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B-120683, MARCH 7, 1967, 46 COMP. GEN. 687

B-120683 Mar 07, 1967
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THE 6 MONTHS' DEATH GRATUITY PAID TO HIS FATHER AS THE DESIGNATED SURVIVOR IS FOR RECOVERY FROM THE SON PERPETRATING THE FRAUD AND NOT THE FATHER WHOSE RECEIPT OF THE DEATH GRATUITY WAS BONA FIDE. PAYMENT OF THE GRATUITY TO THE FATHER WAS LEGAL AND VALID AND HE MAY RETAIN THE PAYMENT. 1967: REFERENCE IS MADE TO LETTER DATED NOVEMBER 3. REQUESTING A DECISION AS TO WHETHER RECOVERY OF THE 6 MONTHS' DEATH GRATUITY IS REQUIRED IN THE CASE OF A MEMBER OF THE ARMED FORCES WHO CONTRIVED HIS DISAPPEARANCE IN SUCH A MANNER AS TO SUGGEST THAT HE HAD ACCIDENTALLY DROWNED. ENCLOSED WITH THAT LETTER WAS A COPY OF MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 387. IT IS STATED THAT PURSUANT TO 37 U.S.C. 556 IT WAS OFFICIALLY DETERMINED THAT THE MEMBER HAD DIED AND A DEATH GRATUITY WAS PAID TO THE SURVIVOR HE DESIGNATED.

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B-120683, MARCH 7, 1967, 46 COMP. GEN. 687

GRATUITIES - SIX MONTHS' DEATH - ERRONEOUS PAYMENT LIABILITY UPON DISCOVERY THAT A MEMBER OF THE UNIFORMED SERVICES HAD CONTRIVED HIS DISAPPEARANCE IN A MANNER THAT SUGGESTED ACCIDENTAL DROWNING, THE 6 MONTHS' DEATH GRATUITY PAID TO HIS FATHER AS THE DESIGNATED SURVIVOR IS FOR RECOVERY FROM THE SON PERPETRATING THE FRAUD AND NOT THE FATHER WHOSE RECEIPT OF THE DEATH GRATUITY WAS BONA FIDE. THEREFORE, THE DETERMINATION PURSUANT TO 37 U.S.C. 556 THAT THE MEMBER HAD DIED HAVING BEEN PROPER WHEN MADE, PAYMENT OF THE GRATUITY TO THE FATHER WAS LEGAL AND VALID AND HE MAY RETAIN THE PAYMENT.

TO THE SECRETARY OF DEFENSE, MARCH 7, 1967:

REFERENCE IS MADE TO LETTER DATED NOVEMBER 3, 1966, FROM THE ASSISTANT SECRETARY OF DEFENSE, COMPEROLLER, REQUESTING A DECISION AS TO WHETHER RECOVERY OF THE 6 MONTHS' DEATH GRATUITY IS REQUIRED IN THE CASE OF A MEMBER OF THE ARMED FORCES WHO CONTRIVED HIS DISAPPEARANCE IN SUCH A MANNER AS TO SUGGEST THAT HE HAD ACCIDENTALLY DROWNED. ENCLOSED WITH THAT LETTER WAS A COPY OF MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 387, WHICH STATES THE QUESTION INVOLVED AND DISCUSSES SOME DECISIONS RELATING TO RECOVERY OF ERRONEOUS PAYMENTS.

IT IS STATED THAT PURSUANT TO 37 U.S.C. 556 IT WAS OFFICIALLY DETERMINED THAT THE MEMBER HAD DIED AND A DEATH GRATUITY WAS PAID TO THE SURVIVOR HE DESIGNATED, NAMELY, HIS FATHER. THE DATE OF THAT DETERMINATION OR THE DATE OF SUCH PAYMENT IS NOT DISCLOSED. THE COMMITTEE ACTION CONTINUES BY STATING THAT "LATER" THE MEMBER "RETURNS" TO HIS SERVICE AND "CONFESSES" HIS INTENDED DECEPTION. IT IS STATED THAT HIS FATHER WAS NOT AWARE OF THE DECEPTION AND HIS RECEIPT OF THE DEATH GRATUITY WAS IN ALL RESPECTS BONA FIDE. THE QUESTION PRESENTED FOR DECISION IS WHETHER RECOVERY OF THE AMOUNT OF THE DEATH GRATUITY PAID SHOULD BE FROM THE SON OR FROM THE FATHER.

THE COMMITTEE ACTION REFERS TO, AND QUOTES EXTENSIVELY FROM, OUR DECISION OF APRIL 1, 1955, 34 COMP. GEN. 494, IN WHICH WE CONSIDERED THE VALIDITY OF A PAYMENT OF 6 MONTHS' DEATH GRATUITY WHICH HAD BEEN BASED ON AN ADMINISTRATIVE DETERMINATION OR FINDING UNDER THE MISSING PERSONS ACT (THEN 50 U.S.C. APP. 1002-1009) THAT A PARTICULAR MEMBER WAS DEAD BUT WHO LATER WAS FOUND TO BE ALIVE. IT WAS CONCLUDED THAT SINCE A PAYMENT MADE ON A DETERMINATION OR FINDING OF DEATH IS LEGAL AND VALID WHEN MADE, A LATER DETERMINATION THAT THE PERSON IS ALIVE MAY NOT RETROACTIVELY AFFECT THE LEGALITY OF THAT PAYMENT SO AS TO REQUIRE RECOVERY FROM THE PAYEE. VIEW OF THAT CONCLUSION, YOUR QUESTION IS UNDERSTOOD TO BE WHETHER THE SAME RULE WOULD APPLY TO THE PRESENT CASE WHERE THE PAYMENT OF THE 6 MONTHS' DEATH GRATUITY WAS INDUCED BY THE FRAUD OF THE MEMBER.

THE COMMITTEE ACTION LEAVES NO DOUBT THAT THE FRAUD WAS ACTUALLY PRACTICED BY THE MEMBER. IN SUCH CIRCUMSTANCES HIS LIABILITY TO THE GOVERNMENT FOR THE AMOUNT OF THE PAYMENT IS CLEAR. COMPARE 33 COMP. GEN. 309, RULES 3 AND 4.

IN OUR VIEW, HOWEVER, THE LIABILITY OF THE FATHER IS NOT ESTABLISHED. BASED ON THE INFORMATION AVAILABLE AT THE TIME IT WAS ADMINISTRATIVELY DETERMINED THAT THE MEMBER WAS DEAD, THAT DETERMINATION WAS PROPER. HENCE, THE PAYMENT TO THE FATHER BASED ON SUCH DETERMINATION WAS LEGAL AND VALID WHEN MADE--- THERE BEING NO EVIDENCE OF FRAUD ON THE FATHER'S PART-- - AND HE MAY RETAIN SUCH PAYMENT.

THE QUESTION IS ANSWERED ACCORDINGLY AND COLLECTION OF THE AMOUNT INVOLVED SHOULD BE MADE FROM THE MEMBER.

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