B-122128, SEP. 15, 1955

B-122128: Sep 15, 1955

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LOWE: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 12. THE CLAIM WAS DISALLOWED BECAUSE BY GENERAL COURT- MARTIAL ORDERS NO. 274. YOU WERE SENTENCED TO BE DISMISSED FROM THE SERVICE AND TO FORFEIT ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE. YOU SHOULD HAVE BEEN PAID YOUR CURRENT PAY AND ALLOWANCES WHILE YOU WERE AWAITING FINAL ACTION ON YOUR COURT-MARTIAL SENTENCE AND THAT YOUR RIGHT UNDER SUCH REGULATIONS COULD NOT BE TAKEN AWAY BY ORDER OF A COURT-MARTIAL. YOU SAY THAT IF FAVORABLE ACTION IS TAKEN ON YOUR CLAIM YOU WILL BE GLAD TO MAKE ARRANGEMENTS TO REPAY THE OVERPAYMENTS OF CLASS E ALLOTMENT MADE TO YOUR FORMER WIFE. THAT IT IS A WELL-ESTABLISHED POINT OF LAW THAT ONE PARTY CANNOT VOLUNTARILY ACCEPT RESPONSIBILITY FOR ANOTHER'S WRONGDOING.

B-122128, SEP. 15, 1955

TO MR. JESSE S. LOWE:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 12, 1954, IN EFFECT REQUESTING REVIEW OF SETTLEMENT DATED FEBRUARY 14, 1950, DISALLOWING YOUR CLAIM FOR PAY AND ALLOWANCES BELIEVED DUE YOU INCIDENT TO YOUR SERVICE AS A SECOND LIEUTENANT IN THE ARMY OF THE UNITED STATES FOR THE PERIOD ENDING OCTOBER 2, 1943. THE CLAIM WAS DISALLOWED BECAUSE BY GENERAL COURT- MARTIAL ORDERS NO. 274, DATED SEPTEMBER 29, 1943, YOU WERE SENTENCED TO BE DISMISSED FROM THE SERVICE AND TO FORFEIT ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE.

IT APPEARS TO BE YOUR CONTENTION THAT, UNDER THE REGULATIONS IN EFFECT DURING THE PERIOD INVOLVED, YOU SHOULD HAVE BEEN PAID YOUR CURRENT PAY AND ALLOWANCES WHILE YOU WERE AWAITING FINAL ACTION ON YOUR COURT-MARTIAL SENTENCE AND THAT YOUR RIGHT UNDER SUCH REGULATIONS COULD NOT BE TAKEN AWAY BY ORDER OF A COURT-MARTIAL. YOU SAY THAT IF FAVORABLE ACTION IS TAKEN ON YOUR CLAIM YOU WILL BE GLAD TO MAKE ARRANGEMENTS TO REPAY THE OVERPAYMENTS OF CLASS E ALLOTMENT MADE TO YOUR FORMER WIFE, PAULINE F. LOWE. YOU SAY FURTHER, HOWEVER, THAT IT IS A WELL-ESTABLISHED POINT OF LAW THAT ONE PARTY CANNOT VOLUNTARILY ACCEPT RESPONSIBILITY FOR ANOTHER'S WRONGDOING.

THE RECORDS SHOW THAT YOU REENLISTED IN THE REGULAR ARMY ON MAY 7, 1941, AND WERE HONORABLY DISCHARGED ON JANUARY 7, 1943, TO ACCEPT A COMMISSION. YOU WERE APPOINTED SECOND LIEUTENANT, ARMY OF THE UNITED STATES, ON JANUARY 8, 1943, AND ACCEPTED AND ENTERED ON ACTIVE DUTY THE SAME DAY. YOU WERE ABSENT WITHOUT LEAVE AT VARIOUS TIMES, INCLUDING THE PERIOD FROM FEBRUARY 12 TO 20, 1943, AND THE PERIOD FROM MARCH 2 TO APRIL 22, 1943. YOU WERE TRIED BEFORE A GENERAL COURT MARTIAL FOR VIOLATION OF THE 96TH AND 61ST ARTICLES OF WAR AND WERE FOUND GUILTY AND SENTENCED TO BE DISMISSED FROM THE SERVICE, TO FORFEIT ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE AND TO BE CONFINED AT HARD LABOR FOR TWO YEARS. THE SENTENCE WAS ADJUDGED ON MAY 28, 1943, AND WAS APPROVED BY THE CONVENING AUTHORITY. THE CASE WAS THEN FORWARDED THROUGH REGULAR CHANNELS TO THE PRESIDENT OF THE UNITED STATES, WHO, ON SEPTEMBER 27, 1943, CONFIRMED THE SENTENCE AND ORDERED IT CARRIED INTO EXECUTION. YOU CEASED TO BE AN OFFICER OF THE ARMY AT 12:00 MIDNIGHT, OCTOBER 2, 1943. GENERAL COURT- MARTIAL ORDERS NO. 274, WAR DEPARTMENT, WASHINGTON, D.C., SEPTEMBER 29, 1943.

YOU AUTHORIZED A CLASS E ALLOTMENT OF $50 A MONTH EFFECTIVE JULY 1, 1942, TO YOUR WIFE,"MRS. J. S. LOWE," AND REQUESTED DISCONTINUANCE OF THE ALLOTMENT EFFECTIVE AUGUST 31, 1942. CHECKS WERE ERRONEOUSLY ISSUED FOR THE 46-MONTH PERIOD FROM SEPTEMBER 1942 THROUGH JUNE 1946, BUT THE CHECKS FOR APRIL, MAY AND JUNE 1946 WERE RETURNED AND CANCELED. THE CHECKS FOR APRIL AND MAY 1943 AND DECEMBER 1945 WERE LOST OR DESTROYED AND WERE TREATED AS CANCELED. THE OTHER 40 CHECKS WERE NEGOTIATED IN DUE COURSE AND WERE PAID BY THE TREASURER OF THE UNITED STATES. THE TREASURY DEPARTMENT DETERMINED THAT TWENTY-ONE OF THESE CHECKS WERE NEGOTIATED BY YOU AND THE SUM OF $1,050 HAS BEEN RECLAIMED ON THESE CHECKS, LEAVING THE SUM OF $950 FOR COLLECTION ON ACCOUNT OF THE SEVEN CHECKS FROM SEPTEMBER 1942 THROUGH MARCH 1943 AND THE 12 CHECKS FROM JUNE 1943 THROUGH MAY 1944. IN YOUR LETTERS OF SEPTEMBER 10 AND OCTOBER 22, 1948, ADDRESSED TO THE ARMY FINANCE CENTER, ST. LOUIS, MISSOURI, YOU STATED THAT ALTHOUGH YOUR FORMER WIFE DID CASH SOME OF THE ALLOTMENT CHECKS AFTER LEARNING SHE WAS NOT ENTITLED TO THEM, THIS WAS DONE AT YOUR INSISTENCE AND AGAINST HER WILL; THAT SOME OF THE CHECKS WERE DESTROYED; THAT ALL OTHER CHECKS MADE PAYABLE TO HER WERE ENDORSED AND CASHED BY YOU; AND THAT YOU THEREFORE ACCEPTED FULL RESPONSIBILITY FOR FAILURE TO RETURN THE CHECKS, FOR FAILURE TO GIVE NOTICE OF THEIR ARRIVAL AND FOR THE CASHING OF ANY AND ALL ALLOTMENT CHECKS ERRONEOUSLY ISSUED TO YOUR FORMER WIFE, PAULINE LOWE. THE CIRCUMSTANCES, YOUR STATEMENTS MUST BE CONSIDERED AS AN ADMISSION OF LEGAL LIABILITY FOR THE ERRONEOUS PAYMENTS AND NOT AS A VOLUNTARY ACCEPTANCE OF "RESPONSIBILITY OF ANOTHER'S WRONG-DOING.'

YOU AUTHORIZED A CLASS E ALLOTMENT OF $150 A MONTH IN FAVOR OF YOUR WIFE EFFECTIVE APRIL 1, 1943. AS YOUR COURT-MARTIAL SENTENCE WAS APPROVED BY THE PRESIDENT ON SEPTEMBER 27, 1943, THE ALLOTMENT SHOULD HAVE BEEN STOPPED WITH THE PAYMENT (MADE ABOUT SEPTEMBER 1, 1943) FOR AUGUST 1943. ERRONEOUS PAYMENTS FOR THE 6-MONTH PERIOD FROM SEPTEMBER 1943 THROUGH FEBRUARY 1944 TOTALED $900. IN A LETTER WRITTEN BY YOU IN APRIL 1944 YOU ADMITTED YOU THEN HAD SOME OF THE CHECKS IN YOUR POSSESSION. IT APPEARS, HOWEVER, THAT THE CHECKS WERE NEVER RETURNED TO THE WAR DEPARTMENT BUT WERE NEGOTIATED IN DUE COURSE AND WERE PAID BY THE TREASURER OF THE UNITED STATES. AS A GENERAL RULE, LEGAL LIABILITY RESTS SOLELY ON THE PAYEES OF VOLUNTARY ALLOTMENTS OF PAY TO REFUND TO THE UNITED STATES OVERPAYMENTS RECEIVED BY THEM. WHERE THE ALLOTTER PARTICIPATES IN THE PROCEEDS OF THE ERRONEOUS PAYMENTS OR RECEIVES SUBSTANTIAL BENEFITS FROM THEM, HOWEVER, HE AND THE PAYEE ARE JOINTLY AND SEVERALLY LIABLE FOR SUCH OVERPAYMENTS.

THE CONTENTION YOU SHOULD HAVE BEEN PAID CURRENT PAY AND ALLOWANCES PRIOR TO THE DATE OF YOUR DISMISSAL FROM THE SERVICE BECAUSE EFFECTIVE WOULD APPEAR TO BE BASED UPON ARMY REGULATIONS NO. 35-1740, DATED JUNE 1, 1943. PARAGRAPH 6 OF THOSE REGULATIONS PROVIDED:

"PAYMENT PENDING SEPARATION.--- AN OFFICER IS ENTITLED TO BE PAID MONTHLY NOTWITHSTANDING THE FACT THAT HE IS AWAITING FINAL ACTION ON HIS TENDERED RESIGNATION, OR ON A SENTENCE OF DISMISSAL WITH OR WITHOUT TOTAL FORFEITURES ADJUDGED AGAINST HIM BY A COURT MARTIAL, OR THAT HIS DISCHARGE OR DISMISSAL IS OTHERWISE IMPENDING. AFTER RECEIPT OF NOTICE THAT THE DISCHARGE OR DISMISSAL OF AN OFFICER IS IMPENDING (SEE AR 210-10) OR THAT HE HAS TENDERED HIS RESIGNATION OR HAS BEEN SENTENCED BY A COURT MARTIAL TO DISMISSAL, THE LOCAL DISBURSING OFFICER WILL PROMPTLY TRANSMIT TO THE CHIEF OF FINANCE A STATEMENT OF THE PERTINENT FACTS AND A REQUEST FOR INFORMATION OF ANY KNOWN OFFICER WILL, SUBJECT TO THE APPROVAL OF THE LOCAL COMMANDING OFFICER, CONTINUE TO PAY THE OFFICER'S CURRENT PAY AND ALLOWANCES UNTIL THE FINAL ACTION ON HIS DISCHARGE OR DISMISSAL IS KNOWN, WITHHOLDING ANY INDEBTEDNESS TO THE GOVERNMENT OR ANY OF ITS AGENCIES OR INSTRUMENTALITIES, ANY AUTHORIZED STOPPAGES, AS WELL AS PAY FOR ANY PERIOD OF ABSENCE FROM DUTY WITHOUT AUTHORITY OR DUE TO THE OFFICER'S OWN MISCONDUCT. IF THE RESIGNATION IS ACCEPTED AND THE DISCHARGE OR DISMISSAL BECOMES EFFECTIVE, THE INSTRUCTIONS CONTAINED IN A, B, C, D, AND E ABOVE WILL BE COMPLIED WITH. IF THE RESIGNATION IS NOT ACCEPTED OR THE DISCHARGE OR DISMISSAL DOES NOT MATERIALIZE, THE OFFICER WILL BE PAID HIS CURRENT PAY AND ALLOWANCES IN THE USUAL MANNER.'

IT WILL BE SEEN THAT THE REGULATIONS MERELY PERMITTED THE PAYMENT BY THE LOCAL DISBURSING OFFICER, UNDER THE CONDITIONS PRESCRIBED AND SUBJECT TO THE APPROVAL OF THE LOCAL COMMANDING OFFICER, OF CURRENT PAY AND ALLOWANCES OF AN OFFICER AWAITING FINAL ACTION ON A SENTENCE OF DISMISSAL WITH TOTAL FORFEITURES ADJUDGED AGAINST HIM, ONLY WHEN FINAL ACTION ON THE COURT-MARTIAL SENTENCE WAS NOT KNOWN. THE REGULATIONS DID NOT AUTHORIZE THE PAYMENT AT A LATER DATE OF PAY AND ALLOWANCES THAT MIGHT HAVE BEEN PAID PRIOR TO THE TIME FINAL ACTION ON THE SENTENCE WAS KNOWN. IN YOUR CASE FINAL ACTION ON THE SENTENCE OF DISMISSAL WITH TOTAL FORFEITURES WAS KNOWN AND DIRECTED TO BE CARRIED INTO EXECUTION ON SEPTEMBER 27, 1943. WHEN A SENTENCE IMPOSED BY A GENERAL COURT-MARTIAL--- A TRIBUNAL APPOINTED BY MILITARY ORDERS ISSUED UNDER AUTHORITY OF LAW--- HAS RECEIVED THE APPROVAL AND CONFIRMATION OF THE PROPER AUTHORITY, AS IN YOUR CASE, SUCH SENTENCE BECOMES OPERATIVE AND IS AS EFFECTIVE AS THE SENTENCE OF A CIVIL COURT HAVING CRIMINAL JURISDICTION AND IS ENTITLED TO THE SAME CONSIDERATION.

THE UNIFORM PRACTICE FOR MANY YEARS IN THE CASE OF FORFEITURE BY GENERAL COURT-MARTIAL SENTENCE OF ALL PAY DUE A MEMBER OF THE ARMY, WHETHER OFFICER OR ENLISTED MAN, HAS BEEN THAT THE AMOUNT OF PAY FORFEITED IS WHAT REMAINS DUE THE MAN AT THE EFFECTIVE DATE OF THE SENTENCE AFTER ANY PROPER INDEBTEDNESS BY HIM TO THE UNITED STATES OR ITS INSTRUMENTALITIES AS OF SUCH DATE HAS BEEN SATISFIED.

AFTER MAKING DEDUCTIONS FOR YOUR CURRENT CLASS N ALLOTMENT OF $6.90 A MONTH AND CLASS E ALLOTMENT OF $150 A MONTH THROUGH AUGUST 1943, THERE WAS DUE YOU AS OF SEPTEMBER 26, 1943, AS PAY AND ALLOWANCES APPROXIMATELY $675. AGAINST THAT AMOUNT THERE WERE PROPERLY CHARGEABLE THE MONTHLY CLASS E ALLOTMENT PAYMENTS OF $50 FOR THE PERIODS FROM SEPTEMBER 1942 THROUGH MARCH 1943 AND FROM JUNE 1943 THROUGH AUGUST 1943, TOTALING $500. THE BALANCE THEN REMAINING DUE WAS THE AMOUNT FORFEITED UNDER THE COURT- MARTIAL SENTENCE.

THUS THE AMOUNT OF THE UNSATISFIED INDEBTEDNESS IN YOUR CASE IS $1,350, REPRESENTING THE TOTAL OF THE ERRONEOUS CLASS E ALLOTMENT PAYMENTS MADE AFTER SEPTEMBER 26, 1943, AND NOT REPAID TO THE UNITED STATES: (1) $50 A MONTH FROM SEPTEMBER 1943 THROUGH MAY 1944, $450; AND (2) $150 A MONTH FROM SEPTEMBER 1943 THROUGH FEBRUARY 1944, $900. THE PAYMENTS FOR SEPTEMBER 1943 ARE PROPER FOR INCLUSION IN THE AMOUNT OF THE UNSATISFIED INDEBTEDNESS AS THEY WERE MADE AFTER SEPTEMBER 26, 1943, IT BEING THE PROCEDURE THAT PAYMENT OF AN ALLOTMENT FOR A PARTICULAR MONTH WAS NOT MADE UNTIL THE END OF THAT MONTH.

ARRANGEMENTS SHOULD BE MADE TO REFUND THESE OVERPAYMENTS TO THE GOVERNMENT IN SUCH AMOUNTS AND AS PROMPTLY AS THE CIRCUMSTANCES PERMIT.