Ward v. United States

• Decision Date: 25 March 1981
• Docket Number: No. 350-78.,350-78.
• Citation: 646 F.2d 474
• Parties: Mary E. WARD v. The UNITED STATES Donna Sue Ward Pipkin, Third-Party Plaintiff.
• Court: U.S. Claims Court

646 F.2d 474

Mary E. WARD v. The UNITED STATES

Donna Sue Ward Pipkin, Third-Party Plaintiff.

No. 350-78.

United States Court of Claims.

March 25, 1981.

M. J. Vanden Eykel, Dallas, Tex., attorney of record for plaintiff. Seeligson, Douglass & Falconer, Dallas, Tex., of counsel.

Cheryl S. Rome, with whom was Asst. Atty. Gen. Alice Daniel, Washington, D. C., for defendant.

Charles M. Bradshaw, Dallas, Tex., attorney of record for third-party plaintiff.

Before COWEN, Senior Judge, and DAVIS and NICHOLS, Judges.

OPINION

NICHOLS, Judge:

This military pay case comes before the court on defendant's exceptions and third-party plaintiff's exceptions to Senior Trial Judge White's opinion, findings of fact and conclusions of law. Plaintiff has one minor exception. Plaintiff and third-party plaintiff here contest for the pay and allowances of a now deceased Air Force officer, which the Air Force retained for him as long as his death was not established. Defendant is a stakeholder, but has a distinct preference for the claim of third-party plaintiff, has filed a brief in her support, and made an oral argument. After trial, Trial Judge White held that pursuant to paragraph (4) of 10 U.S.C. § 2771(a), plaintiff was entitled to the disputed amount of pay credited to the officer's account after February 12, 1972.

Upon defendant's and third-party plaintiff's exceptions to that decision, submitted to the court on briefs and oral arguments of counsels, we reject the trial judge's conclusions, and we determine that third-party plaintiff is entitled to recovery in accordance with this court's decision as hereinafter set forth. We adopt his findings of fact but they are not printed as they have been furnished to the parties. If any fact statement hereinafter lacks counterpart in the findings, it may be taken as an additional finding of the court.

I

The Air Force officer was Captain Neal Clinton Ward, deceased. Plaintiff, Mary E. Ward, was the mother of Neal Clinton Ward. Third-party plaintiff, Donna Sue Ward Pipkin, was at one time the wife of Neal Clinton Ward.

Captain Ward and third-party plaintiff were married on March 12, 1966. Texas was the state of their marital domicile throughout their marriage, and they had no children. Third-party plaintiff's maiden name was Donna Sue Streetman, and to avoid confusion she is hereinafter so called.

On May 27, 1967, Neal Clinton Ward entered active military service and trained and became an aircraft pilot. He was sent overseas on November 1968 to Southeast Asia and disappeared there while piloting a combat mission on June 13, 1969. He flew the lead aircraft of a flight of two. His wingman observed gunfire from the ground, lost sight of Ward in a cloud, and then observed a large fire and aircraft wreckage on the ground. Ward was never heard from again. Captain Ward was officially placed in the status of "missing in action" (MIA) by the Air Force on June 13, 1969. Nine years later his official status of MIA was changed to "killed in action" (KIA) on June 20, 1978. In accordance with 37 U.S.C. § 552, the Air Force regularly credited pay and allowances to the account of Captain Ward after his disappearance and until his status was changed to KIA.

On December 14, 1968, Neal Clinton Ward executed Air Force Form 246, entitled "Record of Emergency Data." In this form, Neal Clinton Ward listed "Donna S Streetman" as his "Spouse" and "Mary E Ward" as his "Mother;" he designated "Donna S Streetman * * * 100%" as the "Person to receive allotment if Missing;" and he designated "Donna S Streetman (Wife) 70% * * * and Mary E Ward (Mother) 30% * * *" as the "Beneficiary(s) for unpaid pay and allowances including Airman's Deposits" if he should die while in the military service. These designations were never changed by Neal Clinton Ward.

After Captain Ward's disappearance in June 1969 the Air Force regularly made allotment payments to Donna S. Streetman pursuant to Captain Ward's designation of her as the "Person to receive allotment if Missing."

Three years after Captain Ward disappeared, Donna S. Streetman married Stephen Pipkin on February 12, 1972. She believed Ward was dead. She then informed the Air Force in February 1972 that it should discontinue sending allotment checks to her. No further allotment payments were made out of Captain Ward's account after February 1972. The Air Force continued to credit pay and allowances regularly to the account until June 1978 when it issued DD Form 1300 which fixed the presumptive date of death of Captain Ward.

During the nine year period when Captain Ward was officially listed as MIA by the Air Force the pay and allowances credited to his account reached a total amount of more than $221,000. Of this amount the Air Force paid Streetman $35,365.30 in allotment checks during the period between June 13, 1969, and the end of February 1972. This amount is not contested by plaintiff in this case. After June 20, 1978 (when Captain Ward's status was changed to KIA) the Air Force paid plaintiff $54,881 pursuant to Captain Ward's designation of "Mary E Ward (Mother)" as a beneficiary to receive 30 percent of "unpaid pay and allowances" if Neal Clinton Ward should die while in the military service. This sum is also not involved in the present litigation.

The Air Force still retains $131,223.18 in Captain Ward's account and this represents 70 percent of the amount credited to the account between February 12, 1972, and June 20, 1978. This is the amount at issue here. Donna S. Streetman claims $130,272.92 of the amount based on Captain Ward's designation of her in Form 246 as the beneficiary to receive 70 percent of unpaid pay and allowances if he should die while in military service. Plaintiff contends that Streetman is not entitled to 70 percent or to any money credited to Captain Ward's account after February 1972, the date on which Streetman married Stephen Pipkin.

Trial Judge White held that Donna S. Streetman was widowed as the result of the death of Neal Clinton Ward on June 13, 1969, when the aircraft he was piloting disappeared. She subsequently contracted a marriage he deemed valid with Stephen Pipkin in February 1972. Consequently she was not the wife or widow of Captain Ward on June 20, 1978, the date on which his account was to be settled and funds distributed according to 10 U.S.C. § 2771. Therefore Trial Judge White ruled that Streetman was entitled to 70 percent of the amount credited prior to February 1972 but none after that date. Plaintiff was awarded 70 percent of the amount credited during the period of February 12, 1972, to June 20, 1978.

The trial judge indicates in his proposed opinion that the circumstances of Captain Ward's disappearance lead inescapably to the conclusion that he died on the date his aircraft crashed. But he does not formally so find and properly does not. In his view of the case this had a bearing on the validity of Donna Sue Streetman's remarriage in 1972, and if that was valid this in turn bears on the validity of her claim. In our view, there can be no question on this record but that she acted in an honorable, disinterested manner. In this year of grace 1981, whatever the validity of her remarriage when she made it, or when her children were born, the law will protect her against the consequences of any derogatory inference from the facts in this case. In our view, it is unnecessary to determine her marital status in 1972 or any subsequent date to decide this case because, as will appear, her claim to the retained funds rests on her identity as Donna S. Streetman, the person designated by Captain Ward on filling out Form 246, December 14, 1968, whether that person was or was not validly married to any person on any later relevant date.

II

The distribution of a deceased serviceman's military account is governed by Section 2771 of Title 10 U.S.C., which provides:

§ 2771. Final settlement of accounts: deceased members (a) In the settlement of the accounts of a deceased member of the armed forces who dies after December 31, 1955, 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, if the designation is received, before the deceased member's death, at the place named in regulations to be prescribed by the Secretary concerned.

(2) Surviving spouse.

(3) Children and their descendants, by representation.

(4) Father and mother in equal parts or, if either is dead, the survivor.

(5) Legal representative.

(6) Person entitled under the law of the domicile of the deceased member.

(b) Designations and changes of designation of beneficiaries under subsection (a)(1) are subject to regulations to be prescribed by the Secretary concerned. So far as practicable, these regulations shall be uniform for the armed forces, the Environmental Science Services Administration, and the Public Health Service.

(c) Under such regulations as the Comptroller General may prescribe, payments under subsection (a) shall be made by the military department concerned or the Department of the Treasury, as the case may be. Payment under clause (6) of subsection (a) shall be made —

(1) upon settlement by the General Accounting Office; or

(2) as otherwise authorized by the Comptroller General.

(d) A payment under this section bars recovery by any other person of the amount paid.

As the text reflects, prior law (now no longer codified) was different and authority construing it not here relevant. The most relevant amendment is by Pub.L.No. 85-861 (1958). See annotations to § 2771 in U.S.C.A. And it is a well established principle of law that federal statutory law alone governs military pay, and not state or common law concepts of contract rights. Bell v. United States, 366 U.S. 393, 81 S.Ct. 1230, 6 L.Ed.2d 365 (1961); Andrews v. United States, 175 Ct.Cl. 561 (1966); and Akerson v....