B-130213, B-86001 (N), I-17000-2708, MAR. 7, 1957

B-130213, B-86001 (N), I-17000-2708, MAR. 7, 1957

TO MR. FREDERICK N. NAUHAUS:

FURTHER REFERENCE IS MADE TO LETTER DATED NOVEMBER 28, 1956, WRITTEN IN YOUR BEHALF BY MR. THOMAS C. LINDHOLM, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES RESULTING FROM THE RECEIPT OF DEPENDENCY ALLOWANCE PAYMENTS AS FOR AN OFFICER WITH A DEPENDENT MOTHER DURING THE PERIOD JUNE 1, 1948, THROUGH JANUARY 17, 1950, AND FOR THE AMOUNT OF SUCH ALLOWANCES INCLUDED IN PAYMENT FOR 26 DAYS' ACCRUED LEAVE UPON RELEASE FROM ACTIVE DUTY.

SUCH PAYMENTS, WHICH WERE MADE ON THE BASIS OF YOUR CERTIFICATES RESPECTING THE DEPENDENCY STATUS OF YOUR MOTHER, WERE QUESTIONED IN A REPORT OF INVESTIGATION, COPIES OF WHICH WERE TRANSMITTED TO THE SECRETARY OF THE AIR FORCE WITH OUR LETTER OF DECEMBER 28, 1953. THE INVESTIGATION DISCLOSED THAT YOUR FATHER, MOTHER, AND FIVE MINOR CHILDREN RESIDED IN A HOUSE PROVIDED RENT FREE AND THAT THE FAMILY LIVING EXPENSES OTHERWISE AVERAGED ABOUT $204 A MONTH. IT WAS ALSO DISCLOSED THAT YOUR FATHER'S INCOME (SALARY AND GRATUITIES) AVERAGED ABOUT $152 A MONTH AND THAT YOU CONTRIBUTED $100 A MONTH TO THE SUPPORT OF THE FAMILY. SINCE YOUR FATHER'S AVERAGE MONTHLY INCOME WAS MORE, AND YOUR AVERAGE MONTHLY CONTRIBUTION WAS LESS, THAN HALF OF THE AVERAGE MONTHLY FAMILY LIVING EXPENSES, IT WAS CONCLUDED THAT YOUR MOTHER WAS NOT IN FACT DEPENDENT ON YOU FOR CHIEF SUPPORT; THAT IS, FOR OVER HALF OF HER SUPPORT. UPON DEMAND BY THE AIR FORCE FINANCE CENTER FOR REFUND OF THE AMOUNT OF THE QUESTIONED PAYMENTS, YOU DENIED LIABILITY CONTENDING THAT THE DEPENDENCY STATUS OF YOUR MOTHER SHOULD NOT BE DETERMINED ON THE BASIS OF THE FAMILY UNIT AND THAT IN ANY EVENT THE AMOUNT OF THE OVERPAYMENT SHOULD BE REDUCED BY ANY RENTAL ALLOWANCES PAYABLE TO YOU AS AN OFFICER WITHOUT DEPENDENTS FOR SUCH PERIODS AS YOU WERE NOT FURNISHED GOVERNMENT QUARTERS.

THE GIST OF MR. LINDHOLM'S LETTER IS THAT, DUE TO THE CRITICAL FINANCIAL STATUS OF YOUR PARENTS DURING THE PERIOD THE QUESTIONED PAYMENTS WERE MADE, YOUR CONTRIBUTION OF $100 A MONTH WAS REQUIRED FOR THE MAINTENANCE OF THE HOUSEHOLD. HE CONCLUDED BY SUGGESTING THAT THE INDEBTEDNESS BE WAIVED PURSUANT TO THE PROVISIONS OF SECTION 13 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 797, 50 U.S.C. APP., 2213, AND, ALSO CITES HAAS V. UNITED STATES, 66 C.CLS. 718, TOMLINSON V. UNITED STATES, 66 C.CLS. 697, AND ODLIN V. UNITED STATES, 74 C.CLS. 633.

WHILE IN THE CITED CASES THE COURT EXPRESSED THE OPINION THAT THE LAW AUTHORIZING THE PAYMENT OF INCREASED ALLOWANCES TO AN OFFICER WITH A DEPENDENT MOTHER DID NOT INTEND THAT THE MOTHER'S SITUATION NEED BE ONE WHERE SHE HAD ONLY THE BARE NECESSITIES OF LIFE, BUT THAT IT CONTEMPLATED CONSIDERATION OF HER STATION IN LIFE, THE QUESTION IN EACH CASE IS WHETHER THE MOTHER IS IN FACT DEPENDENT FOR CHIEF SUPPORT. IT WILL BE NOTED THAT IN THE TOMLINSON AND HAAS CASES IT WAS HELD THAT THE MOTHERS THERE INVOLVED WERE IN FACT DEPENDENT ON THEIR OFFICER SONS BECAUSE THE SONS' AVERAGE MONTHLY CONTRIBUTIONS TO THE SUPPORT OF THEIR MOTHERS WERE MORE AND THE MOTHERS' AVERAGE MONTHLY INCOMES WERE LESS THAN HALF OF THEIR AVERAGE MONTHLY LIVING EXPENSES. IT WILL BE NOTED, ALSO, THAT IN THE ODLIN CASE IT WAS HELD THAT THE CLAIMING OFFICER'S MOTHER WAS NOT IN FACT DEPENDENT ON HIM FOR HER CHIEF SUPPORT BECAUSE HE HAD FAILED TO ESTABLISH THAT HIS CONTRIBUTION WAS REQUIRED FOR THE MOTHER'S NECESSARY AND PROPER SUPPORT AND THAT IT CONSTITUTED THE CHIEF PART OF SUCH SUPPORT.

WE HAVE HELD THAT, WHERE AN OFFICER'S MOTHER AND FATHER LIVE TOGETHER DURING THE PERIOD THE INCREASED ALLOWANCE PAYMENTS ARE MADE, THE DEPENDENCY STATUS OF EITHER PARENT MUST BE CONSIDERED ON THE BASIS OF THE FAMILY UNIT. THIS IS PREDICATED ON THE THEORY THAT ORDINARILY THE FAMILY INCOME MUST BE CONSIDERED AS A GENERAL FUND FOR THE SUPPORT OF BOTH PARENTS AND MINOR CHILDREN, IF ANY, LIVING AT HOME. HENCE, WHILE AN OFFICER MAY CLAIM INCREASED ALLOWANCES ON ACCOUNT OF EITHER OR BOTH PARENTS, NEITHER MAY BE CONSIDERED AS IN FACT DEPENDENT ON THE CLAIMING OFFICER FOR CHIEF SUPPORT WHERE THEIR OTHER INCOME AMOUNTS TO MORE THAN HALF OF THEIR ACTUAL LIVING EXPENSES OR WHERE THE OFFICER'S AVERAGE MONTHLY CONTRIBUTION IS LESS THAN THE AVERAGE MONTHLY FAMILY INCOME. COMPARE SPALDING V. UNITED STATES, 116 C.CLS. 803. THIS WAS THE RULE PRIOR TO THE CAREER COMPENSATION ACT OF 1949 AS WELL AS AFTER THE DATE OF THAT ACT AND HAS BEEN ADOPTED BY ALL OF THE UNIFORMED SERVICES.

AS EXPLAINED TO YOU IN OUR CLAIMS DIVISION LETTER OF OCTOBER 4, 1956, THE PRESENT RECORD AFFORDS NO BASIS FOR CREDITING YOU WITH RENTAL ALLOWANCE AS AN OFFICER WITHOUT DEPENDENTS FOR ANY PART OF THE PERIOD JUNE 1, 1948, TO THE DATE OF YOUR RELEASE FROM ACTIVE DUTY. IF YOU ARE ABLE TO FURNISH ANY EVIDENCE THAT QUARTERS WERE NOT AVAILABLE DURING ANY PART OF THAT PERIOD, IT WILL BE GIVEN CAREFUL CONSIDERATION. RESPECTING THE SUGGESTION THAT YOUR INDEBTEDNESS MIGHT BE WAIVED PURSUANT TO THE PROVISIONS OF SECTION 13 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, YOUR ATTENTION IS INVITED TO THE FACT THAT THE WAIVER AUTHORITY CONFERRED ON THE COMPTROLLER GENERAL UNDER THE SAID SECTION 13 IS LIMITED TO "INDEBTEDNESSES GROWING OUT OF ERRONEOUS PAYMENTS OF ALLOWANCES UNDER THE AUTHORITY OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT, AS AMENDED.' SINCE THE INDEBTEDNESS IN YOUR CASE DID NOT GROW OUT OF ERRONEOUS PAYMENTS OF ALLOWANCES UNDER AUTHORITY OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED--- THE ERRONEOUS PAYMENTS HAVING BEEN MADE TO YOU UNDER THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359, AS AMENDED, OR THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802--- WE HAVE NO AUTHORITY UNDER THE 1950 ACT TO WAIVE YOUR INDEBTEDNESS. SEE 33 COMP. GEN. 309, 313.

SINCE, DURING THE PERIOD THE ERRONEOUS PAYMENTS WERE MADE, YOUR AVERAGE MONTHLY CONTRIBUTION OF $100 NOT ONLY WAS LESS THAN HALF THE AVERAGE MONTHLY FAMILY LIVING EXPENSES, BUT WAS LESS THAN THE AVERAGE MONTHLY FAMILY INCOME, NEITHER YOUR MOTHER NOR YOUR FATHER MAY BE CONSIDERED AS HAVING BEEN IN FACT DEPENDENT ON YOU "FOR HIS OR HER CHIEF SUPPORT" OR "FOR OVER HALF OF HIS OR HER SUPPORT" WITHIN THE MEANING OF THOSE TERMS AS USED IN THE GOVERNING STATUTES. ACCORDINGLY, UNLESS WITHIN 30 DAYS THERE IS SUBMITTED EVIDENCE CONTROVERTING THAT PREVIOUSLY DEVELOPED, OR THE AMOUNT OF THE ERRONEOUS PAYMENTS IS REMITTED, OR ARRANGEMENTS ARE MADE TO LIQUIDATE THE INDEBTEDNESS BY REGULAR INSTALLMENT PAYMENTS, A DEBT CHARGE WILL BE RAISED AGAINST YOU AND THE MATTER WILL BE REFERRED TO THE DEPARTMENT OF JUSTICE FOR COLLECTION ACTION.

ANY ADDITIONAL EVIDENCE OR REMITTANCE SHOULD BE MAILED TO THE UNITED STATES GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION, POST OFFICE BOX 2610, WASHINGTON 13, D.C. ..END :