B-162473, OCT. 5, 1967

B-162473, OCT. 5, 1967

DECEDENTS ESTATES - ARREARS OF PAY DECISION TO CLAIMANT CONCERNING CLAIM BY BROTHER AS EXECUTOR OF DECEASED MILITARY MEMBER'S ESTATE FOR ARREARS OF PAY AND ALLOWANCES DUE AT DEATH. BROTHER OF DECEASED MILITARY MEMBER WHO IS ALSO SURVIVED BY FATHER MAY NOT AS EXECUTOR OF ESTATE BE PAID ARREARS OF PAY AND ALLOWANCES SINCE UNDER LAW FATHER TAKES PRECEDENCE OVER LEGAL REPRESENTATIVE. WITH RESPECT TO SAVINGS ALLOTMENT PAYMENTS THERE IS NO AUTHORITY FOR PAYMENT AFTER NOTICE OF DEATH OF ALLOTTER.

TO MR. ANTHONY TRAPANI:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 14, 1967, IN WHICH YOU REQUEST REVIEW OF THE ACTION TAKEN IN THE LETTER OF OUR CLAIMS DIVISION DATED AUGUST 4, 1967, DENYING YOUR CLAIM AS EXECUTOR OF THE ESTATE OF YOUR LATE BROTHER, ANDREW TRAPANI, FOR ARREARS OF PAY AND ALLOWANCES DUE HIM AT DATE OF DEATH, MARCH 11, 1967, AS STAFF SERGEANT,REGULAR ARMY.

THE RECORD CONTAINS COPIES OF PREVIOUS CORRESPONDENCE BETWEEN YOU AND THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, RELATIVE TO YOUR CLAIM. YOU WERE ADVISED BY THAT OFFICE IN A LETTER DATED JUNE 12, 1967, THAT UNDER APPLICABLE REGULATIONS A WILL IS NOT BINDING IN THE SETTLEMENT OF YOUR BROTHER'S ACCOUNT AND THAT YOUR FATHER IS THE PROPER BENEFICIARY OF THE AMOUNT DUE YOUR LATE BROTHER. YOU WERE THEREFORE REQUESTED TO ASSIST YOUR FATHER IN THE PRESENTATION OF HIS CLAIM. HOWEVER, YOU CONTINUED TO PRESS YOUR CLAIM. IN YOUR LETTER OF JULY 31, 1967, TO OUR CLAIMS DIVISION, YOU RELATED THAT YOUR BROTHER HAD AUTHORIZED A SAVINGS ALLOTMENT OF HIS PAY TO THE FIRST NATIONAL BANK OF COLORADO SPRINGS, COLORADO SPRINGS, COLORADO, EFFECTIVE JANUARY 1, 1966. YOU CONTENDED THAT IF THE ADMINISTRATIVE OFFICE HAD MADE PROPER AND PROMPT PAYMENTS OF THE ALLOTMENTS TO THE BANK, THAT OFFICE WOULD NOT NOW BE INVOLVED WITH YOUR BROTHER'S PAY ACCOUNT. YOU THEREFORE REQUESTED THAT THE MONEY DUE YOUR BROTHER BE TRANSFERRED TO HIS BANK ACCOUNT IN COLORADO. IN SUPPORT OF YOUR CONTENTION, YOU ENCLOSED A COPY OF THE ALLOTMENT AUTHORIZATION BY YOUR BROTHER, TOGETHER WITH CORRESPONDENCE IN THE MATTER.

IT APPEARS THAT YOUR BROTHER WROTE TO THE ARMY FINANCE CENTER IN JUNE 1966, COMPLAINING THAT NO ALLOTMENT PAYMENTS HAD BEEN RECEIVED BY THE BANK. HOWEVER, THE REPLY OF THE FINANCE CENTER DISCLOSED THAT AN ALLOTMENT CHECK SENT TO THE BANK IN FEBRUARY 1966 HAD BEEN RETURNED BY THE BANK MARKED "NO RECORD OF ACCOUNT.' SUBSEQUENT ALLOTMENT PAYMENTS APPEAR TO HAVE BEEN RECEIVED BY THE BANK AND DEPOSITED IN THE DECEDENT'S ACCOUNT, BUT THE FILE INDICATES THAT NO DEPOSITS WERE ENTERED IN YOUR BROTHER'S BANK ACCOUNT SUBSEQUENT TO NOVEMBER 1966. THE FILE DOES NOT DISCLOSE THE REASON WHY THE ALLOTMENT PAYMENTS WERE DISCONTINUED AFTER NOVEMBER 1966.

IN OUR CLAIMS DIVISION LETTER OF AUGUST 4, 1967, WHICH DENIED YOUR CLAIM, YOU WERE INFORMED THAT SECTION 2771 OF TITLE 10, UNITED STATES CODE, GOVERNS THE SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE ARMED FORCES WHO DIE AFTER DECEMBER 31, 1955. THE LETTER EXPLAINED THAT THIS SECTION PROVIDES FOR PAYMENT OF THE AMOUNT DUE A DECEDENT TO THE PERSONS ENTITLED, SURVIVING AT DATE OF THE MEMBER'S DEATH, IN THE ORDER OF PRECEDENCE LISTED IN THAT LETTER. YOU WERE ADVISED THAT YOUR BROTHER DID NOT DESIGNATE A BENEFICIARY TO RECEIVE THE AMOUNT DUE HIM AT DATE OF DEATH AND SINCE HE WAS NOT SURVIVED BY A SPOUSE, CHILD, OR MOTHER, YOUR FATHER WAS THE PREFERRED HEIR, AND PAYMENT MAY NOT BE MADE TO YOU AS EXECUTOR OF YOUR BROTHER'S ESTATE. ALSO YOU WERE INFORMED THAT IF YOUR FATHER IS UNABLE TO PRESENT A CLAIM IN HIS OWN BEHALF, WE WILL CONSIDER A CLAIM BY HIS LEGAL GUARDIAN.

IN YOUR LETTER OF AUGUST 14, 1967, YOU SAY THAT YOU HAVE FORWARDED EVIDENCE OF YOUR BROTHER'S INTENTION REGARDING THE DISPOSITION OF HIS PAY AND CONTEND THAT AN ERROR WAS MADE BY THE FINANCE CENTER, DEPARTMENT OF THE ARMY, IN NOT COMPLYING WITH THAT INTENT. YOU REQUEST US TO REVIEW OUR ACTION, STATING THAT YOU INTEND TO HAVE YOUR BROTHER'S PAY RECORD STRAIGHTENED OUT AND THE MONEY WHICH WAS DUE HIM TRANSFERRED TO HIS BANK IN COLORADO SPRINGS.

AS STATED IN THE LETTER OF OUR CLAIMS DIVISION DATED AUGUST 4, 1967, THE SETTLEMENT OF ACCOUNTS OF DECEASED PERSONNEL OF THE ARMED FORCES WHO DIE AFTER DECEMBER 31, 1955, IS GOVERNED BY SECTION 2771, TITLE 10, UNITED STATES CODE. UNDER THAT PROVISION OF LAW ANY AMOUNT OF PAY AND ALLOWANCES DUE FROM THE ARMED FORCES OF WHICH DECEDENT WAS A MEMBER IS FOR PAYMENT TO THE PERSON HIGHEST ON THE FOLLOWING LIST WHO IS LIVING ON THE DATE OF THE MEMBER'S DEATH:

(1) BENEFICIARY DESIGNATED BY THE MEMBER.

(2) SURVIVING SPOUSE.

(3) CHILDREN AND THEIR DESCENDANTS, BY REPRESENTATION.

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

(5) LEGAL REPRESENTATIVE.

(6) PERSON ENTITLED UNDER THE LAW OF THE DOMICILE OF THE DECEASED MEMBER.

SINCE A FATHER TAKES PRECEDENCE OVER A LEGAL REPRESENTATIVE, THAT IS, A DULY APPOINTED EXECUTOR OR ADMINISTRATOR OF THE DECEDENT'S ESTATE, THERE IS NO LEGAL BASIS TO ALLOW THE AMOUNT DUE TO YOU AS EXECUTOR UNDER THE DECEDENT'S WILL.

WITH RESPECT TO YOUR REQUEST THAT THE AMOUNT DUE BE TRANSFERRED TO YOUR BROTHER'S BANK ACCOUNT AS YOU SAY HE INTENDED, THE FILE DISCLOSES AS INDICATED ABOVE, THAT THE INITIAL DELAY IN THE RECEIPT OF THE SAVINGS ALLOTMENT PAYMENTS BY THE DESIGNATED BANK APPARENTLY WAS NOT THE FAULT OF THE ARMY FINANCE CENTER. THE REASON FOR THE NON-RECEIPT OF THE SAVINGS ALLOTMENT PAYMENTS BY THE BANK AFTER NOBEMBER 1966 IS NOT SHOWN IN THE RECORD BEFORE US, BUT IT MAY BE STATED THAT THERE IS NO AUTHORITY TO MAKE FURTHER PAYMENTS OF SUCH AN ALLOTMENT AFTER RECEIPT OF NOTICE OF THE DEATH OF THE ALLOTTER. THEREFORE, WE ARE OF THE OPINION THAT THERE IS NO LEGAL BASIS TO NOW TRANSFER ANY PORTION OF THE AMOUNT DUE THE DECEDENT'S ESTATE TO HIS BANK ACCOUNT AS UNPAID ALLOTMENT PAYMENTS. IT HAS LONG BEEN OUR VIEW THAT THE AMOUNT OF PAY AND ALLOWANCES DUE A DECEASED MEMBER AT THE TIME OF HIS DEATH, INCLUDING THE AMOUNT OF ANY UNPAID ALLOTMENT PAYMENTS, IS FOR DISPOSITION UNDER THE STATUTORY PROVISIONS GOVERNING THE SETTLEMENT OF HIS ACCOUNT.

WE MAY AUTHORIZE PAYMENT OF A CLAIM FROM PUBLIC FUNDS ONLY WHEN SUCH PAYMENT IS AUTHORIZED BY THE APPLICABLE LAW AND REGULATIONS. THE PROVISIONS OF 10 U.S.C. 2771 ARE MANDATORY AND BINDING UPON OUR OFFICE AND THE ARREARS OF PAY DUE UPON THE DEATH OF YOUR BROTHER IS REQUIRED TO BE DISTRIBUTED IN THE ORDER OF PRECEDENCE SET FORTH IN THAT LAW UPON RECEIPT OF A CLAIM FROM THE FATHER, THE PERSON ENTITLED TO PAYMENT.

ACCORDINGLY, THE ACTION TAKEN IN THE LETTER OF AUGUST 4, 1967, BY OUR CLAIMS DIVISION IN DENYING YOUR CLAIM, IS SUSTAINED.