B-135480, MAY 27, 1958

B-135480: May 27, 1958

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REID: WE HAVE RECEIVED FOR CONSIDERATION A LETTER DATED OCTOBER 21. THAT HE WAS DISCHARGED ON JANUARY 3. - STATING THAT HE WAS MARRIED TO YOU ON MAY 11. THE FAMILY ALLOWANCE WAS PAID TO YOU FOR THE PERIOD FROM MAY 1. KEARNS WAS MARRIED TO DOROTHY ELLEN SNYDER ON NOVEMBER 14. THE ARMY AUTHORITIES DETERMINED THAT SHE WAS THE LIVING. KEARNS DURING THE PERIOD INVOLVED AND THAT THE FAMILY ALLOWANCE PAYMENTS TOTALING $650 (13 MONTHS AT $50 A MONTH) MADE TO YOU ON YOUR BEHALF FOR SUCH PERIOD WERE ERRONEOUS. SINCE THAT TIME NUMEROUS LETTERS HAVE BEEN WRITTEN TO YOU AND TO YOUR ATTORNEY CONCERNING THIS MATTER BUT NOTHING HAS BEEN REFUNDED. CHAMBLISS WAS ADVISED THAT IT IS WELL SETTLED THAT THE RIGHT OF THE GOVERNMENT TO RECOVER ERRONEOUS PAYMENTS MADE BY ITS AGENCIES.

B-135480, MAY 27, 1958

TO MRS. FAY T. REID:

WE HAVE RECEIVED FOR CONSIDERATION A LETTER DATED OCTOBER 21, 1957, WRITTEN ON YOUR BEHALF BY YOUR ATTORNEY, MR. HARDEE CHAMBLISS, JR., TO MR. P. L. CARTER OF OUR CLAIMS DIVISION AT INDIANAPOLIS, INDIANA, REGARDING AN INDEBTEDNESS RESULTING FROM ERRONEOUS FAMILY ALLOWANCE PAYMENTS MADE TO YOU DURING THE PERIOD FROM MAY 1, 1944, TO MAY 31, 1945, INCIDENT TO THE ARMY SERVICE OF GEORGE W. KEARNS.

THE RECORDS SHOW THAT GEORGE W. KEARNS ENTERED THE ARMY ON DECEMBER 6, 1943, AND THAT HE WAS DISCHARGED ON JANUARY 3, 1946. ON MAY 19, 1944, HE APPLIED FOR THE FAMILY ALLOWANCE FOR YOU AS HIS DEPENDENT WIFE--- STATING THAT HE WAS MARRIED TO YOU ON MAY 11, 1944, AT ELLICOTT CITY, MARYLAND--- AND FOR GEORGE W. KEARNS, JR., AS HIS DEPENDENT SON. BASED ON THAT APPLICATION, THE FAMILY ALLOWANCE WAS PAID TO YOU FOR THE PERIOD FROM MAY 1, 1944, TO MAY 31, 1945, AT THE MONTHLY RATE OF $75--- $50 FOR YOU AND $25 FOR YOUR SON. ON THE BASIS OF EVIDENCE THAT GEORGE W. KEARNS WAS MARRIED TO DOROTHY ELLEN SNYDER ON NOVEMBER 14, 1936, AND THAT THE "DIVORCE FROM BED AND OARD" AWARDED HER ON OCTOBER 11, 1943, IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA HAD NEVER BEEN ENLARGED INTO A DECREE OF ABSOLUTE DIVORCE FROM THE BOND OF MARRIAGE, THE ARMY AUTHORITIES DETERMINED THAT SHE WAS THE LIVING, LAWFUL WIFE OF GEORGE W. KEARNS DURING THE PERIOD INVOLVED AND THAT THE FAMILY ALLOWANCE PAYMENTS TOTALING $650 (13 MONTHS AT $50 A MONTH) MADE TO YOU ON YOUR BEHALF FOR SUCH PERIOD WERE ERRONEOUS.

ON OCTOBER 9, 1953, THE ARMY AUTHORITIES REFERRED YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $650 TO OUR OFFICE FOR COLLECTION. SINCE THAT TIME NUMEROUS LETTERS HAVE BEEN WRITTEN TO YOU AND TO YOUR ATTORNEY CONCERNING THIS MATTER BUT NOTHING HAS BEEN REFUNDED. IN OUR LETTER DATED OCTOBER 15, 1957, DI Z 1011154 PLC, MR. CHAMBLISS WAS ADVISED THAT IT IS WELL SETTLED THAT THE RIGHT OF THE GOVERNMENT TO RECOVER ERRONEOUS PAYMENTS MADE BY ITS AGENCIES, OFFICERS OR EMPLOYEES FROM PERSONS WHO RECEIVED SUCH PAYMENTS IS NOT DEPENDENT UPON THE KNOWLEDGE OR LACK OF KNOWLEDGE OF THE RECIPIENTS OF THE ERRONEOUS CHARACTER OF THE PAYMENTS; THAT THE DUTY OF SUCH PERSONS TO MAKE RESTITUTION IS NOT AFFECTED BY THE FACT THAT SUCH PAYMENTS MAY HAVE BEEN RECEIVED IN GOOD FAITH, SINCE SUCH PERSONS ACQUIRED NO RIGHT THERETO; AND THAT THE COURTS CONSISTENTLY HAVE HELD THAT SUCH PERSONS ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION. IN THAT LETTER WE CITED SEVERAL COURT CASES, INCLUDING THE CASE OF UNITED STATES V. BENTLEY, 107 F.2D 382.

IT IS CONTENDED BY YOU AND ON YOUR BEHALF THAT WHEN YOU WERE CEREMONIALLY MARRIED TO GEORGE W. KEARNS YOU ASSUMED THAT HIS PREVIOUS MARRIAGE HAD BEEN TERMINATED BY AN ABSOLUTE DIVORCE; THAT YOU HAVE PAPERS SHOWING THAT THE FAMILY ALLOWANCE--- WHICH YOU REFER TO AS AN "ALLOTMENT"--- WAS APPROVED BY THE GOVERNMENT; THAT YOU PARTICIPATED IN NO WAY IN MISREPRESENTING YOUR STATUS; AND THAT YOU HAD NO DEALINGS WHATEVER WITH THE GOVERNMENT OTHER THAN TO RECEIVE THE FAMILY ALLOWANCE PAYMENTS WHICH WERE SENT TO YOU AND WHICH YOU USED FOR THE SUPPORT OF YOURSELF AND YOUR CHILD BY GEORGE W. KEARNS. MR. CHAMBLISS SAYS THAT HE ASSUMES THAT UNDER THE REGULATIONS EXISTING AT THE TIME THE FAMILY ALLOWANCE WAS ESTABLISHED THE OFFICIALS OF THE GOVERNMENT WHO AUTHORIZED THAT ALLOWANCE WERE CHARGED WITH THE RESPONSIBILITY OF DETERMINING WHETHER OR NOT THE DIVORCE OF GEORGE W. KEARNS FROM DOROTHY ELLEN KEARNS WAS IN FACT ABSOLUTE. HE ALSO SAYS THAT UNDER THE LAW THOSE OFFICIALS WERE REQUIRED TO MAKE SUCH INQUIRY AND TO ESTABLISH THE VALIDITY OF THE MARRIAGE OF MR. KEARNS TO YOU BEFORE THE FAMILY ALLOWANCE TO YOU COULD BE AUTHORIZED. HE EXPRESSES THE OPINION THAT IF GEORGE W. KEARNS MISREPRESENTED THE CHARACTER OF THE DIVORCE DECREE, THE GOVERNMENT SHOULD PROCEED AGAINST HIM FOR RECOVERY OF THE MONEY ERRONEOUSLY PAID YOU, AND IF THE MONEY WAS PAID AS THE RESULT OF AN ERRONEOUS DETERMINATION MADE BY A REPRESENTATIVE OF THE GOVERNMENT, IT WOULD NOW BE INEQUITABLE TO EXPECT REIMBURSEMENT TO BE MADE BY YOU, SINCE YOU USED THE MONEY FOR THE SUPPORT OF YOURSELF AND YOUR CHILD BY GEORGE W. KEARNS. HE REFERS TO THE CASE OF UNITED STATES V. BENTLEY, WHICH WAS CITED IN OUR LETTER DATED OCTOBER 15, 1957, AND SAYS THAT THERE ARE A NUMBER OF FACTS IN YOUR CASE WHICH READILY DISTINGUISH IT FROM THAT CASE. HE ALSO SAYS THAT ALTHOUGH THE AMOUNT INVOLVED IS RELATIVELY SMALL, YOU ARE NOT FINANCIALLY ABLE TO MAKE REPAYMENT. IT IS NOTED, HOWEVER, THAT YOU HAVE REFUSED TO GIVE ANY INFORMATION CONCERNING YOUR FINANCIAL AFFAIRS AND MR. CHAMBLISS HAS STATED THAT HE ADVISED YOU NOT TO GIVE SUCH INFORMATION.

IT IS THE GENERAL RULE THAT LEGAL LIABILITY RESTS SOLELY ON THE PAYEES OF VOLUNTARY ALLOTMENTS OF PAY AND THE RECIPIENTS OF FAMILY ALLOWANCE PAYMENTS TO REFUND TO THE UNITED STATES ERRONEOUS PAYMENTS OR OVERPAYMENTS RECEIVED BY THEM. IF, HOWEVER, ERRONEOUS PAYMENTS ARE MADE AS A RESULT OF THE SERVICEMAN'S FRAUD, MISREPRESENTATION OR MISTAKE, HE IS JOINTLY LIABLE WITH THE PAYEE TO REFUND SUCH PAYMENTS. IN OUR DECISION DATED JANUARY 27, 1954, 33 COMP. GEN. 309, WE HELD THAT WHERE AN ALLOTMENT OR FAMILY ALLOWANCE HAS BEEN ERRONEOUSLY PAID OR OVERPAID AND THE MEMBER WAS AT FAULT, THE MEMBER AND THE PAYEE ARE JOINTLY AND SEVERALLY LIABLE TO REPAY THE AMOUNT, AND COLLECTION MAY BE MADE WHOLLY FROM EITHER OR PARTLY FROM EACH. ADMITTEDLY, THE FACTS IN THE CASE OF UNITED STATES V. BENTLEY ARE NOT PRECISELY THE SAME AS THE FACTS IN YOUR CASE. IT WAS HELD IN THAT CASE, HOWEVER, THAT PAYMENTS MADE BY LEGAL MISTAKES OF OFFICERS OF THE UNITED STATES ARE RECOVERABLE, AND THAT THE SUPPOSED HARDSHIP OF REFUNDING WHAT THE DEFENDANT MAY HAVE SPENT CANNOT STAND AGAINST THE INJUSTICE OF KEEPING WHAT NEVER RIGHTFULLY BELONGED TO HIM AT ALL. NO REASON APPEARS WHY THE RULE SO STATED IN THAT CASE IS NOT APPLICABLE IN YOUR CASE. THE CASE OF UNITED STATES V. DORGAN, 157 F.SUPP. 864, IT WAS HELD THAT WHERE MONEY IS ERRONEOUSLY PAID BY AGENTS OF THE UNITED STATES, WHETHER THE ERROR BE ONE OF FACT OR LAW, THE GOVERNMENT MAY ALWAYS RECOVER THE MONEY IMPROPERLY PAID, AND THAT THIS GENERAL RULE OF LAW IS EQUALLY APPLICABLE TO ERRONEOUS PAYMENTS OF ALLOTMENTS BY THE UNITED STATES ARMY. IT WAS HELD IN THAT CASE THAT THE GOVERNMENT COULD RECOVER THE AMOUNT OF THE ERRONEOUS ALLOTMENT PAYMENTS FROM THE BENEFICIARY (THE SOLDIER'S FATHER) NOTWITHSTANDING THE BENEFICIARY'S CONTENTION THAT THE GOVERNMENT'S REMEDY, IF ANY, LAY EXCLUSIVELY AGAINST THE SOLDIER, AND THAT IT WAS IMMATERIAL THAT THE SOLDIER MIGHT BE JOINTLY LIABLE TO REFUND THE SUM SO PAID. SEE ALSO UNITED STATES V. TEEHAN, 140 F.SUPP. 465.

SECTION 111 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 384, PROVIDED THAT THE ACT SHOULD BE ADMINISTERED BY THE SECRETARY OF WAR IN ITS APPLICATION TO ENLISTED MEN OF THE ARMY OF THE UNITED STATES AND THE DEPENDENTS OF SUCH ENLISTED MEN. THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY WERE AUTHORIZED BY THAT SECTION TO PRESCRIBE JOINTLY OR SEVERALLY SUCH REGULATIONS AS THEY MIGHT DEEM NECESSARY TO ENABLE THEM TO CARRY OUT THE PROVISIONS OF THE ACT AND TO DELEGATE TO SUCH OFFICERS OR EMPLOYEES OF THEIR RESPECTIVE DEPARTMENTS AS THEY MIGHT DESIGNATE ANY OF THEIR FUNCTIONS UNDER THE ACT. SECTION 112 OF THE ACT, 56 STAT. 384, PROVIDED, AMONG OTHER THINGS, THAT THE DETERMINATION OF ALL FACTS, INCLUDING THE FACT OF DEPENDENCY, WHICH IT SHOULD BE NECESSARY TO DETERMINE IN THE ADMINISTRATION OF THE ACT SHOULD BE MADE BY THE SECRETARY OF THE DEPARTMENT CONCERNED AND THAT SUCH DETERMINATION SHOULD BE FINAL AND CONCLUSIVE FOR ALL PURPOSES AND SHOULD NOT BE SUBJECT TO REVIEW IN ANY COURT OR BY ANY ACCOUNTING OFFICER OF THE GOVERNMENT. IT FURTHER PROVIDED THAT THE SECRETARY OF THE DEPARTMENT CONCERNED MIGHT, AT ANY TIME, ON THE BASIS OF NEW EVIDENCE OR FOR OTHER GOOD CAUSE RECONSIDER OR MODIFY ANY SUCH DETERMINATION. NOTHING HAS BEEN FOUND IN THE ACT OR IN THE REGULATIONS PROMULGATED PURSUANT TO THE ACT TO SUPPORT THE CONTENTION OF MR. CHAMBLISS THAT THE ARMY AUTHORITIES WERE REQUIRED TO ESTABLISH THE VALIDITY OF YOUR MARRIAGE TO GEORGE W. KEARNS BEFORE AUTHORIZING PAYMENT OF THE FAMILY ALLOWANCE TO YOU.

SINCE THE RECORDS CLEARLY SHOW THAT YOU RECEIVED FAMILY ALLOWANCE PAYMENTS TOTALING $650 TO WHICH YOU WERE NOT ENTITLED, THERE APPEARS TO BE NO REASON FOR ANY FURTHER DELAY IN THE MATTER. IF YOU ARE NOT ABLE TO MAKE COMPLETE PAYMENT OF THE AMOUNT OF THE INDEBTEDNESS AT THIS TIME, YOU MAY SUBMIT AN INITIAL PAYMENT WITH AN ACCEPTABLE PLAN FOR THE LIQUIDATION OF THE BALANCE OF THE INDEBTEDNESS WITHIN A REASONABLE TIME--- NOT MORE THAN TWO YEARS--- BY THE PAYMENT OF REGULAR MONTHLY INSTALLMENTS. THE INDEBTEDNESS COULD BE LIQUIDATED WITHIN A PERIOD OF TWO YEARS BY AN INITIAL PAYMENT OF $50 FOLLOWED BY REGULAR MONTHLY PAYMENTS OF $25 A MONTH. PAYMENTS MADE BY YOU SHOULD BE IN THE FORM OF BANK DRAFTS, CHECKS OR MONEY ORDERS MADE PAYABLE TO "U.S. GENERAL ACCOUNTING OFFICE," AND FORWARDED TO U.S. GENERAL ACCOUNTING OFFICE, POST OFFICE BOX 2610, WASHINGTON 13, D.C. THE REFERENCE "E 1011154" SHOULD BE SHOWN WHEN MAKING PAYMENTS.

IF WE DO NOT RECEIVE FROM YOU, WITHIN 30 DAYS FROM THE DATE OF THIS LETTER, A REMITTANCE COVERING THE FULL AMOUNT OF THE INDEBTEDNESS OR AN INITIAL PAYMENT ACCOMPANIED BY AN ACCEPTABLE PLAN FOR THE LIQUIDATION OF THE BALANCE IN REGULAR MONTHLY INSTALLMENTS, WE WILL HAVE NO ALTERNATIVE BUT TO REFER THE MATTER TO THE DEPARTMENT OF JUSTICE FOR FURTHER COLLECTION PROCEEDINGS. FURTHER COMMUNICATIONS FROM YOU OR YOUR ATTORNEY WILL SERVE NO USEFUL PURPOSE UNLESS ACCOMPANIED BY A REMITTANCE.