B-132309, AUGUST 30, 1957, 37 COMP. GEN. 151

B-132309: Aug 30, 1957

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WERE RECEIVED BY AN ENLISTED MEMBER'S WIFE AFTER HE HAD DIRECTED THE STOPPAGE OF THE DEPENDENCY ALLOTMENT AND AUTHORIZED A CLASS Q ALLOTMENT FOR THE SUPPORT OF HIS CHILDREN AND WIFE FROM WHOM HE WAS SEPARATED REPRESENT A DEBT OF THE WIFE. ADMINISTRATIVE ADJUSTMENT BY WITHHOLDING A REASONABLE AMOUNT FROM CURRENT ALLOTMENT PAYMENTS IS AUTHORIZED. IT IS REPORTED THAT UPON ENACTMENT OF THE DEPENDENTS ASSISTANCE ACT OF 1950. THAT THROUGH ADMINISTRATIVE ERROR THE DEPENDENCY ALLOTMENT WAS PAID THROUGH APRIL 1951. THAT HE SAYS HE WAS NOT AWARE OF THE ERRONEOUS PAYMENTS UNTIL HIS WIFE INFORMED HIM IN SEPTEMBER 1951 THAT SHE HAD BEEN RECEIVING TWO CHECKS MONTHLY. IT IS NOTED THAT THE OVERPAYMENT FOR THE PERIOD FROM SEPTEMBER 1950 THROUGH APRIL 1951 WOULD AMOUNT TO $800 RATHER THAN $1.

B-132309, AUGUST 30, 1957, 37 COMP. GEN. 151

MILITARY PERSONNEL - DEPENDENCY ALLOTMENT - OVERPAYMENTS - WIFE'S LIABILITY - DEBT SATISFACTION FROM CURRENT PAYMENTS DEPENDENCY ALLOTMENTS WHICH, THROUGH ADMINISTRATIVE ERROR, WERE RECEIVED BY AN ENLISTED MEMBER'S WIFE AFTER HE HAD DIRECTED THE STOPPAGE OF THE DEPENDENCY ALLOTMENT AND AUTHORIZED A CLASS Q ALLOTMENT FOR THE SUPPORT OF HIS CHILDREN AND WIFE FROM WHOM HE WAS SEPARATED REPRESENT A DEBT OF THE WIFE, AND ADMINISTRATIVE ADJUSTMENT BY WITHHOLDING A REASONABLE AMOUNT FROM CURRENT ALLOTMENT PAYMENTS IS AUTHORIZED.

TO J. C. JONES, DEPARTMENT OF THE NAVY, AUGUST 30, 1957:

BY LETTER OF JUNE 21, 1957, THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED YOUR LETTER OF MARCH 15, 1957, REQUESTING AN ADVANCE DECISION AS TO WHETHER CHECK AGE IN REASONABLE AMOUNTS MAY BE MADE AGAINST THE CLASS Q ALLOTMENT PAYMENTS NOW BEING MADE TO GLADYS SMITH, WIFE OF VERNON GALE SMITH, 634 86 85, RM1, USN, TO LIQUIDATE HER INDEBTEDNESS DESCRIBED BELOW.

IT IS REPORTED THAT UPON ENACTMENT OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 794, 50 U.S.C. 2201, THE ENLISTED MAN DIRECTED THE STOPPAGE OF A DEPENDENCY ALLOTMENT THEN IN EFFECT IN THE AMOUNT OF $100 PER MONTH TO HIS WIFE AND AUTHORIZED A CLASS Q ALLOTMENT IN THE AMOUNT OF $165 PER MONTH EFFECTIVE SEPTEMBER 1950 FOR THE SUPPORT OF HIS WIFE AND THEIR CHILDREN, BUT THAT THROUGH ADMINISTRATIVE ERROR THE DEPENDENCY ALLOTMENT WAS PAID THROUGH APRIL 1951, RESULTING IN AN UNAUTHORIZED PAYMENT OF $1,100, WHICH SHE HAS SINCE REDUCED TO $1,040. IT APPEARS THAT THE ENLISTED MAN HAS BEEN SEPARATED FROM HIS WIFE SINCE MAY 1948, AND THAT HE SAYS HE WAS NOT AWARE OF THE ERRONEOUS PAYMENTS UNTIL HIS WIFE INFORMED HIM IN SEPTEMBER 1951 THAT SHE HAD BEEN RECEIVING TWO CHECKS MONTHLY, ONE FOR $100 AND ANOTHER FOR $165. ALSO, IT APPEARS THAT HE HAS OBJECTED TO PAYMENT OF THE INDEBTEDNESS BY CHECK AGE AGAINST HIS PAY RECORD, AND THAT HIS WIFE HAS NO PROPERTY FROM WHICH LIQUIDATION OF THE INDEBTEDNESS MAY BE EFFECTED. IT IS NOTED THAT THE OVERPAYMENT FOR THE PERIOD FROM SEPTEMBER 1950 THROUGH APRIL 1951 WOULD AMOUNT TO $800 RATHER THAN $1,100 AS STATED. IT WOULD APPEAR, HOWEVER, IN VIEW OF THE MEMBER'S STATEMENT AS TO WHEN HE WAS FIRST INFORMED OF THE ERRONEOUS PAYMENTS, THAT THEY MAY HAVE BEEN CONTINUED THROUGH AUGUST 1951, RESULTING IN THE REPORTED OVERPAYMENT OF $1,100.

AN ENLISTED MAN DOES NOT HAVE COMPLETE CONTROL OVER HIS PAY AND ALLOWANCES AS FAR AS DETERMINING WHETHER OR NOT A PORTION SHOULD BE ALLOTTED FOR THE SUPPORT OF HIS DEPENDENTS SINCE THE ALLOTMENT MAY BE MADE WITHOUT HIS CONSENT BY THE SECRETARY CONCERNED UNDER SECTION 6 OF THE 1950 ACT, 50 U.S.C. 2206, AND WHEN HE MAKES A CLASS Q ALLOTMENT TO HIS WIFE FOR THE SUPPORT OF HER AND THEIR CHILDREN, THE AMOUNTS INVOLVED NO LONGER ARE REGARDED AS BELONGING TO HIM TO THE SAME EXTENT AS THE REMAINDER OF SUCH PAY AND ALLOWANCES. THE ALLOTMENT IS NOT SUBJECT TO WITHHOLDING TO PAY HIS INDEBTEDNESS TO THE GOVERNMENT (34 COMP. GEN. 164) AND IT IS NOT SUBJECT TO FORFEITURE ON COURT-MARTIAL CONVICTION OF AN OFFENSE WHEN HIS DISCHARGE IS NOT ADJUDGED (36 COMP. GEN. 79, 80). CONSEQUENTLY, HE WOULD HAVE NO MORE, AND PERHAPS LESS, VALID GROUNDS THAN HIS WIFE TO OBJECT TO THE APPLICATION OF PART OF THE ALLOTMENT TO PAY HER INDEBTEDNESS IN A CASE LIKE THIS. WHILE IT IS DOUBTFUL THAT PART OF THE ALLOTMENT COULD BE SO APPLIED WHERE THE WIFE'S INDEBTEDNESS HAS NO RELATIONSHIP TO THE ALLOTMENT, IN THE ABSENCE OF AN OVERRIDING PUBLIC POLICY OR AN EXPRESS LEGISLATIVE INTENT TO THE CONTRARY, THERE APPEARS TO BE NO REASON WHY SUCH ACTION MAY NOT BE TAKEN WHERE THE DEBT AROSE OUT OF PAYMENTS TO HER FOR THE SUPPORT OF HER AND HER CHILDREN. ALTHOUGH A PUBLIC POLICY IN FAVOR OF ALLOTMENTS IN SUPPORT OF DEPENDENTS WAS RECOGNIZED IN 34 COMP. GEN. 164, 166, MRS. SMITH HAS RECEIVED MORE THAN WAS PAYABLE TO HER FOR THAT PURPOSE AND IT IS NOT BELIEVED THAT THE CONGRESS INTENDED THAT SUCH AN OVERPAYMENT SHOULD NOT BE ADJUSTED BY WITHHOLDING A REASONABLE AMOUNT FROM CURRENT PAYMENTS. CERTAINLY IF AN UNDERPAYMENT OF ALLOTMENT HAD BEEN MADE THE MATTER COULD BE ADMINISTRATIVELY ADJUSTED BY MAKING A SUPPLEMENTAL PAYMENT, AND NO REASON IS PERCEIVED WHY THE OVERPAYMENT MAY NOT ALSO BE ADMINISTRATIVELY ADJUSTED BY WITHHOLDING REASONABLE AMOUNTS OF THE AUTHORIZED PAYMENTS TO HIS WIFE. COMPARE UNITED STATES V. BENTLEY, 107 F.2D 382.