B-128933, SEP. 25, 1956

B-128933, SEP. 25, 1956

TO MR. ROBERT J. BURGESS:

REFERENCE IS MADE TO YOUR LETTER OF MAY 2, 1956, REQUESTING REVIEW OF THE DEBT CHARGE AGAINST YOU IN THE AMOUNT OF $264 ON ACCOUNT OF ERRONEOUS FAMILY ALLOWANCE PAYMENTS MADE TO GERALDINE F. BURGESS, YOUR FORMER WIFE, FOR THE PERIOD FROM MAY 1, 1944, THROUGH APRIL 30, 1945, WHILE YOU WERE SERVING IN THE ARMY.

IT APPEARS THAT YOU APPLIED FOR THE FAMILY ALLOWANCE FOR GERALDINE F. BURGESS TO BE EFFECTIVE WITH THE MONTH OF MAY 1943; THAT SUCH ALLOWANCE WAS PAID TO HER AT THE RATE OF $50 A MONTH THROUGH APRIL 1945; AND THAT DEDUCTIONS OF $22 A MONTH AS YOUR CONTRIBUTION TO SUCH ALLOWANCE WERE MADE FROM YOUR PAY THROUGH JUNE 1945. IN MAY 1945GERALDINE F. BURGESS NOTIFIED THE WAR DEPARTMENT THAT SHE WAS THEN DIVORCED FROM YOU. IN THE SAME MONTH YOUR MOTHER, MRS. ANNA BURGESS, FURNISHED THAT DEPARTMENT A COPY OF A FINAL JUDGMENT OF DIVORCE ENTERED ON MAY 4, 1945, IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA, IN THE CASE OF GERALDINE FRANCES BURGESS, PLAINTIFF, V. ROBERT JOHN BURGESS, DEFENDANT. IN THAT FINAL JUDGMENT OF DIVORCE IT WAS SHOWN THAT AN INTERLOCUTORY JUDGMENT OF DIVORCE IN FAVOR OF THE PLAINTIFF WAS ENTERED ON APRIL 14, 1944. AFTER THE RECEIPT OF SUCH NOTICES, THE WAR DEPARTMENT ON MAY 28, 1945, DISCONTINUED THE FAMILY ALLOWANCE IN THIS CASE, EFFECTIVE APRIL 30, 1944, RESULTING IN AN OVERPAYMENT FOR THE PERIOD FROM MAY 1, 1944, THROUGH APRIL 30, 1945, IN THE AMOUNT OF $600. THE SUM OF $264, REPRESENTING DEDUCTIONS FROM YOUR PAY AT THE RATE OF $22 A MONTH FOR THE 12-MONTH PERIOD FROM MAY 1, 1944, TO APRIL 30, 1945, WAS INCLUDED IN THE AMOUNT REFUNDED TO YOU ON VOUCHER NO. 693, AUGUST 1945 ACCOUNTS OF T. ROOT.

IT IS YOUR CONTENTION THAT THE OVERPAYMENT WAS MADE TO GERALDINE F. BURGESS AT A TIME WHEN YOU WERE NO LONGER FINANCIALLY RESPONSIBLE FOR HER AND THAT YOU ARE NEITHER LEGALLY NOR MORALLY OBLIGATED TO REPAY THIS AMOUNT. YOU SAY THAT THE CHECKS WERE FRAUDULENTLY CASHED BY YOUR DIVORCED WIFE AND THAT YOU DID NOT SANCTION OR CONCUR IN SUCH ACTION. YOU SAY ALSO THAT YOU SUBMITTED ,FIRST PAPERS" TO THE ARMY PERSONNEL CLERK OVERSEAS IN MAY 1944, BUT THAT NOTHING WAS DONE AT THAT TIME.

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, 56 STAT. 383, AS AMENDED BY SECTION 6 (C) OF THE ACT OF OCTOBER 26, 1943, 57 STAT. 578, PROVIDED:

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

"/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 AMOUNT OF 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 107 (A) OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 382, 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 107 OF THE ACT, AS AMENDED BY THE ACT OF OCTOBER 26, 1943, 57 STAT. 579, PROVIDED THAT:

"/B) THE MONTHLY FAMILY ALLOWANCE PROVIDED FOR BY THIS TITLE SHALL BE PAID FOR THE PERIOD BEGINNING * * * AND SHALL BE TERMINATED OR REDUCED, AS MAY BE REQUIRED, ON THE LAST DAY OF THE MONTH IN WHICH THE DISBURSING OFFICER PAYING THE ALLOWANCE RECEIVES NOTICE OF A CHANGE IN STATUS OF THE ENLISTED MAN OR A DEPENDENT WHICH TERMINATED OR LIMITED THE RIGHT OF HIS DEPENDENT OR DEPENDENTS TO RECEIVE SUCH ALLOWANCE: PROVIDED, THAT THE ENTITLEMENT TO FAMILY ALLOWANCE SHALL TERMINATE OR BE MODIFIED AT THE END OF THE MONTH IN WHICH SUCH CHANGE IN STATUS OF THE ENLISTED MAN OR A DEPENDENT OCCURS * * *.'

SECTION 111 OF THE ACT, 56 STAT. 384, PROVIDED THAT THE ACT SHOULD BE ADMINISTERED BY THE SECRETARY OF WAR IN ITS APPLICATION TO ENLISTED MEN OF THE ARMY AND SECTION 112 PROVIDED THAT THE DETERMINATION OF ALL FACTS, INCLUDING THE FACT OF DEPENDENCY, WHICH IT SHOULD BE NECESSARY TO DETERMINE IN THE ADMINISTRATION OF THE ACT, SHOULD BE MADE BY HIM AND SHOULD BE FINAL AND CONCLUSIVE FOR ALL PURPOSES. WHILE THERE HAS NOT BEEN PRESENTED TO OUR OFFICE A COPY OF THE INTERLOCUTORY JUDGMENT OF DIVORCE, IN VIEW OF THE DETERMINATION OF THE WAR DEPARTMENT THAT YOUR FORMER WIFE WAS NOT ENTITLED TO THE FAMILY ALLOWANCE PAYMENTS AFTER APRIL 1944, PRESUMABLY THAT JUDGMENT DID NOT REQUIRE YOU TO CONTRIBUTE TO HER SUPPORT. DEMAND WAS ORIGINALLY MADE ON YOU FOR THE SUM OF $600, THE FULL AMOUNT OF THE OVERPAYMENT FOR THE PERIOD FROM MAY 1, 1944, TO APRIL 30, 1945, BUT THE DEMAND, AS REVISED, WAS FOR $264, REPRESENTING YOUR CONTRIBUTION OF $22 A MONTH TO THE FAMILY ALLOWANCE FOR THE 12-MONTH PERIOD IN QUESTION.

YOUR ATTENTION IS INVITED TO OUR DECISION OF JANUARY 27, 1954, B 116606, B-118807, 33 COMP. GEN. 309, 312, WHERE, AS TO FAMILY ALLOWANCE PAYMENTS MADE WHILE THE ENLISTED MAN CONCERNED WAS IN THE SERVICE, IT WAS POINTED OUT THAT THE ENLISTED MAN WOULD BE JOINTLY LIABLE WITH THE RECIPIENT OF THE FAMILY ALLOWANCE FOR DEDUCTIONS NOT MADE FOR ANY INTERVENING MONTHS BETWEEN THE CHANGE OF STATUS AND THE DATE THE DISBURSING OFFICER RECEIVED NOTICE. HE WOULD NOT BE LIABLE FOR THE AMOUNT OF THE GOVERNMENT'S CONTRIBUTION TO SUCH FAMILY ALLOWANCE PAYMENTS FOR SUCH INTERVENING MONTHS, UNLESS IT WAS SHOWN THAT HE WAS AT FAULT.

ON SUCH BASIS, YOU ARE PROPERLY CHARGEABLE WITH THE AMOUNT OF YOUR CONTRIBUTION TO THE FAMILY ALLOWANCE--- $22 A MONTH--- FOR THE PAYMENTS MADE TO YOUR FORMER WIFE FOR THE PERIOD FROM MAY 1, 1944, TO APRIL 30, 1945. ACCORDINGLY, THE MATTER IS AGAIN BEING BROUGHT TO THE ATTENTION OF THE SECRETARY OF THE NAVY FOR APPROPRIATE ACTION.