B-159818, FEB. 10, 1967

B-159818, FEB. 10, 1967

TO MR. WELTON B. BROWN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 20, 1966, CONCERNING THE ACTION TAKEN BY OUR CLAIMS DIVISION IN LETTER DATED JUNE 7, 1966, WHICH DENIED YOUR CLAIM FOR FAMILY ALLOWANCE BENEFITS BELIEVED TO BE DUE YOUR DEPENDENTS (WIFE AND DAUGHTER) INCIDENT TO YOUR SERVICE IN THE ARMY AIR CORPS AS AN ENLISTED MAN DURING THE PERIOD SEPTEMBER 7, 1942, TO FEBRUARY 9, 1943. THERE HAS ALSO BEEN RECEIVED HERE YOUR LETTER OF JANUARY 30, 1967, CONCERNING THE SAME MATTER.

AS YOU WERE ADVISED IN OUR LETTERS OF SEPTEMBER 15 AND DECEMBER 7, 1966, IN REVIEWING YOUR CLAIM IT WAS FOUND NECESSARY TO REQUEST CERTAIN ADDITIONAL INFORMATION FROM THE FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS, INDIANA. WE REGRET THE LONG DELAY IN DISPOSING OF YOUR CLAIM. THE ARMY FINANCE CENTER, HOWEVER, HAS NOW FURNISHED US WITH A REPORT DATED JANUARY 30, 1967, WHICH READS AS FOLLOWS:

"RECORDS ARE NOT AVAILABLE TO ASCERTAIN WHETHER FAMILY ALLOWANCE WAS PAID FOR MR. BROWN'S DEPENDENTS FOR SEPTEMBER AND OCTOBER 1942.

"THE MILITARY PAY TRANSCRIPT OF MR. BROWN'S PAY FOR THE PERIOD 7 SEPTEMBER 1942 THROUGH 9 FEBRUARY 1943 SHOWS NO CLASS F ALLOTMENT DEDUCTIONS WERE MADE FOR SEPTEMBER OR OCTOBER 1942.'

THE RECORD BEFORE US SHOWS THAT YOU SERVED ON ACTIVE DUTY WITH THE ARMY AIR CORPS FROM SEPTEMBER 7, 1942, TO FEBRUARY 9, 1943, WHEN YOU WERE HONORABLY DISCHARGED. AS INDICATED IN OUR CLAIMS DIVISION LETTER OF JUNE 7, 1966, THE ONLY RECORD WE HAVE PERTAINING TO YOUR FAMILY ALLOWANCE ACCOUNT IS A REPORT TO US DATED AUGUST 7, 1945, FROM THE OFFICE OF DEPENDENCY BENEFITS, NEWARK, NEW JERSEY--- THE OFFICE RESPONSIBLE FOR MAKING FAMILY ALLOWANCE PAYMENTS AT THAT TIME--- SHOWING THAT A FAMILY ALLOWANCE WAS AUTHORIZED IN FAVOR OF LOLA M. BROWN AT THE RATE OF $62 A MONTH, COMMENCING NOVEMBER 1942 AND TERMINATING FEBRUARY 1943 (THE MONTH OF YOUR DISCHARGE). THE REPORT FURTHER STATES THAT A SUPPLEMENTAL CHECK WAS ISSUED IN FAVOR OF LOLA M. BROWN IN THE AMOUNT OF $248, REPRESENTING PAYMENT OF FAMILY ALLOWANCE FOR THE PERIOD NOVEMBER 1, 1942, TO FEBRUARY 28, 1943. IT IS ALSO STATED IN THAT REPORT THAT A SUPPLEMENTAL CHECK IN THE AMOUNT OF $62 ISSUED IN APRIL 1943 WAS RETURNED AND CANCELLED.

THE AMOUNT PAYABLE FOR A WIFE AND ONE CHILD DURING THE PERIOD OF YOUR CLAIM WAS $62 A MONTH WHICH INCLUDED THE ENLISTED MAN'S CONTRIBUTION OF $22 A MONTH. ALSO, IN OUR LETTER OF JUNE 7, 1966, TO YOU, YOUR ATTENTION WAS INVITED TO A PRIOR LETTER TO YOU DATED NOVEMBER 28, 1947, WHEREIN WE ADVISED YOU, ON THE BASIS OF INFORMATION RECEIVED FROM THE ARMY FINANCE CENTER AT THAT TIME, THAT THAT PART OF YOUR CLAIM PERTAINING TO FAMILY ALLOWANCE WOULD BE HANDLED BY THE ARMY FINANCE CENTER, THEN LOCATED IN ST. LOUIS, MISSOURI, THE OFFICE AT THAT TIME HAVING JURISDICTION OVER SUCH CLAIMS.

IN YOUR LETTER OF JULY 20, 1966, YOU SAY, IN SUBSTANCE, THAT YOU ENTERED ON ACTIVE DUTY ON SEPTEMBER 7, 1942, AND THE NEXT DAY, SEPTEMBER 8, 1942, YOU MADE APPLICATION FOR AN ALLOTMENT (FAMILY ALLOWANCE) FOR YOUR WIFE AND DAUGHTER. YOU CONTEND THAT YOUR WIFE AND DAUGHTER WERE NOT PAID A FAMILY ALLOWANCE FOR THE MONTHS OF SEPTEMBER AND OCTOBER 1942.

SECTION 104 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, CH. 443, 56 STAT. 381, IN EFFECT DURING THE PERIOD HERE INVOLVED, PROVIDED THAT A MONTHLY FAMILY ALLOWANCE SHOULD BE GRANTED AND PAID TO THE DEPENDENT OR DEPENDENTS OF AN ENLISTED MAN "UPON WRITTEN APPLICATION" TO THE DEPARTMENT CONCERNED MADE BY SUCH ENLISTED MAN OR MADE BY OR ON BEHALF OF SUCH DEPENDENT OR DEPENDENTS. SECTION 107 PROVIDED THAT PAYMENT OF THE FAMILY ALLOWANCE WOULD COMMENCE UPON FILING AN APPLICATION AND AUTHORIZED THE SECRETARIES CONCERNED TO FIX THE DATES OF COMMENCEMENT AND TERMINATION OF FAMILY ALLOWANCE "NOT MORE THAN ONE MONTH BEFORE OR ONE MONTH AFTER THE DATES ABOVE PRESCRIBED.' SECTION 112 OF THE SAME ACT PROVIDED THAT THE DETERMINATION OF ALL FACTS, INCLUDING THE FACT OF DEPENDENCY, SHOULD BE MADE BY THE SECRETARY OF THE DEPARTMENT CONCERNED, WHICH DETERMINATION WAS FINAL AND CONCLUSIVE AND NOT SUBJECT TO REVIEW BY ANY COURT OR ANY ACCOUNTING OFFICER OF THE GOVERNMENT. PARAGRAPH 12, WAR DEPARTMENT CIRCULAR NO. 225, JULY 11, 1942, PROVIDED THAT AN ENLISTED MAN WHO ENTERED THE SERVICE ON OR AFTER JUNE 1, 1942, "WILL BE ENTITLED TO THE BENEFITS OF THIS ACT ONLY FROM THE FIRST OF THE MONTH NEXT FOLLOWING THE DATE OF FILING OF HIS APPLICATION WITH HIS ORGANIZATION COMMANDER.'

THERE IS NOTHING IN THE ABOVE-MENTIONED REPORT OF AUGUST 7, 1945, FROM THE OFFICE OF DEPENDENCY BENEFITS TO INDICATE THAT YOU MADE APPLICATION FOR FAMILY ALLOWANCE BENEFITS PRIOR TO OCTOBER 1942. RATHER, IT APPEARS FROM THAT REPORT THAT YOUR DEPENDENTS (WIFE AND DAUGHTER) BECAME ENTITLED TO FAMILY ALLOWANCE PAYMENTS COMMENCING WITH THE MONTH OF NOVEMBER 1942. THUS CONCLUSION IS SUPPORTED BY THE ABOVE QUOTED ARMY REPORT OF JANUARY 30, 1967, THAT NO CLASS F ALLOTMENT DEDUCTIONS WERE MADE FROM YOUR PAY--- AS YOUR CONTRIBUTION TO THE FAMILY ALLOWANCE--- FOR SEPTEMBER OR OCTOBER 1942. ALSO, THE ARMY FINANCE CENTER HAS INFORMALLY ADVISED US THAT THE FAMILY ALLOWANCE FOLDER IN YOUR CASE--- WHICH NORMALLY WOULD CONTAIN YOUR APPLICATION FOR SUCH BENEFITS AND SHOW THE PAYMENTS MADE TO YOUR DEPENDENTS--- HAS BEEN DESTROYED AND IS NOT AVAILABLE FOR EXAMINATION.

FAMILY ALLOWANCE PAYMENTS IN YOUR CASE WERE DISCONTINUED OVER 23 YEARS AGO AND THE PERTINENT RECORDS NECESSARY TO VERIFY THOSE PAYMENTS HAVE BEEN DESTROYED PURSUANT TO LAW. YOU WERE ADVISED ALMOST 19 YEARS AGO THAT THE CLAIM FOR FAMILY ALLOWANCE WOULD BE HANDLED BY THE ARMY FINANCE CENTER AT ST. LOUIS. IT MUST BE ASSUMED THAT IF THE CLAIM WAS NOT THEN PAID, YOU OR YOUR DEPENDENTS WERE ADVISED THAT NO RIGHT TO THE ALLOWANCE ACCRUED PRIOR TO NOVEMBER 1942. IN ANY EVENT, YOUR DEPENDENTS' FAILURE TO INQUIRE FURTHER INTO THIS MATTER FOR MORE THAN 18 YEARS, DURING WHICH THE APPLICABLE RECORDS HAVE BEEN DESTROYED, HAS PRODUCED A SITUATION IN WHICH IT IS IMPOSSIBLE TO EITHER PROVE OR DISPROVE THE VALIDITY OF THE CLAIM. IN SUCH CIRCUMSTANCES, WE MUST RELY ON THE REPORT OF AUGUST 7, 1945, SHOWING ENTITLEMENT COMMENCING NOVEMBER 1, 1942, AND THE ARMY REPORT OF JANUARY 30, 1967, SHOWING NO FAMILY ALLOWANCE DEDUCTIONS FROM YOUR PAY FOR SEPTEMBER OR OCTOBER 1942.

ACCORDINGLY, THERE ARE NO FURTHER FAMILY ALLOWANCE BENEFITS DUE YOUR DEPENDENTS FOR THE PERIOD OF YOUR CLAIM AND THE SETTLEMENT OF JUNE 7, 1966, IS SUSTAINED.