B-180915, APRIL 26, 1976, 55 COMP.GEN. 1033

B-180915, APRIL 26, 1976, 55 COMP.GEN. 1033

DECEDENTS' ESTATES - PERSONS CAUSING DEATH OF DECEDENT - EVIDENCE OF INTENT CLAIM OF WIDOW OF DECEASED SERVICE MEMBER FOR ENTITLEMENT TO BOTH SIX MONTHS' DEATH GRATUITY (10 U.S.C. 1477) AND UNPAID PAY AND ALLOWANCES (10 U.S.C. 2771) WHERE SHE ADMITTED KILLING HIM AND WAS INDICTED FOR MURDER, IS DENIED, EVEN THOUGH SHE CLAIMED SELF-DEFENSE AND NOLLE PROSEQUI WAS ENTERED ON INDICTMENT, SINCE DUE TO CERTAIN INFORMATION OF RECORD, THE LACK OF FELONIOUS INTENT CANNOT BE ESTABLISHED. DECEDENTS' ESTATES - PAY, ETC., DUE MILITARY PERSONNEL - PERSONS IMPLICATED IN DEATH OF DECEDENT - CLAIM DETERMINED ON BASIS OF AWARD OF LIFE INSURANCE PROCEEDS CIVIL ACTION IN CASE OF WIDOW VERSUS DECEDENT'S MOTHER FOR PROCEEDS OF LIFE INSURANCE POLICY WHICH RULED IN FAVOR OF MOTHER ON SPECIFIC JURY FINDING THAT WIDOW UNLAWFULLY AND INTENTIONALLY KILLED MEMBER AND WHICH CONCLUSION WAS UPHELD BY UNITED STATES COURT OF APPEALS, WHILE NOT BINDING ON GENERAL ACCOUNTING OFFICE, IS TO BE GIVEN CONSIDERABLE WEIGHT IN OUR CONSIDERATION OF SURVIVOR CLAIMS WHERE PARTIES AND ISSUES BEFORE SUCH COURT INVOLVE, IN PART, MATTERS BEFORE THIS OFFICE.

IN THE MATTER OF A DECEASED STAFF SERGEANT, USAF, APRIL 26, 1976:

THIS ACTION IS IN RESPONSE TO A LETTER DATED OCTOBER 30, 1974, FROM A CLAIMANT IN WHICH SHE REQUESTS FURTHER CONSIDERATION OF A SETTLEMENT DATED OCTOBER 15, 1974, BY OUR TRANSPORTATION AND CLAIMS DIVISION (NOW CLAIMS DIVISION) WHICH DISALLOWED HER CLAIM FOR THE SIX MONTHS' DEATH GRATUITY AND UNPAID PAY AND ALLOWANCES DUE IN THE CASE OF HER LATE HUSBAND WHO DIED SEPTEMBER 28, 1973.

THE FILE SHOWS THAT THE DISALLOWANCE WAS BASED IN PART ON THE FACT THAT WHILE A NOLLE PROSEQUI WAS ENTERED IN THE CASE AGAINST THE WIDOW AFTER SHE WAS INDICTED FOR MURDER, THERE REMAINED AN ELEMENT OF DOUBT AS TO THE LACK OF FELONIOUS INTENT DUE TO CERTAIN EVIDENCE OF RECORD. IN ADDITION, THE FILE INDICATES THAT IT WAS LEARNED THAT IN APRIL 1974, THE DECEDENT'S MOTHER AND A SECONDARY BENEFICIARY IN THE CASE BEFORE THIS OFFICE HAD INITIATED A CIVIL ACTION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA, AGAINST THE DECEASED MEMBER'S WIFE AND THE PRUDENTIAL INSURANCE COMPANY, TO RECOVER THE PROCEEDS OF A LIFE INSURANCE POLICY ISSUED ON THE LIFE OF THE MEMBER.

WHILE THE DECISION OF THE COURT IN THAT CASE IS NOT BINDING ON THIS OFFICE IN THE MATTER OF PAYMENT OF A DEATH GRATUITY OR DISTRIBUTION OF UNPAID PAY AND ALLOWANCES, SINCE THE PARTIES AND ISSUES BEFORE THAT COURT INVOLVE IN PART MATTERS BEFORE THIS OFFICE, THE FINDINGS OF THAT COURT ARE TO BE GIVEN CONSIDERABLE WEIGHT IN OUR CONSIDERATION OF THESE SURVIVOR CLAIMS.

PAYMENT OF THE SIX MONTHS' DEATH GRATUITY IS GOVERNED BY THE PROVISIONS OF 10 U.S.C. 1477 (1970), WHICH PROVIDES IN PART:

(A) A DEATH GRATUITY * * * SHALL BE PAID TO OR FOR THE LIVING SURVIVOR HIGHEST ON THE FOLLOWING LIST:

(1) HIS SURVIVING SPOUSE

(3) IF DESIGNATED BY HIM, ANY ONE OR MORE OF THE FOLLOWING PERSONS:

(A) HIS PARENTS * * * .

IN CONNECTION WITH THE DISTRIBUTION OF THE UNPAID PAY AND ALLOWANCES DUE IN A DECEASED MEMBER'S CASE, 10 U.S.C. 2771 (1970), PROVIDES IN PART:

(A) IN THE SETTLEMENT OF THE ACCOUNTS OF A DECEASED MEMBER OF THE ARMED FORCES * * * AN AMOUNT DUE * * * SHALL BE PAID TO THE PERSON HIGHEST ON THE FOLLOWING LIST LIVING ON THE DATE OF DEATH:

(1) BENEFICIARY DESIGNATED BY HIM IN WRITING * * * .

(2) SURVIVING SPOUSE

(4) FATHER AND MOTHER IN EQUAL PARTS OR, IF EITHER IS DECEASED, THE SURVIVOR.

THE FILE SHOWS THAT ON MAY 31, 1972 THE MEMBER EXECUTED A RECORD OF EMERGENCY DATA FORM, ON WHICH HE DESIGNATED HIS MOTHER TO RECEIVE THE DEATH GRATUITY IF HE HAD NO SPOUSE OR CHILD AND DESIGNATED HIS WIFE TO RECEIVE HIS UNPAID PAY AND ALLOWANCES DUE AT HIS DEATH.

THERE APPEARS TO BE NO QUESTION AS TO THE CLAIMANT'S STATUS AS SURVIVING SPOUSE, OR AS DESIGNATED BENEFICIARY. HOWEVER, IT HAS UNIFORMLY BEEN HELD THAT IT IS AGAINST PUBLIC POLICY TO PERMIT THE 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. THIS IS SO EVEN THOUGH SUCH HEIR OR BENEFICIARY MAY BE FOUND NOT GUILTY BY A JURY TRIED IN CRIMINAL PROCEEDINGS GROWING OUT OF THE HOMICIDE, OR WHERE A NOLLE PROSEQUI WAS ENTERED. SEE 34 COMP.GEN. 103 (1954).

THE RECORD IN THE CASE INDICATES THAT THE MEMBER AND HIS WIFE, WHO WERE MARRIED IN 1971, APPARENTLY CEASED LIVING TOGETHER AS HUSBAND AND WIFE IN JULY 1973. IN AUGUST 1973, THE MEMBER WAS PLACED UNDER COURT ORDER BY THE FAMILY COURT OF CHARLESTON COUNTY, SOUTH CAROLINA, NOT TO INTERFERE WITH, MOLEST OR IN ANY WAY HARM HIS SPOUSE. ON SEPTEMBER 28, 1973, APPARENTLY IN VIOLATION OF THAT COURT ORDER AND WHILE IN AN INTOXICATED CONDITION, THE MEMBER FORCEABLY ENTERED HIS WIFE'S RESIDENCE. AT SOME POINT AFTER SO ENTERING, HE WAS SHOT TO DEATH BY HIS WIFE.

THE WIFE CLAIMED THAT SHE ACTED IN SELF-DEFENSE. THE RECORD, HOWEVER, INDICATED THAT THE MEMBER HAD NO WEAPON. FURTHER, THERE WAS NOTHING TO SHOW THAT HE THREATENED HER LIFE OR THAT SHE WAS IN DANGER OF IMMEDIATE BODILY HARM. IN THIS CONNECTION, THE REPORT OF AUTOPSY REVEALED THAT TWO OF THE THREE BULLETS WHICH STRUCK THE DECEASED, STRUCK HIM IN THE BACK. THIS, WE BELIEVE, TENDS TO EVIDENCE A RETREAT BY THE MEMBER AT THE TIME OF THE SHOOTING, OR AT THE VERY MINIMUM, A RECESSION OF ANY THREAT OF BODILY HARM TO THE WIFE WHICH MIGHT HAVE PREVIOUSLY BEEN PRESENT.

WITH REGARD TO THE CIVIL ACTION INITIATED BY THE DECEDENT'S MOTHER, IN SEPTEMBER 1974, FOLLOWING A JURY TRIAL, SHE WAS AWARDED THE INSURANCE PROCEEDS BASED ON THE SPECIFIC FINDING THAT THE WIDOW DID INTENTIONALLY AND UNLAWFULLY KILL THE MEMBER. ON NOVEMBER 17, 1974, THAT RULING WAS APPEALED BY THE WIDOW AND ON DECEMBER 19, 1975, THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT, AFFIRMED THE LOWER COURT'S RULING.

ON THE BASIS OF THE RECORD BEFORE US, IT IS OUR VIEW THAT THE WIFE DID NOT ACT WITHOUT FELONIOUS INTENT IN THE DEATH OF THE MEMBER. ACCORDINGLY, THE ACTION TAKEN BY OUR TRANSPORTATION AND CLAIMS DIVISION DISALLOWING HER CLAIM IS SUSTAINED.

AS TO THE CLAIM OF THE DECEASED MEMBER'S MOTHER, SINCE THE RECORD SHOWS THAT SHE IS THE NEXT HIGHER SURVIVOR, THE MEMBER HAVING NO CHILDREN, AND THE FILE INDICATING THAT HIS MOTHER IS A WIDOW, SHE IS ENTITLED TO RECEIVE BOTH THE SIX MONTHS' DEATH GRATUITY AND THE UNPAID PAY AND ALLOWANCES DUE IN THE CASE.