B-127885, AUG. 27, 1956

B-127885, AUG. 27, 1956

TO ROBERT JAMES ROHRER:

REFERENCE IS MADE TO YOUR COMMUNICATION OF MARCH 26, 1956, RELATIVE TO YOUR INDEBTEDNESS TO THE UNITED STATES ARISING OUT OF THE PAYMENT OF FAMILY ALLOWANCES TO JOSEPHINE ANNETTE ROHRER.

THE RECORDS SHOW THAT ON JULY 9, 1943, APPLICATION WAS MADE FOR PAYMENT OF FAMILY ALLOWANCE TO JOSEPHINE ROHRER AS YOUR WIFE. PAYMENT OF THE ALLOWANCE IN THE AMOUNT OF $50 MONTHLY WAS APPROVED, EFFECTIVE AUGUST 1, 1943, AND PAYMENTS IN THE AMOUNT OF $50 MONTHLY WERE MADE CONTINUOUSLY THROUGH AUGUST 1946, WHEN THE DISBURSING OFFICER PAYING THE ALLOWANCE RECEIVED NOTICE THAT YOUR MARRIAGE HAD BEEN TERMINATED BY DIVORCE. DEDUCTIONS WERE MADE FROM YOUR PAY AT THE RATE OF $22 A MONTH AS YOUR STATUTORY CONTRIBUTION TO THE ALLOWANCE FROM AUGUST 1943 THROUGH DECEMBER 1947. UPON RECEIPT OF THE INFORMATION REGARDING YOUR DIVORCE, THAT AN INTERLOCUTORY DECREE OF DIVORCE HAD BEEN ENTERED ON JULY 25, 1945, WHICH BECAME FINAL ON AUGUST 2, 1946, THE DEPARTMENT OF THE NAVY DETERMINED THAT THE RIGHT TO PAYMENT OF THE ALLOWANCE CEASED AS OF JULY 31, 1945, AND PAYMENTS AFTER THAT DATE WERE ERRONEOUS. ON FEBRUARY 3, 1948, THE DISBURSING OFFICER ABOARD THE U.S.S. MISSOURI REFUNDED TO YOU THE AMOUNT OF $638, WHICH WAS THE AMOUNT DEDUCTED FROM YOUR PAY AT $22 A MONTH AS FAMILY ALLOWANCE CONTRIBUTION FROM AUGUST 1945 THROUGH DECEMBER 1947. FURTHER APPEARS THAT UPON RECEIPT OF THE FINAL DECREE OF DIVORCE YOU ACTED PROMPTLY IN NOTIFYING THE DISBURSING OFFICER PAYING THE FAMILY ALLOWANCE.

OUR CLAIMS DIVISION REFERRED TO THE DEPARTMENT OF THE NAVY FOR APPROPRIATE ACTION THE MATTER OF YOUR INDEBTEDNESS IN THE AMOUNT OF $550, REPRESENTING THE TOTAL AMOUNT PAID AS FAMILY ALLOWANCE FOR THE PERIOD AUGUST 1945 THROUGH JUNE 1946, ON THE BASIS THAT YOU FAILED TO PROPERLY NOTIFY THE DISBURSING OFFICER PAYING THE ALLOWANCE OF THE ENTRY OF THE INTERLOCUTORY DECREE OF DIVORCE, YOU HAVING STATED IN A LETTER DATED APRIL 29, 1947, THAT WHEN YOUR DIVORCE BECAME FINAL ON JULY 1, 1946, YOU FORWARDED A COPY OF THE DECREE AND REQUESTED THAT THE FAMILY ALLOWANCE BE DISCONTINUED AS OF THAT DATE.

YOU NOW SAY THAT YOU NOTIFIED THE DISBURSING OFFICER OF THE U.S.S. LAS VEGAS VICTORY (AK 259) OF THE INTERLOCUTORY DECREE AS SOON AS YOU LEARNED OF IT IN AUGUST 1945 AND ALTHOUGH YOU TRIED TO STOP THE ALLOWANCE YOU WERE INFORMED THAT YOU COULD NOT UNTIL YOU COULD PRODUCE A FINAL DECREE.

SECTION 102 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381, AS AMENDED, 37 U.S.C. 202, PROVIDED THAT THE FAMILY ALLOWANCE SHALL BE COMPOSED OF TWO PARTS, (1) THE GOVERNMENT'S CONTRIBUTION AND (2) THE REDUCTION IN, OR CHARGE TO, THE PAY OF THE ENLISTED MAN. WHILE SECTION 107 (B) OF THE ACT, AS AMENDED, PROVIDED THAT ENTITLEMENT TO FAMILY ALLOWANCE SHALL TERMINATE OR BE MODIFIED AT THE END OF THE MONTH IN WHICH A CHANGE IN STATUS OF THE ENLISTED MAN OR HIS DEPENDENT OCCURS, SUCH SECTION ALSO SPECIFICALLY PROVIDED THAT PAYMENT OF SUCH ALLOWANCE SHALL BE TERMINATED ON THE LAST DAY OF THE MONTH IN WHICH THE DISBURSING OFFICER PAYING THE ALLOWANCE RECEIVES NOTICE OF A CHANGE OF STATUS OF THE ENLISTED MAN OR HIS DEPENDENT WHICH TERMINATED THE RIGHT OF THE DEPENDENT TO RECEIVE SUCH ALLOWANCE, AND SECTION 106 (A) OF THE ACT PROVIDED THAT THE MONTHLY PAY OF THE ENLISTED MAN SHALL BE REDUCED BY, OR CHARGED WITH, THE AMOUNT OF $22 FOR ANY MONTH FOR WHICH A FAMILY ALLOWANCE IS PAID TO HIS DEPENDENT.

SECTION 106 (C) (1) OF THE ACT AUTHORIZED PAYMENT OF A FAMILY ALLOWANCE TO A WIFE LIVING SEPARATE AND APART FROM THE ENLISTED MAN UNDER A COURT ORDER OR WRITTEN AGREEMENT, WHERE EITHER THE COURT ORDER OR WRITTEN AGREEMENT MADE PROVISION FOR PAYMENT OF ALIMONY OR SUPPORT, AND IF THE COURT ORDER DECREE, OR WRITTEN AGREEMENT PROVIDED NO AMOUNT TO BE PAID TO THE WIFE, NO FAMILY ALLOWANCE WAS PAYABLE TO HER. IT IS REPORTED THAT THE INTERLOCUTORY DECREE MADE NO PROVISION FOR THE PAYMENT OF ALIMONY AND, HENCE, JOSEPHINE ROHRER'S ENTITLEMENT TO FAMILY ALLOWANCE UNDER THE STATUTE CEASED ON THE LAST DAY OF JULY 1945, AND, AS TO MR. ROHRER, ALL SUBSEQUENT PAYMENTS WERE OVERPAYMENTS.

IT WAS CONTEMPLATED BY THE CONGRESS THAT THE FAMILY ALLOWANCE WOULD BE PAID TO THE DEPENDENT OF AN ENLISTED MAN FROM THE TIME WHEN ENTITLEMENT CEASED UNTIL THE LAST DAY OF THE MONTH IN WHICH THE DISBURSING OFFICER PAYING THE ALLOWANCE RECEIVED NOTICE OF A CHANGE IN THE STATUS OF THE ENLISTED MAN OR HIS DEPENDENT, AND UNDER THE STATUTE, AS INDICATED ABOVE, YOU ARE CHARGEABLE WITH THE ENLISTED MAN'S CONTRIBUTION OF $22 MONTHLY TO THE DATE OF RECEIPT OF NOTICE BY THE DISBURSING OFFICER PAYING THE ALLOWANCE.

WHILE YOU SAY THAT YOU ENDEAVORED TO HAVE THE FAMILY ALLOWANCE STOPPED IN AUGUST 1945, THE DISBURSING OFFICER PAYING THE ALLOWANCES DID NOT RECEIVE THE NECESSARY DOCUMENTARY EVIDENCE OR INFORMATION UPON WHICH TO RELY IN TERMINATING THE ALLOWANCE, UNTIL SEPTEMBER 1946, WHEN HE RECEIVED THE FORM 668, WHICH YOU EXECUTED ON AUGUST 14, 1946, AND WHICH SHOWS AUGUST 2, 1946, AS THE DATE OF THE FINAL DECREE OF DIVORCE. THE FORM USED WAS AN APPLICATION FOR FAMILY ALLOWANCE, RATHER THAN A DISCONTINUANCE NOTICE AND RESULTED IN DUPLICATE PAYMENTS BEING MADE TO MRS. ROHRER FOR AUGUST 1946. NO PAYMENTS, HOWEVER, WERE MADE FOR SEPTEMBER 1946, OR THEREAFTER. HAD YOU NOT ENDEAVORED TO HAVE THE ALLOWANCE STOPPED AFTER THE INTERLOCUTORY DECREE YOU WOULD HAVE BEEN CHARGEABLE WITH THE ENTIRE AMOUNT OF THE ALLOWANCE--- $50 MONTHLY.

ACCORDINGLY, ON THE BASIS OF YOUR STATEMENT THAT YOU ATTEMPTED TO HAVE THE ALLOWANCE DISCONTINUED AS SOON AS YOU LEARNED OF THE INTERLOCUTORY DECREE, IT IS NOW DETERMINED THAT YOU ARE INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $286, REPRESENTING THE ENLISTED MAN'S CONTRIBUTION OF $22 A MONTH FROM AUGUST 1945 THROUGH AUGUST 1946, RATHER THAN THE AMOUNT OF $550 AND THE DEPARTMENT OF THE NAVY IS BEING SO ADVISED BY LETTER OF TODAY.