B-86001 (H), I-17000-3018, APR. 4, 1957

B-86001 (H), I-17000-3018, APR. 4, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 2, 1956, WITH ENCLOSURES, FROM THE ACTING CHIEF OF FINANCE, CONCERNING INCREASED ALLOWANCE PAYMENTS MADE TO CAPTAIN WILBERT C. HARRISON, G-1049874, ARTILLERY, UNITED STATES ARMY, AS FOR AN OFFICER WITH A DEPENDENT MOTHER DURING THE PERIODS MAY 1, 1944, TO NOVEMBER 30, 1945, AND OCTOBER 12, 1948, TO FEBRUARY 26, 1954. THE PAYMENTS MADE THROUGH OCTOBER 31, 1953, WERE QUESTIONED IN A REPORT OF INVESTIGATION, THREE COPIES OF WHICH WERE TRANSMITTED TO YOU WITH OUR LETTER OF SEPTEMBER 3, 1954.

RECONSIDERATION OF THE MATTER IS REQUESTED IN VIEW OF THE ADDITIONAL INFORMATION SET FORTH IN THE ENCLOSURES WITH THE LETTER OF FEBRUARY 2, 1956. THE OFFICER PROTESTS THE CONCLUSION THAT HIS MOTHER WAS NOT DEPENDENT ON HIM FOR HER CHIEF SUPPORT CONTENDING, INSOFAR AS HERE MATERIAL, (1) THAT HER DEPENDENCY STATUS SHOULD NOT HAVE BEEN DETERMINED ON THE BASIS OF THE FAMILY UNIT; (2) THAT THE AVERAGE AMOUNT OF SOCIAL SECURITY PAYMENTS RECEIVED BY HIS PARENTS AFTER AUGUST 1, 1950, SHOULD NOT HAVE BEEN USED IN DETERMINING THE AVERAGE MONTHLY AMOUNT OF THEIR INCOME; AND (3) THAT THE DIFFERENCE BETWEEN THE AVERAGE MONTHLY AMOUNT OF HIS PARENTS' INCOME AND THE AVERAGE MONTHLY AMOUNT OF THEIR LIVING EXPENSES SHOULD BE CONSIDERED AS THE AVERAGE MONTHLY AMOUNT OF THE OFFICER'S CONTRIBUTION TO THE SUPPORT OF HIS PARENTS.

AFTER RECEIPT OF THE LETTER OF FEBRUARY 2, 1956, ANOTHER INVESTIGATION WAS MADE BY OUR REPRESENTATIVES, INCLUDING AN INTERVIEW WITH THE OFFICER'S SISTER. THE FACTS AND INFORMATION THEN DEVELOPED ARE SHOWN IN A SUPPLEMENTAL REPORT OF INVESTIGATION, THREE COPIES ENCLOSED.

RESPECTING THE OFFICER'S CONTENTIONS, GENERALLY, WE HAVE HELD THAT WHERE AN OFFICER'S MOTHER AND FATHER LIVE TOGETHER DURING THE PERIOD THE INCREASED ALLOWANCE PAYMENTS ARE MADE, THE DEPENDENCY STATUS OF EITHER PARENT MUST BE CONSIDERED ON THE BASIS OF THE FAMILY UNIT. THIS IS PREDICATED ON THE THEORY THAT ORDINARILY THE FAMILY INCOME MUST BE CONSIDERED AS A GENERAL FUND FOR THE SUPPORT OF BOTH PARENTS. HENCE, WHILE AN OFFICER MAY CLAIM INCREASED ALLOWANCES ON ACCOUNT OF EITHER OR BOTH PARENTS, NEITHER MAY BE CONSIDERED AS IN FACT DEPENDENT ON THE CLAIMING OFFICER "FOR HIS OR HER CHIEF SUPPORT," OR "FOR OVER HALF OF HIS OR HER SUPPORT," WHERE THEIR OTHER INCOME AMOUNTS TO MORE THAN HALF OF THEIR ACTUAL LIVING EXPENSES OR WHERE THE OFFICER'S AVERAGE MONTHLY CONTRIBUTION IS LESS THAN THE AVERAGE MONTHLY FAMILY INCOME. THIS WAS THE RULE PRIOR TO THE CAREER COMPENSATION ACT OF 1949 AS WELL AS AFTER THE DATE OF THAT ACT. WE HAVE HELD, ALSO, THAT IN VIEW OF THE LEGISLATIVE POLICY OF THE CONGRESS AS TO THE AGE WHEN GOVERNMENT DEPENDENCY BENEFITS FOR CHILDREN CAPABLE OF SELF-SUPPORT SHALL STOP, THE LIVING EXPENSES OF CHILDREN LIVING AT HOME WHO ARE OVER EIGHTEEN YEARS OF AGE AND CAPABLE OF SELF-SUPPORT MAY NOT BE INCLUDED IN THE LIVING EXPENSES OF THEIR PARENTS IN ESTABLISHING A RIGHT UNDER THE STATUTES HERE INVOLVED TO DEPENDENCY ALLOWANCES ON ACCOUNT OF THE PARENTS. RESPECTING THE OFFICER'S OBJECTION TO THE AVERAGING OF THE PARENTS' SOCIAL SECURITY PAYMENTS AFTER AUGUST 1, 1950, WE HELD IN OUR DECISION OF JANUARY 18, 1946, B-49533, THAT UNDER CERTAIN CONDITIONS AVERAGE AMOUNTS MAY BE USED AS A BASIS FOR DETERMINING THE EXISTENCE OF THE CLAIMED DEPENDENCY OF AN OFFICER'S MOTHER AND FATHER, OR EITHER OF THEM, BUT, IT WAS SAID THAT THE AVERAGING OF AMOUNTS AND EXTENSION OF THE PERIOD INVOLVED SHOULD NOT BE RESORTED TO FOR THE PURPOSE OF BRINGING ABOUT A SHOWING OF DEPENDENCY OF A PARENT FOR A PERIOD PRIOR TO THE ACTUAL INCEPTION OF THE DEPENDENCY, NOR FOR THE PURPOSE OF CONTINUING A STATUS OF DEPENDENCY BEYOND THE PERIOD WHEN THE DEPENDENCY ACTUALLY CEASED. THAT DECISION INVOLVED A SITUATION WHERE THE AMOUNTS OF THE CLAIMING OFFICER'S CONTRIBUTIONS AND HIS MOTHER'S OTHER INCOME FLUCTUATED EACH MONTH (BOTH CONSISTING OF COMMISSIONS RECEIVED BY THE MOTHER FROM INSURANCE WRITTEN BY THE OFFICER AND ASSIGNED TO HIS MOTHER AND COMMISSIONS ON INSURANCE WRITTEN BY HIS FATHER PRIOR TO THE LATTER'S DEATH) AND WAS NOT INTENDED AS AUTHORITY FOR THE PROPOSITION THAT AMOUNTS SHOULD BE AVERAGED IN ALL CASES, PARTICULARLY WHERE, AS HERE, ACTUAL AMOUNTS ARE ESTABLISHED FOR PERIODS EXTENDING FOR A YEAR AND MORE.

NEITHER THE OFFICER, THE MOTHER, NOR THE SISTER HAS SATISFACTORILY EXPLAINED THE DISCREPANCIES BETWEEN HIS CERTIFICATES OF DEPENDENCY AND THE FACTS DISCLOSED BY OUR ORIGINAL INVESTIGATION. IN FACT, THE SUPPLEMENTAL REPORT OF INVESTIGATION STRONGLY SUGGESTS THAT THE DISCREPANCIES BETWEEN THE AMOUNTS SHOWN IN OUR ORIGINAL REPORT OF INVESTIGATION AND THE AMOUNTS NOW RELIED ON BY THE OFFICER, AS SET FORTH IN THE ENCLOSURES WITH THE LETTER OF FEBRUARY 2, 1956, MAY HAVE BEEN ADJUSTED TO MEET THE NEEDS OF THE SITUATION IN WHICH THE OFFICER NOW FINDS HIMSELF. MOREOVER, EVEN IF, WITHOUT ACCEPTABLE SUPPORTING EVIDENCE, THE OFFICER COULD BE GIVEN THE BENEFIT OF HIS CONTENTIONS RESPECTING THE AVERAGE MONTHLY AMOUNT OF HIS PARENTS' INCOME, THEIR LIVING EXPENSES, AND HIS CONTRIBUTIONS, THE RECORD STILL WOULD SHOW FOR THE PERIOD MAY 1, 1944, TO NOVEMBER 30, 1945, THAT THE PARENTS' AVERAGE MONTHLY INCOME WAS MORE THAN HALF OF THEIR AVERAGE MONTHLY LIVING EXPENSES, COMPUTED UNDER THE ABOVE-STATED RULE THAT THE LIVING EXPENSES (HOUSEHOLD) OF CHILDREN LIVING AT HOME WHO ARE OVER EIGHTEEN YEARS OF AGE SHOULD NOT BE INCLUDED IN THE LIVING EXPENSES OF THEIR PARENTS. ACCORDINGLY, UPON REVIEW OF THE MATTER, NO BASIS IS FOUND FOR CHANGING THE CONCLUSION REACHED IN OUR ORIGINAL REPORT OF INVESTIGATION THAT NEITHER PARENT WAS IN FACT DEPENDENT ON THE OFFICER FOR CHIEF SUPPORT WITHIN THE MEANING OF THE APPLICABLE STATUTES DURING THE PERIODS MAY 1, 1944, TO NOVEMBER 30, 1945, AND OCTOBER 12, 1948, THROUGH JULY 31, 1950.

IN VIEW OF THE PROVISIONS OF THE DEPENDENTS ASSISTANCE ACT OF 1950, NO DETERMINATION IS MADE HERE CONCERNING THE PAYMENTS MADE TO THE OFFICER AFTER JULY 31, 1950.

WE WILL APPRECIATE INFORMATION AS TO THE AMOUNTS COLLECTED BY THE DEPARTMENT OF THE ARMY ON ACCOUNT OF THE IMPROPER PAYMENTS MADE TO THE OFFICER.

THE ENCLOSURES WITH THE LETTER FROM THE ACTING CHIEF OF FINANCE ARE RETURNED HEREWITH.