B-135230, APR. 2, 1958

B-135230, APR. 2, 1958

TO MRS. GRACE FETTINGER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 9, 1958, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $225 REPRESENTING ERRONEOUS PAYMENTS OF CLASS E ALLOTMENTS MADE TO YOU AS THE WIFE OF HAROLD G. BOUND, WHILE HE WAS SERVING IN THE ARMY OF THE UNITED STATES.

OUR RECORDS SHOW THAT MR. BOUND AUTHORIZED A VOLUNTARY (CLASS E) ALLOTMENT AT $25 A MONTH TO YOU COMMENCING JULY 1, 1942. ON JULY 22, 1942, HE EXECUTED "NOTIFICATION OF DISCONTINUANCE OF ALLOTMENT" (W.D., A.G.O. FORM NO. 30), PROVIDING FOR THE DISCONTINUANCE OF THAT ALLOTMENT TO YOU, EFFECTIVE JULY 1, 1942, BECAUSE OF APPLICATION FOR SERVICEMEN'S DEPENDENT ALLOWANCE BENEFITS. THAT FORM CONTAINED A NOTATION AS FOLLOWS:

"PAYMENT TO CONTINUE THROUGH SEPT/42 UNDER THIS ALLOTMENT AND THE TOTAL SO PAID FROM DATE OF CANCELLATION THROUGH SEPT/42 IS TO BE DEDUCTED FROM THE FIRST PAYMENT UNDER THE SERVICEMENS DEPENDENTS ALLOWANCE ACT.'

SUCH PROCEDURE WAS IN CONFORMANCE WITH THE ESTABLISHED POLICY OF THE DEPARTMENT OF THE ARMY AT THAT TIME, PERMITTING AN ENLISTED MAN TO AUTHORIZE A CLASS E ALLOTMENT TO HIS DEPENDENT FOR THE PERIOD FROM JUNE 1, 1942, THROUGH SEPTEMBER 30, 1942, WITHOUT A CORRESPONDING DEDUCTION FROM HIS PAY. THIS PROCEDURE APPARENTLY WAS ADOPTED IN ORDER TO ALLEVIATE HARDSHIP ON THE PART OF THE ENLISTED MAN'S DEPENDENT WHILE THE AGENCY WHICH ADMINISTERED THE SAID SERVICEMEN'S DEPENDENTS ALLOWANCE ACT, 56 STAT. 382, WAS BEING ESTABLISHED. IN OTHER WORDS, THE PURPOSE OF SUCH PROCEDURE WAS TO CONTINUE THE ALLOTMENTS UNTIL ALL ARRANGEMENTS HAD BEEN MADE FOR THE PAYMENT OF FAMILY ALLOWANCE AND UNTIL SUCH PAYMENTS ACTUALLY COMMENCED. THE RECORDS SHOW THAT CLASS E ALLOTMENT AT THE RATE OF $25 A MONTH WAS PAID TO YOU FOR THE MONTHS OF JULY, AUGUST AND SEPTEMBER 1942. NO CORRESPONDING DEDUCTIONS WERE MADE FROM MR. BOUND'S PAY FOR THOSE MONTHS AS REQUIRED NOR WAS DEDUCTION MADE FROM THE FIRST PAYMENT TO YOU OF FAMILY ALLOWANCE. UNDER THE CIRCUMSTANCES, WE HELD THAT MR. BOUND WAS LEGALLY OBLIGATED TO REPAY THE GOVERNMENT FOR THE PAYMENTS MADE TO YOU FOR THE PERIOD ON AND BEFORE SEPTEMBER 30, 1942. MR. BOUND HAS MADE PAYMENTS ON ACCOUNT TOTALING $55.

YOUR SHARE OF THE INDEBTEDNESS REPRESENTS CLASS E ALLOTMENT PAYMENTS AT $25 A MONTH MADE TO YOU FOR THE MONTHS OF OCTOBER 1942 THROUGH JUNE 1943, OR FOR 9 MONTHS, TOTALING $225. THIS AMOUNT ERRONEOUSLY WAS STATED TO BE $200 IN LETTER OF JUNE 7, 1957, TO HONORABLE A. B. RAUMHART, JR., M.C. THIS PORTION HERETOFORE WAS CONSIDERED AS BEING CHARGEABLE SOLELY AGAINST YOU BECAUSE THESE PAYMENTS WERE MADE FOR PERIODS SUBSEQUENT TO SEPTEMBER 30, 1942, THE DATE MR. BOUND REQUESTED DISCONTINUANCE OF THE ALLOTMENT. HOWEVER, WHEN YOUR PRIOR LETTERS ARE READ IN THE LIGHT OF THE CLARIFYING STATEMENTS MADE IN YOUR LETTER OF JANUARY 9, 1958, IT IS APPARENT THAT YOUR FORMER HUSBAND SHOULD BE HELD JOINTLY AND SEVERALLY LIABLE WITH YOU FOR THE ERRONEOUS PAYMENTS TOTALING $225 MADE AFTER HE REQUESTED THAT THE CLASS E ALLOTMENT BE DISCONTINUED, IT BEING EVIDENT THAT HE KNEW THAT YOU HAD RECEIVED THE PAYMENTS INVOLVED AND THAT HE ACTUALLY SHARED IN THEIR USE. SEE 33 COMP. GEN. 309. THIS ACTION, OF COURSE, IS NOT TO BE CONSIDERED AS RELIEVING YOU OF YOUR OBLIGATION TO RETURN TO THE GOVERNMENT THE MONEY PAID TO YOU ERRONEOUSLY. YOUR CONTENTION THAT YOUR FORMER HUSBAND ALONE SHOULD REPAY THIS MONEY BECAUSE "MR. BOUND WAS THE ONE THAT SPENT IT," IS NOT UNDERSTOOD, SINCE YOUR STATEMENT THAT YOU SUPPORTED YOURSELF AND PUT HIS ALLOTMENTS IN THE BANK APPLIES TO "THE LAST YEAR IN THE WAR," A PERIOD PRIOR TO THE ONE HERE INVOLVED. PRESUMABLY, YOU SPENT A LARGE PORTION OF THE $225. WHILE YOU MAY HAVE SPENT SUCH MONEY FOR FAMILY PURPOSES, IT WAS MONEY WHICH BELONGED TO THE GOVERNMENT, NOT TO YOUR HUSBAND.

IT IS WELL ESTABLISHED THAT PERSONS WHO RECEIVE 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, ALTHOUGH MR. BOUND IS BEING HELD JOINTLY LIABLE WITH YOU FOR REFUND OF THIS ITEM OF $225, THE FACT THAT YOU INNOCENTLY MAY HAVE RECEIVED THE CLASS E ALLOTMENT PAYMENTS DOES NOT RELIEVE YOU OF YOUR LIABILITY TO RETURN THOSE PAYMENTS. SEE BARNES, ET AL., V. DISTRICT OF COLUMBIA, 22 C.CLS. 366; UNITED STATES V. BURCHARD, 125 U.S. 176; WISCONSIN CENTRAL R.R. CO., V. UNITED STATES 164 U.S. 190; 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 PAYMENTS CONSTITUTE A DEBT DUE TO THE UNITED STATES FROM YOU AND MR. BOUND. WHILE WE SYMPATHIZE WITH YOU IN YOUR SITUATION BROUGHT ABOUT BY CIRCUMSTANCES OF WHICH YOU PROBABLY HAD NO KNOWLEDGE, WE HAVE NO AUTHORITY TO WAIVE YOUR INDEBTEDNESS AND CANNOT LEGALLY CANCEL IT.

YOUR INDEBTEDNESS MAY BE LIQUIDATED BY REGULAR MONTHLY PAYMENTS AND YOU SHOULD BEGIN SUCH PAYMENTS WITHIN 30 DAYS FROM THE DATE OF THIS LETTER SUBMITTING WITH THE FIRST PAYMENT A STATEMENT OF YOUR PLAN FOR COMPLETING THE PAYMENTS WITHIN A REASONABLE TIME.

PAYMENTS SHOULD BE MADE BY BANK DRAFT, CHECK, OR MONEY ORDER PAYABLE TO THE UNITED STATES GENERAL ACCOUNTING OFFICE, AND FORWARDED TO THE CLAIMS DIVISION, UNITED STATES GENERAL ACCOUNTING OFFICE, POST OFFICE BOX 2610, WASHINGTON 13, D.C., REFERRING TO CLAIM NO. 791484, AND FILE B-135230.