B-86001-/S), B-89109, I-17000-694, JUL. 30, 1956

B-86001-/S), B-89109, I-17000-694, JUL. 30, 1956

TO LIEUTENANT COLONEL HAZARD H. STAY:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 17, 1956, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES ON ACCOUNT OF IMPROPER PAYMENTS OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES MADE TO YOU AS FOR AN OFFICER WITH A DEPENDENT MOTHER FOR THE PERIOD AUGUST 24, 1947, TO MAY 31, 1949. ALSO, THERE HAS BEEN NOTED THAT YOU DISCUSSED THE MATTER IN A PERSONAL INTERVIEW WITH A REPRESENTATIVE OF OUR CLAIMS DIVISION ON MAY 29, 1956.

THE INCREASED ALLOWANCE PAYMENTS WERE BASED ON YOUR REPRESENTATIONS THAT YOUR MONTHLY CONTRIBUTIONS TO THE SUPPORT OF YOUR MOTHER, MRS. MARTHA H. STAY, WERE REQUIRED FOR HER SUPPORT AND THAT THEY CONSTITUTED THE CHIEF PART OF HER SUPPORT. ON THE BASIS OF A REPORT OF AN INVESTIGATION BY REPRESENTATIVES OF OUR OFFICE, INCLUDING A FURTHER INVESTIGATION MADE AT YOUR REQUEST, IT WAS CONCLUDED IN DECISIONS DATED MARCH 6, 1950, AND JUNE 20, 1952, TO MAJOR EARL W. WOLSLAGEL, DISBURSING OFFICER, AND TO THE SECRETARY OF THE AIR FORCE, RESPECTIVELY, B-86001-/S), B-89109, I-17000- 694, THAT YOUR MOTHER WAS NOT DEPENDENT ON YOU FOR CHIEF SUPPORT FOR THE PERIOD AUGUST 24, 1947, TO MAY 31, 1949, DURING WHICH YOU WERE PAID INCREASED ALLOWANCES ON HER ACCOUNT.

OUR ORIGINAL INVESTIGATION IN YOUR CASE, WHICH INCLUDED A PERSONAL INTERVIEW WITH YOUR MOTHER, DISCLOSED THAT YOU WERE DIVORCED FROM YOUR FORMER WIFE ON AUGUST 23, 1947, AND THAT COMMENCING THE FOLLOWING DAY YOU CLAIMED INCREASED ALLOWANCES ON ACCOUNT OF YOUR MOTHER. AT THE TIME OF THE INTERVIEW WITH YOUR MOTHER, SHE SAID THAT $100 OF THE $150 MONTHLY CHECK SENT TO HER BY YOU WAS DEPOSITED IN HER SAVINGS ACCOUNT AT THE UNION BANK AND TRUST COMPANY, MONTGOMERY, ALABAMA. SHE ALSO SAID THAT SHE WAS HELPING HER GRANDSON THROUGH COLLEGE AND DURING 1948 SHE HAD CONTRIBUTED ABOUT $200 TO HIM AND WOULD BE COMPELLED TO CONTRIBUTE AT LEAST $500 IN 1949. SHE ALSO STATED THAT SHE CONTRIBUTED ABOUT $100 A YEAR TO HER BROTHER-IN-LAW WHO WAS CONFINED TO A NURSING HOME. THE INVESTIGATION DISCLOSED THAT YOUR MOTHER HAD SEVERAL PIECES OF INCOME-PRODUCING PROPERTY, INCLUDING A THOUSAND ACRE PLANTATION; THAT BASED ON INCOME TAX RETURNS FILED BY HER FOR THE CALENDAR YEARS 1947 AND 1948 SHE HAD AN AVERAGE NET INCOME OF APPROXIMATELY $150 A MONTH DURING EACH OF THOSE YEARS, AND THAT THE LIVING EXPENSES ACTUALLY INCURRED BY YOUR MOTHER WOULD NOT AVERAGE MORE THAN $171.90 A MONTH. YOUR MOTHER ESTIMATED HER MONTHLY INCOME, EXCLUSIVE OF YOUR CONTRIBUTION, TO BE ABOUT $139.50, AND SHE STATED THAT YOUR PREVIOUS ESTIMATES OF BETWEEN $200 AND $250, OR AN AVERAGE OF $225 A MONTH, AS THE AMOUNTS OF HER LIVING EXPENSES, WERE ABOUT RIGHT.

IN SEVERAL OF YOUR LETTERS YOU ALLEGED THAT THE NET INCOME OF YOUR MOTHER FROM SOURCES OTHER THAN YOUR CONTRIBUTIONS WAS LESS THAN THE INCOME DETERMINED BY OUR REPRESENTATIVES, AND THAT THE MONTHLY LIVING EXPENSES OF YOUR MOTHER ACTUALLY WERE GREATER THAN THE AMOUNT SHOWN IN YOUR DEPENDENCY CERTIFICATES. IN YOUR LETTER OF AUGUST 22, 1949, YOU ITEMIZED YOUR MOTHER'S MONTHLY LIVING EXPENSES FOR 1947, 1948 AND 1949 TO AVERAGE APPROXIMATELY $284.16. ALSO, IN YOUR LETTER DATED MAY 24, 1949, YOU ATTEMPT TO EXPLAIN WHY CERTAIN ITEMS REPORTED BY YOUR MOTHER IN HER 1948 INCOME TAX RETURN SHOULD NOT HAVE BEEN INCLUDED AS INCOME, AND WHY CERTAIN OTHER ITEMS SHOULD HAVE BEEN REPORTED AS EXPENSES.

AT YOUR REQUEST A FURTHER INVESTIGATION WAS MADE BY REPRESENTATIVES OF OUR OFFICE--- THIS TIME WITHOUT A PERSONAL INTERVIEW WITH YOUR MOTHER PURSUANT TO YOUR REQUEST. IT WAS DISCLOSED THAT, CONTRARY TO YOUR APPARENT BELIEF, THE RECORDS AT MONTGOMERY COUNTY, ALABAMA, SHOW THAT PROPERTIES LOCATED AT 110 AND 112 FLOOD STREET, MONTGOMERY, ALABAMA, WHICH WERE SOLD BY YOUR MOTHER IN FEBRUARY 21 AND MAY 22, 1948, STILL REMAIN IN HER NAME AS MORTGAGEE. IT WAS NOT UNTIL JUNE AND JULY 1949 THAT THE MONTHLY MORTGAGE PAYMENTS OF $34.81 AND $31.62, PREVIOUSLY CREDITED TO YOUR MOTHER'S INDIVIDUAL BANK ACCOUNTS AT THE ALABAMA NATIONAL BANK AND THE FIRST NATIONAL BANK, WERE ACTUALLY CREDITED TO AN ACCOUNT IN THE NAMES OF HAZARD H. STAY, MARY S. BUCKNER AND ANNA F. S. STARR. THE LETTER OF OCTOBER 9, 1950, FROM THE TAX ASSESSOR'S OFFICE, MONTGOMERY COUNTY, ALABAMA--- SUBMITTED BY YOU--- MERELY SHOWS THE PROPERTY ASSESSED IN THE NAME OF YOUR MOTHER IN THAT COUNTY FOR TAX PURPOSES AT THAT TIME. ALSO, THE RECORDS AT THE COURT HOUSE, CENTERVILLE, ALABAMA, SHOW THAT MRS. MARTHA B. STAY'S ONE-THIRD INTEREST IN THE UNIMPROVED TIMBER LAND WAS DEEDED TO HAZARD H. STAY, MARY B. BUCKNER AND ANNA S. STARR, ON APRIL 1, 1950, BUT THAT SHE RESERVED TO HERSELF DURING HER LIFETIME THE INCOME, PROFITS AND USE OF THE PROPERTY. HENCE, IT WOULD APPEAR THAT ANY PROFIT MADE FROM THE SALE OF THE TIMBER PRIOR TO APRIL 1, 1950, ACCRUED TO YOUR MOTHER.

THE INVESTIGATION FURTHER DISCLOSED THAT COMMENCING OCTOBER 1947 REGULAR MONTHLY DEPOSITS WERE MADE IN A SAVINGS ACCOUNT AT THE UNION BANK AND TRUST COMPANY, MONTGOMERY, ALABAMA, IN THE NAME OF MRS. E. W. STAY, OR LIEUTENANT COLONEL HAZARD H. STAY, AS FOLLOWS: $75 FOR THE MONTHS OF OCTOBER AND NOVEMBER 1947; $150 JANUARY 1948; $75 FEBRUARY AND MARCH 1948; $100 APRIL, MAY, JUNE AND JULY 1948; $400 OCTOBER 1948; AND $100 FOR THE MONTHS OF DECEMBER 1948 THROUGH JULY 1949 (THE RECORD SHOWS THAT MONTHLY DEPOSITS CONTINUED TO BE MADE AFTER JULY 1949). THIS CONFIRMED THE INFORMATION DISCLOSED BY YOUR MOTHER DURING THE INTERVIEW WITH HER. YOUR LETTER OF OCTOBER 13, 1950, YOU STATED THAT A JOINT SAVINGS ACCOUNT WAS OPENED IN YOUR NAME AND YOUR MOTHER'S NAME FOR THE SOLE PURPOSE OF MEETING MEDICAL EXPENSES OF YOUR MOTHER,"PRINCIPALLY TO SAVE UP FOR AN OPERATION ON HER EYES FOR "CATARACT SURGERY WAS NOT ADVISED SINCE THE VISION IN THE O.S. WAS AT DR. KARL B. BENKWITH, MONTGOMERY, ALABAMA, IN WHICH HE CONCLUDED THAT "CATARACT SURGERY WAS NOT ADVISED SINCE THE VISION IN THE O.S. WAS AT THE HIGH LEVEL OF 20/30.' ON THE BASIS OF OUR FURTHER INVESTIGATION AND THE ADDITIONAL INFORMATION FURNISHED BY YOU IT WAS CONCLUDED THAT, IN ADDITION TO THE SUM OF $150 A MONTH CONTRIBUTED BY YOU, YOUR MOTHER'S AVERAGE INCOME FROM OTHER SOURCES AMOUNTED TO APPROXIMATELY $166, $352 AND $137 A MONTH DURING THE YEARS 1947, 1948 AND 1949, RESPECTIVELY, AND THAT HER LIVING EXPENSES AMOUNTED TO APPROXIMATELY $288 EACH MONTH.

THE PAYMENT OF INCREASED ALLOWANCES TO OFFICERS WITH DEPENDENTS DURING THE PERIOD HERE INVOLVED WAS GOVERNED BY SECTIONS 5 AND 6 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361. SECTION 4 OF THAT ACT DEFINED THE TERM "DEPENDENT," AS USED IN THE ACT, AS INCLUDING "THE FATHER OR MOTHER OF THE PERSON CONCERNED PROVIDED HE OR SHE IS IN FACT DEPENDENT ON SUCH PERSON FOR HIS OR HER CHIEF SUPPORT.' IT CONSISTENTLY HAS BEEN HELD, BOTH BY THE COURTS AND THE ACCOUNTING OFFICERS, THAT THE TERM "CHIEF SUPPORT" AS USED IN THE PAY READJUSTMENT ACT OF 1942 MEANS "MAIN" SUPPORT, OR ,PRINCIPAL" SUPPORT, THAT IS, WHERE THE PARENT IS DEPENDENT UPON THE OFFICER FOR "MOST" OR THE ,GREATER" PART OF THE FUNDS NECESSARY FOR HIS OR HER REASONABLE SUPPORT. GEER V. UNITED STATES, 76 C.CLS. 259. ALSO, IT HAS BEEN HELD THAT THE FACT THAT AN OFFICER'S MONTHLY CONTRIBUTION TO HIS MOTHER WAS IN EXCESS OF HER INDEPENDENT INCOME DOES NOT OF ITSELF ESTABLISH THE FACT THAT SHE WAS DEPENDENT ON HIM FOR HER CHIEF SUPPORT, BUT THAT IT MUST BE SHOWN THAT HIS CONTRIBUTION WAS REQUIRED FOR HER NECESSARY AND PROPER SUPPORT, AND THAT IT CONSTITUTED THE CHIEF PART OF SUCH SUPPORT. SEE ODLIN V. UNITED STATES, 74 C.CLS. 633; WHITING V. UNITED STATES, 80 C.CLS. 662.

WHILE, ORDINARILY, A MEMBER WILL BE CONSIDERED THE CHIEF SUPPORT OF HIS PARENT IF HIS AVERAGE MONTHLY CONTRIBUTIONS EXCEED 50 PERCENT OF THE PARENT'S AVERAGE MONTHLY LIVING EXPENSES, AND THE AVERAGE MONTHLY INCOME OF THE PARENT FROM ALL OTHER SOURCES IS LESS THAN 50 PERCENT OF HIS AVERAGE MONTHLY LIVING EXPENSES, THE PARENT MAY NOT BE CONSIDERED A DEPENDENT IF THE PARENT'S AVERAGE MONTHLY INCOME FROM ALL OTHER SOURCES EXCEEDS 50 PERCENT OF THE PARENT'S AVERAGE MONTHLY LIVING EXPENSES,IRRESPECTIVE OF WHETHER THE MEMBER'S CONTRIBUTIONS EXCEED 50 PERCENT OF SAID AVERAGE MONTHLY LIVING EXPENSES. AND IN THE WHITING CASE, CITED ABOVE, THE COURT STATED, AT PAGE 665:

"* * * THAT IT IS INCUMBENT ON THE OFFICER SEEKING THE BENEFIT OF ITS (THE STATUTE-S) PROVISIONS TO ESTABLISH (1) THE REASONABLE AND NECESSARY LIVING EXPENSES OF THE MOTHER WHOSE DEPENDENCY IS CLAIMED, AND (2) TO ESTABLISH THAT HIS CONTRIBUTION TO HER SUPPORT, OVER AND ABOVE THE AMOUNT OF HER INCOME FROM OTHER SOURCES, WAS SUCH AS TO MAKE HER DEPENDENT ON HIM FOR HER CHIEF SUPPORT. IN OTHER WORDS IT MUST BE SHOWN THAT THE AMOUNT REQUIRED FOR HER REASONABLE AND NECESSARY LIVING EXPENSES WAS CONTRIBUTED CHIEFLY BY THE PLAINTIFF OFFICER. * * *"

ON THE BASIS OF THESE RULES, YOUR MOTHER WAS NOT IN FACT DEPENDENT ON YOU FOR CHIEF SUPPORT DURING THE PERIOD INVOLVED, PARTICULARLY SINCE HER INCOME FROM OTHER SOURCES ($166 AND $352 A MONTH FOR THE YEARS 1947 AND 1948) WAS MORE, NOT LESS, THAN ONE-HALF OF HER AVERAGE MONTHLY LIVING EXPENSES ($288). FURTHER, WHILE YOUR MOTHER'S LIVING EXPENSES AMOUNTED TO $288 PER MONTH, YOUR CONTRIBUTION TO HER ($150 PER MONTH) WAS NOT USED FOR HER NECESSARY AND PROPER SUPPORT AS CONTEMPLATED BY THE LAW AND THE ABOVE- CITED COURT CASES, BUT RATHER APPROXIMATELY $100 A MONTH OF SUCH CONTRIBUTION WAS DEPOSITED IN A SAVINGS ACCOUNT DURING THE PERIOD OCTOBER 1947 TO JULY 1949, AND THE RECORDS SHOW THAT NO WITHDRAWALS WERE MADE FROM THAT ACCOUNT DURING THAT PERIOD. IT WILL BE NOTED THAT YOUR INDEBTEDNESS ON ACCOUNT OF IMPROPER PAYMENTS OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES COVERS THE PERIOD AUGUST 24, 1947, TO MAY 31, 1949, AND EVENTS OCCURRING ON AND AFTER JUNE 1, 1949, WOULD NOT CHANGE THE DEPENDENCY STATUS AS IT EXISTED DURING THE PERIOD OF YOUR INDEBTEDNESS.

YOUR INDEBTEDNESS WAS COMPUTED ON THE BASIS OF IMPROPER PAYMENTS MADE FROM AUGUST 24, 1947, TO MAY 31, 1949, AMOUNTING TO $1,239.70, LESS $362.70 PREVIOUSLY REMITTED BY YOU LEAVING AN UNPAID BALANCE OF $877. ACCORDINGLY, A REQUEST WILL BE DIRECTED TO THE AIR FORCE FINANCE CENTER, DENVER, COLORADO, THAT THE SUM OF $169.68 REPORTED TO BE DUE YOU FOR ACTIVE DUTY TRAINING PAY FOR THE PERIOD MAY 17 TO 31, 1956, BE CONSIDERED UNDER THE PROVISIONS OF THE ACT OF JULY 15, 1954, 68 STAT. 482; WHICH AUTHORIZES THE COLLECTION OF INDEBTEDNESS OF MILITARY PERSONNEL RESULTING FROM ERRONEOUS PAYMENTS, WITH A VIEW TO APPLYING SUCH SUM TO PARTIALLY LIQUIDATE YOUR INDEBTEDNESS. IN THE EVENT THE AMOUNT IS APPLIED IN LIQUIDATION OF YOUR INDEBTEDNESS IT WILL BE REDUCED TO $707.32. IN THE EVENT YOU ARE UNABLE TO REMIT THE REMAINING AMOUNT DUE, YOU SHOULD MAKE ARRANGEMENTS TO LIQUIDATE THE INDEBTEDNESS BY REGULAR MONTHLY INSTALLMENTS TO BE PAID WITHIN A ..END :