B-203178.OM, JUL 7, 1981

B-203178.OM: Jul 7, 1981

Additional Materials:

Contact:

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

 

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

PRECIS-UNAVAILABLE THE COMPTROLLER GENERAL: WE ARE FORWARDING THE CLAIM OF MARGARET G. SINCE THE CLAIM INVOLVES CONTINUING PAYMENTS IT IS SUBMITTED FOR YOUR REVIEW PER B-193021-O.M. ALTHOUGH THE RECORD GIVES NO INDICATION THAT THE CLAIMANT WAS INVOLVED IN THE DEATH OF ARTHUR CODAY. THESE DECISIONS CONSISTENTLY HOLD THAT IT IS AGAINST PUBLIC POLICY TO PERMIT PAYMENT BY THE GOVERNMENT OF ARREARS OF PAY. THE NAVY IS BASING ITS ACTION OF WITHHOLDING PAYMENT ON A LETTER DATED JANUARY 30. 1981 FROM THE DALLAS POLICE WHICH STATES "WE HAVE NO INDICATION AT THIS TIME THAT MS. CODAY WAS PHYSICALLY INVOLVED IN THE INCIDENT.". IT IS THEIR POSITION THAT IN THE ABSENCE OF CLEAR EXONERATION. THE CLAIM IS TOO DOUBTFUL FOR PAYMENT.

B-203178.OM, JUL 7, 1981

PRECIS-UNAVAILABLE

THE COMPTROLLER GENERAL:

WE ARE FORWARDING THE CLAIM OF MARGARET G. CODAY FOR SBP ANNUITY AND UNPAID COMPENSATION DUE HER HUSBAND, CAPT. ARTHUR CODAY, AT THE TIME OF HIS DEATH. SINCE THE CLAIM INVOLVES CONTINUING PAYMENTS IT IS SUBMITTED FOR YOUR REVIEW PER B-193021-O.M., MAY 14, 1979.

ALTHOUGH THE RECORD GIVES NO INDICATION THAT THE CLAIMANT WAS INVOLVED IN THE DEATH OF ARTHUR CODAY, THE NAVY HAS WITHHELD PAYMENT OF THE CLAIM ON THE BASIS OF 34 COMP.GEN. 103 AND SUBSEQUENT SIMILAR DECISIONS. (SEE 55 COMP.GEN. 1033; B-191953 JULY 3, 1978.) THESE DECISIONS CONSISTENTLY HOLD THAT IT IS AGAINST PUBLIC POLICY TO PERMIT PAYMENT BY THE GOVERNMENT OF ARREARS OF PAY, COMPENSATION OR OTHER BENEFITS TO AN HEIR OR BENEFICIARY WHO FELONIOUSLY KILLS THE PERSON UPON WHOSE DEATH SUCH PAYMENTS BECOME DUE. THE NAVY IS BASING ITS ACTION OF WITHHOLDING PAYMENT ON A LETTER DATED JANUARY 30, 1981 FROM THE DALLAS POLICE WHICH STATES "WE HAVE NO INDICATION AT THIS TIME THAT MS. CODAY WAS PHYSICALLY INVOLVED IN THE INCIDENT." IT IS THEIR POSITION THAT IN THE ABSENCE OF CLEAR EXONERATION, THE CLAIM IS TOO DOUBTFUL FOR PAYMENT.

WE NOTE THAT B-193021-O.M., MAY 14, 1979, STATES THAT FAILURE TO PROSECUTE IS SUFFICIENT EVIDENCE TO ESTABLISH A LACK OF FELONIOUS INTENT. HOWEVER, THE QUESTION ARISES CONCERNING AN ACCEPTABLE TIME PERIOD FOR DETERMINING THAT CHARGES WILL OR WILL NOT BE BROUGHT AGAINST A CLAIMANT.

ACCORDINGLY, SINCE THE CLAIM INVOLVES CONTINUING PAYMENTS (SBP ANNUITY) AND SINCE THERE IS SOME QUESTION CONCERNING THE INVOLVEMENT OF THE CLAIMANT IN THE DEATH OF THE SERVICE MEMBER, THE MATTER IS FORWARDED FOR YOUR CONSIDERATION AND INSTRUCTIONS.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858)

RETURNED. THE RECORD INDICATES THAT ON FEBRUARY 24, 1980, CAPTAIN CODAY WAS SEEN LEAVING A BAR IN DALLAS, TEXAS, AT 1 A.M., WITH AN UNIDENTIFIED MAN. HE WAS FOUND AT 3 A.M. IN HIS CAR WITH A GUNSHOT WOUND IN HIS UPPER LEFT CHEST. MRS. CODAY HAS STATED THAT AT THAT TIME SHE WAS LIVING IN SEATTLE, WASHINGTON. THE DALLAS POLICE DEPARTMENT HAS NOW FURNISHED A STATEMENT TO THE EFFECT THAT MRS. CODAY HAS NOT BEEN IMPLICATED IN THE CASE. SEE LETTER OF JUNE 5, 1981, DEPUTY CHIEF OF POLICE, CITY OF DALLAS. HOWEVER, EVEN BEFORE MRS. CODAY HAD BEEN OFFICIALLY CLEARED OF SUSPICION IN THE DEATH OF HER HUSBAND, THE NAVY, UNDER AVAILABLE FACTS, SHOULD NOT HAVE DENIED HER BENEFITS.

AS THE NAVY FINANCE CENTER HAS CORRECTLY NOTED, IT IS THE LONG STANDING POLICY OF THIS OFFICE NOT TO PAY DEATH GRATUITY, PAY ARREARAGES, OR SURVIVING BENEFICIARY ANNUITY TO ANY PERSON WHO HELPED CAUSE THE DEATH OF THE INDIVIDUAL UPON WHOSE DEATH THE SUM IN QUESTION HAS BECOME PAYABLE. 34 COMP.GEN. 103 (1954). AND THIS IS TRUE EVEN THOUGH THE HEIR OR BENEFICIARY MAY NOT HAVE BEEN FOUND GUILTY IN A CRIMINAL PROCEEDING FOR THE HOMICIDE IF THE RECORD NONETHELESS INDICATES THAT THE CLAIMANT ACTED WITH FELONIOUS INTENT. 55 COMP.GEN. 1033 (1976). THUS, WE HAVE ESTABLISHED THE GENERAL RULE THAT WHERE THE CLAIMANT WAS INVOLVED IN THE DEATH OF THE MEMBER, WE WOULD PERMIT PAYMENT IF FELONIOUS INTENT WERE CLEARLY NEGATED BY AN ACQUITTAL, THE FAILURE OF A GRAND JURY TO INDICT, OR THE FAILURE TO PROSECUTE. SEE B-193021-O.M., MAY 14, 1979.

THE POLICY AGAINST PAYMENT OF SURVIVOR BENEFITS WHEN THERE IS INSUFFICIENT PROOF OF THE ABSENCE OF FELONIOUS INTENT HAS ONLY BEEN APPLIED IN CASES WHERE THE RECORD FIRST ESTABLISHED SOME COMPLICITY OF THE CLAIMANT IN THE DEATH OF THE MEMBER OR EMPLOYEE. SEE, E.G., B-195217-O.M., ET AL., SEPTEMBER 19, 1979. IN THIS CASE, THE RECORD GIVES NO INDICATION OF ANY INVOLVEMENT OR REASONABLE SUSPICION OF INVOLVEMENT BY MRS. CODAY IN THE DEATH OF HER HUSBAND. THE DALLAS POLICE DEPARTMENT'S ORIGINAL REFUSAL TO RULE OUT ANYONE AS A SUSPECT, INCLUDING MRS. CODAY, WAS NOT SUFFICIENT INDICATION OF HER CULPABILITY TO BE USED AS A BASIS FOR DENYING HER CLAIM.

ACCORDINGLY, SETTLEMENT SHOULD ISSUE IN THE CLAIMANT'S FAVOR IF OTHERWISE CORRECT.

WITH REGARD TO CLAIMS INVOLVING CONTINUING PAYMENTS, WE INVITE YOUR ATTENTION TO B-199113-O.M., FEBRUARY 2, 1981.