B-129781, DEC. 31, 1956

B-129781, DEC. 31, 1956

TO MR. ANTHONY J. POCIUNAS:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 16, 1956, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED JUNE 9, 1952, WHICH DISALLOWED YOUR CLAIM FOR INCREASED ALLOWANCES BECAUSE OF A DEPENDENT (MOTHER) FOR THE PERIOD OF YOUR SERVICE FROM DECEMBER 11, 1942, TO FEBRUARY 6, 1946, THE DATE OF YOUR RELIEF FROM ACTIVE DUTY AS FIRST LIEUTENANT, SERVICE NO. 0-1584747.

YOUR CLAIM WAS DISALLOWED BECAUSE YOU FAILED TO FURNISH EVIDENCE THAT YOU HAD SUPPLIED YOUR MOTHER'S CHIEF SUPPORT DURING THE PERIOD INVOLVED.

IN HER AFFIDAVIT EXECUTED APRIL 2, 1952, YOUR MOTHER AVERRED THAT DURING THE PERIOD FROM DECEMBER 12, 1942, TO AND INCLUDING FEBRUARY 6, 1946, SHE RESIDED WITH A DAUGHTER IN LITHUANIA, EUROPE; THAT SHE HAD NO INCOME OF ANY KIND WHATSOEVER OTHER THAN A $50 MONTHLY ALLOTMENT CHECK, AND THAT SHE AND HER DAUGHTER WERE SUSTAINED BY WHATEVER FOOD THEIR NEIGHBORS BROUGHT TO THEM AND WHAT LITTLE FOOD THEY COULD GROW ON LAND ALLOTTED TO THEM. ALSO, SHE STATED THAT, DUE TO WAR CONDITIONS EXISTING IN LITHUANIA AT THE TIME, IT IS IMPOSSIBLE ACCURATELY TO DETERMINE HER AVERAGE LIVING EXPENSES.

RECORDS ON FILE HERE INDICATE THAT YOU AUTHORIZED A CLASS E (VOLUNTARY) ALLOTMENT OF $50 A MONTH IN FAVOR OF YOUR MOTHER WHICH BECAME EFFECTIVE APRIL 1945 AND SHOULD HAVE BEEN DISCONTINUED AFTER FEBRUARY 1946, THE MONTH IN WHICH YOU WERE RELEASED FROM ACTIVE DUTY. NO DEDUCTIONS WERE MADE FROM YOUR PAY FROM APRIL 1945 THROUGH FEBRUARY 1946 TO COVER THE ALLOTMENT PAYMENTS. PAYMENTS WERE CONTINUED TO INCLUDE MARCH 1948; HOWEVER, THE CHECKS ISSUED FOR THE MONTHS SUBSEQUENT TO FEBRUARY 1947 WERE LATER CANCELLED. IT APPEARS FURTHER FROM A COPY OF A LETTER DATED MAY 20, 1949, FROM THE DEPARTMENT OF STATE THAT YOUR MOTHER ARRIVED IN THE UNITED STATES FROM LITHUANIA IN APRIL 1947.

REGARDING THE 11 ALLOTMENT CHECKS ISSUED TO COVER THE PERIOD FROM APRIL 1945 THROUGH FEBRUARY 1946--- WHILE YOU WERE IN THE MILITARY SERVICE--- THE RECORDS SHOW THAT NONE WAS PAID BY THE TREASURER OF THE UNITED STATES PRIOR TO MARCH 1947, INDICATING THAT YOUR MOTHER DID NOT CASH ANY OF THE CHECKS UNTIL MORE THAN A YEAR AFTER YOUR RELEASE FROM ACTIVE DUTY. THAT CONNECTION THE LETTER FROM THE DEPARTMENT OF STATE DISCLOSES THAT IN DECEMBER 1946 THE CONSULAR SECTION PLACED IN SAFEKEEPING FOR YOUR MOTHER CHECKS IN THE AMOUNT OF $450 TO BE RETURNED TO HER AFTER SHE RECEIVED HER EXIT VISA. THUS IT SEEMS CLEAR THAT THE ALLOTMENT CHECKS WERE NOT USED FOR THE SUPPORT OF YOUR MOTHER DURING THE PERIOD COVERED BY YOUR CLAIM. RATHER, IT WOULD APPEAR THAT THE CHECKS WERE SAVED TO BE USED LATER BY HER INCIDENT TO COMING TO THIS COUNTRY AND FOR SUBSEQUENT EXPENSES. EVIDENCE HAS BEEN FURNISHED THAT YOU CONTRIBUTED TO THE SUPPORT OF YOUR MOTHER BY ANY MEANS OTHER THAN THE $50 ALLOTMENT DURING THE PERIOD COVERED BY YOUR CLAIM.

THE PAYMENT OF INCREASED ALLOWANCES TO OFFICERS WITH DEPENDENTS DURING THE PERIOD INVOLVED WAS GOVERNED BY SECTION 5 AND 6 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361. SECTION 4 OF THE ACT DEFINED THE TERM "DEPENDENT" AS INCLUDING "THE FATHER OR MOTHER OF THE PERSON CONCERNED PROVIDED HE OR SHE IS IN FACT DEPENDENT ON SUCH PERSON FOR HIS OR HER CHIEF SUPPORT.' THE TERM ,CHIEF SUPPORT" HAS BEEN DEFINED AS MEANING "MAIN" SUPPORT, OR "PRINCIPAL" SUPPORT, THAT IS, WHERE THE PARENT IS DEPENDENT ON THE OFFICER FOR "MOST" OR THE "GREATER" PART OF THE FUNDS NECESSARY FOR HIS OR HER SUPPORT. GEER V. UNITED STATES, 76 C.CLS. 259. IT IS INCUMBENT ON THE OFFICER CLAIMING INCREASED ALLOWANCES ON ACCOUNT OF A DEPENDENT PARENT UNDER THE ABOVE STATUTORY PROVISIONS TO ESTABLISH THE REASONABLE AND NECESSARY LIVING EXPENSES OF THE PARENT AND THAT HIS CONTRIBUTION IS REQUIRED FOR THE PARENT'S NECESSARY AND PROPER SUPPORT AND CONSTITUTES THE CHIEF PART OF SUCH SUPPORT. WHITING V. UNITED STATES, 80 C.CLS. 662; ODLIN V. UNITED STATES, 74 ID. 633, 638.

AS SET FORTH ABOVE, THE RECORD SHOWS THAT THE ALLOTMENT CHECKS WHICH WERE ISSUED TO YOUR MOTHER WERE NOT USED FOR HER SUPPORT DURING THE PERIOD FROM APRIL 1945 THROUGH FEBRUARY 6, 1946. NO EVIDENCE OF ANY OTHER CONTRIBUTION BY YOU HAVE BEEN FURNISHED. ACCORDINGLY, THE EVIDENCE BEFORE US REGARDING THE PERIOD FOR WHICH YOU CLAIM INCREASED ALLOWANCES BECAUSE OF YOUR MOTHER'S DEPENDENCY DOES NOT SHOW THAT SHE WAS DEPENDENT ON YOU FOR HER CHIEF SUPPORT DURING SUCH PERIOD. THE SETTLEMENT OF JUNE 9, 1952, THEREFORE, CORRECTLY DISALLOWED YOUR CLAIM AND THAT ACTION MUST BE SUSTAINED. HENCE, THERE IS NO AMOUNT DUE YOU FOR APPLICATION TO YOUR INDEBTEDNESS TO THE UNITED STATES. REGARDING YOUR INDEBTEDNESS, OUR RECORDS SHOW THAT, BY CERTIFICATE OF INDEBTEDNESS DATED MAY 24, 1954 (CLAIM NO. DI-Z-420250), YOU WERE FOUND INDEBTED TO THE UNITED STATES IN THE SUM OF $544, FOR NONDEDUCTION OF THE VOLUNTARY CLASS E ALLOTMENT FOR THE PERIOD FROM APRIL 1, 1945, THROUGH FEBRUARY 28, 1946, AT THE RATE OF $50 A MONTH, AUTHORIZED BY YOU AND PAID TO YOUR MOTHER, MARGARET POCIUNAS, INCIDENT TO YOUR SERVICE AS A COMMISSIONED OFFICER, THEREBY RESULTING IN AN INDEBTEDNESS OF $550 REDUCED TO $544 BY REMITTANCES TOTALING $6. THE MATTER OF YOUR INDEBTEDNESS HAS BEEN REFERRED TO THE UNITED STATES ATTORNEY, LOS ANGELES 12, CALIFORNIA, FOR NECESSARY COLLECTION ACTION AND HE IS BEING FURNISHED A COPY OF THIS DECISION BY LETTER OF TODAY.

IN YOUR LETTER OF OCTOBER 16, 1956, YOU ASK THAT WE ADVISE YOU WHAT PROCEDURE TO FOLLOW TO RECOVER PROPERTY CONFISCATED BY THE RUSSIAN GOVERNMENT IN LITHUANIA DURING WORLD WAR II. INASMUCH AS SUCH A CLAIM IS NOT ONE AGAINST THE UNITED STATES, WE HAVE NO JURISDICTION TO CONSIDER IT. IT IS POSSIBLE THAT THE STATE DEPARTMENT MAY BE ABLE TO FURNISH YOU WITH INFORMATION REGARDING ANY RIGHTS YOU MAY HAVE IN THE MATTER.