B-86001/S), I-17000-2780, DEC. 29, 1955

B-86001/S): Dec 29, 1955

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TO THE HONORABLE SECRETARY OF THE ARMY: REFERENCE IS MADE TO LETTER DATED JULY 12. WHICH PAYMENTS WERE QUESTIONED IN A REPORT OF INVESTIGATION TRANSMITTED TO YOU WITH OUR LETTER OF AUGUST 25. AMONG THE ENCLOSURES IS A STATEMENT BY THE OFFICER'S ATTORNEY. THAT THE OFFICER SHOULD NOT BE REQUIRED TO REFUND THE AMOUNT OF THE QUESTIONED PAYMENTS BECAUSE THE AMOUNT OF HIS AVERAGE MONTHLY CONTRIBUTION TO THE SUPPORT OF HIS MOTHER WAS GREATER THAN THE AVERAGE MONTHLY AMOUNT OF HER INCOME FROM SOURCES OTHER THAN HIS CONTRIBUTIONS. THAT HER AVERAGE MONTHLY INCOME WAS LESS. HER AVERAGE MONTHLY LIVING EXPENSES AND HIS AVERAGE MONTHLY CONTRIBUTION WERE GREATER. SAVINGS COULD HAVE RESULTED. THE AMOUNTS DEPOSITED BY THE MOTHER IN A JOINT SAVINGS ACCOUNT IN THE NAMES OF HERSELF AND THE OFFICER DURING THE PERIOD THE INCREASED ALLOWANCES WERE CLAIMED ACTUALLY REPRESENTED FUNDS REMITTED BY HIM FOR THAT PURPOSE OVER AND ABOVE THE AMOUNTS HE CONTRIBUTED TO HER SUPPORT BY MEANS OF ALLOTMENTS FROM HIS PAY.

B-86001/S), I-17000-2780, DEC. 29, 1955

TO THE HONORABLE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER DATED JULY 12, 1955, WITH ENCLOSURES, FROM THE CHIEF OF FINANCE, CONCERNING INCREASED RENTAL AND SUBSISTENCE ALLOWANCE PAYMENTS MADE TO FIRST LIEUTENANT PHILIP A. GILBERT, O-1 337 291, ARMY OF THE UNITED STATES, AS FOR AN OFFICER WITH A DEPENDENT MOTHER, WHICH PAYMENTS WERE QUESTIONED IN A REPORT OF INVESTIGATION TRANSMITTED TO YOU WITH OUR LETTER OF AUGUST 25, 1954. THE CHIEF OF FINANCE REQUESTED RECONSIDERATION OF THE MATTER IN VIEW OF THE ADDITIONAL INFORMATION CONTAINED IN THE ENCLOSURES.

AMONG THE ENCLOSURES IS A STATEMENT BY THE OFFICER'S ATTORNEY, TOGETHER WITH REVISED ESTIMATES OF THE MOTHER'S INCOME AND LIVING EXPENSES. THE ATTORNEY ARGUES, INSOFAR AS HERE MATERIAL, THAT THE OFFICER SHOULD NOT BE REQUIRED TO REFUND THE AMOUNT OF THE QUESTIONED PAYMENTS BECAUSE THE AMOUNT OF HIS AVERAGE MONTHLY CONTRIBUTION TO THE SUPPORT OF HIS MOTHER WAS GREATER THAN THE AVERAGE MONTHLY AMOUNT OF HER INCOME FROM SOURCES OTHER THAN HIS CONTRIBUTIONS, AND THAT HER AVERAGE MONTHLY INCOME WAS LESS, AND HER AVERAGE MONTHLY LIVING EXPENSES AND HIS AVERAGE MONTHLY CONTRIBUTION WERE GREATER, THAN THE AMOUNTS ESTIMATED BY HER AT THE TIME OF OUR INVESTIGATION. THE ATTORNEY ALSO ARGUES, IN EFFECT, THAT WHILE, BASED ON THE FIGURES CONTAINED IN THE OFFICER'S CONTEMPORANEOUS CERTIFICATES OF DEPENDENCY, SAVINGS COULD HAVE RESULTED, THE AMOUNTS DEPOSITED BY THE MOTHER IN A JOINT SAVINGS ACCOUNT IN THE NAMES OF HERSELF AND THE OFFICER DURING THE PERIOD THE INCREASED ALLOWANCES WERE CLAIMED ACTUALLY REPRESENTED FUNDS REMITTED BY HIM FOR THAT PURPOSE OVER AND ABOVE THE AMOUNTS HE CONTRIBUTED TO HER SUPPORT BY MEANS OF ALLOTMENTS FROM HIS PAY. NO TRANSCRIPT OF THE JOINT BANK ACCOUNT WAS SUBMITTED. SOME OF THE ALLEGED ADDITIONAL LIVING EXPENSE ITEMS ARE SUPPORTED BY RECEIPTS. THE MOTHER'S AVERAGE MONTHLY INCOME FROM SOURCES OTHER THAN THE OFFICER'S AVERAGE MONTHLY CONTRIBUTION IS SUPPORTED BY COPIES OF THE FEDERAL INCOME TAX RETURNS FILED BY HER FOR THE YEARS 1945, 1946, 1947, AND 1948, IN WHICH "DEPRECIATION" AND OPERATING EXPENSES OF HER APARTMENT HOUSE WERE CLAIMED. IN THE REVISED ESTIMATE OF THE MOTHER'S AVERAGE MONTHLY NET INCOME THE "DEPRECIATION" AND ADDITIONAL OPERATING EXPENSES ARE CLAIMED. NO EVIDENCE SUBSTANTIATING REMITTANCES BY THE OFFICER IN ADDITION TO THE ALLOTMENT FROM HIS PAY HAS BEEN FURNISHED.

IT HAS BEEN HELD THAT THE FACT THAT AN OFFICER'S MONTHLY CONTRIBUTION IS IN EXCESS OF THE ALLEGED DEPENDENT'S INDEPENDENT INCOME DOES NOT OF ITSELF ESTABLISH THAT THE DEPENDENT IS ACTUALLY DEPENDENT ON THE OFFICER FOR CHIEF SUPPORT, BUT IT MUST BE SHOWN THAT THE OFFICER'S CONTRIBUTIONS WERE REQUIRED FOR THE DEPENDENT'S NECESSARY AND PROPER LIVING EXPENSES AND CONSTITUTED OVER ONE-HALF OF THE DEPENDENT'S LIVING EXPENSES. WHITING V. UNITED STATES, 80 C.CLS. 662; ODLIN V. UNITED STATES, 74 ID. 633, 638. IT HAS BEEN HELD ALSO THAT UNDER THE DEPENDENCY ALLOWANCE STATUTES AMOUNTS CLAIMED AS THE DEPRECIATION OF PROPERTY HELD FOR THE PRODUCTION OF INCOME MAY NOT BE EXCLUDED FROM THE AVERAGE MONTHLY INCOME NORMALLY AVAILABLE FOR CURRENT SUPPORT OF AN ALLEGED DEPENDENT IN DETERMINING WHETHER THE PERSON WAS, OR IS, IN FACT DEPENDENT ON THE OFFICER FOR CHIEF SUPPORT OR EVER HELD OF HIS OR HER SUPPORT. 34 COMP. GEN. 672.

UNDER THOSE RULES, AND EVEN IF, WITHOUT ACCEPTABLE SUPPORTING EVIDENCE, THE OFFICER COULD BE GIVEN THE BENEFIT OF HIS ATTORNEY'S CONTENTIONS RESPECTING THE AVERAGE MONTHLY AMOUNT OF HIS CONTRIBUTIONS AND THE AVERAGE MONTHLY AMOUNT OF THE MOTHER'S LIVING EXPENSES AND INCOME, CONTRARY TO THE OFFICER'S ORIGINAL CERTIFICATES AND OTHER EVIDENCE IN THE CASE, THE RECORD WOULD STILL SHOW THAT THE MOTHER'S INCOME (EXCLUDING THE DEPRECIATION CHARGES) WAS MORE THAN HALF OF HER LIVING EXPENSES (EVEN AS PRESENTLY CLAIMED) AND, HENCE, THAT SHE WAS NOT DEPENDENT ON HIM FOR HER CHIEF SUPPORT. IN THE CIRCUMSTANCES, NO BASIS IS FOUND FOR CHANGING THE CONCLUSION PREVIOUSLY REACHED IN THE MATTER.

WE WILL APPRECIATE INFORMATION AS TO THE AMOUNTS COLLECTED BY THE DEPARTMENT OF THE ARMY ON ACCOUNT OF THE IMPROPER PAYMENTS MADE TO THE OFFICER.