B-101597, JUN 5, 1951

B-101597: Jun 5, 1951

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PLEASANT: REFERENCE IS MADE TO YOUR UNDATED LETTER POSTMARKED FEBRUARY 8. IN THE FIRST OF THE CITED SETTLEMENTS THERE WAS CERTIFIED DUE YOU $100 AS ADDITIONAL MUSTERING-OUT PAY INCIDENT TO YOUR DISCHARGE FROM THE NAVAL SERVICE ON FEBRUARY 5. WAS WITHHELD IN PARTIAL LIQUIDATION OF FAMILY ALLOWANCE OVERPAYMENTS MADE TO YOUR DEPENDENTS. YOU APPEAR TO HAVE BEEN OF THE BELIEF THAT THE ENTIRE AMOUNT OF BOTH SETTLEMENTS WAS TO BE APPLIED TO THE FAMILY ALLOWANCE OVERPAYMENTS. SUCH IS NOT THE CASE HOWEVER. INASMUCH AS PAYMENT OF THE $100 MUSTERING-OUT PAY WAS ACCOMPLISHED BY THE UNITED STATES TREASURY DEPARTMENT FEBRUARY 6. IT IS BELIEVED YOU HAVE SINCE THEN RECEIVED THE $100 CHECK WHICH ISSUED IN PAYMENT OF SAID ITEM.

B-101597, JUN 5, 1951

PRECIS-UNAVAILABLE

MR. CORNEALIOUS L. PLEASANT:

REFERENCE IS MADE TO YOUR UNDATED LETTER POSTMARKED FEBRUARY 8, 1951, IN EFFECT REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE CERTIFICATES OF SETTLEMENTS NOS. 1908653 AND 1908654, DATED JANUARY 25, 1951. IN THE FIRST OF THE CITED SETTLEMENTS THERE WAS CERTIFIED DUE YOU $100 AS ADDITIONAL MUSTERING-OUT PAY INCIDENT TO YOUR DISCHARGE FROM THE NAVAL SERVICE ON FEBRUARY 5, 1946, AND IN THE OTHER CERTIFICATE THE AMOUNT OF $184.73, REPRESENTING PAY DUE YOU AT DATE OF YOUR DISHONORABLE DISCHARGE FROM THE UNITED STATES NAVY, AUGUST 13, 1947, WAS WITHHELD IN PARTIAL LIQUIDATION OF FAMILY ALLOWANCE OVERPAYMENTS MADE TO YOUR DEPENDENTS.

AT THE TIME YOU WROTE THE ABOVE LETTER, YOU APPEAR TO HAVE BEEN OF THE BELIEF THAT THE ENTIRE AMOUNT OF BOTH SETTLEMENTS WAS TO BE APPLIED TO THE FAMILY ALLOWANCE OVERPAYMENTS. SUCH IS NOT THE CASE HOWEVER, INASMUCH AS PAYMENT OF THE $100 MUSTERING-OUT PAY WAS ACCOMPLISHED BY THE UNITED STATES TREASURY DEPARTMENT FEBRUARY 6, 1951, AND IT IS BELIEVED YOU HAVE SINCE THEN RECEIVED THE $100 CHECK WHICH ISSUED IN PAYMENT OF SAID ITEM. HENCE, ONLY THE AMOUNT OF $184.73 HAS BEEN WITHHELD ON ACCOUNT OF THE FAMILY ALLOWANCE OVERPAYMENTS AND, IN THIS CONNECTION, YOUR LETTER INDICATES THAT YOU DO NOT UNDERSTAND THE CAUSE OF SUCH OVERPAYMENTS.

REPORTS DATED JUNE 23, 1950, AND DECEMBER 14, 1950, FROM THE FIELD BRANCH, BUREAU OF SUPPLIES AND ACCOUNTS, DEPARTMENT OF THE NAVY, CLEVELAND, OHIO, SHOW THAT MONTHLY FAMILY ALLOWANCE PAYMENTS WERE MADE AT THE RATE OF $42 PER MONTH ON ACCOUNT OF YOUR CLASS A DEPENDENT, AND AT THE RATE OF $37 PER MONTH ON ACCOUNT OF YOUR CLASS B DEPENDENT, WITH FIRST PAYMENT BEING MADE FOR THE MONTH OF NOVEMBER 1944, AND LAST PAYMENT FOR THE MONTH OF JANUARY 1948. YOUR LETTER INDICATES THAT YOUR FAMILY ALLOWANCE DEPENDENTS WERE YOUR SON AND YOUR MOTHER. THE MONTHLY FAMILY ALLOWANCE PAYMENTS OF $42 PER MONTH TO YOUR SON AND $37 PER MONTH TO YOUR MOTHER WERE MADE AT THE RATES PRESCRIBED IN SECTION 105 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED BY THE ACT OF OCTOBER 26, 1943, 57 STAT. 577, 578. UNDER THE PROVISIONS OF SECTION 101 OF THE CITED ACT, 56 STAT. 381, YOUR DEPENDENTS WERE ENTITLED TO RECEIVE MONTHLY FAMILY ALLOWANCE BENEFITS DURING SUCH PERIOD AS YOU WERE "IN THE ACTIVE MILITARY OR NAVAL SERVICE OF THE UNITED STATES." SECTION 107(B) OF THE ACT, 57 STAT. 579, PROVIDES IN PERTINENT PART AS FOLLOWS:

"THE MONTHLY FAMILY ALLOWANCE PROVIDED FOR BY THIS TITLE SHALL BE PAID FOR THE PERIOD BEGINNING *** AND SHALL BE TERMINATED OR REDUCED, AS MAY BE REQUIRED, ON THE DAY OF THE MONTH IN WHICH THE DISBURSING OFFICER PAYING THE ALLOWANCE RECEIVES NOTICE OF A CHANGE IN STATUS OF THE ENLISTED MAN OR A DEPENDENT WHICH TERMINATED OR LIMITED THE RIGHT OF HIS DEPENDENT OR DEPENDENTS TO RECEIVE SUCH ALLOWANCE: PROVIDED, THAT THE ENTITLEMENT TO FAMILY ALLOWANCE SHALL TERMINATE OR BE MODIFIED AT THE END OF THE MONTH IN WHICH SUCH CHANGE IN STATUS OF THE ENLISTED MAN OR A DEPENDENT OCCURS

PURSUANT TO THE ABOVE-QUOTED PROVISIONS OF THE STATUTE, THE RIGHT OF YOUR DEPENDENTS TO RECEIVE MONTHLY FAMILY ALLOWANCE BENEFITS TERMINATED WITH THE MONTH OF AUGUST 1947, THE MONTH IN WHICH YOU WERE DISHONORABLY DISCHARGED FROM THE UNITED STATES NAVY. HENCE, THE MONTHLY FAMILY ALLOWANCE PAYMENTS WHICH WERE MADE THEREAFTER TO YOUR DEPENDENTS, THAT IS, THE PAYMENTS MADE TO THEM FOR THE PERIOD SEPTEMBER 1947, TO JANUARY 1948, INCLUSIVE, CONSTITUTE OVERPAYMENTS; THAT IS TO SAY, AT THE RATE OF $42 PER MONTH, AN OVERPAYMENT OF $210 WAS MADE TO OR ON BEHALF OF YOUR SON, AND AT THE RATE OF $37 PER MONTH AN OVERPAYMENT OF $185 WAS MADE TO YOUR MOTHER.

THE MONTHLY FAMILY ALLOWANCE WHICH WAS PAID TO OR ON BEHALF OF YOUR SON PURSUANT TO THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, SUPRA, WAS FOR THE SPECIFIC PURPOSE OF YOUR CHILD'S SUPPORT AND MAINTENANCE AND IT APPEARS FROM YOUR LETTER THAT YOU KNEW THAT SUCH PAYMENTS WERE BEING CONTINUED AFTER YOUR DISCHARGE FROM THE NAVY. IT MUST BE ASSUMED IN THIS CONNECTION THAT ALL OF SAID PAYMENTS, INCLUDING THE OVERPAYMENT OF $210, WERE UTILIZED FOR THE PURPOSE FOR WHICH INTENDED. ADDITION, THE PRESUMPTION APPEARS REASONABLE THAT DURING THE PERIOD HERE INVOLVED, SEPTEMBER 1947, TO JANUARY 1948, INCLUSIVE, THAT YOUR SON WAS UNMARRIED AND UNDER THE AGE OF 18 YEARS AND THUS WAS NOT EXCLUDED FROM THE BENEFITS OF THE FAMILY ALLOWANCE ACT BY THE PROVISIONS OF CLAUSE (1) OF SECTION 120(G) OF THE ACT, 56 STAT. 386. IN THAT VIEW, AND SINCE IT IS WELL ESTABLISHED THAT A FATHER HAS A LEGAL DUTY TO SUPPORT HIS DEPENDENT MINOR CHILDREN, THE CONCLUSION IS REQUIRED THAT YOU KNOWINGLY REAPED THE FULL BENEFIT OF THE OVERPAYMENT OF MONTHLY FAMILY ALLOWANCE TOTALING $210 THAT WAS TO OR ON BEHALF OF YOUR SON FOR THE FIVE-MONTH PERIOD SEPTEMBER 1947, TO JANUARY 1948, INCLUSIVE. HENCE, THE AMOUNT OF $184.73 DUE AND UNPAID YOU AT THE DATE OF YOUR DISHONORABLE DISCHARGE FROM THE U.S. NAVY, AUGUST 13, 1947, HAS BEEN APPLIED IN PARTIAL LIQUIDATION OF THE ABOVE- DESCRIBED FAMILY ALLOWANCE OVERPAYMENT. ACCORDINGLY, THE ACTION TAKEN IN GENERAL ACCOUNTING OFFICE CERTIFICATE OF SETTLEMENT NO. 1908654, DATED JANUARY 25, 1951, IS SUSTAINED.

IT IS HOPED THAT THE FOREGOING EXPLANATION WILL ALSO ENABLE YOUR MOTHER TO UNDERSTAND THE STATUS OF HER FAMILY ALLOWANCE ACCOUNT WHICH, FROM THE REPORTS FURNISHED TO THIS OFFICE BY THE DEPARTMENT OF THE NAVY, IS NOW SHOWN TO HAVE BEEN OVERPAID AT THE RATE OF $37 PER MONTH FROM SEPTEMBER 1947, TO JANUARY 1948, INCLUSIVE, MAKING A TOTAL OVERPAYMENT TO HER OF $185.