B-130645, APRIL 26, 1957, 36 COMP. GEN. 741

B-130645, APRIL 26, 1957, 36 COMP. GEN. 741

MILITARY PERSONNEL - DEATH GRATUITY PAYMENTS - SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT - BENEFICIARIES IN CASE ONE OF THE BENEFICIARIES (PARENTS OR BROTHERS OR SISTERS DESIGNATED BY A MEMBER OF THE UNIFORMED SERVICES PURSUANT TO 38 U.S.C. 1131 (C) (3) TO RECEIVE DEATH GRATUITY PAYMENT DIES PRIOR TO THE MEMBER'S DEATH, OR AFTER HIS DEATH BUT PRIOR TO THE TIME PAYMENT IS MADE, THE SHARE WHICH WOULD HAVE BEEN PAID TO THE DECEASED DESIGNEE MAY BE PAID TO THE OTHER PERSON OR PERSONS DESIGNATED. A MEMBER OF THE UNIFORMED SERVICES WHO, PURSUANT TO 38 U.S.C. 1131 (C) (3), DESIGNATES HIS PARENTS OR HIS BROTHERS OR SISTERS TO RECEIVE THE DEATH GRATUITY PAYMENT MAY SPECIFY THE PROPORTIONATE SHARE OF THE DEATH GRATUITY WHICH IS TO BE PAID TO EACH BENEFICIARY; HOWEVER, REGULATIONS SHOULD PRECLUDE FRIVOLOUS DESIGNATIONS SUCH AS ONE PERCENT TO A PARTICULAR BENEFICIARY. IN CASE A MEMBER OF THE UNIFORMED SERVICES WHO, PURSUANT TO 38 U.S.C. 1131 (C) (3), DESIGNATES HIS SISTER, HIS MOTHER AND HIS BROTHER TO RECEIVE THE DEATH GRATUITY PAYMENT BUT THE SISTER PREDECEASES THE MEMBER, MOTHER AND BROTHER WOULD TAKE THE GRATUITY IN EQUAL SHARES. LIKEWISE, WHERE THE SAME BENEFICIARIES ARE DESIGNATED AND THE MEMBER SPECIFIES THAT EACH DESIGNEE SHALL RECEIVE 33 1/3 PERCENT AND THE SISTER PREDECEASES THE MEMBER, THE MOTHER AND BROTHER ARE ENTITLED TO RECEIVE THE GRATUITY IN EQUAL SHARES. IN CASE A MEMBER OF THE UNIFORMED SERVICES WHO, PURSUANT TO 38 U.S.C. 1131 (C) (3), DESIGNATES HIS SISTER TO RECEIVE 25 PERCENT OF THE DEATH GRATUITY, HIS MOTHER 50 PERCENT AND BROTHER 25 PERCENT AND THE SISTER PREDECEASES THE MEMBER, THE MOTHER WOULD TAKE TWO-THIRDS OF THE GRATUITY AND THE BROTHER WOULD TAKE ONE-THIRD. WHERE A MEMBER OF THE UNIFORMED SERVICES, PURSUANT TO 38 U.S.C. 1131 (C) (3), DESIGNATES TWO SISTERS AND A BROTHER TO RECEIVE THE DEATH GRATUITY PAYMENT, AND ONE OF THE SISTERS PREDECEASES THE MEMBER, AND AFTER THE DESIGNATION ANOTHER BROTHER IS BORN AND IS ALIVE AT THE TIME OF PAYMENT OF THE DEATH GRATUITY, ONLY THE DESIGNATED BENEFICIARY BROTHER AND SISTER ARE ENTITLED TO SHARE THE GRATUITY EQUALLY, THE YOUNGER BROTHER MAY NOT TAKE THE GRATUITY AS AGAINST THE DESIGNATED BENEFICIARIES. IN CASE A MEMBER OF THE UNIFORMED SERVICES DESIGNATES, FOR THE PURPOSES OF DEATH GRATUITY PAYMENT, A BENEFICIARY WHO IS INELIGIBLE BECAUSE HE DOES NOT HAVE THE RELATIONSHIP TO THE MEMBER PRESCRIBED FOR THAT CLASS IN 38 U.S.C. 1131 (C) (3), SUCH INELIGIBLE DESIGNEE MAY NOT RECEIVE THE DEATH GRATUITY PAYMENT.

TO THE SECRETARY OF DEFENSE, APRIL 26, 1957:

FURTHER REFERENCE IS MADE TO A LETTER DATED FEBRUARY 6, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON CERTAIN QUESTIONS AS TO THE DISTRIBUTION OF DEATH GRATUITIES AUTHORIZED BY SECTION 301 OF THE ACT OF AUGUST 1, 1956, 70 STAT. 868, 38 U.S.C. 1131. THE QUESTIONS ARE PRESENTED, TOGETHER WITH DISCUSSION THEREON, IN COMMITTEE ACTION NO. 167, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

SECTION 301 OF THAT ACT PROVIDES:

(A) EXCEPT AS PROVIDED IN SECTION 304 (A) THE SECRETARY CONCERNED SHALL HAVE A DEATH GRATUITY PAID IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH OF A MEMBER OF A UNIFORMED SERVICE UNDER HIS JURISDICTION WHO DIES WHILE ON ACTIVE DUTY, ACTIVE DUTY FOR TRAINING, OR INACTIVE DUTY TRAINING.

(B) THE DEATH GRATUITY SHALL EQUAL 6 MONTHS' BASIC PAY (PLUS SPECIAL AND INCENTIVE PAYS) AT THE RATE TO WHICH THE DECEASED MEMBER OF A UNIFORMED SERVICE WAS ENTITLED ON THE DATE OF HIS DEATH, BUT SHALL NOT BE LESS THAN $800 NOR MORE THAN $3,000.

(C) THE DEATH GRATUITY SHALL BE PAID TO OR FOR THE LIVING SURVIVOR OR SURVIVORS OF THE DECEASED MEMBER OF A UNIFORMED SERVICE FIRST LISTED BELOW:

(1) HIS SPOUSE.

(2) HIS CHILDREN (WITHOUT REGARD TO THEIR AGE OR MARITAL STATUS) IN EQUAL SHARES.

(3) HIS PARENTS OR HIS BROTHERS OR SISTERS (INCLUDING THOSE OF THE HALF BLOOD AND THOSE THROUGH ADOPTION), WHEN DESIGNATED BY HIM.

(4) HIS PARENTS IN EQUAL SHARES.

(5) HIS BROTHERS AND SISTERS (INCLUDING THOSE OF THE HALF BLOOD AND THOSE THROUGH ADOPTION) IN EQUAL SHARES.

(D) IF A SURVIVOR DIES BEFORE HE RECEIVES THE AMOUNT TO WHICH HE IS ENTITLED UNDER THIS TITLE, SUCH AMOUNT SHALL BE PAID TO THE THEN LIVING SURVIVOR OR SURVIVORS FIRST LISTED UNDER SUBSECTION (C).

UNDER THE STATUTE IT SEEMS CLEAR THAT WHEN DESIGNATION OF A BENEFICIARY IS PERMISSIBLE, THE SERVICE MEMBER HAS UNLIMITED CHOICE AMONG THE PERSONS ELIGIBLE FOR DESIGNATION. IN OTHER WORDS, A SERVICE MEMBER WITHOUT SPOUSE OR CHILD AND WITH TWO PARENTS, TWO BROTHERS AND TWO SISTERS, MAY DESIGNATE ANY ONE OF THOSE RELATIVES, ANY COMBINATION FROM TWO TO FIVE IN NUMBER, OR ALL SIX.

THE FIRST QUESTION, REFERRED TO IN COMMITTEE ACTION NO. 167 AS THE "PRIMARY" QUESTION, IS AS FOLLOWS:

IF MORE THAN ONE PERSON, ALL OF WHOM ARE ELIGIBLE UNDER THE STATUTE, ARE DESIGNATED AS BENEFICIARIES FOR THE DEATH GRATUITY UNDER SECTION 301 (C) (3), TITLE P. L. 881, 84TH CONGRESS, APPROVED AUGUST 1, 1956, AND ONE OF THE DESIGNATED PERSONS PREDECEASES THE SERVICE MEMBER CONCERNED, SHOULD THE SHARE WHICH WOULD HAVE BEEN PAID TO THE DECEASED DESIGNEE BE PAID TO THE OTHER PERSON OR PERSONS DESIGNATED?

WE HAVE FOUND NOTHING IN THE LEGISLATIVE HISTORY OF SECTION 301 WHICH SHEDS ANY LIGHT ON ANY OF THE QUESTIONS PRESENTED. HOWEVER, THERE IS AN INDICATION OF CONGRESSIONAL INTENT IN SUBSECTION 301 (D), 38 U.S.C. 1131 (D), WHICH DEALS WITH THE QUITE SIMILAR SITUATION OF WHO SHOULD RECEIVE THE GRATUITY IN THE EVENT OF THE DEATH, PRIOR TO PAYMENT, OF A SURVIVOR WHO OTHERWISE WOULD HAVE BEEN ENTITLED TO RECEIVE THE GRATUITY AS A BENEFICIARY. IT IS PROVIDED IN THAT SUBSECTION THAT, IN SUCH SITUATION, THE AMOUNT TO WHICH THE DECEASED SURVIVOR OTHERWISE WOULD HAVE BEEN ENTITLED "SHALL BE PAID TO THE THEN LIVING SURVIVOR OR SURVIVORS FIRST LISTED UNDER SUBSECTION (C).' IF A MEMBER WITHOUT SPOUSE OR CHILD PROPERLY DESIGNATED SEVERAL BENEFICIARIES AND ALL SURVIVED HIM, BUT ONE OF THEM DIED AFTER THE MEMBER'S DEATH BEFORE PAYMENT OF THE GRATUITY, THE SHARE WHICH OTHERWISE WOULD HAVE BEEN PAID TO THE DECEASED SURVIVOR WOULD BE PAYABLE, UNDER SUBSECTION 301 (D), TO THE LIVING SURVIVORS "FIRST LISTED UNDER SUBSECTION (C).' THE REMAINING DESIGNATED BENEFICIARIES FALL IN CLASS (3) AND SINCE CLASSES (1) AND (2) ARE NOT APPLICABLE IN SUCH A CASE, THE BENEFICIARIES ARE ,FIRST LISTED UNDER SUBSECTION (C).' WE SEE NO BASIS FOR DISTINGUISHING IN THIS RESPECT BETWEEN A BENEFICIARY WHO PREDECEASES THE MEMBER AND THE SURVIVOR BENEFICIARY WHO DIES BEFORE PAYMENT.

ACCORDINGLY, THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

ALSO, THERE ARE PRESENTED FOR DECISION THE FOLLOWING QUESTIONS.

A. IF AUTHORIZED, OR NOT PRECLUDED BY SERVICE REGULATIONS, COULD A SERVICE MEMBER SPECIFY THE PERCENTAGE OF THE DEATH GRATUITY WHICH HE DESIRED TO BE PAID TO CERTAIN DESIGNATED BENEFICIARIES?

B. IF THE ANSWER TO A, ABOVE, IS AFFIRMATIVE, WOULD THE ANSWER TO THE PRIMARY QUESTION BE THE SAME IN ALL FOUR OF THE FOLLOWING CASES?

(FACTS: THE MEMBER IS SURVIVED BY HIS FATHER, MOTHER, BROTHERS, A AND B AND SISTERS C AND D IN ALL CASES EXCEPT AS NOTED BELOW).

(1) THE MEMBER'S DESIGNATION READS:

SISTER C

MOTHER

BROTHER A

THE SISTER (C) PREDECEASES THE MEMBER.

(2) THE MEMBERS DESIGNATION READS:

SISTER C 33 1/3 PERCENT

MOTHER 33 1/3 PERCENT

BROTHER A 33 1/3 PERCENT

THE SISTER (C) PREDECEASES THE MEMBER.

(3) THE MEMBER'S DESIGNATION READS:

SISTER C 25 PERCENT

MOTHER 50 PERCENT

BROTHER A 25 PERCENT

THE SISTER (C) PREDECEASES THE MEMBER.

(4) THE MEMBER'S DESIGNATION READS:

SISTER C

SISTER D

BROTHER A

THE SISTER (C) PREDECEASES THE MEMBER AND SUBSEQUENT TO THE DATE THE DESIGNATION WAS MADE BY THE MEMBER, BROTHER (B) WAS BORN AND IS ALIVE AT TIME FOR PAYMENT OF THE DEATH GRATUITY.

C. WOULD THE ANSWER TO THE PRIMARY QUESTION BE THE SAME IF, UPON THE SAME FACTS OTHERWISE, THE BENEFICIARIES ALL SURVIVED THE SERVICE MEMBER BUT ONE OF THEM DIED BEFORE PAYMENT COULD BE MADE?

D. WOULD THE ANSWER TO THE PRIMARY QUESTION BE THE SAME IF, UPON THE SAME FACTS OTHERWISE, ALL OF THE NAMED BENEFICIARIES SURVIVED THE SERVICE MEMBER CONCERNED BUT ONE OF THEM WAS INELIGIBLE UNDER THE STATUTE BECAUSE HE WAS NOT A PARENT OR BROTHER OR SISTER OF THE MEMBER?

THERE ARE FIVE CLASSES OF PERSONS WHO MAY RECEIVE A GRATUITY UNDER SUBSECTION 301 (C), 38 U.S.C. 1131 (C). EACH CLASS, EXCEPT THE FIRST-- A SPOUSE--- MAY CONSIST OF MORE THAN ONE PERSON. IN EACH CLASS WHICH MAY CONSIST OF MORE THAN ONE PERSON THE LAW STIPULATES THAT THE DISTRIBUTION SHALL BE "IN EQUAL SHARES," EXCEPT AS TO CLASS (3), DESIGNATED BENEFICIARIES. THE OMISSION FROM THE STATUTE OF ANY WORDS REQUIRING THE PAYMENT TO MEMBERS IN THAT CLASS IN EQUAL SHARES LEADS TO THE CONCLUSION THAT WHEN BENEFICIARIES MAY BE DESIGNATED, THE PROPORTIONATE SHARE TO EACH BENEFICIARY, IF THERE BE MORE THAN ONE, ALSO MAY BE DESIGNATED.

EXCEPT IN THE CASES IN WHICH THE $3,000 MAXIMUM WOULD BE APPLICABLE, IT IS EXTREMELY DOUBTFUL THAT A MEMBER, WHEN DESIGNATING A BENEFICIARY OR BENEFICIARIES TO RECEIVE HIS GRATUITY, COULD ANTICIPATE WITH REASONABLE ACCURACY THE AMOUNT OF SUCH GRATUITY. THAT AMOUNT WOULD DEPEND UPON HIS GRADE AND LENGTH OF SERVICE AT THE TIME OF HIS DEATH, WHETHER HE THEN WAS ENTITLED TO SPECIAL OR INCENTIVE PAY, ETC. HENCE, WHEN A MEMBER DESIGNATES SEVERAL BENEFICIARIES HE IS NOT ALLOTTING A SPECIFIC SUM OF MONEY TO EACH, BUT RATHER IS INDICATING HIS DESIRE THAT THEY SHARE THE GRATUITY, EQUALLY, OR IN VARIOUS PROPORTIONS DEPENDING UPON THE TERMS OF THE DESIGNATION.

QUESTION A IS ANSWERED IN THE AFFIRMATIVE. IT IS ASSUMED THAT REGULATIONS WILL BE ISSUED WHICH WOULD PRECLUDE FRIVOLOUS DESIGNATIONS, SUCH AS ONE PERCENTUM TO A PARTICULAR BENEFICIARY, FOR EXAMPLE.

QUESTION B (1) IS ANSWERED BY SAYING THAT THE MOTHER AND BROTHER A WOULD TAKE THE GRATUITY IN EQUAL SHARES.

LIKEWISE, IN QUESTION B (2) THE MOTHER AND BROTHER A WOULD TAKE THE GRATUITY IN EQUAL SHARES.

IN QUESTION B (3) THE MOTHER WOULD TAKE TWO-THIRDS OF THE GRATUITY, AND BROTHER A WOULD TAKE ONE-THIRD.

IN QUESTION B (4) BROTHER B WAS NOT DESIGNATED AND HENCE CANNOT TAKE AS AGAINST DESIGNATED BENEFICIARIES. SISTER D AND BROTHER A SHARE THE GRATUITY EQUALLY.

THE ANSWER TO QUESTION C IS IN THE AFFIRMATIVE. SEE THE ANSWER TO THE PRIMARY QUESTION.

IN THE PRIMARY QUESTION ONE PERSON INTENDED BY THE SERVICE MEMBER TO SHARE IN HIS GRATUITY COULD NOT DO SO BECAUSE OF THAT PERSON'S DEATH. QUESTION D ONE PERSON INTENDED BY THE SERVICE MEMBER TO SHARE IN HIS GRATUITY CANNOT DO SO BECAUSE HE WAS NOT ELIGIBLE FOR DESIGNATION.