B-114944, MAY 11, 1953

B-114944: May 11, 1953

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HOUSE OF REPRESENTATIVES: FURTHER REFERENCE IS MADE TO YOUR COMMUNICATION OF APRIL 23. THE FACTS ARE SUMMARIZED IN THE SAID LETTER AS FOLLOWS: "THE RECORDS OF THIS OFFICE DISCLOSE THAT ON 22 MAY 1942. WHEN A CLASS E ALLOTMENT WAS DISCONTINUED IN FAVOR OF FAMILY ALLOWANCE. THE CLASS E ALLOTMENT PAYMENTS WERE TO CONTINUE THROUGH 30 SEPTEMBER 1942. JOHNSON WAS DISCHARGED ON 10 AUGUST 1942. THE PAYMENTS SHOULD HAVE BEEN DISCONTINUED EFFECTIVE 31 AUGUST 1942. IT WAS INTENDED THAT THE AMOUNT ALLOTTED FOR THE PERIOD 1 JUNE 1942 THROUGH 31 AUGUST 1942 BE DEDUCTED FROM THE INITIAL FAMILY ALLOWANCE PAYMENT. THIS WAS NOT ACCOMPLISHED. NOR WERE DEDUCTIONS MADE FROM THE SERVICEMEN'S PAY. THE CHECK WAS RETURNED AND CANCELLED.

B-114944, MAY 11, 1953

PRECIS-UNAVAILABLE

HONORABLE PETER W. RODINO, JR., HOUSE OF REPRESENTATIVES:

FURTHER REFERENCE IS MADE TO YOUR COMMUNICATION OF APRIL 23, 1953, ENCLOSING A LETTER DATED APRIL 20, 1953, TO YOU, FROM THE FINANCE CENTER, U. S. ARMY, ST. LOUIS, MISSOURI, RELATIVE TO AN INDEBTEDNESS DUE THE UNITED STATES INCIDENT TO PAYMENTS OF A CLASS E ALLOTMENT IN THE CASE OF MR. DELBERT C. JOHNSON WHILE SERVING IN THE ARMY.

THE FACTS ARE SUMMARIZED IN THE SAID LETTER AS FOLLOWS:

"THE RECORDS OF THIS OFFICE DISCLOSE THAT ON 22 MAY 1942, THE FORMER SERVICEMAN AUTHORIZED A CLASS E ALLOTMENT OF 430 A MONTH EFFECTIVE 1 JUNE 1942, IN FAVOR OF HIS WIFE, MRS. GERTRUDE JOHNSON. ON 24 JUNE 1942, HE REQUESTED THAT THE ALLOTMENT BE DISCONTINUED THE EFFECTIVE DATE 1 JUNE 1942, IN FAVOR OF FAMILY ALLOWANCE. WHEN A CLASS E ALLOTMENT WAS DISCONTINUED IN FAVOR OF FAMILY ALLOWANCE, IN ORDER TO PREVENT HARDSHIP TO THE PAYEE PRIOR TO THE ISSUANCE OF THE INITIAL FAMILY ALLOWANCE PAYMENT, THE CLASS E ALLOTMENT PAYMENTS WERE TO CONTINUE THROUGH 30 SEPTEMBER 1942. SINCE MR. JOHNSON WAS DISCHARGED ON 10 AUGUST 1942, THE PAYMENTS SHOULD HAVE BEEN DISCONTINUED EFFECTIVE 31 AUGUST 1942. IT WAS INTENDED THAT THE AMOUNT ALLOTTED FOR THE PERIOD 1 JUNE 1942 THROUGH 31 AUGUST 1942 BE DEDUCTED FROM THE INITIAL FAMILY ALLOWANCE PAYMENT. THIS WAS NOT ACCOMPLISHED, NOR WERE DEDUCTIONS MADE FROM THE SERVICEMEN'S PAY, RESULTING IN AN INDEBTEDNESS OF 190. THIS OFFICE DID NOT RECEIVE NOTICE OF DISCHARGE IN TIME TO PREVENT THE PAYMENT FOR SEPTEMBER 1942. THE PAYMENT FOR THAT MONTH INCREASED THE INDEBTEDNESS TO $120; HOWEVER, THE CHECK WAS RETURNED AND CANCELLED, REDUCING THE AMOUNT DUE TO $90."

A CLASS E ALLOTMENT IS A DEFINITE PORTION OF THE SERVICEMAN'S PAY WHICH HE AUTHORIZES THE GOVERNMENT TO DEDUCT AND TO PAY DIRECTLY TO HIS DEPENDENTS OR TO A BANK ON HIS BEHALF. IT IS A PURELY VOLUTARY ACT ON HIS PART. THE CLASS E ALLOTMENT DOES NOT INCLUDE ANY CORRESPONDING ALLOWANCE OR OTHER OBLIGATION OF THE GOVERNMENT AND REQUIRES NO ADJUDICATIVE ACTION TO BECOME EFFECTIVE. IT IS REVOCABLE AT THE WILL OF THE ALLOTTER AND VESTS NO PROPERTY RIGHT IN THE ALLOTEE (PAYEE) UNLESS AND UNTIL IT IS PAID TO THE ALLOTTEE; IT IS NOT AN ASSIGNMENT BUT IS SIMPLY AN ORDER ON THE PAYMASTER IN THE NATURE OF A POWER OF ATTORNEY AUTHORIZING THE ALLOTTED PORTION OF HIS PAY TO BE PAID TO CERTAIN DESIGNATED PERSONS OR INSTITUTIONS WHO ARE THEREBY EMPOWERED TO RECEIVE AND RECEIPT FOR THE SAME. HENCE A REQUEST BY THE ALLOTTER TO DISCONTINUE THE ALLOTMENT TERMINATES THE RIGHT OF THE GOVERNMENT TO PAY, AND OF THE ALLOTTEE TO RECEIVE, THE ALLOTMENT.

AUTHORITY FOR THE PAYMENT OF CLASS E ALLOTMENTS IS CONTAINED IN SECTION 16 OF THE ACT OF MARCH 2, 1899, 30 981, AS AMENDED, 10 U.S.C. 894, IN PERTINENT PART AS FOLLOWS:

"THE SECRETARY OF WAR IS AUTHORIZED TO PERMIT OFFICERS, ARMY NURSES, AND ENLISTED MEN *** TO MAKE ALLOTMENTS FROM THEIR PAY, UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, FOR THE SUPPORT OF THEIR FAMILIES OR RELATIVES OR FOR OTHER PROPER PURPOSES WHICH IN HIS DISCRETION WARRANT SUCH ACTION. ***"

IN WAR DEPARTMENT CIRCULAR NO. 225, DATED JULY 11, 1942, IT WAS STATED THAT WHILE THE FAMILY ALLOWANCE PAYMENTS (UNDER THE PROVISIONS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381, CONSISTING OF JOINT CONTRIBUTIONS BY THE GOVERNMENT AND THE ENLISTED MAN) WOULD BEGIN TO ACCRUE ON JUNE 1, 1942, PAYMENTS THEREOF TO DEPENDENTS WOULD NOT BE MADE UNTIL NOVEMBER 1, 1942, AND PARAGRAPH 11(C) OF THAT CIRCULAR PROVIDED AS FOLLOWS:

"IN CASES WHERE IT IS NECESSARY TO DISCONTINUE OR ADJUST VOLUNTARY ALLOTMENTS OF ENLISTED MEN WHO HAVE CLASS E ALLOTMENTS RUNNING IN ORDER TO PERMIT THE PAY ROLL ACCOUNT OF THE ENLISTED MAN TO PROVIDE THE AMOUNTS REQUIRED BY A AND B ABOVE, AND WHERE HARDSHIP WOULD RESULT IF THE PAYMENT TO DEPENDENTS OF THE AMOUNT FORMERLY PAID AS A CLASS E ALLOTMENT WERE DISCONTINUED DURING THE PERIOD THROUGH SEPTEMBER 30, 1942, THE FOLLOWING PROCEDURE WAS AUTHORIZED:

"(1) THE CLASS E ALLOTMENT MAY BE DISCONTINUED ON W.D., A.G.O. FORM NO. 30 (NOTIFICATION OF DISCONTINUANCE OF ALLOTMENT), AND THE FOLLOWING NOTATION PLACED ON THE REVERSE SIDE OF THE FORM:

"PAYMENT TO CONTINUE THROUGH SEPTEMBER 30, 1942, UNDER THIS ALLOTMENT AND THE TOTAL SO PAID FROM DATE OF CANCELLATION THROUGH SEPTEMBER 30, 1942, IS TO BE DEDUCTED FROM THE FIRST PAYMENT UNDER THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT."

IN ACCORDANCE WITH THAT PROCEDURE PAYMENT TO MRS. JOHNSON OF THE MONTHLY CLASS E (VOLUNTARY) ALLOTMENT OF $30 WAS CONTINUED FOR THE MONTHS OF JUNE, JULY, AND AUGUST, 1942, BUT THE AMOUNT THEREOF WAS NOT DEDUCTED FROM THE ENLISTED MAN'S PAY, AND IT WAS NOT DEDUCTED FROM FAMILY ALLOWANCES. THE RESULT WAS THAT THE ENLISTED MAN'S WIFE RECEIVED CLASS E ALLOTMENT PAYMENTS IN THE AMOUNT OF $90 WHICH WERE NOT DEDUCTED FROM HIS PAY.

IT IS CLEAR THAT THE PAYMENTS OF THE CLASS E ALLOTMENT FOR THE MONTHS OF JUNE, JULY, AND AUGUST, 1942, WERE MADE PURSUANT TO THE AUTHORIZATION AND WITH CONSENT OF THE ENLISTED MAN. HENCE, THERE APPEARS TO BE NO QUESTION THAT THE AMOUNT THEREOF PROPERLY WAS FOR CHARGING AGAINST HIS PAY, AND SINCE NO CORRESPENDING DEDUCTIONS WERE MADE FROM HIS PAY, HE IS LEGALLY OBLIGATED TO REIMBURSE THE UNITED STATES FOR THE PAYMENTS INVOLVED.

THE RECORD BEFORE THIS OFFICE TENDS TO INDICATE THAT MR. JOHNSON PRESENTLY IS NOT ABLE TO PAY THE INDEBTEDNESS AND HENCE BY CLAIMS DIVISION LETTER DATED DECEMBER 24, 1952, HE WAS ADVISED THAT FURTHER EFFORTS TO EFFECT COLLECTION WILL BE HELD IN ABEYANCE FOR A REASONABLE TIME, BUT THAT HE IS EXPECTED TO GIVE SINCERE CONSIDERATION TO MAKING ARRANGEMENTS FOR PAYMENT THEREOF AS SOON AS HE IS FINANCIALLY ABLE TO DO SO.

I TRUST THAT THIS WILL SERVE THE PURPOSE OF YOUR INQUIRY. THE LETTER OF APRIL 20, 1953, IS RETURNED HEREWITH AS REQUESTED BY YOU.