B-145909, JUN. 29, 1961

B-145909, JUN. 29, 1961

TO GENERAL DAVID M. SHOUP:

REFERENCE IS MADE TO YOUR LETTER OF MAY 8, 1961, FILE REFERENCE DNB LE, TRANSMITTING A COPY OF THE APPLICATION DATED JANUARY 3, 1944, OF MRS. HELEN BUIE, ROUTE 1, MOUNT PLEASANT, TENNESSEE, FOR FAMILY ALLOWANCE BENEFITS FOR HERSELF AND TWO MINOR CHILDREN, UNDER THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED (37 U.S.C. 201, ET SEQ., 1946 EDITION), AS DEPENDENTS OF JOHN R. BUIE, FORMER PRIVATE, UNITED STATES MARINE CORPS, 927618. THE COPY OF THE APPLICATION, TOGETHER WITH COPIES OR RELATED PAPERS, WAS TRANSMITTED FOR OUR CONSIDERATION AND ACTION WITH THE RECOMMENDATION THAT, IF OTHERWISE PROPER, IT BE APPROVED UNDER THE PROVISIONS OF SECTION 13 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, AS AMENDED, 50 U.S.C. APP. 2213.

IN THE APPLICATION EXECUTED BY MRS. BUIE, SHE LISTED HERSELF AS WIFE AND NAMED TWO MINOR CHILDREN AS THE CLASS A DEPENDENTS OF THE MEMBER. APPEARS THAT THE MEMBER AUTHORIZED A CLASS B FAMILY ALLOWANCE PAYMENT TO HIS MOTHER, MOLLIE W. BUIE, EFFECTIVE APRIL 1944, BUT THE FILE DOES NOT SHOW THAT HE MADE APPLICATION FOR FAMILY ALLOWANCE BENEFITS FOR HIS WIFE AND CHILDREN. IT APPEARS FURTHER THAT THE MARINE CORPS HAD INFORMATION THAT THE MEMBER AND HIS WIFE WERE SEPARATED AND THAT IT REQUESTED MRS. BUIE TO SUBMIT CERTAIN DOCUMENTS IN SUPPORT OF HER CLAIM FOR AN ALLOWANCE. MRS. BUIE DID NOT SUBMIT THE REQUESTED DOCUMENTS, OR REPLY TO ANY CORRESPONDENCE, OR MAKE ANY FURTHER INQUIRY REGARDING HER APPLICATION. ON MAY 16, 1945, THE APPLICATION WAS CANCELLED BY THE MARINE CORPS WITHOUT PAYMENT BECAUSE "APPLICANT FAILED TO REPLY TO LETTERS OR TO FURNISH EVIDENCE OF ALLEGED RELATIONSHIP.' THE FILE ALSO CONTAINS A COPY OF MARINE CORPS LETTER DATED MAY 24, 1945, TO MR. W. H. LINDSEY, ATTORNEY AT LAW, LAWRENCEBURG, TENNESSEE, REQUESTING HIM TO FORWARD A COPY OF THE DIVORCE DECREE WHICH DISSOLVED THE MARRIAGE OF PRIVATE BUIE AND HELEN BUIE AND GAVE CUSTODY OF THE MINOR CHILDREN TO THE MEMBER'S MOTHER. ALSO HE WAS REQUESTED TO ADVISE MRS. BUIE TO FILE AN APPLICATION FOR FAMILY ALLOWANCE FOR THE BENEFIT OF THE TWO MINOR CHILDREN IF THEY WERE ACTUALLY LIVING WITH HER IN HER HOME. APPARENTLY NO REPLY WAS RECEIVED TO THAT LETTER. HOWEVER, ON APRIL 12, 1961, MRS. BUIE EXECUTED AN AFFIDAVIT TO THE EFFECT THAT THE TWO CHILDREN HAVE RESIDED WITH HER SINCE 1940 AND 1941, THE YEARS OF THEIR BIRTH.

THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942 WAS REPEALED BY SECTION 531 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 841. HOWEVER, SECTION 13 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, AS AMENDED, 50 U.S.C. APP. 2213, PROVIDES THAT THE COMPTROLLER GENERAL, UPON THE RECOMMENDATIONS OF THE HEADS OF THE DEPARTMENTS CONCERNED OR SUCH SUBORDINATES AS THEY MAY DESIGNATED, MAY AUTHORIZE PAYMENTS BASED ON THE 1942 ACT "* * * ON APPLICATIONS FILED BY ENLISTED AND FORMER ENLISTED MEMBERS OF THE ARMY, NAVY, MARINE CORPS, AIR FORCE, AND COAST GUARD, OR THEIR DEPENDENTS, AND NOT FINALLY ACTED UPON PRIOR TO OCTOBER 1, 1949 * * *.'

IT WOULD APPEAR THAT SUCH AUTHORITY FOR THIS OFFICE TO APPROVE PAYMENTS OF FAMILY ALLOWANCE ON APPLICATIONS FILED BY ENLISTED OR FORMER ENLISTED MEMBERS OF THE ARMED SERVICES OR THEIR DEPENDENTS AND NOT FINALLY ACTED UPON PRIOR TO OCTOBER 1, 1949, CONTEMPLATES APPROVAL IN THOSE CASES WHERE APPLICATIONS WERE BEING PROCESSED FOR ACTION BUT THROUGH SOME ADMINISTRATIVE DELAY OR ERROR WERE NOT FINALLY APPROVED OR ACTED UPON PRIOR TO OCTOBER 1, 1959. HOWEVER, SUCH AUTHORITY WOULD NOT EXTEND TO CASES SUCH AS THE ONE UNDER CONSIDERATION, WHERE THE RECORD DISCLOSES THAT AFTER UNSUCCESSFUL ATTEMPTS TO SECURE ADDITIONAL INFORMATION OR EVIDENCE NECESSARY TO SUBSTANTIATE STATEMENTS MADE IN THE APPLICATION FILED JANUARY 3, 1944, THE APPLICATION WAS ADMINISTRATIVELY CANCELLED MAY 16, 1945. IS OUR VIEW THAT THE CANCELLATION OF MRS. HELEN BUIE'S APPLICATION WAS A FINAL ACTION PRIOR TO OCTOBER 1, 1949, WITHIN THE CONTEMPLATION OF SECTION 13, AND TERMINATED ANY RIGHTS UNDER THAT APPLICATION. SINCE THE RECORD DOES NOT INDICATE THAT ANY FURTHER APPLICATION WAS FILED BY THE FORMER MEMBER OR MRS. HELEN BUIE DURING THE PERIOD THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942 WAS IN EFFECT, THE PROVISIONS OF SECTION 13 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, CONSTITUTE NO AUTHORITY FOR APPROVAL OF PAYMENTS OF FAMILY ALLOWANCE TO MRS. HELEN BUIE OR ON ACCOUNT OF THE FORMER MEMBER'S CHILDREN.