B-159818, MAR. 24, 1967

B-159818, MAR. 24, 1967

TO MR. WELTON B. BROWN:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 22, 1967, CONCERNING YOUR CLAIM FOR FAMILY ALLOWANCE BENEFITS BELIEVED TO BE DUE YOUR WIFE AND DAUGHTER FOR THE MONTHS OF SEPTEMBER AND OCTOBER 1942, INCIDENT TO YOUR SERVICE IN THE ARMY AIR CORPS AS AN ENLISTED MAN. THIS MATTER WAS THE SUBJECT OF OUR DECISION OF FEBRUARY 10, 1967, IN WHICH YOU WERE ADVISED THAT NO FURTHER FAMILY ALLOWANCE BENEFITS ARE DUE YOUR DEPENDENTS.

YOU NOW REQUEST RECONSIDERATION OF THAT DECISION AND STATE ALTHOUGH YOUR WIFE DID RECEIVE $248 FOR THE FOUR-MONTH PERIOD OF NOVEMBER 1952 THROUGH FEBRUARY 1943, WHEN YOU WERE DISCHARGED, THEY DID NOT RECEIVE THEIR ALLOTMENT FOR THE MONTHS OF SEPTEMBER OR OCTOBER 1942. YOU CONTEND THAT YOU COMPLETED THE PROPER APPLICATION FOR THIS ALLOTMENT IN SEPTEMBER 1942, UPON YOUR ENTRANCE INTO THE AIR FORCE AND SUGGEST THAT SOMEONE IS "COVERING UP" AN ERROR THAT HAS BEEN MADE.

IN OUR DECISION OF FEBRUARY 10, 1967, YOU WERE ADVISED THAT PURSUANT TO THE 1942 STATUTE ESTABLISHING FAMILY ALLOWANCE BENEFITS AND THE REGULATIONS ADOPTED BY THE SECRETARY OF WAR THE FIRST MONTH AN ENLISTED MAN BECAME ENTITLED TO THESE BENEFITS WAS THE MONTH AFTER THE MONTH IN WHICH HE FILED A FORMAL APPLICATION WITH HIS ORGANIZATION COMMANDER. THE RECORD SHOWS THAT YOU ENTERED ON ACTIVE DUTY ON SEPTEMBER 7, 1942. THEREFORE, THE EARLIEST MONTH THAT THESE BENEFITS COULD HAVE BEEN AVAILABLE TO YOUR WIFE AND DAUGHTER WAS FOR THE MONTH OF OCTOBER 1942. CONSEQUENTLY, YOUR DEPENDENTS WERE NEVER ELIGIBLE FOR BENEFITS FOR THE MONTH OF SEPTEMBER 1942.

WITH RESPECT TO YOUR CLAIM FOR FAMILY ALLOWANCE BENEFITS FOR OCTOBER 1942, OUR FILE REFLECTS THAT YOU WERE ADVISED IN 1948 THAT THESE MATTERS WERE BEING HANDLED BY THE ARMY FINANCE CENTER AT ST. LOUIS, MISSOURI, AND THAT YOU SHOULD PRESENT YOUR CLAIM TO THEM.

THE BURDEN OF PROOF AS TO THE EXISTENCE AND NONPAYMENT OF A CLAIM AGAINST THE GOVERNMENT IS ON THE PERSON WHO ASSERTS SUCH CLAIM. WHILE PROOF OF THE VALIDITY OF A CLAIM ORDINARILY IS OBTAINED FROM GOVERNMENT RECORDS, WHERE, AS HERE, THE PERSON CONCERNED MAKES NO INQUIRY CONCERNING HIS CLAIM FOR A PERIOD OF OVER 18 YEARS DURING WHICH THE RECORDS WHICH WOULD EITHER PROVE OR DISPROVE THE CLAIM ARE DESTROYED PURSUANT TO THE LAW RELATING TO THE DISPOSAL OF OLD RECORDS, THIS OFFICE HAS NO ALTERNATIVE OTHER THAN TO ASSUME THAT THE CLAIM, IF VALID, HAS BEEN PAID, OR TO DISALLOW THE CLAIM FOR LACK OF PROOF.

CONCERNING YOUR STATEMENT THAT "SOME ONE IS COVERING UP SOME BODY'S MISTAKE," YOUR ATTENTION IS INVITED TO THE FACT THAT THE AVAILABLE EVIDENCE RELATING TO THIS MATTER COMES FROM TWO SEPARATE GOVERNMENT SOURCES, OFFICE OF DEPENDENCY BENEFITS, NEWARK, NEW JERSEY (REPORT OF AUGUST 7, 1945), AND DEPARTMENT OF THE ARMY (REPORT OF JANUARY 30, 1967), AND THAT SUCH EVIDENCE SUPPORTS THE SAME CONCLUSION, NAMELY, NONENTITLEMENT. IN SUCH CIRCUMSTANCES, YOUR STATEMENT THAT UPON ENTERING THE SERVICE IN SEPTEMBER 1942 YOU MADE PROMPT APPLICATION FOR FAMILY ALLOWANCE BENEFITS, BASED ON A MEMORY OF EVENTS WHICH TOOK PLACE OVER 23 YEARS AGO, DOES NOT ESTABLISH YOUR DEPENDENTS' RIGHT TO THE ALLOWANCE CLAIMED WITH THE DEGREE OF CERTAINTY NECESSARY TO SUPPORT PAYMENT OUT OF PUBLIC FUNDS.

ACCORDINGLY, THERE IS NO FURTHER ACTION WE MAY TAKE IN THIS MATTER AND WE ADHERE TO OUR ..END :