B-131613, JUN. 6, 1957

B-131613, JUN. 6, 1957

TO MR. CURTIS L. MCKINNEY:

REFERENCE IS MADE TO LETTERS DATED MARCH 19 AND APRIL 12, 1957, WRITTEN IN YOUR BEHALF BY MR. WAYNE C. HODSON, ATTORNEY AT LAW, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $904.15. THE INDEBTEDNESS IS COMPOSED OF THE FOLLOWING ITEMS: $6.65 UNDERDEDUCTION FOR NATIONAL SERVICE LIFE INSURANCE PREMIUM, $42.50 OVERPAYMENT IN LUMP-SUM SETTLEMENT FOR UNUSED LEAVE, AND $855 FOR ERRONEOUS CREDIT OF BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENT SISTER AT $67.50 PER MONTH FROM AUGUST 1, 1950, TO AUGUST 20, 1951, INCIDENT TO YOUR SERVICE IN THE U.S. NAVAL RESERVE.

IT APPEARS THAT YOU ORIGINALLY APPLIED FOR A BASIC ALLOWANCE FOR QUARTERS FOR YOUR SISTER, KATHERINE ANN MCKINNEY, AND THAT PENDING APPROVAL OF THE APPLICATION, YOU WERE CREDITED WITH THE ALLOWANCE AT $67.50 PER MONTH, EFFECTIVE AUGUST 1, 1950. NO ALLOTMENT OF PAY WAS INSTITUTED IN BEHALF OF YOUR SISTER, ALTHOUGH THE RECORD SHOWS THAT YOU INSTITUTED AN ALLOTMENT TO YOUR MOTHER IN THE AMOUNT OF $150 A MONTH, EFFECTIVE NOVEMBER 1950. THE APPLICATION FOR THE QUARTERS ALLOWANCE IN BEHALF OF YOUR SISTER WAS DISAPPROVED ON THE BASIS THAT A SISTER WAS NOT INCLUDED AMONG ELIGIBLE DEPENDENTS UNDER THE APPROPRIATE STATUTES AND REGULATIONS. IN AN EFFORT TO SUBSTANTIATE THE ALLOWANCE, YOU EXECUTED A NEW APPLICATION, DATED AUGUST 25, 1952, NAMING YOUR MOTHER, MRS. GRACE S. MCKINNEY, AS DEPENDENT, AND REQUESTED THE ALLOWANCE TO BE EFFECTIVE FROM AUGUST 1950. IN OTHER WORDS, YOU ENDEAVORED TO SUBSTITUTE YOUR MOTHER AS THE DEPENDENT IN LIEU OF YOUR SISTER. THIS APPLICATION WAS DENIED ON MARCH 23, 1953, BY THE BUREAU OF NAVAL PERSONNEL FOR THE REASON THAT DEPENDENCY OF YOUR MOTHER WAS NOT ESTABLISHED. BY LETTER DATED AUGUST 3, 1953, YOU WERE NOTIFIED BY THE DEPARTMENT OF THE NAVY THAT THE APPLICATION IN BEHALF OF YOUR MOTHER WAS DISAPPROVED, AND REQUEST WAS MADE FOR REFUND OF THE IMPROPER PAYMENTS. THE MATTER WAS SUBSEQUENTLY REFERRED TO OUR OFFICE FOR COLLECTION BY THE DEPARTMENT OF THE NAVY.

IN OUR CLAIMS DIVISION LETTER OF DECEMBER 19, 1956, IT IS STATED THAT THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS FOR THE PERIOD CONCERNED IS GOVERNED BY THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 794, AND THAT DETERMINATIONS MADE UNDER THE STATUTE ARE FINAL AND CONCLUSIVE AND NOT SUBJECT TO REVIEW IN ANY COURT OR BY ANY ACCOUNTING OFFICER OF THE GOVERNMENT, EXCEPT FOR CASES INVOLVING FRAUD OR GROSS NEGLIGENCE.

IN HIS LETTER MR. HODSON URGES THAT IF YOUR SISTER MAY NOT BE CONSIDERED A DEPENDENT THAT YOUR MOTHER CERTAINLY WAS, AND THAT YOU ARE ENTITLED TO THE BASIC ALLOWANCE FOR QUARTERS IN HER BEHALF. MR. HODSON ALSO QUESTIONS THE FINALITY OF THE ADMINISTRATIVE DETERMINATION.

THE TERM "DEPENDENT" IS DEFINED IN THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, AS AMENDED BY THE DEPENDENTS ASSISTANT ACT OF 1950, 64 STAT. 794, IN CONNECTION WITH THE AUTHORIZATION OF PAYMENT OF BASIC ALLOWANCES, AS INCLUDING A LAWFUL WIFE AND UNMARRIED LEGITIMATE CHILDREN, UNDER 21 YEARS OF AGE. A FATHER OR MOTHER IS ALSO INCLUDED PROVIDED HE OR SHE IS IN FACT DEPENDENT ON THE SERVICE MEMBER FOR OVER HALF OF HIS OR HER SUPPORT. THE SISTER OF A MEMBER IS NOT INCLUDED WITHIN THE TERM "DEPENDENT" AS USED IN THE STATUTES, NOTWITHSTANDING SHE MAY HAVE, IN FACT, DERIVED HER SUPPORT FROM YOU. AS TO YOUR MOTHER'S DEPENDENCY, THE ADMINISTRATIVE OFFICE DETERMINED THAT HER DEPENDENCY ON YOU FOR OVER HALF OF HER SUPPORT HAD NOT BEEN ESTABLISHED, AND HENCE YOU WERE NOT ENTITLED TO THE ALLOWANCE IN HER BEHALF.

SECTIONS 10 AND 11 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 796, PROVIDE AS FOLLOWS:

"SEC. 10. THE SECRETARIES OF THE DEPARTMENTS CONCERNED ARE AUTHORIZED TO PRESCRIBE SUCH REGULATIONS FOR THE ADMINISTRATION OF THIS ACT AS MAY BE DEEMED NECESSARY TO ENABLE THEM TO CARRY OUT THE PROVISIONS OF THIS ACT AND SUCH REGULATIONS SHALL, AS FAR AS PRACTICABLE, BE UNIFORM. ALL WAIVERS AND DETERMINATIONS, INCLUDING DETERMINATIONS OF DEPENDENCY AND RELATIONSHIP SHALL BE MADE BY THE SECRETARY OF THE DEPARTMENT CONCERNED OR SUCH OTHER PERSON OR PERSONS AS HE MAY DESIGNATE, AND THE SECRETARY OF THE DEPARTMENT CONCERNED OR HIS DESIGNEE IS AUTHORIZED TO DELEGATE OR REDELEGATE SUCH AUTHORITY: PROVIDED, THAT THE AUTHORITY GRANTED IN THIS SECTION TO THE SEVERAL SECRETARIES OF THE DEPARTMENTS CONCERNED MAY BY JOINT AGREEMENT BE EXERCISED BY ANY ONE OF THE SECRETARIES FOR ANY OTHER DEPARTMENT OR DEPARTMENTS CONCERNED.

"SEC. 11. ANY DETERMINATIONS OR WAIVERS MADE UNDER THIS ACT SHALL BE FINAL AND CONCLUSIVE FOR ALL PURPOSES AND SHALL NOT BE SUBJECT TO REVIEW IN ANY COURT OR BY ANY ACCOUNTING OFFICER OF THE GOVERNMENT, EXCEPT FOR CASES INVOLVING FRAUD OR GROSS NEGLIGENCE. THE SECRETARY OF THE DEPARTMENT CONCERNED MAY AT ANY TIME ON THE BASIS OF NEW EVIDENCE OR FOR OTHER GOOD CAUSE RECONSIDER OR MODIFY ANY SUCH DETERMINATION, AND MAY WAIVE THE RECOVERY OF ANY MONEY ERRONEOUSLY PAID UNDER THIS ACT WHENEVER HE FINDS THAT SUCH RECOVERY WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE.'

UNDER THESE PROVISIONS OF LAW WE MAY NOT QUESTION THE DETERMINATIONS MADE IN YOUR CASE. THE FINALITY OF AN ADMINISTRATIVE DETERMINATION, WHERE SO PROVIDED BY STATUTE, IS NOT UNUSUAL. SEE MCLENDON V. UNITED STATES, 123 F.SUPP. 765; BREWER V. UNITED STATES, 117 F.SUPP. 842.

ACCORDINGLY, THE STATEMENT OF YOUR INDEBTEDNESS, AS SET FORTH IN OUR CLAIMS DIVISION LETTER OF DECEMBER 19, 1956, IS CORRECT AND ARRANGEMENTS SHOULD BE MADE PROMPTLY TO LIQUIDATE THE INDEBTEDNESS.