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