B-143765, OCT. 7, 1960

B-143765: Oct 7, 1960

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GARSHVA: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 6. IT APPEARS THAT A FAMILY ALLOWANCE APPLICATION WAS FILED BY YOU FOR YOUR MOTHER. PROVIDED THAT FOR ANY PERIOD DURING WHICH ANY ENLISTED MAN WAS IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES. IT WAS THE DEPENDENT OR DEPENDENTS OF THE ENLISTED MEN. WHO WERE ENTITLED TO THE FAMILY ALLOWANCE PAYMENTS. THERE IS NO AUTHORITY FOR THE REFUND TO THE ENLISTED MAN OF THE AMOUNTS DEDUCTED FROM HIS PAY AS HIS CONTRIBUTION. IN WHICH YOU INDICATED THAT YOUR MOTHER IS DECEASED. YOU STATE THAT YOU HAVE BEEN TRYING TO OBTAIN THE INFORMATION REQUESTED OF YOU BUT THAT YOU HAVE BEEN UNSUCCESSFUL IN THE MATTER. THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT REQUIRES THAT WE PROCEED ON THE BASIS THAT THE DEPENDENT IS ALIVE UNTIL THE FACT OF HER DEATH IS ESTABLISHED.

B-143765, OCT. 7, 1960

TO MR. NAPOLEON G. GARSHVA:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 6, 1960, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT DATED FEBRUARY 25, 1954, WHICH DISALLOWED YOUR CLAIM FOR THE PROCEEDS OF SUBSTITUTE CHECK NO. 262,921, DATED MARCH 19, 1952, DRAWN BY PAUL D. BANNING, SYMBOL NO. 891-894, IN FAVOR OF LEOKADIJA GARSVIENE, IN THE AMOUNT OF $111.

IT APPEARS THAT A FAMILY ALLOWANCE APPLICATION WAS FILED BY YOU FOR YOUR MOTHER, MRS. LEOKADIJA GARSVIENE, INCIDENT TO YOUR SERVICE AS AN ENLISTED MAN, ARMY OF THE UNITED STATES, SERVICE NO. 11 048 273, UNDER THE PROVISIONS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381, AS AMENDED. THE SUBSTITUTE CHECK, IN THE AMOUNT OF $111, REPRESENTS THE FAMILY ALLOWANCE PAYMENTS APPROVED FOR YOUR DEPENDENT FOR THE PERIOD APRIL 1 THROUGH JUNE 30, 1945.

THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381, AS AMENDED BY THE ACT OF OCTOBER 26, 1943, 57 STAT. 577, PROVIDED THAT FOR ANY PERIOD DURING WHICH ANY ENLISTED MAN WAS IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, HIS DEPENDENT OR DEPENDENTS SHOULD BE ENTITLED TO RECEIVE A MONTHLY FAMILY ALLOWANCE CONSISTING OF THE GOVERNMENT'S CONTRIBUTION AND A CERTAIN AMOUNT ($22 PER MONTH) TO BE CHARGED AGAINST THE PAY OF THE ENLISTED MAN. UNDER THE LAW, IT WAS THE DEPENDENT OR DEPENDENTS OF THE ENLISTED MEN, AND NOT THE ENLISTED MAN HIMSELF, WHO WERE ENTITLED TO THE FAMILY ALLOWANCE PAYMENTS. HENCE, THERE IS NO AUTHORITY FOR THE REFUND TO THE ENLISTED MAN OF THE AMOUNTS DEDUCTED FROM HIS PAY AS HIS CONTRIBUTION, SO LONG AS IT APPEARS THAT HIS DEPENDENT OR DEPENDENTS MAY BE ALIVE AND ENTITLED TO THE ALLOWANCE.

IN RESPONSE TO YOUR LETTER OF FEBRUARY 8, 1956, IN WHICH YOU INDICATED THAT YOUR MOTHER IS DECEASED, WE ADDRESSED A LETTER TO YOU DATED MARCH 14, 1956, REQUESTING THAT YOU FURNISH US WITH EVIDENCE OF HER DEATH IN ORDER THAT FURTHER CONSIDERATION COULD BE GIVEN THE MATTER WITH RESPECT TO POSSIBLE REFUND OF YOUR CONTRIBUTION TO THE FAMILY ALLOWANCE PAYMENTS COVERED BY CHECK NO. 262,921. IN YOUR LETTER OF AUGUST 6, 1960, YOU STATE THAT YOU HAVE BEEN TRYING TO OBTAIN THE INFORMATION REQUESTED OF YOU BUT THAT YOU HAVE BEEN UNSUCCESSFUL IN THE MATTER. A MERE UNEXPLAINED ABSENCE DOES NOT CREATE A PRESUMPTION OF DEATH. CF. BUTLER V. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, 121 N.E. 758. CONSEQUENTLY, IN CASES OF THIS NATURE ARISING UNDER THE FEDERAL STATUTES, THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT REQUIRES THAT WE PROCEED ON THE BASIS THAT THE DEPENDENT IS ALIVE UNTIL THE FACT OF HER DEATH IS ESTABLISHED.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THERE APPEARS TO BE NO AUTHORITY OF LAW FOR REFUND TO YOU OF THE AMOUNT OF YOUR CONTRIBUTION TO THE FAMILY ALLOWANCE PAYMENTS. THEREFORE, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.

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