B-172904, APR 14, 1972

B-172904, APR 14, 1972

MILITARY PERSONNEL - DECEDENT'S UNPAID PAY AND ALLOWANCES - ENTITLEMENT OF BENEFICIARY DECISION AFFIRMING A PRIOR DETERMINATION THAT PAYMENT TO JACK SCHWARTZ AS BENEFICIARY OF COL. MORRIS S. SCHWARTZ, DECEASED, WAS BASED ON AN ERRONEOUS INTERPRETATION OF THE DECEDENT'S DESIGNATION. BY DECISION B-172904, JULY 2, 1971, THE COMP. GEN. HELD THAT PAYMENT OF THE UNPAID PAY AND ALLOWANCES DUE COL. SCHWARTZ SHOULD BE MADE TO HIS WIDOW, MRS. MAGGIE B. SCHWARTZ, SINCE THE RECORD ITSELF INDICATES THAT PAYMENT TO THE PERSON DESIGNATED WAS CONTINGENT ON THE DECEDENT HAVING NEITHER A WIFE OR CHILD. IN ANY EVENT, IT IS GENERALLY ACCEPTED THAT WHERE AMBIGUITY EXISTS AS TO THE INTENT OF A PERSON EXECUTING AN INSTRUMENT, TESTAMENTARY IN NATURE, EXTRINSIC EVIDENCE MAY BE USED TO ESTABLISH HIS INTENT. 4 BOWE-PARKER: PAGE ON WILLS, SECTION 32.2. IN THE INSTANT CASE, VARIOUS AFFIDAVITS WERE PRESENTED INDICATING THE DECEDENT'S INTENT TO LEAVE THE MONIES TO HIS WIFE. ACCORDINGLY, THE PRIOR DECISION IS SUSTAINED AND THE SUBJECT AMOUNT SHOULD BE REFUNDED IN ACCORDANCE WITH THE REQUEST OF SEPTEMBER 1, 1971, BY THE ARMY FINANCE CENTER.

TO MR. JACK SCHWARTZ:

THIS REFERS TO YOUR LETTER DATED NOVEMBER 24, 1971, WITH ENCLOSURES, ADDRESSED TO THE COMPTROLLER GENERAL OF THE UNITED STATES THROUGH THE FINANCE CENTER, U.S. ARMY. IN THAT LETTER YOU STATE THAT YOU DESIRE TO APPEAL THE ORDER DECLARING THAT PAYMENT TO YOU AS BENEFICIARY OF COLONEL MORRIS S. SCHWARTZ, DECEASED, WAS BASED ON AN ERRONEOUS INTERPRETATION OF THE DECEDENT'S DESIGNATION.

OUR FILE INDICATES THAT PAYMENT IN THE AMOUNT OF $3,932.48 REPRESENTING MORRIS S. SCHWARTZ' UNPAID PAY AND ALLOWANCES, WAS MADE TO YOU ON THE BASIS OF A DESIGNATION ON DA FORM 41, EXECUTED BY THE DECEDENT ON MAY 18, 1966.

SUBSEQUENT TO THE PAYMENT TO YOU, MRS. MAGGIE B. SCHWARTZ, THE WIDOW OF THE DECEDENT, MADE CLAIM TO THE PAYMENT ON THE BASIS THAT THE PAYMENT TO YOU WAS BASED ON AN ERRONEOUS INTERPRETATION OF THE DESIGNATION OF BENEFICIARY BY HER LATE HUSBAND.

AS A RESULT OF THE CLAIM BY MRS. SCHWARTZ, AN ADVANCE DECISION OF THE COMPTROLLER GENERAL WAS REQUESTED CONCERNING THE PROPRIETY OF PAYMENT OF MRS. SCHWARTZ' CLAIM.

BY DECISION B-172904, DATED JULY 2, 1971, WE HELD THAT ON THE BASIS OF THE RECORD BEFORE US THAT PAYMENT OF THE UNPAID PAY AND ALLOWANCES OF COLONEL MORRIS S. SCHWARTZ SHOULD BE PAID TO HIS WIDOW, MRS. MAGGIE B. SCHWARTZ.

A PORTION OF THE RECORD IN THAT DECISION CONSISTED OF A COPY OF THE DA FORM 41 EXECUTED BY THE DECEDENT ON MAY 18, 1966. IT WAS POINTED OUT IN OUR DECISION THAT ITEM 17 OF DA FORM 41 PROVIDES "BENEFICIARYS) FOR GRATUITY PAY IF NO SURVIVING SPOUSE OR CHILD *** ." THE WORDING OF THIS ITEM CLEARLY INDICATES THAT PAYMENT TO A PERSON DESIGNATED IN THIS SECTION OTHER THAN A SPOUSE OR CHILD IS CONTINGENT ON THE DECEDENT HAVING NEITHER A WIFE OR CHILD. IN ITEM 17 OF THE DA FORM 41 OF MAY 18, 1966, YOUR NAME WAS ENTERED. IT IS OBVIOUS THAT YOU WERE DESIGNATED TO RECEIVE THE GRATUITY PAY ONLY IF THE DECEDENT WAS NOT SURVIVED BY A WIFE OR CHILD. ITEM 18 OF THAT FORM PROVIDES "BENEFICIARYS) FOR UNPAID PAY, ALLOWANCES INCLUDING SOLDIER'S DEPOSITS *** ." IN THE SPACE PROVIDED WITH ITEM 18, IS ENTERED "SAME AS 17."

WE STATED IN OUR DECISION OF JULY 2, 1971, THAT SINCE THE PHRASE "SAME AS 17" IN ITEM 18 WAS USED, IT APPEARED THAT THE DECEDENT BELIEVED SUCH A DESIGNATION TO BE A CONTINGENT ONE AS IN THE CASE OF ITEM 17. IN ANY EVENT, IT IS GENERALLY ACCEPTED THAT WHERE AMBIGUITY EXISTS AS TO THE INTENT OF A PERSON EXECUTING AN INSTRUMENT, TESTAMENTARY IN NATURE, EXTRINSIC EVIDENCE MAY BE USED TO ESTABLISH HIS INTENT. 4 BOWE-PARKER: PAGE ON WILLS, SECTION 32.2.

AFFIDAVITS SUBMITTED BY VARIOUS PEOPLE CLOSELY CONNECTED WITH THE DECEDENT INDICATED THAT IT WAS THEIR BELIEF THAT COLONEL SCHWARTZ INTENDED TO LEAVE THE UNPAID PAY AND ALLOWANCES DUE HIM TO HIS WIFE. AMONG THE PEOPLE EXECUTING THESE AFFIDAVITS WAS THE MARINE CORPS OFFICER WHO PREPARED THE DECEDENT'S LAST WILL AND TESTAMENT. ALSO CONTAINED IN THE RECORD IS THE STATEMENT EXECUTED BY MRS. ALICE A. MITCHELL, WHO STATES THAT HER DUTIES ON MAY 18, 1966, INCLUDED THE COMPLETING OF FORMS AND CORRESPONDENCE OF THE MILITARY PERSONNEL ATTACHED TO THE HEADQUARTERS, SELECTIVE SERVICE SYSTEM, AUSTIN, TEXAS. IN HER AFFIDAVIT, MRS. MITCHELL STATES THAT SHE DISTINCTLY REMEMBERED THAT COLONEL SCHWARTZ HAD STATED HE DESIRED HIS SPOUSE TO RECEIVE HIS UNPAID PAY AND ALLOWANCES, AND THAT HE DESIRED JACK SCHWARTZ TO RECEIVE SUCH BENEFITS ONLY IN THE EVENT THAT COLONEL SCHWARTZ DID NOT HAVE A SURVIVING SPOUSE. ACCORDINGLY ON THE BASIS OF THE RECORD PAYMENT WAS AUTHORIZED TO MRS. MAGGIE B. SCHWARTZ.

IN YOUR LETTER OF NOVEMBER 24, 1971, YOU REQUEST THAT THE DA FORM 41 EXECUTED BY THE DECEDENT ON MAY 18, 1966, AND COPIES OF ALL CORRESPONDENCE BETWEEN YOU AND THE FINANCE CENTER BE TRANSMITTED TO THIS OFFICE WITH YOUR APPEAL.

AS POINTED OUT, A COPY OF THE DA FORM 41 EXECUTED BY THE DECEDENT WAS PART OF THE RECORD WHICH FORMED THE BASIS OF OUR DECISION OF JULY 2, 1971. YOUR LETTER AND THE ACCOMPANYING AFFIDAVITS PROVIDE NO NEW INFORMATION WHICH WAS NOT CONSIDERED IN OUR DECISION OF JULY 2, 1971.

ACCORDINGLY, WE MUST SUSTAIN THE HOLDING OF OUR DECISION OF JULY 2, 1971, AND THE AMOUNT OF $3,932.48 REPRESENTING THE UNPAID PAY AND ALLOWANCES DUE COLONEL MORRIS S. SCHWARTZ PAID TO YOU ON THE BASIS OF THE ERRONEOUS INTERPRETATION OF THE DA FORM 41 SHOULD BE REFUNDED IN ACCORDANCE WITH THE REQUEST OF SEPTEMBER 1, 1971, BY THE FINANCE CENTER, U.S. ARMY.