A SPECIAL FUND AND EVENTUALLY A PORTION WILL BE RELEASED TO HIS WIFE.

YOU CALL ATTENTION TO THE CASE OF ACOSTA V. UNITED STATES, 162 CT. CL. 631 (1963), WHERE THE COURT OF CLAIMS HELD THAT THE DEATH OF A RETIRED MEMBER OF THE NAVY WAS PRESUMED TO HAVE OCCURRED AT THE EXPIRATION OF 7 YEARS AFTER HE DISAPPEARED, THERE BEING A PRESUMPTION THAT HE REMAINED ALIVE FOR 7 YEARS. YOU SAY THAT, IF THE PRESUMPTION THAT A MISSING PERSON REMAINS ALIVE FOR 7 YEARS IS EFFECTIVE, THERE IS NO LEGAL BASIS TO CUT OFF RETIRED PAY; THAT IF THE PRESUMPTION OF DEATH CANNOT BE EFFECTIVE SO AS TO ENABLE THE COURT TO RENDER A DECREE OF DEATH IMMEDIATELY UPON A PERSON'S DISAPPEARANCE, IT IS HARD TO JUSTIFY THE ADMINISTRATORS OF THE GOVERNMENT DOING SO, WHICH YOU SAY "WOULD BE THE CASE IF RETIRED PAY IS IMMEDIATELY CUT OFF."

PAYMENT OF RETIRED PAY TO OR FOR A RETIRED MEMBER OF THE ARMED SERVICES IS AUTHORIZED ONLY DURING THE LIFETIME OF THE RETIRED MEMBER. WHERE THE CONTINUED EXISTENCE OF A RETIRED MEMBER OF THE ARMED SERVICES IS IN QUESTION, IT HAS BEEN THE CONSISTENT PRACTICE OF THE GOVERNMENT NOT TO ISSUE RETIRED PAY CHECKS. IT HAS BEEN HELD THAT A GOVERNMENT CHECK DRAWN PAYABLE TO A PERSON WHO HAS DIED IS VOID. UNITED STATES V. FIRST NATIONAL BANK OF COFFEYVILLE, 82 F. 410 (1897).

WHERE THE UNITED STATES DISBURSES ITS FUNDS OR PAYS ITS DEBTS, IT IS EXERCISING A CONSTITUTIONAL FUNCTION OR POWER AND THE RIGHTS AND DUTIES OF THE UNITED STATES ON COMMERCIAL PAPER ARE GOVERNED BY FEDERAL RATHER THAN LOCAL LAW. CLEAR FIELD TRUST CO. V. UNITED STATES, 318 U.S. 363, 366 (1943). FEDERAL REGULATIONS PROVIDE THAT "POWERS OF ATTORNEY ARE REVOKED BY THE DEATH OF THE GRANTOR * * *." 31 CFR 360.12 (E).

SINCE THE RIGHT TO RETIRED PAY OF A MEMBER OF THE ARMED SERVICES TERMINATES UPON HIS DEATH AND A POWER OF ATTORNEY IS REVOKED BY DEATH WHETHER THE FACT OF DEATH IS KNOWN TO THE UNITED STATES OR NOT, THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT WOULD SEEM TO REQUIRE THAT, IN THE ABSENCE OF STATUTORY AUTHORIZATION PROVIDING OTHERWISE, PAYMENT OF RETIRED PAY TO A RETIRED MEMBER CAPTURED BY A HOSTILE FORCE BE HELD IN ABEYANCE UNTIL SUCH TIME AS IT IS ESTABLISHED THAT HE IS NOT DEAD.

THE PRESUMPTIONS CONCERNING DEATH AND TIME OF DEATH IN THE CASE OF PERSONS WHOSE CONTINUED EXISTENCE IS UNKNOWN TO INTERESTED PERSONS AND THE GOVERNMENT ARE APPLIED BY THE COURTS IN THE ABSENCE OF STATUTE ONLY WHEN, AFTER THE LAPSE OF 7 YEARS OR MORE, AN ACTION IS BROUGHT IN A COURT OF COMPETENT JURISDICTION WHICH CAN THEN DECIDE THE MATTER ON THE BASIS OF ALL THE CIRCUMSTANCES AND EVIDENCE. THE REASONING AND HOLDINGS OF THE COURTS IN SUCH CASES ARE NOT FOR APPLICATION AT THIS TIME IN CIRCUMSTANCES SUCH AS ARE PRESENT IN THIS CASE.

YOU SAY THAT AT THE TIME OF HIS DISAPPEARANCE SERGEANT ERSKINE HAD AUTHORIZED THE SENDING OF HIS RETIRED PAY CHECK TO HIM IN CARE OF THE UNITED STATES NATIONAL BANK OF PORTLAND, OREGON. YOU STATE FURTHER THAT THE COMPTROLLER GENERAL OF THE UNITED STATES IN DECISION A-3551, FEBRUARY 3, 1964, ABOLISHED IN CERTAIN CASES THE SUBMISSION OF REPORTS OF EXISTENCE REQUIRED FOR THE PROTECTION OF THE GOVERNMENT TO PREVENT THE ISSUANCE OF RETIRED PAY CHECKS AFTER THE DEATH OF THE RETIRED MEMBER; THAT HE APPROVED THE DELIVERY OF RETIRED PAY CHECKS DRAWN TO THE RETIRED MEMBER AND MAILED TO RESPONSIBLE BANKS UNDER A SPECIAL POWER OF ATTORNEY OF NOT MORE THAN 12 MONTHS' DURATION; AND THAT NO OBJECTION WAS MADE TO THE ISSUANCE OF CHECKS IN THE RETIRED MEMBER'S NAME WHERE THEY ARE NEGOTIATED UNDER A SPECIAL POWER OF ATTORNEY IN FACT, LIMITED TO A PERIOD NOT EXCEEDING 12 MONTHS AND RECITING THAT IT IS NOT GIVEN TO CARRY INTO EFFECT AN ASSIGNMENT OF THE RIGHT TO RECEIVE PAYMENT, EITHER TO THE ATTORNEY IN FACT OR TO ANY OTHER PERSON. IT SHOULD BE NOTED, HOWEVER, THAT OUR DECISION OF FEBRUARY 3, 1964, A 3551, DID NOT CONSIDER A SITUATION SUCH AS IS HERE INVOLVED AND THAT THE ACTUAL DEATH OF THE GRANTOR OF A POWER OF ATTORNEY AUTOMATICALLY REVOKES THE POWER OF ATTORNEY WITHOUT REGARD TO WHETHER THE PERSON OR INSTITUTION GRANTED THE POWER OF ATTORNEY HAS NOTICE OF THE GRANTOR'S DEATH. LIKEWISE, IT SHOULD BE NOTED THAT IN OUR DECISION AUTHORIZATION FOR DELIVERY OF A RETIRED PAY CHECK TO A BANK FOR CREDIT TO THE ACCOUNT OF A RETIRED OFFICER OF THE ARMY WHO HAS MADE AN ASSIGNMENT THEREOF UNDER 37 U.S.C. 701 WAS LIMITED TO CASES WHERE THE RETIRED PAY CHECK CARRIES AN APPROPRIATE LEGEND TO THE EFFECT THAT THE CHECK IS PAYABLE ONLY DURING THE LIFE OF THE RETIRED OFFICER, THAT THE CHECK IS NOT SUBJECT TO DEPOSIT IN A JOINT ACCOUNT, AND THE BANK IS APPROPRIATELY NOTIFIED THAT THE CREDITING OF THE CHECK TO A JOINT ACCOUNT WILL BE AT ITS RISK. IN ADDITION IT SHOULD BE NOTED THAT SECTION 701 (C) OF TITLE 37, U.S. CODE, SPECIFICALLY PROHIBITS ASSIGNMENT OF PAY BY AN ENLISTED MEMBER OF THE ARMY AND FURTHER PROVIDES THAT, IF HE DOES SO, THE ASSIGNMENT IS VOID.

YOU HAVE FURNISHED NO INFORMATION AS TO THE DISPOSITION WHICH HAS BEEN MADE OF THE RETIRED PAY CHECKS DRAWN TO THE ORDER OF SERGEANT ERSKINE WHICH HAVE BEEN MAILED TO THE PORTLAND BANK. PRESUMABLY, THEY WERE ENDORSED BY THE BANK UNDER A POWER OF ATTORNEY AND DEPOSITED IN SERGEANT ERSKINE'S BANK ACCOUNT FROM WHICH ONLY HE COULD MAKE WITHDRAWALS. IF THAT IS SO, IT NOT UNDERSTOOD HOW A CONTINUANCE OF THAT PRACTICE WOULD AID MRS. ERSKINE IN SOLVING HER FINANCIAL PROBLEM SINCE SHE COULD NOT WITHDRAW ANY FUNDS FROM THAT ACCOUNT.

THE EFFECT OF THE FOREGOING IS THAT, IF A RETIRED ENLISTED MEMBER OF THE ARMY IS IN FACT DEAD, THE PAYMENT OF HIS RETIRED PAY IS NOT AUTHORIZED AND A POWER OF ATTORNEY PREVIOUSLY EXECUTED BY HIM IS AUTOMATICALLY REVOKED BY HIS DEATH. IF A RETIRED MEMBER SUCH AS SERGEANT ERSKINE IS ALIVE BUT MISSING, WE KNOW OF NO AUTHORITY OF LAW FOR THE ISSUANCE OF RETIRED PAY CHECKS TO A BANK OR OTHER PERSON ON HIS BEHALF FOR THE PURPOSE OF SUPPORT OF HIS FAMILY. SEE MELVILLE V. UNITED STATES, 23 CT. CL. 74 (1888). OUR OPINION, IF AUTHORITY IS DESIRED TO ISSUE RETIRED PAY CHECKS FOR SUCH PURPOSES IN CIRCUMSTANCES SUCH AS EXIST IN THIS CASE, IT WILL BE NECESSARY TO OBTAIN LEGISLATIVE AUTHORIZATION THEREFOR SUCH AS IS CONTAINED IN 37 U.S.C. 551-557 FOR MEMBERS OF THE UNIFORMED SERVICES WHO BECOME MISSING WHILE ON ACTIVE DUTY.