B-149719, SEP. 25, 1962

B-149719, SEP. 25, 1962

TO MR. EARL C. HENSLEY:

REFERENCE IS MADE TO LETTER OF AUGUST 3, 1962, WRITTEN BY YOU AND YOUR WIFE IN WHICH YOU IN EFFECT REQUEST REVIEW OF THE ACTION TAKEN BY US REGARDING THE SUM OF $216.67, WHICH INCLUDED THE VARIOUS ITEMS OF ARREARS OF PAY IN THE CASE OF YOUR SON, BURL L. HENSLEY, WHOSE MILITARY RECORDS WERE CORRECTED UNDER 10 U.S.C. 1552 TO SHOW THAT HE WAS HONORABLY DISCHARGED FROM THE ARMY OF THE UNITED STATES ON MARCH 19, 1960. IN OUR SETTLEMENT OF JULY 30, 1962, THE AMOUNT OF $0.40 WAS DEDUCTED FOR SOCIAL SECURITY TAXES; THE AMOUNT OF $32.81 WAS WITHHELD FOR FEDERAL INCOME TAX; AND THE BALANCE OF $183.66 WAS ALLOWED TO THE SUPERINTENDENT OF PEORIA STATE HOSPITAL, PEORIA, ILLINOIS, FOR THE USE OF THE SAID BURL L. HENSLEY. IN OUR LETTER OF JULY 31, 1962, YOU WERE ADVISED OF SUCH ALLOWANCE.

IT APPEARS THAT YOUR SON WAS ADMITTED TO THE PEORIA STATE HOSPITAL ON AUGUST 28, 1961; THAT HE IS CONSIDERED AS MENTALLY INCOMPETENT AND INCAPABLE OF MANAGING HIS OWN AFFAIRS; AND THAT NO LEGAL GUARDIAN HAS BEEN APPOINTED. YOU SAY THAT ALTHOUGH YOUR SON IS A PATIENT AT THAT HOSPITAL YOU HAVE BEEN PAYING A CERTAIN AMOUNT FOR HIS KEEP FOR ALMOST TWO YEARS; THAT THE AMOUNT SO PAID COVERS CLOTHING, SOAP, SHAVING CREAM, AND OTHER ITEMS; AND THAT HE HAS WORKED IN THE BAKERY AT THE HOSPITAL DURING THAT TIME. IN SUCH CIRCUMSTANCES, YOU SAY THAT YOU FEEL THAT THE SUPERINTENDENT OF THE HOSPITAL HAS NO RIGHT TO ANY FUNDS DUE YOUR SON AND YOU ASK THAT HIS MONEY BE SENT TO YOU. YOU ALSO SAY THAT YOU RECEIVED FROM THE ARMY A PAPER MAKING YOU THE PERSON TO TAKE CARE OF YOUR SON'S AFFAIRS AND THAT YOU SIGNED SUCH PAPER IN MAY 1962.

ON JUNE 21, 1962, THERE WAS RECEIVED IN OUR CLAIMS DIVISION FROM THE FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS, INDIANA, YOUR APPLICATION DATED MAY 19, 1962, FOR YOUR DESIGNATION AS TRUSTEE, UNDER THE ACT OF JUNE 21, 1950, PUB. L. 569, 64 STAT. 249, TO RECEIVE THE AMOUNTS DUE YOUR SON ON ACCOUNT OF HIS ARMY SERVICE. SUCH APPLICATION IS EVIDENTLY THE PAPER TO WHICH YOU REFER. SECTION 2 OF THE ACT OF JUNE 21, 1950, PROVIDES, IN PART, THAT---

"ANY ACTIVE-DUTY PAY AND ALLOWANCES, OR ANY AMOUNTS DUE FOR ACCUMULATED OR ACCRUED LEAVE, OR ANY RETIRED OR RETAINER PAY, OTHERWISE PAYABLE TO ANY MEMBER OF THE UNIFORMED SERVICES WHO, IN THE OPINION OF COMPETENT MEDICAL AUTHORITY, IS MENTALLY INCAPABLE OF MANAGING HIS OWN AFFAIRS, IS AUTHORIZED TO BE PAID, FOR THE USE AND BENEFIT OF SUCH INCOMPETENT MEMBER, TO SUCH PERSON OR PERSONS WHO MAY BE DESIGNATED BY THE SECRETARY OF THE ARMY * * *.'

THE TERM "MEMBER OF THE UNIFORMED SERVICES" IS EXPRESSLY DEFINED IN SECTION 1 OF THE ACT OF JUNE 21, 1950, 64 STAT. 249, SO FAR AS IS HERE PERTINENT, AS "ANY PERSON ON THE ACTIVE OR RETIRED LIST OF THE ARMY.' THERE IS NOTHING IN THE ACT AUTHORIZING THE PAYMENT OF AMOUNTS DUE INCOMPETENT PERSONS WHO HAVE BEEN SEPARATED FROM THE SERVICE. SINCE YOUR SON'S DISCHARGE FROM THE ARMY WAS ACCOMPLISHED ON MARCH 19, 1960, HE WAS NOT THEREAFTER A "MEMBER OF THE UNIFORMED SERVICES" AS DEFINED IN THE ACT OF JUNE 21, 1950, AND NO ACCRUED PAY AND ALLOWANCES PROPERLY COULD BE PAID TO YOU ON THE BASIS OF THE APPLICATION EXECUTED BY YOU ON MAY 19, 1962.

THE ILLINOIS LAWS RELATING TO THE MATTER HERE INVOLVED PROVIDE THAT MONEY FOUND ON PATIENTS AT THE TIME OF THEIR ADMISSION TO A STATE HOSPITAL, OR ACCRUING TO THEM DURING THEIR PERIOD OF INSTITUTIONAL CARE, SHALL REMAIN IN THE HANDS OF THE SUPERINTENDENTS OF THOSE HOSPITALS WHO SHALL ACT AS TRUSTEES FOR DISBURSEMENT TO, IN BEHALF OF, OR FOR THE BENEFIT OF SUCH PATIENTS; AND THAT EACH SUPERINTENDENT SHALL KEEP IN A BOOK AN ITEMIZED ACCOUNT OF ALL RECEIPTS AND EXPENDITURES OF SUCH FUNDS, WHICH BOOK SHALL BE OPEN AT ALL TIMES TO THE INSPECTION OF THE DEPARTMENT OF MENTAL HEALTH OF THE STATE OF ILLINOIS. (SMITH-HURD ILLINOIS ANNOTATED STATUTES, CHAPTER 91 1/2, SECTION 100-22.)

THUS, THE ALLOWANCE OF THE AMOUNT OF $183.66 TO THE SUPERINTENDENT OF THE PEORIA STATE HOSPITAL FOR THE USE OF YOUR SON, BURL L. HENSLEY, WOULD SEEM TO BE IN ACCORDANCE WITH LAW AND WE HAVE NO BASIS FOR DEMANDING THAT SUCH AMOUNT BE RETURNED TO US. IN THIS CONNECTION, YOU ARE ADVISED THAT IN CASES LIKE THE ONE HERE INVOLVED, IT IS OUR PRACTICE TO AUTHORIZE PAYMENT OF SUCH AMOUNTS TO A NEAR RELATIVE OR TO A "NATURAL GUARDIAN" ONLY IF THE NEAR RELATIVE OR THE "NATURAL GUARDIAN" HAS THE ACTUAL CARE AND CUSTODY OF THE INCOMPETENT.

AS WAS STATED ABOVE, $32.81 OF THE SUM OTHERWISE DUE YOUR SON WAS WITHHELD FOR FEDERAL INCOME TAX. THAT ACTION WAS TAKEN FOR THE REASON THAT SECTION 3402 (A) OF THE INTERNAL REVENUE CODE PROVIDES THAT EVERY EMPLOYER MAKING PAYMENTS OF WAGES SHALL DEDUCT AND WITHHOLD SPECIFIC AMOUNTS OR A PERCENTAGE FROM SUCH WAGES. THE DEFINITION OF THE TERM "WAGES" IN SECTION 3401 (A) OF THAT CODE REQUIRES APPLICATION OF SUCH PROVISIONS OF SECTION 3402 (A) TO THE REMUNERATION PAID BY THE UNITED STATES FOR SERVICES RENDERED AS A MEMBER OF THE ARMED FORCES. IN THE ABSENCE OF DEFINITE INFORMATION AS TO AN INDIVIDUAL'S TAX EXEMPTIONS, OUR OFFICE, IN SETTLEMENTS SUCH AS THE ONE HERE INVOLVED, IS REQUIRED TO WITHHOLD 18 PERCENT OF THE AMOUNT OF SUCH WAGES. WE HAVE NO JURISDICTION TO CONSIDER AN INDIVIDUAL'S RIGHTS UNDER THE INCOME TAX LAWS, BUT THE ACTION TAKEN BY US IN YOUR SON'S CASE DOES NOT PREJUDICE THE FILING OF A CLAIM IN HIS BEHALF FOR REFUND OF THE AMOUNT OF $32.81 IF IT IS BELIEVED THAT AMOUNT SHOULD NOT HAVE BEEN WITHHELD. ANY SUCH CLAIM SHOULD BE PRESENTED TO THE APPROPRIATE DISTRICT DIRECTOR OF INTERNAL REVENUE FOR CONSIDERATION.

ACCORDINGLY, WE FIND NO BASIS FOR ANY MODIFICATION OF THE ACTION TAKEN BY US IN YOUR SON'S CASE.