B-152825, JAN. 27, 1964

B-152825: Jan 27, 1964

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THIS OVERPAYMENT WAS MADE DURING THE PERIOD JANUARY 1. THIS AMOUNT HAS BEEN REDUCED TO $709.75 BY A PAYMENT OF $314 WHICH WAS ENCLOSED IN A LETTER TO OUR OFFICE DATED FEBRUARY 5. THE MATTER WAS REPORTED HERE FOR COLLECTION BY THE VETERANS ADMINISTRATION ON JANUARY 9. THE PENSION INVOLVED IS AUTHORIZED BY THE LAW CODIFIED AT 38 U.S.C. 521/A) (2). WE HAVE TAKEN THE POSITION THAT THE LAW CODIFIED AT 38 U.S.C. 211/A) PRECLUDES REVIEW BY THIS OFFICE OF THE VETERANS ADMINISTRATION'S DETERMINATION IN THE MATTER. WE ARE NOT UNMINDFUL OF THE GONGORA CASE NOR OF THE CASES RELIED UPON IN THAT DECISION. AS YOU DOUBTLESS ARE AWARE FROM READING THE GONGORA CASE. JUDGE HOLTZOFF ACKNOWLEDGED THAT THERE IS A SPLIT AMONG THE AUTHORITIES ON THIS QUESTION.

B-152825, JAN. 27, 1964

TO THELEN, MARRIN, JOHNSON AND BRIDGES:

YOUR LETTER OF OCTOBER 18, 1963, CONCERNS THE CLAIM OF THE UNITED STATES AGAINST TIBERIUS B. MOLSBERGEN WHICH AROSE INCIDENT TO AN OVERPAYMENT OF PENSION BY THE VETERANS ADMINISTRATION. THIS OVERPAYMENT WAS MADE DURING THE PERIOD JANUARY 1, 1960, TO JANUARY 31, 1961, AND TOTALED $1,023.75. THIS AMOUNT HAS BEEN REDUCED TO $709.75 BY A PAYMENT OF $314 WHICH WAS ENCLOSED IN A LETTER TO OUR OFFICE DATED FEBRUARY 5, 1963, FROM THE DEBTOR'S WIFE, MRS. IRENE M. MOLSBERGEN.

THE MATTER WAS REPORTED HERE FOR COLLECTION BY THE VETERANS ADMINISTRATION ON JANUARY 9, 1963. THE PENSION INVOLVED IS AUTHORIZED BY THE LAW CODIFIED AT 38 U.S.C. 521/A) (2). HOWEVER, 38 U.S.C. 522/A) PROVIDES IN PERTINENT PART THAT:

"NO PERSON (SIC - PENSION) SHALL BE PAID UNDER SECTION 521 * * * TO * * * ANY MARRIED VETERAN * * * WHOSE ANNUAL INCOME EXCEEDS $2,700.

THE RECORD SHOWS THAT DURING THE PERIOD INVOLVED, YOUR CLIENT'S INCOME EXCEEDED THE ABOVE-STATED AMOUNT AND HIS FAILURE TO PROMPTLY INFORM THE VETERANS ADMINISTRATION OF HIS INCOME OCCASIONED THE OVERPAYMENT. THE RECORD FURTHER SHOWS THAT THE CENTRAL COMMITTEE ON WAIVERS AND FORFEITURES OF THE VETERANS ADMINISTRATION REFUSED A REQUEST OF WAIVER OF THE OVERPAYMENT.

IN OUR CORRESPONDENCE TO YOU OF SEPTEMBER 19, 1963, AND IN PREVIOUS CORRESPONDENCE WITH YOUR CLIENT'S WIFE, WE HAVE TAKEN THE POSITION THAT THE LAW CODIFIED AT 38 U.S.C. 211/A) PRECLUDES REVIEW BY THIS OFFICE OF THE VETERANS ADMINISTRATION'S DETERMINATION IN THE MATTER. IN YOUR LETTER OF OCTOBER 18, 1963, YOU CITE THE CASE OF GONGORA V. UNITED STATES, 183 F.SUPP. 872 (D.C.D.C. 1960) FOR THE PROPOSITION THAT 38 U.S.C. 211/A) DOES NOT PRECLUDE REVIEW OF THE VETERANS ADMINISTRATION'S DETERMINATION. WE ARE NOT UNMINDFUL OF THE GONGORA CASE NOR OF THE CASES RELIED UPON IN THAT DECISION. HOWEVER, AS YOU DOUBTLESS ARE AWARE FROM READING THE GONGORA CASE, JUDGE HOLTZOFF ACKNOWLEDGED THAT THERE IS A SPLIT AMONG THE AUTHORITIES ON THIS QUESTION. SUFFICE IT TO SAY THAT OUR OFFICE DOES NOT VIEW THE GONGORA AND SIMILAR CASES AS AUTHORITY FOR OUR OFFICE TO REVIEW DETERMINATIONS BY THE VETERANS ADMINISTRATION ON PENSION MATTERS.

IN SUMMARY, THE VETERANS ADMINISTRATION HAS MADE ITS DETERMINATION, IT HAS REFUSED TO WAIVE THE OVERPAYMENT, AND OUR OFFICE DOES NOT HAVE AUTHORITY TO REVIEW THE VETERANS ADMINISTRATION'S DETERMINATION IN THE MATTER. THEREFORE, IT REMAINS FOR OUR OFFICE TO COLLECT THE OVERPAYMENT ON BEHALF OF THE UNITED STATES.