B-157074, AUG. 12, 1965

B-157074: Aug 12, 1965

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JOHNSON: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 15. AS AMENDED WAS CARRIED IN A MISSING-IN-ACTION STATUS FROM DECEMBER 12. HIS DEATH IS PRESUMED TO HAVE OCCURRED. WE HAVE RECEIVED YOUR LETTER OF JULY 27. IT IS YOUR CONTENTION THAT YOU DID NOT RECEIVE ANY OF THE 12 CHECKS COVERING SUCH ALLOTMENT PAYMENTS AND THAT. 200 IS DUE YOU IN ADDITION TO THE PAYMENTS WHICH YOU HAVE ALREADY RECEIVED. THE CLASS E ALLOTMENT PAYMENT FOR DECEMBER 1944 WAS COVERED BY CHECK NO. 37. A PHOTOCOPY OF WHICH IS ENCLOSED. THIS CHECK WAS CASHED FOR YOU BY THE REPUBLIC NATIONAL BANK OF DALLAS ON JULY 2. 1946 (THE END OF THE FISCAL YEAR FOLLOWING THE FISCAL YEAR IN WHICH THE CHECK WAS ISSUED). AFTER PAYMENT WAS REFUSED BY THE TREASURER OF THE UNITED STATES.

B-157074, AUG. 12, 1965

TO MRS. MARY C. JOHNSON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 15, 1965, CONCERNING YOUR CLAIM FOR THE ADDITIONAL AMOUNT OF $1,200 WHICH YOU BELIEVE TO BE DUE YOU IN THE CASE OF YOUR LATE SON, SECOND LIEUTENANT RAYMOND E. JOHNSON, AIR CORPS, ARMY OF THE UNITED STATES, WHO, UNDER THE PROVISIONS OF THE MISSING PERSONS ACT OF 1942, AS AMENDED WAS CARRIED IN A MISSING-IN-ACTION STATUS FROM DECEMBER 12, 1944, TO DECEMBER 13, 1945, THE DATE ON WHICH, FOR THE PURPOSES OF THAT ACT, HIS DEATH IS PRESUMED TO HAVE OCCURRED. ALSO, WE HAVE RECEIVED YOUR LETTER OF JULY 27, 1965, CONCERNING THE SAME MATTER.

THE WAR DEPARTMENT, UNDER DATE OF JANUARY 2, 1946, TRANSMITTED TO OUR OFFICE A DEPARTMENTAL SETTLEMENT OF THE FINAL PAY AND ALLOWANCE ACCOUNT OF YOUR SON, RAYMOND E. JOHNSON, COVERING THE PERIOD DECEMBER 1, 1944, TO DECEMBER 13, 1945, AND SHOWING ACCRUED PAY AND ALLOWANCES FOR THAT PERIOD IN THE TOTAL AMOUNT OF $4,352.45. IT ALSO SHOWED FOR DEDUCTION THEREFROM THE AMOUNT OF $1,200, REPRESENTING PAYMENTS OF A CLASS E ALLOTMENT OF $100 PER MONTH FOR THE 12-MONTH PERIOD BEGINNING WITH DECEMBER 1944 AND ENDING WITH NOVEMBER 1945. IT IS YOUR CONTENTION THAT YOU DID NOT RECEIVE ANY OF THE 12 CHECKS COVERING SUCH ALLOTMENT PAYMENTS AND THAT, THEREFORE, THE SUM OF $1,200 IS DUE YOU IN ADDITION TO THE PAYMENTS WHICH YOU HAVE ALREADY RECEIVED.

IT APPEARS THAT A DESCRIPTION OF THE 12 CLASS E ALLOTMENT CHECKS IN QUESTION HAS BEEN FURNISHED TO YOU. THE CLASS E ALLOTMENT PAYMENT FOR DECEMBER 1944 WAS COVERED BY CHECK NO. 37,459,352, DATED JANUARY 1, 1945, FOR $100, DRAWN TO YOUR ORDER BY W. L. JOHNSON, SYMBOL NO. 252, A PHOTOCOPY OF WHICH IS ENCLOSED. THIS CHECK WAS CASHED FOR YOU BY THE REPUBLIC NATIONAL BANK OF DALLAS ON JULY 2, 1946, OR AFTER JUNE 30, 1946 (THE END OF THE FISCAL YEAR FOLLOWING THE FISCAL YEAR IN WHICH THE CHECK WAS ISSUED). AFTER PAYMENT WAS REFUSED BY THE TREASURER OF THE UNITED STATES, THE BANK FORWARDED THE CHECK TO OUR OFFICE FOR PAYMENT FROM THE TRUST FUND ENTITLED ,OUTSTANDING LIABILITIES" AND, PURSUANT TO A SETTLEMENT STATED BY OUR OFFICE, CHECK NO. 41,605,775, DATED DECEMBER 12, 1946, FOR $100, WAS ISSUED TO THE REPUBLIC NATIONAL BANK OF DALLAS IN LIEU OF CHECK NO. 37,459,352. THE RECORDS SHOW THAT YOU SUBSEQUENTLY PRESENTED CLAIM TO THE TREASURY DEPARTMENT IN CONNECTION WITH CHECK NO. 37,459,352 AND THAT SUBSTITUTE CHECK NO. 28,038,164, DATED JANUARY 22, 1962, WAS ISSUED TO YOU SINCE THE ORIGINAL CHECK APPEARED ON THE OUTSTANDING LIST. THE CLAIMS DIVISION OF OUR OFFICE UNDER DATE OF JANUARY 22, 1964, INFORMED YOU CONCERNING THIS DUPLICATE PAYMENT, AND AT THAT TIME FURNISHED A PHOTOCOPY OF CHECK NO. 28,038,164.

THE CLASS E ALLOTMENT PAYMENT FOR MAY 1945 WAS COVERED BY CHECK NO. 866,658, DATED JUNE 1, 1945, FOR $100, DRAWN TO YOUR ORDER BY E. M. SIMMONS, SYMBOL NO. 212-005. SINCE YOU DID NOT PRESENT THE CHECK FOR PAYMENT ON OR BEFORE JUNE 30, 1946 (THE END OF THE FISCAL YEAR FOLLOWING THE FISCAL YEAR IN WHICH THE CHECK WAS ISSUED), IT WAS NECESSARY FOR THE CHECK TO BE SENT TO OUR OFFICE FOR PAYMENT FROM THE TRUST FUND ENTITLED "OUTSTANDING LIABILITIES.' A PHOTOCOPY OF YOUR LETTER OF AUGUST 2, 1946, TO THE SECRETARY OF THE TREASURY CONCERNING CHECK NO. 866,658 AND A PHOTOCOPY OF THE CHECK ARE ENCLOSED. SUBSEQUENTLY, PURSUANT TO A SETTLEMENT STATED BY OUR OFFICE, CHECK NO. 41,605,774, DATED DECEMBER 12, 1946, WAS ISSUED TO YOU IN LIEU OF CHECK NO. 886,658.

AS YOU PREVIOUSLY HAVE BEEN ADVISED, THE RECORDS SHOW THAT THE OTHER 10 CLASS E ALLOTMENT CHECKS FOR THE PERIOD INVOLVED WERE NEGOTIATED IN DUE COURSE AND PAID BY THE TREASURER OF THE UNITED STATES AND THAT, AS AUTHORIZED BY LAW, SUCH CHECKS HAVE BEEN DESTROYED BECAUSE OF THEIR AGE. AN EXAMINATION OF ANY ENDORSEMENTS ON THE CHECKS, THEREFORE, IS IMPOSSIBLE.

OUR RECORDS SHOW THAT YOU HAD BEEN RECEIVING THE CLASS E ALLOTMENT CHECKS OF $100 PER MONTH FOR A PERIOD COMMENCING AT LEAST AS EARLY AS MAY 1944. YOU HAD NO REASON TO SUPPOSE THAT SUCH CHECKS WOULD BE DISCONTINUED AT ANY TIME BEFORE YOUR SON WAS REPORTED OR DECLARED DEAD. YOU HAVE ACKNOWLEDGED RECEIVING CHECKS IN JANUARY AND JUNE 1945. IT WOULD SEEM THAT IF THE OTHER 10 CHECKS IN QUESTION HAD NOT BEEN RECEIVED BY YOU, THAT WOULD HAVE BEEN A MATTER IN WHICH YOU WERE VITALLY CONCERNED AND THAT YOU WOULD HAVE MADE SOME INQUIRY AS TO THE REASONS FOR THIS LACK OF ACTION AT THIS TIME, ESPECIALLY SINCE YOU RECEIVED ONE CHECK AS LATE AS JUNE 1945, 6 MONTHS AFTER YOUR SON WAS REPORTED AS MISSING IN ACTION.

OUR FILES SHOW CONSIDERABLE CORRESPONDENCE DURING THE YEAR 1946 CONCERNING THE CHECKS ISSUED IN MAY 1944 AND IN JANUARY AND JUNE 1945, BUT IT WAS NOT UNTIL 1963 THAT YOU SPECIFICALLY QUESTIONED THE RECEIPT OF ANY CHECKS IN 1945. IT WOULD SEEM THAT YOUR BELIEF THAT YOU DID NOT RECEIVE SUCH CHECKS WOULD HAVE BEEN FOREMOST IN YOUR MIND WHEN YOU WROTE YOUR LETTERS OF MAY 31, JUNE 30 AND AUGUST 2, 1946, RELATING TO THE CLASS E ALLOTMENT CHECKS YOU HAD BEEN UNABLE TO CASH BECAUSE THEY WERE HELD TOO LONG, YET YOU DID NOT MENTION THAT MATTER IN THOSE LETTERS. ALSO, IT APPEARS THAT YOU DID NOT REFER TO ANY NONRECEIPT OF SUCH CHECKS IN YOUR CORRESPONDENCE WITH THE LATE SENATOR TOM CONNALLY, IN WHICH YOU DISCUSSED THE CHECKS RECEIVED IN MAY 1944 AND IN JANUARY AND JUNE OF 1945. IF YOU HAD CONTACTED THE PROPER AUTHORITIES AT THAT TIME, THE CANCELLED CHECKS COULD HAVE BEEN LOCATED AND THE ENDORSEMENTS THEREON CHECKED AGAINST YOUR SIGNATURE.

SECTION 2 OF THE ACT OF JUNE 22, 1926, CH. 650, 44 STAT. 761, AS AMENDED, 31 U.S.C. 122, PROVIDES IN PART, AS FOLLOWS:

"HEREAFTER ALL CLAIMS ON ACCOUNT OF ANY CHECK, CHECKS, WARRANT, OR WARRANTS APPEARING FROM THE RECORDS OF THE GENERAL ACCOUNTING OFFICE OR THE TREASURY DEPARTMENT TO HAVE BEEN PAID, SHALL BE BARRED IF NOT PRESENTED TO THE GENERAL ACCOUNTING OFFICE OR THE TREASURY OF THE UNITED STATES WITHIN SIX YEARS AFTER THE DATE OF ISSUANCE OF THE CHECK, CHECKS, WARRANT, OR WARRANTS INVOLVED. * * *"

WHILE THE FOREGOING PROVISIONS OF LAW BAR CONSIDERATION OF YOUR CLAIM, THE CIRCUMSTANCES SHOWN ABOVE WOULD FURNISH NO BASIS FOR THE PAYMENT SUCH CLAIM IN ANY EVENT.

SINCE YOU HAVE INDICATED IN YOUR LETTER OF JULY 27, 1965, THAT MR. DALFORD TODD, ATTORNEY AT LAW, HAS RECEIVED NO REPLY TO HIS LETTER TO OUR OFFICE CONCERNING YOUR CLAIM, IT MAY BE STATED THAT IN LETTER OF JUNE 4, 1965, MR. TODD WAS ADVISED THAT WHEN A CLAIMANT DESIRES TO BE REPRESENTED BEFORE OUR OFFICE BY AN ATTORNEY, THE RULES OF PROCEDURE REQUIRED THE FILING OF A POWER OF ATTORNEY AUTHORIZING SUCH REPRESENTATION. HE WAS AT THAT TIME FURNISHED A COPY OF THE LETTER WRITTEN TO YOU ON MAY 18, 1964. NO FURTHER COMMUNICATION HAS BEEN RECEIVED FROM HIM CONCERNING YOUR CLAIM.