B-179515, DEC 18, 1973

B-179515: Dec 18, 1973

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BALL: REFERENCE IS MADE TO YOUR RECENT COMMUNICATION. THERE IS NO EVIDENCE IN THE PRESENT RECORD THAT YOUR DECEASED HUSBAND CHANGED THIS DESIGNATION OF BENEFICIARIES SUBSEQUENT TO JANUARY 3. IT THEREFORE APPEARS THAT GAVIN ROACH WAS THE SOLE DESIGNATED BENEFICIARY WHEN YOUR HUSBAND DIED ON JUNE 7. FOR THIS REASON YOUR CLAIM TO THE UNPAID RETIRED PAY AS WIFE OF SERGEANT BALL WAS DENIED BY OUR TRANSPORTATION AND CLAIMS DIVISION ON JULY 19. YOU HAVE SUBMITTED A COPY OF YOUR DECEASED HUSBAND'S LAST WILL AND TESTAMENT. ON THIS BASIS YOU BELIEVE THAT YOU ARE ENTITLED TO THE ARREARS IN RETIRED PAY DUE SERGEANT BALL ON THE DATE OF HIS DEATH. IS GOVERNED BY 10 U.S.C. 2771. IF THE DESIGNATION IS RECEIVED BEFORE THE MEMBER'S DEATH.

B-179515, DEC 18, 1973

NO ALTERNATIVE ON THE BASIS OF THE AVAILABLE RECORD BUT TO SUSTAIN THE DISALLOWANCE OF CLAIM FOR ARREARS IN RETIRED PAY DUE ON THE DATE OF DEATH OF TECHNICAL SERGEANT WALTER BALL, U.S.A.F.

TO MRS. EVA L. BALL:

REFERENCE IS MADE TO YOUR RECENT COMMUNICATION, WITH ENCLOSURE, TO THIS OFFICE, RECEIVED HERE ON JULY 27, 1973, CONCERNING YOUR CLAIM AS WIDOW OF TECHNICAL SERGEANT WALTER BALL, UNITED STATES AIR FORCE, RETIRED, FOR ARREARS IN RETIRED PAY DUE ON THE DATE OF HIS DEATH IN THE AMOUNT OF $61.13, CONSTITUTING IN EFFECT A REQUEST FOR RECONSIDERATION OF THE DISALLOWANCE OF THIS CLAIM BY THE SETTLEMENT OF OUR TRANSPORTATION AND CLAIMS DIVISION, DATED JULY 19, 1973.

THE RECORD SHOWS THAT SERGEANT BALL RETIRED JANUARY 31, 1947. ON JANUARY 3, 1956, HE COMPLETED AND SIGNED AFFC FORM 540-163, DESIGNATION OF BENEFICIARY BY AIR FORCE RETIRED INDIVIDUAL, DESIGNATING HIS FORMER WIFE, LENA B. BALL, AND IN THE CASE OF HER DEATH, HIS STEPSON, GAVIN L. ROACH, TO RECEIVE RETIRED PAY DUE AT THE TIME OF HIS DEATH. THERE IS NO EVIDENCE IN THE PRESENT RECORD THAT YOUR DECEASED HUSBAND CHANGED THIS DESIGNATION OF BENEFICIARIES SUBSEQUENT TO JANUARY 3, 1956. LENA BALL PREDECEASED SERGEANT BALL, DYING ON MAY 23, 1961. YOU MARRIED THE DECEDENT ON DECEMBER 14, 1965. IT THEREFORE APPEARS THAT GAVIN ROACH WAS THE SOLE DESIGNATED BENEFICIARY WHEN YOUR HUSBAND DIED ON JUNE 7, 1972. FOR THIS REASON YOUR CLAIM TO THE UNPAID RETIRED PAY AS WIFE OF SERGEANT BALL WAS DENIED BY OUR TRANSPORTATION AND CLAIMS DIVISION ON JULY 19, 1973.

YOU HAVE SUBMITTED A COPY OF YOUR DECEASED HUSBAND'S LAST WILL AND TESTAMENT, DATED MARCH 4, 1966, WHEREBY HE GAVE AND DEVISED TO YOU ABSOLUTELY, IN FEE SIMPLE, AFTER PAYMENT OF HIS JUST DEBTS, ALL OF THE REMAINDER OF HIS PROPERTY AND ESTATE OF EVERY KIND AND CHARACTER, WHEREVER LOCATED. ON THIS BASIS YOU BELIEVE THAT YOU ARE ENTITLED TO THE ARREARS IN RETIRED PAY DUE SERGEANT BALL ON THE DATE OF HIS DEATH, NOTWITHSTANDING HIS DESIGNATION ON AFFC FORM 540-163, ABOVE.

THE SETTLEMENT OF ACCOUNTS OF A DECEASED MEMBER OF THE ARMED FORCES, INCLUDING A RETIRED MEMBER, WHO DIES AFTER DECEMBER 31, 1955, IS GOVERNED BY 10 U.S.C. 2771, WHICH PROVIDES, IN PERTINENT PART, FOR PAYMENT OF THE AMOUNT DUE TO THE PERSON HIGHEST ON THE FOLLOWING LIST LIVING ON THE DATE OF DEATH: (1) BENEFICIARY DESIGNATED BY THE DECEDENT IN WRITING TO RECEIVE SUCH AMOUNT, IF THE DESIGNATION IS RECEIVED BEFORE THE MEMBER'S DEATH, AT THE PLACE NAMED IN PRESCRIBED REGULATIONS. (2) SURVIVING SPOUSE.

THE PROVISIONS OF 10 U.S.C. 2771 ARE MANDATORY AND BINDING UPON OUR OFFICE AND THE UNPAID RETIRED PAY ON THE DATE OF YOUR HUSBAND'S DEATH IS REQUIRED TO BE DISTRIBUTED IN THE ORDER OF PRECEDENCE SET FORTH THEREIN. SINCE IT APPEARS THAT GAVIN ROACH WAS THE SOLE DESIGNATED BENEFICIARY LIVING AT THE TIME OF YOUR HUSBAND'S DEATH, WE ARE REQUIRED TO AUTHORIZE PAYMENT TO HIM. SEE OUR DECISION B-147330, NOVEMBER 1, 1961, COPY ENCLOSED.

AS TO THE EFFECT OF YOUR HUSBAND'S LAST WILL AND TESTAMENT, DEVISING TO YOU THE REMAINDER OF HIS ESTATE AFTER PAYMENT OF HIS DEBTS, THIS DESIGNATION DOES NOT MEET THE STATUTORY REQUIREMENT THAT THE DESIGNATION OF THE BENEFICIARY BE MADE BY THE MEMBER IN WRITING AND BE RECEIVED AT THE PLACE NAMED IN THE PRESCRIBED REGULATIONS BEFORE HIS DEATH. SEE DECISIONS B-149683, SEPTEMBER 5, 1962, AND B-172540, MAY 28, 1971, COPIES ENCLOSED.

ACCORDINGLY, WHILE IT IS UNFORTUNATE THAT SERGEANT BALL DID NOT ATTEMPT TO CHANGE HIS DESIGNATION OF BENEFICIARY AFTER THE DEATH OF HIS FIRST WIFE OR AFTER HIS MARRIAGE TO YOU, WE TRUST YOU WILL UNDERSTAND THAT WE HAVE NO ALTERNATIVE ON THE BASIS OF THE AVAILABLE RECORD BUT TO SUSTAIN THE DISALLOWANCE OF YOUR CLAIM.