B-123073, OCT. 3, 1955

B-123073, OCT. 3, 1955

TO MRS. MAR YOOK SHEANG:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 9, 1955, WITH ENCLOSURES, WRITTEN ON YOUR BEHALF OF MR. COHEN, CONCERNING YOUR CLAIM FOR FAMILY ALLOWANCE PAYMENTS BELIEVED TO BE DUE INCIDENT TO THE MILITARY SERVICE OF TOY H. LOUIE.

THE RECORD SHOWS THAT ON OCTOBER 29, 1943, TOY H. LOUIE, WHILE SERVING AS AN ENLISTED MAN, ARMY OF THE UNITED STATES, MADE APPLICATION TO THE WAR DEPARTMENT (NOW DEPARTMENT OF THE ARMY) FOR PAYMENT OF FAMILY ALLOWANCES ON ACCOUNT OF A WIFE, THREE MINOR CHILDREN, AND DEPENDENT MOTHER, ALL RESIDING IN CHING SIEN BAND, TOY SUN, SAN HOP, CHINA. THE APPLICANT CERTIFIED THAT HE WAS MARRIED ON DECEMBER 15, 1929, AND HE LISTED THE NAMES AND DATES OF BIRTH OF HIS WIFE AND THE CHILDREN AS FOLLOWS: MAR LOK SUNG, DECEMBER 25, 1911; LOUIE HANG KONG, OCTOBER 15, 1930; LOUIE WING KNOUG, AUGUST 23, 1935; LOUIS SUN HUNG, DECEMBER 25, 1937. THE NAME OF THE MOTHER WAS GIVEN AS CHIN SEE. PAYMENT OF FAMILY ALLOWANCE WAS AUTHORIZED ON MARCH 13, 1944, BY THE WAR DEPARTMENT, EFFECTIVE FROM OCTOBER 1, 1943, IN ACCORDANCE WITH THE PROVISIONS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381, AS AMENDED BY THE ACT OF OCTOBER 26, 1943, 57 STAT. 577. CHECKS IN PAYMENT OF THE ALLOWANCE WERE ISSUED FOR THE PERIOD OCTOBER 1, 1943, THROUGH SEPTEMBER 30, 1945, WITH THE BANK OF CHINA AS PAYEE, ON THE BASIS OF A DESIGNATION BY THE ENLISTED MAN. THE BANK WAS UNABLE TO MAKE DELIVERY AND PAYMENTS OF THE ALLOWANCE HAVE NOT BEEN MADE. ON JUNE 25, 1952, YOU WERE ADMITTED TO THE UNITED STATES AS THE WIFE OF TOY H. LOUIE, AN AMERICAN CITIZEN. THE RECORD DOES NOT CONTAIN ANY INFORMATION CONCERNING THE PRESENT WHEREABOUTS OF CHIN SEE OR WHETHER SHE IS LIVING OR DEAD.

AFTER THE RECEIPT HERE OF A CLAIM FROM TOY H. LOUIE FOR THE AMOUNT OF THE FAMILY ALLOWANCE CHECKS, HE WAS ADVISED BY SETTLEMENT DATED APRIL 19, 1954, OF OUR CLAIMS DIVISION THAT, UNDER THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, IT IS THE DEPENDENTS OF THE ENLISTED MAN AND NOT THE ENLISTED MAN HIMSELF WHO ARE ENTITLED TO FAMILY ALLOWANCE PAYMENTS DURING THEIR LIFETIME, AND THAT, THEREFORE, THERE WAS NO AUTHORITY FOR PAYMENT OF THE ALLOWANCE TO HIM, NOR FOR REFUND OF HIS CONTRIBUTIONS TO SUCH ALLOWANCE. SUBSEQUENTLY, THERE WAS RECEIVED HERE A LETTER DATED JULY 6, 1954, FROM MR. COHEN, ENCLOSING YOUR AFFIDAVIT EXECUTED JULY 7, 1954, MAKING CLAIM FOR THE AMOUNT OF THE FAMILY ALLOWANCE CHECKS, AND A PHOTOSTATIC COPY OF YOUR AFFIDAVIT EXECUTED MAY 9, 1952, TO SERVE AS A TRAVEL DOCUMENT FOR YOU TO PROCEED TO THE UNITED STATES. SETTLEMENT DATED JANUARY 17, 1955, OF OUR CLAIMS DIVISION TO YOU, IT WAS NOTED THAT YOUR NAME WAS DIFFERENT FROM THAT OF THE WIFE IN WHOSE FAVOR THE FAMILY ALLOWANCE WAS AUTHORIZED, AND THAT THE DATE OF YOUR BIRTH, OCTOBER 17, 1912, AS SHOWN IN THE AFFIDAVIT EXECUTED MAY 9, 1952, IS NOT THE SAME AS THE DATE OF BIRTH OF THE ALLOTTEE WIFE, AS FURNISHED BY THE ENLISTED MAN AT THE TIME HE APPLIED FOR THE FAMILY ALLOWANCE. YOU WERE ADVISED THAT ON THE BASIS OF THE PRESENT EVIDENCE IT WAS NOT CONCLUSIVELY ESTABLISHED THAT YOU WERE THE SAME PERSON AS THE ALLOTTEE WIFE AND THAT PAYMENT OF YOUR CLAIM WAS NOT AUTHORIZED.

THERE WAS SUBMITTED WITH THE LETTER OF FEBRUARY 9, 1955, AN AFFIDAVIT EXECUTED FEBRUARY 5, 1955, BY TOY H. LOUIE IN WHICH HE AVERS THAT CHINESE NAMES ARE FREQUENTLY SPELLED IN ENGLISH IN A VARIETY OF WAYS. HE ALSO AVERS THAT YOU AND HE HAD BEEN MARRIED ONLY ONE TIME, EACH TO THE OTHER, AND THAT YOU ARE IN FACT THE SAME PERSON IN WHOSE FAVOR HE APPLIED FOR THE FAMILY ALLOWANCE. WITH REGARD TO THE DIFFERENT DATES OF BIRTH AS SHOWN IN THE AFFIDAVIT OF MAY 9, 1952, AND IN THE APPLICATION FOR FAMILY ALLOWANCE, MR. LOUIE CALLS ATTENTION TO THE FACT THAT THE AFFIDAVIT OF MAY 9, 1952, ALSO GIVES YOUR BIRTH DATE ACCORDING TO THE CHINESE CALENDAR AS CR 1-9-8. HE AVERS THAT WHILE HE DOES NOT RECALL THE DATE HE GAVE AS YOUR DATE OF BIRTH WHEN HE APPLIED FOR THE ALLOWANCES, HE SUGGESTS THAT IN ACCORDANCE WITH FREQUENT PRACTICE OF CHINESE IN THE UNITED STATES HE MAY HAVE GIVEN YOUR BIRTH DATE AS SEPTEMBER 8, 1912, INTERPRETING THE CHINESE NINTH MOON AND THE EIGHTH DAY OF THE MOON LITERALLY AS SEPTEMBER 8 OF THE WESTERN OR SOLAR CALENDAR, CR 1 BEING THE YEAR 1912.

BY LETTER DATED JULY 27, 1955, THE DEPARTMENT OF STATE ADVISED US THAT AN APPLICATION FOR A PASSPORT TO THE UNITED STATES EXECUTED ON JULY 9, 1951, BY LOUIE WING KNOUG, IN WHICH HE INCLUDED HIS ALLEGED SISTER, LOUIE SUN HUNG, WAS DISAPPROVED ON AUGUST 11, 1951, BY THE AMERICAN CONSULATE GENERAL IN HONG KONG BECAUSE OF THEIR FAILURE TO ESTABLISH THEIR IDENTITY AS BONA FIDE CHILDREN OF YOU AND TOY H. LOUIE, THEIR ALLEGED PARENT. THE DEPARTMENT OF STATE ALSO REPORTED THAT LOUIE WING KNOUG WAS ADJUDGED AS IMPOSTER, IT HAVING BEEN DETERMINED THAT HE WAS NOT THE SON OF EITHER OF YOU OR TOY H. LOUIE. IT IS LIKEWISE REPORTED THAT A CIVIL ACTION IN THE UNITED STATES DISTRICT COURT OF NEW YORK AGAINST THE SECRETARY OF STATE BY TOY H. LOUIE ON BEHALF OF LOUIE SUN HUNG FOR THE ISSUANCE TO HER OF TRAVEL DOCUMENTS TO PROCEED TO THE UNITED STATES AS HIS DAUGHTER WAS DISMISSED BY THE COURT ON JANUARY 3, 1955, FOR FAILURE TO PROSECUTE.

THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE NOT REQUIRED TO CERTIFY OR APPROVE FOR PAYMENT CLAIMS IN WHICH THEY HAVE DOUBT AS TO THE VALIDITY OF THE CLAIM OR THE LEGALITY OF THE PAYMENT, AND, IN THAT CONNECTION, IT IS NOT NECESSARY TO DETERMINE AFFIRMATIVELY THAT A CLAIM IS INVALID IN ORDER TO DISALLOW IT. ON THE CONTRARY, IT HAS LONG BEEN THE ESTABLISHED RULE THAT THE GOVERNMENT ACCOUNT AND ADMINISTRATIVE OFFICERS SHOULD REJECT OR DISALLOW ALL CLAIMS OR ACCOUNTS WHERE THERE IS DOUBT AS TO THE VALIDITY OF THE CLAIM OR THE ACCOUNT. SUCH PRACTICE PERMITS THE CLAIMANT TO PURSUE HIS OR HER REMEDY IN A PROPER COURT WHERE THE MATTER MAY BE DETERMINED BY COMPETENT EVIDENCE UNDER OATH, SUBJECT TO CROSS EXAMINATION AND OTHER JUDICIAL PROCESSES, LEAVING IT TO THE COURT TO DETERMINE WHETHER THE CLAIM IS VALID OR WHETHER IT IS SUBJECT TO FORFEITURE FOR FRAUD UNDER THE PROVISIONS OF SECTION 172 OF THE JUDICIAL CODE, 36 STAT. 1141, NOW INCORPORATED IN TITLE 28 U.S.C. 2514. SEE IN THIS CONNECTION, 10 COMP. GEN. 138; 14 ID. 150; 15 ID. 466; ID. 1141; 16 ID. 435; 17 ID. 865; 18 ID. 199; 23 ID. 907; 32 ID. 83; 34 ID. 469; LONGWILL V. UNITED STATES, 17 C.CLS. 288, 291; CHARLES V. UNITED STATES, 19 ID. 316, 319; NEW YORK MARKET GARDENERS' ASSOCIATION V. UNITED STATES, 43 ID. 114, 136.

OUR OFFICE, OF COURSE, HAS NO FIRST-HAND KNOWLEDGE, AS TO WHO WERE OR WERE NOT THE DEPENDENTS OF TOY H. LOUIE, WITHIN THE PURVIEW OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, DURING THE PERIOD OCTOBER 1, 1943, TO SEPTEMBER 30, 1945, AND IT CANNOT BE ASCERTAINED WHAT PORTION, IF ANY, OF THE INSTANT CLAIM MAY BE VALID. THE EVIDENCE OF RECORD BEFORE US, PARTICULARLY WITH RESPECT TO THE VARIOUS DATES OF YOUR BIRTH (DECEMBER 25, 1911, BEING THE 6TH DAY OF THE 11TH MONTH OR 11TH MOON OF THE 3RD YEAR OF THE SUN TUNG DYNASTY, ACCORDING TO THE CHINESE CALENDAR), AND THE QUESTION OF PATERNITY OF AT LEAST ONE OF THE CHILDREN CLAIMED AS A DEPENDENT, IS SUCH THAT WE MUST ADHERE TO THE PRINCIPLES SET FORTH ABOVE.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.