B-150895, APR. 4, 1963

B-150895, APR. 4, 1963

TO MR. JESSE B. NATIVIDAD:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 16, 1963, RELATIVE TO OUR OFFICE LETTER OF JANUARY 10, 1963. IN THAT LETTER YOU WERE ADVISED THAT SETTLEMENT HAS BEEN MADE IN FAVOR OF YOUR MOTHER, MRS. ROSA BONZA NATIVIDAD, IN THE AMOUNT OF $100 REPRESENTING THE PROCEEDS OF UNPAID CLASS F. FAMILY ALLOTMENT CHECKS FOR THE MONTHS OF MAY AND JUNE 1946, AND THAT THE VOUCHER AUTHORIZING PAYMENT WAS FORWARDED TO THE DEPARTMENT OF THE ARMY, SPECIAL CLAIMS BRANCH, CLAIMS DIVISION, SETTLEMENTS OPERATIONS, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, BY TRANSMITTAL NO. 85096, DATED JANUARY 2, 1963. WE HAVE ALSO RECEIVED YOUR LETTER OF FEBRUARY 7, 1963.

IN YOUR LETTER OF JANUARY 16, 1963, YOU SAY THAT THE FAMILY ALLOTMENT WAS FOR THE SUM OF $100 MONTHLY AND THAT YOUR MOTHER, SISTERS AND BROTHERS WERE DESIGNATED TO RECEIVE THE MONTHLY FAMILY ALLOWANCE AND THAT THEY WERE ENTITLED TO RECEIVE $100 EACH MONTH. THEREFORE, YOU BELIEVE THAT YOUR MOTHER, SISTERS, AND BROTHERS ARE ENTITLED TO AN ADDITIONAL $100 FOR THE MONTHS OF MAY AND JUNE 1946.

UNDER SECTION 103 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, 37 U.S.C. 203 (1946 ED.) AN ENLISTED MAN'S DEPENDENTS ELIGIBLE TO RECEIVE MONTHLY FAMILY ALLOWANCES ARE DIVIDED INTO THREE CLASSES, TO BE KNOWN AS CLASS A, CLASS B, AND CLASS B-1 DEPENDENTS. THE CLASS A DEPENDENTS OF ANY SUCH ENLISTED MAN SHALL INCLUDE ANY PERSON WHO IS THE WIFE, THE CHILD, OR THE FORMER WIFE DIVORCED OF ANY SUCH ENLISTED MAN. THE CLASS B DEPENDENTS OF ANY SUCH ENLISTED MAN SHALL INCLUDE ANY PERSON WHO IS THE PARENT, BROTHER, OR SISTER OF SUCH ENLISTED MAN AND WHO IS FOUND BY THE SECRETARY OF THE DEPARTMENT CONCERNED TO BE DEPENDENT UPON SUCH ENLISTED MAN FOR A SUBSTANTIAL PORTION OF HIS SUPPORT. THE CLASS B-1 DEPENDENTS OF ANY SUCH ENLISTED MAN SHALL INCLUDE ANY PERSON WHO IS THE PARENT, BROTHER, OR SISTER OF SUCH ENLISTED MAN AND WHO IS FOUND BY THE SECRETARY OF THE DEPARTMENT CONCERNED TO BE DEPENDENT UPON SUCH ENLISTED MAN FOR THE CHIEF PORTION OF HIS SUPPORT. SECTION 104 OF THE ABOVE CITED ACT, AS AMENDED, PROVIDES THAT:

"A MONTHLY FAMILY ALLOWANCE SHALL BE GRANTED AND PAID BY THE UNITED STATES TO THE CLASS A DEPENDENT OR DEPENDENTS OF ANY SUCH ENLISTED MAN UPON WRITTEN APPLICATION TO THE DEPARTMENT CONCERNED MADE BY SUCH ENLISTED MAN OR MADE BY OR ON BEHALF OF SUCH DEPENDENT OR DEPENDENTS. A MONTHLY FAMILY ALLOWANCE SHALL BE GRANTED AND PAID BY THE UNITED STATES TO THE CLASS B OR CLASS B-1 DEPENDENT OR DEPENDENTS OF ANY SUCH ENLISTED MAN UPON WRITTEN APPLICATION TO THE DEPARTMENT CONCERNED MADE BY SUCH ENLISTED MAN, OR UPON WRITTEN APPLICATION TO THE DEPARTMENT CONCERNED MADE BY OR ON BEHALF OF SUCH DEPENDENT OR DEPENDENTS IN ANY CASE IN WHICH THE SECRETARY OF THE DEPARTMENT CONCERNED FINDS THAT IT IS IMPRACTICABLE FOR SUCH ENLISTED MAN TO REQUEST THE PAYMENT OF SUCH ALLOWANCE. * * *"

SECTION 112 OF THE ACT PROVIDES THAT THE DETERMINATION OF ALL FACTS, INCLUDING THE FACT OF DEPENDENCY, WHICH IT SHALL BE NECESSARY TO DETERMINE IN THE ADMINISTRATION OF THIS CHAPTER SHALL BE MADE BY THE SECRETARY OF THE DEPARTMENT CONCERNED AND SUCH DETERMINATION SHALL BE FINAL AND CONCLUSIVE FOR ALL PURPOSES AND SHALL NOT BE SUBJECT TO REVIEW IN ANY COURT OR BY ANY ACCOUNTING OFFICER OF THE GOVERNMENT.

IT WILL BE NOTED THAT UNDER THE LAW THE COGNIZANT SECRETARY HAS NO DISCRETION WITH RESPECT TO AUTHORIZING THE FAMILY ALLOWANCE IN THE CASE OF CLASS A DEPENDENTS, THE RIGHT THERETO VESTING AT THE TIME PROPER APPLICATION IS MADE THEREFORE TO THE DEPARTMENT CONCERNED. HOWEVER, THE RIGHT TO THE ALLOWANCE FOR CLASS B AND CLASS B-1 DEPENDENTS DID NOT, UNDER THE STATUTE, VEST UPON THE FILING OF AN APPLICATION THEREFOR BUT WAS CONTINGENT UPON THE COGNIZANT SECRETARY FINDING THAT SUCH DEPENDENTS WERE DEPENDENT UPON THE ENLISTED MAN FOR A SUBSTANTIAL PORTION OR CHIEF PORTION OF THEIR SUPPORT, AS THE CASE MIGHT BE. UNDER THE STATUTE THE DETERMINATION BY THE SECRETARY OF THE ARMY OR HIS DESIGNEE AS TO THE FACT OF DEPENDENCY IS CONTROLLING. IN THIS CONNECTION WE HAVE RECEIVED INFORMAL INFORMATION FROM THE DEPARTMENT OF THE ARMY THAT YOUR CLASS F FAMILY ALLOTMENT FOLDER APPARENTLY HAS BEEN DESTROYED PURSUANT TO LAW AND IS NO LONGER AVAILABLE FOR EXAMINATION. THEREFORE, WE ARE UNABLE TO COMMENT ON YOUR STATEMENT THAT YOU MADE APPLICATION FOR DEPENDENCY BENEFITS FOR YOUR SISTERS AND BROTHERS IN ADDITION TO YOUR MOTHER. HOWEVER, SINCE THE UNPAID CHECKS FOR THE MONTHS OF MAY AND JUNE 1946 WERE MADE PAYABLE TO YOUR MOTHER IN THE AMOUNT OF $50, THE AMOUNT AUTHORIZED FOR A DEPENDENT PARENT, IT APPEARS THAT YOUR APPLICATION FOR DEPENDENCY BENEFITS FOR YOUR BROTHERS AND SISTERS WAS NOT APPROVED BY THE SECRETARY OF THE ARMY. IN THESE CIRCUMSTANCES, NO FURTHER ACTION MAY BE TAKEN IN THE MATTER BY THIS OFFICE. AND, SINCE THE APPLICABLE LAW HAS NOW BEEN REPEALED NO FURTHER DETERMINATION IN THE MATTER MAY BE MADE BY THE DEPARTMENT OF THE ARMY.

CONCERNING YOUR INQUIRY IN YOUR LETTER OF FEBRUARY 7, 1963, WE HAVE NO DIRECT INFORMATION AS TO WHEN YOUR MOTHER WILL RECEIVE THE CHECK FROM THE ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA.