B-86001 (B), I-17000-2023, JUN. 1, 1956

B-86001 (B), I-17000-2023, JUN. 1, 1956

TO THE SECRETARY OF THE ARMY:

THERE HAS BEEN RECEIVED A LETTER DATED MARCH 12, 1954, FROM THE CHIEF OF FINANCE (FINEI 245.81 BYERLEY, WENDELL C. 0-2 023 958), WITH ENCLOSURES, IN WHICH HE REQUESTS RECONSIDERATION OF THE REQUEST OF THE GENERAL ACCOUNTING OFFICE IN LETTER DATED MAY 5, 1953, I-17000-2023, FOR THE ASSISTANCE OF YOUR DEPARTMENT IN EFFECTING RECOVERY OF SUCH IMPROPER PAYMENTS OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS MAY HAVE BEEN MADE TO CAPTAIN WENDELL C. BYERLEY, 0-2 023 958, BY THE SUBMISSION OF CERTIFICATES THAT HIS MOTHER WAS DEPENDENT UPON HIM FOR CHIEF SUPPORT. THE REQUEST FOR RECONSIDERATION IS BASED ON INFORMATION CONTAINED IN THE 9TH INDORSEMENT DATED DECEMBER 11, 1953, ACCOMPANYING THE SAID LETTER OF MARCH 12, 1954.

THE 9TH INDORSEMENT DATED DECEMBER 11, 1953, HEADQUARTERS, THE ARTILLERY CENTER, FORT SILL, OKLAHOMA, TO THE COMMANDING GENERAL FOURTH ARMY, FORT SAM HOUSTON, TEXAS, ATTN: INSPECTOR GENERAL, READS IN PERTINENT PART---

"2. SWORN TESTIMONY GIVEN BY LT. BYERLEY (INCLOSURE 5), AND CONSIDERED IN CONNECTION WITH INFORMATION CONTAINED IN INCLOSURES 1, 2, AND 4, INDICATES THAT LT. BYERLEY WAS THE CHIEF OR MAIN SUPPORT OF HIS MOTHER, MRS. CINA SHERROD BYERLEY, DURING THE FIFTEEN MONTH PERIOD FROM DECEMBER 1948 THROUGH FEBRUARY 1950.

"3. THE ABOVE CONCLUSION IS BASED UPON THE FOLLOWING TABULATION:

TABLE

INCOME OF MRS. BYERLEY FROM SOURCES OTHER THAN OFFICER FOR THE SUPPORT OF THE HOUSEHOLD:

SOCIAL SECURITY PAYMENTS TO MR. BYERLEY: $28.18

SOCIAL SECURITY PAYMENTS TO MRS. BYERLEY: 14.09

PENSION FROM ALUMINUM CO. TO MR. BYERLEY: 60.82

FROM DAUGHTER: * 30.00

$133.09

OVER THE 15 MONTH PERIOD: $1996.35

*NOTE: ONE-HALF OF REASONABLE MONTHLY VALUE OF QUARTERS FURNISHED BY DAUGHTER NOT INCLUDED AS INCOME SINCE DAUGHTER OCCUPIED SAME PREMISES. INCOME FROM OFFICER OVER 13 MONTH PERIOD BY ALLOTMENT: $2275.00

LESS AMOUNT OFFICER ADMITS HE MAY HAVE RECEIVED: 550.00

$1725.00 ADD ONE-HALF OF MONTHLY REASONABLE VALUE OF QUARTERS

FURNISHED BY OFFICER AND SISTER OVER 15 MONTH PERIOD

AT $32.50 PER MONTH: 487.50

$2212.50

"4. EVIDENCE OBTAINED IN THIS CASE PRESENTS MANY ELEMENTS OF DOUBT. INASMUCH AS THE ACTUAL EXPENSES OF THE HOUSEHOLD WERE NOT DEVELOPED BY THE GENERAL ACCOUNTING OFFICE INVESTIGATING OFFICER, AND COULD NOT BE FURNISHED BY LT. BYERLEY, IT CANNOT BE DETERMINED IF THE ENTIRE AMOUNT OF INCOME RECEIVED BY MRS. BYERLEY WAS NECESSARY FOR THE OPERATION OF THE HOUSEHOLD. HOWEVER, IT CAN BE ASSUMED THAT THE OFFICER'S CONTRIBUTION WAS USED FOR THE PURPOSE INTENDED BY SUBJECT OFFICER.'

AFTER RECEIPT OF THE LETTER FROM THE CHIEF OF FINANCE, FURTHER INVESTIGATION WAS MADE BY OUR REPRESENTATIVES, INCLUDING AN INTERVIEW WITH THE OFFICER'S MOTHER AND HER DAUGHTER (MRS. EDITH B. W. SUMPTER). THE ADDITIONAL FACTS DEVELOPED ARE SET FORTH IN A SUPPLEMENTAL REPORT OF INVESTIGATION DATED DECEMBER 13, 1955, THREE COPIES OF WHICH ARE ENCLOSED. THE SUPPLEMENTAL REPORT OF INVESTIGATION DISCLOSES THAT THE OFFICER'S CONTENTION THAT THE AVERAGE MONTHLY LIVING EXPENSES OF HIS MOTHER, AS SET FORTH IN THE ORIGINAL REPORT OF INVESTIGATION, SHOULD INCLUDE AN ITEM FOR RENT, BECAUSE THE HOUSE OCCUPIED BY HIS MOTHER "WAS ACTUALLY OWNED JOINTLY BY MY SISTER AND MYSELF," IS NOT SUPPORTED BY THE ACTUAL FACTS. IT APPEARS FROM THE RECORDS OF THE BLOUNT COUNTY REGISTER, BLOUNT COUNTY COURTHOUSE, MARYVILLE, TENNESSEE, THAT ON AUGUST 29, 1944, THE OFFICER'S PARENTS CONVEYED THE HOUSE AND LOT TO HIM AND HIS SISTER FOR THE CONSIDERATION OF ONE DOLLAR IN CASH AND RELEASE FROM A LOAN OBLIGATION OF $1,016.81, AS WELL AS RELEASE FROM ALL PROPERTY TAXES. THE DEED OF CONVEYANCE CONTAINED A STIPULATION TO THE EFFECT THAT THE PARENTS RETAINED A LIFE ESTATE IN THE PROPERTY FOR AND DURING THEIR NATURAL LIVES AND THAT THE OFFICER AND HIS SISTER WOULD NOT COME INTO POSSESSION OF THE PROPERTY DURING THE LIFETIME OF THEIR PARENTS. SEE PAGE 2 OF THE SUPPLEMENTAL REPORT OF INVESTIGATION. FURTHERMORE, SUCH REPORT SHOWS THAT THE TAXES ON THE HOUSE HAVE BEEN PAID BY THE PARENTS. HENCE, AN AMOUNT REPRESENTING RENT IS NOT FOR CONSIDERATION IN DETERMINING THE MOTHER'S AVERAGE MONTHLY LIVING EXPENSES AND THE AMOUNT OF THE OFFICER'SCONTRIBUTIONS TO HER.

THE LIVING EXPENSES OF THE OFFICER'S PARENTS, AS MORE FULLY DEVELOPED BY THE SUPPLEMENTAL REPORT OF INVESTIGATION, AVERAGED $176.42 A MONTH AND THE PARENTS' INCOME FROM OTHER SOURCES AMOUNTED TO $103.09 A MONTH, EXCLUSIVE OF A CONTRIBUTION OF $30 A MONTH BY AN ADULT DAUGHTER (EDITH) LIVING AT HOME, OR $133.09 A MONTH, INCLUDING SUCH CONTRIBUTION.

SINCE THE OFFICER'S MOTHER AND FATHER LIVED TOGETHER DURING THE PERIOD HE RECEIVED INCREASED ALLOWANCES ON ACCOUNT OF HIS MOTHER, THE DEPENDENCY STATUS OF EITHER, OR BOTH, IS FOR DETERMINATION ON THE BASIS OF THE FAMILY UNIT. IN ANY CASE WHERE ONE-HALF OR MORE OF THE FUNDS NORMALLY AVAILABLE FOR THE LIVING EXPENSES OF BOTH PARENTS IS RECEIVED FROM SOURCES OTHER THAN THE OFFICER, NEITHER PARENT IS IN FACT DEPENDENT ON THE OFFICER FOR CHIEF SUPPORT.

THE PAYMENT OF INCREASED ALLOWANCES TO OFFICERS WITH DEPENDENTS DURING THE PERIOD HERE INVOLVED WAS GOVERNED BY SECTIONS 5 AND 6 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361. SECTION 4 OF THAT ACT DEFINED THE TERM "DEPENDENT," AS USED IN THE ACT, AS INCLUDING "THE FATHER OR MOTHER OF THE PERSON CONCERNED PROVIDED HE OR SHE IS IN FACT DEPENDENT ON SUCH PERSON FOR HIS OR HER CHIEF SUPPORT.' IT CONSISTENTLY HAS BEEN HELD, BOTH BY THE COURTS AND THE ACCOUNTING OFFICERS, THAT THE TERM "CHIEF SUPPORT" AS USED IN THE PAY READJUSTMENT ACT OF 1942 MEANS "MAIN" SUPPORT, OR ,PRINCIPAL" SUPPORT, THAT IS, WHERE THE PARENT IS DEPENDENT UPON THE OFFICER FOR "MOST" OR THE ,GREATER" PART OF THE FUNDS NECESSARY FOR HIS OR HER REASONABLE SUPPORT. GEER V. UNITED STATES, 76 C.CLS. 259. ALSO, IT HAS BEEN HELD THAT THE FACT THAT AN OFFICER'S MONTHLY CONTRIBUTION TO HIS MOTHER WAS IN EXCESS OF HER INDEPENDENT INCOME DOES NOT OF ITSELF ESTABLISH THE FACT THAT SHE WAS DEPENDENT ON HIM FOR HER CHIEF SUPPORT, BUT THAT IT MUST BE SHOWN THAT HIS CONTRIBUTION WAS REQUIRED FOR HER NECESSARY AND PROPER SUPPORT, AND THAT IT CONSTITUTED THE CHIEF PART OF SUCH SUPPORT. SEE ODLIN V. UNITED STATES, 74 C.CLS. 633.

ON THE BASIS OF THESE RULES, NEITHER OF THE OFFICER'S PARENTS WAS IN FACT DEPENDENT ON HIM FOR CHIEF SUPPORT DURING THE PERIOD NOVEMBER 25, 1948, THROUGH FEBRUARY 28, 1950, REGARDLESS OF THE AMOUNT OF HIS CONTRIBUTIONS TO THEM, SINCE THEIR INCOME FROM OTHER SOURCES ($133.09) WAS MORE, NOT LESS, THAN ONE-HALF OF THEIR AVERAGE MONTHLY LIVING EXPENSES ($176.42). ALSO, IT IS CLEAR FROM THE ARTILLERY CENTER'S 9TH INDORSEMENT, QUOTED ABOVE, THAT THE OFFICER'S ALLEGED TOTAL CONTRIBUTIONS FOR THE PERIOD INVOLVED WERE LESS THAN THE PARENTS' INCOME FROM OTHER SOURCES, IF THERE BE OMITTED HIS WRONGFULLY CLAIMED CREDIT OF $32.50 A MONTH FOR THE USE OF THE HOUSE, IN WHICH THE PARENTS HAD RESERVED A LIFE ESTATE.

ACCORDINGLY, FURTHER CONSIDERATION BY THE DEPARTMENT OF THE ARMY WITH A VIEW TOWARD EFFECTING RECOVERY OF SUCH IMPROPER PAYMENTS AS MAY HAVE BEEN MADE TO THE OFFICER, AND INFORMATION AS TO THE ACTION TAKEN IN THE MATTER, WILL BE APPRECIATED.