B-135123, MAR. 4, 1958

B-135123, MAR. 4, 1958

TO MR. ROBERT V. BROOK:

REFERENCE IS MADE TO LETTER DATED JANUARY 16, 1958, WRITTEN ON YOUR BEHALF BY MR. J. FRANK SHEPHERD, RELATIVE TO YOUR INDEBTEDNESS TO THE UNITED STATES AMOUNTING TO $322, REPRESENTING OVERPAYMENT OF FAMILY ALLOWANCE PAID TO YOUR FORMER WIFE AMOUNTING TO $190, AND NON-DEDUCTION OF $22 MONTHLY AS YOUR CONTRIBUTION TO THE FAMILY ALLOWANCE PAID TO HER ON ACCOUNT OF YOUR CHILD AMOUNTING TO $132. EACH OF THESE ITEMS WAS FULLY EXPLAINED TO YOU IN LETTER OF OUR CLAIMS DIVISION DATED DECEMBER 30, 1957.

WITH RESPECT TO THE PAYMENT OF A FAMILY ALLOWANCE TO A WIFE SEPARATED OR DIVORCED FROM HER HUSBAND, SECTION 106 (C) OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED BY SECTION 6 (C) OF THE ACT OF OCTOBER 26, 1943, 37 U.S.C. 206 (C) (1946 EDITION), PROVIDED:

"/C) NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS CHAPTER, IN ANY CASE IN WHICH A FAMILY ALLOWANCE IS GRANTED UNDER THIS CHAPTER---

"/1) TO A WIFE LIVING SEPARATE AND APART FROM THE ENLISTED MAN UNDER A PERMANENT OR TEMPORARY COURT ORDER OR DECREE OR WRITTEN AGREEMENT, THE AMOUNT OF THE FAMILY ALLOWANCE PAYABLE TO SUCH WIFE SHALL NOT EXCEED THE AMOUNT PROVIDED IN SUCH ORDER, DECREE, OR WRITTEN AGREEMENT TO BE PAID TO SUCH WIFE, AND IF SUCH ORDER, DECREE, OR WRITTEN AGREEMENT PROVIDES NO AMOUNT TO BE PAID TO SUCH WIFE, NO FAMILY ALLOWANCE SHALL BE PAYABLE TO HER; OR

"/2) TO A FORMER WIFE DIVORCED, THE FAMILY ALLOWANCE PAYABLE TO SUCH FORMER WIFE DIVORCED SHALL NOT EXCEED THE AMOUNT FIXED IN THE COURT ORDER OR DECREE AS THE AMOUNT TO BE PAID TO SUCH FORMER WIFE DIVORCED.'

SECTION 106 (A) OF THE 1942 ACT PROVIDED THAT THE MONTHLY PAY OF AN ENLISTED MAN SHOULD BE REDUCED BY OR CHARGED WITH $22 FOR ANY MONTH FOR WHICH A FAMILY ALLOWANCE WAS PAID TO THE DEPENDENT OF SUCH ENLISTED MAN. SECTION 105 OF THAT ACT PROVIDED THAT THE AMOUNT OF THE MONTHLY FAMILY ALLOWANCE PAYABLE TO THE DEPENDENT OR DEPENDENTS OF AN ENLISTED MAN SHOULD BE $80 FOR A WIFE AND ONE CHILD OR $42 FOR A CHILD BUT NO WIFE.

IT APPEARS TO BE YOUR ATTORNEY'S CONTENTION THAT THE REPEAL OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT BY SECTION 531 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 841, BARS RECOVERY FROM YOU AFTER OCTOBER 1, 1949, OF THE ERRONEOUS PAYMENTS MADE TO YOU UNDER THE EARLIER STATUTE. NO AUTHORITY WAS CITED FOR THAT CONCLUSION AND WE KNOW OF NONE WHICH SUPPORTS THAT POINT OF VIEW. THAT REPEAL MERELY PUT AN END TO FURTHER PAYMENTS OF FAMILY ALLOWANCES EXCEPT IN CASES OF "SAVED PAY" AUTHORIZED UNDER THE CAREER COMPENSATION ACT. SUCH REPEAL FORMS NO BASIS FOR PERMITTING IMPROPER PAYMENTS OF FAMILY ALLOWANCE TO GO UNQUESTIONED.

THE RECORD SHOWS THAT BY AN ORDER ENTERED FEBRUARY 12, 1946, IN THE CIRCUIT COURT FOR THE CITY OF LYNCHBURG, VIRGINIA, IN THE CASE OF ROBERT VERNON BROOK V. LAURA VIRGINIA BROOK, A DIVORCE "A MENSA ET THORO" WAS GRANTED TO YOU. BY AN ORDER ENTERED JUNE 1, 1946, IN THE SAME COURT INVOLVING THE SAME PARTIES, THE DECREE OF DIVORCE "A MENSA ET THORO" WAS MERGED INTO A FINAL DECREE OF DIVORCE AND THE MARRIAGE DISSOLVED. NEITHER OF THOSE ORDERS MADE ANY PROVISION FOR THE SUPPORT OF LAURA VIRGINIA BROOK, BUT THE ORDER OF FEBRUARY 12, 1946, GRANTED HER THE LEGAL CUSTODY OF YOUR MINOR CHILD, GLORIA JEAN BROOK. THE RECORD SHOWS FURTHER, THAT YOU DID NOT NOTIFY YOUR DISBURSING OFFICER AND THE OFFICE OF DEPENDENCY BENEFITS OF ANY CHANGE IN YOUR MARITAL STATUS UNTIL THE LATTER PART OF JULY 1946 WHEN YOU REPORTED THAT YOU WERE DIVORCED ON JUNE 1, 1946. THIS DELAY ON YOUR PART RESULTED IN OVERPAYMENT TO LAURA VIRGINIA BROOK FOR THE PERIOD FROM MARCH 1, 1946, THROUGH JULY 31, 1946, OF THE DIFFERENCE BETWEEN $80 MONTHLY, AS PAID, AND $42 MONTHLY, AS ENTITLED FOR YOUR CHILD, GLORIA JEAN BROOK, OR $38 MONTHLY FOR FIVE MONTHS AMOUNTING TO $190.

IN ADDITION TO THE FOREGOING, OUR RECORDS SHOW THAT YOUR FORMER WIFE WAS ENTITLED TO AND WAS PAID THE SUM OF $42 MONTHLY FOR YOUR CHILD, GLORIA, FOR THE PERIOD FROM AUGUST 1, 1946, THROUGH DECEMBER 31, 1946. HOWEVER, YOUR MILITARY PAY ACCOUNT FAILS TO SHOW THAT DEDUCTIONS OF $22 MONTHLY WERE DEDUCTED FROM YOUR PAY FOR THE PERIOD FROM JULY 1, 1946, THROUGH DECEMBER 31, 1946, AS REQUIRED BY THE ABOVE-CITED PROVISIONS OF LAW. THE RESULT WAS THAT YOU WERE OVERPAID AT THE RATE OF $22 MONTHLY FOR THAT PERIOD OF SIX MONTHS, OR $132. THUS, THE OVERPAYMENTS MADE TOTAL $322.

IT IS WELL ESTABLISHED THAT PERSONS RECEIVING MONEY ERRONEOUSLY PAID BY A GOVERNMENT AGENCY OR OFFICIAL ACQUIRE NO RIGHT TO THE MONEY AND THE COURTS CONSISTENTLY HAVE HELD THAT SUCH PERSONS ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION. ACCORDINGLY, WE SEE NO REASON WHY YOU SHOULD NOT REPAY THE AMOUNT OF THE OVERPAYMENTS. SEE UNITED STATES V. BURCHARD, 125 U.S. 176; WISCONSIN CENTRAL RAILROAD CO., V. UNITED STATES, 164 U.S. 190; UNITED STATES V. BENTLEY, 107 F.2D 382; AND THE CASES COLLECTED AND DISCUSSED IN UNITED STATES V. SUTTON CHEMICAL COMPANY, 11 F.2D 24, AND IN 63 A.L.R. 1346. THOSE IMPROPER PAYMENTS CONSTITUTE A DEBT DUE TO THE UNITED STATES FROM YOU. 33 COMP. GEN. 309.

SINCE IT APPEARS FROM RECORDS AVAILABLE TO US THAT YOU ARE FINANCIALLY ABLE TO MAKE MONTHLY REMITTANCES TO REDUCE THIS DEBT OF $322, IT IS REQUESTED THAT COMMENCING WITHIN 30 DAYS FROM THE DATE OF THIS LETTER YOU BEGIN TO MAKE MONTHLY PAYMENTS, SUBMITTING WITH THE FIRST PAYMENT A PLAN FOR SETTLEMENT SO THAT THE BALANCE MAY BE LIQUIDATED WITHIN A REASONABLE TIME.

YOUR PAYMENTS SHOULD BE MADE PAYABLE TO THE UNITED STATES GENERAL ACCOUNTING OFFICE, POST OFFICE BOX 2610, WASHINGTON 13, D.C. ..END :