B-149683, SEP. 5, 1962

B-149683, SEP. 5, 1962

TO MRS. ROSA E. WINSTON:

REFERENCE IS MADE TO YOUR LETTER OF JULY 30, 1962, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM, AS FRIEND, FOR PAY DUE THE LATE CHARLEY HARRISON, UNITED STATES ARMY (RETIRED), AT THE DATE OF HIS DEATH, MARCH 13, 1962.

IT APPEARS FROM THE RECORD THAT THE DECEDENT WAS NOT SURVIVED BY A WIDOW, DESCENDANT, PARENT, BROTHER OR SISTER OR THEIR DESCENDANTS AND THAT THERE IS DUE HIS ESTATE THE SUM OF $115.54, REPRESENTING RETIRED PAY FOR THE PERIOD MARCH 1 TO 13, 1962. YOUR CLAIM WAS DISALLOWED IN SETTLEMENT DATED MAY 29, 1962, FOR THE REASON THAT A FRIEND DOES NOT COME WITHIN THE CLASSES OF HEIRS NAMED IN SECTION 2771 OF TITLE 10, U.S.C. TO SHARE IN THE DISTRIBUTION OF THE ESTATES OF DECEASED PERSONNEL OF THE ARMY. BY LETTER OF JULY 20, 1962, OUR CLAIMS DIVISION ADVISED YOU THAT THE FACT THAT YOU WERE THE DESIGNATED BENEFICIARY IN THE DECEDENT'S WILL DOES NOT QUALIFY YOU TO TAKE UNDER THE ABOVE-CITED STATUTORY PROVISIONS, BUT IF THE WILL HAS BEEN OR WILL BE PROBATED A CLAIM BY THE EXECUTOR MAY BE CONSIDERED.

IN YOUR LETTER OF JULY 30, 1962, YOU STATE THAT YOU ARE CLAIMING THE AMOUNTS DUE THE DECEDENT BECAUSE HE IS NOT SURVIVED BY A WIDOW, CHILDREN OR PARENTS AND FOR THE PAST THIRTEEN YEARS YOU HAVE ASSISTED MR. HARRISON, BEEN HIS REPRESENTATIVE, AND WERE APPOINTED BY HIM AS THE BENEFICIARY OF HIS ESTATE.

WHILE WE APPRECIATE YOUR FEELINGS IN THE MATTER, THIS OFFICE MUST BE GOVERNED BY THE APPLICABLE STATUTORY PROVISIONS IN THE SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE ARMED FORCES, INCLUDING RETIRED PERSONNEL. SUCH PROVISIONS ARE SET FORTH IN 10 U.S.C. 2771, AS AMENDED, WHICH PROVIDES IN SUBSECTION (A) AS FOLLOWS:

"/A) IN THE SETTLEMENT OF THE ACCOUNTS OF A DECEASED MEMBER OF THE ARMED FORCES WHO DIES AFTER DECEMBER 31, 1955, AN AMOUNT DUE FROM THE ARMED FORCE OF WHICH HE WAS A MEMBER SHALL BE PAID TO THE PERSON HIGHEST ON THE FOLLOWING LIST LIVING ON THE DATE OF DEATH:

"/1) BENEFICIARY DESIGNATED BY HIM IN WRITING TO RECEIVE SUCH AN AMOUNT, IF THE DESIGNATION IS RECEIVED, BEFORE THE DECEASED MEMBER'S DEATH, AT THE PLACE NAMED IN REGULATIONS TO BE PRESCRIBED BY THE SECRETARY CONCERNED.

"/2) SURVIVING SPOUSE.

"/3) CHILDREN AND THEIR DESCENDANTS, BY REPRESENTATION.

"/4) FATHER AND MOTHER IN EQUAL PARTS OR, IF EITHER IS DEAD, THE SURVIVOR.

"/5) LEGAL REPRESENTATIVE.

"/6) PERSON ENTITLED UNDER THE LAW OF THE DOMICILE OF THE DECEASED MEMBER.' YOU WILL NOTE THAT IN CASES SUCH AS MR. HARRISON'S WHERE THERE HAS BEEN NO APPOINTMENT OF A LEGAL REPRESENTATIVE AND THE DECEDENT IS NOT SURVIVED BY A SPOUSE, DESCENDANT, OR PARENT, THE STATUTE MAKES NO PROVISION IN SUCH CIRCUMSTANCES, FOR PAYMENT OF THE AMOUNT DUE TO A FRIEND. HENCE, THERE IS NO LEGAL AUTHORITY PERMITTING US TO ALLOW YOUR CLAIM ON THAT BASIS.

IT APPEARS THAT YOU BELIEVE THAT, SINCE MR. HARRISON AGREED IN MAY 1950 FOR YOU TO SEE AFTER HIS BUSINESS AFFAIRS AND PERSON, AND ALSO NAMED YOU AS THE PRINCIPLE DEVISEE IN HIS WILL DATED APRIL 9, 1951, YOU QUALIFY AS THE DESIGNATED BENEFICIARY UNDER THE FIRST CLASS OF DISTRIBUTEES NAMED IN THE ABOVE-QUOTED PROVISION. IN THIS CONNECTION, IT SHOULD BE NOTED THAT THE PROVISION SPECIFICALLY REQUIRES THAT THE WRITTEN DESIGNATION BE RECEIVED BEFORE THE DECEASED MEMBER'S DEATH, AT THE PLACE NAMED IN REGULATIONS TO BE PRESCRIBED BY THE SECRETARY CONCERNED. PURSUANT TO THAT AUTHORITY, THE SECRETARY OF THE ARMY ISSUED REGULATIONS (SEE ARMY REGULATIONS NO. 640-40 AND NO. 37-104) WHICH PROVIDE THAT DESIGNATIONS OF BENEFICIARIES BY RETIRED ARMY PERSONNEL BE FORWARDED TO THE FINANCE CENTER, ATTENTION: RETIRED PAY DIVISION, U.S. ARMY, INDIANAPOLIS 49, INDIANA. THE ARMY FINANCE CENTER HAS REPORTED THAT THERE IS NOT A DESIGNATED BENEFICIARY OF RECORD TO RECEIVE THE RETIRED PAY DUE MR. HARRISON. ACCORDINGLY, YOU DO NOT QUALIFY AS MR. HARRISON'S DESIGNATED BENEFICIARY WITHIN THE CONTEMPLATION OF THE ABOVE STATUTORY PROVISION.

WITH THIS EXPLANATION, WE TRUST YOU WILL UNDERSTAND WHY THIS OFFICE MAY NOT ALLOW YOUR CLAIM AS FRIEND OR DESIGNATED BENEFICIARY OF THE DECEDENT. HOWEVER, AS INDICATED, THE AMOUNT DUE, $115.54, MAY BE ALLOWED TO A DULY APPOINTED EXECUTOR OF MR. HARRISON'S WILL. SHOULD YOU DEEM IT EXPEDIENT IN THE CIRCUMSTANCES TO HAVE THE WILL PROBATED AND YOURSELF APPOINTED EXECUTOR, THE AMOUNT DUE COULD BE ALLOWED UPON RECEIPT OF YOUR CLAIM IN THAT CAPACITY ACCOMPANIED BY A DULY AUTHENTICATED COPY OF CERTIFICATE OF YOUR APPOINTMENT. SUCH CLAIM SHOULD BE ADDRESSED TO THE GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION, WASHINGTON 25, D.C. MR. HARRISON'S WILL DATED APRIL 9, 1951, IS ENCLOSED.