B-167964, NOVEMBER 17, 1969, 49 COMP. GEN. 315

B-167964: Nov 17, 1969

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HOLDING THAT THE RETIRED PAY WITHHELD UNDER 38 U.S.C. 3203(A)(1) FROM AN INCOMPETENT VETERAN WHO DIED WHILE RECEIVING CARE IN A VETERANS ADMINISTRATION HOSPITAL IS PAYABLE TO THE "IMMEDIATE FAMILY" OF THE DECEASED VETERAN. IS REMOVED. IS NOT PAYABLE TO A BROTHER. AS THE BERKEY CASE IS NOT CONSIDERED APPLICABLE TO RELATIVES MORE REMOTELY RELATED TO A DECEDENT VETERAN THAN WIFE. THE RETIRED PAY THAT WAS NOT SUBJECT TO WITHHOLDING PURSUANT TO 10 U.S.C. 2771 MAY BE PAID TO THE CLAIMANTS. 1969: FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER (FILE REFERENCE ALRA) REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $3. YOUR LETTER WAS FORWARDED HERE UNDER DATE OF SEPTEMBER 19.

B-167964, NOVEMBER 17, 1969, 49 COMP. GEN. 315

PAY -- RETIRED -- WITHHOLDING -- VETERANS ADMINISTRATION CARE AND TREATMENT -- DISPOSITION OF PAY UPON INCOMPETENT'S DEATH THE TEMPORARY SUSPENSION OF THE DETERMINATION IN 47 COMP. GEN. 25 TO FOLLOW BERKEY V UNITED STATES, 176 CT. CL. 1, HOLDING THAT THE RETIRED PAY WITHHELD UNDER 38 U.S.C. 3203(A)(1) FROM AN INCOMPETENT VETERAN WHO DIED WHILE RECEIVING CARE IN A VETERANS ADMINISTRATION HOSPITAL IS PAYABLE TO THE "IMMEDIATE FAMILY" OF THE DECEASED VETERAN, TO AWAIT THE OUTCOME OF A SIMILAR LEGAL ISSUE IN THE LORIMER CASE, USDC CA NO. 206 67, RESPECTING THE PERSONS CONSIDERED ELIGIBLE TO RECEIVE PAYMENT, IS REMOVED, THE COURT IN THE LORIMER CASE VIEWING THE BERKEY CASE AS NOT APPLICABLE TO RELATIVES MORE REMOTELY RELATED TO THE DECEDENT THAN WIFE, CHILDREN, OR DEPENDENT PARENTS, AND DISTRIBUTION OF WITHHELD RETIRED PAY MAY NOW BE MADE ON THE BASIS OF THE BERKEY CASE TO THE PERSONS REFERENCED IN THE LORIMER CASE. 40 COMP. GEN. 666; 43 ID. 39; 47 ID. 25, MODIFIED DECEDENTS' ESTATES -- PAY, ETC., DUE MILITARY PERSONNEL -- AMOUNTS WITHHELD FROM HOSPITALIZED VETERANS -- RETIRED PAY V PENSIONS, ETC. -- INSANE AND INCOMPETENT MEMBERS THE RETIRED PAY WAIVED UNDER 38 U.S.C. 3105 IN FAVOR OF DISABILITY COMPENSATION BY AN INCOMPETENT VETERAN ALTHOUGH NO LONGER CONSIDERED FORFEITED PURSUANT TO 38 U.S.C. 3203(B)(1) UPON THE VETERAN'S DEATH WHILE RECEIVING CARE IN A VETERANS ADMINISTRATION HOSPITAL IN VIEW OF BERKEY V UNITED STATES, 176 CT. CL. 1, IS NOT PAYABLE TO A BROTHER, HALF BROTHER AND HALF SISTER OF THE DECEDENT WHO HAD BEEN DOMICILED IN ILLINOIS, AS THE BERKEY CASE IS NOT CONSIDERED APPLICABLE TO RELATIVES MORE REMOTELY RELATED TO A DECEDENT VETERAN THAN WIFE, CHILDREN, OR DEPENDENT PARENTS. HOWEVER, THE RETIRED PAY THAT WAS NOT SUBJECT TO WITHHOLDING PURSUANT TO 10 U.S.C. 2771 MAY BE PAID TO THE CLAIMANTS, THE RULES OF DESCENT AND DISTRIBUTION IN THE STATE OF ILLINOIS MAKING NO DISTINCTION BETWEEN WHOLE AND HALF BLOOD BROTHERS AND SISTERS. WHOLE AND HALF BLOOD BROTHERS AND SISTERS.

TO MAJOR N. C. ALCOCK, DEPARTMENT OF THE AIR FORCE, NOVEMBER 17, 1969:

FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER (FILE REFERENCE ALRA) REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $3,220.45 IN FAVOR OF TWO SURVIVING SISTERS AND ONE SURVIVING BROTHER OF AIRMAN THIRD CLASS FREDDIE L. ROBINSON, RETIRED, WHO DIED AUGUST 19, 1966. YOUR LETTER WAS FORWARDED HERE UNDER DATE OF SEPTEMBER 19, 1969, BY THE DEPUTY ASSISTANT COMPTROLLER FOR ACCOUNTING AND FINANCE AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-1053 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE NAMES OF THE PAYEES APPEARING ON THE VOUCHER AND THEIR RELATIONSHIP TO THE DECEDENT AS SHOWN BY THE RECORD, ARE WILLIAM C. TENNANT (AKA) WILLIAM C. ALLEN, HALF BROTHER; BETTY JEAN HOLMES (AKA) BETTY JEAN HUNTER, SISTER; AND WILLIAM DELL TENNANT (AKA) WILLIE DELL MCQUIRE, HALF SISTER. THE CLAIMANTS ALL RESIDE IN CHICAGO, ILLINOIS, AND EACH WOULD RECEIVE ONE- THIRD OF THE DECEDENT'S UNPAID RETIRED PAY.

YOU STATE THAT AIRMAN ROBINSON WAS PLACED ON THE PERMANENT DISABILITY RETIRED LIST EFFECTIVE MARCH 19, 1951, UNDER SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816 AND 823, 37 U.S.C. 272 AND 279, AND THAT FULL RETIRED PAY WAS WAIVED IN FAVOR OF DISABILITY COMPENSATION AWARDED BY THE VETERANS ADMINISTRATION EFFECTIVE OCTOBER 1, 1953, AND THAT NO RETIRED PAY HAS BEEN PAID SINCE OCTOBER 1953.

YOU FURTHER STATE THAT BECAUSE THE MEMBER'S ESTATE EXCEEDED $1,500 (AS PROVIDED IN 38 U.S.C. 3203(B)(2)) NO PAYMENTS (DISABILITY COMPENSATION) WERE MADE BY THE VETERANS ADMINISTRATION REGIONAL OFFICE, CHICAGO, ILLINOIS, TO THE LEGAL GUARDIAN OF AIRMAN ROBINSON FOR INTERMITTENT PERIODS COMMENCING APRIL 30, 1960, AND ENDING AUGUST 19, 1966, AS DESCRIBED IN YOUR LETTER. IT IS REPORTED THAT THE AIRMAN DIED AUGUST 19, 1966, AT THE VETERANS ADMINISTRATION HOSPITAL, DOWNEY, ILLINOIS. APPEARS THAT THE AMOUNT OF $3,220.45 REPRESENTS THE RETIRED PAY WHICH ACCRUED DURING THE ABOVE-MENTIONED PERIODS.

YOU EXPRESS THE VIEW THAT UNDER OUR DECISION 43 COMP. GEN. 39 (1963) AND 10 U.S.C. 2771, ONE-HALF OF THE RETIRED PAY PREVIOUSLY CONSIDERED WAIVED MAY BE PAID AS ARREARS OF PAY AND THE REMAINING ONE-HALF (REQUIRED TO BE WITHHELD UNDER 38 U.S.C. 3203(A)(1) AND 3203(B)(1)) WOULD BE SUBJECT TO THE FORFEITURE PROVISION OF SECTION 3203(B)(1) OF TITLE 38, U.S. CODE, PERTAINING TO AN INCOMPETENT VETERAN WHO DIES BEFORE A LUMP-SUM SETTLEMENT IS MADE.

YOU REFER TO OUR DECISION IN 47 COMP. GEN. 25 (1967) CONCERNING THE RULING OF THE COURT OF CLAIMS IN THE CASE OF BERKEY V UNITED STATES, 176 CT. CL. 1 (1966), AND TO OUR DECISION OF JUNE 24, 1968, B-156913, CONCERNING THE CASE OF UNITED STATES OF AMERICA V JANNA SILANDER WIRE, ADMINISTRATRIX OF THE ESTATE OF JOHN NICHOLAS LORIMER, DECEASED, THEN PENDING IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA, CIVIL ACTION NO. 206-67. IN THE BERKEY CASE THERE WAS FOR CONSIDERATION THE EFFECT OF THE PHRASE "AND IN THE EVENT OF THE VETERAN'S DEATH BEFORE PAYMENT OF SUCH LUMP SUM NO PART THEREOF SHALL BE PAYABLE", AS CONTAINED IN 38 U.S.C. 3203(B)(1). SINCE THE SAME PROHIBITION WAS APPLICABLE IN THE LORIMER CASE AS IN THE BERKEY CASE, IT WAS HOPED THAT THE DISTRICT COURT WOULD CONSIDER THE EFFECT OF THAT PROVISION AND PROVIDE FURTHER GUIDELINES FOR SETTLING SIMILAR CASES.

IN VIEW OF THE DOUBT IN THE MATTER YOU ASK WHETHER THE FULL AMOUNT OF RETIRED PAY (AS SHOWN ON THE VOUCHER) PREVIOUSLY CONSIDERED AS WAIVED MAY BE PAID AS ARREARS OF RETIRED PAY UNDER 43 COMP. GEN. 39, OR WHETHER PAYMENT OF THE ARREARS OF PAY MUST BE LIMITED TO THAT PORTION NOT SUBJECT TO THE WITHHOLDING PROVISIONS OF 38 U.S.C. 3203(A)(1) AND (B)(1).

IT APPEARS FROM YOUR SUBMISSION THAT AIRMAN ROBINSON WAIVED HIS FULL RETIRED PAY IN FAVOR OF DISABILITY COMPENSATION AWARDED BY THE VETERANS ADMINISTRATION IN ACCORDANCE WITH 38 U.S.C. 3105 (FORMERLY 38 U.S.C. 26C (1952 ED.)). IT FURTHER APPEARS THAT A LEGAL GUARDION HAD BEEN APPOINTED FOR THE AIRMAN, INDICATING THAT HE WAS RATED BY THE VETERANS ADMINISTRATION AS BEING INCOMPETENT, AND THAT AT THE TIME OF HIS DEATH HE WAS HOSPITALIZED IN A VETERANS ADMINISTRATION HOSPITAL.

UNDER THE PROVISIONS OF 38 U.S.C. 3203(A)(1) AND (B)(1), A VETERAN, WHETHER COMPETENT OR INCOMPETENT, HAVING NEITHER WIFE, CHILD NOR DEPENDENT PARENT, WHO IS FURNISHED HOSPITAL TREATMENT OR INSTITUTIONAL OR DOMICILIARY CARE BY THE VETERANS ADMINISTRATION FOR A 6-MONTH PERIOD FOLLOWING ADMISSION, IS ENTITLED THEREAFTER, WHILE RECEIVING SUCH TREATMENT OR CARE, TO ONLY ONE-HALF OF HIS "COMPENSATION OR RETIREMENT PAY," IF THE FULL AMOUNT INVOLVED EXCEEDS $60 PER MONTH. UPON DISCHARGE FROM SUCH TREATMENT OR CARE, THE LAW FURTHER PROVIDES THAT THE VETERAN OR RETIRED MEMBER SHALL BE PAID IN A LUMP SUM THE TOTAL AMOUNT BY WHICH HIS VETERANS COMPENSATION OR RETIRED PAY HAS BEEN REDUCED.

IN THE EVENT THE VETERAN OR RETIRED MEMBER DIES WHILE RECEIVING HOSPITAL CARE, ETC., THE LAW PROVIDES IN SECTION 3203(A)(2)(A) THAT THE LUMP-SUM PAYMENT SHALL BE MADE TO THOSE MENTIONED IN THE FOLLOWING ORDER OF PRECEDENCE: (1) SPOUSE, (2) CHILDREN IN EQUAL PARTS OR (3) DEPENDENT PARENTS IN EQUAL PARTS. IN THE CASE OF AN INCOMPETENT VETERAN WHO DIES BEFORE PAYMENT OF THE LUMP SUM, THE LAW EXPRESSLY PROVIDES IN SECTION 3203(B)(1) THAT "IN THE EVENT OF THE VETERAN'S DEATH BEFORE PAYMENT OF SUCH LUMP SUM NO PART THEREOF SHALL BE PAYABLE."

IN THE CASE OF AN INCOMPETENT VETERAN WHOSE STATUS LIES WITHIN THE SCOPE OF THE ABOVE-CITED STATUTORY PROVISIONS, SECTION 3203(B)(2) OF TITLE 38 PROVIDES THAT WHERE HIS ESTATE FROM ANY SOURCE EQUALS OR EXCEEDS $1,500, FURTHER PAYMENTS OF "PENSION, COMPENSATION, OR EMERGENCY OFFICER'S RETIREMENT PAY" SHALL NOT BE MADE UNTIL THE ESTATE IS REDUCED TO $500. THE AMOUNT WITHHELD IS PAYABLE TO THE VETERAN OR RETIRED MEMBER AS PROVIDED IN SECTION 3203(A)(1) AND (B)(1), BUT SUBSECTION (B)(2) FURTHER PROVIDES THAT "IN THE EVENT OF THE VETERAN'S DEATH BEFORE PAYMENT OF SUCH LUMP SUM NO PART THEREOF SHALL BE PAYABLE." THIS PROHIBITION IS IDENTICAL TO THE PROHIBITION IN SUBSECTION (B)(1) OF SECTION 3203. THERE IS FOR NOTING THAT WHEN TITLE 38 WAS CODIFIED AND ENACTED INTO LAW BY THE ACT OF SEPTEMBER 2, 1958, PUBLIC LAW 85-857, 72 STAT. 1105, "RETIRED PAY" WAS EXPRESSLY EXCLUDED FROM THE WITHHOLDING REQUIREMENT OF SECTION 3203(B)(2) WHEN THE INCOMPETENT'S ESTATE EXCEEDS $1,500. SEE 72 STAT. 1235.

IN OUR DECISION, 43 COMP. GEN. 39, WHICH INVOLVED THE WITHHOLDING PROVISION OF SECTION 3203(B)(2) OF TITLE 38, WE SAID THAT WHERE A RETIRED PERSON FILES A WAIVER OF RETIRED PAY SO THAT HE MAY RECEIVE DISABILITY COMPENSATION AND THAT COMPENSATION IS WITHHELD UNDER THE PROVISIONS OF SECTION 3203(B)(2) AND LATER BECOMES UNPAYABLE BECAUSE OF THE MEMBER'S DEATH BEFORE RELEASE FROM THE HOSPITAL, NO RIGHT TO COMPENSATION MATURED FOR THE PERIOD IT WAS WITHHELD AND NOT PAID, AND HIS RIGHT TO RETIRED PAY WAS NOT FINALLY WAIVED FOR THAT PERIOD. THE DECISION WENT ON TO SAY THAT SINCE THE PAYMENT OF COMPENSATION FOR WHICH RETIRED PAY WAS WAIVED AND WHICH WAS BEING WITHHELD UNDER THE LIMITATION PROVIDED IN SECTION 3203(B)(2) IS NOW PRECLUDED BY THAT PROVISION OF LAW, IT FOLLOWS THAT HIS RIGHT TO RETIRED PAY WAS NOT WAIVED FROM THE DATE OF CESSATION OF COMPENSATION PAYMENTS AND THE AMOUNT OF SUCH RETIRED PAY IS SUBJECT TO DISBURSEMENT AS PROVIDED IN 10 U.S.C. 2771.

THE EFFECT OF THE PAYMENT PROHIBITION CONTAINED IN 38 U.S.C. 3203(B)(1) WAS CONSIDERED BY THE COURT OF CLAIMS IN THE BERKEY CASE CITED ABOVE. THE COURT HELD THAT PAYMENT TO THE PLAINTIFF OF THE RETIREMENT PAY WHICH HAD BEEN WITHHELD FROM HIS FATHER, A RETIRED MEMBER OF THE ARMY WHO WAS INCOMPETENT AND WHOSE STATUS AT DATE OF DEATH WAS WITHIN THE SCOPE OF SECTION 3203(B)(1), WAS PROPER NOTWITHSTANDING THE SPECIFIC FORFEITURE LANGUAGE CONTAINED IN THE CITED STATUTORY PROVISIONS. THE COURT EXPRESSED THE VIEW THAT IT COULD NOT HAVE BEEN THE INTENT OF CONGRESS TO DISCRIMINATE AGAINST DECEASED RETIRED MILITARY IMCOMPETENT MEMBERS OF THE ARMED FORCES--SIMILAR LANGUAGE WAS NOT INCLUDED IN SECTION 3203(A)--BY BARRING PAYMENT OF WITHHELD RETIREMENT PAY TO THE SURVIVING SON IN SUCH A SITUATION, EVEN THOUGH THE PLAIN AND SPECIFIC LANGUAGE OF SECTION 3203(B)(1) PRESCRIBES EXACTLY SUCH A RESULT.

IN THE BERKEY CASE THE COURT TOOK NOTE OF THE AMENDMENTS TO SECTION 38 U.S.C. 3203 AS PROVIDED IN THE ACT OF AUGUST 7, 1959, PUBLIC LAW 86 146, 73 STAT. 297, AND THE ACT OF JULY 25, 1962, PUBLIC LAW 87-544, 76 STAT. 208, AND THE LEGISLATIVE HISTORY OF THE 1959 ACT, WITH RESPECT TO THE DISTRIBUTION OF "GRATUITOUS BENEFITS" TO NEAR RELATIVES. THE 1962 ACT REMOVED FROM THE ORDER OF PRECEDENCE IN SECTION 3203(A)(2)(A), "BROTHERS AND SISTERS IN EQUAL PARTS."

AS POINTED OUT BY THE COURT, THE LEGISLATIVE HISTORY OF THE 1959 ACT CLEARLY INDICATES THAT ITS PURPOSE WAS TO PREVENT GRATUITOUS BENEFITS FOR INCOMPETENT VETERANS, RECEIVING CARE AT PUBLIC EXPENSE, FROM ACCUMULATING IN EXCESSIVE AMOUNTS AND PASSING, ON DEATH, TO RELATIVES HAVING NO CLAIM AGAINST THE GOVERNMENT ON ACCOUNT OF THE VETERAN'S MILITARY SERVICE (NAMELY, RELATIVES OTHER THAN WIVES, CHILDREN, AND PARENTS). IN OUR DECISION 47 COMP. GEN. 25 WE SAID, FOR THE REASONS THERE STATED, THAT WE WOULD FOLLOW THE BERKEY CASE. WE ALSO HELD THAT SINCE THE COURT DID NOT INDICATE THE SPECIFIC STATUTORY AUTHORITY FOR DETERMINING THE PERSONS ELIGIBLE TO RECEIVE THE RETIREMENT PAY, DISTRIBUTION OF SUCH PAY SHOULD BE IN ACCORDANCE WITH 10 U.S.C. 2771, CITING 40 COMP. GEN. 666 (1961) AS THE BASIS FOR THIS ACTION.

IN THE LIGHT OF THE LORIMER CASE, CITED ABOVE, WHICH WAS THEN PENDING IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA, AND WHICH APPEARED TO PRESENT FOR JUDICIAL DETERMINATION BY THAT COURT A SIMILAR LEGAL ISSUE WITH RESPECT TO THE PROHIBITION IN SECTION 3203(B)(1) AS WAS RULED ON BY THE COURT OF CLAIMS IN THE BERKEY CASE, WE SUGGESTED, IN OUR DECISION OF JUNE 24, 1968, B-156913, THAT ADMINISTRATIVE ACTION WHICH WOULD BE BASED ON 47 COMP. GEN. 25 BE SUSPENDED UNTIL THE JUDICIAL PROCEEDINGS IN THE LORIMER CASE ARE FINALLY SETTLED.

IT WAS ALLEGED IN THE GOVERNMENT'S PETITION IN THE LORIMER CASE THAT HE WAS A RETIRED MEMBER OF THE U.S. ARMY WHO WAS ADMITTED TO ST. ELIZABETH'S HOSPITAL, WASHINGTON, D.C., ON FEBRUARY 24, 1950, AND REMAINED THERE UNTIL HIS DEATH ON APRIL 20, 1966. HE WAS SINGLE AND WITHOUT DEPENDENTS OR PARENTS AND HIS CARE AT THE HOSPITAL WAS FURNISHED AT THE EXPENSE OF THE VETERANS ADMINISTRATION. THROUGH ERROR, LORIMER'S RETIRED PAY WAS NOT REDUCED BY 50 PERCENT AS REQUIRED BY 38 U.S.C. 3203 (A)(1) AND, CONSEQUENTLY, HE WAS OVERPAID RETIRED PAY DURING THE PERIODS SEPTEMBER 1, 1950, TO MARCH 31, 1966, IN THE AMOUNT OF $23,772.36. THIS AMOUNT WAS REDUCED TO $23,674.93 BY APPLYING UNPAID RETIRED PAY OF $97.43. THE GOVERNMENT SUED FOR THIS AMOUNT.

WE ARE NOW IN RECEIPT OF A COPY OF AN ORDER DATED DECEMBER 3, 1968, WHEREIN THE DISTRICT COURT AWARDED JUDGMENT IN FAVOR OF THE GOVERNMENT IN THE LORIMER CASE IN THE AMOUNT OF $23,674.93. NO WRITTEN OPINION WAS RENDERED IN THIS CASE BUT SINCE THE BERKEY CASE WAS CITED BY THE PLAINTIFF IN SUPPORT OF ITS POSITION, IT APPEARS THAT THE COURT VIEWED THAT CASE AS NOT BEING APPLICABLE TO RELATIVES MORE REMOTELY RELATED TO THE DECEDENT THAN WIFE, CHILDREN OR PARENTS. WE UNDERSTAND INFORMALLY FROM THE OFFICE OF THE UNITED STATES ATTORNEY FOR THE DISTRICT OF COLUMBIA THAT THE DEFENDANT HAS APPEALED THIS JUDGMENT BUT THAT THE APPEAL IS BASED PRIMARILY ON WHETHER THE GOVERNMENT IS BOUND BY THE STATUTE OF LIMITATIONS. IN VIEW OF THE ACTION TAKEN IN THE LORIMER CASE, AND IN THE ABSENCE OF ANY OTHER RELEVANT COURT DECISION, DISTRIBUTION OF WITHHELD RETIRED PAY UNDER SECTION 3203(A)(1) WHICH WAS TEMPORARILY SUSPENDED UNDER OUR DECISION OF JUNE 24, 1968, MAY NOW BE PAID ON THE BASIS OF THE BERKEY CASE TO THE SURVIVING WIFE, CHILDREN OR DEPENDENT PARENTS IN THAT ORDER. COMPARE 38 U.S.C. 3203(A)(2)(A). TO THE EXTENT THAT ANYTHING SAID IN 40 COMP. GEN. 666, 43 ID. 39 OR 47 ID. 25 IS IN CONFLICT WITH THE VIEWS EXPRESSED HEREIN, THOSE DECISIONS NO LONGER WILL BE FOLLOWED.

BASED ON THE CONCLUSIONS REACHED IN 43 COMP. GEN. 39, IT APPEARS PROPER TO VIEW THE RETIRED PAY WHICH ACCRUED DURING THE PERIODS AIRMAN ROBINSON,S DISABILITY COMPENSATION WAS WITHHELD BY THE VETERANS ADMINISTRATION UNDER 38 U.S.C. 3203(B)(2), AS NOT BEING SUBJECT TO HIS 1953 WAIVER OF RETIRED PAY IN FAVOR OF DISABILITY COMPENSATION. SUCH RETIRED PAY WAS SUBJECT TO THE 50 PERCENT REDUCTION PROVISIONS OF SECTION 3203(A)(1), (B)(1). HOWEVER, BASED ON THE LORIMER CASE ANY AMOUNTS OF RETIRED PAY WHICH WERE SUBJECT TO WITHHOLDING UNDER THE CITED STATUTORY PROVISIONS, MAY NOT BE PAID TO THE DECEDENT'S SISTERS AND BROTHER. THE BALANCE OF RETIRED PAY NOT SUBJECT TO WITHHOLDING WHICH ACCRUED DURING THE PERIODS MENTIONED ABOVE IS PAYABLE TO THE PROPER PERSONS ENTITLED THERETO UNDER 10 U.S.C. 2771. PAYMENT OF ARREARS OF PAY, WHICH INCLUDES RETIRED PAY, AUTHORIZED TO BE PAID TO THE CLASSES OF PERSONS MENTIONED IN 10 U.S.C. 2771, INCLUDES, IN CLAUSE (6), "PERSON ENTITLED UNDER THE LAW OF THE DOMICILE OF THE DECEASED MEMBER." UNDER THE RULES OF DESCENT AND DISTRIBUTION IN THE STATE OF ILLINOIS, A DECEASED'S BROTHERS AND SISTERS ARE ENTITLED TO SHARE IN HIS ESTATE IN EQUAL PARTS IF THERE IS NO SURVIVING WIFE, CHILD OR PARENT AND THERE IS NO DISTINCTION BETWEEN THE WHOLE AND HALF BLOOD. SEE SECTION 11, CHAPTER 3, RULES OF DESCENT AND DISTRIBUTION, SMITH HURD ILLINOIS ANNOTATED STATUTES.

ACCORDINGLY, THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED HEREWITH AND IF THE VOUCHER IS AMENDED TO COVER THE RETIRED PAY WHICH WAS NOT SUBJECT TO WITHHOLDING UNDER 38 U.S.C. 3203(A)(1), (B)(1), PAYMENT IS AUTHORIZED THEREON, IF OTHERWISE CORRECT.