B-135680, MAY 5, 1958

B-135680: May 5, 1958

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LOCKE: REFERENCE IS MADE TO YOUR LETTERS DATED DECEMBER 2 AND 14. THE RECORD SHOWS THAT FAMILY ALLOWANCE PAYMENTS AT THE RATE OF $50 A MONTH WERE MADE TO HELEN LEE LOCKE FROM FEBRUARY 1946 THROUGH MARCH 1947. WHEN THEY WERE DISCONTINUED BY THE DEPARTMENT OF THE NAVY UPON THE RECEIPT ON MARCH 14. SINCE YOUR PAY ACCOUNT WAS CHECKED AT THE RATE OF $22 A MONTH AS YOUR CONTRIBUTION TO FAMILY ALLOWANCE FOR THE MONTHS OF FEBRUARY 1946 THROUGH OCTOBER 1947. THERE WAS DEDUCTED FROM THE AMOUNT ALLOWED THE SUM OF $200. IT IS INDICATED IN THE LETTERS OF DECEMBER 2 AND 14. THAT YOU ARE OF THE OPINION THAT YOU SHOULD NOT BE CHARGED WITH THE OVERPAYMENT OF THE FAMILY ALLOWANCE. SINCE YOU AND YOUR WIFE WERE DIVORCED IN NOVEMBER 1946.

B-135680, MAY 5, 1958

TO MR. LAWRENCE F. LOCKE:

REFERENCE IS MADE TO YOUR LETTERS DATED DECEMBER 2 AND 14, 1957, FORWARDED HERE BY THE UNITED STATES NAVY FINANCE CENTER, CLEVELAND, OHIO, CONCERNING YOUR CLAIM FOR REFUND OF $200 REPRESENTING FAMILY ALLOWANCE PAYMENTS MADE TO YOUR FORMER WIFE, HELEN LEE LOCKE, FOR THE MONTHS OF DECEMBER 1946 THROUGH MARCH 1947 AT THE RATE OF $50 A MONTH, INCIDENT TO YOUR ENLISTED SERVICE IN THE NAVY.

THE RECORD SHOWS THAT FAMILY ALLOWANCE PAYMENTS AT THE RATE OF $50 A MONTH WERE MADE TO HELEN LEE LOCKE FROM FEBRUARY 1946 THROUGH MARCH 1947, WHEN THEY WERE DISCONTINUED BY THE DEPARTMENT OF THE NAVY UPON THE RECEIPT ON MARCH 14, 1947, BY THE DISBURSING OFFICER MAKING SUCH PAYMENTS OF A COPY OF A DIVORCE DECREE GRANTING YOU AND YOUR WIFE A LIMITED DIVORCE (FROM BED AND BOARD) IN NOVEMBER 1946. THE DECREE DID NOT CONTAIN ANY PROVISION FOR THE PAYMENT OF ALIMONY TO HER. SINCE YOUR PAY ACCOUNT WAS CHECKED AT THE RATE OF $22 A MONTH AS YOUR CONTRIBUTION TO FAMILY ALLOWANCE FOR THE MONTHS OF FEBRUARY 1946 THROUGH OCTOBER 1947, OUR CLAIMS DIVISION BY SETTLEMENT DATED NOVEMBER 14, 1949, ALLOWED YOU THE SUM OF $242 REPRESENTING SUCH CHECK AGE FOR THE MONTHS OF DECEMBER 1946 THROUGH OCTOBER 1947; THERE WAS DEDUCTED FROM THE AMOUNT ALLOWED THE SUM OF $200, REPRESENTING THE OVERPAYMENT TO HER OF FAMILY ALLOWANCE FOR THE MONTHS OF DECEMBER 1946 THROUGH MARCH 1947, AT THE RATE OF $50 A MONTH. IT IS INDICATED IN THE LETTERS OF DECEMBER 2 AND 14, 1957, THAT YOU ARE OF THE OPINION THAT YOU SHOULD NOT BE CHARGED WITH THE OVERPAYMENT OF THE FAMILY ALLOWANCE, SINCE YOU AND YOUR WIFE WERE DIVORCED IN NOVEMBER 1946.

SECTION 102 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381, AS AMENDED, 37 U.S.C. (1946 EDITION) 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 SHOULD TERMINATE 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 SHOULD BE TERMINATED ON THE LAST DAY OF THE MONTH IN WHICH THE DISBURSING OFFICER PAYING THE ALLOWANCE RECEIVED NOTICE OF A CHANGE IN STATUS OF THE ENLISTED MAN OR HIS DEPENDENT WHICH TERMINATED THE RIGHT OF THE DEPENDENT TO RECEIVE SUCH ALLOWANCE. SECTION 106 (C) (1) OF THE ACT, AS AMENDED, 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.

SINCE THE DIVORCE DECREE IN NOVEMBER 1946 CONTAINED NO PROVISION FOR ALIMONY, THE ENTITLEMENT OF HELEN LEE LOCKE TO FAMILY ALLOWANCE CEASED ON NOVEMBER 30, 1946, AND HENCE THE PAYMENT TO HER OF FAMILY ALLOWANCE FOR THE MONTHS OF DECEMBER 1946 THROUGH MARCH 1947 WAS ERRONEOUS. LIKEWISE, SINCE THE DISBURSING OFFICER PAYING THE FAMILY ALLOWANCE DID NOT RECEIVE NOTICE OF THE NOVEMBER 1946 DIVORCE UNTIL MARCH 14, 1947, IT APPEARS THAT THE ERRONEOUS PAYMENTS WERE CAUSED BY YOUR FAILURE TO PROMPTLY NOTIFY THE NAVY OF YOUR DIVORCE, AND THEREFORE YOU AND YOUR FORMER WIFE ARE JOINTLY AND SEVERALLY LIABLE FOR THE OVERPAYMENT OF THE FAMILY ALLOWANCE, OF $200. SEE 33 COMP. GEN. 309.

ACCORDINGLY, THE ACTION TAKEN IN THE SETTLEMENT OF NOVEMBER 14, 1949, IN WITHHOLDING $200 FROM THE AMOUNT OTHERWISE DUE YOU WAS CORRECT AND IS SUSTAINED.