B-132407, AUGUST 22, 1957, 37 COMP. GEN. 131

B-132407, AUGUST 22, 1957, 37 COMP. GEN. 131

MILITARY PERSONNEL - DEATH GRATUITY PAYMENTS - DISBURSING OFFICER LIABILITY - ERRONEOUS PAYMENTS A DEATH GRATUITY WHICH, PURSUANT TO SECTION 301 OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT, IS PAID TO A PERSON DETERMINED BY THE APPROPRIATE COMMANDER TO BE ENTITLED THERETO, BASED UPON REPRESENTATIONS OF RECORD MADE BY THE DECEASED SERVICEMAN AS TO HIS MARITAL AND DEPENDENCY STATUS AND, IN THE ABSENCE OF INFORMATION WHICH WOULD GIVE RISE TO DOUBT AS TO THE STATUS, CONSTITUTES A GOOD ACQUITTANCE EVEN THOUGH IT SUBSEQUENTLY DEVELOPS THAT THE PAYEE IS NOT THE PROPER STATUTORY PAYEE, AND PAYMENT WOULD NEITHER IMPOSE PECUNIARY LIABILITY ON THE DISBURSING OFFICER NOR WARRANT A SECOND PAYMENT TO THE PROPER PERSON, REGARDLESS OF WHETHER THE MISREPRESENTATIONS WERE WILFUL OR ERRONEOUS. IF A DEATH GRATUITY AUTHORIZED BY SECTION 301 OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT IS PAID THROUGH AN ADMINISTRATIVE MISTAKE TO A PERSON CLEARLY NOT ENTITLED TO IT WHEN ANOTHER PERSON IS CLEARLY ENTITLED TO THE GRATUITY, THE GRATUITY SHOULD BE PAID TO THE PROPER PAYEE, IRRESPECTIVE OF RECOVERY OF THE ERRONEOUS PAYMENT AND THE DISBURSING OFFICER WOULD BE HELD PECUNIARILY LIABLE FOR THE IMPROPER PAYMENT EVEN THOUGH THE ERRONEOUS PAYEE HAD BEEN DETERMINED BY THE APPROPRIATE COMMANDER TO BE THE PERSON ENTITLED TO THE GRATUITY. A DISBURSING OFFICER WHO MAKES AN ERRONEOUS PAYMENT OF A DEATH GRATUITY BECAUSE THE IMPROPER PAYEE WAS ERRONEOUSLY DESIGNATED BY THE DECEASED SERVICEMAN'S COMMANDING OFFICER AS BEING THE PERSON ENTITLED TO THE GRATUITY WOULD GENERALLY BE ELIGIBLE FOR RELIEF UNDER THE ACT OF AUGUST 11, 1955, IF THE DISBURSING OFFICER EXERCISED DUE CARE AND MADE THE PAYMENT IN GOOD FAITH; HOWEVER, EACH CASE MUST BE CONSIDERED IN IN THE LIGHT OF THE PARTICULAR FACTS INVOLVED. THE EXCLUSION FROM THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT OF ANY PROVISION AUTHORIZING THE WAIVER OF RECOVERY OF ERRONEOUS DEATH GRATUITY PAYMENTS PRECLUDES THE GENERAL ACCOUNTING OFFICE FROM AUTHORIZING THE WAIVER OF RECOVERY OF ERRONEOUS PAYMENTS AND NO REDUCTION IN THE NUMBER OF COLLECTION LETTERS REQUIRED BY GENERAL REGULATIONS NO. 129 WOULD BE JUSTIFIED.

TO THE SECRETARY OF DEFENSE, AUGUST 22, 1957:

REFERENCE IS MADE TO LETTER DATED JUNE 28, 1957, AND ENCLOSURES, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON CERTAIN QUESTIONS PRESENTED IN COMMITTEE ACTION NO. 188 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE. THE QUESTIONS ARE AS FOLLOWS:

1. A DISBURSING OFFICER PAID THE DEATH GRATUITY AUTHORIZED BY SECTION 301 OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT (70 STAT. 868) TO A PERSON DETERMINED BY THE APPROPRIATE COMMANDER TO BE ENTITLED THERETO BASED UPON REPRESENTATIONS OF RECORD MADE BY THE DECEASED AS TO HIS MARITAL STATUS. IF SUCH PAYMENT WERE MADE IMMEDIATELY IN ACCORDANCE WITH SECTION 302 OF SAID ACT, BUT TO A PERSON LATER DETERMINED TO BE WITHOUT ENTITLEMENT, WOULD SUCH PAYMENT BE CONSIDERED AS IMPROPER TO THE EXTENT OF IMPOSING PECUNIARY LIABILITY ON THE DISBURSING OFFICER?

2. UNDER THE CIRCUMSTANCES SPECIFIED ABOVE, EXCEPT THE DETERMINATION BY THE APPROPRIATE COMMANDER WAS BASED ON ADMINISTRATIVE ERROR RATHER THAN REPRESENTATIONS MADE BY THE DECEASED, WOULD THE ANSWER BE THE SAME?

3. UNDER THE CIRCUMSTANCES STATED IN QUESTION ONE, MAY PAYMENT TO THE PERSON LATER DETERMINED TO BE ENTITLED TO THE DEATH GRATUITY BE MADE PRIOR TO RECOVERY OF THE GRATUITY FIRST PAID?

4. UNDER THE CIRCUMSTANCES STATED IN QUESTION TWO, MAY PAYMENT TO THE PERSON LATER DETERMINED TO BE ENTITLED TO THE DEATH GRATUITY BE MADE PRIOR TO RECOVERY OF THE GRATUITY FIRST PAID?

5. IF THE ANSWER TO EITHER QUESTION THREE OR FOUR IS IN THE AFFIRMATIVE, AND PAYMENT IS MADE TO THE PERSON LATER DETERMINED ENTITLED THERETO, WILL THE DISBURSING OFFICER BE GRANTED RELIEF UNDER THE ACT OF 11 AUGUST 1955 ( P.L. 365, 84TH CONGRESS, 69 STAT. 687), IF THE ADMINISTRATIVE REQUIREMENTS OF GENERAL REGULATION NO. 129 ARE COMPLIED WITH?

6. MAY THE COLLECTION REQUIREMENTS PRESCRIBED BY GENERAL REGULATION NO. 129 AS APPROVED FOR THE DEPARTMENT OF DEFENSE BE MODIFIED TO REQUIRE THAT ONLY ONE COLLECTION LETTER BE FORWARDED TO THE RECIPIENT OF THE IMPROPER PAYMENT OF THE DEATH GRATUITY?

SECTION 301 OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT, 38 U.S.C. 1131, DIRECTS THE SECRETARY CONCERNED, UPON OFFICIAL NOTIFICATION OF THE DEATH OF A MEMBER OF A UNIFORMED SERVICE UNDER HIS JURISDICTION, TO HAVE A DEATH GRATUITY OF FROM $800 TO $3,000 PAID IMMEDIATELY TO CERTAIN SPECIFIED SURVIVORS. SECTION 302 OF THE ACT, 38 U.S.C. 1132, PROVIDES THAT IN ORDER THAT PAYMENTS UNDER SECTION 301 MAY BE MADE IMMEDIATELY THE SECRETARY CONCERNED (1) SHALL AUTHORIZE THE COMMANDING OFFICERS OF MILITARY OR NAVAL COMMANDS, INSTALLATIONS, OR DISTRICTS, IN WHICH SURVIVORS OF THE DECEASED MEMBERS ARE RESIDING, TO DETERMINE THE SURVIVORS ELIGIBLE TO RECEIVE THE DEATH GRATUITY, AND (2) SHALL AUTHORIZE THE DISBURSING OR CERTIFYING OFFICER OF SUCH COMMAND, INSTALLATION, OR DISTRICT, TO MAKE OR CERTIFY THE PAYMENTS TO SURVIVORS SO DETERMINED.

AS A GUIDE IN THE IMPLEMENTATION OF THOSE PROVISIONS THE ASSISTANT SECRETARY OF DEFENSE ( MANPOWER, PERSONNEL AND RESERVE) ON DECEMBER 7, 1956, ISSUED A MEMORANDUM TO THE SECRETARIES OF THE ARMY, NAVY, AND AIR FORCE WHICH IS, IN PART, AS FOLLOWS:

SUBJECT: RELIEF OF DISBURSING OFFICERS FOR ERRONEOUS PAYMENT OF THE SIX- MONTH DEATH GRATUITY

REFERENCES: (A) DEPASD MEMO TO SECRETARIES OF ARMY, NAVY AND AIR FORCE OF 23 OCTOBER 1956 REGARDING PAYMENT OF DEATH GRATUITY. (B) SECTION 302, TITLE III, P.L. 881, 84TH CONGRESS. (C) P.L. 365, 84TH CONGRESS.

REGARDING SECTION 302 OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT, PUBLIC LAW 881, 84TH CONGRESS, WHICH DEALS WITH THE IMMEDIATE PAYMENT OF THE DEATH GRATUITY, REFERENCE (A) INCLUDED THE FOLLOWING:

" BY LITERALLY INTERPRETING SECTION 302, THE SERVICES COULD GO TO SOME UNINTENDED EXTREMES IN MAKING THIS PAYMENT.

" THE INTENT OF CONGRESS ON THIS POINT WAS CLEARLY ESTABLISHED AND MAY BE SUMMARIZED AS FOLLOWS

" WHERE THE WIFE OF A MEMBER WAS RESIDING WITH THE MEMBER ON OR NEAR THE STATION OF DUTY AT THE TIME OF THE MEMBER'S DEATH, THEN EVERY EFFORT SHOULD BE MADE TO IMMEDIATELY (WITHIN 24 HOURS, IF POSSIBLE) PAY THE WIDOW THE DEATH GRATUITY. BY SO DOING, THE NECESSITY AND FRUSTRATION OF LOANS, COLLECTIONS, ETC., CAN BE AVOIDED.'"

BOTH THE CONGRESS AND THE SERVICES DESIRE TO SEE THAT SUCH BENEFICIARIES HAVE SUFFICIENT CASH IN HAND TO CLEAR UP IMMEDIATE OUTSTANDING OBLIGATIONS, PROCEED TO FOLLOW THE DECEASED TO THE PLACE OF INTERMENT, AND TO RE-ESTABLISH THEIR RESIDENCE WITHOUT THE NECESSITY OF BORROWING OR FREE WILL COLLECTIONS.

SOME DISBURSING OFFICERS HAVE EXPRESSED CONCERN THAT THESE PAYMENTS MAY, IN CERTAIN CASES, BE MADE TO OTHER THAN THE PROPER PAYEE.

IN THE PASSAGE OF PUBLIC LAW 881, CONGRESS WAS FULLY AWARE OF THIS CONTINGENCY.

DISBURSING OFFICERS MAKING ERRONEOUS PAYMENTS WILL BE SUBJECT TO REFERENCE (C). THE JOINT TASK GROUP ON SURVIVOR BENEFITS WORKING UNDER THIS OFFICE HELD A CONFERENCE WITH REPRESENTATIVES OF THE GENERAL ACCOUNTING OFFICE, REQUESTING AN INTERPRETATION OF THE INTER RELATIONSHIP BETWEEN REFERENCES (B) AND (C).

THE GENERAL ACCOUNTING OFFICE INFORMALLY ADVISED THE JOINT TASK GROUP THAT THE PRIMARY RESPONSIBILITY OF AUTHORIZED OFFICERS AT THE LOCAL LEVEL IN MAKING THOSE PAYMENTS IS TO EXAMINE THE MILITARY RECORDS PERTAINING TO THE DECEASED MEMBER LOCALLY AVAILABLE AND IN THE ABSENCE OF ANY INFORMATION GIVING RISE TO DOUBT AS TO THE ELIGIBLE BENEFICIARY, PAYMENT SHOULD BE MADE IMMEDIATELY. REASONABLE PRECAUTIONS SHOULD BE TAKEN TO ASCERTAIN THAT THE RECIPIENT OF THE PAYMENT IS THE PERSON DETERMINED TO BE ENTITLED.

IN THOSE CASES WHERE AN ERRONEOUS PAYMENT IS MADE, THE RESPECTIVE FINANCE CENTERS WILL FOLLOW THE PRESCRIBED COLLECTION PROCEDURES IN AN ATTEMPT TO RECOVER SUCH PAYMENT. WHERE THESE COLLECTIONS PROCEDURES HAVE BEEN FOLLOWED AND THERE IS NO BAD FAITH OR LACK OF DUE CARE, THE DISBURSING OFFICER WHO MADE SUCH ERRONEOUS PAYMENT WILL BE ELIGIBLE FOR RELIEF.

THE GOVERNMENT IS NOT LIABLE FOR A SECOND PAYMENT OF DEATH BENEFITS TO THE PROPER PAYEE WHERE IT HAS BEEN INDUCED BY THE DECEDENT'S REPRESENTATIONS TO MAKE PAYMENT TO SOMEONE ELSE. UNITED STATES V. CAMPBELL, 139 F.2D 424; UNITED STATES V. BARKER, 70 F.2D 1002; 19 AM.JUR., ESTOPPEL, 152, 153, AND 155. ON THE BASIS OF THAT RULE, WE REPEATEDLY HAVE HELD THAT THERE IS NO OBLIGATION UPON THE GOVERNMENT TO MAKE A SECOND PAYMENT OF THE DEATH GRATUITY WHEN THE ORIGINAL PAYMENT WAS MADE IN RELIANCE ON THE SERVICE MEMBER'S REPRESENTATIONS, WHETHER WILFUL OR ERRONEOUS, AS TO HIS MARITAL STATUS AND NOTHING OTHERWISE APPEARED TO GIVE RISE TO DOUBT AS TO THE CORRECTNESS OF SUCH REPRESENTATIONS. SEE, FOR EXAMPLE, B-81220, OCTOBER 14, 1949; B-86374, AUGUST 19, 1949; B-93250, JUNE 8, 1950.

UNDER THAT RULE, WHERE A PAYMENT OF THE DEATH GRATUITY HAS BEEN MADE TO AN INDIVIDUAL ON THE BASIS OF REPRESENTATIONS OF RECORD MADE BY THE DECEASED MEMBER AS TO HIS MARITAL AND DEPENDENCY STATUS AND THE GOVERNMENT OTHERWISE HAS NO INFORMATION WHICH WOULD GIVE RISE TO DOUBT THAT SUCH STATUS IS AS REPRESENTED, THE PAYMENT IS NOT TO BE REGARDED AS "ERRONEOUS.' THE GOVERNMENT HAS A GOOD ACQUITTANCE IN SUCH CASES EVEN THOUGH IT MAY SUBSEQUENTLY DEVELOP THAT THE PAYEE IS NOT THE PROPER STATUTORY PAYEE OF THE GRATUITY AND NO SECOND PAYMENT IS AUTHORIZED. ASSUME THAT YOUR FIRST AND THIRD QUESTIONS RELATE TO THIS SITUATION AND, ACCORDINGLY, SUCH QUESTIONS ARE ANSWERED IN THE NEGATIVE.

IN OTHER SITUATIONS, HOWEVER, WHERE THROUGH ADMINISTRATIVE MISTAKE OF FACT OR LAW A PAYMENT IS MADE TO A PERSON CLEARLY NOT ENTITLED TO IT AND IT IS EQUALLY CLEAR THAT ANOTHER PERSON IS ENTITLED THERETO, OUR DECISIONS HAVE HELD THAT THE ADMINISTRATIVE OFFICE MAY AND SHOULD MAKE PAYMENT TO THE PROPER PAYEE, IRRESPECTIVE OF RECOVERY OF THE ERRONEOUS PAYMENT. COMP. GEN. 102; 19 COMP. GEN. 104. HENCE, WHERE BECAUSE OF MISFILING OR NONFILING OF RECORDS, OR DELAY IN THE TRANSMISSION OF RECORDS BETWEEN STATIONS, OR FAILURE BY THE ADMINISTRATIVE OFFICES TO GIVE PROPER RECOGNITION TO CIRCUMSTANCES CASTING DOUBT ON THE PROPRIETY OF THE PAYMENT, ETC., THE GRATUITY HAS BEEN PAID TO A PERSON NOT ENTITLED, PAYMENT TO THE RIGHTFUL BENEFICIARY SHOULD NOT BE DELAYED OR WITHHELD PENDING RECOVERY OF THE ERRONEOUS PAYMENT. WE ASSUME QUESTION 2 RELATES TO THIS SITUATION AND, ACCORDINGLY, THIS QUESTION IS ANSWERED IN THE NEGATIVE. THAT IS, THE FIRST PAYMENT WOULD BE IMPROPER TO THE EXTENT OF IMPOSING PECUNIARY LIABILITY ON THE DISBURSING OFFICER. QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE.

EACH CASE OF AN IMPROPER PAYMENT MUST, OF COURSE, BE CONSIDERED IN THE LIGHT OF THE PARTICULAR FACTS INVOLVED AND, THEREFORE, WE CANNOT GIVE A DEFINITE ANSWER TO QUESTION 5. SINCE, HOWEVER, A DISBURSING OFFICER IS AUTHORIZED TO MAKE THESE GRATUITY PAYMENTS ON THE BASIS OF THE COMMANDER'S DETERMINATION AS TO THE PROPER PAYEE, THE DISBURSING OFFICER, AS STATED IN THE QUOTED MEMORANDUM, GENERALLY WOULD BE ELIGIBLE FOR RELIEF UNDER THE ACT OF AUGUST 11, 1955, IF HE EXERCISED DUE CARE AND MADE THE PAYMENT IN GOOD FAITH.

AS TO QUESTION 6, IT MAY BE NOTED THAT THE CONGRESS DELIBERATELY EXCLUDED FROM THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT ANY PROVISION AUTHORIZING THE WAIVER OF RECOVERY OF AN ERRONEOUS DEATH GRATUITY PAYMENT AND WE ARE NOT OTHERWISE AUTHORIZED TO WAIVE THE RECOVERY OF SUCH PAYMENTS. IN SUCH CIRCUMSTANCES, WE WOULD NOT BE JUSTIFIED IN AUTHORIZING A REDUCTION IN THE NUMBER OF COLLECTION LETTERS REQUIRED BY GENERAL REGULATIONS NO. 129. WE RECOGNIZE, HOWEVER, THAT THIS MATTER INVOLVES CIRCUMSTANCES DIFFERENT FROM THE ORDINARY OVERPAYMENT SITUATION AND NO REASON IS APPARENT WHY THE REQUESTS FOR REFUND IN THESE CASES MAY NOT BE SYMPATHETICALLY EXPRESSED.