B-219218, AUG 20, 1985, O/M

B-219218: Aug 20, 1985

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PAY - RETIRED - SURVIVOR BENEFIT PLAN - BENEFICIARY IMPLICATED IN DEATH OF DECEDENT DIGEST: WHERE CLAIMANT WAS A SUSPECT IN THE DEATH OF HER SPOUSE. NO CHARGES WERE FILED AFTER 4 YEARS AND THE CLAIMANT IS NOW DECEASED. CLAIMS FOR RETIRED PAY AND SURVIVOR BENEFIT PLAN ANNUITY DUE MAY BE PAID SINCE THERE IS NO CONCLUSIVE EVIDENCE LINKING THE CLAIMANT DIRECTLY OR INDIRECTLY WITH THE DEATH OF THE MEMBER. A MERE INFERENCE AS TO THE CLAIMANT'S POSSIBLE INVOLVEMENT IS NOT SUFFICIENT TO ESTABLISH ANY FELONIOUS INTENT INCIDENT TO THE MEMBER'S DEATH. FILE Z-2844852 IS RETURNED. WAS MURDERED ON JANUARY 3. WAS THE ONLY SUSPECT IN THE CASE. SHE WAS NEVER ACCUSED. THE BASIC ISSUE PRESENTED IS WHETHER MRS.

B-219218, AUG 20, 1985, O/M

PAY - RETIRED - SURVIVOR BENEFIT PLAN - BENEFICIARY IMPLICATED IN DEATH OF DECEDENT DIGEST: WHERE CLAIMANT WAS A SUSPECT IN THE DEATH OF HER SPOUSE, A RETIRED NAVY CAPTAIN, BUT NO CHARGES WERE FILED AFTER 4 YEARS AND THE CLAIMANT IS NOW DECEASED, CLAIMS FOR RETIRED PAY AND SURVIVOR BENEFIT PLAN ANNUITY DUE MAY BE PAID SINCE THERE IS NO CONCLUSIVE EVIDENCE LINKING THE CLAIMANT DIRECTLY OR INDIRECTLY WITH THE DEATH OF THE MEMBER. A MERE INFERENCE AS TO THE CLAIMANT'S POSSIBLE INVOLVEMENT IS NOT SUFFICIENT TO ESTABLISH ANY FELONIOUS INTENT INCIDENT TO THE MEMBER'S DEATH.

HENRY A. COLLETT, JR. - B-219218-O.M.

FILE Z-2844852 IS RETURNED. THE RECORD IN THIS CASE INDICATES THAT CAPTAIN HENRY A. COLLETT, JR., USN (RETIRED), WAS MURDERED ON JANUARY 3, 1981, IN THE DENTAL OFFICE HE MAINTAINED IN HIS HOME. HIS WIFE, VIRGINIA H. COLLETT, WAS THE ONLY SUSPECT IN THE CASE. ALTHOUGH SHE SAID SHE HAD BEEN ACROSS THE STREET VISITING A NEIGHBOR AT THE TIME OF THE CRIME SHE REMAINED UNDER INVESTIGATION FOR OVER 4 YEARS. HOWEVER, SHE WAS NEVER ACCUSED, INDICTED, OR CHARGED WITH ANY OFFENSE ARISING OUT OF THE DEATH OF HER HUSBAND. DUE TO THE SUSPICION OF MRS. COLLETT, THE NAVY HAD NOT PAID HER CLAIMS FOR UNPAID RETIRED PAY AND SURVIVOR BENEFIT PLAN (SBP) ANNUITY DUE TO HER AS A WIDOW AT THE TIME OF HER DEATH ON JUNE 4, 1985. THEREFORE, THE BASIC ISSUE PRESENTED IS WHETHER MRS. COLLETT WAS ENTITLED TO UNPAID RETIRED PAY AND TO AN SBP ANNUITY FOR THE PERIOD FROM JANUARY 4, 1981, TO MAY 31, 1985. SEE 10 U.S.C. SEC. 1450 (1982). IF SHE WAS ENTITLED TO THOSE PAYMENTS THEY SHOULD BE PAID TO THOSE ENTITLED TO THOSE AMOUNTS AFTER HER DEATH.

IT IS A GENERAL PRINCIPLE OF LAW THAT A PERSON MAY NOT PROFIT FROM HIS OR HER OWN WRONGFUL ACTS. 34 COMP.GEN. 103 (1954). THUS, IN CONSIDERING CLAIMS FOR UNPAID RETIRED PAY OR AN SBP ANNUITY BY AN HEIR OR BENEFICIARY WHO IS INVOLVED IN THE DEATH OF THE MEMBER, THIS OFFICE HAS EXAMINED THE RECORD TO DETERMINE WHETHER THERE IS EVIDENCE OF FELONIOUS INTENT. B-215304, JULY 23, 1984. THEREFORE, IT IS NECESSARY TO EXAMINE THE RECORD TO DETERMINE WHETHER THE EVIDENCE OF FELONIOUS INTENT IN THIS PARTICULAR CASE IS SO TENUOUS THAT THE CLAIMANT OR HER ESTATE WOULD PROBABLY PREVAIL IN LITIGATION INITIATED FOR THE PURPOSE OF ESTABLISHING ENTITLEMENT TO THE BENEFITS. SEE B-163736-O.M., APRIL 3, 1968.

IN THIS CASE, THERE IS NO CONCLUSIVE EVIDENCE LINKING THE CLAIMANT DIRECTLY OR INDIRECTLY WITH THE DEATH OF THE MEMBER. IN THE YEARS AFTER THE DEATH OF CAPTAIN COLLETT, NO CHARGES WERE BROUGHT AGAINST THE CLAIMANT. THIS CASE IS DISTINGUISHED FROM OTHER CASES WHERE PAYMENT HAS BEEN WITHHELD, BECAUSE HERE THE CLAIMANT NEVER ADMITTED INVOLVEMENT IN THE DEATH OF THE MEMBER NOR WAS HER INVOLVEMENT PROVEN OTHERWISE. MERE INFERENCE OF POSSIBLE INVOLVEMENT IS NOT ENOUGH TO PROVIDE A BASE FOR THE DISALLOWANCE OF A CLAIM. SEE B-191042-O.M., FEBRUARY 9, 1978. AS SUCH, MRS. COLLETT WAS ENTITLED TO THE UNPAID RETIRED PAY DUE AND TO SBP FOR THE PERIOD FROM JANUARY 4, 1981, TO MAY 31, 1985.

ACCORDINGLY, THE NAVY FINANCE CENTER SHOULD BE ADVISED THAT THERE IS NO OBJECTION TO PAYMENT OF THE AMOUNTS DETERMINED TO BE DUE THE ESTATE OF MRS. COLLETT UPON RECEIPT OF APPROPRIATE CLAIMS FROM HEIRS OR BENEFICIARIES ENTITLED TO THE AMOUNTS DUE UNDER APPLICABLE PROVISIONS OF LAW.