B-134185, JAN. 22, 1958

B-134185: Jan 22, 1958

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STELLMAN: REFERENCE IS MADE TO LETTER OF SEPTEMBER 30. YOU WERE APPOINTED A SECOND LIEUTENANT IN THE ARMY OF THE UNITED STATES AND ON MARCH 10. YOU WERE PROMOTED TO FIRST LIEUTENANT. WERE RETURNED TO MILITARY CONTROL ON OR ABOUT MAY 10. YOU WERE TRIED AND CONVICTED BY COURT-MARTIAL FOR SO DESERTING THE SERVICE AND SENTENCED TO FORFEIT $2. YOU WERE HONORABLY DISCHARGED SEPTEMBER 4. THE ALLOTMENT IN FAVOR OF YOUR MOTHER WAS PAID FROM JULY 1945 TO MAY 1946 WITHOUT ANY CORRESPONDING DEDUCTIONS FROM YOUR PAY. THE ALLOTMENT IN FAVOR OF YOUR WIFE WAS PAID FROM NOVEMBER 1945 TO MAY 1949 WITHOUT ANY CORRESPONDING DEDUCTIONS FROM YOUR PAY. YOU DENY LIABILITY FOR THAT PORTION OF THE TOTAL PAYMENTS TO YOUR WIFE REPRESENTING THE ALLOTMENT PAYMENTS MADE FOR THE PERIOD MARCH 1946 TO MAY 1949 WHILE YOU WERE IN A DESERTION STATUS.

B-134185, JAN. 22, 1958

TO MR. EARL A. STELLMAN:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 30, 1957, WRITTEN IN YOUR BEHALF BY MR. GEORGE R. WALKER, REQUESTING RECONSIDERATION OF SETTLEMENT DATED SEPTEMBER 16, 1957, DISALLOWING YOUR CLAIM FOR PAY AND ALLOWANCES INCIDENT TO YOUR SERVICE IN THE ARMY BETWEEN NOVEMBER 1, 1945, AND SEPTEMBER 4, 1952, BECAUSE OF YOUR REPORTED INDEBTEDNESS TO THE UNITED STATES IN A LARGER AMOUNT. ALSO, MR. WALKER REQUESTS THAT YOU BE FURNISHED WITH COPIES OF YOUR MILITARY PAY RECORD FOR THE PERIOD MAY 10, 1951, TO SEPTEMBER 4, 1952.

THE RECORDS SHOW THAT YOU SERVED AS AN ENLISTED MAN IN THE ARMY OF THE UNITED STATES FROM MARCH 12, 1942, TO JANUARY 27, 1943. ON JANUARY 28, 1943, YOU WERE APPOINTED A SECOND LIEUTENANT IN THE ARMY OF THE UNITED STATES AND ON MARCH 10, 1945, YOU WERE PROMOTED TO FIRST LIEUTENANT. YOU DESERTED THE SERVICE ON OR ABOUT FEBRUARY 23, 1946, AND WERE RETURNED TO MILITARY CONTROL ON OR ABOUT MAY 10, 1951. YOU WERE TRIED AND CONVICTED BY COURT-MARTIAL FOR SO DESERTING THE SERVICE AND SENTENCED TO FORFEIT $2,500, SUCH FORFEITURE TO APPLY TO PAY AND ALLOWANCES BECOMING DUE ON OR AFTER FEBRUARY 6, 1952, AND TO BE PAYABLE AT THE RATE OF $125 PER MONTH. YOU WERE HONORABLY DISCHARGED SEPTEMBER 4, 1952, AS A FIRST LIEUTENANT, ARMY OF THE UNITED STATES.

PRIOR TO DESERTING THE SERVICE YOU HAD IN EFFECT A CLASS E VOLUNTARY ALLOTMENT OF $85 PER MONTH IN FAVOR OF YOUR MOTHER, ELSIE MUELLER, AND A CLASS E VOLUNTARY ALLOTMENT OF $175 PER MONTH IN FAVOR OF YOUR WIFE, GENEVIEVE STELLMAN. THE ALLOTMENT IN FAVOR OF YOUR MOTHER WAS PAID FROM JULY 1945 TO MAY 1946 WITHOUT ANY CORRESPONDING DEDUCTIONS FROM YOUR PAY, RESULTING IN A TOTAL PAYMENT OF $935 IN EXCESS OF DEDUCTIONS. YOU RECEIVED THE BENEFIT OF THIS ALLOTMENT AND ADMIT LIABILITY FOR ALL SUCH PAYMENTS. THE ALLOTMENT IN FAVOR OF YOUR WIFE WAS PAID FROM NOVEMBER 1945 TO MAY 1949 WITHOUT ANY CORRESPONDING DEDUCTIONS FROM YOUR PAY, RESULTING IN TOTAL PAYMENTS OF $7,525 IN EXCESS OF DEDUCTIONS. YOU DENY LIABILITY FOR THAT PORTION OF THE TOTAL PAYMENTS TO YOUR WIFE REPRESENTING THE ALLOTMENT PAYMENTS MADE FOR THE PERIOD MARCH 1946 TO MAY 1949 WHILE YOU WERE IN A DESERTION STATUS.

DURING THE PERIOD NOVEMBER 1, 1945, TO FEBRUARY 22, 1946, YOU WERE ENTITLED TO AN AGGREGATE CREDIT OF PAY AND ALLOWANCE OF $1,092.93, CONSISTING OF PAY AS FIRST LIEUTENANT AT $175 PER MONTH, $653.33, RENTAL ALLOWANCE AT $75 PER MONTH, $280, AND SUBSISTENCE AT $1.40 PER DAY, $159.60. AS OF FEBRUARY 22, 1946, HOWEVER, YOUR PAY ACCOUNT PROPERLY WAS CHARGEABLE WITH THE CLASS E ALLOTMENT PAYMENTS OF $85 PER MONTH MADE TO YOUR MOTHER FOR THE PERIOD JULY 1945 TO FEBRUARY 1946, $680, THE CLASS E ALLOTMENT PAYMENTS OF $175 PER MONTH, MADE TO YOUR WIFE, FOR THE PERIOD NOVEMBER 1945 TO FEBRUARY 1946, $700, CLASS N INSURANCE ALLOTMENT PAYMENTS OF $7 PER MONTH MADE FOR THE PERIOD NOVEMBER 1945 TO FEBRUARY 1946, $28, AND PARTIAL PAYMENTS OF PAY MADE TO YOU AMOUNTING TO $275. THESE CHARGES IN YOUR ACCOUNT, TOTALING $1,683, EXCEED YOUR CREDITS FOR THAT PERIOD BY $590.07, AND HENCE, ON FEBRUARY 22, 1946, YOU HAD BEEN OVERPAID $590.07. THIS SUM IS A PROPER CHARGE AGAINST THE PAY AND ALLOWANCES ACCRUING TO YOU FOR YOUR SERVICE FROM MAY 10, 1951, TO SEPTEMBER 4, 1952.

DURING THE PERIOD FROM MAY 10, 1951, THE DATE OF YOUR RETURN TO MILITARY CONTROL, TO SEPTEMBER 4, 1952, THE DATE OF YOUR DISCHARGE, YOU WERE CREDITED WITH PAY AND ALLOWANCES, INCLUDING A QUARTERS ALLOWANCE FOR A DEPENDENT WIFE, OF A FIRST LIEUTENANT, AGGREGATING $6,223.83. OF THIS SUM, $534.70 WAS WITHHELD AS INCOME TAX, $265 WAS APPLIED TO LIQUIDATE AN OVERPAYMENT WHICH HAD BEEN MADE TO YOU ON VOUCHER NO. 380-15 IN THE NOVEMBER 1945 ACCOUNTS OF A. G. LANE, $3,055.39 WAS APPLIED IN PARTIAL LIQUIDATION OF THE CLASS E ALLOTMENT PAYMENTS TO YOUR MOTHER AND WIFE, AND THE BALANCE OF $2,368.74 WAS PAID TO YOU AS PAY AND ALLOWANCES. DEDUCTION WAS MADE FROM YOUR PAY FOR TRANSPORTATION COST OF $11.17INCIDENT TO YOUR RETURN TO MILITARY CONTROL OR FOR THE COURT-MARTIAL FORFEITURE RESULTING IN AN UNSATISFIED FORFEITURE INDEBTEDNESS OF $870.81 (6 MONTHS AND 29 DAYS AT $125 PER MONTH). COPIES OF YOUR MILITARY PAY RECORD CARDS COVERING THE PERIOD ARE ENCLOSED AS REQUESTED.

WHILE IT IS STATED IN YOUR AFFIDAVIT AND OTHER CORRESPONDENCE WITH THIS OFFICE THAT YOU DID NOT KNOW THE WHEREABOUTS OF YOUR WIFE GENEVIEVE (TO WHOM THE ALLOTMENT PAYMENTS WERE MADE) AFTER 1946, YOUR PAY RECORD SHOWS THAT, IN ORDER TO OBTAIN CREDIT OF A BASIC ALLOWANCE FOR QUARTERS ON HER ACCOUNT FOR THE PERIOD MAY 10 THROUGH DECEMBER 31, 1951, YOU REPRESENTED THAT SHE WAS YOUR DEPENDENT AND THAT HER ADDRESS THEN WAS 5920 SUPERIOR STREET, CHICAGO, ILLINOIS. THAT REPRESENTATION, ON THE BASIS OF WHICH YOU WERE CREDITED THE QUARTERS ALLOWANCE, CONTRADICTS THE REPRESENTATIONS MADE TO THIS OFFICE. FURTHERMORE, YOUR ATTORNEY STATES THAT YOU HAD THEN REMARRIED IN THE BELIEF THAT GENEVIEVE HAD OBTAINED A DIVORCE FROM YOU AND THAT YOU HAD NEVER BEEN IN CONTACT WITH HER (FROM WHOM YOU WERE DIVORCED ON DECEMBER 15, 1951) AND HAD "NOT SEEN NOR HEARD FROM" HER SINCE YOU LEFT CHICAGO IN 1946, AND YOU STATE THAT YOU HAVE PAID NO MONEY TO HER AFTER YOU RETURNED FROM THE PHILIPPINES IN 1945.

SINCE THE RECORD INDICATES THAT YOU DID NOT SUPPORT YOUR WIFE GENEVIEVE IN 1951, THE CREDIT IN THE AMOUNT OF $635.25 OF THE QUARTERS ALLOWANCE TO YOU WAS ERRONEOUS (SEE ROBEY V. UNITED STATES, 71 C.CLS. 561) AND THEREFORE THE CREDITS IN YOUR ACCOUNT TOTALING $6,223.83 MUST BE REDUCED TO $5,588.58.

CONCERNING YOUR LIABILITY FOR THE ERRONEOUS ALLOTMENT PAYMENTS TO YOUR WIFE, IT IS OUR VIEW THAT, WHEN SUCH AN ALLOTMENT HAS BEEN ERRONEOUSLY PAID AND THE SERVICE MEMBER IS AT FAULT, THE MEMBER AND THE PAYEE ARE JOINTLY AND SEVERALLY LIABLE TO REPAY THE AMOUNT AND COLLECTION MAY BE MADE IN WHOLE OR IN PART FROM EACH. 33 COMP. GEN. 309. AND, REASONABLY, BUT FOR YOUR DESERTION THERE WOULD HAVE BEEN NO SUCH ERRONEOUS PAYMENTS IN THIS CASE. ARMY REGULATIONS 35-5520, IN EFFECT AT THE TIME OF YOUR DESERTION, REQUIRED, HOWEVER, THAT ALL CLASS E ALLOTMENTS BE STOPPED AFTER THE ALLOTTER HAD BEEN ABSENT WITHOUT LEAVE FOR 15 DAYS, AND THE ALLOTMENT IN FAVOR OF YOUR MOTHER WAS STOPPED WITH THE MONTH OF MAY 1946.

YOU KNOW, NOTWITHSTANDING YOUR ALLEGED STOP ORDER, THAT THE ALLOTMENT PAYMENTS WERE MADE TO YOUR MOTHER THROUGH MAY 1946 AND YOU HAD REASON TO BELIEVE THAT YOUR WIFE LIKEWISE RECEIVED SUCH PAYMENTS, YOU HAVING TOLD HER, AND ASKED YOUR MOTHER TO TELL HER, NOT TO ACCEPT ANY MORE CHECKS. SUCH CIRCUMSTANCES AND HAVING IN MIND THE LEGAL OBLIGATION OF A HUSBAND TO SUPPORT HIS WIFE, WE MAY NOT CONCLUDE, DESPITE THE SHORT DELAY IN APPLYING THE STOPPAGE REGULATION TO YOUR MOTHER'S ALLOTMENT, THAT YOU ARE NOT LIABLE FOR THE ALLOTMENT PAYMENTS MADE TO YOUR WIFE THROUGH MAY 1946. COMPARE 33 COMP. GEN. 309. APPARENTLY, HOWEVER, THE FACT THAT YOUR MOTHER WAS NOT ENTITLED TO FURTHER PAYMENTS WAS KNOWN TO THE AUTHORITIES PAYING YOUR ALLOTMENTS WHEN HER ALLOTMENT WAS STOPPED, AND SIMILAR STOPPAGE ACTION SHOULD HAVE BEEN TAKEN WITH RESPECT TO YOUR WIFE'S ALLOTMENT. ACCORDINGLY, AS IT DOES NOT APPEAR THAT YOU DIRECTLY BENEFITED FROM THE CLASS E PAYMENTS MADE TO YOUR WIFE AFTER MAY 1946, WE CONCLUDE THAT YOU ARE NOT LIABLE FOR ANY OF SUCH PAYMENTS MADE AFTER THAT MONTH.

THUS, IN ADDITION TO YOUR INDEBTEDNESS OF $590.07 AS OF FEBRUARY 22, 1946, YOU PROPERLY ARE CHARGEABLE WITH THE CLASS E ALLOTMENT PAYMENTS MADE TO YOUR MOTHER AND YOUR WIFE FROM MARCH THROUGH MAY 1946 IN THE TOTAL AMOUNT OF $780. ALSO, YOU ARE INDEBTED TO THE UNITED STATES FOR THE NOVEMBER 1946 OVERPAYMENT ($265), THE TRANSPORTATION COST INCIDENT TO YOUR RETURN TO MILITARY CONTROL, AND THE ACCRUED COURT-MARTIAL FORFEITURES.

ON THE BASIS OF THE FOREGOING YOUR PAY ACCOUNT FOR THE PERIOD MAY 10, 1951, TO SEPTEMBER 4, 1952, SHOULD BE COMPUTED AS FOLLOWS:

TABLE

TOTAL CREDITS OF PAY AND ALLOWANCES

MAY 10, 1951, TO SEPTEMBER 4, 1952 $5,588.58 LESS:

OVERPAYMENT CARRIED FORWARD FROM

FEBRUARY 1946 $ 590.07

INCOME TAX WITHHOLDING 534.70

OVERPAYMENT ON VOUCHER NO. 380-15,

NOVEMBER 1945 ACCOUNTS OF A. G. LANE 265.00

CLASS E ALLOTMENT PAYMENT TO YOUR

MOTHER, MARCH TO MAY 1946, 3 MONTHS

AT $85 PER MONTH 255.00

CLASS E ALLOTMENT PAYMENTS TO YOUR

WIFE, MARCH TO MAY 1946, 3 MONTHS AT

$175 PER MONTH 525.00

PAYMENTS OF PAY AND ALLOWANCES 2,368.74

TRANSPORTATION CHARGES 11.17

ACCRUED COURT-MARTIAL FORFEITURES 870.81 5,420.49

BALANCE DUE $ 168.09

A SETTLEMENT FOR THE BALANCE DUE WILL ISSUE IN YOUR FAVOR IN DUE COURSE.