B-146566, OCT. 24, 1961

B-146566: Oct 24, 1961

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RELATIVE TO YOUR CLAIM FOR FAMILY ALLOWANCE PAYMENTS INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY WHICH WERE NOT RECEIVED BY YOUR DEPENDENTS IN CHINA. REQUESTS INFORMATION AS TO WHY THE ADDITIONAL ALLOTMENT REPRESENTING THE GOVERNMENT'S CONTRIBUTION FOR THE SUPPORT OF YOUR WIFE AND CHILDREN WAS NOT SENT TO YOU AT THE SAME TIME THE AMOUNT DEDUCTED FROM YOUR PAY WAS ALLOWED BY SETTLEMENT DATED MAY 31. WERE ISSUED TO THE BANK OF CHINA. TRANSFER OF THE FUNDS INVOLVED WAS IMPOSSIBLE AND THE CHECKS WERE RETURNED AND SUBSEQUENTLY CANCELED. NO CHECKS WERE ISSUED BECAUSE OF INABILITY TO EFFECT DELIVERY TO YOUR DEPENDENTS IN CHINA. APPARENTLY BASING YOUR CLAIM ON THE FACT THAT YOUR DEPENDENTS ARE NO LONGER RESIDING IN CHINA.

B-146566, OCT. 24, 1961

TO LEE YOU POY:

IN A LETTER DATED JUNE 27, 1961, RELATIVE TO YOUR CLAIM FOR FAMILY ALLOWANCE PAYMENTS INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY WHICH WERE NOT RECEIVED BY YOUR DEPENDENTS IN CHINA, M. G. KAUFMAN, ATTORNEY AT LAW, REQUESTS INFORMATION AS TO WHY THE ADDITIONAL ALLOTMENT REPRESENTING THE GOVERNMENT'S CONTRIBUTION FOR THE SUPPORT OF YOUR WIFE AND CHILDREN WAS NOT SENT TO YOU AT THE SAME TIME THE AMOUNT DEDUCTED FROM YOUR PAY WAS ALLOWED BY SETTLEMENT DATED MAY 31, 1960. PURSUANT TO YOUR APPLICATION FOR FAMILY ALLOWANCE FOR YOUR WIFE AND THREE CHILDREN, APPROVED EFFECTIVE FEBRUARY 1, 1944, IN THE AMOUNT OF $120 PER MONTH, CHECKS TOTALING $1,680 FOR THE PERIOD FEBRUARY 1, 1944, TO MARCH 31, 1945, WERE ISSUED TO THE BANK OF CHINA, A/C OF LEE KWOK BELL, 40 WALL STREET, NEW YORK, NEW YORK. BECAUSE YOUR DEPENDENTS RESIDED IN OCCUPIED CHINA, TRANSFER OF THE FUNDS INVOLVED WAS IMPOSSIBLE AND THE CHECKS WERE RETURNED AND SUBSEQUENTLY CANCELED. YOU EARNED ADDITIONAL ENTITLEMENT TO CLASS "F" FAMILY ALLOTMENT FOR THE PERIOD APRIL 1 TO SEPTEMBER 30, 1945, IN THE AMOUNT OF $720, BUT NO CHECKS WERE ISSUED BECAUSE OF INABILITY TO EFFECT DELIVERY TO YOUR DEPENDENTS IN CHINA.

IN A LETTER DATED MARCH 7, 1948, ADDRESSED TO THE WAR DEPARTMENT OFFICE OF DEPENDENCY BENEFITS, NEWARK, NEW JERSEY, YOU REQUESTED INFORMATION AS TO THE STATUS OF THIS ALLOTMENT, SINCE YOUR DEPENDENTS IN CHINA HAD NEVER RECEIVED ANY PAYMENTS. BY LETTER DATED MARCH 4, 1960, RECEIVED IN THIS OFFICE MARCH 31, 1960, YOU REQUESTED REIMBURSEMENT OR PAYMENT OF THE ALLOTMENT, APPARENTLY BASING YOUR CLAIM ON THE FACT THAT YOUR DEPENDENTS ARE NO LONGER RESIDING IN CHINA, TWO SONS HAVING COME TO THE UNITED STATES AND YOUR WIFE AND THIRD SON HAVING ARRIVED IN HONG KONG. BY SETTLEMENT DATED MAY 31, 1960, YOU WERE ALLOWED $440, THE AMOUNT OF YOUR CONTRIBUTION OF $22 PER MONTH DEDUCTED FROM YOUR PAY FOR THE PERIOD FEBRUARY 1, 1944, TO SEPTEMBER 30, 1945, AND THE BALANCE WAS DISALLOWED FOR THE REASON THAT YOUR DEPENDENTS' CLAIM WAS NOW BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1051, AND THERE IS NO AUTHORITY TO ALLOW YOU MORE THAN THE AMOUNT DEDUCTED FROM YOUR PAY.

THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381, AS AMENDED BY THE ACT OF OCTOBER 26, 1943, 57 STAT. 577, PROVIDED THAT FOR ANY PERIOD DURING WHICH ANY ENLISTED MAN IS IN THE ACTIVE MILITARY OR NAVAL SERVICE OF THE UNITED STATES ON OR AFTER JUNE 1, 1942, HIS DEPENDENT OR DEPENDENTS SHALL BE ENTITLED TO RECEIVE A MONTHLY FAMILY ALLOWANCE IN ACCORDANCE WITH OTHER PROVISIONS OF THE ACT CONSISTING OF THE GOVERNMENT'S CONTRIBUTION AND A REDUCTION IN OR CHARGE AGAINST THE MONTHLY PAY OF THE ENLISTED MAN IN THE AMOUNT OF $22 A MONTH. UNDER THE LAW, THE FAMILY ALLOWANCE WAS PAYABLE ONLY TO THE DEPENDENT OR DEPENDENTS OF THE ENLISTED MAN. THE PURPOSE OF THE ACT WAS TO PROVIDE SUPPORT FOR THE ENLISTED MAN'S FAMILY WHILE HE WAS SERVING IN THE ARMED FORCES AND NO AUTHORITY EXISTS FOR THE REFUND OF THE AMOUNTS DEDUCTED FROM THE SERVICEMAN'S PAY AS HIS CONTRIBUTION SO LONG AS HIS DEPENDENTS HAVE A RIGHT TO CLAIM THE ALLOWANCE. IN NO EVENT DOES THE MAN HAVE THE RIGHT TO RECEIVE THE FULL AMOUNT INCLUDING THE GOVERNMENT'S CONTRIBUTION TO THE SUPPORT OF THE DEPENDENTS AND MAY RECEIVE REFUND OF THE AMOUNT DEDUCTED FROM HIS PAY ONLY IF THE DEPENDENT'S CLAIM LAPSES OR IS OTHERWISE EXTINGUISHED.

THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 5 U.S.C. 71A, PROVIDES THAT EVERY CLAIM OR DEMAND AGAINST THE UNITED STATES COGNIZABLE BY OUR OFFICE IS FOREVER BARRED UNLESS SUCH CLAIM IS RECEIVED IN THE GENERAL ACCOUNTING OFFICE WITHIN 10 FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED.

IN YOUR CASE, THE CHECKS WHICH WERE ISSUED FOR THE PERIOD FEBRUARY 1, 1944, TO MARCH 30, 1945, SHOULD NOT HAVE BEEN CANCELED AND, UNDER THE PROVISIONS OF SECTION 1 OF THE ACT OF JULY 11, 1947, 61 STAT. 308, 309, 31 U.S.C. 132, CLAIM FOR THE PROCEEDS OF THESE CHECKS IS NOT BARRED BY THE ACT OF OCTOBER 9, 1940; HENCE PAYMENT OF THE AMOUNT OF YOUR CONTRIBUTION FOR THAT PERIOD, $308, WAS ERRONEOUS AND SHOULD HAVE BEEN HELD PENDING CLAIM FROM YOUR WIFE FOR THE FULL AMOUNT OF THE CHECKS. AS FOR THE REMAINING PERIOD APRIL 1 TO SEPTEMBER 30, 1945, NO CHECKS WERE ISSUED, YOUR WIFE'S CLAIM FOR THE FULL FAMILY ALLOWANCE AS WELL AS YOUR CLAIM FOR REFUND OF THE AMOUNT DEDUCTED FROM YOUR PAY IS WITHIN THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, AND PAYMENT OF THE AMOUNT OF $132 REPRESENTING YOUR CONTRIBUTION FOR THIS PERIOD SHOULD NOT HAVE BEEN PAID TO YOU. THE ABSENCE OF OBJECTION ON THE PART OF YOUR WIFE, YOU WILL BE ALLOWED TO RETAIN THE SUM OF $308 WHICH SHOULD HAVE BEEN RESERVED PENDING HER CLAIM, EXCEPT THAT IF CLAIM IS RECEIVED, THAT AMOUNT WILL BE DEDUCTED FROM ANY AMOUNT FOUND DUE. SINCE, UNDER THE ACT OF OCTOBER 9, 1940, ONLY THE REMEDY, NOT THE RIGHT, IS EXTINGUISHED, THERE IS NO BASIS FOR RECOVERY OF THE AMOUNT OF $132 OTHERWISE DUE YOU THAT WAS INADVERTENTLY CONSIDERED AND ALLOWED IN SETTLEMENT DATED MAY 31, 1960.

FOR THE REASONS GIVEN ABOVE, UPON FURTHER CONSIDERATION NO FURTHER AMOUNT IS FOUND DUE YOU AND DISALLOWANCE OF YOUR CLAIM FOR THE AMOUNT CONTRIBUTED BY THE GOVERNMENT FOR THE SUPPORT OF YOUR DEPENDENTS IS SUSTAINED.