TN 4 (02-06)

A. PR 06-062 (Mississippi) Circumstantial Evidence of Death for Number Holder Missing Following a Boating Accident

DATE: February 7, 2006

1. SYLLABUS

An order from a county Probate Court establishing a presumption of death and date of death should be given great weight in light of supporting statements of individuals familiar with the wage earner's disappearance. Such evidence is sufficient to determine the circumstantial death of the wage earner and pay survivor benefits based on deceased wage earner's record.

2. OPINION

QUESTION

You asked whether survivor benefits can be paid to the survivors of Michael K. M~, who has been missing since May 16, 2004.

ANSWER

We believe circumstantial evidence provides a strong basis for concluding that Mr. M~ died on May 16, 2004. Therefore, a SSA adjudicator could determine to pay survivor benefits to his survivors prior to the passage of seven years.

BACKGROUND

According to the information provided, Mr. M~ was last seen alone in his boat on Lake Lanier on May 16, 2004. Later that evening, the boat was found sinking with the throttle handle in the full open position, the steering column broken, and the keys broken off in the ignition and floating in the water. The outboard motor also had been damaged. Mr. M~'s checkbook and wallet were found in the boat or floating on the water around the boat.

Teresa G~, the ex-wife of Mr. M~ and the mother of Jessica M~, reported that Mr. M~ was last seen on Sunday evening, May 16, 2004, boating on Lake Lanier. Ms. G~ reported that the Sheriff's Department informed her that Mr. M~'s sinking boat was found Sunday night, with his wallet, car keys, and cell phone in a bag underneath the seat. She also reported that Mr. M~ had not returned to his residence and had not been seen or heard from by any relatives or friends. Ms. G~ also stated that Mr. M~ had top security clearance with the United States Treasury Department. Ms. G~ knew of no reason for Mr. M~ to falsify his disappearance. She reported that Mr. M~'s life appeared normal, with no financial, family, or mental problems. Mr. G~ believed Mr. M~ would have contacted his daughter, his parents, and his sister if he was alive.

Contact with Mr. M~'s former employer, the United States Treasury Department, on October 27, 2005, revealed that he had not been to work since he disappeared. The Treasury Department had not paid survivor's benefits yet because their regulations require the individual to be missing for a year before survivor's benefits could be paid. Upon learning that a court case was pending, the Treasury Department waited until the court issued its order and then solicited an application for survivor's benefits from Mr. M~'s daughter, Jessica. The information provided does not indicate whether the Treasury Department has awarded survivor's benefits.

Christine M~, Mr. M~'s mother, reported that she had no contact with him since his disappearance. She also reported that she knew of no other investigations into his disappearance, such as insurance investigations. She knew of no reason he would falsify his disappearance.

A Georgia Department of Natural Resources Boating Incident Report concluded that Mr. M~'s boat was traveling at a high rate of speed when it made a hard right turn that was steep enough that the boat could not recover. The boat turned on its right and caught the port side, causing it to barrel roll to the left, ejecting the driver. A passerby, who did not witness the incident, called See Tow, who in turn contacted the Georgia Department of Natural Resources.

John A~ reported in an affidavit that, while in his own boat on Lake Lanier on May 16, 2004, he came upon a boat sitting low on the surface and taking on water. The boat was later identified as Mr. M~'s boat. Mr. A~ reported that the boat was not occupied and there was no one in the water around the boat.

Steve M~, an individual with expertise in powerboats, reported in an affidavit that he had reviewed the boating incident report from the Georgia Department of Natural Resources and inspected Mr. M~'s boat. Based on his knowledge and experience, Mr. M~ had no doubt that Mr. M~ perished from drowning as a result of the boating incident.

The record also includes a missing persons report prepared by Dan F~, an investigator with the Hall County Sheriff's Office. Mr. F~ observed Mr. M~'s boat the day after the incident and noted that the throttle handle was in the full open position, the steering column was broken off at the shaft, and the keys were broken off in the ignition, all suggesting that the operator of the boat had been ejected. Mr. F~ also noted that the outboard motor had been broken off at the hull and the steering wheel damaged. Mr. F~ reported that Mr. M~'s checkbook and wallet had been found floating as the boat sank in the marina slip where it had been towed. Mr. F~ then began contacting relatives and other persons to see if they had any information regarding Mr. M~'s whereabouts. Mr. F~ contacted Mr. M~'s hairdresser, who had no information, and Mr. M~'s work supervisor, Keith K~, who reported that he had not seen or heard from Mr. M~. Mr. F~ reported that Mr. M~'s truck and boat trailer had been found where he normally put his boat into the lake.

Mr. F~ further reported that Dr. Brian R~, a friend of Mr. M~, had been with Mr. M~ the night of his disappearance. Dr. R~ stated that Mr. M~ had planned to visit Dr. R~'s house that night, but he never showed up. Mr. F~ noted that a search for Mr. M~ using divers, cadaver dogs, and sonar equipment commenced on Tuesday, May 18, 2004. The search was hampered by debris under the water and called off on Wednesday May, 19, 2004. Mr. F~ also reported that he spoke with Mr. A~, who was the first known person to have seen Mr. M~'s boat after the incident. Based on the information obtained from Mr. A~, a second search was started on Tuesday, May 25, 2004. Cadaver dogs were used and divers entered the water on Wednesday May 26, 2004, but no body was recovered. At that point Mr. F~ and his associates decided all available options had been exhausted and conducted no further searches.

Mr. M~'s disappearance made the local news, with several stories appearing in the Gainesville Times at gainesvilletimes.com. The articles reported on the search efforts for Mr. M~ and the recovery of Mr. M~'s boat, vehicle, and personal effects.

On August 31, 2005, the Probate Court of Forsyth County, Georgia issued an Order Establishing Presumption of Death and Date Thereof. The court found that a diligent and reasonable effort had been made to locate Mr. M~ and that a legal presumption of death of Mr. M~ had been established and not rebutted, or had been established by a preponderance of the evidence, and that it was necessary that a death certificate be issued. The court concluded that Mr. M~ was dead and that the date of death was established as May 16, 2004. The court thus ordered that a death certificate be issued.

On September 30, 2005, the State Registrar and Custodian at the Georgia State Office of Vital Records issued a Certificate of Death for Mr. M~. The Certificate of Death listed the immediate cause of death as the Order Establishing Presumption of Death and Date Thereof in the Probate Court of Forsyth County.

DISCUSSION

The regulations and the Program Operations Manual System (POMS) provide that a claimant must produce either "preferred evidence" of the fact of death under 20 C.F.R. § 404.720(b) and POMS GN 00304.005, or "secondary evidence" of the fact of death under 20 C.F.R. § 404.720(c) and POMS GN 00304.015. When there is no preferred or secondary evidence of the fact of death and the body has not been recovered, POMS GN 00304.025 directs the field office to "establish the death based on circumstantial evidence." This POMS provision further states: "The amount of evidence needed to establish death as the inevitable conclusion from all of the circumstances of the disappearance will depend on the facts developed. There is no prescribed amount of time which must pass before a death can be established based on circumstantial evidence." POMS GN 00304.025(A). If the disappearance was due to a drowning, POMS GN 00304.025(B)(3)(a) directs the field office to develop the evidence under POMS GN 00304.025(B)(2) and to "[g]et statements from at least three eyewitnesses." If there were no eyewitnesses, the field office is directed to "get statements from other people familiar with the disappearance." Id.

POMS GN 00304.025(B)(2) is captioned "Evidence-Body Not Recovered" and provides that the amount and type of evidence in any case "will depend on judgment." This POMS provision also provides a list of evidence to obtain including, but not limited to:

* Statements from the claimant and persons with knowledge about the missing person

* Letters or notes left or sent by the missing person that may have a bearing on the disappearance

* Insurance investigations (e.g., the facts and date of death established by the insurance company's investigation or any life insurance policies carried on the missing person which were paid)

* Investigations conducted by Federal, State, or local agencies (e.g., reports by the FBI, Coast Guard, or police)

* Newspaper reports

* Information about others who disappeared at the same time

* Reports of casualty from the military

When circumstantial evidence does not establish the fact of death as an inevitable conclusion, the death may be presumed after seven years have elapsed since the disappearance. See 20 C.F.R. § 404.721(b); POMS GN 00304.050.

Here, the evidence gathered by the Agency provides a strong case to establish Mr. M~'s death by circumstantial evidence. The Agency obtained statements, directly or indirectly, from Teresa G~, Mr. M~'s ex-wife; Christine M~, Mr. M~'s mother; and the Treasury Department, Mr. M~'s employer. Although none of these individuals witnessed the boating incident that lead to Mr. M~'s disappearance, their statements provide evidence that Mr. M~ is deceased. Their statements indicate that Mr. M~ has had no contact with any relative, friends, or his employer since his disappearance. None of them provide information suggesting that Mr. M~ had any reason to falsify his disappearance. John A~, who saw Mr. M~'s boat, and Steve M~, an expert in powerboats who examined Mr. M~'s boat, also provided information indicating that Mr. M~'s boat was involved in a serious accident that likely resulted in his death.

The investigative report by Mr. F~, the Hall County Sheriff's office investigator, also provides evidence that Mr. M~ is deceased. Mr. F~ contacted numerous persons in an effort to obtain information about Mr. M~, including his hairdresser, a friend who had been with him shortly before the boating incident, and his employer. Mr. F~ and his associates with the Forsyth County Sheriff's Office and the Georgia Department of Natural Resources conducted searches of the water and lakeshore where the boating incident occurred and were unable to locate Mr. M~'s body.

We believe the order from the Probate Court of Forsyth County establishing a presumption of death and date of death should be given great weight in light of the other information available.

There is no information in the record concerning any life insurance policies carried on Mr. M~, any investigations conducted by an insurance company, or whether any insurance claims were filed. The record also does not include any letters or notes left by Mr. M~ that would have a bearing on his disappearance, and no one else appears to have disappeared at the same time as Mr. M~.

In sum, there appears to be strong circumstantial evidence establishing that Mr. M~ drowned on or around May 16, 2004. However, if you determine that further development of the record is needed, you could explore whether there were any insurance investigations subsequent to Mr. M~'s disappearance of which Mr. M~'s mother was not aware, whether any insurance claims were filed and, if so, whether they were paid. In addition, you could recontact the Treasury Department to determine if they have decided to pay survivor's benefits.

CONCLUSION

Based on the evidence provided by the Agency, we believe that there is circumstantial evidence of Mr. M~'s death, and an Agency adjudicator could determine to pay survivor benefits to the survivors of Mr. M~ prior to the passage of seven years.

Mary A. S~
Chief Counsel,
Region VII

By
Brian C. H~
Assistant Regional Counsel