B-177603, MAR 22, 1973

B-177603, MAR 22, 1973

MILITARY PERSONNEL - ARREARS IN PAY DUE AT DEATH - DESIGNATED SUCCESSIVE ALTERNATE BENEFICIARY DECISION AFFIRMING THE DENIAL OF THE CLAIM OF BARBARA MULHOLLAND JONES FOR ONE-HALF OF THE ARREARS IN PAY DUE HER LATE FATHER JOHN J. MULHOLLAND. SINCE CLAIMANT WAS ONLY DESIGNATED A SUCCESSIVE ALTERNATE BENEFICIARY BY THE MEMBER, THE ALTERNATE BENEFICIARY "HIGHER ON THE LIST" LIVING AT THE MEMBER'S DEATH WAS ENTITLED TO ALL THE MEMBER'S ARREARS IN PAY. 10 U.S.C. 277.

TO MRS. BARBARA MULHOLLAND JONES:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 24, 1973, IN EFFECT REQUESTING REVIEW OF SETTLEMENT OF OUR TRANSPORTATION AND CLAIMS DIVISION DATED JANUARY 16, 1973, WHICH DENIED YOUR CLAIM FOR ONE HALF OF THE ARREARS OF RETIRED PAY DUE YOUR FATHER, JOHN J. MULHOLLAND, ON THE DATE OF HIS DEATH, FEBRUARY 6, 1972.

ON JULY I8, 1956, YOUR FATHER SIGNED FORM NAVY-FC/1786A, DESIGNATION OF BENEFICIARY BY NAVY RETIRED/RETAINER INDIVIDUAL, ON THE FIRST LINE OF WHICH HE LISTED EDNA MAE MULHOLLAND, THEN HIS WIFE, TO RECEIVE 100 PERCENT OF HIS RETIRED PAY DUE AND UNPAID AT HIS DEATH. ON THE DESCENDING LINE HE LISTED YOUR BROTHER AND STATED IN THE BOX MARKED "SHARE" THE WORD "OR." ON THE BOTTOM LINE HE LISTED YOUR NAME AND ALSO PLACED IN THE BOX MARKED "SHARE" THE WORD "OR."

THE RECORD SHOWS THAT ON MARCH 30, 1959, YOUR FATHER DIVORCED EDNA MAE MULHOLLAND; THAT ON THE SAME DATE HE MARRIED THE FORMER MARY HELEN SCOTT; THAT MARY HELEN MULHOLLAND SURVIVED HIM, AND THAT EDNA MAE MULHOLLAND DIED AUGUST 10, 1968.

AS WAS STATED IN THE DISALLOWANCE, THE SETTLEMENT OF ACCOUNTS OF A DECEASED MEMBER OF THE ARMED FORCES, INCLUDING A RETIRED MEMBER WHO DIES AFTER DECEMBER 31, 1955, IS GOVERNED BY 10 U.S.C. 2771, WHICH PROVIDES, IN PERTINENT PART, FOR PAYMENT OF THE AMOUNT DUE TO THE PERSON HIGHEST ON THE FOLLOWING LIST LIVING ON THE DATE OF DEATH:

1. BENEFICIARY DESIGNATED BY HIM IN WRITING TO RECEIVE SUCH AMOUNT, IF THE DESIGNATION IS RECEIVED, BEFORE THE MEMBER'S DEATH, AT THE PLACE NAMED IN PRESCRIBED REGULATIONS.

2. SURVIVING SPOUSE.

3. CHILDREN AND THEIR DESCENDANTS, BY REPRESENTATION.

SINCE EDNA MAE MULHOLLAND'S DEATH PRECEDED YOUR FATHER'S, YOUR BROTHER AS THE NEXT ALTERNATE DESIGNATED BENEFICIARY WAS PAID 100 PERCENT OF THE ARREARS IN RETIRED PAY AND YOUR CLAIM WAS DISALLOWED.

IN YOUR LETTER YOU STATE THAT YOUR FATHER INFORMED YOU EIGHTEEN MONTHS AGO THAT YOUR BROTHER AND YOU WERE EACH GOING TO RECEIVE ONE HALF OF HIS MONEY. WHILE WHAT YOU SAY MAY BE TRUE, SUCH VERBAL EXPRESSION DID NOT AFFECT THE VALID WRITTEN DESIGNATION SIGNED ON JULY 28, 1956, BY WHICH HE DESIGNATED HIS FORMER WIFE, OR YOUR BROTHER, OR YOU, TO RECEIVE 100 PERCENT OF HIS UNPAID RETIRED PAY. IN SUCH CIRCUMSTANCES, THE WORD "OR" MUST BE VIEWED AS A DISJUNCTIVE WORD ESTABLISHING YOUR BROTHER AND YOURSELF AS SUCCESSIVE ALTERNATE BENEFICIARIES. SINCE YOUR MOTHER, EDNA MAE MULHOLLAND PREDECEASED YOUR FATHER, YOUR BROTHER, AS THE NEXT ALTERNATE BENEFICIARY, BECAME THE PERSON "HIGHEST ON THE LIST" LIVING AT THE DATE OF YOUR FATHER'S DEATH AND PAYMENT OF THE AMOUNT DUE, $41.30, WAS PROPERLY MADE TO HIM.

IT IS FURTHER PROVIDED IN 10 U.S.C. 2771(D) THAT A PAYMENT UNDER THIS SECTION BARS RECOVERY BY ANY OTHER PERSON OF THE AMOUNT PAID. ACCORDINGLY, THERE IS NO AUTHORITY FOR PAYMENT OF YOUR CLAIM AND THE SETTLEMENT OF JANUARY 16, 1973, IS SUSTAINED.