Code of Federal Regulations: Containing a Codification of Documents of ...

(2) Six months' death gratuity is not payable if death is reported to have occurred when the deceased is absent without leave and the date of death is subsequent to the date of the expiration of the deceased's normal term of service. The finding on the AFHQ Form O-529 issued by the Casualty Branch, Director of Military Personnel, Headquarters USAF, in a case such as this would normally read "Not in line of duty-Not misconduct." If the deceased is absent without leave and the date of death is prior to the date of expiration of the deceased's normal term of service, the AWOL status is not a bar to payment of the 6 months' death gratuity so long as the death did not occur as a result of the decedent's own misconduct. [19 F. R. 7489, Nov. 20, 1954]

§ 833.4 Eligible beneficiaries. Regulations require all members to execute Department of Defense Form 93, "Record of Emergency Data for the Armed Forces of the United States," indicating in the appropriate space thereon the person to receive the six months' death gratuity payment. Under the provisions of the laws governing such payment, the eligibility of the person or persons to whom such payment may be made depends upon relationship, designation, the ability to show an insurable interest in the continuance of the life of the deceased, a dependency upon the deceased, or a combination of all these factors. Such payment will be made to beneficiaries as follows:

(a) If there be a lawful widow (widower), payment will be made to such person only, regardless of whether designated.

(b) If there be no widow (widower), payment will be made to the child or children equally of any lawful marriage, regardless of whether designated. this connection, an illegitimate child, where the relationship is properly established and acknowledged, is a child within the meaning of 10 U. S. C. 903 and may be entitled to payment as beneficiary of the death gratuity. (Comp. Gen. Dec. B-93064, January 10, 1951.) In cases where a claim is made by or on behalf of illegitimate children, no payment will be made by the finance officer, but all claims including any made by the child or children of a lawful marriage, will be submitted to the Settlements Division, Air Force Finance Center, 3800 York Street, Denver, 5, Colorado.

(c) If decedent is not survived by a widow (widower) or child (children), the designated relative is eligible to receive payment without regard to order of precedence. Eligibility of certain classes of beneficiaries to receive payment, although designated, is dependent, however, upon the ability of the beneficiary to show dependency upon, or an insurable interest in the continued life of the decedent. Such beneficiaries are grandparents, aunts and uncles, nieces and nephews, and other more distant relatives.

(d) If decedent is not survived by a widow (widower) or child (children), and the first designated beneficiary is nonexistent or determined to be ineligible, the alternate designated beneficiary must be considered.

(e) If decedent is not survived by a widow (widower) or child (children), and Department of Defense Form 93 does not show a designation, the next of kin by class in the order of precedence indicated below will be considered and, is eligible, payment will be divided equally among such benficiaries: (1) Grandchildren.

(2) Parents.

(3) Brothers-sisters.
(4) Grandparents.

Example. If more than one grandchild survives, each will be entitled to an equal share of the amount payable. If three grandchildren survive and only two submit claims, the two claiming will receive one-third each, the remaining share being considered as an amount payable in the event a claim is submitted by the third grandchild. This method of prorating amounts payable is applicable to each class of beneficiary enumerated in this paragraph.

[15 F. R. 6219, Sept. 16, 1950, as amended at 19 F. R. 7489, Nov. 20, 1954]

§ 833.5 Ineligible beneficiaries. (a) Persons who are not considered eligible to receive payment of the 6 months' death gratuity are:

(1) Any married child notwithstanding the allegation of dependency or insurable interests upon the deceased.

(2) Any unmarried child over 21 years of age who is not actually a dependent of the deceased, regardless of the ability to show insurable interest.

(3) Persons alleging loco parentis relationships, other than dependent relatives.

1 The fact that the widow (widower) or child (children), as the case may be, was designated as beneficiary, will in itself be regarded oridinarily as sufficient to establish the identity of the payee.

Where a payment is to be made to a widow (widower) not previously designated as beneficiary, affidavits from two disinterested persons, not related by blood, attesting to the following facts will be obtained and filed with the voucher: The length of time they have known the widow (widower), that they have known her (him) to be the lawful wife (husband) of the decedent at the time of his (her) death, and that to the best of their knowledge and belief no divorce has been granted.

Where payment is to be made to a child (children) not previously designated, affidavits from two disinterested persons, not related by blood, attesting to the following facts will be obtained and filed with the voucher: That they knew the decedent, knew the mother (father), know that the child (children) is (are) the legitimate child (children) of the decedent, and know that the decedent was not survived by lawful widow (widower) at the time of his (her) death and that the child (children) is (are) the only living child (children) of the decedent.

In an instance where available information shows that the decedent had been at one time married to other than widow (widower) claiming the right to payment, she (he) must furnish evidence of dissolution of former marriage or marriages, i. e., divorce decree, annulment decree, or death certificate, whichever is appropriate. This evidence must also be furnished in the event claimant had been married previously.

In an instance where a child (children) of decedent is (are) being considered for payment, evidence of dissolution of all prior marriages of parent is necessary. (See footnote 4.)

In an instance where a relative(s) other than a widow (widower), child (children) is being considered, the person (persons) must furnish evidence of dissolution of any marriage the decedent may have entered into as well as nonexist. ence of child (children). (See footnotes 4 and 5.)

In an instance where widow (widower) claims common-law marriage relationship to decedent, evidence to substantiate that marriage should be of the same quality and quantity which would be required to establish the validity of the marriage before the courts of the jurisdiction where contracted.

§ 833.6 Evidence required. The evidence required to establish the right of any person to receive payment of the 6 months' death gratuity is set forth in figure 1 for the different classes of bene

ficiaries.

However, the finance officer responsible for effecting payment may require additional evidence considered necessary.

[19 F. R. 7489, Nov. 20, 1954]

§ 833.7 Payments. Determination of the finance officer who will make payment of the 6 months' death gratuity is dependent upon the categorization of the decedent and the class of beneficiary to be considered for payment.

(a) Category I. Claims for payment of gratuity resulting from the death of members in this category will be paid by the finance officer serving the organization or installation to which the decedent was assigned at time of death. (See exceptions in paragraph (d) of this section.)

(b) Category II. (1) Gratuity pay claims resulting from the death of members in this category will be paid by the finance officer designated to pay the accounts of the Reserve Forces as prescribed by current directives. (See exceptions in paragraph (d) of this section.)

(2) Gratuity pay claims resulting from the death of members in this category who are not in a pay status but who are nevertheless entitled to the benefits set forth in the act of June 20, 1949 (63 Stat. 202; 10 U. S. C. 456), will be paid by the finance officers charged with disbursements for the areas in which the decedents resided. (See exceptions in paragraph (d) of this section.)

(3) Since a line of duty investigation is required in any case in this category, in accordance with current directives, the finance officer will take no action in connection with gratuity payment until the Casualty Report, containing a certification of the availability of funds to be used, is received from the Casualty Branch, Director of Military Personnel, Headquarters USAF, through channels. The finance officer will then take immediate steps to furnish DD Form 397 to the potential beneficiary.

(c) Category III. (1) Air Force members stationed outside the continental limits of the United States, formerly reported in a missing status, whose beneficiary resided in same oversea areapayment will be made by the finance officer having custody of the Military Pay Record at the time of death.

(2) Air Force members stationed in the continental United States, formerly reported in a missing status-payment will be made by the Air Force Finance Center, Denver, Colorado.

(3) Where the determination or presumptive finding of death is made by

the Deputy Chief of Staff, Personnel, the Settlements Division, Air Force Finance Center, will take action to effect payment of the gratuity.

(d) Exceptions-(1) Beneficiaries who must show dependency or insurable interests. (i) If the beneficiary is one who must show dependency upon or an insurable interest in the continued life of the decedent, a determination of the proper payee will be made by the Commander, Air Force Finance Center, or by a delegated subordinate and payment will be made by the Air Force Finance Center.

(ii) The appropriate finance officer (depending upon the category of the decedent) will forward the DD Form 397 to the potential beneficiary with instruction to return the executed claim to the Settlements Division, Air Force Finance Center.

(2) Death outside United States. (i) Where a member dies outside the United States and his beneficiary does not reside in the same area or in an area which may be served expeditiously by the finance officer making payments in the area in which the death occurred, payment will be effected by the Central Disbursing Division, Air Force Finance Center. Documents to support such payment will be furnished to the Settlements Division, Air Force Finance Center, by the finance officer paying the unit to which the decedent was assigned.

(ii) The finance officer, Clark Air Force Base, APO 74, San Francisco, California, is designated to make death gratuity payments of Army and Air Force personnel payable to beneficiaries of such personnel residing in the Philippine Islands.

[19 F. R. 7489, Nov. 20, 1954]

§ 833.8 Forms. DD Form 397, Public Voucher for Six Months' Gratuity Pay, will be used to file claims and make payment. DD Form 397-1 (memorandum copy of DD Form 397) completed by the finance officer will be forwarded to the Settlements Division, Air Force Finance Center. Forms will be forwarded to the potential beneficiary by the finance officer in accordance with the provisions of § 833.7.

[19 F. R. 7490, Nov. 20, 1954]

§ 833.9 Special instructions-(a) Six months' death gratuity exempt from indebtedness. The amount of the six months' pay may not be used for the

debts of the officer or airman, not even for overpayment. (See MS Comp. Dec., May 14, 1913.)

(b) Relinquishment of right to payment. If the deceased member had designated two beneficiaries to receive the six months' death gratuity payment, and the claim of the first designated beneficiary is disapproved because the evidence does not clearly establish dependency upon the deceased for support, or otherwise an insurable interest in him, the claim of the second designated beneficiary may not be considered unless the first beneficiary—who may desire to submit additional evidence tending to show dependency-has relinquished the right to claim the gratuity payment. 22 Comp. Gen. 676.)

(See

(c) Will; not a designation. A will is not a designation within the meaning of the act providing the six months' death gratuity pay, since the gratuity payment is not a debt or money due the officer or airman and canont become a part of the decedent's estate. (See 21 Comp. Dec. 856.)

(d) Advanced in grade after date of death. Section 2 of the act of March 7, 1942, as amended (sec. 2, 56 Stat. 144, as amended; 50 U. S. C. App. 1002), which entitles any member in active service officially reported as missing, missing in action, interned in a neutral country, captured by an enemy, beleagured or besieged, etc., to continue to receive, or have credited to his account, the pay and allowances to which he was then, or thereafter became entitled, does not authorize computation of the six months' death gratuity payment on the basis of pay for a grade to which a person was advanced after being officially reported missing, where it was later determined that the person had died prior to such advancement in grade. (See 22 Comp. Gen. 395.)

(e) Declared dead after missing. In the case of a member who was officially carried in a missing status and subsequently declared dead as of a certain date, the death gratuity in an amount equal to six months' pay at the rate received at the date of death should be computed on the pay rate to which the person was entitled on the date on which he was declared dead, rather than on the rate he was receiving at the beginning of the missing status. (See 22 Comp. Gen. 1053.)

(f) Flying requirements not met when on flying status. If a member dies while assigned to flying duty and has not made any flights during the three months succeeding the quarter in which he last complied with the flight requirements, his rate of pay for the payment of six months' death gratuity includes the increased pay for flying, although no flying pay had accrued to him on the date of his death and provided that he had not been indefinitely suspended from flying on that date. (See 7 Comp. Gen. 476.)

(g) Waiver by lawful widow (widower). A waiver by the lawful widow (widower) of a deceased person of her (his) statutory right to the six months' death gratuity pay is without force or effect, and does not operate to entitle the mother of the deceased, the designated beneficiary, to payment of the gratuity. (See 22 Comp. Gen. 676: 24 Comp. Gen. 46.)

(h) Absence without leave, absence over leave, and desertion-(1) AWOL or absence over leave. A member absent without leave or absent over leave will continue in a pay status but will forfeit all pay and allowance during such periods unless such absence is excused as unavoidable. Therefore, if a member dies during a period of AWOL or absence over leave, payment of the six months' gratuity is proper if otherwise payable. This determination applies to all such cases occurring subsequent to August 31, 1946. (See sec. 4 (b), 60 Stat. 964 as amended; 37 U. S. C. 33 and 29 Comp. Gen. 294.)

(2) Desertion. A member does not continue in a pay status after he becomes a deserter. Therefore, in any case where a member dies after having been dropped from the rolls of his organization as a deserter, the Settlements Division, Air Force Finance Center, Denver, Colorado, will obtain from the Air Adjutant General, Headquarters USAF, such initial administrative determination or any corrected administrative determination as may have been made subsequent thereto showing whether the member was in a desertion, an AWOL, and absent over leave, or a duty status at the time of death. Payment of the six months' death gratuity will be dependent upon the status of such member as reflected in the final administrative determination. (31 Comp. Gen. 645)

(3) Death subsequent to expiration of normal term of service. (See § 833.3 (b) (2)).

(i) Death of beneficiary. event of the death of any beneficiary before payment to and collection by such beneficiary of the amount authorized, payment will be made to the next living beneficiary in the order of succession stated in § 833.4.

(j) Stepparents not designated. Stepparents who are not designated as beneficiaries are not entitled to payment of the six months' death gratuity. [15 F. R. 6219, Sept. 16, 1950, as amended at 19 F. R. 7490, Nov. 20, 1954]

In the

836.16

Statute of limitations.

836.17

Contract claims.

836.18

Claims in excess of $1,000.

836.19

Personal injury claims; expenses allowable.

836.20

Approval or disapproval.

836.21

Appeals.

836.22

Subrogation.

836.23

§ 833.10 Deceased personnel other than Air Force. (a) Air Force finance officers are authorized to make payment of the 6 months' death gratuity to beneficiaries of Army personnel residing overseas provided that the finance officer has custody of the Military Pay Record at time of death.

(b) Air Force finance officers are not authorized to make payment of the 6 months' death gratuity to beneficiaries of Navy or Marine personnel, although the finance officer has custody of the Military Pay Record at time of death. Current instructions of the department concerned will be followed in such cases.

(c) Treasury Department License No. W-3041, February 14, 1947, authorizes the Department of the Army to pay claims for 6 months' death gratuity to residents of Germany or Japan who are beneficiaries of deceased military personnel. Payment will be made in indigenous currency of the country in which the beneficiary resides.

[19 F. R. 7490, Nov. 20, 1954]

Part 836-Claims Against the United States

Definitions.

Claims in excess of $1,000.

Scope of employment.

Proximate cause.

Attorney fees.

or civilian employees.

Final action by designee.