B-149851, JAN. 28, 1963

B-149851: Jan 28, 1963

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SOPKIN: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 7. HAVE ALSO BEEN RECEIVED. THE RECORDS OF THIS OFFICE SHOW THAT YOUR CLAIM WAS DENIED BY THE WAR DEPARTMENT PRIOR TO CONSIDERATION BY THIS OFFICE AND THAT IT WAS DENIED BY CLAIMS DIVISION SETTLEMENT DATED APRIL 28. FOR THE REASON THAT IT HAS BEEN CONSISTENTLY HELD THAT THE OBLIGATION TO SUPPORT A WIFE IS PRIMARILY ON HER HUSBAND AND. WHERE IT IS NOT CONCLUSIVELY ESTABLISHED THAT THE HUSBAND IS PHYSICALLY OR MENTALLY INCAPACITATED AND WITHOUT PROPER PROPERTY OR INCOME. SINCE YOU HAD NOT CONCLUSIVELY ESTABLISHED THAT YOUR FATHER WAS PHYSICALLY INCAPACITATED AND WITHOUT PROPERTY OR INCOME. THE CLAIM WAS DISALLOWED. CREDITS OF INCREASED ALLOWANCES TO AN OFFICER WITH DEPENDENTS DURING THE PERIOD INVOLVED WERE PROVIDED BY SECTIONS 5 AND 6 OF THE PAY READJUSTMENT ACT OF 1942.

B-149851, JAN. 28, 1963

TO MR. SEYMOUR S. SOPKIN:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 7, 1962, AND ENCLOSURES, RECEIVED FROM THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, ON AUGUST 20, 1962, RELATIVE TO YOUR CLAIM FOR INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF DEPENDENT MOTHER FOR THE PERIOD MAY 1, 1943, TO FEBRUARY 28, 1945, WHILE SERVING AS FLIGHT OFFICER AND SECOND LIEUTENANT, AIR CORPS, SERIAL NO. 0-1691835.

YOUR LETTERS OF SEPTEMBER 8, NOVEMBER 5, NOVEMBER 29, 1962, AND JANUARY 7, 1963, HAVE ALSO BEEN RECEIVED. YOU ASK ADVICE AS TO WHETHER YOU MAY REOPEN YOUR CLAIM AND WHAT PROCEDURE YOU MAY FOLLOW.

THE RECORDS OF THIS OFFICE SHOW THAT YOUR CLAIM WAS DENIED BY THE WAR DEPARTMENT PRIOR TO CONSIDERATION BY THIS OFFICE AND THAT IT WAS DENIED BY CLAIMS DIVISION SETTLEMENT DATED APRIL 28, 1947, FOR THE REASON THAT IT HAS BEEN CONSISTENTLY HELD THAT THE OBLIGATION TO SUPPORT A WIFE IS PRIMARILY ON HER HUSBAND AND, WHERE IT IS NOT CONCLUSIVELY ESTABLISHED THAT THE HUSBAND IS PHYSICALLY OR MENTALLY INCAPACITATED AND WITHOUT PROPER PROPERTY OR INCOME, HIS WIFE MAY NOT BE CONSIDERED DEPENDENT ON HER SON CLAIMING ALLOWANCES ON HER ACCOUNT; THAT DESERTION BY THE HUSBAND DOES NOT RELIEVE HIM OF HIS OBLIGATION TO SUPPORT HIS WIFE AND THAT TO BE RELIEVED OF THIS OBLIGATION, THERE MUST BE A LEGAL SEPARATION. SINCE YOU HAD NOT CONCLUSIVELY ESTABLISHED THAT YOUR FATHER WAS PHYSICALLY INCAPACITATED AND WITHOUT PROPERTY OR INCOME, THE CLAIM WAS DISALLOWED. THE RECORDS DO NOT DISCLOSE THAT YOU MADE APPLICATION FOR REVIEW OF THAT SETTLEMENT PRIOR TO YOUR LETTER OF MAY 7, 1962, OVER 15 YEARS AFTER THE SETTLEMENT.

CREDITS OF INCREASED ALLOWANCES TO AN OFFICER WITH DEPENDENTS DURING THE PERIOD INVOLVED WERE PROVIDED BY SECTIONS 5 AND 6 OF THE PAY READJUSTMENT ACT OF 1942, CH. 413, 56 STAT. 361 (37 U.S.C. 105, 106,1946 ED.). UNDER THAT STATUTE AND THE REGULATIONS ISSUED PURSUANT THERETO (ARMY REGULATIONS 35-4220), IT WAS INCUMBENT ON AN OFFICER CLAIMING ALLOWANCES ON ACCOUNT OF A DEPENDENT MOTHER TO ESTABLISH THAT HIS MOTHER WAS IN FACT DEPENDENT ON HIM FOR CHIEF SUPPORT, THAT IS, FOR MORE THAN ONE-HALF OF HER SUPPORT, WITHIN THE MEANING OF THE LAW. HER DEPENDENCY ON HIM AT THE TIME WAS A QUESTION OF FACT DETERMINED ON ON THE BASIS OF DEFINITE INFORMATION PROPERLY SUBSTANTIATED BY EVIDENCE SUBMITTED BY THE OFFICER AT THE TIME.

REVIEW OF A SETTLEMENT OF A CLAIM IS GRANTED IN THE DISCRETION OF THE COMPTROLLER GENERAL OF THE UNITED STATES AND SUCH A REVIEW MAY BE DENIED IN A CASE SUCH AS YOURS WHERE THE CLAIMANT HAS SLEPT ON HIS RIGHTS FOR MANY YEARS. A REVIEW OF A CLAIM INVOLVES A CONSIDERATION OF THE FACTS ON WHICH THAT CLAIM IS BASED AND SHOULD PERMIT VERIFICATION OF THOSE FACTS. WHERE, AS HERE, VERIFICATION OF THE FACTS ALLEGED TO HAVE EXISTED ALMOST 20 YEARS AGO WOULD DEPEND UPON THE MEMORY OF PERSONS INVOLVED, THE POSSIBILITY OF RELIABLE VERIFICATION NO LONGER EXISTS. ACCORDINGLY, YOUR REQUEST FOR REVIEW MUST BE DENIED.

THE PORTION OF YOUR CLAIM EXTENDING THE PERIOD CLAIMED TO AUGUST 28, 1945, MUST BE REGARDED AS A NEW CLAIM AND IT IS THEREFORE BARRED UNDER PROVISIONS OF THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, WHICH BARS CONSIDERATION OF ANY PORTION THEREOF WHICH DID NOT ACCRUE WITHIN ..END :