B-160939, NOVEMBER 14, 1967, 47 COMP. GEN. 270

B-160939, NOVEMBER 14, 1967, 47 COMP. GEN. 270

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - CHILDREN - PAYMENTS TO NATURAL GUARDIAN THE MONTHLY ANNUITY PAYMENTS DUE UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446, FOR THE USE AND BENEFIT OF THE MINOR CHILDREN OF A DECEASED MEMBER OF THE UNIFORMED SERVICES MAY BE PAID TO THE MOTHER, GRANTED CUSTODY OF THE CHILDREN WHEN DIVORCED FROM THE DECEDENT, AS NATURAL GUARDIAN OF THE CHILDREN, NOTWITHSTANDING THE $1,000 LIMITATION IMPOSED UNDER PARAGRAPH 4504B (5) MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL ON PAYMENTS TO A PARENT AS NATURAL GUARDIAN WILL BE EXCEEDED, AND THE MOTHER REFUSES TO OBTAIN LETTERS OF GUARDIANSHIP APPOINTING HER LEGAL GUARDIAN OF THE CHILDREN, ABSENT A RESTRICTION ON THE RECEIPT OF SMALL PERIODIC AMOUNTS, EVEN THOUGH SUCH PAYMENTS IF PROJECTED OVER A PERIOD OF TIME MAY TOTAL MORE THAN THE LIMITATION ON PAYMENTS AUTHORIZED WITHOUT APPOINTMENT OF A LEGAL GUARDIAN, PROVIDED THE MOTHER COMPLIES WITH TITLE 4, SECTION 42.3, GENERAL ACCOUNTING OFFICE POLICY AND PROCEDURES MANUAL FOR THE GUIDANCE OF FEDERAL AGENCIES.

TO N. R. BRENINGSTALL, DEPARTMENT OF THE AIR FORCE, NOVEMBER 14, 1967:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 25, 1967, YOUR FILE ALRA-1, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $1,743 REPRESENTING MONTHLY ANNUITY PAYMENTS FOR THE PERIOD JUNE 1, 1966, THROUGH AUGUST 31, 1967, UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, TO MRS. DOROTHY J. NUNES FOR THE USE AND BENEFIT OF THE MINOR CHILDREN OF THE LATE STAFF SERGEANT EUGENE J. UNCZUR, USAF, RETIRED. YOUR REQUEST WAS FORWARDED TO THIS OFFICE BY LETTER DATED OCTOBER 11, 1967, FROM THE DIRECTORATE OF ACCOUNTING AND FINANCE AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF- 965 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SERGEANT UNCZUR WAS RETIRED FROM THE UNITED STATES AIR FORCE EFFECTIVE MARCH 18, 1966, UNDER THE PROVISIONS OF 10 U.S.C. 1201 AND DIED MAY 5, 1966. ON OCTOBER 14, 1965, HE ELECTED (OPTION 2 WITH OPTION 4 UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446) TO RECEIVE A REDUCED AMOUNT OF RETIRED PAY TO PROVIDE AN ANNUITY PAYABLE TO OR ON BEHALF OF HIS SURVIVING CHILD OR CHILDREN. BY FINAL DECREE OF DIVORCE, APPARENTLY GRANTED JUNE 11, 1965, DOROTHY J. UNCZUR WAS GRANTED A DIVORCE FROM SERGENT UNCZUR AND FURTHER WAS GRANTED THE CUSTODY OF THE MINOR CHILDREN OF THE MARRIAGE AND THEY ARE CURRENTLY IN HER CUSTODY.

THE MONTHLY ANNUITY PAYMENTS IN THE AMOUNT OF $116.20 (PAYABLE UNTIL THE YOUNGEST CHILD REACHES THE AGE OF 18 YEARS OR IS MARRIED) HAVE NOW EXCEEDED $1,000--- THE AMOUNT OF DEATH GRATUITY WHICH MAY BE PAID TO A PARENT AS NATURAL GUARDIAN UNDER PARAGRAPH 40504B (5), MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, SEE OUR DECISION OF DECEMBER 16, 1958, B- 137754, 38 COMP. GEN. 436. SINCE MRS. NUNES HAS REFUSED TO OBTAIN LETTERS OF GUARDIANSHIP APPOINTING HER LEGAL GUARDIAN OF THE CHILDREN, ANNUITY PAYMENTS DUE THE CHILDREN OF THE DECEASED MEMBER HAVE BEEN WITHHELD, WITH THE EXCEPTION OF THE PAYMENT FOR THE MONTH OF MAY 1966, WHICH WAS ALLOWED IN HER FAVOR BY SETTLEMENT OF OUR CLAIMS DIVISION DATED JULY 17, 1967. THEREFORE, YOU REQUEST A DECISION REGARDING PAYMENTS OF ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN TO THE NATURAL GUARDIAN OF MINOR CHILDREN WHEN THE TOTAL AMOUNT DUE WILL BE IN EXCESS OF $1,000.

IT IS PROVIDED IN 10 U.S.C. 1444, THAT THE PRESIDENT SHALL PRESCRIBE REGULATIONS TO CARRY OUT THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN AND THAT DETERMINATIONS AND CERTIFICATIONS OF ELIGIBILITY FOR, AND PAYMENTS OF, ANNUITIES AND OTHER PAYMENTS OR REFUNDS UNDER THE PLAN SHALL BE MADE BY THE DEPARTMENT CONCERNED. BY SECTION 2 OF EXECUTIVE ORDER NO. 10499, DATED NOVEMBER 4, 1953, 18 FR 7003, THE PRESIDENT DELEGATED TO THE DEPARTMENTS CONCERNED THE AUTHORITY TO PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THE PLAN. PARAGRAPH 504 OF THOSE REGULATIONS, EFFECTIVE OCTOBER 4, 1961, READS AS FOLLOWS:

"ANNUITIES FOR A CHILD OR CHILDREN WILL BE PAID TO THE CHILD'S GUARDIAN, OR IF THERE IS NO GUARDIAN TO THE PERSON/S) WHO HAS CARE, CUSTODY, AND CONTROL OF THE CHILD OR CHILDREN.'

IT HAS LONG BEEN THE PRACTICE OF THE ADMINISTRATIVE OFFICERS AND OF THIS OFFICE, IN THE ABSENCE OF STATUTORY PROVISIONS TO THE CONTRARY, TO MAKE SMALL PAYMENTS DUE MINOR CHILDREN FROM THE UNITED STATES TO THOSE PERSONS WHO ACT AS GUARDIANS AND WHO HAVE CUSTODY OF THE MINOR CHILDREN WITHOUT THE NECESSITY OF THEIR BEING APPOINTED LEGAL GUARDIANS OF THE PROPERTY OF SUCH MINORS UNLESS THERE IS DOUBT THAT THE PROCEEDS WILL BE USED FOR THE BENEFIT OF THE CHILD OR CHILDREN.

IN OUR DECISION OF DECEMBER 16, 1958, CITED BY YOU, WE REFERRED TO THE RULE THAT THE MOTHER AND FATHER ARE GENERALLY REGARDED AS THE NATURAL GUARDIANS OF A CHILD. SINCE THE LAWS OF MANY STATES AUTHORIZE PAYMENTS OF SMALL AMOUNTS DUE A MINOR TO BE MADE TO HIS PARENTS, WE HELD THAT WE WOULD HAVE NO OBJECTION TO REGULATIONS WHICH WOULD PERMIT SIX MONTHS' DEATH GRATUITY PAYMENTS NOT IN EXCESS OF $1,000 TO BE MADE TO THE FATHER OR THE MOTHER AS NATURAL GUARDIAN.

ALTHOUGH STATE LAWS GENERALLY IMPOSE LIMITATIONS ON THE AMOUNT OF THE MINOR'S ESTATE THAT A NATURAL GUARDIAN MAY RECEIVE, THERE APPEARS TO BE NO GENERAL RESTRICTIONS ON THE RECEIPT OF SMALL PERIODIC PAYMENTS THAT MAY BE DUE THE MINOR EVEN THOUGH SUCH AMOUNTS IF PROJECTED OVER A PERIOD OF TIME MAY TOTAL MORE THAN THE LIMITATION ON PAYMENTS AUTHORIZED WITHOUT APPOINTMENT OF A LEGAL GUARDIAN. SEE 18 COMP. GEN. 899 AND 19 ID. 789.

IN VIEW OF THE ADMINISTRATIVE REGULATIONS AND THE PRACTICE PREVAILING RELATIVE TO THE PAYMENT OF AN ANNUITY DUE MINORS UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN TO PERSONS HAVING THE CARE, CUSTODY AND CONTROL OF SUCH MINORS, WE HAVE NO OBJECTION TO PAYMENTS OF MONTHLY ANNUITY TO A NATURAL PARENT HAVING CUSTODY OF THE MINOR TO WHOM THE PAYMENT IS DUE PROVIDED THE CLAIMANT COMPLIES WITH THE REQUIREMENTS OF SECTION 42.3, TITLE 4, GAO POLICY AND PROCEDURES MANUAL. SEE COPY OF STATEMENT DATED JULY 10, 1967, OF MRS. NUNES, FORWARDED HEREWITH.

ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PAID, IF OTHERWISE CORRECT, AND SUCCEEDING MONTHLY PAYMENTS OF ANNUITY MAY BE MADE TO THE MOTHER AS NATURAL GUARDIAN OF THE MINOR ANNUITANTS AS SUCH PAYMENTS BECOME DUE AND PAYABLE.