B-86001-/S), B-89109, I-17000-694, SEP. 28, 1956

B-86001-/S), B-89109, I-17000-694, SEP. 28, 1956

TO COLONEL HAZARD H. STAY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 21, 1956, CONCERNING THE ACTION TAKEN BY US IN DECISION TO YOU DATED JULY 30, 1956, B-86001- /S), WHICH SUSTAINED THE PRIOR ACTION TAKEN ON YOUR INDEBTEDNESS TO THE UNITED STATES ON ACCOUNT OF IMPROPER PAYMENTS OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES MADE TO YOU AS FOR AN OFFICER WITH A DEPENDENT MOTHER FOR THE PERIOD AUGUST 24, 1947, TO MAY 31, 1949.

IN YOUR LETTER YOU QUESTION CERTAIN FACTS SET FORTH IN OUR DECISION AND YOU ASK THAT YOU BE PERMITTED TO SETTLE THE INDEBTEDNESS FOR YEARS 1947 AND 1948. YOU REQUEST THAT WE "HOLD IN ABEYANCE 1949 UNTIL AT SUCH TIME AS I HAVE ACCOMPLISHED THE NECESSARY STEPS TO PLACE CLAIM FOR REIMBURSEMENT OF SAID SETTLEMENT.' YOU FURTHER ASK THAT WE INSTRUCT THE AIR FORCE FINANCE CENTER, DENVER, COLORADO, TO RELEASE ALL MONEY DUE YOU, OTHER THAN THE $169.68 WHICH WAS DUE YOU FOR TRAINING PAY, AND YOU SAY THAT IN TURN YOU PROPOSE TO MAKE MONTHLY PAYMENTS OF $50 UNTIL COMPLETE SETTLEMENT HAS BEEN MADE FOR 1947 AND 1948. IN ADDITION, YOU ALSO SAY THAT YOU ARE ENTITLED TO PAYMENT OF RENTAL AND SUBSISTENCE ALLOWANCES FOR THE PERIOD JUNE 1 TO SEPTEMBER 30, 1949.

IT WAS POINTED OUT TO YOU IN THE DECISION OF JULY 30, 1956, THAT THE COURTS (SEE ODLIN V. UNITED STATES, 74 C.CLS. 633; WHITING V. UNITED STATES, 80 C.CLS. 662) HAVE HELD THAT THE FACT THAT AN OFFICER'S MONTHLY CONTRIBUTION TO HIS MOTHER WAS IN EXCESS OF HER INDEPENDENT INCOME DOES NOT OF ITSELF ESTABLISH THE FACT THAT SHE WAS DEPENDENT ON HIM FOR HER CHIEF SUPPORT, BUT THAT IT MUST BE SHOWN THAT HIS CONTRIBUTION WAS REQUIRED FOR HER NECESSARY AND PROPER SUPPORT, AND THAT IT CONSTITUTED THE CHIEF PART OF SUCH SUPPORT. IN VIEW OF THE PROVISIONS OF THE PAY ADJUSTMENT ACT OF 1942 AND ON THE BASIS OF THE RULES STATED IN THE CITED COURT DECISIONS, WE CONCLUDED THAT YOUR MOTHER WAS NOT IN FACT DEPENDENT ON YOU FOR CHIEF SUPPORT DURING THE PERIOD INVOLVED, PARTICULARLY SINCE HER INCOME FROM OTHER SOURCES ($166 AND $352 A MONTH FOR THE YEARS 1947 AND 1948) WAS MORE, NOT LESS, THAN ONE-HALF OF HER AVERAGE MONTHLY LIVING EXPENSE ($288). IT WAS FURTHER POINTED OUT THAT WHILE YOUR MOTHER'S LIVING EXPENSES AMOUNTED TO $288 PER MONTH, YOUR CONTRIBUTION TO HER ($150 A MONTH) WAS NOT USED FOR HER NECESSARY AND PROPER SUPPORT AS CONTEMPLATED BY THE LAW AND THE ABOVE-CITED COURT CASES, BUT RATHER, APPROXIMATELY $100 A MONTH OF SUCH CONTRIBUTION WAS DEPOSITED IN A SAVINGS ACCOUNT DURING THE PERIOD OCTOBER 1947 TO JULY 1949.

IN ARRIVING AT YOUR MOTHER'S AVERAGE MONTHLY INCOME ($352) FROM OTHER SOURCES FOR 1948, THERE WAS INCLUDED, CONTRARY TO YOUR BELIEF, ONLY HER ONE-THIRD INTEREST IN THE NET PROFIT OF THE SALE OF THE TIMBER ON PROPERTY LOCATED AT BIBB COUNTY, ALABAMA. THE RECORDS SHOW THE SALE PRICE OF THE TIMBER AS $9,000 AND YOUR MOTHER'S REPORTED SHARE AS $2,946.67. HER NET SHARE APPEARS TO HAVE BEEN APPROXIMATELY $2,200, AND ON THAT BASIS THE MONTHLY SUM OF $180 FROM THAT SOURCE WAS INCLUDED IN COMPUTING HER AVERAGE MONTHLY INCOME FOR 1948. IF SUCH SUM WERE EXCLUDED IN COMPUTING HER INCOME FOR THAT YEAR, HER INCOME FROM OTHER SOURCES STILL WOULD BE IN EXCESS OF ONE-HALF OF HER LIVING EXPENSES AND WOULD EXCEED THE AMOUNT OF YOUR CONTRIBUTIONS, ESPECIALLY SINCE APPROXIMATELY $100 OF THE AMOUNT YOU CONTRIBUTED MONTHLY WAS DEPOSITED IN A SAVINGS ACCOUNT AND NOT USED FOR LIVING EXPENSES.

YOUR STATEMENT THAT "THE DEPOSITS TO SAVINGS ACCOUNT WERE OF NECESSITY TO ACCUMULATE FOR A CATARACT OPERATION AND WERE USED FOR SUCH," SEEMS TO BE INCONSISTENT WITH THE FACTS OF RECORD. IN THE DECISION OF JULY 30, 1956, YOUR ATTENTION WAS INVITED TO A STATEMENT THAT YOU SUBMITTED FROM A DR. KARL B. BENKWITH, MONTGOMERY, ALABAMA, IN WHICH HE CONCLUDED THAT "CATARACT SURGERY WAS NOT ADVISED.' THAT STATEMENT, WHICH IS DATED OCTOBER 10, 1950, CLEARLY INDICATES THAT THE OPERATION, EVEN IF SUBSEQUENTLY PERFORMED AS YOU NOW INDICATE, HAD NOT BEEN PERFORMED PRIOR TO SEPTEMBER 30, 1949, WHICH INCLUDES THE ADDITIONAL PERIOD (JUNE 1 TO SEPTEMBER 30, 1949) FOR WHICH YOU ARE NOW CLAIMING INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS FOR AN OFFICER WITH A DEPENDENT MOTHER. CONTRIBUTIONS FOR DEPOSIT TO A SAVINGS ACCOUNT FOR POSSIBLE FUTURE NEED IN THE EVENT OF AN OPERATION MAY NOT BE CONSIDERED AS CONTRIBUTIONS FOR CURRENT LIVING EXPENSES OF THE DEPENDENT.

AS WE POINTED OUT IN THE DECISION OF JULY 30, 1956, APPROXIMATELY $100 A MONTH OF YOUR CONTRIBUTION TO YOUR MOTHER OF $150 WAS DEPOSITED IN A JOINT SAVINGS ACCOUNT IN THE NAME OF MRS. E. W. STAY, OR LIEUTENANT COLONEL HAZARD H. STAY, DURING THE PERIOD OCTOBER 1947 TO JULY 19, 1949. THAT BANK ACCOUNT FURTHER SHOWS, AS DISCLOSED BY OUR INVESTIGATIVE REPORT, THAT SUCH DEPOSITS CONTINUED TO BE MADE AT LEAST THROUGH JANUARY 5, 1950, WITH ONLY ONE WITHDRAWAL DURING THE PERIOD IN THE AMOUNT OF $125 MADE ON JULY 23, 1949. WHILE ADMITTING THAT YOUR MOTHER MADE THE DEPOSITS IN QUESTION, YOU CONTEND THAT SUCH ACTION ON HER PART NECESSITATED "ADDITIONAL EXPENSE TO ME IN PAYMENT OF CERTAIN LIVING EXPENSES.' YOU DO NOT FURNISH ANY ADDITIONAL EVIDENCE TO SUPPORT SUCH ALLEGATION. THE FACT THAT YOU CONTINUED TO CONTRIBUTE $150 A MONTH TO YOUR MOTHER FOR EIGHT MONTHS AFTER THE PAYMENT OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES WAS DISCONTINUED, AFFORDS NO PROPER BASIS FOR ESTABLISHING DEPENDENCY WHEN IN FACT SUCH DEPENDENCY DID NOT EXIST DURING THE PERIOD HERE INVOLVED. THE LAW AND THE CITED COURT CASES MAKE NO PROVISION, IN DETERMINING DEPENDENCY, TO ALLOW ANTICIPATED EXPENDITURES, AS IN YOUR CASE, THAT MAY OR MAY NOT ARISE IN THE FUTURE. UNDER THE LAW, THE PARENT MUST BE DEPENDENT ON THE OFFICER FOR "CHIEF SUPPORT" DURING THE SPECIFIED PERIOD THE OFFICER CLAIMS AN INCREASED ALLOWANCE ON ACCOUNT OF SUCH DEPENDENT.

UPON REVIEW OF THE MATTER, THE CONCLUSION IS REQUIRED THAT THE RECORD DOES NOT WARRANT CHANGING OUR DETERMINATION THAT YOUR MOTHER WAS NOT IN FACT DEPENDENT ON YOU FOR THE CHIEF PART OF HER SUPPORT DURING THE PERIOD AUGUST 24, 1947, TO MAY 31, 1949. ALSO, FOR THE REASONS STATED, THERE IS NO PROPER BASIS ON THE PRESENT RECORD FOR THE ALLOWANCE OF YOUR CLAIM FOR THE INCREASED ALLOWANCES FROM JUNE 1 TO SEPTEMBER 30, 1949.

AT THE TIME OF OUR DECISION TO YOU WE WERE NOT AWARE THAT YOU HAD MADE AN ADDITIONAL REMITTANCE TO OUR CLAIMS DIVISION BY CHECK IN THE AMOUNT OF $100 TO PARTIALLY LIQUIDATE YOUR INDEBTEDNESS. WE HAVE SINCE BEEN ADVISED BY THE AIR FORCE FINANCE CENTER, DENVER, COLORADO, THAT ACTION HAS BEEN TAKEN BY THAT OFFICE TO HAVE YOUR TRAINING PAY ($169.68) APPLIED AGAINST YOUR INDEBTEDNESS. ON THAT BASIS, YOUR ORIGINAL INDEBTEDNESS OF $1,239.70, LESS $362.70, $169.68 AND $100, IS NOW REDUCED TO $607.32. YOUR PROPOSAL TO LIQUIDATE THE INDEBTEDNESS BY PAYMENTS OF $50 A MONTH IS SATISFACTORY AND SUCH PAYMENTS SHOULD BE COMMENCED IMMEDIATELY.