B-179858, AUG 21, 1974

B-179858: Aug 21, 1974

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHO WAS MISSING IN ACTION IN JANUARY 1968. WAS DETERMINED IN MAY 1973 TO HAVE DIED IN JANUARY 1968. THE MEMBER'S PARENTS ARE NOT ENTITLED TO THE SIX MONTHS' DEATH GRATUITY UNDER 10 U.S.C. 1447(A) BECAUSE THE MEMBER WAS SURVIVED BY A SPOUSE. 2. WHO WAS MISSING IN ACTION IN JANUARY 1968. WAS DETERMINED IN MAY 1973. TO HAVE DIED IN JANUARY 1968. THE MEMBER'S PARENTS ARE NOT ENTITLED TO THIS AMOUNT UNDER 10 U.S.C. 2771 SINCE A DESIGNATED BENEFICIARY IS ALWAYS THE PREFERRED RECIPIENT. THAT DESIGNATION BEING THE HIGHEST ON THE LIST OF ELIGIBLE BENEFICIARIES. 3.THE ARGUMENT RAISED BY PARENTS OF A DECEASED MEMBER WHO ARE CLAIMING THE DEATH GRATUITY AND UNPAID PAY AND ALLOWANCES DUE IN THE ACCOUNT OF THEIR LATE SON THAT GENERAL ACCOUNTING OFFICE HAS NO AUTHORITY TO RENDER A DECISION AS TO WHO IS ENTITLED TO SUCH AMOUNTS IS WITHOUT MERIT SINCE 31 U.S.C. 71 PROVIDES THAT ALL CLAIMS BY OR AGAINST THE UNITED STATES SHALL BE ADJUSTED AND SETTLED IN THE GAO AND 31 U.S.C. 74 SPECIFICALLY AUTHORIZES DISBURSING OFFICERS TO REQUEST AND THE COMPTROLLER GENERAL TO RENDER DECISIONS UPON QUESTIONS INVOLVING PAYMENTS WHICH DECISIONS ARE FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH.

B-179858, AUG 21, 1974

1. WHEN RECORD SHOWS THAT MARRIED SERVICE MEMBER, WHO WAS MISSING IN ACTION IN JANUARY 1968, WAS DETERMINED IN MAY 1973 TO HAVE DIED IN JANUARY 1968, AND THAT WITHOUT OBTAINING A DIVORCE HIS SPOUSE WENT THROUGH A SECOND MARRIAGE CEREMONY WITH ANOTHER MAN IN JUNE 1970, THE MEMBER'S PARENTS ARE NOT ENTITLED TO THE SIX MONTHS' DEATH GRATUITY UNDER 10 U.S.C. 1447(A) BECAUSE THE MEMBER WAS SURVIVED BY A SPOUSE. 2. WHEN RECORD SHOWS THAT SERVICE MEMBER, WHO WAS MISSING IN ACTION IN JANUARY 1968, WAS DETERMINED IN MAY 1973, TO HAVE DIED IN JANUARY 1968, AND THAT HE SPECIFICALLY DESIGNATED HIS SPOUSE AS BENEFICIARY TO RECEIVE 100 PERCENT OF THE DECEASED MEMBER'S UNPAID PAY AND ALLOWANCES, THE MEMBER'S PARENTS ARE NOT ENTITLED TO THIS AMOUNT UNDER 10 U.S.C. 2771 SINCE A DESIGNATED BENEFICIARY IS ALWAYS THE PREFERRED RECIPIENT, THAT DESIGNATION BEING THE HIGHEST ON THE LIST OF ELIGIBLE BENEFICIARIES. 3.THE ARGUMENT RAISED BY PARENTS OF A DECEASED MEMBER WHO ARE CLAIMING THE DEATH GRATUITY AND UNPAID PAY AND ALLOWANCES DUE IN THE ACCOUNT OF THEIR LATE SON THAT GENERAL ACCOUNTING OFFICE HAS NO AUTHORITY TO RENDER A DECISION AS TO WHO IS ENTITLED TO SUCH AMOUNTS IS WITHOUT MERIT SINCE 31 U.S.C. 71 PROVIDES THAT ALL CLAIMS BY OR AGAINST THE UNITED STATES SHALL BE ADJUSTED AND SETTLED IN THE GAO AND 31 U.S.C. 74 SPECIFICALLY AUTHORIZES DISBURSING OFFICERS TO REQUEST AND THE COMPTROLLER GENERAL TO RENDER DECISIONS UPON QUESTIONS INVOLVING PAYMENTS WHICH DECISIONS ARE FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH.

CLAIM FOR DEATH GRATUITY AND UNPAID PAY AND ALLOWANCES - SSG RICHARD R. REHE, DECEASED:

THIS ACTION IS IN RESPONSE TO LETTERS DATED JUNE 5 AND JULY 11, 1974, WITH ENCLOSURES, FROM MR. WILLIAM K. REHE, REQUESTING RECONSIDERATION OF OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT DATED APRIL 5, 1974, WHICH DISALLOWED HIS CLAIM AND THAT OF MRS. REHE, AS PARENTS, FOR THE SIX MONTHS' DEATH GRATUITY AND UNPAID PAY AND ALLOWANCES DUE IN THE CASE OF THEIR LATE SON, STAFF SERGEANT RICHARD R. REHE, USA, SSAN XXX-XX-XXXX, WHO WAS PRESUMED TO HAVE DIED ON JANUARY 10, 1968, FOR THE REASON THAT UNDER THE LAWS GOVERNING PAYMENT OF THE MONIES DUE THEY WERE NOT THE APPROPRIATE DISTRIBUTEES.

MR. AND MRS. REHE TAKE THE POSITION THAT THEY AND NO OTHER PERSON OR PERSONS ARE ENTITLED TO THESE MONIES, CONTENDING THAT BARBARA JO REHE HOUSER DOES NOT QUALIFY AS THE SURVIVING SPOUSE OF SERGEANT REHE AS INDICATED BY THE FOLLOWING LANGUAGE FROM THE LETTER DATED JUNE 5, 1974:

"THE FACT THAT BARBARA JO REHE TOOK UPON HERSELF TO MAKE THE DECISION TO REMARRY NOT BEING SURE AT THAT DATE THAT OUR SON WAS DEAD OR ALIVE ESTABLISHES BEYOND A REASONABLE DOUBT THAT SHE *** SEPARATED, DECLARED, AND DISCLAIMED ANY CLAIM AGAINST THE ESTATE OF MY SON."

ALSO IN THAT SAME LETTER, MR. REHE STATES THAT THE GENERAL ACCOUNTING OFFICE "IS NOT A BODY WHICH CAN RENDER A LEGAL POSITION" AND THAT "MATTERS OF THIS NATURE ARE RESTRICTED TO A CIVIL COURT OR MILITARY COURT."

WITH RESPECT TO THE PAYMENT OF A DEATH GRATUITY AND UNPAID PAY AND ALLOWANCES WHICH BECOME DUE INCIDENT TO THE DEATH OF A MEMBER OF THE ARMED SERVICES, SECTION 71 OF TITLE 31, U.S.C. SETS FORTH THE JURISDICTION OF THIS OFFICE. THAT SECTION PROVIDES GENERALLY THAT ALL CLAIMS BY OR AGAINST THE UNITED STATES SHALL BE ADJUSTED AND SETTLED IN THE GENERAL ACCOUNTING OFFICE. UNDER THE PROVISION OF SECTION 74 OF THE SAME TITLE, DISBURSING OFFICERS OR THE HEAD OF ANY EXECUTIVE DEPARTMENT MAY APPLY FOR AND THE COMPTROLLER GENERAL SHALL RENDER HIS DECISION UPON ANY QUESTION INVOLVING A PAYMENT TO BE MADE BY THEM OR UNDER THEM, WHICH DECISION, WHEN RENDERED SHALL GOVERN THE GENERAL ACCOUNTING OFFICE IN PASSING UPON THE ACCOUNT CONTAINING SAID DISBURSEMENT. FURTHER THAT SUCH DECISION SHALL BE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT.

AS TO THE MATTER OF THE DEATH GRATUITY AND UNPAID PAY AND ALLOWANCES DUE IN THE PRESENT CASE, THE MATTER WAS PROPERLY SUBMITTED FOR ADJUDICATION TO THE TRANSPORTATION AND CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE ON AUGUST 29, 1973, BY A DISBURSING OFFICER AT THE UNITED STATES ARMY FINANCE SUPPORT AGENCY WHO WAS CHARGED WITH THE RESPONSIBILITY FOR MAKING THE PROPER PAYMENT. PURSUANT TO THE BEFORE MENTIONED STATUTORY AUTHORITY SETTLEMENT INSTRUCTIONS WERE APPROPRIATELY ISSUED TO THE DISBURSING OFFICER IN QUESTION AND PAYMENT MADE BY THE DISBURSING OFFICER IN RELIANCE WITH THOSE INSTRUCTIONS.

THE FILE INDICATES THAT THE DECEASED MEMBER MARRIED BARBARA JO ABBOTT ON SEPTEMBER 30, 1966. ON FEBRUARY 7, 1967, SERGEANT REHE ENTERED ACTIVE DUTY IN THE UNITED STATES ARMY. ON THE RECORD OF EMERGENCY DATA FORM (DA FORM 41) EXECUTED BY THE MEMBER ON JULY 21, 1967, SERGEANT REHE DESIGNATED BARBARA JO REHE TO RECEIVE 100 PERCENT OF HIS UNPAID PAY AND ALLOWANCES AND IN THE PLACE RESERVED ON THAT FORM TO DESIGNATE THE BENEFICIARY OR BENEFICIARIES FOR THE SIX MONTHS' DEATH GRATUITY PAY IF NO SURVIVING SPOUSE OR CHILD HE INDICATED "NONE." ON JANUARY 9, 1968, SERGEANT REHE WAS REPORTED CAPTURED AND ON MAY 24, 1973, THE DEPARTMENT OF THE ARMY RECEIVED EVIDENCE THAT SERGEANT REHE HAD DIED ON JANUARY 10, 1968.

ALTHOUGH IT APPEARS THAT BARBARA JO REHE NEVER OBTAINED A DIVORCE FROM SERGEANT REHE, SHE WENT THROUGH A CEREMONIAL MARRIAGE WITH MR. ROBERT LEROY HOUSER ON JUNE 5, 1970. BY LETTER DATED JULY 31, 1970, BARBARA JO REHE HOUSER RETURNED SEVERAL MILITARY CHECKS AND ALLOTMENT CHECKS TO THE UNITED STATES ARMY FINANCE SUPPORT AGENCY AND REQUESTED THAT THEY HOLD THE CHECKS AND ALL FUTURE CHECKS IN TRUST UNTIL FURTHER NOTICE FROM HER.

SECTION 1475 OF TITLE 10, U.S.C. PROVIDES FOR A DEATH GRATUITY TO BE PAID TO OR FOR THE SURVIVOR PRESCRIBED BY SECTION 1477 UPON RECEIPT OF OFFICIAL NOTIFICATION OF THE DEATH OF A MEMBER OF THE ARMED FORCES WHO DIES WHILE SERVING ON ACTIVE DUTY. SECTION 1477 DIRECTS PAYMENT TO BE MADE TO OR FOR THE LIVING SURVIVOR HIGHEST ON THE FOLLOWING LIST: (1) SURVIVING SPOUSE; (2) CHILDREN, IN EQUAL SHARES; (3) CERTAIN PERSONS IF DESIGNATED BY THE MEMBER; (4) PARENTS IN EQUAL SHARES.

IT IS OUR VIEW THAT IN A CASE WHERE A SPOUSE REMARRIES PRIOR TO THE PRESUMPTIVE DATE OF THE MEMBER'S DEATH THE REMARRIAGE ITSELF DOES NOT NECESSARILY RAISE A PRESUMPTION THAT THE MARRIAGE TO THE DECEASED MEMBER WAS TERMINATED BY A DIVORCE. IF THE MISSING PERSON WAS IN FACT DEAD AT THE TIME OF THE SPOUSE'S SUBSEQUENT MARRIAGE, THEN CLEARLY SUCH SPOUSE IS THE SURVIVING SPOUSE; IF THE MISSING PERSON WAS NOT DEAD AT THE TIME OF THE SPOUSE'S SUBSEQUENT MARRIAGE, THEN ONLY THE VALIDITY OF THE SECOND MARRIAGE WOULD BE AFFECTED THEREBY.

SINCE THE RECORD INDICATES THAT AT THE TIME OF BARBARA JOE REHE'S MARRIAGE IN 1970, SERGEANT REHE WAS IN FACT DEAD AND THERE IS NOTHING IN THE RECORD TO SHOW THAT THE MARRIAGE TO THE DECEASED MEMBER HAD BEEN TERMINATED BY DIVORCE PRIOR TO THAT DATE, IT IS OUR VIEW THAT SHE QUALIFIES AS THE SURVIVING SPOUSE AND IS ENTITLED TO THE DEATH GRATUITY.

WITH REGARD TO DISTRIBUTION OF THE UNPAID PAY AND ALLOWANCES DUE THE MEMBER ON THE DATE OF THE OFFICIAL DETERMINATION OF DEATH, SUBSECTION 2771(A) OF TITLE 10, U.S.C. PROVIDES IN PERTINENT PART THAT IN THE FINAL SETTLEMENT OF ACCOUNTS OF A DECEASED MEMBER 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 THE MEMBER'S DEATH:

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

"(2) SURVIVING SPOUSE.

"(4) FATHER AND MOTHER IN EQUAL PARTS ***."

UNDER THE LANGUAGE OF THE ABOVE-QUOTED PROVISION, A MEMBER IS PERMITTED TO DESIGNATE THE PERSON OR PERSONS TO RECEIVE THE PAY AND ALLOWANCES DUE HIM AT THE DATE OF DEATH, WITHOUT REGARD TO A CONSIDERATION OF FAMILY OR DEPENDENCY RELATIONSHIPS. INASMUCH AS THE PREFERRED PERSON ENTITLED TO THE AMOUNT DUE IN A DECEASED SERVICEMAN'S PAY AND ALLOWANCE ACCOUNT IS THE BENEFICIARY DESIGNATED BY HIM, PAYMENT OF SUCH AMOUNT TO ANY PERSON OTHER THAN THE PERSON IDENTIFIED AS THE DESIGNATED BENEFICIARY IS NOT AUTHORIZED. SEE B-177572, APRIL 26, 1973.

IN THE PRESENT CASE, SINCE SERGEANT REHE SPECIFICALLY DESIGNATED BARBARA JO REHE AS BENEFICIARY TO RECEIVE ALL OF THE UNPAID PAY AND ALLOWANCES DUE HIM AT HIS DEATH, IT IS OUR VIEW THAT SHE IS ENTITLED TO RECEIVE THOSE MONIES.

ACCORDINGLY, THE ACTION TAKEN BY OUR TRANSPORTATION AND CLAIMS DIVISION IS SUSTAINED.