B-123108, MAR. 7, 1956

B-123108, MAR. 7, 1956

TO HONORABLE H. V. HIGLEY, ADMINISTRATOR, VETERANS AFFAIRS:

REFERENCE IS MADE TO THE MATTER OF THE INDEBTEDNESS TO THE UNITED STATES, IN THE AMOUNT OF $301.27, OF CHARLES L. RUSSELL, C-13,346,531. THE AMOUNT REPRESENTS THE BALANCE DUE ON ACCOUNT OF ERRONEOUS PAYMENTS ALLEGED TO HAVE BEEN MADE TO HIM BY THE VETERANS ADMINISTRATION, TOTALLING $426.77, AS A RESULT OF HIS CLAIM FOR SUBSISTENCE ALLOWANCE UNDER THE PROVISIONS OF TITLE II OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 289, AS AMENDED.

IT APPEARS FROM THE ADMINISTRATIVE REPORT THAT THE VETERANS RECEIVED SUBSISTENCE PAYMENTS ON THE BASIS THAT HE HAD DEPENDENTS DURING THE PERIOD FROM JULY 3, 1947, TO APRIL 30, 1949; THAT HE FAILED TO SUBMIT TIMELY PROOF OF THE EXISTENCE OF SUCH DEPENDENTS AS REQUIRED BY VETERANS ADMINISTRATION REGULATION NO. 10100, AND AS A RESULT A DETERMINATION WAS MADE THAT HE SHOULD BE ALLOWED DURING THE STATED PERIOD SUBSISTENCE AT THE RATE APPLICABLE TO A VETERAN WHO HAD NO DEPENDENTS. IT FURTHER APPEARS THAT BY VIRTUE OF SUCH DETERMINATION IT WAS DECIDED THAT THE VETERAN HAD BEEN OVERPAID THE SUM OF $426.77, WHICH WAS REDUCED TO $301.27 BECAUSE OF $10 REFUNDED BY THE VETERAN AND THE OFFSET OF A NATIONAL SERVICE LIFE INSURANCE DIVIDEND OF $115.50, OTHERWISE DUE HIM FROM THE VETERANS ADMINISTRATION.

IN RESPONSE TO A DEMAND MADE BY OUR OFFICE UPON THE VETERAN FOR PAYMENT OF THE BALANCE STATED TO BE DUE THE UNITED STATES, THE VETERAN REPLIED THAT HE HAD A WIFE AND FOUR CHILDREN. IN SUPPORT OF HIS STATEMENT HE FURNISHED A MARRIAGE CERTIFICATE SHOWING HE WAS MARRIED ON JULY 23, 1932, THE BIRTH CERTIFICATES OF TWO OF HIS CHILDREN, AND STATED THAT BIRTH CERTIFICATES OF HIS OTHER TWO CHILDREN HAD PREVIOUSLY BEEN FURNISHED. THEREAFTER, THE MATTER WAS REFERRED TO THE DEPARTMENT OF JUSTICE FOR APPROPRIATE ACTION. IN REPLY, BY LETTER DATED MAY 2, 1955, THE VETERANS AFFAIRS SECTION, DEPARTMENT OF JUSTICE, ADVISED OUR OFFICE AS FOLLOWS:

"ON PAGE 2 OF YOUR LETTER, YOU CITE UNITED STATES V. GIBSON, 207 F.2D 161, 163 AND HORMEL V. UNITED STATES 123 F.SUPP. 806. BOTH OF THESE CASES ARE PRESENTLY PENDING ON APPEAL. IN ADDITION, THE PLESHA CASE, CITED IN THE SAME VOLUME AS THE HORMEL CASE AT P. 593 AND INVOLVING A SIMILAR FACT SITUATION, IS ALSO PENDING ON APPEAL. WE CALL THIS TO YOUR ATTENTION, MERELY BECAUSE WE KNOW THE FACT OF SUCH APPEALS IS NOT READILY AVAILABLE TO YOU, AND WE FEEL YOU WOULD BE INTERESTED IN KNOWING ABOUT THEM.

"IN THE INSTANT CASE, WE ARE CLOSING OUR FILE, IN THE LIGHT OF THE ABOVE CASES AND THE STATE OF THE LAW APPLICABLE. SINCE THE VETERAN HAS FURNISHED BELATED PROOF OF DEPENDENCY, IT IS HIGHLY QUESTIONABLE WHETHER THE GOVERNMENT COULD PREVAIL IN THE CASE, AND WE FEEL FURTHER LEGAL ACTION IS UNWARRANTED.'

THERE NOW IS BEFORE US FOR CONSIDERATION MR. RUSSELL'S CLAIM, TRANSMITTED HEREWITH, FOR REFUND OF THE AMOUNT OF THE NATIONAL SERVICE LIFE INSURANCE DIVIDEND WHICH WAS SET OFF AGAINST THE ALLEGED INDEBTEDNESS, THE CLAIM HAVING BEEN REFERRED HERE BY RECENT LETTER OF THE REGIONAL OFFICE, NASHVILLE, TENNESSEE, PREFERENCE NUMBER 3020-4AC. ALSO, THERE IS FOR CONSIDERATION THE QUESTION WHETHER COLLECTION PROCEEDINGS SHOULD BE CONTINUED IN LIKE CASES WHERE THE INDEBTEDNESS AROSE SOLELY BY REASON OF THE FAILURE OF THE VETERAN TO FILE TIMELY PROOF OF DEPENDENCY AS REQUIRED BY THE VETERANS ADMINISTRATION REGULATION.

WE WILL BE PLEASED TO HAVE YOUR COMMENTS AND RECOMMENDATIONS RELATIVE TO THIS MATTER, AND INFORMATION WHETHER THE REFUND CLAIMED WILL BE PROCESSED BY YOUR OFFICE.