B-155963, MAR. 19, 1965

B-155963, MAR. 19, 1965

TO FALLON, HARGREAVES AND BIXBY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 16, 1964, WITH ENCLOSURE, REQUESTING REVIEW OF THE ACTION TAKEN IN OUR CLAIMS DIVISION LETTER OF SEPTEMBER 18, 1964, WHICH DENIED PAYMENT OF THE CLAIM OF CHOW SHEE LOW FOR FAMILY ALLOWANCE PAYMENTS BELIEVED TO BE DUE INCIDENT TO THE SERVICE OF HER HUSBAND, SUN G. LOW, AS AN ENLISTED MAN, UNITED STATES ARMY, DURING THE PERIOD JUNE 21, 1944, TO DECEMBER 18, 1945. ALSO, WE HAVE RECEIVED THE LETTER DATED JANUARY 5, 1965, SIGNED BY CHOW SHEE LOW AND SUN G. LOW, AUTHORIZING YOU TO REPRESENT THEM IN THE MATTER.

IN HER LETTER DATED MARCH 13, 1964, CHOW SHEE LOW, AFTER RECITING THAT SHE IS ALSO KNOWN AS LAI HANG CHOW, LAI HANG CHOW LOW, AND LOW CHOWSHEE, STATED THAT SHE WAS THEREBY MAKING FORMAL CLAIM FOR PAYMENT TO HER OF THE FAMILY ALLOWANCE DUE HER AS THE WIFE OF SUN G. LOW, ARMY SERIAL NO. 30 109 104. THE LETTER CONTAINED NO ADDITIONAL FACTUAL INFORMATION OTHER THAN THAT SHE ARRIVED AT THE PORT OF HONOLULU, HAWAII, ON MARCH 10, 1964, AT WHICH TIME SHE WAS DULY ADMITTED FOR PERMANENT RESIDENCE AS THE WIFE OF SUN G. LOW, A CITIZEN OF THE UNITED STATES. WITH YOUR LETTER DATED MARCH 16, 1964, YOU FORWARDED SUCH CLAIM TO THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, STATING THAT SUN G. LOW WAS INDUCTED INTO THE ARMY OF THE UNITED STATES ON JUNE 21, 1944, AT 13TH REPLACEMENT DEPOT, APO 969; THAT HE WAS SEPARATED THEREFROM ON DECEMBER 18, 1945, AT ARMY SEPARATION CENTER, OAHU, HAWAII; AND THAT, ALTHOUGH HE WAS MARRIED AT THE TIME HE SERVED IN THE ARMY, IT APPEARED THAT THE FAMILY ALLOWANCE WAS NEVER RECEIVED.

IN THE REPORT WHICH ACCOMPANIED THE CLAIM WHEN IT WAS FORWARDED TO OUR OFFICE BY THE FINANCE CENTER, U.S. ARMY, IT WAS STATED THAT THE CLAIM WAS FOR FAMILY ALLOWANCE CHECKS FOR THE PERIOD JUNE 1944 THROUGH DECEMBER 1945; THAT RECORDS SHOWED FAMILY ALLOWANCE DEDUCTIONS OF $22 A MONTH EFFECTIVE AS OF NOVEMBER 1, 1944, AND DISCONTINUED AS OF DECEMBER 1945, DUE TO DISCHARGE ON DECEMBER 18, 1945; AND THAT, SINCE THE"FAMILY ALLOWANCE FOLDER HAS BEEN DESTROYED WE ARE UNABLE TO VERIFY PAYMENTS.' HAVE BEEN INFORMALLY ADVISED BY THE TREASURY DEPARTMENT THAT, AFTER AN EXHAUSTIVE SEARCH, NO RECORD WAS FOUND OF THE AMOUNTS OF ANY FAMILY ALLOWANCE CHECKS IN FAVOR OF THE CLAIMANT HAVING BEEN PLACED IN THE "BLOCKED FUNDS ACCOUNT," AND THAT, ALTHOUGH THE ARMY SERVICE NUMBER OF SUN G. LOW WAS FOUND ON A LIST CONTAINING THE SERVICE NUMBERS OF INDIVIDUALS IN WHOSE CASES FAMILY ALLOWANCE CHECKS HAD BEEN RETURNED TO THE ISSUING OFFICE, SUCH LIST SHOWED NEITHER THE NUMBER OF CHECKS NOR THE AMOUNTS INVOLVED.

AFTER CONSIDERING ALL OF SUCH EVIDENCE, IT WAS CONCLUDED THAT THERE WAS NO "CLEAR AND SATISFACTORY EVIDENCE OF THE VALIDITY AND NONPAYMENT" OF THE CLAIM. ACCORDINGLY, MRS. CHOW SHEE LOW WAS ADVISED IN THE LETTER OF SEPTEMBER 18, 1964, THAT, SINCE SHE FAILED TO PRESENT HER CLAIM FOR OVER 18 YEARS, DURING WHICH PERIOD THE RECORDS NECESSARY TO JUSTIFY OR TO REFUTE IT HAVE BEEN DESTROYED PURSUANT TO LAW OR HAVE OTHERWISE BECOME UNAVAILABLE, NO PAYMENT MAY BE MADE TO HER.

WORLD WAR II FAMILY ALLOWANCE CHECKS COULD NOT BE SENT TO DEPENDENT PAYEES LIVING IN CERTAIN FOREIGN COUNTRIES, INCLUDING CHINA, BECAUSE OF THE FACT THAT, UNDER THE STATUTORY PROVISIONS CONTAINED IN 31 U.S.C. 123, THE SECRETARY OF THE TREASURY DETERMINED THAT THE CONDITIONS IN THOSE COUNTRIES WERE SUCH THAT THERE WAS NOT A REASONABLE ASSURANCE THAT THE PAYEES OF CHECKS DRAWN AGAINST FUNDS OF THE UNITED STATES WOULD ACTUALLY RECEIVE THE CHECKS AND BE ABLE TO NEGOTIATE THEM FOR FULL VALUE. PROVIDED IN 31 U.S.C. 124, THE AMOUNTS OF SUCH CHECKS WERE FOR TRANSFER TO A SPECIAL DEPOSIT ACCOUNT WITH THE TREASURER OF THE UNITED STATES ENTITLED "SECRETARY OF THE TREASURY, PROCEEDS OF WITHHELD FOREIGN CHECKS," SOMETIMES CALLED THE "BLOCKED FUNDS ACCOUNT.' IT IS PROVIDED IN 31 U.S.C. 125 THAT PAYMENT OF AMOUNTS WHICH HAVE BEEN DEPOSITED IN SUCH SPECIAL DEPOSIT ACCOUNT IN ACCORDANCE WITH 31 U.S.C. 124 SHALL BE MADE BY CHECKS DRAWN AGAINST THE ACCOUNT BY THE SECRETARY OF THE TREASURY "ONLY AFTER THE CLAIMANT SHALL HAVE ESTABLISHED HIS RIGHT TO THE AMOUNT OF THE CHECK" TO THE SATISFACTION OF THE SECRETARY OF THE TREASURY. THAT SPECIAL DEPOSIT ACCOUNT IS REGARDED AS A TRUST FUND FOR THE BENEFIT OF THE PAYEE OF THE CHECKS INVOLVED AND IT IS OUR VIEW THAT THERE IS NO STATUTE OF LIMITATIONS WHICH WOULD RUN AGAINST THE CLAIM OF A PERSON FOR WHOM THE TRUST WAS CREATED.

THERE IS NO SHOWING IN THE CASE OF CHOW SHEE LOW THAT THE AMOUNTS OF ANY FAMILY ALLOWANCE CHECKS DRAWN IN HER FAVOR WERE TRANSFERRED TO THE SPECIAL DEPOSIT ACCOUNT ENTITLED "SECRETARY OF THE TREASURY, PROCEEDS OF WITHHELD FOREIGN CHECKS," NOR IS THERE ANY SHOWING AS TO THE NUMBER AND AMOUNTS OF FAMILY ALLOWANCE CHECKS WHICH ACTUALLY WERE ISSUED IN HER FAVOR. IF SOME CHECKS WERE DRAWN DESPITE THE LIKELIHOOD THAT THEY WOULD NOT BE DELIVERED TO THE PAYEE AND CHECKS COVERING THE BALANCE OF THE PERIOD INVOLVED WERE NOT ISSUED BECAUSE OF THE NONDELIVERY OF THE EARLIER CHECKS, CONSIDERATION OF THAT PART OF THE CLAIM COVERING THE LATTER PERIOD IS BARRED BY THE 10- YEAR LIMITATION PRESCRIBED IN THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A. SINCE THE FAMILY ALLOWANCE FOLDER RELATING TO THIS CASE HAS BEEN DESTROYED, WE KNOW OF NO EXTANT GOVERNMENT RECORDS FROM WHICH THERE COULD BE OBTAINED INFORMATION TO SHOW THE PART, IF ANY, OF THE CLAIM OF CHOW SHEE LOW WHICH MIGHT NOW CONSTITUTE A VALID CLAIM. IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO CHAPTER 10, TITLE 44, U.S. CODE, WHICH RELATES TO "DISPOSITION OF CORDS.'

WE HAVE NOTED THE STATEMENT IN THE POSTSCRIPT TO YOUR LETTER OF MARCH 16, 1964, THAT "WE ARE NOT MAKING ANY CLAIM FOR CHILDREN, AS THE CHILDREN PREVIOUSLY CLAIMED WERE NONEXISTENT," AND IT WOULD SEEM THAT SUCH STATEMENT WOULD MAKE THE PROVISIONS OF 28 U.S.C. 2514 FOR CONSIDERATION. IF FRAUD IS SUSPECTED IN CONNECTION WITH A CLAIM, THAT CLAIM OBVIOUSLY IS OF DOUBTFUL VALIDITY AND WE HAVE HELD THAT PROPERLY IN SUCH CASES THE CLAIMANT SHOULD BE LEFT TO HIS REMEDY IN THE COURT OF CLAIMS. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288 (1881), AND CHARLES V. UNITED STATES, 19 CT.CL. 316 (1884).

IN VIEW OF THE PRESENT STATE OF THE RECORDS, WE FIND NO BASIS FOR FAVORABLE ACTION ON THE CLAIM OF CHOW SHEE LOW, AND, UPON REVIEW, THE ACTION TAKEN BY OUR CLAIMS DIVISION IS SUSTAINED.