B-127250, MAY 23, 1956

B-127250, MAY 23, 1956

TO MR. PATRICK S. ADAMS:

REFERENCE IS MADE TO A LETTER DATED APRIL 19, 1956, WRITTEN ON YOUR BEHALF BY MR. GUS PIEPGRAS, SERVICE OFFICER, FURTHER CONCERNING YOUR CLAIM FOR REFUND OF $22 PER MONTH CHECKED IN YOUR PAY ACCOUNT FROM MARCH 1948 THROUGH JUNE 1949, AS YOUR CONTRIBUTION TO FAMILY ALLOWANCE ON ACCOUNT OF YOUR DEPENDENT WIFE, CAROLINE HOLLOW ADAMS, INCIDENT TO YOUR SERVICE AS AN ENLISTED MAN, UNITED STATES ARMY.

BY OUR DECISION OF APRIL 6, 1946, B-127250, YOU WERE ADVISED THAT SINCE IT APPEARS FROM THE RECORD BEFORE US THAT CAROLINE HOLLOW ADAMS REMAINED YOUR WIFE UNTIL YOUR DIVORCE FROM HER ON AUGUST 4, 1953, THERE WAS NO PROPER BASIS TO CONCLUDE THAT SHE WAS NOT ENTITLED TO FAMILY ALLOWANCE FOR THE MONTHS OF MARCH 1948 THROUGH JUNE 1949, AND THAT, THEREFORE, REFUND OF THE AMOUNT OF YOUR CONTRIBUTIONS TO THE FAMILY ALLOWANCE WAS NOT AUTHORIZED. IN THE LETTER OF APRIL 19, 1956, MR. PIEPGRAS SAYS THAT YOU REQUESTED THAT THE FAMILY ALLOWANCE BE DISCONTINUED IN JANUARY 1948, SINCE YOU HAD STARTED DIVORCE PROCEEDINGS. THE OPINION IS EXPRESSED THAT AN ENLISTED MAN WAS ENTITLED TO DEMAND THE DISCONTINUANCE OF FAMILY ALLOWANCE AT ANY TIME HE SO DESIRED. IT IS FURTHER STATED THAT IT IS ANTICIPATED THAT AN AFFIDAVIT WOULD BE OBTAINED FROM YOUR FORMER WIFE WAIVING ANY CLAIM TO THE FAMILY ALLOWANCE, MR. PIEPGRAS APPARENTLY BELIEVING THAT SUCH WAIVER WOULD AUTHORIZE THE REFUND TO YOU OF THE AMOUNT WITHHELD FROM YOUR PAY.

RESPECTING YOUR RIGHT TO DISCONTINUE FAMILY ALLOWANCE PAYMENTS, SECTION 107 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT, AS AMENDED BY SECTION 7 OF THE ACT OF OCTOBER 26, 1943, 57 STAT. 579, PROVIDED THAT THE MONTHLY FAMILY ALLOWANCE SHOULD BE TERMINATED ON THE LAST DAY OF THE MONTH IN WHICH THE DISBURSING OFFICER PAYING THE ALLOWANCE RECEIVED NOTICE OF A CHANGE IN STATUS OF THE ENLISTED MAN OR A DEPENDENT WHICH TERMINATED THE RIGHT OF HIS DEPENDENT TO RECEIVE SUCH ALLOWANCE. CONSEQUENTLY, NOTICE BY YOU THAT YOU HAD COMMENCED DIVORCE PROCEEDINGS WOULD NOT HAVE BEEN EFFECTIVE TO TERMINATE THE STATUTORY ENTITLEMENT OF YOUR WIFE TO THE ALLOWANCE, THERE APPARENTLY HAVING BEEN NO CHANGE IN THE STATUS OF YOUR WIFE AS SUCH AT THAT TIME.

AS TO THE EXECUTION OF AN INSTRUMENT BY YOUR FORMER WIFE WAIVING CLAIM TO FAMILY ALLOWANCE, YOU ARE ADVISED THAT THE WAIVER OF A STATUTORY RIGHT WILL NOT ESTOP THE PERSON WAIVING THE RIGHT AND THE COURTS HAVE DECLINED TO GIVE ANY EFFECT TO SUCH A WAIVER. SEE MCMATH V. UNITED STATES, 248 U.S. 151; UNITED STATES V. BANCROFT, 260 U.S. 706; 20 COMP. GEN. 41, 43; 23 ID. 109, 112; 24 ID. 46, 49. HENCE, EVEN IF YOUR FORMER WIFE WERE TO EXECUTE A WAIVER OF HER STATUTORY RIGHT TO FAMILY ALLOWANCE SUCH WAIVER WOULD NOT AFFORD ANY BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

WHILE NO CLAIM HAS BEEN RECEIVED FROM YOUR FORMER WIFE FOR PAYMENT OF FAMILY ALLOWANCE FOR THE MONTHS INVOLVED, THE 10-YEAR PERIOD PROVIDED IN THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, DURING WHICH SUCH A CLAIM MIGHT BE FILED IN THIS OFFICE HAS NOT EXPIRED.

ACCORDINGLY, OTHER OR DIFFERENT ACTION THAN THAT TAKEN IN THE DECISION OF APRIL 6, 1956, SUSTAINING OUR SETTLEMENT OF DECEMBER 31, 1953, DISALLOWING YOUR CLAIM, IS NOT WARRANTED AT THIS TIME.