B-135756, MAY 19, 1958

B-135756: May 19, 1958

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KISICH: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 28. THE RECORD SHOWS THAT YOU WERE APPOINTED AN AVIATION CADET ON SEPTEMBER 21. THAT YOU WERE DISCHARGED ON OCTOBER 7. YOU WERE MARRIED ON DECEMBER 21. YOU WERE PAID $13.69 BY THE DEPARTMENT OF THE AIR FORCE REPRESENTING SUCH ALLOWANCE FOR THE PERIOD OCTOBER 1 THROUGH 7. WAS DISALLOWED BY SETTLEMENT DATED SEPTEMBER 11. FOR THE REASON THAT NO CLASS Q ALLOTMENT DEDUCTIONS WERE MADE FROM YOUR PAY TO SUPPORT THE CREDIT OF QUARTERS ALLOWANCE FOR THE RETROACTIVE PERIOD. SAYING THAT A CASH CONTRIBUTION EQUAL TO THE RETROACTIVE ALLOTMENT WAS NOT MADE BECAUSE OF MISINFORMATION GIVEN TO YOU AND TO YOUR PARENTS BY THE MILITARY AUTHORITIES AT WEBB AIR FORCE BASE.

B-135756, MAY 19, 1958

TO MR. TIMOTHY P. KISICH:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 28, 1958, CONCERNING YOUR CLAIM FOR BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT WIFE, INCIDENT TO YOUR SERVICE AS AN ENLISTED MAN, UNITED STATES AIR FORCE. THERE ALSO HAS BEEN RECEIVED A LETTER DATED APRIL 28, 1958, FROM MR. JOHN J. HOPKINS OF THE FIRM OF TOBIN AND TOBIN, ATTORNEYS HIBERNIA BANK BUILDING, SAN FRANCISCO 2, CALIFORNIA, MAKING INQUIRY AS TO THE STATUS OF YOUR CLAIM.

THE RECORD SHOWS THAT YOU WERE APPOINTED AN AVIATION CADET ON SEPTEMBER 21, 1953; THAT YOU REVERTED TO BASIC AIRMAN ON OCTOBER 3, 1955, AND THAT YOU WERE DISCHARGED ON OCTOBER 7, 1955. YOU WERE MARRIED ON DECEMBER 21, 1953, WHILE AN AVIATION CADET, IN VIOLATION OF AIR FORCE REGULATIONS, AND ON OCTOBER 5, 1955, YOU AUTHORIZED A MONTHLY CLASS Q ALLOTMENT IN THE AMOUNT OF $91.30 IN FAVOR OF YOUR WIFE RETROACTIVE TO JANUARY 1, 1954, WHICH AUTHORIZATION, TOGETHER WITH A CLAIM FOR BASIC ALLOWANCE FOR QUARTERS FOR YOUR WIFE FOR SUCH PERIOD, YOU PRESENTED TO THE FINANCE OFFICE, WEBB AIR FORCE BASE, TEXAS, ON OCTOBER 7, 1955, THE DATE OF YOUR DISCHARGE. YOU WERE PAID $13.69 BY THE DEPARTMENT OF THE AIR FORCE REPRESENTING SUCH ALLOWANCE FOR THE PERIOD OCTOBER 1 THROUGH 7, 1955. YOUR CLAIM FOR THE PERIOD JANUARY 1, 1954, THROUGH SEPTEMBER 30, 1955, WAS DISALLOWED BY SETTLEMENT DATED SEPTEMBER 11, 1957, OF OUR CLAIMS DIVISION, FOR THE REASON THAT NO CLASS Q ALLOTMENT DEDUCTIONS WERE MADE FROM YOUR PAY TO SUPPORT THE CREDIT OF QUARTERS ALLOWANCE FOR THE RETROACTIVE PERIOD; AND YOU DID NOT MAKE A CASE CONTRIBUTION FOR SUCH RETROACTIVE ALLOTMENT. IN THE LETTER OF FEBRUARY 28, 1958, YOU URGE THAT YOUR CLAIM BE ALLOWED, SAYING THAT A CASH CONTRIBUTION EQUAL TO THE RETROACTIVE ALLOTMENT WAS NOT MADE BECAUSE OF MISINFORMATION GIVEN TO YOU AND TO YOUR PARENTS BY THE MILITARY AUTHORITIES AT WEBB AIR FORCE BASE.

THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO ENLISTED MEMBERS OF THE UNIFORMED SERVICES WITH DEPENDENTS IS GOVERNED BY SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, AS AMENDED BY THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 794. THAT SECTION, AS AMENDED, PROVIDES, AMONG OTHER THINGS, THAT PAYMENT OF SUCH ALLOWANCE SHALL BE MADE ONLY FOR SUCH PERIOD AS THE ENLISTED MEMBER HAS IN EFFECT AN ALLOTMENT OF PAY (CLASS Q ALLOTMENT) NOT LESS THAN THE SUM OF THE BASIC ALLOWANCE FOR QUARTERS TO WHICH HE IS ENTITLED, PLUS AN ADDITIONAL AMOUNT SPECIFICALLY PROVIDED BY THE STATUTE (AND VARYING ACCORDING TO HIS GRADE), AND THAT ANY DELAY IN INITIATING THE REQUIRED ALLOTMENT SHALL NOT INVALIDATE ENTITLEMENT TO SUCH ALLOWANCE PROVIDED THE ALLOTMENT IS MADE RETROACTIVE FOR SUCH PERIOD AS THE MEMBER MAY ELECT TO CLAIM THE ALLOWANCE.

SINCE CLASS Q ALLOTMENT DEDUCTIONS WERE NOT MADE FROM YOUR PAY FOR THE PERIOD FROM JANUARY 1, 1954, THROUGH SEPTEMBER 30, 1955, AND YOU DID NOT DEPOSIT A SUM EQUAL TO THE AMOUNT OF SUCH ALLOTMENT FOR THAT PERIOD, THE ALLOWANCE OF YOUR CLAIM WOULD BE CONTRARY TO THE EXPRESS TERMS OF THE STATUTE AND, HENCE, PAYMENT MAY NOT BE AUTHORIZED. INFORMATION FURNISHED BY THE DEPARTMENT OF THE AIR FORCE DOES NOT SUPPORT YOUR ALLEGATION THAT YOU WERE MISINFORMED REGARDING THE REQUIREMENT OF A CASH CONTRIBUTION IN CONNECTION WITH YOUR REQUEST FOR A RETROACTIVE ALLOTMENT, BUT EVEN IF IT WERE ESTABLISHED THAT THE CASH CONTRIBUTION WAS NOT MADE DUE TO A MISTAKE OF MILITARY AUTHORITIES THAT WOULD AFFORD NO BASIS FOR ALLOWING YOUR CLAIM, IT BEING WELL ESTABLISHED THAT, IN THE ABSENCE OF SPECIFIC STATUTORY PROVISIONS, THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT ACTIONS OF ITS OFFICERS, AGENTS, OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. 19 COMP. GEN. 503; 14 ID. 221, 473; 855; 54 AM.JUR. 608; BIGBY V. UNITED STATES, 188 U.S. 400; GERMAN BANK V. UNITED STATES, 148 U.S. 573; HART V. UNITED STATES, 95 U.S. 316; COOKE V. UNITED STATES, 91 U.S. 389, 398.

ACCORDINGLY, THE SETTLEMENT OF SEPTEMBER 11, 1957, DISALLOWING YOUR CLAIM, WAS CORRECT AND IS SUSTAINED.