[Protest of Army Contract Award for Computer Equipment Maintenance]

A-45529, NOVEMBER 30, 1932, 12 COMP. GEN. 458

VETERANS' ADMINISTRATION - ADJUSTED COMPENSATION - DESIGNATION OF BENEFICIARY A DOCUMENT IN THE FORM AND MANNER PRESCRIBED BY THE WORLD WAR ADJUSTED COMPENSATION ACT, AS AMENDED, AND REGULATIONS PRESCRIBED BY THE VETERANS' ADMINISTRATION PURSUANT THERETO, WHICH CHANGED THE BENEFICIARY OF AN ADJUSTED-SERVICE CERTIFICATE DESIGNATED IN A PREVIOUSLY EXECUTED WILL, SHOULD BE CONSIDERED A PART OF AND APPENDED TO THE PREVIOUSLY EXECUTED WILL, EFFECTIVE FROM THE DATE OF THE DEATH OF THE VETERAN IN THE SAME MANNER AS THE WILL IS EFFECTIVE, IN SO FAR AS CONCERNS PAYMENT BY THE UNITED STATES OF THE VALUE OF A VETERAN'S ADJUSTED-SERVICE CERTIFICATE.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, NOVEMBER 30, 1932:

THERE HAS BEEN SUBMITTED TO THIS OFFICE FOR PREAUDIT THE WORLD WAR ADJUSTED-COMPENSATION CASE OF ALEX F. RABIDEAUX, A-1,565,347, XC 1,195,718, INVOLVING THE AWARD ON THE VETERAN'S ADJUSTED-SERVICE CERTIFICATE IN THE AMOUNT OF $1,581 TO THE ADMINISTRATOR OF THE ESTATE OF ROSE RABIDEAUX COVEO, THE BENEFICIARY DESIGNATED BY THE VETERAN IN HIS LAST WILL AND TESTAMENT. IN THE AUDIT OF THE CASE, THE QUESTION HAS ARISEN WHETHER A BENEFICIARY NAMED BY A VETERAN IN HIS WILL TAKES PRECEDENCE OVER THE BENEFICIARY NAMED BY HIM SUBSEQUENT TO THE DATE OF EXECUTION OF THE WILL.

THE VETERAN FILED AN APPLICATION FOR ADJUSTED COMPENSATION JULY 27, 1924, AND DESIGNATED THEREIN HIS DAUGHTER, MISS GENEVIEVE AGNES RABIDEAUX, AS BENEFICIARY OF HIS ADJUSTED-SERVICE CERTIFICATE. ON MAY 16, 1931, HE EXECUTED A WILL, THE PERTINENT PROVISIONS OF WHICH ARE AS FOLLOWS:

I LEAVE MRS. ROSE RABIDEAUX COVEO, MY DEAR BELOVED MOTHER, BENEFICIARY OF MY GOVERNMENT COMPENSATION INSURANCE, AND ALL OTHER PROPERTY, I MAY HAVE OR BECOME HEIR TO.

ON MAY 22, 1931, A DATE SUBSEQUENT TO THE DATE OF EXECUTION OF THE WILL, SUPRA, THE VETERAN EXECUTED A FORM 6912 (CHANGE OF BENEFICIARY OF ADJUSTED SERVICE CERTIFICATE) WHEREIN HE NAMED HIS MOTHER, ROSE COVEO, AND HIS DAUGHTER, GENEVIEVE RABIDEAUX, AS COBENEFICIARIES OF HIS ADJUSTED SERVICE CERTIFICATE, EACH TO RECEIVE ONE-HALF OF THE PROCEEDS THEREOF. THE FORM APPEARS TO HAVE BEEN MAILED ON MAY 23, 1931, AND WAS DULY APPROVED AS A CHANGE OF BENEFICIARY ON JULY 29, 1931, AND STILL REMAINS IN THE FILE AS AN APPROVED CHANGE OF BENEFICIARY. THE VETERAN DIED ON MAY 29, 1931. HIS WILL WAS THEREAFTER ADMITTED TO PROBATE, AND WAS ADMINISTRATIVELY APPROVED ON MAY 16, 1932, AS A CHANGE OF BENEFICIARY IN FAVOR OF THE VETERAN'S MOTHER, UNDER R-3716, REGULATIONS AND PROCEDURE, VETERANS' ADMINISTRATION.

AS THE VETERAN'S MOTHER DIED ON NOVEMBER 23, 1931, PRIOR TO COLLECTING THE PROCEEDS OF THE CERTIFICATE, AN AWARD FOR THE FULL AMOUNT OF THE ADJUSTED SERVICE CERTIFICATE WAS ADMINISTRATIVELY APPROVED IN FAVOR OF THE ADMINISTRATOR OF HER ESTATE, AND SUBMITTED TO THIS OFFICE FOR PREAUDIT. IN THE AUDIT, IT WAS FELT THAT THE VETERANS' ADMINISTRATION HAD NOT GIVEN DUE CONSIDERATION TO THE CHANGE OF BENEFICIARY REQUESTED BY THE VETERAN SUBSEQUENT TO THE TIME HE EXECUTED HIS WILL, IN VIEW OF WHICH THE CASE WAS RETURNED TO THE VETERANS' ADMINISTRATION BY LETTER DATED SEPTEMBER 30, 1932, WHEREIN, AFTER PRESENTING THE FACTS, IT WAS STATED AS FOLLOWS:

* * * INASMUCH AS THE FORM 6912 WAS EXECUTED AFTER THE WILL AND WAS DULY MAILED TO THE VETERANS' ADMINISTRATION DURING THE VETERAN'S LIFETIME IT WOULD APPEAR THAT IT IS THE LAST VALID REQUEST OF THE VETERAN FOR A CHANGE OF BENEFICIARY AND WOULD CONTROL THE DISPOSITION OF HIS ADJUSTED-SERVICE CERTIFICATE. TO HOLD THAT THE BENEFICIARY NAMED IN THE WILL IS THE PROPER BENEFICIARY WOULD BE TO DEFEAT THE VETERAN'S LAST EXPRESSED WISH IN THE MATTER, AND WOULD BE TANTAMOUNT TO HOLDING THAT ONCE A BENEFICIARY IS NAMED IN A WILL, THE VETERAN HAS NO FURTHER RIGHT TO CHANGE THE BENEFICIARY OF HIS CERTIFICATE UNDER SECTION 501 OF THE WORLD WAR ADJUSTED COMPENSATION ACT, AND R-3716 (A), REGULATIONS AND PROCEDURE, VETERANS' ADMINISTRATION, ISSUED PURSUANT THERETO.

SINCE NEITHER A DESIGNATION BY WILL NOR A DESIGNATION BY FORMAL REQUEST UNDER R-3716 (A), SUPRA, BECOMES ABSOLUTE UNTIL THE VETERAN'S DEATH IT WOULD APPEAR THAT THE DESIGNATION MADE IN THE LAST ORDER OF TIME SHOULD BE RECOGNIZED AS THE FINAL DESIGNATION. THE CASE IS ACCORDINGLY RETURNED FOR YOUR FURTHER CONSIDERATION IN THE PREMISES.

THE CASE HAS BEEN RESUBMITTED BY THE VETERANS' ADMINISTRATION FOR FURTHER CONSIDERATION, THE ADMINISTRATIVELY APPROVED AWARD IN FAVOR OF THE ESTATE OF THE MOTHER OF THE VETERAN HAVING BEEN SUSTAINED ON THE BASIS OF A DECISION OF THE SOLICITOR, VETERANS' ADMINISTRATION, IN THE CASE OF ONE HARRY BLUMEN, XC-1055600, HOLDING THAT A CHANGE OF BENEFICIARY BY WILL IS TO BE REGARDED AS EFFECTIVE FROM THE DATE OF THE VETERAN'S DEATH, AND THAT ALTHOUGH THE WILL WAS EXECUTED PRIOR TO THE TIME THAT THE FORMAL REQUEST WAS MADE TO THE VETERANS' ADMINISTRATION FOR A CHANGE OF BENEFICIARY, NEVERTHELESS, THE DESIGNATION MADE IN THE WILL PREVAILS.

THE RIGHT OF A VETERAN TO CHANGE THE BENEFICIARY OF HIS ADJUSTED SERVICE CERTIFICATE IS CONTAINED IN THE FOLLOWING PROVISIONS OF THE WORLD WAR ADJUSTED COMPENSATION ACT, MAY 19, 1924, 43 STAT. 126, AS AMENDED BY THE ACT OF MAY 29, 1928, 45 STAT. 949:

SECTION 501. * * * THE VETERAN SHALL NAME THE BENEFICIARY OF THE CERTIFICATE AND MAY FROM TIME TO TIME, WITH THE APPROVAL OF THE DIRECTOR, CHANGE SUCH BENEFICIARY. * * *

SECTION 508. NOTWITHSTANDING ANY OTHER PROVISION OF THIS ACT A VETERAN MAY, UNDER REGULATIONS PRESCRIBED BY THE DIRECTOR, NAME MORE THAN ONE BENEFICIARY, AND MAY FROM TIME TO TIME, WITH THE APPROVAL OF THE DIRECTOR, CHANGE SUCH BENEFICIARIES. IF THE DIRECTOR IS UNABLE TO ASCERTAIN THE BENEFICIARY NAMED BY THE VETERAN, PAYMENT SHALL BE MADE TO THE ESTATE OF THE VETERAN.

IN ADDITION TO THE AUTHORITY CONTAINED IN SECTION 508, SUPRA, TO ISSUE REGULATIONS REGARDING BENEFICIARIES UNDER ADJUSTED SERVICE CERTIFICATES, SECTION 306 OF THE ORIGINAL ACT PROVIDES IN GENERAL TERMS, AS FOLLOWS:

SECTION 306. ANY OFFICER CHARGED WITH ANY FUNCTION UNDER THIS ACT, SHALL MAKE SUCH REGULATIONS, NOT INCONSISTENT WITH THIS ACT, AS MAY BE NECESSARY TO THE EFFICIENT ADMINISTRATION OF SUCH FUNCTION.

PURSUANT TO THIS STATUTORY PROVISION, THE FOLLOWING REGULATIONS WERE PROMULGATED IN REGULATIONS AND PROCEDURE, VETERANS' ADMINISTRATION:

3716. A CHANGE OF BENEFICIARY OF AN ADJUSTED SERVICE CERTIFICATE TO BE VALID MUST BE MADE:

(A) BY NOTICE SIGNED BY THE VETERAN, OR HIS DULY AUTHORIZED AGENT, AND DELIVERED OR PROPERLY MAILED TO THE UNITED STATES VETERANS' BUREAU DURING THE LIFETIME OF THE VETERAN. SUCH CHANGE SHALL NOT TAKE EFFECT UNTIL APPROVED BY THE DIRECTOR AND AFTER SUCH APPROVAL THE CHANGE SHALL BE DEEMED TO HAVE BEEN MADE AS OF THE DATE THE VETERAN SIGNED SAID WRITTEN NOTICE AND CHANGE, WHETHER THE VETERAN BE LIVING AT THE TIME OF SAID APPROVAL OR NOT.

(B) OR BY THE LAST WILL AND TESTAMENT OF THE VETERAN, DULY PROBATED. SUCH CHANGE SHALL NOT BE EFFECTIVE UNTIL RECEIVED BY THE UNITED STATES VETERANS' BUREAU AND APPROVED BY THE DIRECTOR AND AFTER SUCH APPROVAL THE CHANGE SHALL BE DEEMED TO HAVE BEEN MADE AS OF THE DATE OF DEATH OF THE VETERAN.

BY THE EXPRESS WORDING OF THE FIRST PARAGRAPH OF THESE REGULATIONS A CHANGE OF BENEFICIARY BY NOTICE OR A DIRECT REQUEST SIGNED BY THE VETERAN IS EFFECTIVE "AS OF THE DATE THE VETERAN SIGNED SAID WRITTEN NOTICE AND CHANGE" AND BY THE EXPRESS WORDING OF THE SECOND PARAGRAPHA CHANGE BY THE LAST WILL AND TESTAMENT OF A VETERAN IS EFFECTIVE "AS OF THE DATE OF THE DEATH OF THE TERAN.' TO APPLY THE REGULATIONS LITERALLY, AS THE VETERANS' ADMINISTRATION APPARENTLY HAS DONE IN THE INSTANT CASE, DEFEATS THE PRIMARY PURPOSE AND INTENT OF THE CONTROLLING STATUTE, WHICH IS TO AUTHORIZE PAYMENT OF THE VALUE OF AN ADJUSTED SERVICE CERTIFICATE TO THE LAST BENEFICIARY DESIGNATED BY THE VETERAN PRIOR TO HIS DEATH. THE STATUTE IS CAREFUL TO PROVIDE AUTHORITY FOR A CHANGE OF BENEFICIARY TO MEET THE CHANGING RELATIONSHIPS OF LIFE, WHICH CLEARLY WOULD BE DEFEATED IF IT WERE CONCLUDED THAT A VETERAN MAY NOT CHANGE A BENEFICIARY DESIGNATED IN A PREVIOUSLY EXECUTED WILL, OR THAT HE MIGHT DO SO ONLY BY THE EXECUTION OF A NEW WILL.

IT IS TRUE, AS HELD BY THE SOLICITOR OF THE VETERANS' ADMINISTRATION IN THE CASE OF HARRY BLUMEN, SUPRA, THAT A WILL SPEAKS FROM THE DATE OF DEATH OF THE TESTATOR. HOWEVER, IT IS, ALSO, A GENERALLY RECOGNIZED PRINCIPLE OF INSURANCE LAW THAT THE DESIGNATION OF A BENEFICIARY IS TESTAMENTARY IN CHARACTER AND, ALSO, SPEAKS FROM THE DATE OF THE DEATH OF THE INSURED. THEREFORE, A DOCUMENT IN THE FORM AND MANNER PRESCRIBED BY LAW AND REGULATIONS, WHICH CHANGES THE BENEFICIARY DESIGNATED IN A PREVIOUSLY EXECUTED WILL, SHOULD ITSELF BE CONSIDERED A PART OF AND APPENDED TO THE PREVIOUSLY EXECUTED WILL, EFFECTIVE FROM THE DATE OF THE DEATH OF THE VETERAN IN THE SAME MANNER AS THE WILL IS EFFECTIVE, IN SO FAR AS CONCERNS PAYMENT BY THE UNITED STATES OF THE VALUE OF A VETERAN'S ADJUSTED SERVICE CERTIFICATE.

ACCORDINGLY, I AM CONSTRAINED TO HOLD IN THE INSTANT CASE, AS WELL AS IN ALL OTHER SIMILAR CASES NOW PENDING AWAITING DECISION IN THIS CASE, THAT EFFECT SHOULD BE GIVEN TO THE LAST CHANGE OF BENEFICIARY TO RECEIVE THE VALUE OF AN ADJUSTED-SERVICE CERTIFICATE EXECUTED PRIOR TO THE DEATH OF THE VETERAN, IN THE FORM AND MANNER PRESCRIBED BY THE LAW AND REGULATIONS, WHETHER IN A DIRECT REQUEST ON A FORM PREPARED FOR THAT PURPOSE, OR IN A LAST WILL AND TESTAMENT.

YOU ARE ADVISED, THEREFORE, THAT THE ADMINISTRATIVELY APPROVED AWARD IN THIS CASE WILL NOT BE CERTIFIED FOR PAYMENT.