B-143765, FEB 22, 1972

B-143765, FEB 22, 1972

MILITARY PERSONNEL - DEPENDENTS' ALLOWANCE - ENTITLEMENT CONCERNING THE CLAIM OF NAPOLEON GARSHVA FOR THE PROCEEDS OF A CHECK DRAWN ON THE TREASURER OF THE UNITED STATES TO THE ORDER OF LEOKADIYA GARSVIENE, CLAIMANT'S MOTHER. THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 57 STAT. 577, PRECLUDES PAYMENT TO THE ENLISTED MAN HIMSELF, SO LONG AS HIS DEPENDENTS ARE ALIVE. HOWEVER, THE CIRCUMSTANCES OF THIS CASE INDICATE THAT THE GOVERNMENT MAY BE UNABLE TO MAKE PAYMENT TO CLAIMANT'S MOTHER. ACCORDINGLY, PAYMENT OF THAT AMOUNT OF THE CLAIM REPRESENTING MR. GARSHVA'S CONTRIBUTION IS ALLOWED. INTEREST ON SAID AMOUNT MUST BE DENIED ABSENT AN EXPRESS PROVISION OF LAW ALLOWING SUCH RECOVERY. UNITED STATES V THAYER-WEST POINT HOTEL CO., 329 U.S. 585, 588 (1947).

TO MR. NAPOLEON G. GARSHVA:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 10, 1972, WHEREIN YOU AGAIN REQUEST FURTHER CONSIDERATION OF YOUR CLAIM FOR THE PROCEEDS OF SUBSTITUTE CHECK NO. 262,921, DATED MARCH 19, 1952, IN THE AMOUNT OF $111, DRAWN ON THE TREASURER OF THE UNITED STATES TO THE ORDER OF YOUR MOTHER, LEOKADIYA GARSVIENE.

A REVIEW OF OUR FILE SHOWS THAT THIS MATTER WAS THE SUBJECT OF OUR DECISION B-143765, DATED OCTOBER 7, 1960, AND A LETTER RELATING TO THAT DECISION TO YOU DATED APRIL 14, 1965, IN WHICH YOU WERE ADVISED THAT UNDER THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381, AS AMENDED BY THE ACT OF OCTOBER 26, 1943, 57 STAT. 577, IT WAS THE DEPENDENT OR DEPENDENTS OF THE ENLISTED MAN, AND NOT THE ENLISTED MAN HIMSELF, WHO WERE ENTITLED TO THE FAMILY ALLOWANCE PAYMENTS. YOU WERE FURTHER ADVISED THAT, SO LONG AS IT APPEARS THAT SUCH DEPENDENT OR DEPENDENTS MAY BE ALIVE, THERE IS NO AUTHORITY UNDER THE LAW TO REFUND TO THE ENLISTED MAN ANY OF THE AMOUNTS DEDUCTED FROM HIS PAY AS HIS CONTRIBUTION.

YOU AGAIN REQUEST PAYMENT OF THIS CHECK AND STATE THAT IN YOUR OPINION YOU HAVE EVERY RIGHT TO THAT AMOUNT, PLUS THE INTEREST WHICH SHOULD HAVE ACCRUED OVER THE PAST 25 YEARS AS YOU HAVE REASON TO BELIEVE THAT YOUR MOTHER IS NO LONGER ALIVE.

IT APPEARS FROM THE RECORD THAT THREE FAMILY ALLOWANCE CHECKS FOR THE MONTHS OF APRIL, MAY AND JUNE, 1945, EACH IN THE AMOUNT OF $37 ($22 DEDUCTED FROM YOUR ARMY PAY AND $15 CONTRIBUTION BY THE GOVERNMENT) WERE ISSUED TO YOUR MOTHER. SUBSEQUENT TO THEIR RECEIPT BY YOUR MOTHER, THEY WERE SENT TO YOU BY HER WITH THE EXPLANATION THAT HER BANK IN EUROPE WOULD NOT HONOR THEM. FURTHER, SINCE YOU WERE ARRANGING TO HAVE YOUR MOTHER COME TO THIS COUNTRY FROM LITHUANIA, YOU RETAINED THE CHECKS. YOU STATE THAT THE ORIGINAL CHECKS WERE LOST SOMETIME IN 1948 AND YOU HAVE NOT HEARD FROM YOUR MOTHER SINCE THAT TIME.

IN VIEW OF THE LONG PERIOD (MORE THAN 25 YEARS) THAT HAS ELAPSED SINCE THE CHECKS WERE ISSUED, THE LACK OF ANY CLAIM FROM YOUR MOTHER DURING THIS PERIOD AND THE OTHER CIRCUMSTANCES IN THIS CASE, IT WOULD APPEAR EXTREMELY UNLIKELY THAT YOUR MOTHER WOULD EVER PRESENT A CLAIM FOR THIS ALLOTMENT. SINCE THE GOVERNMENT HAS BEEN UNABLE TO PAY YOUR MOTHER AND THERE IS NO REASONABLY PROSPECT THAT IT WILL BE ABLE TO DO SO, WE CONCLUDE THAT THE PART OF THOSE PROCEEDS WHICH REPRESENT MONEY DEDUCTED FROM YOUR PAY SHOULD BE RETURNED TO YOU.

ACCORDINGLY, A SETTLEMENT WILL ISSUE IN YOUR FAVOR IN DUE COURSE FOR THE AMOUNT OF $66 REPRESENTING THE THREE MONTHLY DEDUCTIONS OF $22 FROM YOUR PAY AS YOUR CONTRIBUTION TO THE FAMILY ALLOWANCE PAYMENTS FOR WHICH THE CHECKS WERE ISSUED.

WITH RESPECT TO THE MATTER OF INTEREST ON THE AMOUNT IN QUESTION, THERE IS FOR APPLICATION THE LONG-ESTABLISHED RULE THAT INTEREST ON CLAIMS AGAINST THE UNITED STATES CANNOT BE RECOVERED IN THE ABSENCE OF AN EXPRESS PROVISION IN THE LAW PERMITTING SUCH RECOVERY. SEE UNITED STATES V THAYER -WEST POINT HOTEL CO., 329 U.S. 585, 588 (1947). THERE IS NO SUCH STATUTE APPLICABLE IN YOUR CASE AND, THEREFORE, INTEREST MAY NOT BE ALLOWED ON YOUR CLAIM.