B-181630, APR 4, 1975

B-181630, APR 4, 1975

CLAIM FOR CHECK REPRESENTING FAMILY ALLOWANCE PAYMENTS DUE INCIDENT TO MILITARY SERVICE OF CLAIMANT'S LATE HUSBAND WHICH WAS NEVER RECEIVED IN THE GENERAL ACCOUNTING OFFICE IS DENIED PURSUANT TO PARAGRAPH 10.1, TITLE 4 OF G.A.O. POLICY AND PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES, SINCE RECORDS WERE DESTROYED BY FINANCE CENTER, UNITED STATES ARMY, IN ACCORDANCE WITH LAW AND AVAILABLE INFORMATION IS INSUFFICIENT TO ESTABLISH LIABILITY OF UNITED STATES AND MEMBER'S RIGHT TO PAYMENT.

CLAIM FOR FAMILY ALLOWANCE - TEODORA P. JACINTO:

THIS ACTION IS IN RESPONSE TO CORRESPONDENCE, WITH ENCLOSURES, FROM MRS. TEODORA P. JACINTO, WHEREIN SHE REQUESTS RECONSIDERATION OF OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT OF JANUARY 7, 1974, CONCERNING HER CLAIM FOR A FAMILY ALLOWANCE BELIEVED DUE INCIDENT TO THE MILITARY SERVICE OF HER LATE HUSBAND, WENCESLAO JACINTO, ASN 10 626 595, DURING WORLD WAR II.

THE RECORD SHOWS THAT MRS. JACINTO'S CLAIM WAS DISALLOWED BECAUSE THE RECORDS NECESSARY TO EITHER PROVE OR DISPROVE HER CLAIM HAD BEEN DESTROYED PURSUANT TO LAW OR HAD BECOME UNAVAILABLE DUE TO A LAPSE OF TIME. MRS. JACINTO'S RESPONSE, DATED APRIL 22, 1974, STATES THAT SHE RECEIVED A LETTER OF NOTICE FROM THE UNITED STATES ARMY FINANCE CENTER, ADVISING HER THAT PAYMENT OF HER CLAIM FOR A FAMILY ALLOWANCE PAYMENT WOULD BE MADE. HOWEVER, THE NOTICE WAS DESTROYED AND THE ONLY DOCUMENT REMAINING IS MRS. JACINTO'S COPY OF HER ORIGINAL APPLICATION FOR SUCH BENEFITS FILED IN 1947.

UPON RECEIPT OF MRS. JACINTO'S CLAIM BY THIS OFFICE, ATTEMPTS WERE MADE TO LOCATE HER RECORDS THROUGH THE ARMY FINANCE CENTER TO SUBSTANTIATE HER CLAIM. WE HAVE BEEN INFORMED THAT ALL RECORDS FOR THE PERIOD OF MRS. JACINTO'S CLAIM HAVE BEEN DESTROYED IN ACCORDANCE WITH DISPOSAL REGULATIONS AND THEREFORE IT CANNOT BE DETERMINED WHETHER A CHECK IN PAYMENT WAS EVER ISSUED IN THE CASE.

PARAGRAPH 10.1, TITLE 4 OF THE GENERAL ACCOUNTING OFFICE POLICY AND PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES PROVIDES AS FOLLOWS:

"CLAIMS ARE SETTLED ON THE BASIS OF THE FACTS AS ESTABLISHED BY THE GOVERNMENT AGENCY CONCERNED AND BY EVIDENCE SUBMITTED BY THE CLAIMANT. SETTLEMENTS ARE FOUNDED ON A DETERMINATION OF THE LEGAL LIABILITY OF THE UNITED STATES UNDER THE FACTUAL SITUATION INVOLVED AS ESTABLISHED BY THE WRITTEN RECORD. THE BURDEN IS ON THE CLAIMANTS TO ESTABLISH THE LIABILITY OF THE UNITED STATES, AND THE CLAIMANTS' RIGHT TO PAYMENT. THE SETTLEMENT OF CLAIM IS BASED UPON THE WRITTEN RECORD ONLY."

WHILE THE BURDEN OF PROOF AS TO THE VALIDITY OF A CLAIM AGAINST THE UNITED STATES, GENERALLY, IS ON THE PERSON ASSERTING SUCH CLAIM, INFORMATION AS TO ITS EXISTENCE IS USUALLY FOUND IN RECORDS MAINTAINED BY THE GOVERNMENT. HOWEVER, IT HAS LONG BEEN ESTABLISHED THAT WHERE, AS IN THE PRESENT CASE, THE RECORDS NECESSARY JUSTIFY OR REFUTE A CLAIM HAVE BEEN DESTROYED PURSUANT TO LAW, OR HAVE BECAME UNAVAILABLE DUE TO THE LAPSE OF TIME, THE ACCOUNTING OFFICERS OF THE GOVERNMENT MAY NOT GIVE THE MATTER FAVORABLE CONSIDERATION WHERE THE CLAIMANT HAS FAILED TO ACT THEREON FOR A LONG PERIOD OF YEARS. SEE B-180581, JANUARY 16, 1975. THUS, WHERE THERE IS INSUFFICIENT INFORMATION GIVEN BY A CLAIMANT TO IDENTIFY AND ESTABLISH A CLAIM, THERE IS NO FURTHER ACTION THAT THIS OFFICE CAN TAKE IN THE MATTER.

IN THE PRESENT CASE, WHILE THE COPY OF THE APPLICATION FOR DEPENDENCY BENEFITS SUBMITTED BY MRS. JACINTO PROVIDES EVIDENCE THAT SHE PROPERLY FILED FOR SUCH BENEFITS IN 1947, SUCH DOCUMENT DOES NOT ESTABLISH THAT ANY AMOUNT WHICH MAY HAVE BECOME PAYABLE WAS NOT PAID AND RECEIVED BY HER.

ACCORDINGLY, THE ACTION TAKEN BY OUR TRANSPORTATION AND CLAIMS DIVISION IN THIS CASE, IS SUSTAINED.