B-151619, AUG. 15, 1963

B-151619, AUG. 15, 1963

TO MRS. GILBERTA G. HESS:

REFERENCE IS MADE TO YOUR LETTER OF MAY 14, 1963, CONCERNING SETTLEMENT DATED DECEMBER 20, 1962, WHICH DISALLOWED YOUR CLAIM AS WIDOW OF MASTER SERGEANT EDWARD M. HESS, UNITED STATES AIR FORCE, RETIRED, FOR PAY DUE HIM AT DATE OF DEATH, AUGUST 16, 1962. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT SERGEANT HESS HAD DESIGNATED HIS MOTHER, MRS. CECILIA F. ERLANGER, AS BENEFICIARY PURSUANT TO THE PROVISIONS OF SECTION 2771, TITLE 10, U.S.C. WHICH PROVIDE IN PERTINENT PART THAT IN THE SETTLEMENT OF THE ACCOUNTS OF A DECEASED MEMBER OF THE ARMED FORCES WHO DIES AFTER DECEMBER 31, 1955, THE AMOUNT DUE HIM FROM THE ARMED FORCE OF WHICH HE WAS A MEMBER SHALL BE PAID TO THE PERSON HIGHEST IN THE ORDER OF PRECEDENCE, LIVING ON THE DATE OF DEATH, AS FOLLOWS: (1) BENEFICIARY DESIGNATED BY THE DECEDENT; (2) SURVIVING SPOUSE; (3) CHILDREN AND THEIR DESCENDANTS; AND (4) FATHER AND MOTHER OR THE SURVIVOR.

YOU STATE THAT YOU ARE AWARE OF THE PROVISIONS OF 10 U.S.C. 2771, BUT THAT YOU DO NOT BELIEVE THE MATTER IS SETTLED SINCE NEITHER YOU NOR THE VARIOUS OFFICES CONTACTED BY YOU HAVE BEEN SUCCESSFUL IN LOCATING MRS. ERLANGER, THE DESIGNATED BENEFICIARY, AND YOU DOUBT THAT WE CAN FIND HER TO EFFECT PAYMENT OF THE AMOUNT DUE THE DECEASED MEMBER. YOU ASK WHETHER WE HAVE BEEN ABLE TO FIND MRS. ERLANGER AND, IF NOT, TO ADVISE YOU HOW LONG YOU MUST WAIT FOR THE CLAIM.

UNLESS OTHERWISE SPECIFICALLY PROVIDED, CLAIMS ARE CONSIDERED BY THIS OFFICE ONLY WHEN PRESENTED IN WRITING OVER THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR HIS AUTHORIZED AGENT OR ATTORNEY. THE RECORD INDICATES THAT ON DECEMBER 1, 1961, SERGEANT HESS DESIGNATED HIS MOTHER, CECILIA ERLANGER AS BENEFICIARY AND THAT THAT DESIGNATION WAS NEVER CHANGED BY HIM PRIOR TO HIS DEATH. NO CLAIM FOR THE AMOUNT INVOLVED HAS BEEN RECEIVED HERE FROM MRS. ERLANGER, WHOSE PRESENT WHEREABOUTS IS UNKNOWN, BUT WHO, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, IS PRESUMED TO BE STILL LIVING. OUR PROCEDURES IN SUCH CASES DO NOT PROVIDE FOR ACTIONS TO LOCATE INDIVIDUALS FOR THE PURPOSE OF SECURING CLAIMS AND PAYING TO SUCH INDIVIDUALS THE AMOUNTS WHICH THEY MAY BE ENTITLED TO RECEIVE FROM THE GOVERNMENT, AS THE PRESENTING OF A CLAIM AGAINST THE UNITED STATES IS PRIMARILY THE RESPONSIBILITY OF THE PERSON CONCERNED.

SINCE THE RECORD SHOWS THAT SERGEANT HESS DESIGNATED MRS. ERLANGER AS BENEFICIARY TO RECEIVE THE RETIRED PAY DUE HIM IN THE EVENT OF HIS DEATH, SHE IS ENTITLED TO RECEIVE SUCH PAY TO THE EXCLUSION OF ALL OTHERS UNDER THE PROVISIONS OF 10 U.S.C. 2771, WHICH ARE MANDATORY AND BINDING UPON THIS OFFICE, AND CONSEQUENTLY, THE AMOUNT DUE MUST BE HELD IN TRUST FOR THE DECEASED MEMBER'S MOTHER PENDING THE TIMELY FILING OF HER CLAIM WITH THIS OFFICE. HENCE, IN THE ABSENCE OF EVIDENCE ESTABLISHING THE DEATH OF MRS. ERLANGER AND THAT SHE DIED PRIOR TO SERGEANT HESS, THE PRESENT RECORD AFFORDS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM.