B-2286671.2, Jun 7, 1991

B-2286671.2: Jun 7, 1991

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The designee is the only party entitled to them. Regardless of whether or not the designee was the decedent's spouse. Yarbrough is not eligible for other death benefits. Because there is no evidence in the record that the member was a party in a valid common law marriage at the time of his death. Her claim to the death gratuity is allowed. Was found dead on May 11. 1984 from injuries received in a fall from a cliff. report of casualty was issued by the Navy on May 30. Investigation by the Naval Military Personnel Command found that Tamie Yarbrough's previous marriage was not dissolved by a final divorce decree until May 13. Did not recognize such out-of-state common-law marriages until 1987. /2/ Federal law does not permit payment of the death gratuity to someone claiming to be the spouse of a deceased member of the armed forces where there is no recognized marriage in law.

B-2286671.2, Jun 7, 1991

MILITARY PERSONNEL - Pay - Personnel death - Balances - Payees - Designated beneficiaries DIGEST: 1. When a beneficiary has been designated by a deceased armed forces member to receive unpaid salary and allowances, the designee is the only party entitled to them, regardless of whether or not the designee was the decedent's spouse. See 10 U.S.C. Sec. 2771(a). MILITARY PERSONNEL - Pay - Death gratuities - Eligibility - Spouses Common law marriage 2. Death gratuity may be paid to parents of deceased armed forces member rather than common-law spouse where at time of death member and spouse resided in state that did not recognize such marriages.

MS3 Forrest L. Yarbrough, USN (Deceased):

This action responds to Mrs. Ruth Yarbrough's request for payment of a death gratuity, unpaid salary, and allowances claimed as a result of the death of her son MS3 Forrest L. Yarbrough, USN. /1/ Although Mrs. Yarbrough is not eligible for other death benefits, because there is no evidence in the record that the member was a party in a valid common law marriage at the time of his death, her claim to the death gratuity is allowed.

MS3 Yarbrough, a member of the Navy serving on active duty, was found dead on May 11, 1984 from injuries received in a fall from a cliff. report of casualty was issued by the Navy on May 30, 1984.

Ms. Tamie Marie Cazier Yarbrough presented a claim to the Navy in 1984 for payment of the $3,000 death gratuity as MS3 Yarbrough's widow based on a marriage ceremony in California on April 27, 1983. At that time, Tamie Yarbrough believed divorce from her previous marriage had been finalized on April 1, 1983. However, investigation by the Naval Military Personnel Command found that Tamie Yarbrough's previous marriage was not dissolved by a final divorce decree until May 13, 1983, rendering her marriage to MS3 Yarbrough void. On February 8, 1985, the Navy forwarded the claim to our Office to determine whether Tamie Yarbrough qualified for the death gratuity as the member's common law wife.

Although the State of California recognizes common-law marriages consummated in that state, the State of Utah, the member's home of record and last known domicile, did not recognize such out-of-state common-law marriages until 1987. /2/ Federal law does not permit payment of the death gratuity to someone claiming to be the spouse of a deceased member of the armed forces where there is no recognized marriage in law. See Kenneth W. Mitchell (Deceased), B-209076, Aug. 25, 1983.

Between September 1987 and April 1988 we submitted requests to Tamie and her attorney for evidence of domicile outside of the State of Utah. There was no response to these requests. Since Tamie had not submitted evidence substantiating her claim, we closed the file on her case.

Ruth Yarbrough maintains that she and her husband Percy are the parents of the member and the only parties entitled to his death benefits. She claims that Tamie Yarbrough was not the legal spouse of the member and therefore does not have entitlement to any death benefits, pay or allowances.

Under the statute governing distribution of unpaid pay and allowances, the beneficiary designated by the decedent to receive such pay and allowances is the only party entitled to receive them, without regard to consideration of family relationships. See 10 U.S.C. Sec. 2771(a) and Petty Officer, U.S. Coast Guard (Deceased), 55 Comp.Gen. 534 (1975). The record indicates that Tamie Yarbrough was the designated beneficiary and is therefore entitled to MS3 Yarbrough's pay and allowances regardless of her marital status.

Under 10 U.S.C. Sec. 1477, the death gratuity payable when a service member dies is paid to living survivors in the order set forth in subsection (a), with the parents of the member following the surviving spouse in order of precedence. Payment to other survivors in the priority list is authorized if there is no surviving spouse. There is no substantial evidence in the record that MS3 Yarbrough was party to a valid marriage at the time of his death. The evidence presented indicates the continuing presence of Tamie and Forrest up to the time of his death in a state that did not recognize common-law marriages.

We believe that the evidence presented provides a sufficient basis for allowing Ruth's claim to the death gratuity and denying Tamie's. We therefore authorize payment of the death gratuity to Ruth Yarbrough.

/1/ This claim was forwarded to the General Accounting Office by the Commander of the Naval Military Personnel Command for response.

/2/ Layton v. Layton, 777 P.2d 504 (1989).