B-176850, FEB 12, 1973

B-176850, FEB 12, 1973

MILITARY PERSONNEL - RETIRED PAY - STATUTORY BENEFICIARIES - CONTROLLING STATE LAW DECISION SUSTAINING THE DISALLOWANCE OF CLAIMS BY CORRINE O'BRIEN, NELLIE CHILDRESS, AND THELMA HILTON FOR THE ARREARS OF RETIRED PAY DUE THEIR LATE BROTHER, MSG RICHARD R. ADKINS, USAF RETIRED. SINCE DECEDENT FAILED TO NAME A BENEFICIARY TO RECEIVE HIS PAY AND SINCE HE WAS NOT SURVIVED BY ANY PERSONS WITHIN THE CLASS OF BENEFICIARIES PRESCRIBED BY 10 U.S.C. 2771(A), PAYMENT WAS CORRECTLY MADE TO DECEDENT'S BROTHER UNDER THE LAW OF NEVADA, DECEDENT'S DOMICILE, WHICH PROVIDES THAT THE PAYER OF DECEDENT'S FUNERAL EXPENSES IS ENTITLED TO REIMBURSEMENT FROM DECEDENT'S ESTATE BEFORE DISTRIBUTION TO OTHERS WOULD BE AUTHORIZED. SINCE THE BROTHER PAID THE FUNERAL EXPENSES, THE PRIOR DISALLOWANCE OF THE CLAIM IS SUSTAINED.

TO MRS. CORRINE O'BRIEN:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 1, 1972, REQUESTING RECONSIDERATION OF THE SETTLEMENT BY OUR TRANSPORTATION AND CLAIMS DIVISION, DATED JULY 27, 1972, DISALLOWING YOUR CLAIM, AS SISTER, FOR ARREARS OF RETIRED PAY DUE IN THE CASE OF YOUR LATE BROTHER, MASTER SERGEANT RICHARD R. ADKINS, USAF, RETIRED.

THE RECORD SHOWS THAT YOUR LATE BROTHER, RICHARD R. ADKINS, RETIRED FROM THE AIR FORCE EFFECTIVE SEPTEMBER 1, 1969, AND DIED ON JUNE 26, 1971. THE TIME OF HIS DEATH, HE WAS DOMICILED IN THE STATE OF NEVADA.

IN FORWARDING THE CLAIMS OF YOURSELF, YOUR SISTERS, AND YOUR BROTHER VIRGIL ADKINS TO OUR OFFICE, THE AIR FORCE ACCOUNTING AND FINANCE CENTER REPORTED THAT SERGEANT ADKINS DID NOT DESIGNATE A BENEFICIARY TO RECEIVE ARREARS OF RETIRED PAY, AND THAT HE HAD NO SURVIVING SPOUSE, CHILDREN, OR PARENTS.

SUBSEQUENTLY, YOUR BROTHER, VIRGIL ADKINS SUBMITTED A RECEIPT TO OUR OFFICE SHOWING THAT HE PAID $2,285.94 FOR THE FUNERAL EXPENSES OF RICHARD ADKINS. THE BALANCE OF $500 WAS PAID BY VETERANS ADMINISTRATION AND SOCIAL SECURITY ALLOWANCES. ACCORDINGLY, BY SETTLEMENT DATED JULY 27, 1972, THE ARREARS OF RETIRED PAY IN THE AMOUNT OF $302.60 WAS CERTIFIED FOR PAYMENT TO VIRGIL ADKINS, AS PAYER OF THE FUNERAL EXPENSES OF RICHARD R. ADKINS.

IN YOUR REQUEST FOR RECONSIDERATION, YOU STATE THAT VIRGIL PAID RICHARD'S FUNERAL EXPENSES OUT OF INSURANCE MONEY LEFT TO VIRGIL BY RICHARD. SUCH BASIS, YOU CONTEND THE ARREARS OF RETIRED PAY ($302.60) SHOULD HAVE BEEN DIVIDED EQUALLY AMONG YOUR TWO SISTERS, YOURSELF, AND VIRGIL.

SUBSECTION 2771(A) OF TITLE 10, U.S. CODE, WHICH GOVERNS THE SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE UNIFORMED SERVICES WHO DIED AFTER DECEMBER 31, 1955, PROVIDES FOR PAYMENT OF THE AMOUNTS DUE DECEASED MEMBERS AT THE DATE OF DEATH TO THE PERSON HIGHEST ON THE FOLLOWING LIST LIVING AT 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.

"(5) LEGAL REPRESENTATIVE.

"(6) PERSONS ENTITLED UNDER THE LAW OF THE DOMICILE OF THE DECEASED MEMBER."

THE RECORD SHOWED THAT AT THE TIME OF RICHARD ADKINS' DEATH, HE WAS NOT SURVIVED BY ANY PERSON COMING WITHIN THE CLASSES SET OUT IN CLAUSES (1) THROUGH (5). THEREFORE, SETTLEMENT WAS MADE UNDER CLAUSE (6) OF 10 U.S.C. 2771(A), CONSIDERING THE APPLICABLE PROVISIONS OF THE LAW OF THE DECEDENT'S DOMICILE WITH RESPECT TO THE CLAIMS OF CREDITORS AGAINST HIS ESTATE AS WELL AS THE PROVISIONS WITH RESPECT TO DESCENT AND DISTRIBUTION.

IN THE PRESENT CASE RICHARD ADKINS WAS DOMICILED IN NEVADA. SECTION 150.220, TITLE 12, NEVADA REVISED STATUTES, PROVIDES, IN PERTINENT PART, THAT THE DEBTS AND CHARGES OF THE DECEDENT'S ESTATE SHALL BE PAID IN THE FOLLOWING ORDER:

"1. FUNERAL EXPENSES.

"2. THE EXPENSES OF THE LAST SICKNESS ***."

THUS, UNDER THE LAW OF NEVADA, THE PAYER OF FUNERAL EXPENSES IS ENTITLED TO REIMBURSEMENT FROM THE ESTATE OF A DECEDENT BEFORE DISTRIBUTION TO BROTHERS AND SISTERS WOULD BE AUTHORIZED. THAT IS THE LAW OUR OFFICE FOLLOWED IN CERTIFYING PAYMENT TO VIRGIL ADKINS, AS PAYER OF THE FUNERAL EXPENSES OF RICHARD R. ADKINS. SEE B-175508, SEPTEMBER 6, 1972, 52 COMP. GEN. , COPY ENCLOSED.

WHILE, AS YOU STATE, VIRGIL ADKINS MAY HAVE UTILIZED INSURANCE MONEY LEFT TO HIM BY RICHARD R. ADKINS TO PAY THE FUNERAL EXPENSES, AS FAR AS THE RECORD BEFORE OUR OFFICE SHOWS, HE RECEIVED THE INSURANCE BENEFITS IN HIS OWN RIGHT AND WAS FREE TO USE THE PROCEEDS AS HE SAW FIT. THEREFORE, UNDER THE FACTS IN THIS CASE, SINCE HE PAID $2,285.94 FOR THE FUNERAL EXPENSES OF RICHARD ADKINS, HE BECAME ENTITLED TO THE ARREARS OF RETIRED PAY IN THE AMOUNT OF $302.60, IN HIS CAPACITY AS PAYER OF THE FUNERAL EXPENSES. THE PROVISIONS OF 10 U.S.C. 2771 ARE MANDATORY AND BINDING ON OUR OFFICE AND THE ARREARS OF RETIRED PAY DUE UPON THE DEATH OF YOUR BROTHER WAS PAID IN ACCORD WITH ITS PROVISIONS AND THE APPLICABLE PROVISIONS OF THE LAW OF NEVADA.

ACCORDINGLY, THE SETTLEMENT DATED JULY 27, 1972, DISALLOWING YOUR CLAIM, IS SUSTAINED.