B-151619, MAR. 11, 1964

B-151619, MAR. 11, 1964

TO MRS. GILBERTA G. HESS:

REFERENCE IS MADE TO YOUR CLAIM OF DECEMBER 16, 1963, FORWARDED TO OUR OFFICE BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, IN EFFECT REQUESTING RECONSIDERATION OF OUR DECISION DATED AUGUST 15, 1963, B-151619, TO YOU WHICH SUSTAINED THE SETTLEMENT DATED DECEMBER 20, 1962, BY OUR CLAIMS DIVISION DISALLOWING 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. THE CLAIM WAS DISALLOWED FOR THE REASON THAT HE HAD DESIGNATED HIS MOTHER, MRS. CECELIA F. ERLANGER, AS HIS BENEFICIARY. THERE WAS ALSO FORWARDED BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER A WAIVER SIGNED BY MRS. ERLANGER WAIVING HER RIGHTS TO ANY UNPAID PAY AND ALLOWANCES DUE THE DECEDENT IN FAVOR OF YOU AS HIS WIDOW.

YOU WERE ADVISED IN THE DECISION OF AUGUST 15, 1963, AND THE SETTLEMENT DATED DECEMBER 20, 1962, THAT SECTION 2771, TITLE 10, UNITED STATES CODE, PROVIDES, 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 WERE ALSO ADVISED IN THE DECISION OF AUGUST 15, 1963, THAT 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.

THE WAIVER SIGNED BY MRS. ERLANGER IN YOUR FAVOR FOR THE RETIRED PAY DUE THE DECEDENT MAY NOT BE RECOGNIZED BY US IN VIEW OF THE PROVISIONS OF SECTION 3477, REVISED STATUTES, WHICH PROHIBIT THE ASSIGNMENT OF CLAIMS AGAINST THE UNITED STATES PRIOR TO THE ALLOWANCE OF THE CLAIM AND THE ISSUANCE OF THE CHECK IN PAYMENT OF SUCH CLAIM.

HOWEVER, SINCE MRS. ERLANGER HAS INDICATED BY THE WAIVER THAT SHE WANTS YOU TO HAVE THE AMOUNT DUE THE DECEDENT, WE KNOW OF NO REASON WHY SHE COULD NOT, IF SHE SO DESIRES, CLAIM THE AMOUNT DUE AS THE DESIGNATED BENEFICIARY AND WHEN SHE RECEIVES THE CHECK ENDORSE IT IN YOUR FAVOR AND TRANSMIT IT TO YOU.