Claim for Retired Pay

A decision was requested concerning the propriety of making payment to the widow of a retired Air Force officer of retired pay believed due and an annuity under the Survivor Benefit Plan (SBP). The Air Force officer had elected to participate in the SBP. Subsequent to his retirement from the Air Force, he was employed by a private airline as a pilot. He was flying a private airline aircraft over Laos when it was hit by gunfire, caught fire, and crashed. Neither his body nor that of his flight officer was found. Immediately after the crash report was received, the officer was listed as missing and his retired pay account was placed in suspense. A certificate of death was prepared finding that death occurred on the day of the crash, a presumptive date of death which was also established in an Arizona Superior Court order. Based on that order, the widow of the retired officer claimed entitlement to the officer's retired pay until the presumptive date of death and an SBP annuity thereafter. It was asked whether the court action, which established the presumptive date of death, could be used for the purpose of authorizing the payment of military retired pay for the entire suspension period. Retired pay due a retired member of the armed services accrues only during his lifetime. Where the only basis of a statutory presumption of death is a proceeding to which the United States is neither a party, nor is represented in court, the United States is not bound by such a decree and the claimants are free to pursue their claims in the Federal courts. The evidence of the record was sufficiently strong to warrant the determination that the retired officer was dead and that he died at the time of the crash. The accrued but unpaid retired pay due the retired officer through presumptive date of death may be paid and the SBP annuity should be effective the first day after the presumptive date of death and may be paid to the widow if otherwise correct.