B-122847, JUL. 20, 1962

B-122847: Jul 20, 1962

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WHILE THE CASE WAS DIRECTED TO OUR CLAIMS DIVISION FOR ADJUDICATION AS A DOUBTFUL DEBT CLAIM. TWO BASIC QUESTIONS ARE PRESENTED THE REPLY TO WHICH WE UNDERSTAND WILL FURNISH YOUR DEPARTMENT WITH THE NECESSARY DETERMINATIONS TO PROCESS THE CASE TO AN APPROPRIATE CONCLUSION. WE HAVE TREATED THE REQUEST AS IN THE NATURE OF A REQUEST FOR ADVANCE DECISION ON THE SPECIFIC QUESTIONS. FAULKNER WAS STATIONED IN ROME. HE HAD BEEN SEPARATED FROM HIS WIFE SINCE SEPTEMBER 1950 AND WAS DIVORCED FROM HIS WIFE ON OCTOBER 11. YET HE CONTINUED TO STATE ON HIS REQUESTS FOR PAYMENT OF THE ALLOWANCES THAT SHE WAS RESIDING WITH HIM IN ROME. AS HIS DEPENDENT WHEN IN FACT WAS SELF-SUPPORTING AND WAS EMPLOYED BY THE FEDERAL RESERVE BANK.

B-122847, JUL. 20, 1962

TO THE SECRETARY OF THE ARMY:

THIS REFERS TO LETTER OF JUNE 14, 1962, REFERENCE FINKC, FROM THE ACTING CHIEF, FINANCIAL SERVICES DIVISION, OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, CONCERNING THE INDEBTEDNESS OF MR. WILLIAM C. FAULKNER, A FORMER CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY. WHILE THE CASE WAS DIRECTED TO OUR CLAIMS DIVISION FOR ADJUDICATION AS A DOUBTFUL DEBT CLAIM, TWO BASIC QUESTIONS ARE PRESENTED THE REPLY TO WHICH WE UNDERSTAND WILL FURNISH YOUR DEPARTMENT WITH THE NECESSARY DETERMINATIONS TO PROCESS THE CASE TO AN APPROPRIATE CONCLUSION. THEREFORE, WE HAVE TREATED THE REQUEST AS IN THE NATURE OF A REQUEST FOR ADVANCE DECISION ON THE SPECIFIC QUESTIONS.

THE INFORMATION FURNISHED SHOWS THAT MR. FAULKNER WAS STATIONED IN ROME, ITALY. HE HAD BEEN SEPARATED FROM HIS WIFE SINCE SEPTEMBER 1950 AND WAS DIVORCED FROM HIS WIFE ON OCTOBER 11, 1957, YET HE CONTINUED TO STATE ON HIS REQUESTS FOR PAYMENT OF THE ALLOWANCES THAT SHE WAS RESIDING WITH HIM IN ROME, ITALY, AS HIS DEPENDENT WHEN IN FACT WAS SELF-SUPPORTING AND WAS EMPLOYED BY THE FEDERAL RESERVE BANK.

THE ACTING CHIEF, FINANCIAL SERVICES DIVISION, SAYS MR. FAULKNER WAS PAID QUARTERS AND POST ALLOWANCES OF $26,353.95 AT THE "WITH FAMILY" RATE FOR THE PERIOD SEPTEMBER 17, 1950, TO JUNE 13, 1959. HE FURTHER SAYS MR. FAULKNER WAS ENTITLED ONLY TO RECEIVE QUARTERS AND POST ALLOWANCES OF $21,739.39 AT THE "WITHOUT FAMILY" RATE RESULTING IN AN OVERPAYMENT. THE FOLLOWING QUESTIONS ARE SUBMITTED FOR OUR CONSIDERATION:

1. SHOULD THE ARMY RECOVER THE FULL AMOUNT PAID AT THE FAMILY RATE $26,353.95?

2. SHOULD THE ARMY RECOVER ONLY THE DIFFERENCE BETWEEN THE FAMILY RATE AND THE WITHOUT FAMILY RATE TO WHICH HE WAS ENTITLED $4,614.56?

THE EVIDENCE OF RECORD ESTABLISHES THAT THE QUARTERS AND POST ALLOWANCE PAYMENTS FROM SEPTEMBER 1950 TO JUNE 1959 WERE ERRONEOUSLY PAID ON THE BASIS OF EITHER FRAUDULENT STATEMENTS BY MR. FAULKNER OR STATEMENTS IN WHICH THE FACTS WERE MISREPRESENTED.

THE DOUBT IN THE MATTER ARISES BECAUSE IN OUR DECISION B-146638 DATED NOVEMBER 3, 1961, 41 COMP. GEN. 285, TO YOU, WE HELD, CONCERNING SPECIFIC QUESTIONS ON TRAVEL ALLOWANCES OF MILITARY PERSONNEL THAT "IN ANY CASE WHERE PAYMENT OF AN ITEM OF PAY AND ALLOWANCES IS WRONGFULLY OBTAINED, WHETHER THROUGH FRAUD, MISREPRESENTATION OR OTHERWISE, SUCH PAYMENT IS PURELY AND SIMPLY AN ERRONEOUS PAYMENT FOR RECOUPMENT AS SUCH.' THAT MERELY MEANS THAT THE GOVERNMENT IS ENTITLED TO RECOVER ANY ERRONEOUS PAYMENTS MADE. WE ALSO STATED IN THAT DECISION THAT THE FORFEITURE PROVISIONS OF THE FALSE CLAIM ACT (28 U.S.C. 2514) MAY NOT BE APPLIED IN THE CASE OF A PAID CLAIM.

MR. FAULKNER HAS BEEN PAID ALLOWANCES IN THE CASE SUBMITTED AND THE QUESTION HERE IS HOW MUCH OF THIS IS TO BE CONSIDERED AS AN ERRONEOUS PAYMENT. IT HAS BEEN INFORMALLY ASCERTAINED FROM YOUR DEPARTMENT THAT IT IS AND HAS BEEN IN THE PAST THE POLICY OF THE DEPARTMENT OF THE ARMY TO PAY THEIR EMPLOYEES WITH OR WITHOUT DEPENDENTS WHO ARE CITIZENS OF THE UNITED STATES ASSIGNED TO FOREIGN AREAS QUARTERS AND POST ALLOWANCES. UNDER THE DEPARTMENT OF THE ARMY POLICY IF HIS FAMILY HAD BEEN PRESENT AT HIS POST OF ASSIGNMENT OVERSEAS HE WOULD HAVE BEEN ENTITLED TO THE "WITH FAMILY" RATE. HOWEVER, THE FACTS SHOW THAT HIS FAMILY DID NOT ACCOMPANY HIM TO HIS POST OF ASSIGNMENT AND HE THEREFORE WAS ENTITLED ONLY TO A "WITHOUT FAMILY" RATE. IN THIS REGARD WE VIEW THE "WITHOUT FAMILY" RATE AS A SEPARATE ITEM AND WE DO NOT BELIEVE THAT THE FACT THAT MR. FAULKNER CLAIMED AND WAS ACTUALLY PAID A "WITH FAMILY" RATE AFFORDS SUFFICIENT BASIS FOR CONCLUDING THAT THE ITEM HAS LOST ITS CHARACTER AS A SEPARATE CLAIM. THEREFORE, WE CONCLUDE THAT IN THE CASE PRESENTED THERE HAS BEEN AN ERRONEOUS PAYMENT WHICH--- UNLESS OTHER CONSIDERATIONS WARRANT AN ADJUSTMENT IN THE INDEBTEDNESS--- IS THE DIFFERENCE BETWEEN THE "WITHOUT FAMILY" RATE AND THE ,WITH FAMILY" RATE.

QUESTION NUMBER 1 IS ANSWERED IN THE NEGATIVE.

SUBJECT TO THE ABOVE QUALIFICATION CONCERNING A POSSIBLE ADJUSTMENT ARISING FROM OTHER CONSIDERATIONS, QUESTION NUMBER 2 IS ANSWERED IN THE AFFIRMATIVE.

A COPY OF OUR LETTER OF TODAY TO THE HONORABLE JAMES F. MURRAY, JR., IS ENCLOSED. THE DEPARTMENT OF THE ARMY'S FILES COVERING THIS CASE ARE RETURNED HEREWITH.