B-136202, MAY 6, 1960

B-136202, MAY 6, 1960

TO MR. JAMES B. GRIMMER:

UNDER DATE OF APRIL 20, 1960, WE REPLIED TO YOUR LETTER OF APRIL 11, 1960, IN WHICH YOU REQUESTED THAT IN THE SETTLEMENT OF A CERTAIN CLAIM FILED BY YOU WITH THE U.S. ARMY FINANCE CENTER ANY AMOUNT ALLOWED BE APPLIED AGAINST YOUR INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $808.33, ARISING OUT OF OVERPAYMENTS MADE TO YOU WHILE SERVING IN THE ARMY. IN OUR LETTER WE ADVISED YOU THAT NO CLAIM FILED BY YOU AND REFERRED HERE BY THE ARMY FINANCE CENTER REMAINS UNSETTLED, AND WE REQUESTED THAT YOU PROMPTLY ADVISE US AS TO THE NATURE OF YOUR CLAIM AND THE DATE IT WAS FILED WITH THE ARMY FINANCE CENTER.

THE ARMY FINANCE CENTER HAS NOW TRANSMITTED HERE FOR CONSIDERATION YOUR LETTER DATED DECEMBER 18, 1959, SUBMITTING A CLAIM FOR DEPENDENT (MOTHER) ALLOWANCES DURING THE PERIOD MARCH 1 (31), 1942, TO JANUARY 13, 1943, WHILE YOU WERE UNDERGOING TRAINING AS AN AVIATION CADET. IT IS ASSUMED THAT THIS WAS THE CLAIM REFERRED TO IN YOUR LETTER OF APRIL 11, 1960.

WE KNOW OF NO LAW WHICH AUTHORIZED THE PAYMENT OF ANY ALLOWANCES TO ARMY AVIATION CADETS FOR OR ON ACCOUNT OF DEPENDENTS DURING THE PERIOD YOU SERVED AS SUCH. UNDER THE PROVISIONS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381; THE DEPENDENT OR DEPENDENTS OF ANY ENLISTED MAN OF THE FOURTH, FIFTH, SIXTH, OR SEVENTH GRADES IN THE ARMY OF THE UNITED STATES, THE UNITED STATES NAVY, THE MARINE CORPS, OR THE COAST GUARD, WERE ENTITLED TO RECEIVE A MONTHLY FAMILY ALLOWANCE FOR ANY PERIOD DURING WHICH SUCH ENLISTED MAN WAS IN THE ACTIVE MILITARY OR NAVAL SERVICE OF THE UNITED STATES ON OR AFTER JUNE 1, 1942, DURING THE EXISTENCE OF ANY WAR DECLARED BY CONGRESS AND THE SIX MONTHS IMMEDIATELY FOLLOWING THE TERMINATION OF ANY SUCH WAR.

RESPECTING THE FOREGOING ACT, THE OFFICE OF DEPENDENCY BENEFITS HELD THAT AN AVIATION CADET WAS NOT AN ENLISTED MAN OF THE FOURTH, FIFTH, SIXTH, OR SEVENTH GRADES IN THE ARMY AND WAS, THEREFORE, NOT ENTITLED TO THE BENEFITS OF THE CITED ACT. BY THE ACT OF OCTOBER 28, 1943, 57 STAT. 577, THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942 WAS AMENDED SO AS TO PROVIDE THAT THE TERMS "MAN" AND "ENLISTED MAN" SHOULD MEAN ANY ENLISTED INDIVIDUAL OF THE FIRST TO SEVENTH GRADES, BOTH INCLUSIVE, AND ANY AVIATION CADET IN THE SERVICES MENTIONED IN SECTION 101 OF THE CITED ACT. HOWEVER, THE AMENDING ACT PROVIDED IT SHOULD BE EFFECTIVE FROM THE FIRST DAY OF THE CALENDAR MONTH FOLLOWING THE MONTH OF ENACTMENT, THAT IS TO SAY, NOVEMBER 1, 1943. IT WILL BE SEEN FROM THE FOREGOING THAT YOUR CLAIM FOR FAMILY ALLOWANCES ENDED PRIOR TO THAT DATE. ACCORDINGLY, THERE APPEARS TO BE NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

ALSO, WITH RESPECT TO THE DATE THAT PAYMENTS OF FAMILY ALLOWANCES TO THE DEPENDENTS OF ENLISTED MEN OF THE ARMY WERE AUTHORIZED AND THE DATE THAT APPLICATION THEREFOR MUST HAVE BEEN MADE, SECTION 107 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, 37 U.S.C. (1940 ED. SUPP. II) 207, PROVIDED AS FOLLOWS:

"ANY MONTHLY FAMILY ALLOWANCE PROVIDED FOR BY THIS TITLE SHALL BE PAID FOR THE PERIOD BEGINNING WITH THE DAY ON WHICH APPLICATION THEREFOR IS FILED OR THE DAY ON WHICH THE DEPENDENT OR DEPENDENTS FIRST BECOME ENTITLED THERETO UNDER SECTION 201 OF THIS TITLE, WHICHEVER IS LATER, AND ENDING WITH THE DAY ON WHICH THE DISBURSING OFFICER PAYING THE ALLOWANCE RECEIVES NOTICE OF A CHANGE IN STATUS OF THE ENLISTED MAN CONCERNED WHICH TERMINATED THE RIGHT OF HIS DEPENDENT OR DEPENDENTS TO RECEIVE SUCH ALLOWANCE OR NOTICE OF THE DISCHARGE FROM OR DEATH IN THE SERVICE OF SUCH ENLISTED MAN: PROVIDED, THAT IN THE CASE OF ANY DEPENDENT OF AN ENLISTED MAN IN ACTIVE SERVICE ON JUNE 23, 1942, IF APPLICATION IS FILED FOR A MONTHLY FAMILY ALLOWANCE WITHIN SIX MONTHS AFTER SUCH DATE OR WITHIN SUCH LONGER PERIOD AS MAY BE PRESCRIBED IN SPECIAL BASES BY THE SECRETARY OF THE DEPARTMENT CONCERNED, THE PERIOD FOR WHICH SUCH FAMILY ALLOWANCE SHALL BE PAID SHALL BEGIN WITH THE DATE ON WHICH SUCH DEPENDENT FIRST BECOMES ENTITLED THERETO UNDER SECTION 201 OF THIS TITLE: PROVIDED FURTHER, THAT THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY MAY, BY REGULATIONS PRESCRIBED BY THEM JOINTLY, FIX THE DATES OF COMMENCEMENT AND TERMINATION OF ANY SUCH FAMILY ALLOWANCE ON ANY DATES NOT MORE THAN ONE MONTH BEFORE OR ONE MONTH AFTER THE DATES ABOVE PRESCRIBED. SUCH REGULATIONS SHALL IN NO EVENT PROVIDE FOR THE PAYMENT OF SUCH ALLOWANCES FOR ANY PERIOD PRIOR TO JUNE 1, 1942, OR FOR ANY PERIOD WHEN THE UNITED STATES IS NOT ENGAGED IN A WAR DECLARED BY CONGRESS AND WHICH IS MORE THAN SIX MONTHS LATER THAN THE DATE OF TERMINATION OF ANY SUCH WAR.'

FOR THE REASONS SET FORTH IN OUR LETTER OF FEBRUARY 9, 1960, YOU APPEAR TO BE PRESENTLY INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $808.33. PLEASE ADVISE US WITHIN TWENTY DAYS FROM THE DATE OF THIS LETTER AS TO YOUR INTENTIONS RESPECTING PAYMENT OF THE AMOUNT DUE.