B-123948, AUG. 5, 1955

B-123948, AUG. 5, 1955

TO MRS. ANNA WHITMAN LOWE:

REFERENCE IS MADE TO LETTER DATED APRIL 7, 1955, WRITTEN ON YOUR BEHALF BY MR. GEORGE W. MOORHEAD, CONCERNING YOUR CLAIM FOR AN AMOUNT DUE THE ESTATE OF YOUR LATE SON, LAVERE L. LOWE, FORMER ENLISTED MAN, UNITED STATES NAVY.

BY SETTLEMENT OF OUR CLAIMS DIVISION DATED DECEMBER 7, 1954, YOUR SON WAS ALLOWED THE SUM OF $308.25 ON ACCOUNT OF BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENT MOTHER FOR THE PERIODS NOVEMBER 18 TO DECEMBER 31, 1950, AND JULY 1 TO OCTOBER 4, 1951, INCIDENT TO HIS SERVICE AS ELECTRICIAN'S MATE, THIRD CLASS, UNITED STATES NAVY. HE WAS ADVISED THAT OF THE AMOUNT ALLOWED THE SUM OF $136.74 WOULD BE APPLIED IN LIQUIDATION OF THE BALANCE OF HIS INDEBTEDNESS TO THE UNITED STATES FOR OVERPAYMENT MADE TO HIM AT THE TIME OF HIS DISCHARGE ON OCTOBER 4, 1951. CHECK NO. 26,609,720 DATED DECEMBER 17, 1954, WAS ISSUED IN FAVOR OF YOUR SON FOR THE SUM OF $171.51, REPRESENTING THE BALANCE OF THE AMOUNT ALLOWED BY THE SETTLEMENT OF DECEMBER 7, 1954. BY LETTER DATED JANUARY 3, 1955, MR. MOORHEAD, ON YOUR BEHALF, ADVISED THE CLAIMS DIVISION THAT YOUR SON DIED IN THE EARLY PART OF 1954, AND REQUESTED THAT THE AMOUNT OF THE CHECK BE PAID TO YOU. AFTER THE RECEIPT OF THE CHECK, THE CLAIMS DIVISION ADVISED YOU BY SETTLEMENT OF MARCH 30, 1955, THAT SINCE BASIC ALLOWANCE FOR QUARTERS WITH A DEPENDENT IS AN ALLOWANCE PAYABLE TO THE SERVICEMAN CONCERNED AND NOT PAYABLE TO THE DEPENDENT IN HER OWN RIGHT, NO PAYMENT WAS DUE TO YOU. YOU WERE ALSO ADVISED THAT UNDER THE ACT OF FEBRUARY 25, 1946, 60 STAT. 30, WHICH GOVERNS THE SETTLEMENT OF ACCOUNTS OF DECEASED PERSONNEL OF THE NAVY, THE WIDOW OF YOUR SON WAS THE PREFERRED HEIR IN THE ABSENCE OF A CLAIM BY A LEGAL REPRESENTATIVE OF HIS ESTATE. IN THE LETTER OF APRIL 7, 1955, MR. MOORHEAD APPEARS TO BELIEVE THAT HAD THE BASIC ALLOWANCE FOR QUARTERS BEEN AUTHORIZED CURRENTLY DURING THE PERIODS NOVEMBER 18 TO DECEMBER 31, 1950, AND JULY 1 TO OCTOBER 4, 1951, WHEN YOUR SON WAS ON ACTIVE DUTY AND PRIOR TO HIS MARRIAGE, PAYMENT OF THE ALLOWANCE WOULD HAVE BEEN MADE TO YOU. HE, THEREFORE, URGES THAT PAYMENT BE NOW MADE TO YOU.

THE STATUTORY PROVISIONS AUTHORIZING THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF DEPENDENTS DURING THE PERIOD INVOLVED ARE CONTAINED IN SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, AS AMENDED BY THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 794. THE SECTION, AS AMENDED, PROVIDES IN PART AS FOLLOWS:

"EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION OR BY ANY OTHER PROVISION OF LAW, MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR QUARTERS IN SUCH AMOUNT AND UNDER SUCH CIRCUMSTANCES AS ARE PROVIDED IN THIS SECTION * * *.'

THE SECTION, AS AMENDED, FURTHER PROVIDES IN THE CASE OF AN ENLISTED MAN WITH DEPENDENTS, THAT PAYMENT OF THE ALLOWANCE SHALL BE MADE ONLY FOR SUCH PERIOD AS THE ENLISTED MAN HAS IN EFFECT AN ALLOTMENT OF HIS PAY IN AN AMOUNT NOT LESS THAN THE SUM OF THE QUARTERS ALLOWANCE TO WHICH HE IS ENTITLED PLUS AN ADDITIONAL SUM SPECIFIED FOR THE SUPPORT OF THE DEPENDENT ON WHOSE ACCOUNT THE ALLOWANCE IS CLAIMED. UNDER SUCH PROVISIONS THE QUARTERS ALLOWANCE IS PAYABLE TO THE ENLISTED MAN AND THE ALLOTMENT OF HIS PAY IS PAID TO THE DEPENDENT.

SINCE YOUR SON DIED PRIOR TO THE PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS AUTHORIZED BY THE SETTLEMENT OF DECEMBER 7, 1954, THE AMOUNT DUE IS FOR SETTLEMENT IN ACCORDANCE WITH THE ACT OF FEBRUARY 25, 1946. ACCORDINGLY, PAYMENT OF YOUR CLAIM IS NOT AUTHORIZED, AND THE SETTLEMENT OF MARCH 30, 1955, DISALLOWING YOUR CLAIM, IS SUSTAINED.