B-163334, APR. 16, 1968

B-163334, APR. 16, 1968

TO MR. SANFORD F. DERNIS:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 2, 1968, CONCERNING THE CLAIM OF MRS. SARAH B. SMITH, FOR THE ARREARS OF PAY AND SIX MONTHS' DEATH GRATUITY BELIEVED TO BE DUE HER AS THE SURVIVING WIDOW OF AIRMAN FIRST CLASS JAMES BROWN, INCIDENT TO HIS DEATH ON MARCH 7, 1962, WHILE SERVING IN THE UNITED STATES AIR FORCE.

THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION, DATED JUNE 12, 1964, AND MAY 5, 1966, TO YOUR CLIENT, IN WHICH SHE WAS ADVISED THAT THE DECEDENT HAD ESTABLISHED A DEPENDENCY ALLOTMENT ON BEHALF OF A SARAH D. BROWN AS LAWFUL WIFE. SHE WAS FURTHER ADVISED THAT WHILE NO EVIDENCE HAS BEEN SUBMITTED PROVING A FORMAL DISSOLUTION OF THE MARRIAGE OF THE ENLISTED MAN AND SARAH B. BROWN BY DIVORCE, THE PAYMENT OF THAT DEPENDENCY ALLOTMENT TO SARAH D. BROWN FROM MAY 1953 TO FEBRUARY 1962, A PERIOD OF OVER EIGHT YEARS, RAISED THE PRESUMPTION OF A VALID AND SUBSISTING MARRIAGE BETWEEN JAMES BROWN AND SARAH D. BROWN. CONSEQUENTLY, IT WAS CONCLUDED THAT THE MATTER WAS SUFFICIENTLY DOUBTFUL TO WARRANT WITHHOLDING PAYMENT OF THESE MONIES, ABSENT A DETERMINATION OF A COURT OF COMPETENT JURISDICTION AS TO THE IDENTITY OF THE LEGAL WIFE OF JAMES BROWN AT THE TIME OF HIS DEATH.

YOU NOW HAVE SUBMITTED A CERTIFIED COPY OF A CERTIFICATE SHOWING THE MARRIAGE OF YOUR CLIENT TO MR. BROWN ON FEBRUARY 13, 1946. YOU CONTEND THAT SINCE DILIGENT EFFORT ON THE PART OF YOU AND YOUR CLIENT HAS FAILED TO DISCLOSE A DIVORCE, NO DIVORCE ACTION WAS EVER UNDERTAKEN BY MR. BROWN AND, THEREFORE, THAT SARAH B. SMITH IS HIS LEGAL WIDOW.

YOUR CLIENT'S CLAIM AS WIDOW IS BASED SOLELY ON THE MARRIAGE CERTIFICATE OF FEBRUARY 13, 1946. THE FACT THAT NO INFORMATION HAS BEEN LOCATED SHOWING THAT A DIVORCE WAS SECURED BY MR. BROWN DOES NOT ESTABLISH THAT A DIVORCE ACTUALLY WAS NOT OBTAINED BY HIM. IT APPEARS THAT THE COUPLE LIVED TOGETHER FOR ONLY APPROXIMATELY TWO WEEKS AND THAT YOUR CLIENT NEVER SAW HIM AGAIN. YOU STATE THAT SHE RECEIVED A LETTER FROM AN ATTORNEY REPRESENTING MR. BROWN, ADVISING HER THAT THE MEMBER DESIRED A DIVORCE AND REQUESTED THAT SHE SIGN AND RETURN AN ENTRY OF APPEARANCE. SHORTLY AFTER THESE PAPERS WERE RETURNED, HER DEPENDENCY ALLOTMENT, ORIGINALLY ESTABLISHED IN 1946, WAS TERMINATED. ALTHOUGH YOUR CLIENT APPARENTLY NEVER RECEIVED COPIES OF THE FINAL DIVORCE PAPERS, SHE REMARRIED ON THE ASSUMPTION THAT THE DIVORCE HAD BEEN GRANTED. WHILE THE RECORD DOES NOT PROVIDE THE DATE AND LOCATION OF THAT SUBSEQUENT REMARRIAGE, IT IS INDICATED THAT IT OCCURRED PRIOR TO THE DEATH OF THE MEMBER. THE FILE INDICATES THE POSSIBLE EXISTENCE OF A SECOND MRS. BROWN SINCE A CLASS Q DEPENDENCY ALLOTMENT WAS ESTABLISHED IN HER FAVOR IN 1953 AND PAYMENT THEREOF WAS CONTINUED UP TO THE TIME OF THE MEMBER'S DEATH.

PAYMENT OF THE DEATH GRATUITY IS AUTHORIZED BY 10 U.S.C. 1475, TO BE PAID TO OR FOR THE LIVING SURVIVOR HIGHEST ON THE LIST PROVIDED IN SECTION 1477, WHICH, INSOFAR AS IS PERTINENT TO MRS. SMITH'S CLAIM IS SUBSECTION (A) (1), THE MEMBER'S SURVIVING SPOUSE.

SINCE YOUR CLIENT REMARRIED PRIOR TO THE MEMBER'S DEATH, APPARENTLY IN THE BELIEF THAT HER MARRIAGE TO HIM HAD BEEN DISSOLVED, AND SINCE A CLASS Q ALLOTMENT WAS PAID TO ANOTHER PERSON DESIGNATED BY HIM AS HIS WIFE, FOR A PERIOD OF OVER EIGHT YEARS, WE ARE UNABLE TO CONCLUDE THAT YOUR CLIENT IS HIS "SURVIVING SPOUSE" UNDER THE STATUTE. SEE IN THIS CONNECTION MCMICHAEL V MCMICHAEL, 28 SO. 2D 692 (1947) AND GRACE V GRACE, 162 SO. 2D 314 (1964).

WITH RESPECT TO THE ARREARS OF PAY DUE THE MEMBER, 10 U.S.C. 2771 PROVIDES IN PERTINENT PART:

"/A) IN THE SETTLEMENT OF THE ACCOUNTS OF A DECEASED MEMBER OF THE ARMED FORCES * * *, 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 TO RECEIVE SUCH AN AMOUNT *

"/2) SURVIVING SPOUSE.'

ACCORDING TO THE INFORMATION CONTAINED IN THE RECORD, AIRMAN BROWN, DESIGNATED HIS SPOUSE, SARAH D. BROWN, TO RECEIVE THESE BENEFITS. INASMUCH AS THE PREFERRED PAYEE OF THE AMOUNT DUE IN A DECEASED SERVICEMAN'S PAY AND ALLOWANCE ACCOUNT IS THE BENEFICIARY DESIGNATED BY HIM, PAYMENT OF ACCRUED BUT UNPAID PAY AND ALLOWANCES TO A PERSON OTHER THAN THE PERSON IDENTIFIED AS THE DESIGNATED BENEFICIARY IS NOT AUTHORIZED.

WHILE YOU HAVE EXPRESSED THE VIEW THAT SARAH B. BROWN (SMITH) AND SARAH D. BROWN ARE THE SAME PERSON, WE FIND LITTLE IN THE RECORD WHICH SUGGESTS THAT AIRMAN BROWN INTENDED THAT YOUR CLIENT SHOULD RECEIVE THE ARREARS OF PAY WHICH MIGHT BE DUE AT THE TIME OF HIS DEATH. IN THE CIRCUMSTANCES, NO PAYMENT MAY BE MADE TO HER IN THE ABSENCE OF A JUDICIAL DETERMINATION BY A COURT OF COMPETENT JURISDICTION THAT YOUR CLIENT AND SARAH D. BROWN ARE ONE AND THE SAME PERSON.