B-170511, SEP. 2, 1970

B-170511, SEP. 2, 1970

RETIRED PAY -- DECEASED MENTALLY INCOMPETENT SERVICEMAN -- DECEDENT'S ESTATES PAYMENT OF WITHHELD RETIRED PAY UNDER 38 U.S.C. 3203 MAY NOT BE MADE TO THE PARENTS OF A DECEASED MILITARY MEMBER WHO DIED IN A VETERANS' ADMINISTRATION HOSPITAL AFTER BEING ADJUDGED MENTALLY INCOMPETENT. SINCE THERE WAS NO EVIDENCE THAT THE DECEDENT'S PARENTS WERE DEPENDENT UPON THE MEMBER FOR THEIR SUPPORT ALTHOUGH THE FATHER AS GUARDIAN HAD ACQUIESCED IN AND ACCEPTED PAYMENT OF REDUCED RETIRED PAY, THE LUMP SUM PAYMENT MAY NOT BE MADE. SIMILAR CASES INVOLVING DOUBT AS TO THE MATTER OF DEPENDENCY SHOULD BE FORWARDED TO GAO FOR SETTLEMENT.

TO MAJOR N. C. ALCOCK:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 20, 1970, WHICH WAS FORWARDED HERE BY LETTER DATED AUGUST 3, 1970, FROM HEADQUARTERS UNITED STATES AIR FORCE, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $2,135.91 IN FAVOR OF JOHN AND OLGA SWYTAK, PARENTS OF AIRMAN SECOND CLASS DONALD SWYTAK, USAF, RETIRED, DECEASED, COVERING RETIRED PAY WITHHELD FROM THE DECEDENT DURING THE PERIOD MAY 1, 1966, THROUGH JANUARY 31, 1970, AND RETIRED PAY ($13.91) FOR THE PERIOD FEBRUARY 1 THROUGH 4, 1970. YOUR SUBMISSION HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-1091 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT AIRMAN SWYTAK WAS TEMPORARILY RETIRED UNDER 10 U.S.C. 1202 ON OCTOBER 12, 1965, AND PERMANENTLY RETIRED UNDER 10 U.S.C. 1201 ON JANUARY 17, 1967. HE WAS ADJUDGED MENTALLY INCOMPETENT ON MARCH 25, 1966, AND HIS FATHER, JOHN SWYTAK, WAS APPOINTED HIS GUARDIAN. HIS RETIRED PAY WAS REDUCED TO ONE-HALF ON MAY 1, 1966, UNDER 38 U.S.C. 3203(A)(1) AND (B)(1) SINCE HE HAD NO WIFE, CHILD OR DEPENDENT PARENTS. HIS FATHER, AS GUARDIAN, RECEIVED HIS RETIRED PAY AT THE ONE HALF RATE THROUGH JANUARY 31, 1970. THE MEMBER DIED ON FEBRUARY 4, 1970, IN THE VETERANS ADMINISTRATION HOSPITAL, LYONS, NEW JERSEY.

CLAIMS HAVE BEEN PRESENTED BY AIRMAN SWYTAK'S FATHER AND MOTHER FOR UNPAID PAY AND ALLOWANCES. THERE IS NOTHING TO INDICATE THAT THE PARENTS WERE DEPENDENT UPON HIM FOR SUPPORT AND UNDER 38 U.S.C. 3203(C) HE MUST BE DEEMED TO HAVE BEEN WITHOUT DEPENDENTS IN THE ABSENCE OF SATISFACTORY EVIDENCE TO THE CONTRARY.

YOU RAISED THE QUESTION AS TO WHETHER THE PARENTS MAY QUALIFY FOR PAYMENT ON THE BASIS OF SATISFACTORY EVIDENCE SUBMITTED AFTER DEATH OF THE MEMBER THAT A DEPENDENCY STATUS EXISTED DURING HIS LIFETIME AND, IF SO, WHAT CRITERIA IS NEEDED TO ESTABLISH SUCH DEPENDENCY. IF THE ANSWER TO THE FOREGOING QUESTION IS IN THE NEGATIVE, YOU ASK WHETHER THE AMOUNT OF THE VOUCHER OR ANY PART THEREOF MAY BE PAID TO THE PARENTS AS PAYEES OF THE BURIAL EXPENSES UNDER 38 U.S.C. 3203(A)(2)(A).

UNDER THE PROVISIONS OF 38 U.S.C. 3203(A)(1) AND (B)(1), A VETERAN, WHETHER COMPETENT OR INCOMPETENT, HAVING NEITHER A WIFE, CHILD NOR DEPENDENT PARENT, AND WHO IS BEING FURNISHED HOSPITAL TREATMENT, INSTITUTIONAL OR DOMICILIARY CARE BY THE VETERANS ADMINISTRATION, MAY CONTINUE TO RECEIVE COMPENSATION OR RETIREMENT PAY OTHERWISE PAYABLE WITHOUT REDUCTION UNTIL THE FIRST DAY OF THE SEVENTH MONTH FOLLOWING THE MONTH OF ADMISSION OF SUCH VETERAN FOR TREATMENT OR CARE. IF TREATMENT OR CARE EXTENDS BEYOND THAT PERIOD, THE COMPENSATION OR RETIREMENT PAY, IF $30 PER MONTH OR LESS, SHALL CONTINUE WITHOUT REDUCTION, BUT IF GREATER THAN $30 PER MONTH, THE COMPENSATION OR RETIREMENT PAY SHALL NOT EXCEED 50 PER CENTUM OF THE AMOUNT OTHERWISE PAYABLE OR $30 PER MONTH, WHICHEVER IS THE GREATER.

IN THE EVENT THE VETERAN DIES WHILE RECEIVING HOSPITAL CARE, ETC., THE LAW PROVIDES IN SECTION 3203(A)(2)(A) THAT ANY LUMP SUM PAYMENT AUTHORIZED IN THE LAW NOT PAID TO THE VETERAN HIMSELF SHALL BE PAID IN THE FOLLOWING ORDER OF PRECEDENCE: (1) SPOUSE, (2) CHILDREN IN EQUAL PARTS, AND (3) DEPENDENT PARENTS IN EQUAL PARTS. IT IS FURTHER PROVIDED THAT IF THERE ARE NO PERSONS IN THE CLASSES NAMED TO WHOM PAYMENT MAY BE MADE, NO PAYMENT SHALL BE MADE, EXCEPT THERE MAY BE PAID ONLY SO MUCH OF THE LUMP SUM AS MAY BE NECESSARY TO REIMBURSE A PERSON WHO BORE THE EXPENSE OF LAST SICKNESS OR BURIAL.

IN OUR DECISION B-167964 OF NOVEMBER 17, 1969, 49 COMP. GEN. WE HELD THAT, ON THE BASIS OF THE HOLDING IN THE CASE OF BERKEY V UNITED STATES, 176 CT. CL. 1 (1966), WITHHELD RETIRED PAY OF AN INCOMPETENT HOSPITALIZED VETERAN MAY BE PAID TO THE SURVIVING WIFE, CHILDREN OR DEPENDENT PARENTS IN THAT ORDER.

SINCE HOSPITALIZED VETERANS BECOME SUBJECT TO THE WITHHOLDING PROVISIONS OF 38 U.S.C. 3203(A)(1) AND (B)(1) ONLY IN THE EVENT THAT THEY HAVE "NEITHER WIFE, CHILD, NOR DEPENDENT PARENT," ENTITLEMENT TO PAYMENT OF THE LUMP SUM BY A RELATIVE OF THOSE CLASSES MAY ARISE ONLY IN EXCEPTIONAL CIRCUMSTANCES ON THE BASIS OF ADDITIONAL EVIDENCE NOT CONSIDERED AT THE TIME OF THE WITHHOLDING. NOT ONLY IS IT UNLIKELY THAT THE PARENTS OF A MENTALLY INCOMPETENT RETIRED AIRMAN COULD HAVE BEEN DEPENDENT UPON HIM FOR THEIR SUPPORT, BUT IN THIS CASE THE FATHER AS GUARDIAN ACQUIESCED IN, AND ACCEPTED PAYMENT OF, REDUCED RETIRED PAY ON THE BASIS OF NONDEPENDENCY FOR A PERIOD OF OVER THREE AND ONE-HALF YEARS. SINCE, IN MOST CASES, THE PARENTS WOULD BE CONSULTED AS TO THEIR DEPENDENCY PRIOR TO THE DEATH OF THE VETERAN, EVIDENCE OF SUCH DEPENDENCY SUBMITTED AFTER HIS DEATH WOULD HAVE TO BE OF A CONCLUSIVE NATURE IN ORDER TO SUPPORT PAYMENT OF THE LUMP SUM TO THEM. IN THE ABSENCE OF EVIDENCE CLEARLY AND CONVINCINGLY ESTABLISHING SUCH DEPENDENCY TO THE SATISFACTION OF THE PERSON CHARGEABLE WITH THE PAYMENT OF THE LUMP SUM, NO PART THEREOF IS PAYABLE. CASES INVOLVING ANY ELEMENT OF DOUBT AS TO THE MATTER OF DEPENDENCY SHOULD BE FORWARDED TO THIS OFFICE FOR SETTLEMENT.

UNDER THE PLAIN TERMS OF THE SECOND SENTENCE OF SECTION 3203(A)(2)(A) THERE MAY BE PAID FROM THE LUMP SUM THE AMOUNT NECESSARY TO REIMBURSE THE PERSON WHO BORE THE "EXPENSES OF LAST SICKNESS OR BURIAL" OF THE VETERAN. THERE HAS BEEN FORWARDED A COPY OF THE RECEIPTED FUNERAL BILL SHOWING THAT FUNERAL EXPENSES AMOUNTING TO $1,541 HAVE BEEN PAID AND MR. SWYTAK ALLEGES PAYMENT OF ADDITIONAL EXPENSES INCURRED FOR THE GRAVE SITE. HOWEVER, THERE IS NO SHOWING AS TO THE SOURCE OF FUNDS WHICH WERE USED FOR PAYMENT OF SUCH EXPENSES OR WHETHER ANY AMOUNT TO COVER SUCH EXPENSES HAS BEEN PAID BY THE VETERANS ADMINISTRATION PURSUANT TO 38 U.S.C. 902, 903. THE ABSENCE OF EVIDENCE SHOWING THE AMOUNT, IF ANY, THAT WAS PAID TOWARD THE BURIAL EXPENSES FROM THE PERSONAL FUNDS OF THE PARENTS, NO REIMBURSEMENT MAY BE MADE TO THEM FROM THE AMOUNT WITHHELD. OF COURSE, ONLY THOSE CHARGES ORDINARILY INCURRED IN CONNECTION WITH BURIAL MAY BE CONSIDERED.

ON THE PRESENT RECORD ONLY ONE-HALF OF THE RETIRED PAY DUE FOR THE PERIOD FEBRUARY 1 TO 4, 1970, MAY BE PAID TO THE PARENTS PURSUANT TO THE PROVISIONS OF 10 U.S.C. 2771(A)(4). ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED, MAY BE PAID IF IT IS ADJUSTED TO SHOW THE AMOUNT OF $6.96.