B-168397, DEC. 22, 1969

B-168397: Dec 22, 1969

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INEFFECTIVE PRIOR TO MEMBER'S DEATH IN CONSIDERING CLAIM FOR DECEASED MEMBER'S ARREARS OF PAY AND ALLOWANCES BY FORMER WIFE DESIGNATED AS BENEFICIARY WHERE MEMBER HAD INTENDED TO CHANGE BENEFICIARY BUT WAS KILLED BY ENEMY ACTION BEFORE SIGNING NEWLY PREPARED FORMS IN ACCORDANCE WITH PERTINENT REQUIREMENTS OF MARINE CORPS PERSONNEL MANUAL. CLAIM SHOULD BE ALLOWED SINCE PURPOSE OF 10 U.S.C. 2771 WAS TO PROVIDE BASIS FOR GOVERNMENT PAYMENT TO AUTHORIZED DESIGNATED BENEFICIARY. DECISION IS RENDERED ON CIRCUMSTANCES PRESENTED TO AVOID FURTHER DELAY IN RESOLVING DOUBT. G. REDDICK: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 2. LISTED AMONG THE ENCLOSURES TO YOUR LETTER IS THE CLAIM FOR ARREARS OF PAY OF IRIS F.

B-168397, DEC. 22, 1969

DECEDENTS' ESTATES--PAY, ETC; DUE MILITARY PERSONNEL--BENEFICIARY DESIGNATIONS--CHANGE--INEFFECTIVE PRIOR TO MEMBER'S DEATH IN CONSIDERING CLAIM FOR DECEASED MEMBER'S ARREARS OF PAY AND ALLOWANCES BY FORMER WIFE DESIGNATED AS BENEFICIARY WHERE MEMBER HAD INTENDED TO CHANGE BENEFICIARY BUT WAS KILLED BY ENEMY ACTION BEFORE SIGNING NEWLY PREPARED FORMS IN ACCORDANCE WITH PERTINENT REQUIREMENTS OF MARINE CORPS PERSONNEL MANUAL, VOL. II, CLAIM SHOULD BE ALLOWED SINCE PURPOSE OF 10 U.S.C. 2771 WAS TO PROVIDE BASIS FOR GOVERNMENT PAYMENT TO AUTHORIZED DESIGNATED BENEFICIARY, WITHOUT REGARD TO ANY OTHER CONSIDERATION, OF PAYMENTS DUE AT TIME OF DEATH IN STRICT ACCORDANCE WITH APPLICABLE REGULATIONS. WHILE RIGID COMPLIANCE WITH GENERAL ACCOUNTING OFFICE PROCEDURAL REQUIREMENTS HAS NOT BEEN MET, DECISION IS RENDERED ON CIRCUMSTANCES PRESENTED TO AVOID FURTHER DELAY IN RESOLVING DOUBT.

TO MAJOR W. G. REDDICK:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 2, 1969 (WGR:JEL 7240.1), WITH ENCLOSURES, FORWARDING TO THIS OFFICE PURSUANT TO 4 GAO 5.1 FOR SETTLEMENT AS A DOUBTFUL CLAIM THE CLAIM OF IRIS FABEIN CANTRELL (FORMERLY IRIS F. FAIN) FOR THE ARREARS OF PAY AND ALLOWANCES DUE IN THE CASE OF SERGEANT GARY LEE FAIN, 2127108, U.S. MARINE CORPS, WHO DIED DECEMBER 23, 1968.

LISTED AMONG THE ENCLOSURES TO YOUR LETTER IS THE CLAIM FOR ARREARS OF PAY OF IRIS F. FAIN, FORMER WIFE. HOWEVER, ONLY A COPY OF THE CLAIM WAS ENCLOSED. IN ANY CASE WHERE A CLAIM IS FOR SETTLEMENT BY THIS OFFICE UNDER THE PROVISIONS OF 4 GAO 5.1, THE ORIGINALS OF THE CLAIM DOCUMENTS SHOULD BE FURNISHED. SEE 4 GAO 6.1.

YOUR LETTER SUGGESTS THAT WHAT IS REALLY DESIRED IS A DECISION BY THE COMPTROLLER GENERAL AS TO THE ENTITLEMENT OF THE FORMER WIFE TO THE ARREARS OF PAY IN THE CIRCUMSTANCES PRESENTED. IN THIS RESPECT THERE HAS BEEN NO COMPLIANCE WITH THE DOCUMENTARY OR PROCEDURAL REQUIREMENTS OF THE ADMINISTRATIVE REGULATIONS FOR SUCH REQUESTS. PARAGRAPH 041322.2 NAVY COMPTROLLER MANUAL. IN ORDER, HOWEVER, TO AVOID FURTHER DELAY IN THE CASE AND ON THE ASSUMPTION THAT YOU HAVE A VOUCHER FOR THE ARREARS OF PAY BEFORE YOU FOR PAYMENT, A DECISION WILL BE RENDERED IN THIS INSTANCE.

THE RECORDS SHOW THAT ON THE LAST RECORD OF EMERGENCY DATA (FORM NAVMC 10526) EXECUTED BY SERGEANT FAIN, HE DESIGNATED IRIS F. FAIN, WIFE, AS THE PERSON TO RECEIVE HIS ARREARS OF PAY. HE WAS GRANTED AN ANNULMENT OF HIS MARRIAGE PRIOR TO HIS DEATH AND ATTEMPTED TO EXECUTE A NEW RECORD OF EMERGENCY DATA FOR THE PURPOSE OF DESIGNATING A BENEFICIARY OTHER THAN IRIS F. FAIN BUT HE WAS ADVISED BY MEMBERS OF HIS COMMAND THAT HE COULD NOT EXECUTE A NEW DESIGNATION UNTIL HE FURNISHED PROOF OF THE DISSOLUTION OF HIS PRIOR MARRIAGE. SERGEANT FAIN FURNISHED A COURT ORDER FOR THE ANNULMENT OF HIS MARRIAGE TO THE SQUADRON OFFICE ON OR ABOUT DECEMBER 15, 1968, AND A NEW RECORD OF EMERGENCY DATA WAS PREPARED. HOWEVER, HE DIED AS A RESULT OF ENEMY ACTION BEFORE SIGNING THE NEW FORM.

YOU SAY IT APPEARS THAT SERGEANT FAIN HAD THE RIGHT TO EXECUTE A NEW RECORD OF EMERGENCY DATA FOR THE PURPOSE OF CHANGING BENEFICIARIES AT THE TIME HE ATTEMPTED TO DO SO IN NOVEMBER AND DECEMBER 1968, AND YOU SUGGEST THAT HE TOOK ALL THE ACTION TO DO SO THAT WAS WITHIN HIS POWER. ON THAT BASIS YOU EXPRESS THE BELIEF THAT OUR OFFICE MAY CONSIDER THE CHANGE OF BENEFICIARY AS HAVING BEEN LEGALLY MADE IN THIS CASE. YOU INDICATE THAT A CLAIM FROM MRS. ORA H. FAIN, MOTHER OF SERGEANT FAIN, WILL BE ALLOWED IF THE CLAIM OF IRIS F. FAIN IS LEGALLY FOR DISALLOWANCE.

SECTION 2771 (A) OF TITLE 10, U.S.C. PROVIDES THAT IN THE SETTLEMENT OF THE ACCOUNTS OF A DECEASED MEMBER OF THE ARMED FORCES WHO DIES AFTER DECEMBER 31, 1955, THE AMOUNT DUE SHALL BE PAID TO THE PERSON HIGHEST ON THE FOLLOWING LIST LIVING ON THE DATE OF DEATH:

"(1) BENEFICIARY DESIGNATED BY HIM IN WRITING TO RECEIVE SUCH AN AMOUNT, IF THE DESIGNATION IS RECEIVED, BEFORE THE DECEASED MEMBER'S DEATH, AT THE PLACE NAMED IN THE REGULATIONS TO BE PRESCRIBED BY THE SECRETARY CONCERNED.

"(2) SURVIVING SPOUSE.

"(3) CHILDREN AND THEIR DESCENDANTS, BY REPRESENTATION.

"(4) FATHER AND MOTHER IN EQUAL PARTS OR, IF EITHER IS DEAD, THE SURVIVOR. * * *" SECTION 2771 (C) OF TITLE 10 PROVIDES THAT DESIGNATIONS AND CHANGES OF DESIGNATION OF BENEFICIARIES UNDER (1) ABOVE ARE SUBJECT TO REGULATIONS TO BE PRESCRIBED BY THE SECRETARY CONCERNED.

THE PROVISIONS OF SECTION 2771 FOR THE DESIGNATION OF A BENEFICIARY TO RECEIVE THE AMOUNTS DUE IN THE SETTLEMENT OF THE ACCOUNTS OF A DECEASED MEMBER OF THE ARMED FORCES AND FOR CHANGES IN SUCH DESIGNATION WERE REVISED AND REENACTED BY SECTION 1 (56) OF PUBLIC LAW 85-861 APPROVED SEPTEMBER 2, 1958, 72 STAT. 1461, ON THE BASIS OF THE PROVISIONS OF THE ACT OF JULY 12, 1955, CH. 328, 69 STAT. 295, WHICH BECAME EFFECTIVE ON JANUARY 1, 1956. THAT LAW ALSO PROVIDED (10 U.S.C. 2771 (C)) THAT UNDER REGULATIONS PRESCRIBED BY THE COMPTROLLER GENERAL PAYMENT TO A DESIGNATED BENEFICIARY SHALL BE MADE BY THE MILITARY DEPARTMENT CONCERNED AND, (10 U.S.C. 2771 (D)) THAT A PAYMENT SO MADE BARS RECOVERY BY ANY OTHER PERSON OF THE AMOUNT PAID.

IT IS OUR UNDERSTANDING THAT THE PURPOSE OF SECTION 2771, IN AUTHORIZING PAYMENT TO A DESIGNATED BENEFICIARY, WAS TO PROVIDE A BASIS FOR PAYMENT BY THE GOVERNMENT, WITHOUT REGARD TO ANY OTHER CONSIDERATION, OF THE AMOUNTS DUE IN SUCH CASES TO THE BENEFICIARY OF RECORD AT THE TIME OF MEMBER'S DEATH WHO HAD BEEN DESIGNATED IN STRICT ACCORDANCE WITH THE APPLICABLE REGULATIONS. IN LINE WITH THAT UNDERSTANDING 4 GAO 25 PROVIDES THAT:

"A DESIGNATION OF BENEFICIARY UNDER 10 U.S.C. 2771 * * * PROPERLY EXECUTED AND FILED IN THE PLACE DESIGNATED FOR SUCH PURPOSE IN THE REGULATIONS OF THE DEPARTMENT CONCERNED, WILL BE EFFECTIVE THEREAFTER UNTIL (1) EXPRESSLY CHANGED OR REVOKED IN WRITING OR (2) THE SERVICEMAN TRANSFERS TO A DIFFERENT BRANCH OF THE MILITARY SERVICE OR (3) RETURNS TO THE SAME OR A DIFFERENT BRANCH AFTER A BREAK IN SERVICE."

UNDER THE PROVISIONS OF 4 GAO 27.1 PAYMENT OF THE AMOUNT DUE IN CASES SUCH AS THIS IS TO BE MADE BY THE DEPARTMENT CONCERNED. AND, WHILE 4 GAO 27.2 (2) PROVIDES THAT PAYMENT MAY BE MADE ONLY BY THE GENERAL ACCOUNTING OFFICE WHEN DOUBT EXISTS AS TO THE PERSONS) PROPERLY ENTITLED TO PAYMENT, THERE GENERALLY IS LITTLE BASIS FOR SUCH DOUBT IN CASES WHERE THE DESIGNATION OF BENEFICIARY IS PROPERLY EXECUTED AND FILED IN ACCORDANCE WITH THE GOVERNING REGULATIONS.

PARAGRAPH 15118 OF THE MARINE CORPS PERSONNEL MANUAL, VOLUME II, PROVIDES AMONG OTHER THINGS THAT IN THE PREPARATION OF THE RECORD OF EMERGENCY DATA, ENTRIES WILL BE TYPED, THE MARINE WILL SIGN ALL COPIES OF THE FORM, AND THEY WILL BE FORWARDED TO THE SPECIFIED OFFICES OF THE MARINE CORPS. PARAGRAPH 15118 ALSO PROVIDES THAT A NEW FORM WILL BE PREPARED WHEN A CHANGE OCCURS WHICH AFFECTS CERTAIN INFORMATION ON THE CURRENT FORM, INCLUDING A CHANGE IN THE NAME OF A BENEFICIARY.

THUS, IN ORDER TO CHANGE HIS BENEFICIARY A MEMBER OF THE MARINE CORPS MUST EXECUTE AND SIGN A NEW RECORD OF EMERGENCY DATA AND FORWARD IT TO THE SPECIFIED MARINE CORPS OFFICE. THAT WAS NOT DONE IN THIS CASE AND WHILE SERGEANT FAIN MAY HAVE BEEN IMPROPERLY ADVISED OF THE MARINE CORPS REQUIREMENTS FOR CHANGING THE BENEFICIARY AND AS A POSSIBLE CONSEQUENCE OF THAT ADVICE FAILED TO PROPERLY EXECUTE AND FILE THE BENEFICIARY CHANGE PRIOR TO HIS DEATH, SUCH FACT AFFORDS NO BASIS TO ALLOW ANY AMOUNT DUE IN HIS CASE TO ANY PERSON OTHER THAN THE BENEFICIARY DESIGNATED BY HIM IN ACCORDANCE WITH THE LAW AND REGULATIONS. SEE B-148320, MARCH 20, 1962, COPY ENCLOSED.

ACCORDINGLY, THE CLAIM OF IRIS FABEIN CANTRELL FOR THE UNPAID PAY AND ALLOWANCES SHOULD BE ALLOWED, IF OTHERWISE CORRECT.