B-137850, FEB 16, 1959

B-137850: Feb 16, 1959

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WHILE YOU WERE HELD PRISONER OF WAR BY THE JAPANESE. TO YOU SUSTAINED THE DISALLOWANCE FOR THE REASON THAT ALTHOUGH YOU WERE RELEASED FROM CONFINEMENT IN 1945. WERE DESTROYED. THAT BECAUSE OF YOUR FEELINGS DURING YOUR PERIOD OF REHABILITATION YOU FAILED TO NOTICE THAT THE CHECKS WERE NOT RECORDED ON YOUR BANK STATEMENT. YOU WOULD HAVE TAKEN TIMELY ACTION TO PROTECT YOUR INTERESTS. YOU IMPLY THAT ALTOUGH YOU FAILED TO NOTICE THAT RECEIPT OF THE CHECKS WAS NOT SHOWN ON THE BANK STATEMENT YOU WERE NOT CHARGEABLE WITH NOTICE. SINCE AT THE TIME YOU MADE THE ALLOTMENT YOU FELT THE POSSIBILITY OF ITS BEING EFFECTIVE WAS REMOTE. THEREFORE YOU WERE UNAWARE OF THE ISSUANCE OF THE CHECKS UNTIL YOU RECEIVED FROM THE DEPARTMENT OF THE ARMY A REVIEW OF YOUR PAY RECORDS.

B-137850, FEB 16, 1959

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL BEVERLY N. SKARDON:

YOUR LETTER OF OCTOBER 17, 1958, REQUESTS FURTHER REVIEW OF OUR SETTLEMENT OF APRIL 30, 1958, WHICH DISALLOWED YOUR CLAIM FOR THE PROCEEDS OF SIXTEEN ALLOTMENT CHECKS DRAWN TO THE ORDER OF THE BANK OF YEMASSEE, YEMASSEE, SOUTH CAROLINA, FOR DEPOSIT TO YOUR ACCOUNT, DURING THE PERIOD FROM MARCH 1942 TO SEPTEMBER 1943, WHILE YOU WERE HELD PRISONER OF WAR BY THE JAPANESE.

OUR LETTER OF SEPTEMBER 15, 1958, TO YOU SUSTAINED THE DISALLOWANCE FOR THE REASON THAT ALTHOUGH YOU WERE RELEASED FROM CONFINEMENT IN 1945, YOU FAILED TO FILE A CLAIM HERE UNTIL MARCH 12, 1958, THEREBY DEFEATING THE RIGHT OF THE GOVERNMENT TO PROTECT ITSELF BY PROCEEDING AGAINST THE INDORSERS, SINCE DURING THE INTERIM THE SUBJECT CHECKS, WHICH HAD BEEN NEGOTIATED, WERE DESTROYED.

YOU SAY THAT BECAUSE YOU HAD NO KNOWLEDGE THAT THE CHECKS IN QUESTION HAD NOT BEEN RECEIVED BY THE BANK YOU HAD NO BASIS TO FILE A CLAIM; THAT YOU HAD NO OPPORTUNITY TO NOTIFY THE BANK OF THE ALLOTMENT, AND THAT BECAUSE OF YOUR FEELINGS DURING YOUR PERIOD OF REHABILITATION YOU FAILED TO NOTICE THAT THE CHECKS WERE NOT RECORDED ON YOUR BANK STATEMENT. YOU FURTHER STATE, THAT IF YOU HAD BEEN IN THE UNITED STATES DURING THE PERIOD FOR WHICH THE BANK'S STATEMENTS, ISSUED TO YOU, FAIL TO REFLECT RECEIPT OF THE CHECKS, YOU WOULD HAVE TAKEN TIMELY ACTION TO PROTECT YOUR INTERESTS. YOU IMPLY THAT ALTOUGH YOU FAILED TO NOTICE THAT RECEIPT OF THE CHECKS WAS NOT SHOWN ON THE BANK STATEMENT YOU WERE NOT CHARGEABLE WITH NOTICE, SINCE AT THE TIME YOU MADE THE ALLOTMENT YOU FELT THE POSSIBILITY OF ITS BEING EFFECTIVE WAS REMOTE, AND THEREFORE YOU WERE UNAWARE OF THE ISSUANCE OF THE CHECKS UNTIL YOU RECEIVED FROM THE DEPARTMENT OF THE ARMY A REVIEW OF YOUR PAY RECORDS, PURSUANT TO YOUR INQUIRY OF OCTOBER 18, 1956.

YOU WERE RETURNED TO MILITARY CONTROL IN 1945, HOWEVER, AND MORE THAN TEN YEARS ELAPSED FROM THAT TIME UNTIL YOU MADE INQUIRY CONCERNING THE MATTER. AS POINTED OUT IN OUR LETTER OF SEPTEMBER 15, THIS DELAY WAS PREJUDICIAL TO THE GOVERNMENT BECAUSE IT HAD THEREBY LOST ITS RIGHT TO PROCEED AGAINST THE INDORSERS, AND FOR THAT MATTER, BECAUSE OF THE DESTRUCTION OF THE CHECKS PURSUANT TO LAW, IT HAD LOST THE ABILITY TO PROVE OR DISPROVE THE PROPRIETY OF THE NEGOTIATION OF THE CHECKS.

IN VIEW OF THE ABOVE, AND SINCE NO EVIDENCE HAS BEEN SUBMITTED SHOWING THAT THE GOVERNMENT HAS FAILED IN ANY PARTICULAR MANNER TO COMPLY WITH THE TERMS OF THE ALLOTMENT, THE VALIDITY OF YOUR CLAIM IS TOO DOUBTFUL TO WARRANT OUR OFFICE GIVING IT FAVORABLE CONSIDERATION.

UNDER ALL THE FACTS AND CIRCUMSTANCES OF YOUR CASE, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN OUR SETTLEMENT OF APRIL 30, 1958, WHICH DISALLOWED YOUR CLAIM.