B-142640, JUNE 16, 1960, 39 COMP. GEN. 849

B-142640, JUNE 16, 1960, 39 COMP. GEN. 849

MILITARY PERSONNEL - FAMILY ALLOWANCE PAYMENTS - RECORD CORRECTION - DECEASED DEPENDENTS A RECORD CORRECTION ACTION WHICH WAS MADE AFTER THE REPEAL OF SECTION 109 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, WHICH PROVIDED THAT FAMILY ALLOWANCES UNCOLLECTED AT THE TIME OF THE DEATH OF THE DEPENDENT SHOULD BE PAID TO SUCH PERSONS AS THE SECRETARY OF THE PARTICULAR SERVICE DIRECTS, TO SHOW THAT A SERVICEMAN HAD A DEPENDENT PARENT--- WHO AT THE TIME OF THE RECORD CORRECTION WAS DECEASED--- FOR CLASS B FAMILY ALLOWANCES DURING THE PERIOD SHE WAS PREVENTED FROM RECEIVING SUCH ALLOWANCES BY REASON OF RESIDENCE IN ENEMY-OCCUPIED COUNTRY DOES NOT ENTITLE THE SERVICEMAN TO THE AMOUNT WHICH WOULD HAVE BEEN PAID TO THE PARENT, ANY RIGHT TO SUCH ALLOWANCE HAVING LAPSED IN THE ABSENCE OF A SECRETARIAL DETERMINATION MADE PRIOR TO THE REPEAL OF THE 1942 ACT OR OF A NUNC PRO TUNC DETERMINATION BY THE CORRECTION BOARD. IN THE CASE OF A MEMBER WHOSE NAVAL RECORDS WERE CORRECTED TO SHOW THAT HIS WIFE, WHO RESIDED IN ENEMY-OCCUPIED TERRITORY DURING WORLD WAR II, WAS ENTITLED TO FAMILY ALLOWANCE, FOR WHICH NO DEDUCTIONS HAD BEEN MADE FROM THE MEMBER'S PAY, THE FAMILY ALLOWANCE BENEFITS TO WHICH THE WIFE IS ENTITLED PURSUANT TO THE CORRECTION OF RECORDS SHOULD BE REDUCED BY THE MEMBER'S REQUIRED CONTRIBUTIONS FOR SUCH BENEFITS THUS ENTITLING THE WIFE TO PAYMENT ON THE BASIS OF THE GOVERNMENT'S CONTRIBUTION, IN ACCORDANCE WITH SECTION 13 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 50 U.S.C. APP. 2213.

TO R. A. WILSON, DEPARTMENT OF THE NAVY, JUNE 16, 1960:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 13, 1960, WHICH HAS BEEN ASSIGNED SUBMISSION NO. DO-N-497 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTING DECISION ON CERTAIN QUESTIONS RELATIVE TO TWO CLAIMS WHICH HAVE BEEN PRESENTED INCIDENT TO THE CORRECTION OF THE NAVAL RECORDS OF KAM CHING YEE, SDC. USFR. YEE CLAIMS, AS SOLE HEIR OF HIS MOTHER SU YING LENG, AND YEE'S WIFE, SIN NOR CHEUNG YEE, CLAIMS FAMILY ALLOWANCE PAYMENTS FOR THE PERIOD NOVEMBER 1, 1943, TO AUGUST 31, 1946.

FROM INFORMATION CONTAINED IN YOUR LETTER AND THE ENCLOSURES THERETO, AND IN YEE'S CLAIM FILE IN OUR OFFICE, IT APPEARS THAT HE WAS PAID MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR A DEPENDENT (WIFE) FROM NOVEMBER 1, 1942, THE DATE OF HIS PROMOTION TO PAY GRADE 3, TO OCTOBER 31, 1943, AND THAT HIS CLAIM FOR SUCH ALLOWANCE FROM NOVEMBER 1, 1943, WAS DENIED, SINCE HE DID NOT HAVE IN EFFECT AN ALLOTMENT OF PAY TO HIS WIFE AT LEAST EQUAL TO THE AMOUNT OF THE CLAIMED ALLOWANCE. IT FURTHER APPEARS THAT DURING THE PERIOD NOVEMBER 1, 1943, TO AUGUST 31, 1946, YEE'S WIFE AND MOTHER RESIDED IN MACAO, CHINA; THAT THE POLICY OF THE DEPARTMENT OF THE NAVY THEN PROHIBITED FAMILY ALLOWANCE PAYMENTS TO DEPENDENTS RESIDING IN ENEMY- OCCUPIED TERRITORY; THAT FOLLOWING THE LIBERATION OF CHINA IN 1945, FAMILY ALLOWANCE PAYMENTS WERE GRANTED TO DEPENDENTS RESIDING THEREIN PROSPECTIVELY FROM SEPTEMBER 1, 1946; AND THAT SUCH ALLOWANCES WERE GRANTED FROM THAT DATE TO YEE'S WIFE AT $50 PER MONTH AS A CLASS A DEPENDENT AND TO HIS MOTHER AT $37 PER MONTH AS A CLASS B DEPENDENT (SUBSTANTIAL DEPENDENCY). IT IS ASSUMED THAT APPROPRIATE DEDUCTIONS WERE MADE FROM YEE'S PAY ON ACCOUNT OF SUCH ALLOWANCES. IT IS STATED THAT YEE'S MOTHER DIED JUNE 2, 1949.

THE APPROVED ACTION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS IS STATED AS FOLLOWS:

DECISION: IT IS THE DECISION OF THIS BOARD THAT THE NAVAL RECORD OF CHIEF STEWARD KAM CHING YEE, U.S. FLEET RESERVE, CLASS F-6, 498 51 40, BE CORRECTED, WHEREVER APPROPRIATE, TO SHOW THAT DURING THE PERIOD 1 NOVEMBER 1943 THROUGH 31 AUGUST 1946 HIS LAWFUL WIFE, SIN NOR CHEUNG YEE, AND HIS MOTHER, SU YING LENG, WERE HIS DESIGNATED DEPENDENTS; THAT HIS WIFE, SIN NOR CHEUNG YEE, WAS A CLASS A DEPENDENT, AND HIS MOTHER, SU YING LENG, WAS A CLASS B (SUBSTANTIAL DEPENDENCY) DEPENDENT DURING THAT PERIOD PURSUANT TO THE PROVISIONS OF THE SERVICEMEN'S DEPENDENTS ACT OF 1942 (56 STAT. 381), AS AMENDED BY THE ACT OF OCTOBER 26, 1943 (37 STAT. 578); AND THAT DURING SUCH PERIOD NO PUBLIC QUARTERS FOR DEPENDENTS WERE ASSIGNED TO YEE FOR HIS DEPENDENTS.

RECOMMENDATION: THE BOARD RECOMMENDS THAT THE DEPARTMENT OF THE NAVY PAY TO PETITIONER, OR OTHER PROPER PARTY, OR PARTIES, ALL MONEY, OR MONIES, LAWFULLY FOUND TO BE DUE FROM THE DEPARTMENT OF THE NAVY AS A RESULT OF THE FOREGOING CORRECTION OF NAVAL RECORD.

THE CORRECTION BOARD'S DECISIONS SHOULD BE GIVEN THE SAME EFFECT AS COMPARABLE DECISIONS WOULD HAVE BEEN GIVEN IF MADE BY PROPER AUTHORITIES WHILE THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942 WAS IN EFFECT. HAD THAT BEEN DONE, THE MOTHER WOULD HAVE BEEN ENTITLED TO THE FAMILY ALLOWANCE. IT APPEARS FROM THE RECORDS SUBMITTED, HOWEVER, THAT THE MOTHER DIED JUNE 2, 1949, BEFORE PAYMENT WAS MADE.

SECTION 109 OF THE 1942 ACT, AS AMENDED, 37 U.S.C. 209 (B), PROVIDED THAT:

IN THE EVENT OF THE DEATH OF A DEPENDENT, ANY AMOUNT OF THE FAMILY ALLOWANCE TO WHICH HIS ENTITLEMENT CEASES WITH THE LAST DAY OF THE CALENDAR MONTH IN WHICH DEATH OCCURS, AND WHICH IS UNCOLLECTED AT THE TIME OF DEATH, SHALL BE PAID TO SUCH PERSON OR PERSONS AS THE SECRETARY OF THE DEPARTMENT CONCERNED DIRECTS. ( ITALICS SUPPLIED.)

THE ABOVE PROVISIONS WERE REPEALED EFFECTIVE OCTOBER 1, 1949, BY THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 231 NOTE.

THAT THE UNPAID FAMILY ALLOWANCE IN CASES SUCH AS THE PRESENT ONE WAS NOT INTENDED TO BECOME AN ASSET OF A DECEDENT'S ESTATE IS SHOWN BY THE PROVISION THAT IT SHOULD BE PAID TO SUCH PERSON AS THE SECRETARY OF THE DEPARTMENT CONCERNED DIRECTED. IN THE ABSENCE OF A SECRETARIAL DETERMINATION BEFORE THE REPEAL OF THE 1942 ACT, OR OF A VICARIOUS NUNC PRO TUNC DETERMINATION BY THE CORRECTION BOARD, ANY RIGHT TO PAYMENT OF THE FAMILY ALLOWANCE WHICH WOULD HAVE BEEN PAYABLE TO THE MOTHER IS VIEWED AS HAVING LAPSED IN THIS CASE. COMPARE B-114704, MAY 28, 1953; B-121018, JANUARY 17, 1955. HENCE, ON THE PRESENT RECORD, NO PAYMENT OF THE MOTHER'S FAMILY ALLOWANCE MAY BE MADE.

IN CONNECTION WITH THIS PORTION OF THE MATTER SUBMITTED FOR DECISION, IT IS OF INTEREST TO NOTE THE RECENT TREATMENT BY THE CONGRESS OF A CLAIM QUITE SIMILAR IN MANY ASPECTS. PRIVATE LAW 86-261, APPROVED APRIL 14, 1960, WAS FOR THE RELIEF OF HOO W. YUEY, FORMER ARMY ENLISTED MAN, AND HIS CHILDREN. FAMILY ALLOWANCE BENEFITS FOR YUEY'S WIFE AND TWO MINOR CHILDREN, ALL THREE OF WHOM WERE RESIDING IN CHINA, WERE APPROVED EFFECTIVE AS OF MARCH 1, 1943, THE BANK OF CHINA BEING DESIGNATED AS PAYEE ON BEHALF OF THE DEPENDENTS. THE BANK, HOWEVER, WAS UNABLE TO DELIVER THE FUNDS TO THE DEPENDENTS AND CHECKS REPRESENTING SUCH FUNDS WERE RETURNED BY THE BANK. YUEY WAS DISCHARGED ON OCTOBER 7, 1945. UNDER APPLICABLE LAW MRS. YUEY WAS ENTITLED TO $2,976 AS FAMILY ALLOWANCE BENEFITS FOR HERSELF AND HER CHILDREN FOR THE PERIOD MARCH 1, 1943, TO OCTOBER 31, 1945. OF THIS AMOUNT $1,600 (32 MONTHS AT $50 PER MONTH) WAS ON HER OWN ACCOUNT. THE ENLISTED MAN'S CONTRIBUTION TO THE AMOUNT OF $1,600 WAS $704, 32 MONTHS AT $22 PER MONTH, THE GOVERNMENT'S CONTRIBUTION WAS $896, 37 MONTHS AT $28 PER MONTH. THE REMAINING PORTION OF THE TOTAL AMOUNT OF $2,976, THAT IS, $1,376, WAS DUE MRS. YUEY ON BEHALF OF HER CHILDREN AND WAS A CONTRIBUTION BY THE GOVERNMENT ALONE, NO DEDUCTION FROM THE ENLISTED MAN'S PAY BEING REQUIRED FOR THE CHILDREN'S PORTION OF THE FAMILY ALLOWANCE. MRS. YUEY DIED BEFORE ANY PART OF THE SUM OF $2,976 HAD BEEN PAID TO HER.

AS PASSED BY THE HOUSE OF REPRESENTATIVES, H.R. 2310, THE BILL FOR YUEY'S RELIEF, PROVIDED THAT THERE BE PAID TO HIM THE SUM OF $2,976. AS AMENDED BY THE SENATE AND FINALLY ENACTED, THE BILL PROVIDED FOR REFUND TO YUEY OF THE AMOUNT OF $704, WHICH ACTUALLY HAD BEEN DEDUCTED FROM HIS PAY, AND ALSO PROVIDED THAT A CLAIM COULD BE ENTERTAINED FROM THE CHILDREN "FOR THE PORTIONS OF THE FAMILY ALLOWANCE CONTRIBUTED BY THE GOVERNMENT WHICH WOULD HAVE BEEN PAYABLE IN THEIR BEHALF BUT WHICH WAS NOT IN FACT PAID.' OTHER WORDS, THE CONGRESS TOOK THE STAND THAT WHERE IT HAD BEEN IMPOSSIBLE TO PAY AN AUTHORIZED FAMILY ALLOWANCE PRIOR TO THE DEPENDENT'S DEATH, THE SERVICEMAN SHOULD BE MADE WHOLE TO THE EXTENT OF ACTUAL DEDUCTIONS FROM HIS PAY BECAUSE OF SUCH AUTHORIZED ALLOWANCE, BUT THAT HE SHOULD NOT BE ENRICHED BY THE CONTRIBUTION WHICH THE GOVERNMENT WOULD HAVE MADE TO THE ALLOWANCE HAD PAYMENT THEREOF BEEN EFFECTED. THIS ACTION BY CONGRESS IS MENTIONED IN ORDER TO MAKE SURE THAT THE PRECEDENT THUS SET WILL NOT BE OVERLOOKED BY THE CORRECTION BOARD, IN THE EXERCISE OF ITS AUTHORITY TO CORRECT THE RECORD SO AS TO REMOVE ANY INJUSTICE WHICH MAY HAVE OCCURRED IN THE YEE CASE.

THE QUESTIONS PRESENTED FOR DECISION ARE SEPARATELY QUOTED AND DISCUSSED BELOW:

QUESTION 1. SHOULD THE FAMILY ALLOWANCE BENEFITS OF KAM CHING YEE AS SOLE HEIR OF HIS MOTHER BE REDUCED BY THE AMOUNT OF $918.00, WHICH REPRESENTS THE MEMBER'S CONTRIBUTION TO FAMILY ALLOWANCE PAYMENTS AT THE RATE OF $27.00 PER MONTH FOR THE PERIOD IN QUESTION, AND FURTHER BY THE AMOUNT OF $302.50 AND $153.75 REPRESENTING PAYMENTS AUTHORIZED BY THE GENERAL ACCOUNTING OFFICE FOR QUARTERS ALLOWANCE FOR PORTIONS OF THE PERIOD?

THE PAYMENTS BY OUR OFFICE REFERRED TO IN QUESTION 1, WERE FOR PERIODS PRIOR TO THE PERIOD OF THE PRESENT CLAIMS. SINCE, AS INDICATED ABOVE, WE DO NOT THINK THAT YEE'S CLAIM FOR AMOUNTS DUE HIS MOTHER IS PAYABLE, QUESTION 1 REQUIRES NO FURTHER ANSWER.

QUESTION 2. SHOULD THE FAMILY ALLOWANCE BENEFITS OF SIN NOR CHEUNG YEE BE REDUCED TO THE EXTENT THAT ANY INDEBTEDNESS MAY REMAIN AFTER APPLICATION OF THESE OFFSETS, IF PERMITTED, IN THE SETTLEMENT OF THE CLAIM OF KAM CHING YEE?

QUESTION 2 IS ANSWERED BY SAYING THAT THE FAMILY ALLOWANCE BENEFITS TO WHICH SIN NOR CHEUNG YEE IS ENTITLED, $50 PER MONTH FOR 34 MONTHS, SHOULD BE REDUCED BY YEE'S REQUIRED CONTRIBUTIONS TO SUCH BENEFITS AT THE RATE OF $22 PER MONTH, WHICH WERE NOT DEDUCTED FROM HIS PAY, THUS PAYING HER AT THE RATE OF $28 PER MONTH, THE GOVERNMENT'S CONTRIBUTION. SEE SECTION 13 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 50 U.S.C. APP. 2213, CITED IN YOUR LETTER.

QUESTION 3. IF THE ANSWERS TO QUESTIONS 1 OR 2 ARE IN THE NEGATIVE, SHOULD THE MEMBER'S CURRENT RETIRED PAY BE REDUCED BY THIS AMOUNT AS AN OVERPAYMENT OF ACTIVE DUTY PAY?

IN VIEW OF THE ANSWERS TO THE FIRST AND SECOND QUESTIONS, NO ANSWER TO QUESTION 3 IS REQUIRED.