B-142054, APR. 27, 1960

B-142054, APR. 27, 1960

TO MR. AND MRS. COLEY L. BAIRD:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR ARREARS OF PAY AND ALLOWANCES AND FOR THE SIX MONTHS' DEATH GRATUITY DUE IN THE CASE OF YOUR SON, COLEY ROBERT BAIRD, 454 99 74, WHO DIED ON JANUARY 31, 1959, WHILE SERVING AS ELECTRONICS TECHNICIAN, THIRD CLASS, UNITED STATES NAVY.

THE PAYMENT OF PAY AND ALLOWANCES DUE IN THE CASES OF DECEASED MEMBERS OF THE ARMED FORCES WHO DIE AFTER DECEMBER 31, 1955, IS GOVERNED BY 10 U.S.C. 2771. THAT SECTION PROVIDES (SO FAR AS APPLICABLE HERE) THAT AN AMOUNT DUE FROM THE ARMED FORCE OF WHICH THE DECEDENT WAS A MEMBER SHALL BE PAID TO THE PERSON HIGHEST IN THE ORDER OF PRECEDENCE, LIVING ON THE DATE OF SUCH DECEDENT'S DEATH, AS FOLLOWS: (1) BENEFICIARY DESIGNATED BY THE DECEDENT IN WRITING, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE DEPARTMENT CONCERNED; (2) SURVIVING SPOUSE; (3) CHILDREN AND THEIR DESCENDANTS, BY REPRESENTATION; AND (4) FATHER AND MOTHER IN EQUAL PARTS OR, IF EITHER BE DEAD, THE SURVIVOR.

THE PAYMENT OF THE SIX MONTHS' DEATH GRATUITY IS GOVERNED BY 10 U.S.C. 1477. THAT SECTION (SO FAR AS APPLICABLE HERE) PROVIDES THAT SUCH GRATUITY SHALL BE PAID TO OR FOR THE LIVING SURVIVOR HIGHEST ON THE FOLLOWING LIST: (1) SURVIVING SPOUSE; (2) CHILDREN (INCLUDING STEPCHILDREN WHO WERE A PART OF THE DECEDENT'S HOUSEHOLD AT THE TIME OF HIS DEATH), IN EQUAL SHARES; AND (3) CERTAIN PERSONS (INCLUDING HIS PARENTS), IF DESIGNATED BY HIM. THE SECTION FURTHER PROVIDES THAT IF AN ELIGIBLE SURVIVOR DIES BEFORE HE RECEIVES THE DEATH GRATUITY, IT SHALL BE PAID TO THE LIVING SURVIVOR NEXT IN THE ORDER PRESCRIBED.

THE RECORDS SHOW THAT YOUR SON, COLEY ROBERT BAIRD, DESIGNATED HIS WIFE, RETA SUE BAIRD, AS BENEFICIARY FOR ALL UNPAID PAY AND ALLOWANCES. THEY ALSO SHOW THAT HE DESIGNATED YOU (HIS FATHER AND HIS MOTHER) AS BENEFICIARIES FOR THE SIX MONTHS' DEATH GRATUITY IN THE EVENT HE HAD NO SURVIVING SPOUSE OR ELIGIBLE CHILDREN.

THERE IS IN OUR FILE A CERTIFIED COPY OF "ORDER DETERMINING HEIRSHIP," DATED JANUARY 28, 1960, IN THE MATTER OF THE ESTATES OF COLEY ROBERT BAIRD AND RETA SUE MATHIS BAIRD, DECEASED, ISSUED BY THE PROBATE COURT OF DONA ANA COUNTRY, NEW MEXICO. THE COURT THERE DETERMINED THAT RETA SUE MATHIS BAIRD DIED SHORTLY AFTER COLEY ROBERT BAIRD AND THAT SHE LEFT SURVIVING HER AS HER SOLE AND ONLY HEIRS DEBRA LYNN HAMIL AND ROBERT DALE HAMIL, AGES 5 AND 3, WHO ARE ENTITLED TO HER ENTIRE ESTATE. SINCE RETA SUE BAIRD SURVIVED COLEY ROBERT BAIRD, THE ARREARS OF PAY AND ALLOWANCES DUE HIM AT THE DATE OF HIS DEATH VESTED IN HER AS HIS SURVIVING SPOUSE AS PROVIDED IN 10 U.S.C. 2771, AND SUCH PAY AND ALLOWANCES ARE NOW PROPERLY PAYABLE TO THE ADMINISTRATOR OF HER ESTATE.

WITH RESPECT TO THE SIX MONTHS' DEATH GRATUITY, THERE HAS BEEN NOTED YOUR CONTENTION THAT RETA SUE BAIRD DESERTED COLEY ROBERT BAIRD ON JANUARY 3, 1959, LEAVING THE HOME THAT HE HAD PROVIDED FOR HER AND HER CHILDREN BY HER FORMER MARRIAGE AND THAT SHE TOOK THE CHILDREN AND RETURNED TO THE HOME OF HER PARENTS IN WHITE SANDS, NEW MEXICO. IT IS CONTENDED ON BEHALF OF SUCH STEPCHILDREN, HOWEVER, THAT THEY WERE A PART OF THE DECEDENT'S HOUSEHOLD AT THE TIME OF HIS DEATH. IN VIEW OF SUCH CONFLICTING CLAIMS AND SINCE THERE IS INSUFFICIENT EVIDENCE IN THE FILE TO MAKE A DETERMINATION AS TO THE PERSONS ENTITLED TO RECEIVE THE SIX MONTHS' DEATH GRATUITY, WE WILL WITHHOLD SETTLEMENT WITH RESPECT TO SUCH GRATUITY UNTIL SUCH TIME AS A COURT OF COMPETENT JURISDICTION DETERMINES WHETHER OR NOT THE CHILDREN OF RETA SUE BAIRD BY HER FORMER MARRIAGE WERE A PART OF THE HOUSEHOLD OF COLEY ROBERT BAIRD AT THE TIME OF HIS DEATH. IF YOU CAN FURNISH EVIDENCE SHOWING THAT A COURT OF COMPETENT JURISDICTION HAS DETERMINED THAT SUCH CHILDREN WERE NOT A PART OF THE HOUSEHOLD OF COLEY ROBERT BAIRD AT THE TIME OF HIS DEATH, YOUR CLAIM FOR THE SIX MONTHS' DEATH GRATUITY IN THIS CASE WILL BE GIVEN FURTHER CONSIDERATION BY OUR OFFICE.