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$ 833.5

or child, payment will be made to the person or persons designated.

Title 32-National Defense

(4) If there is no surviving beneficiary under the provisions of subparagraphs (1), (2), or (3) of this paragraph, payment will be made to the decedent's surviving parent or parents, if any, in equal shares.

(5) If there is no surviving beneficiary under the provisions of subparagraphs (1), (2), (3) or (4) of this paragraph, payment will be made to the decedent's surviving brothers and sisters, if any, in equal shares.

(b) If a survivor dies before he receives the amount to which he is entitled under the provisions of paragraph (a) of this section, such amount will be paid to the then living survivor or survivors first listed under paragraph (a) of this section.

(c) If there are no survivors under the provisions of paragraph (a) of this section, no death gratuity is payable to any other person.

§ 833.5 Determinations affecting entitlement-(a) Absence without leave, absence over leave, and desertion-(1) Absence without leave or absence over leave. A member absent without leave, or absent over leave, including cases where the absence is because of detention by civil authorities, will continue in a pay status but will forfeit all pay and allowances during such periods unless the absence is excused as unavoidable. Therefore, if the deceased was absent without leave or absent over leave and the date of death was prior to the date of expiration of the decedent's normal term of service, the absent-without-leave status is not a bar to payment of the death gratuity. Death gratuity is not payable if death is reported to have occurred when the deceased was absent without leave and the date of death was subsequent to the date of the expiration of the decedent's normal term of service.

(2) Desertion. A member does not continue in a pay status after he becomes a deserter. Therefore, if death occurs after the member has been dropped from the rolls as a deserter, the Settlements Division, Air Force Finance Center, will obtain from the Air Adjutant General, Headquarters, USAF, an initial administrative determination or any corrected administrative determination as may have been made subsequent thereto showing whether the member was in a

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(e) Inclusion of flying pay in death gratuity. (1) If a member dies while assigned to flying duty and has not met flight requirements during the three calendar month period succeeding the quarter in which he last complied with the flight requirements, his rate of pay for the payment of death gratuity includes the increased pay for flying although no flying pay had accrued to him on the date of his death, providing sufficient time remains in which flight requirements could have been met.

(2) If a member dies while under suspension from flying duty, pay for flying will not be included in the rate of pay at date of death for the purpose of payment of the death gratuity since the member would not be entitled to flying pay while so suspended.

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(f) Advance in grade after date of death. The statutory provision which entitles any member in active service officially reported as missing, missing-inaction, interned in a foreign country, captured by a hostile force, beleaguered or besieged to continue to receive or have credited to his account, the pay and allowances to which he was then, or thereafter becomes entitled, does not authorize computation of the death gratuity payment on the basis of pay for a grade to which the member was advanced after being officially reported missing, where it was later determined that the member died prior to the advancement in grade.

(g) Death gratuity exempt from indebtedness. The amount of the death gratuity payment may not be used to satisfy indebtedness, including overpayments, to the officer or airman.

§ 833.6 Settlement of accounts. Settlement of death gratuity claims under the provisions of §§ 833.1 to 833.7 will be effected as follows:

(a) Payments made by finance officers. The finance officer serving the organization or installation to which the decedent was assigned at time of death will settle the death gratuity claim provided:

(1) He is in possession of the member's DD Form 113, Military Pay Record, at the time of death;

(2) An eligible beneficiary has been established as one of those listed in § 833.4 (a) (1), (2) or (3); and

(3) The decedent was stationed within the United States and the eligible beneficiary resides within the United States, or

(4) The beneficiary resides in the same overseas area or country, or in an overseas area or country which may be served expeditiously by the finance officer who is in possession of the decedent's Military Pay Record.

(b) Payments made by the Air Force Finance Center. Action toward payment of the death gratuity will be taken by Settlements Division, Air Force Finance Center, in the following cases:

(1) Where the decedent was stationed outside the United States and the beneficiary resides within the United States, or in a different overseas command, or where the decedent was stationed within the United States and the beneficiary resides outside the United States, except as otherwise specifically authorized in

each individual case under the provisions of paragraph (c) (2) of this section.

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(2) Where the decedent is not survived by a spouse, child or designated beneficiary.

(3) Where death occurs under unusual circumstances such as self-inflicted injuries, or where an otherwise qualified beneficiary has taken the life of the decedent.

(4) In any case where doubtful entitlement exists, or where the proper beneficiary to receive the death gratuity cannot be determined by the commander. Such cases include, but are not limited to, those where the potential beneficiary is:

(i) A common-law widow or widower. (ii) An adopted child where there are no properly certified court adoption papers.

(iii) An illegitimate child.

(iv) Any person claiming in loco parentis relationship, and the relationship has not been previously determined for basic allowance for quarters purposes.

(5) Where there is no court-appointed guardian of a minor child or children, and payment is to be made to the natural custodian.

(c) Payments made by finance officers in specific cases. (1) If a member is declared dead within a period of ten days after being reported in a missing status, settlement of the death gratuity payment will be effected as prescribed in paragraphs (a) and (b) of this section, as applicable. If declaration of death is not made within a period of ten days from the date the member is reported missing, settlement will be effected by the office which maintained the member's pay account while in a missing status.

(2) Payment of death gratuity will be effected by the finance officer in any case where specifically directed to do so by Settlements Division, Air Force Accounting and Finance Center, due to financial hardship to eligible beneficiaries, or for any other sufficient reason. [Paragraph (c) amended, 22 F. R. 10218, Dec. 19, 1957]

(d) Reserve members on active duty training or inactive duty training. The dependents of members of an Air Force Reserve component who die as the result of disease incurred while on active duty in excess of 30 days or as a result of injuries after compliance with a call or

Title 32-National Defense

$ 833.7

order to active military service, active duty for training, or inactive duty for training for any period of time are entitled to 6 months' death gratuity.

§ 833.7 Responsibilities of commanders. Immediately upon official notification of the death of a member under his jurisdiction, the commander of the organization or installation which maintains the member's field personnel records will take action as follows toward settlement of the death gratuity payment. All actions will be expedited in order that settlement may be effected within 24 hours if at all possible.

(a) Determination of proper beneficiary. Determination will be made as to whether there is an eligible beneficiary or beneficiaries within categories listed in § 833.4 (a) (1), (2) or (3) to receive the death gratuity payment. Full use will be made of the legal assistance officer available to the organization or installation in determining eligibility in instances where a question of law arises in connection with entitlement.

(1) Lawful spouse. (i) All members who prior to their deaths had established entitlement to basic allowance for quarters on behalf of a lawful spouse, will be considered as having established the relationship for purposes of payment of the death gratuity, and further evidence will not be required.

(ii) Where a member was not receiving basic allowance for quarters because he and his spouse occupied Government quarters, copy of the assignment document will be utilized, without further evidence, in determining the lawful spouse to receive the death gratuity payment.

(iii) In any case where the member had not established entitlement to basic allowance for quarters, and was not occupying Government quarters with his spouse, the existence of a lawful spouse will be established on the basis of documentary evidence of marriage and proof of termination of any prior marriage entered into by either the beneficiary or decedent. Documentary evidence of marriage includes the original, a certified copy, or photostat of a certified copy of the original marriage certificate, or a public or church record of marriage issued over the signature and seal of the custodian of the records. Documentary proof of termination of a prior marriage includes the original or certified copy of

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the original divorce or annulment decree or death certificate.

(2) Children. Where a decedent is survived by a child or children and no spouse, documentary evidence of the termination of any marriage the decedent may have entered into will be required. Documentary evidence includes a certified copy of the spouse's death certificate, divorce annulment decree. Eligibility of the child or children will be determined as follows:

or

(i) Any child whose relationship has been established by the member for basic allowance for quarters purposes, or who occupied Government quarters with the member prior to his death, will be considered an eligible beneficiary for death gratuity purposes.

(ii) Documentary proof of relationship will be required to establish entitlement to death gratuity of any child not specifically named on DD Form 137, Dependency Certificate-Wife or Child Under 21 Years, or DD Form 137-2, Dependency Certificate-Unmarried Child Over 21 Years, or not occupying Government quarters with the member prior to his death. Documentary proof of relationship includes the original, a certified copy or photostat of a certified copy of the original birth certificate.

(iii) If a child is a legally adopted child, a certified court order of adoption will be required.

(iv) If a guardian of minor child(ren) has been appointed by court, a certified copy of the appointment paper is required.

(3) Designated beneficiary. Where a decedent is not survived by spouse or child, but has been designated on DD Form 93 a father, mother, brother or sister to receive the death gratuity, the fact of designation will be considered as sufficient evidence to establish the relationship, and further proof will not be required of the beneficiary, except in "loco parentis" cases. Documentary evidence of the termination of any marriage the decedent may have entered into, and a notarized statement that there are no living children, will be required of the beneficiary. In "loco parentis" cases, any person on whose behalf the decedent, prior to his death, satisfactorily established the relationship for basic allowance for quarters purposes, will be considered an eligible beneficiary, if designated, for the death gratuity payment, without further evi

dence. In any case where the relationship has not been established, determination of relationship will be made by the Settlements Division as prescribed in § 833.6 (b) (4).

(4) Mentally incompetent beneficiary. If the beneficiary is mentally incompetent, a photostat or certified copy of the court order of appointment of the guardian, trustee, committee, or other person legally appointed as custodian of the beneficiary will be required.

(b) Substantiating document. Upon determination of the proper beneficiary to receive the death gratuity, or that there are no eligible beneficiaries within categories listed in § 833.4 (a) (1), (2) or (3), to receive death gratuity, the commander will furnish the finance officer having custody of the member's Military Pay Record with a Military Pay Order, DD Form 114. The Military Pay Order will contain one of the following certificates, as appropriate:

(1) I certify that (name of beneficiary or beneficiaries), (relationship to decedent), is (are) to the eligible beneficiary (ies) receive (all) (equal shares) (if other, attach copy of DD Form 93) of the death gratuity payable incident to the death of (name, grade, and service number of decedent).

(Name, grade, organization and
signature of commander)

(2) I certify that available records reveal that (name, grade, and service number of decedent) was not survived by a lawful spouse, child or designated beneficiary.

(Name, grade, organization and
signature of commander)

Part 836-Claims Against the United States

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GENERAL PROVISIONS [NOTE]

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Sec. 836.1-836.6

836.144 Claims not payable.

836.145

CLAIMS ARISING OUT OF ACTIVITIES OF THE AIR FORCE [NOTE]

Claims under other laws and regulations.

836.146

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Subrogation claims.

Limitation of settlement.

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Sec.

836.164 Preparation of decisions and pro

cedures.

836.165 Payments pursuant to a decision.

GENERAL PROVISIONS

AUTHORITY NOTE: The citation of authority for §§ 836.1 to 836.6 is changed to read:

AUTHORITY: §§ 836.1 to 836.6 issued under sec. 8012, 70A Stat. 488; 10 U. S. C. 8012. Interpret or apply sec. 1, 62 Stat. 983, as amended, secs. 939, 2731-2735, 70A Stat. 78, 152-155; 28 U. S. C. 2672, 10 U. S. C. 939, 2731-2735.

CLAIMS ARISING OUT OF ACTIVITIES OF THE

AIR FORCE

AUTHORITY NOTE: The citation of authority for §§ 836.11 to 836.24 is changed to read:

AUTHORITY: §§ 836.11 to 836.24 issued under sec. 8012, 70A Stat. 488; 10 U. S. C. 8012. Interpret or apply sec. 1, 62 Stat. 983, as amended, secs. 939, 2731-2735, 70A Stat. 78, 152-155; 28 U. S. C. 2672, 10 U. S. C. 939, 2731-2735.

TORT CLAIMS

AUTHORITY NOTE: The citation of authority for §§ 836.31 to 836.46 is changed to read: AUTHORITY: §§ 836.31 to 836.46 issued under sec. 8012, 70A Stat. 488; 10 U. S. C. 8012. Interpret or apply sec. 1. 62 Stat. 983, as amended, secs. 939, 2731-2735, 70A Stat. 78, 152-155; 28 U. S. C. 2672, 10 U. S. C. 939, 2731-2735.

CLAIMS UNDER ARTICLE 139, UNIFORM CODE OF MILITARY JUSTICE

AUTHORITY NOTE: The citation of authority for §§ 836.51 to 836.56 is changed to read:

AUTHORITY: §§ 836.51 to 836.56 issued under sec. 8012, 70A Stat. 488; 10 U. S. C. 8012. Interpret or apply sec. 939, 70A Stat.. 78; 10 U.S. C. 939.

CLAIMS ARISING OUTSIDE THE UNITED STATES [REVISED]

AUTHORITY: §§ 836.61 to 836.77 issued under sec. 1, 70A Stat. 488; 10 U. S. C. 8012. Interpret or apply sec. 1, 70A Stat. 154, 155; 10 U. S. C. 2734, 2735.

SOURCE: §§ 836.61 to 836.77 appear at 23 F. R. 5723, July 30, 1958.

NOTE: 836.61 to 836.77 supersede former §§ 836.61 to 836.83.

§ 836.61 Purpose. Sections 836.61 to 836.77 state the procedures for settling and paying claims made against the United States by inhabitants of foreign countries because of death, personal injury, or damage to or loss of public or private property, real or personal. Sections 836.61 to 836.77 apply only in those cases where such claims arise outside the United States, its Territories and

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Civilian em

(b) Civilian employees. ployees of the Air Force, prisoners of war and interned enemy aliens engaged in labor for pay, and volunteer workers and others serving as employees of the Air Force without compensation.

(c) Inhabitant of a foreign country. A person who dwells or resides in a foreign country. Neither citizenship nor domicile is required. A foreign country includes any place under the jurisdiction of the United States in a foreign country. A person includes a corporation or other business association. A corporation or other business association is not necessarily excluded as an inhabitant because organized under United States law.

(d) Military personnel. Forces or individual members of the Air Force.

(e) Noncombat activities. Authorized activities which are peculiarly Air Force activities that have little parallel in civilian pursuits or which historically have been considered as furnishing proper basis for paying claims-such as maneuvers, special field exercises, using explosives, firing guns or other weapons, practice bombings, operating aircraft and missiles, using balloons, using animals, using equipment or devices having latent mechanical defects, moving combat or other vehicles designed especially for military use, and using and occupying real estate.

(f) Settle. Consider, ascertain, adjust, determine, and dispose of a claim, whether by approval or disapproval in whole or in part.

§ 836.63 Claims payable. Unless otherwise prescribed, claims for death, personal injury, or damage to or loss of property, real or personal, may be settled under §§ 836.61 to 836.77.

(a) Death. Only one claim arises for all beneficiaries. The amount allowed, to the extent found practicable, will be

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