B-231799, Aug 21, 1990

B-231799, Aug 21, 1990

MILITARY PERSONNEL - Pay - Retirement pay - Distribution - Personnel death DIGEST: Sister-in-law of deceased member claims unpaid retired pay of member as "sole survivor" of the deceased. Since payment of such pay upon the death of a member is limited to those listed in the applicable statute and the sister-in-law does not qualify under that statute, the claim may not be paid.

Stephen B. Pastor, Jr., USN, Retired, Deceased:

This action is in response to a request for reconsideration of our Claims Group's May 18, 1987, denial of the claim of Margaret M. Pastor in the matter of Stephen B. Pastor, Jr., USN, retired, deceased. Ms. Pastor is claiming the unpaid retired pay of the deceased due him at the time of his death. Ms. Pastor is the sister-in-law of the member and she states that there are no other survivors. It is our view that the claim may not be paid for the reasons set forth below.

Stephen B. Pastor, Jr., was entitled to retired pay at the time of his death. He died on March 8, 1986. He had never married and had designated his brother, Albert A. Pastor to receive any unpaid retired pay due at the time of his death. However, his brother predeceased him and there are no known relatives remaining. The widow of the brother (Ms. Pastor) has filed a claim for the unpaid retired pay.

Our Claims Group denied the claim by settlement certificate dated May 18, 1987, stating that the applicable statute provides the order of precedence by which unpaid compensation may be issued and under the statute and applicable state law, Ms. Pastor is not entitled to the unpaid compensation. We affirm that decision.

Section 2771, title 10, United States Code, provides for the settlement of the accounts of a deceased member of the armed forces. Payment of the amount due the deceased member is to be paid to the individual highest on the list of individuals named in the statute who is alive at the death of the member.

They are, in order of preference: a designated beneficiary, a surviving spouse, children and their descendants, parents, a legal representative or a person entitled to inherit under the laws of the domicile of the deceased member.

From the facts presented, we conclude that Ms. Pastor is neither related as required in the statute nor the appointed legal representative of the deceased. We note that the record reflects that Ms. Pastor did write a check to the probate court in Ohio in 1986 in connection with Mr. Pastor's death. However, there is no indication that she was ever appointed the legal representative of the deceased. Thus, the only claim she could make is as the person entitled to inherit under the laws of the domicile of the deceased member. It appears that Mr. Pastor resided and died in Ohio and thus the laws of that state would be applicable.

Section 2105.06 of the Page's Ohio Revised Code Annotated provides that when a person dies interstate having title or right to property, the property will be distributed to the individual highest on the list of individuals set forth in that section. Since there is no evidence of a will or other document which specifies Ms. Pastor as a designated beneficiary, we assume that this provision is applicable. The individuals to whom property will be distributed are, in order of preference: a surviving spouse, children and their descendants (in varying amounts depending on the existence of a surviving spouse and the numbers of surviving children and individual circumstances), parents, siblings and their descendants, grandparents and their descendants, the next of kin (which appears to be limited to blood relatives), and finally to step- children and their descendants.

We note that under the applicable state law, if Ms. Pastor and Albert Pastor have children, it appears that they would be eligible to inherit the unpaid retired compensation. However, there is no indication in the record that such children exist.

Although Ms. Pastor may in fact be the sole survivor of Stephen Pastor, Jr., distribution of the unpaid compensation is limited to those individuals set forth in the statute. We are unable to conclude on the basis of the evidence before us that Ms. Pastor can qualify under any provision of the statute. Accordingly, it is our view that the claim may not be paid.