B-139217, AUG. 12, 1960

B-139217, AUG. 12, 1960

TO LIEUTENANT COLONEL R. H. MACPHERSON, FC:

YOUR LETTER OF MAY 9, 1960, REQUESTED ADVANCE DECISION CONCERNING THE PROPRIETY OF PAYMENT OF A REFUND VOUCHER IN FAVOR OF LUCINA E. RAFAEL, WIDOW OF LIEUTENANT BERNARDINO A. RAFAEL, 01914203, RETIRED. THE VOUCHER IS STATED IN THE AMOUNT OF $200, REPRESENTING DEDUCTIONS MADE FROM THE WIDOW'S ANNUITY PAYMENTS TO LIQUIDATE AN OVERPAYMENT OF RETIRED PAY TO HER LATE HUSBAND. YOUR REQUEST FOR DECISION WAS FORWARDED TO THIS OFFICE BY THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, BY 1ST INDORSEMENT OF JUNE 13, 1960, UNDER DO NO. 507, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT ON THE BASIS OF OUR DECISION OF JUNE 29, 1959, B 139217, IT HAS BEEN DETERMINED THAT THE DECEASED OFFICER RECEIVED AN OVERPAYMENT OF RETIRED PAY IN THE AMOUNT OF $4,653 FOR THE PERIOD OCTOBER 1, 1949, THROUGH MAY 31, 1958. YOU REPORT THAT THE MEMBER DIED ON JUNE 28, 1958, AND THAT IN THE PROCESS OF AUDIT FOLLOWING HIS DEATH THE OVERPAYMENT WAS DISCOVERED. IT IS STATED THAT HE HAD MADE AN ELECTION ON DECEMBER 15, 1953, UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, NOW CODIFIED IN 10 U.S.C. 1431-1444, TO PROVIDE AN ANNUITY PAYABLE TO OR ON BEHALF OF HIS WIDOW, FOLLOWING HIS DEATH. THE CHANGE IN RATE OF RETIRED PAY ENTITLEMENT, AS WELL AS CORRECTION OF THE AGE OF THE MEMBER TO CORRESPOND TO HIS AGE AS SHOWN ON THE DEATH CERTIFICATE, RESULTED IN A CORRECTION IN THE COST OF THE ANNUITY AND THE MONTHLY RATE OF ANNUITY PAYABLE TO THE WIDOW. THESE CORRECTIONS WERE MADE SUBSEQUENT TO OUR DECISION OF JUNE 29, 1959. YOU STATE FURTHER THAT PAYMENT OF ARREARS OF RETIRED PAY AND ANNUITY PAYMENTS WERE WITHHELD UNTIL SUCH DECISION WAS RENDERED AND THAT ARREARS OF RETIRED PAY DUE THE DECEDENT, LESS THE COST OF THE ANNUITY, AMOUNTED TO $221.25. THIS AMOUNT IS STATED TO HAVE BEEN APPLIED TO THE GROSS INDEBTEDNESS OF $4,653.85 AND IT IS INDICATED THAT THE ACCUMULATED ANNUITY HAS BEEN PAID TO THE WIDOW, LUCINA E. RAFAEL. YOU STATE FURTHER THAT MRS. RAFAEL HAS AUTHORIZED A $20 PER MONTH DEDUCTION TO BE MADE FROM HER ANNUITY EFFECTIVE JULY 1, 1959, TO APPLY TOWARDS LIQUIDATING THE REMAINING $4,432.60 INDEBTEDNESS CREATED BY THE OVERPAYMENT OF RETIRED PAY TO LIEUTENANT RAFAEL. ATTACHED TO YOUR SUBMISSION IS A COPY OF A NOTARIZED AFFIDAVIT THE WIDOW HAS SUPPLIED WHEREIN SHE STATES THE DECEASED MEMBER DID NOT HAVE AN ESTATE AND THAT NO WILL WAS MADE.

YOU STATE THAT MRS. RAFAEL IS NOT CONSIDERED A LIABLE DEBTOR, BUT RATHER AS A VOLUNTEER WHO HAS ASSUMED THE DEBT; THAT SHE HAS NOT PROTESTED THE WITHHOLDING ACTION OR QUESTIONED ITS LEGALITY; BUT THAT SINCE THE AIR FORCE HAS QUESTIONED THE PROPRIETY OF WITHHOLDING THE ANNUITY, DOUBT NOW EXISTS AS TO WHETHER THE COLLECTION ACTION TAKEN WAS PROPER OR COULD BE LEGALLY SUSTAINED SHOULD THE ANNUITANT PROTEST THE COLLECTION. YOU CITE 35 COMP. GEN. 12 AS POSSIBLY SUPPORTING THE ACTION TAKEN.

THE CONTINGENCY OPTION ACT, 10 U.S.C. 1440, PROVIDES THAT NO ANNUITY IS ASSIGNABLE OR SUBJECT TO EXECUTION, LEVY, ATTACHMENT, GARNISHMENT OR OTHER LEGAL PROCESS. UNDER SUCH STATUTORY PROHIBITION, NO ASSIGNMENT OF THE ANNUITY CAN BE MADE AND NO PART OF THE ANNUITY PAYABLE TO MRS. RAFAEL MAY BE WITHHELD TO PAY A DEBT OWED BY HER HUSBAND.

OUR DECISION OF JULY 13, 1955, HAS NO BEARING ON THE QUESTION HERE INVOLVED, SINCE THE MATTER THERE CONSIDERED RELATED TO THE COLLECTION OF AMOUNTS A DECEASED MEMBER HAD FAILED TO PAY IN PURCHASING A CONTINGENCY OPTION ACT ANNUITY UNDER SECTION 5 OF THAT ACT, PRIOR TO HIS DEATH. THE COSTS OF THE ANNUITY HAVE BEEN COLLECTED IN THE PRESENT CASE AND THE DEBT INVOLVED IS A GENERAL DEBT OF THE DECEASED MEMBER'S ESTATE FOR WHICH MRS. RAFAEL IS NOT PERSONALLY RESPONSIBLE.

WHILE THE UNITED STATES CANNOT WITHHOLD ANY PART OF THE ANNUITY TO COLLECT A DEBT OF THIS NATURE THE WIDOW MAY VOLUNTARILY ASSUME THE OBLIGATION AND AUTHORIZE THE WITHHOLDING OF A PORTION OF THE PAYMENTS DUE HER, TOWARDS THE EXTINGUISHMENT OF THE DEBT. HOWEVER, IT CANNOT BE SAID THAT MRS. RAFAEL HAS VOLUNTARILY AGREED TO PAY THE DEBT UNLESS SHE IS FULLY AWARE THAT NO PART OF THE ANNUITY MAY BE WITHHELD FOR THAT PURPOSE. THERE IS NOTHING IN THE PRESENT RECORD WHICH SHOWS THAT SHE HAS BEEN ADVISED AS TO HER RIGHTS IN THE PREMISES. HER LETTER OF JULY 22, 1959, INDICATES THAT SHE MAY HAVE BEEN UNDER A MISAPPREHENSION AS TO HER LIABILITY FOR THE DEBT AND THAT THE OFFER OF A $20 MONTHLY REPAYMENT DEDUCTION FROM HER ANNUITY WAS MADE TO PREVENT THE ENTIRE AMOUNT FROM BEING WITHHELD.

IN ORDER TO CLARIFY THE SITUATION AND REMOVE ANY DOUBT AS TO WHETHER HER ACTION WAS ENTIRELY VOLUNTARY, THE WIDOW SHOULD BE ADVISED THAT SHE IS NOT PERSONALLY LIABLE FOR THE DEBT AND THAT SHE NEED NOT ASSUME THE OBLIGATION UNLESS SHE BELIEVES THAT SHE SHOULD DO SO. IN THE EVENT THAT SHE CANCELS THE AUTHORIZATION NOW ON FILE, REFUND OF THE AMOUNTS WITHHELD SHOULD BE MADE TO HER AND APPROPRIATE REFERENCE TO THIS DECISION ENTERED IN THE ACCOUNTS OF THE DISBURSING OFFICERS TO WHOM AUDIT EXCEPTIONS COVERING ANY OF THE OVERPAYMENTS WERE ADDRESSED.