B-162473, AUG 12, 1971

B-162473, AUG 12, 1971

TO MR. ANTHONY TRIPANI:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 27, 1971, WITH ENCLOSURES, PERTAINING TO YOUR CLAIM AS EXECUTOR OF THE ESTATE OF YOUR LATE BROTHER, ANDREW TRIPANI, FOR ARREARS OF PAY AND ALLOWANCES DUE HIM AT DATE OF DEATH, MARCH 11, 1967, AS STAFF SERGEANT, REGULAR ARMY.

WITH YOUR LETTER, YOU ENCLOSED A LETTER OF MAY 25, 1971, AND COPIES OF DOCUMENTS IN SUPPORT OF YOUR CONTENTION THAT AFTER HIS ARRIVAL IN VIETNAM, YOUR BROTHER WAS HAVING DIFFICULTIES IN HAVING HIS ALLOTMENT OF PAY SENT TO THE FIRST NATIONAL BANK, COLORADO SPRINGS, COLORADO, FOR CREDIT TO A SAVINGS ACCOUNT IN HIS NAME. OTHER THAN THE MEMBER'S PAY RECORDS FROM JANUARY 1 THROUGH OCTOBER 31, 1966, AND A COPY OF A GOVERNMENT CHECK, SAID TO BE IN THE AMOUNT OF $871.15, COPIES OF THESE DOCUMENTS HAVE BEEN PREVIOUSLY RECEIVED.

YOU SAY THAT THE PROCEEDS OF THE CANCELLED CHECK WAS NEVER RE CREDITED TO YOUR BROTHER'S PAY ACCOUNT. IT IS YOUR BELIEF THAT IF THE CHECK HAD BEEN PROPERLY HANDLED AND THE ARMY FINANCE CENTER HAD FOLLOWED YOUR BROTHER'S INSTRUCTIONS REGARDING HIS ALLOTMENT, THERE WOULD HAVE BEEN NOTHING DUE YOUR BROTHER AT THE TIME OF HIS DEATH, OTHER THAN FOR THE 11-DAY PERIOD IN MARCH 1967. YOU CONTEND THAT IT WOULD BE A SIMPLE MATTER FOR THE FINANCE CENTER TO CORRECT THIS ERROR BY SENDING THOSE FUNDS TO THE BANK FOR DEPOSIT TO YOUR BROTHER'S SAVINGS ACCOUNT WHICH HAS BEEN LEFT OPEN FOR THAT PURPOSE. YOU THEREFORE REQUEST OUR ASSISTANCE TO CORRECT THE ERROR, PRIOR TO YOUR PROCEEDING FURTHER IN THE MATTER WITH COURT PROCEEDINGS.

IN OUR DECISION OF OCTOBER 5, 1967, B-162473, WE ADVISED YOU THAT UNDER THE PROVISIONS OF 10 U.S.C. 2771, THE AMOUNT DUE FROM THE ARMED FORCE OF WHICH YOUR BROTHER WAS A MEMBER, MUST BE DISTRIBUTED IN ACCORDANCE WITH THE ORDER OF PRECEDENCE SET FORTH IN THAT SECTION. WE THEREFORE HELD THAT THE MEMBER'S FATHER WHO WAS STILL LIVING AT THE DATE OF YOUR BROTHER'S DEATH HAD PRECEDENCE OVER A LEGAL REPRESENTATIVE OF THE DECEDENT OR HIS BROTHERS.

REGARDLESS OF THE REASON FOR THE FAILURE TO MAKE THE ALLOTMENT PAYMENTS TO THE BANK DURING YOUR BROTHER'S LIFETIME THERE IS NO LEGAL AUTHORITY FOR FURTHER PAYMENT OF THE ALLOTMENT TO THE BANK AFTER RECEIPT OF NOTICE OF HIS DEATH. THE AMOUNT DUE IN THIS CASE IS THEREFORE FOR DISTRIBUTION UNDER THE PROVISIONS OF 10 U.S.C. 2771 AND UNDER THOSE STATUTORY PROVISIONS PAYMENT MAY NOT BE MADE TO THE EXECUTOR OF YOUR BROTHER'S WILL SINCE HE WAS SURVIVED BY HIS FATHER.

WHEN A GOVERNMENT CHECK IS CANCELLED PRIOR TO ITS NEGOTIATION NO PAYMENT HAS BEEN MADE AND PRESUMABLY THE $3,251.85 REPORTED BY THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, TO BE DUE IN THIS CASE, ALTHOUGH NOT ITEMIZED, INCLUDES THE AMOUNT OF THE CANCELLED CHECK, $871.15. UNDER THE GOVERNING STATUTORY PROVISIONS WE MAY AUTHORIZE PAYMENT OF THE AMOUNT DUE ONLY TO THE FATHER.

IN THIS REGARD, YOUR FATHER HAS NOT FILED A CLAIM FOR THE AMOUNT DUE. NO CLAIM IS RECEIVED FROM HIM FOR A PERIOD OF 10 YEARS FROM DATE OF HIS SON'S DEATH, ALL CLAIMS FOR THE AMOUNT DUE WILL BE BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061; 31 U.S.C. 71A.