B-161823, AUG. 15, 1967

B-161823, AUG. 15, 1967

ARMED SERVICES - RETIRED PAY - ARREARS DECISION TO INDIVIDUAL WHO CLAIMS ARREARS OF RETIRED PAY ON BEHALF OF BROTHER WHO WAS RETIRED NAVY MEMBER AT TIME OF DEATH. SINCE NO RECORD THAT BROTHER DESIGNATED CLAIMANT AS BENEFICIARY AND IN ABSENCE OF EVIDENCE SHOWING THAT MEMBER WAS NOT SURVIVED BY WIDOW OR CHILDREN, 10 U.S.C. 2771 WHICH ESTABLISHES PRECEDENCE FOR PAYMENT PRECLUDES ALLOWANCE OF CLAIM.

TO MRS. JULIANA Z. ELLASO:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 20, 1966, ADDRESSED TO THE NAVY FINANCE CENTER, CLEVELAND, OHIO, CONCERNING YOUR CLAIM FOR ARREARS OF RETIRED PAY DUE YOUR BROTHER, EUSEBIO ZATA, USN, RETIRED, AT THE DATE OF HIS DEATH ON SEPTEMBER 9, 1963.

THERE HAS ALSO BEEN RECEIVED YOUR LETTER DATED APRIL 21, 1967, ADDRESSED TO THE NAVY DEPARTMENT, WASHINGTON, D.C., CONCERNING YOUR CLAIM FOR "DEATH GRATUITY PAY AND SHIPPING COSTS OF HOUSEHOLD GOODS" AS WELL AS OTHER ITEMS MENTIONED AS BEING AUTOMATICALLY PAYABLE TO THE BENEFICIARIES WHO APPEARED ON THE "CASUALTY CERTIFICATE.'

THE RECORD DISCLOSES THAT YOUR BROTHER WAS RETIRED FOR PHYSICAL DISABILITY ON SEPTEMBER 1, 1948. SINCE HE WAS IN AN INACTIVE STATUS ON THE RETIRED LIST AT THE TIME OF HIS DEATH NO DEATH GRATUITY IS PAYABLE IN HIS CASE AND NEITHER IS THERE ANY AMOUNT DUE FOR TRANSPORTATION OF HOUSEHOLD EFFECTS INCIDENT TO HIS DEATH. IF HE OWNED ANY U.S. SAVINGS BONDS DURING HIS LIFETIME, WE HAVE NO INFORMATION WHICH INDICATES THAT ANY OF SUCH BONDS ARE NOW IN THE POSSESSION OF THE GOVERNMENT. CONCERNING THE TWO ORGANIZATIONS YOU MENTION (NAVY MUTUAL AID ASSOCIATION AND THE NAVY RELIEF SOCIETY, APPARENTLY PRIVATE ORGANIZATIONS) WE HAVE NO INFORMATION WHICH SUGGESTS THAT YOUR BROTHER WAS A MEMBER OF, OR WAS ENTITLED TO RECEIVE ANY MONEY FROM, EITHER ORGANIZATION.

AT THE TIME OF YOUR BROTHER'S DEATH IT APPEARS THAT HE WAS ENTITLED TO RETIRED PAY FOR THE PERIOD SEPTEMBER 1 TO 9, 1963, IN THE APPROXIMATE AMOUNT OF $76.27, AND NO OTHER ITEM OWED BY THE GOVERNMENT HAS BEEN REPORTED TO THIS OFFICE FOR PROPER DISPOSITION IN THIS CASE.

YOUR CLAIM AND THOSE OF YOUR SIX BROTHERS AND SISTERS WERE FORWARDED TO THIS OFFICE BY THE U.S. NAVY FINANCE CENTER FOR DETERMINATION AS TO ENTITLEMENT TO PAYMENT SINCE THE RECORDS DISCLOSED THAT THE DECEDENT MAY HAVE BEEN SURVIVED BY TWO SONS, CARLOS AND EUSEBIO, JR. YOU WERE EACH ADVISED BY LETTERS OF OUR CLAIMS DIVISION THAT THE SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE ARMED FORCES, INCLUDING RETIRED PERSONNEL, WHO DIED AFTER DECEMBER 31, 1955, IS GOVERNED BY SECTION 2771, TITLE 10, U.S.C. UNDER THAT PROVISION OF LAW ANY AMOUNT DUE FROM THE ARMED FORCE OF WHICH DECEDENT WAS A MEMBER MUST BE PAID TO THE PERSON HIGHEST ON THE FOLLOWING LIST WHO IS LIVING ON THE DATE OF HIS DEATH:

(1) BENEFICIARY DESIGNATED BY THE MEMBER.

(2)SURVIVING SPOUSE.

(3) CHILDREN AND THEIR DESCENDANTS, BY REPRESENTATION.

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

(5) LEGAL REPRESENTATIVE.

(6) PERSON ENTITLED UNDER THE LAW OF THE DOMICILE OF THE DECEASED MEMBER.

IT IS NOTED THAT YOU NOW CLAIM THE AMOUNT DUE YOUR LATE BROTHER AS HIS BENEFICIARY. HOWEVER, THERE IS NO RECORD OF A DESIGNATION BY THE DECEDENT OF A BENEFICIARY TO RECEIVE THE AMOUNT DUE HIM. THE REPORT OF CASUALTY BEARS A STAMPED CERTIFICATION THAT RECORDS OF THE NAVY DEPARTMENT FAIL TO SHOW THAT HE DESIGNATED A BENEFICIARY TO RECEIVE HIS UNPAID PAY.

IT IS DISCLOSED THAT YOUR BROTHER HAD TWO SONS, CARLOS ZATA AND EUSEBIO ZATA, JR., AND NO EVIDENCE HAS BEEN SUBMITTED TO SHOW THAT HE IS NOT SURVIVED BY A WIDOW OR CHILDREN. THE LAW REFERRED TO ABOVE ESTABLISHES THE ORDER OF PRECEDENCE FOR THE CONSIDERATION OF CLAIMS FOR AMOUNTS DUE DECEASED MEMBERS OF THE ARMED FORCES AND NO EXCEPTIONS MAY BE MADE IN THE APPLICATION OF ITS PROVISIONS. ACCORDINGLY, IN THE ABSENCE OF EVIDENCE SHOWING THAT YOUR BROTHER WAS NOT SURVIVED BY WIDOW OR CHILDREN, NO PAYMENT MAY BE MADE TO YOU AND THE AMOUNT DUE MUST BE RESERVED FOR THOSE PERSONS WHOSE CLAIMS HAVE PRECEDENCE OVER YOURS.