B-134770, SEP. 18, 1959

B-134770: Sep 18, 1959

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DICKERSON: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 10. YOU SAY THAT THE AMOUNT CLAIMED IS NOT CORRECT AND. THAT YOU THINK YOUR WIFE IS ENTITLED TO AN ALLOTMENT FOR A PART OF THE PERIOD INVOLVED. IT APPEARS THAT YOU BELIEVE THAT SHE IS ENTITLED TO AN ALLOTMENT OR FAMILY ALLOWANCE FOR THE PERIOD FROM JANUARY 1. YOU HAVE FORWARDED FOUR OTHER CHECKS. THE RECORDS FURNISHED US BY THE DEPARTMENT OF THE ARMY SHOW THAT YOU WERE INDUCTED INTO MILITARY SERVICE ON JANUARY 22. THAT YOU WERE HONORABLY DISCHARGED ON OCTOBER 10. DATES OF CHANGES IN GRADE ARE SHOWN AS FOLLOWS: PRIVATE. YOU WERE REPORTED MISSING IN ACTION ON DECEMBER 16. THAT THE ALLOTMENT PAYMENTS WERE TO CONTINUE THROUGH SEPTEMBER 1942 AND THAT THE TOTAL SO PAID FROM THE DATE OF CANCELLATION THROUGH SEPTEMBER 1942 WAS TO BE DEDUCTED FROM THE FIRST PAYMENT OF THE FAMILY ALLOWANCE.

B-134770, SEP. 18, 1959

TO MR. JAMES J. DICKERSON:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 10, 1959, ENCLOSING A CHECK IN THE AMOUNT OF $19 TO BE APPLIED IN PARTIAL LIQUIDATION OF THE CLAIM OF THE UNITED STATES FOR $323.51, INCIDENT TO YOUR ARMY SERVICE FOR THE PERIOD ENDING OCTOBER 10, 1945. YOU SAY THAT THE AMOUNT CLAIMED IS NOT CORRECT AND, ALSO, THAT YOU THINK YOUR WIFE IS ENTITLED TO AN ALLOTMENT FOR A PART OF THE PERIOD INVOLVED. WHILE YOU DO NOT SPECIFICALLY SO STATE, IT APPEARS THAT YOU BELIEVE THAT SHE IS ENTITLED TO AN ALLOTMENT OR FAMILY ALLOWANCE FOR THE PERIOD FROM JANUARY 1, 1945, TO AUGUST 31, 1945. OUR RECORDS INDICATE THAT, SINCE MARCH 10, 1959, YOU HAVE FORWARDED FOUR OTHER CHECKS, EACH IN THE AMOUNT OF $19, FOR APPLICATION AGAINST THE AMOUNT CLAIMED TO BE DUE THE UNITED STATES.

THE RECORDS FURNISHED US BY THE DEPARTMENT OF THE ARMY SHOW THAT YOU WERE INDUCTED INTO MILITARY SERVICE ON JANUARY 22, 1941, IN THE GRADE OF PRIVATE; THAT YOU ENTERED ON ACTIVE DUTY ON THE SAME DATE; AND THAT YOU WERE HONORABLY DISCHARGED ON OCTOBER 10, 1945, DATES OF CHANGES IN GRADE ARE SHOWN AS FOLLOWS: PRIVATE, FIRST CLASS, SEPTEMBER 24, 1941; CORPORAL, MARCH 28, 1942; SERGEANT, JUNE 5, 1942; STAFF SERGEANT, MARCH 17, 1943; TECHNICAL SERGEANT, JANUARY 12, 1944; PRIVATE, DECEMBER 6, 1944; AND PRIVATE, FIRST CLASS, SEPTEMBER 19, 1945. YOU WERE REPORTED MISSING IN ACTION ON DECEMBER 16, 1944, AND YOU RETURNED TO MILITARY CONTROL ON APRIL 2, 1945.

YOU AUTHORIZED A CLASS E (VOLUNTARY) ALLOTMENT OF $50 A MONTH TO BE PAID TO YOUR WIFE, MRS. SUSIE BELLE DICKERSON, EFFECTIVE APRIL 1, 1942. THEREAFTER, YOU APPLIED FOR THE FAMILY ALLOWANCE FOR YOUR WIFE, EFFECTIVE JUNE 1, 1942, UNDER THE PROVISIONS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, APPROVED JUNE 23, 1942, 56 STAT. 381. YOU EXECUTED FORM NO. 30, DISCONTINUING THE CLASS E ALLOTMENT OF $50 A MONTH IN FAVOR OF YOUR WIFE, EFFECTIVE JUNE 30, 1942, STIPULATING, HOWEVER, THAT THE ALLOTMENT PAYMENTS WERE TO CONTINUE THROUGH SEPTEMBER 1942 AND THAT THE TOTAL SO PAID FROM THE DATE OF CANCELLATION THROUGH SEPTEMBER 1942 WAS TO BE DEDUCTED FROM THE FIRST PAYMENT OF THE FAMILY ALLOWANCE. SUCH ACTION, WHICH WAS IN CONFORMANCE WITH THE ESTABLISHED POLICY OF THE DEPARTMENT OF THE ARMY AT THAT TIME, WAS FOR THE PURPOSE OF CONTINUING THE ALLOTMENT UNTIL ARRANGEMENTS HAD BEEN MADE BY THE DEPARTMENT OF THE ARMY FOR THE PAYMENT OF THE FAMILY ALLOWANCE AND UNTIL SUCH PAYMENTS ACTUALLY COMMENCED. THE ALLOTMENT OF $50 A MONTH WAS PAID FOR THE PERIOD FROM APRIL 1, 1942, THROUGH SEPTEMBER 30, 1942. DEDUCTIONS WERE PROPERLY MADE FROM YOUR PAY TO COVER SUCH PAYMENTS FOR APRIL, MAY AND JUNE 1942. DEDUCTIONS WERE MADE FROM YOUR PAY TO COVER THE ALLOTMENT PAYMENTS FOR JULY, AUGUST AND SEPTEMBER 1942, NOR WERE DEDUCTIONS THEREFORE MADE FROM THE FAMILY ALLOWANCE PAYMENTS MADE TO YOUR WIFE.

FAMILY ALLOWANCE PAYMENTS AT THE RATE OF $50 A MONTH WERE MADE TO YOUR WIFE FOR THE PERIOD FROM JUNE 1, 1942, THROUGH MARCH 31, 1943. OF THE MONTHLY AMOUNT SO PAID, THE GOVERNMENT CONTRIBUTED $28 AND THE BALANCE, $22, WAS DEDUCTED FROM YOUR PAY. THE FIRST FAMILY ALLOWANCE PAYMENT MADE TO YOUR WIFE WAS IN THE AMOUNT OF $250 AND COVERED THE 5 MONTH PERIOD FROM JUNE 1, 1942, THROUGH OCTOBER 31, 1942. SUCH PAYMENTS TO YOUR WIFE WERE STOPPED AS OF MARCH 31, 1943, DUE TO YOUR PROMOTION ON MARCH 17, 1943, TO THE GRADE OF STAFF SERGEANT (THIRD PAY GRADE). UNDER THE PROVISIONS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, DEPENDENTS OF ENLISTED MEN SERVING IN THAT PAY GRADE WERE NOT ELIGIBLE FOR THE FAMILY ALLOWANCE. THE RECORDS SHOW THAT MONTHLY DEDUCTIONS OF $22 WERE PROPERLY MADE FROM YOUR PAY FOR THE PERIOD FROM JUNE 1, 1942, THROUGH MARCH 31, 1943.

IN ACCORDANCE WITH YOUR AUTHORIZATION, EFFECTIVE APRIL 1, 1943, AN ALLOTMENT OF $75 A MONTH WAS PAID TO YOUR WIFE THROUGH NOVEMBER 30, 1944. DEDUCTIONS TO COVER SUCH PAYMENTS WERE MADE FROM YOUR PAY, EXCEPT THAT NO DEDUCTION WAS MADE TO COVER THE PAYMENT MADE FOR NOVEMBER 1944. YOU INCREASED THE ALLOTMENT TO $100 A MONTH, EFFECTIVE DECEMBER 1, 1944, AND THAT ALLOTMENT WAS DISCONTINUED AS OF DECEMBER 31, 1944, BECAUSE YOU HAD BEEN REDUCED TO THE GRADE OF PRIVATE DURING THAT MONTH AND BECAUSE YOUR NEW RATE OF PAY WAS NOT SUFFICIENT TO COVER SUCH AN ALLOTMENT. PROPER DEDUCTION WAS MADE FROM YOUR PAY FOR THE ALLOTMENT PAID FOR DECEMBER 1944.

YOUR WIFE, IN HER LETTER DATED FEBRUARY 13, 1945, ADDRESSED TO THE WAR DEPARTMENT, OFFICE OF DEPENDENCY BENEFITS, NEWARK, NEW JERSEY, ASKED WHY HER ALLOTMENT CHECK HAS BEEN STOPPED. IN HER LETTER DATED MARCH 6, 1945, SHE AGAIN ASKED WHY SHE WAS NO LONGER RECEIVING ALLOTMENT CHECKS AND IN THAT LETTER SHE STATED THAT SHE REQUESTED "A FAMILY ALLOWANCE.' THE RECORDS SHOW THAT DESPITE SUCH INQUIRIES AND REQUEST, NO ALLOTMENT OR FAMILY ALLOWANCE PAYMENTS WERE MADE TO HER FOR THE PERIOD FROM JANUARY 1, 1945, TO AUGUST 31, 1945. ON THE BASIS OF YOUR APPLICATION DATED SEPTEMBER 27, 1945, SHE WAS PAID THE FAMILY ALLOWANCE FOR SEPTEMBER 1945 AND FOR OCTOBER 1945, THE MONTH IN WHICH YOU WERE DISCHARGED.

AS INDICATED ABOVE, AN OVERPAYMENT RESULTED BECAUSE NO DEDUCTIONS WERE MADE TO COVER ALLOTMENT PAYMENTS OF $50 A MONTH FOR JULY, AUGUST AND SEPTEMBER 1942, AND AN ALLOTMENT PAYMENT OF $75 FOR NOVEMBER 1944. FURTHER EXAMINATION OF YOUR PAY ACCOUNT DISCLOSED THAT AT THE TIME OF YOUR DISCHARGE YOU WERE OVERPAID IN THE AMOUNT OF $49.43 ON VOUCHER NO. 4566, OCTOBER 1945 ACCOUNTS OF FIRST LIEUTENANT D. A. FALCO, AND THAT YOU WERE OVERPAID COMBAT INFANTRYMAN PAY IN THE AMOUNT OF $49.08 ON VOUCHER NO. 135125, APRIL 1946 ACCOUNTS OF COLONEL W. GRITZ. ON SUCH BASIS IT WAS DETERMINED THAT THE TOTAL OF THE OVERPAYMENTS AMOUNTED TO $323.51.

IN VIEW OF YOUR REPRESENTATIONS AS TO THE ENTITLEMENT OF YOUR WIFE TO AN ALLOTMENT, AS REPEATED IN YOUR LETTER DATED MARCH 10, 1959, YOUR CASE HAS BEEN CAREFULLY REVIEWED. WE HAVE NOTED PARTICULARLY THAT ALTHOUGH YOU WERE REDUCED TO THE GRADE OF PRIVATE ON DECEMBER 16, 1944, TO APRIL 2, 1945, NO FAMILY ALLOWANCE WAS SET UP FOR YOUR WIFE BY THE ARMY UNTIL SEPTEMBER 1, 1945, NOTWITHSTANDING THE LETTER FROM HER TO THE OFFICE OF DEPENDENCY BENEFITS DATED FEBRUARY 13, 1945, ASKING FOR AN INVESTIGATION OF HER "CHECK STOPPING" AND HER LETTER DATED MARCH 6, 1945, SAYING "I REQUEST A FAMILY ALLOWANCE.'

ALTHOUGH YOUR WIFE'S LEGAL ENTITLEMENT TO THE FAMILY ALLOWANCE FOR THE PERIOD FROM JANUARY 1, 1945, TO AUGUST 31, 1945, HAS NOT BEEN ESTABLISHED AND ALTHOUGH NO FAMILY ALLOWANCE DEDUCTIONS WERE MADE FROM YOUR PAY FOR THAT PERIOD, WE RECOGNIZE THAT THERE ARE ARGUMENTS, HAVING A REASONABLY TENABLE LEGAL BASIS, WHICH COULD BE ADVANCED IN SUPPORT OF HER RIGHT TO THAT GOVERNMENT CONTRIBUTION TO THE FAMILY ALLOWANCE FOR MOST, IF NOT ALL, OF THAT PERIOD. FOR THAT REASON, AND SINCE THE CIRCUMSTANCES IN YOUR CASE ARE UNUSUAL AND THE EQUITIES FAVOR SUCH ACTION, WE HAVE CONCLUDED THAT WE WOULD BE JUSTIFIED IN REDUCING THE CLAIMED AMOUNT OF $323.51 BY OFFSET OF THE AMOUNT OF THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE WHICH WOULD HAVE BEEN PAID TO YOUR WIFE FOR SUCH PERIOD IF YOU HAD BEEN IN A POSITION TO APPLY FOR FAMILY ALLOWANCE WHEN YOU WERE REDUCED IN RANK, FROM TECHNICAL SERGEANT TO PRIVATE, ON DECEMBER 6, 1944. THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE, AT $28 A MONTH, FOR THE 8-MONTH PERIOD FROM JANUARY 1, 1945, TO AUGUST 31, 1945, WOULD AMOUNT TO $224, AND THE REMAINDER OF THE DEBT, AFTER OFFSETTING THAT AMOUNT, WOULD BE $99.51 ($323.51 MINUS $224). ACCORDINGLY, UPON VERIFICATION OF THE RECEIPT FROM YOU OF FIVE CHECKS, EACH FOR $19, OR A TOTAL OF $95, AND UPON THE RECEIPT FROM YOU OF AN ADDITIONAL CHECK IN THE AMOUNT OF $4.51, THE CASE WILL BE CONSIDERED BY US AS CLOSED.