B-144046 October 31, 1960

B-144046: Oct 31, 1960

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Lesinski: Further reference is made to your letter dated September 16. Who believes that he is entitled to refund of family allowance deductions stated to have been made from his pay while he was serving in the Army during World War II. Contained various provisions which are pertinent in Mr. The monthly family allowance so authorized consisted of the Government's contribution to such allowance and the reduction in or charge to the pay of such enlisted man and it was specifically provided that for any month that the family allowance was paid to the class A dependent or dependents of an enlisted man. In such instances his monthly contribution of $22 was required whether he had one class A dependent or whether he had more than one class A dependent.

B-144046 October 31, 1960

Honorable John Lesinski House of Representatives

Dear Mr. Lesinski:

Further reference is made to your letter dated September 16, 1960, requesting that we reconsider the case of Mr. Joseph J. Wegrecki, 7525 Kendal Street, Dearborn, Michigan, who believes that he is entitled to refund of family allowance deductions stated to have been made from his pay while he was serving in the Army during World War II.

The Serviceman's Dependents Allowances Act of 1942, 56 Stat. 381. As amended, contained various provisions which are pertinent in Mr. Wegrecki's case. That act authorized monthly family allowance payments to specified dependents of enlisted men in certain grades to the class A dependent or dependents (including wives and children) of any such enlisted men upon written application made by such enlisted man or made by or on behalf on his dependent or dependents. The monthly family allowance so authorized consisted of the Government's contribution to such allowance and the reduction in or charge to the pay of such enlisted man and it was specifically provided that for any month that the family allowance was paid to the class A dependent or dependents of an enlisted man, his monthly pay should be reduced by, or charged with, the amount of $22. In other words, in such instances his monthly contribution of $22 was required whether he had one class A dependent or whether he had more than one class A dependent. Section 105 of the act provided for a monthly family allowance of $50 if the enlisted man had a wife and no child, $62 if he had a wife and on child; and $72 if he had a wife and two children. Of such amounts, the enlisted man was required to contribute the monthly amounts of $22 and the remainder ($28, or $40, or $50, respectively) was contributed by the Government. Section 105 was amended, effective October 26, 1943, to provide a family allowance of $50 a month for a wife but no child; $80 a month for a wife and one child; and $100 a month for a wife and two children. The enlisted man's contribution remained at $22 a month, whether he had one or more dependents.

The facts concerning Mr. Wegrecki's case, as contained in a report dated June 2, 1960, from the Finance Center, U.S. Army, Indianapolis, Indiana, were set forth in our letter to you dated June 13, 1960. After the receipt of your letter of September 16, 1960, additional information has been obtained which will be helpful in arriving at a better understanding of the facts in the case. From the information now available, it appears that on August 2, 1943, Mr. Wegrecki executed an application for the family allowance for his wife, Mary, and his two sons, Stanley and John, and that it was shown on such application that all of those dependents were then residing at Ochotnica Orens, Powiat Wewy targ, Poland. It was also there shown that the solider and his wife, Mary, were married on June 16, 1931; that the son, Stanley, was born on February 17, 1933; and that the son, John, was born on March 19, 1936. Mary Wegrecki was designated as the family allowance payee for herself and for her two minor sons.

The family allowance was established in Mr. Wegrecki's case, effective August 1, 1943, and, for the first payment for the wife and the two children, a check for $616 was issued to cover the amount due through February 1944 (at the rate of $72 a month through October 1943 and at the rate of $100 a month for the remainder of the period.) Also, monthly checks of $100 were issued for the period from March 1, 1944, through October 1945, the month in which Mr. Wegrecki was discharged from the Army. It appears that the checks could not be forwarded to Mrs. Wegrecki because of the fact that, under the statutory provisions in 31 U.S.C. 123, the Secretary of the Treasury had determined that the conditions in Poland were such that there was not a reasonable assurance that the payees of checks drawn against funds of the United States would actually receive the checks and be able to negotiate them for full value. Accordingly, as provided in 31 U.S.C. 124, the checks issued for the family allowance in this case through February 1945, amounted to $1,816, were transmitted to the Bureau of Accounts of the Treasury Department and the amounts of the checks were transferred to the credit of Mary Wegrecki in a special deposit account with the Treasurer of the United States entitled "Secretary of the Treasury, Proceeds of Withheld Foreign Checks." In 31 U.S.C. 125 it is provided, in pertinent part, that payment of the amounts which have been deposited in the special deposit account in accordance with 31 U.S.C. 124 shall be made by checks drawn against such special deposit account by the Secretary of the Treasury, "only after the claimant shall have established his right to the amount of the check" to the satisfaction of the Secretary of the Treasury. It is provided in 31 U.S.C. 127 that the Secretary of the Treasury is authorized to proscribe such rules and regulations as he in his discretion may deem necessary or proper for the administration and execution of such sections.

Later, the restriction against sending checks drawn against funds of the United States to payees residing in Poland was removed and in a letter dated November 7, 1945, the War Department now Department of the Army requested Mrs. Wegrecki to furnish evidence of her marriage to Joseph J. Wegrecki and she was advised that upon the furnishing of such evidence payment would be made to her for the period of March 1, 1945 through October 31, 1945, and that she should write to the Bureau of Accounts, United States Treasury Department, Washington, D.C., concerning the amount due for the period from November August 1, 1943, through February 28, 1945. She was not at that time requested to furnish birth certificates for the two sons, Stanley and John. Mrs. Wegrecki, with a letter dated January 3, 1946, written from Ochotnica Oerns, Powist Wowy Targ, Poland, furnished a certificate dated January 2, 1946, evidencing her marriage to "Joseph Wegrecki" on June 17, 1931. The certificate bears the rubber- stamp impression of the seal of the Parish Church, Ochotnica Gerna, and is signed by Joseph Sleds, priest. She also furnished a similar certificate
evidencing the birth of a son, Tomass, to Joseph and Maria "Wegrecki" on
March 7, 1933. Those two documents were received in the office of the
Dependency Benefits, War Department, on March 28, 1946. In the letter
dated May 28, 1946, Mrs. Wegrecki was requested to furnish a certified
copy of the public record of birth or the church record of baptism of her
son, John Wegrecki. She was at the same time requested to submit a
clarification of the birth certificate which she had furnished and she was
informed that such request was made for the reason that the solder's
application for the family allowance listed a son, Stanley, born in 1933,
and a son, John, born in 1933, and a son, John, born in 1936, while the
certificate furnished by her showed a son, Tomass, born in 1933. It
appears that Mrs. Wegrecki never furnished the requested information
concerning the children.

The Department of the Army, however, considered that the evidence
furnished by her was sufficient to establish that she was the wife of
Joseph Wegrecki and canceled the eight checks (each in the amount of $100)
issued for the period from March 1, 1945, through October 31, 1945. In
July 1946 check No. 9,383,954, for $400, was drawn on the Treasurer of the
United States by S.H. Smith, Army disbursing officer, over symbol No. 280,
to the order of Mary Wegrecki and sent to her at Ochotnica Grona, Powiat
Wowy Targ, Poland. That check covered the family allowance due her in her
own right, at the rate of $50 a month, for the 8-month period from March
1, 1945, through October 31, 1945. It appears from an examination of the
records of our office and the records of the Treasury Department that the
check is not on the outstanding list but that it was negotiated in due
course and paid by the Treasury of the United States and that it had been
destroyed pursuant to law because of its age.

With a letter dated November 23, 1959, Joseph J. Wegrecki furnished the
Department of the Army a photocopy of a certificate dated October 15,
1945, similar to the certificates furnished by Mrs. Wegrecki, evidencing
the marriage of "Joseph Wygrecki" to Maria Filusa on June 17, 1931, and
that three children were born of such marriage; (1) Jan [John], who was
born on March 4, 1932, and who died on May 2, 1932; (2) Thomass [Thomas],
who was born on March 7, 1933, and (3) Stanislaus [Stanley], who was born
on August 25, 1935, and who died on September 4, 1944. It seems,
therefore, that, as of October 15, 1945, Tomass was the only living child.

On the basis of the record now before us, it appears that the eligibility
of Mrs. Wegrecki was established for family allowance purposes in this
case. It is our view, therefore, that she is entitled to such family
allowance (including the soldier's monthly contribution of $22) for the
19-month period from August 1, 1943, through February 1945, and that the
amount involved properly is held for her in the special deposit account
with the Treasurer of the United States entitled "Secretary of the
Treasury, Proceeds of Withheld Foreign Checks." Since money may be
withdrawn from such account "only after the claimant Mrs. Wegrecki shall
have established his right to the amount of the check." We know of no
authority which will permit any withdrawal from such account to pay Mr.
Wegrecki, the amount withheld from his pay contribution to such family
allowance, in the absence of proof of her death or of new legislation
authorizing payment, such as Private Law 86-261, approved April 14, 1960.

Our records show that there have been cases in which, after the proceeds
of family allowance checks were placed in the special deposit account, it
was found that the dependents were not entitled to the family allowance.
We initiated action in those cased to take the amounts out of the special
deposit account because such amounts were improperly placed there and,
since payment of the family allowance was not authorized by law, we also
approved refunds of deductions made from the members' pay. Similar action
has been taken in cases where family allowance payees dies without
receiving the proceeds of family allowance checks so held. In the present
case, however, there is no evidence which would authorize the withdrawal
of the amount due Mrs. Wegrecki from the special deposit account. In this
connection, it may be stated for your information that the special deposit
account here involved is regarded as a trust fund for the benefit of the
payee of the checks and that it is our view that there is not statute of
limitations which would run against a claim of a person for whom the trust
was created.

We trust that the foregoing will sufficiently explain why we find no basis
for favorable action in Mr. Wegrecki's case.

Sincerely yours,

FRANK H. WEITZEL
Assistant
Comptroller General of the United States