B-175657, JUL 6, 1972

B-175657, JUL 6, 1972

MILITARY PERSONNEL - DECEASED RETIRED PAY - BENEFICIARY ENTITLEMENT DECISION AFFIRMING PRIOR DENIAL OF A CLAIM OF SIMEONA MENDOZA CABEZAS FOR THE RETIRED ARMY PAY OF HER LATE GRANDFATHER, LUPO Q. MENDOZA. SO LONG AS THE DECEASED'S MARTIAL STATUS REMAINS IN DOUBT, PURSUANT TO THE ORDER OF PRECEDENCE CONTAINED IN 10 U.S.C. 2771, GAO IS WITHOUT AUTHORITY TO ALLOW PAYMENT TO MRS. CABEZAS. HOWEVER, UPON SUBMISSION OF EVIDENCE THAT CLAIMANT HAS BEEN ADJUDGED SOLE HEIR BY A COURT OF COMPETENT JURISDICTION, HER CLAIM WILL RECEIVE FURTHER CONSIDERATION.

TO MRS. SIMEONA MENDOZA CABEZAS:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 24, 1971, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM AS GRANDDAUGHTER FOR THE ARREARS OF RETIRED PAY DUE THE LATE LUPO Q. MENDOZA, UNITED STATES ARMY, ON THE DATE OF HIS DEATH, MAY 12, 1969.

THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED JULY 15, 1970, AND DECEMBER 7, 1970, WHICH DISALLOWED YOUR CLAIM FOR THE REASON THAT UNDER THE ORDER OF PRECEDENCE SET FORTH IN 10 U.S.C. 2771, THE ENTIRE AMOUNT MUST BE RESERVED FOR VALERIANA MAGAT, AS SURVIVING SPOUSE, SINCE THE FILE INDICATES THAT THE LATE LUPO MENDOZA WAS MARRIED TO HER AT THE TIME OF HIS DEATH. FURTHER, THAT THE BURDEN OF ESTABLISHING YOUR ENTITLEMENT MUST BE BORNE BY YOU.

YOU SAY THAT YOU HAVE PROVIDED THIS OFFICE WITH VARIOUS DOCUMENTS IN SUPPORT OF THE MARRIAGE OF YOUR GRANDPARENTS, LUPO Q. MENDOZA AND CHRISTIANA MACATIOG, THE BIRTH OF THEIR SON, ISMAEL, AND THAT YOU ARE THE ONLY CHILD OF ISMAEL. SINCE YOU HAVE SHOWN THAT THESE ANCESTORS ARE NOW DEAD, YOU CONTEND THAT YOU HAVE PROVIDED ALL THE EVIDENCE NECESSARY TO ESTABLISH YOUR ENTITLEMENT TO THE AMOUNT IN QUESTION.

THE SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS OF THE ARMED FORCES, INCLUDING RETIRED PERSONNEL, WHO DIE AFTER DECEMBER 31, 1955, IS GOVERNED BY SECTION 2771 OF TITLE 10, U.S.C. THAT SECTION PROVIDES IN PERTINENT PART:

"(A) *** AN AMOUNT DUE FROM THE ARMED FORCE OF WHICH HE WAS A MEMBER SHALL BE PAID TO THE PERSON HIGHEST ON THE FOLLOWING LIST LIVING ON THE DATE OF DEATH:

"(1) BENEFICIARY DESIGNATED BY HIM IN WRITING *** .

"(2) SURVIVING SPOUSE.

"(3) CHILDREN AND THEIR DESCENDANTS, BY REPRESENTATION."

IN THE ABOVE-QUOTED ORDER OF PRECEDENCE, A BENEFICIARY DESIGNATED IN WRITING WHO IS LIVING ON THE DATE OF A MEMBER'S DEATH IS ENTITLED TO RECEIVE THE MEMBER'S UNPAID PAY AND ALLOWANCES. IF THERE IS NO SUCH DESIGNATED BENEFICIARY, THEN THE MEMBER'S SURVIVING SPOUSE IS ENTITLED TO THE AMOUNT DUE. ONLY IN THE EVENT THAT THERE IS NEITHER A BENEFICIARY DESIGNATED NOR A SPOUSE SURVIVING, CAN THE MEMBER'S CHILDREN OR THEIR DESCENDANTS, LIVING AT THE DATE OF HIS DEATH, BECOME ENTITLED TO THIS MONEY.

THE DOCUMENTS ON RECORD SHOW THAT THE MEMBER, LUPO Q. MENDOZA, CEREMONIALLY MARRIED CHRISTIANA MACATIOG IN 1909 AND THAT THEY HAD ONE CHILD, ISMAEL MENDOZA, WHO WAS BORN IN 1910. IT IS ALSO SHOWN THAT ISMAEL MENDOZA MARRIED MAGDALENA TABASON AND THAT YOU ARE THE ONLY LIVING CHILD OF THAT MARRIAGE. IT IS ALSO INDICATED THAT YOUR GRANDMOTHER, CHRISTIANA MACATIOG, DIED IN 1939, AND THAT YOUR FATHER, ISMAEL MENDOZA, IS ALSO DECEASED, APPARENTLY HAVING PREDECEASED YOUR GRANDFATHER.

IT IS ON THE ABOVE BASIS THAT YOU ASSERT YOUR CLAIM AS THE ONLY LIVING DESCENDANT OF YOUR GRANDFATHER, LUPO Q. MENDOZA, UNDER CLAUSE (3) OF 10 U.S.C. 2771(A).

WE DO NOT QUESTION THAT YOU ARE A DIRECT DESCENDANT OF LUPO Q. MENDOZA, AND ARE FULLY QUALIFIED AS SOLE HEIR UNDER CLAUSE (3) OF 10 U.S.C. 2771. AS PREVIOUSLY STATED, HOWEVER, THE LAW GOVERNING SETTLEMENT OF A DECEASED MEMBER'S ACCOUNT SPECIFICALLY PROVIDES THAT PAYMENT OF THE AMOUNT DUE IS TO BE PAID TO THE PERSON HIGHEST ON THE ABOVE-QUOTED LIST, LIVING AT THE DATE OF A MEMBER'S DEATH.

THE ONLY QUESTION IN ISSUE IS WHETHER LUPO MENDOZA LEFT A SURVIVING SPOUSE. IF HE DID, THEN SHE IS THE PREFERRED DISTRIBUTEE OF THE MONEY IN QUESTION. IN THIS REGARD, THE FILE INDICATES THAT LUPO MENDOZA MARRIED VALERIANA MAGAT IN 1914. YOU SAY THAT SUCH MARRIAGE WAS BIGAMOUS AS IT WAS ENTERED INTO DURING YOUR GRANDMOTHER'S LIFETIME AND WAS THEREFORE VOID FROM THE BEGINNING.

THIS OFFICE HAS NO WAY OF KNOWING WHETHER AT THE TIME YOUR GRANDFATHER MARRIED VALERIANA MAGAT THAT EITHER OR BOTH OF THEM WERE FREE TO INTERMARRY. INFORMATION RECEIVED FROM THE VETERANS ADMINISTRATION STATES THAT THEY RECOGNIZED VALERIANA MAGAT AS YOUR GRANDFATHER'S LEGAL WIFE AT THE TIME OF HIS DEATH. EVEN IF WE SHOULD PROCEED ON THE ASSUMPTION THAT YOUR GRANDFATHER AND VALERIANA MAGAT WERE NOT FREE TO MARRY IN 1914, THERE IS NOTHING CONTAINED IN THE FILE THAT SHOWS THEY WERE NOT FREE TO MARRY AFTER THE DEATH OF YOUR GRANDMOTHER IN 1939 AND DID NOT DO SO. CONSEQUENTLY, SO LONG AS THE MARITAL STATUS OF VALERIANA MAGAT AND YOUR GRANDFATHER AT THE TIME OF HIS DEATH REMAINS IN DOUBT WE MAY NOT RECOGNIZE "CHILDREN (OF THE DECEASED MEMBER) AND THEIR DESCENDENTS, BY REPRESENTATION," AS THE PROPER PERSON OR PERSONS TO WHOM THE AMOUNT IN QUESTION MAY BE PAID. ACCORDINGLY, ON THE PRESENT RECORD THE ACTION TAKEN BY OUR CLAIMS DIVISION IS SUSTAINED.

IT IS NOTED THAT OUR FILE CONTAINS A LETTER DATED OCTOBER 14, 1969, FROM DOMINGO S. NATIVIDAD, LEGAL ASSISTANT, TRUST DEPARTMENT, FIRST UNITED BANK, ESCOLTA CORNER DAVID, MANILA, P.O. BOX 4230. IN THAT LETTER IT IS INDICATED THAT YOU WERE ADJUDGED THE IMMEDIATE AND SOLE HEIR OF YOUR GRANDFATHER, LUPO Q. MENDOZA, AND THAT YOU WERE "ADJUDICATED THE ENTIRE ESTATE" FOR YOURSELF. THIS WOULD INDICATE THAT CERTAIN PROCEEDINGS MAY HAVE BEEN UNDERTAKEN IN A COURT OF COMPETENT JURISDICTION IN THE PHILIPPINES TO DETERMINE THE PROPER DISTRIBUTEES OF YOUR GRANDFATHER'S ESTATE. PERHAPS THE PAPERS FILED IN THAT CASE WILL SHOW A DETERMINATION THAT YOUR GRANDFATHER WAS NOT SURVIVED BY A WIFE AND THAT YOU ARE HIS ONLY LEGAL HEIR. IF THAT IS THE CASE AND YOU SUPPLY THIS OFFICE WITH COPIES OF THESE COURT DOCUMENTS, FURTHER CONSIDERATION WILL BE GIVEN YOUR CLAIM.