B-208818-OM, B-208820-OM, JAN 26, 1983

B-208818-OM, B-208820-OM, JAN 26, 1983

PRECIS-UNAVAILABLE

THE COMPTROLLER GENERAL:

WE ARE FORWARDING THE CLAIMS OF ANITA DOMINGUEZ AND WILLIAM A. HOLLAND FOR PAYMENT OF THE DEATH GRATUITY INCIDENT TO THE DEATHS OF THEIR RELATIVES, BOTH DECEASED MEMBERS OF THE ARMY, UNDER 10 U.S.C. 1475-1480.

MRS. DOMINGUEZ WAS PAID 50 PERCENT OF THE DEATH GRATUITY UPON THE DEATH OF HER SON, RUBEN M. DOMINGUEZ, AND THE REMAINING 50 PERCENT WAS RESERVED PENDING A CLAIM BY RUBEN'S FATHER, REYNALDO C. DOMINGUEZ, WHO COULD NOT BE LOCATED AT THAT TIME. MRS. DOMINGUEZ IS CLAIMING THE REMAINING 50 PERCENT OF THE DEATH GRATUITY ON THE BASIS THAT THE FATHER FAILED TO MAKE ANY SUPPORT PAYMENTS SINCE THEY WERE DIVORCED IN OCTOBER 1964 AND THAT THE FATHER DID NOT PERFORM ANY OF HIS PARENTAL DUTIES TOWARD THEIR SON. THE FATHER HAS NOT SUBMITTED A CLAIM TO THIS OFFICE FOR HIS 1/2 SHARE OF THE DEATH GRATUITY PAY.

MR. HOLLAND IS CLAIMING THE DEATH GRATUITY PAYABLE UPON THE DEATH OF HIS BROTHER, ELVAGE HOLLAND. HIS CLAIM WAS INITIALLY DISALLOWED ON THE BASIS THAT THE RECORD INDICATED THE LATE SGT. HOLLAND WAS SURVIVED BY THREE CHILDREN AND THAT A CLAIM FILED BY ANY ONE OF THEM WOULD TAKE PRECEDENCE OVER HIS CLAIM DUE TO THE PRIORITY LIST OUTLINED IN 10 U.S.C. 1477. MR. WILLIAM HOLLAND WAS ALSO ADVISED THAT IN ACCORDANCE WITH THE PROVISIONS OF 4 C.F.R. 34.3(C), HE COULD REASSERT HIS CLAIM FOR THE DEATH GRATUITY 3 YEARS AFTER HIS BROTHER'S DEATH AND THAT IF THE CHILDREN HAD NOT FILED CLAIMS, HIS WOULD BE CONSIDERED.

4 C.F.R. 34.3(C) PROVIDES THAT WHEN THE PERSONS OTHERWISE ENTITLED TO PAYMENT HAS NOT SUBMITTED A CLAIM AND CANNOT BE LOCATED WITHIN 3 YEARS AFTER THE DEATH OF THE MEMBER, PAYMENT SHALL BE MADE TO THE PERSONS IN THE SAME CLASS OF ENTITLEMENT, OR IN THE ABSENCE OF ANYONE IN THE SAME CLASS THEN THE PERSONS NEXT IN ORDER OF PRECEDENCE AS DESCRIBED. SECTION 34.1 PROVIDES THAT PART 34 PRESCRIBES FORMS AND PROCEDURES FOR THE PROMPT SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE ARMED FORCES PURSUANT TO 10 U.S.C. 2771 AND DECEASED MEMBERS OF THE NATIONAL GUARD PURSUANT TO 32 U.S.C. 714. 10 U.S.C. 1475-1480 MAKES NO PROVISIONS FOR PAYMENT OF UNCLAIMED BALANCES DUE ON THE DEATH GRATUITY IF THE PROPER PAYEE HAS NOT CLAIMED. 10 U.S.C. 1475 PROVIDES THAT THE DEATH GRATUITY SHALL BE PAID TO THE SURVIVOR IMMEDIATELY UPON RECEIVING OFFICIAL NOTIFICATION OF THE DEATH.

MR. WILLIAM HOLLAND WAS NAMED BENEFICIARY OF HIS LATE BROTHER'S UNPAID PAY AND ALLOWANCES AND ALSO PAID THE FUNERAL BILL. MRS. DOMINGUEZ STATES THAT HER EX-HUSBAND DESERTED THE FAMILY IN 1964 AND DID NOT EXERCISE A PARENTAL RELATIONSHIP ON THE DATE ON WHICH HER LATE SON ENTERED THE SERVICE AS DESCRIBED IN 10 U.S.C. 1477(C). THE LATE RUBEN DOMINGUEZ ENTERED THE SERVICE IN JULY 1974 AND IN DECEMBER 1974 HE COMPLETED THE RECORD OF EMERGENCY DATA FORM LISTING HIS FATHER AS "ADDRESS UNKNOWN".

DOUBT EXISTS AS TO WHETHER THE PROCEDURE OUTLINED FOR THE SETTLEMENT OF ACCOUNTS UNDER 4 C.F.R. 34.3(C) MAY BE APPLIED IN THESE TWO CASES WHERE THE PERSONS OTHERWISE ENTITLED TO THE DEATH GRATUITY PAYABLE UNDER 10 U.S.C. 1475-1477 HAVE NOT FILED A CLAIM AND THE PERSONS CLAIMING ARE AMONG THE ELIGIBLE SURVIVORS.

ACCORDINGLY, THE MATTER IS SUBMITTED FOR YOUR CONSIDERATION AND INSTRUCTION. THE ADJUDICATOR HANDLING THESE CLAIMS IS THERESA ROBERSON ON EXTENSION 53218.

INDORSEMENT

RETURNED. THE PURPOSE OF 10 U.S.C. 2771 - WHICH WAS DERIVED FROM THE ACT OF JULY 12, 1955, CH. 328, 69 STAT. 295 - IS TO FACILITATE PAYMENTS DISPOSING OF THE ACCRUED PAY AND ALLOWANCES (INCLUDING RETIRED PAY) OF A DECEASED MEMBER OF THE ARMED FORCES, WHICH ARE STILL IN THE HANDS OF THE GOVERNMENT.

THE REGULATIONS AT 4 C.F.R. 34.3(C) WERE PROMULGATED IN 1972 AS A RESULT OF A NUMBER OF SITUATIONS WHICH HAD ARISEN WHERE THE DECEASED MEMBER'S ACCOUNTS COULD NOT BE SETTLED BECAUSE THE BENEFICIARY HIGHEST ON THE LIST OR ONE OF A CLASS OF BENEFICIARIES HIGHEST ON THE LIST OF BENEFICIARIES CONTAINED IN 10 U.S.C. 2771 COULD NOT BE LOCATED. THIS IS THE SAME SITUATION AS IN THE TWO CASES SUBMITTED.

HOWEVER, 10 U.S.C. 2771(C) PROVIDES THAT THE COMPTROLLER GENERAL SHALL MAKE REGULATIONS GOVERNING PAYMENT UNDER THAT SECTION AND SUBSECTION (D) PROVIDES THAT PAYMENT UNDER THAT SECTION BARS RECOVERY BY ANY OTHER PERSON. THE LAW GOVERNING PAYMENTS OF DEATH GRATUITIES, 10 U.S.C. 1475- 1480, DOES NOT CONTAIN PROVISION AUTHORIZING THE COMPTROLLER GENERAL TO PROMULGATE REGULATIONS WITH RESPECT TO PAYMENTS THEREUNDER. ACCORDINGLY 4 C.F.R. 34.4(C) MAY NOT BE APPLIED TO DEATH GRATUITY PAYMENTS.

A DEATH GRATUITY IS PAID "TO OR FOR" THE LIVING SURVIVOR OF A SERVICE MEMBER HIGHEST ON THE LIST CONTAINED IN 10 U.S.C. 1477. THE PURPOSE FOR THE DEATH GRATUITY IS TO PROVIDE A FEDERAL BENEFIT DIRECTLY TO DEPENDENTS OF A DECEASED MEMBER IN ORDER TO HELP DEFRAY THEIR COST IMMEDIATELY FOLLOWING THE MEMBER'S DEATH, AND THUS, PREVENTING UNDUE FINANCIAL HARDSHIP FOR HIS FAMILY. B-173495-O.M., SEPTEMBER 21, 1972. AS WE STATED IN THAT MEMORANDUM THE LAW PROVIDES A SPECIFIC AMOUNT TO BE PAID TO CERTAIN ENUMERATED SURVIVORS. WE DO NOT FIND ANY INDICATION THAT CONGRESS INTENDED TO REDUCE THE PAYMENT PRESCRIBED SIMPLY BECAUSE A SURVIVOR OTHERWISE ENTITLED TO PAYMENT CANNOT BE LOCATED. THEREFORE, IF A BENEFICIARY OF THE DEATH GRATUITY CANNOT BE LOCATED AND THERE APPEARS LITTLE CHANCE THAT THAT PERSON WILL BE LOCATED PAYMENTS MAY BE MADE TO BENEFICIARIES OTHERWISE ENTITLED.

IN THE CASE OF SERGEANT HOLLAND SINCE IT DOES NOT APPEAR THAT HIS CHILDREN WILL BE LOCATED PAYMENT MAY BE MADE TO THE NEXT HIGHEST PERSON ON THE LIST, THE DECEDENT'S BROTHER.

SIMILARLY, SINCE IT DOES NOT APPEAR THAT THE FATHER OF RUBEN DOMINGUEZ WILL BE LOCATED AND, EVEN IF HE IS LOCATED, HIS CLAIM WOULD BE BARRED BY THE 6-YEAR STATUTE OF LIMITATIONS, THE REMAINING ONE-HALF OF THE DEATH GRATUITY SHOULD BE PAID TO HIS MOTHER.

ATTACHMENT

WE HAVE TODAY AUTHORIZED PAYMENT OF TWO CLAIMS FOR DEATH GRATUITY PAYMENTS WHICH HAD PREVIOUSLY BEEN DISALLOWED BECAUSE THE PERSON ENTITLED TO THE PAYMENT UNDER 10 U.S.C. 1477 COULD NOT BE LOCATED.

IN THE CASE OF RUBEN M. DOMINGUEZ THE ARMY PAID HALF OF THE GRATUITY TO HIS MOTHER. WE AUTHORIZED PAYMENT OF THE REMAINING HALF TO THE DECEASED'S MOTHER BECAUSE IT APPEARS UNLIKELY THAT HIS FATHER WILL EVER BE LOCATED. IN THE CASE OF ELVAGE HOLLAND WE AUTHORIZED PAYMENT OF THE FULL DEATH GRATUITY TO HIS BROTHER, WILLIAM A. HOLLAND, BECAUSE THE DECEASED'S CHILDREN, THE ONLY OTHER PERSONS ENTITLED TO THE GRATUITY, CANNOT BE LOCATED.

WE AUTHORIZED THESE PAYMENTS BECAUSE WE FIND THAT THE GOVERNMENT SHOULD NOT RETAIN PART OR ALL OF THE AUTHORIZED GRATUITY WHEN A POTENTIAL BENEFICIARY CANNOT BE LOCATED. THE LAW DIRECTS PAYMENT OF A GRATUITY IN A GIVEN AMOUNT TO NAMED RELATIVES OF THE DECEASED. PAYMENT WAS INTENDED TO BE MADE WITH THE MINIMUM OF DELAY. SINCE IT APPEARS THAT EVERY REASONABLE STEP HAS BEEN TAKEN TO LOCATE THE POTENTIAL CLAIMANTS IN THESE TWO CASES WE FIND THAT FURTHER DELAY IN PAYING THE GRATUITY REMAINING IS NOT WARRANTED.

WE WILL CONSIDER SIMILAR CASES IF THEY ARE SUBMITTED. FURTHER, IF YOU FIND THAT APPROPRIATE RULES CAN BE DEVISED FOR MAKING PAYMENTS TO CLAIMING BENEFICIARIES WHEN IT APPEARS THAT A BENEFICIARY TAKING PRECEDENCE UNDER 10 U.S.C. 1477 CANNOT BE LOCATED, WE WOULD BE HAPPY TO COMMENT ON THEM. IF PROCEDURES CANNOT BE DEVELOPED TO HANDLE THESE CASES EQUITABLY YOU MAY WISH TO CONSIDER REQUESTING AN AMENDMENT TO THE GOVERNING STATUTE TO GIVE THE SECRETARIES CONCERNED FINAL AUTHORITY TO APPROVE PAYMENTS WHEN PRIMARY BENEFICIARIES CANNOT BE LOCATED.

WE WOULD BE HAPPY TO WORK WITH YOU AND OTHERS IN THE DEPARTMENT OF DEFENSE WHO MIGHT BE INTERESTED IN THE DEVELOPMENT OF A METHOD FOR PAYING THE FULL DEATH GRATUITY AS QUICKLY AS POSSIBLE TO CLAIMING BENEFICIARIES.

A COPY OF THIS LETTER IS BEING SENT TO THE ASSISTANT SECRETARY OF DEFENSE (MRA&L) FOR CONSIDERATION. IF YOU HAVE ANY QUESTIONS PLEASE CONTACT MR. EDWIN J. MONSMA IN THE OFFICE OF GENERAL COUNSEL (202) 275 5771.