B-135765, MAY 19, 1958

B-135765: May 19, 1958

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TO STAFF SERGEANT ALFONSO UNDERWOOD: REFERENCE IS MADE TO YOUR LETTER DATED MARCH 13. YOU ARE ADVISED THAT LETTERS WRITTEN IN YOUR BEHALF BY HONORABLE GEORGE HUDDLESTON. HAVE ALSO BEEN RECEIVED HERE. IN YOUR LETTERS YOU CONTENT THAT YOU ARE NOT LIABLE TO REFUND THE OVERPAYMENTS INVOLVED AND YOU REQUEST SUSPENSION OF COLLECTIONS FROM YOUR CURRENT AIR FORCE PAY PENDING OUR FINAL DISPOSITION OF THE QUESTIONS RAISED. THE RECORD SHOWS THAT FAMILY ALLOWANCE PAYMENTS WERE MADE TO YOUR WIFE AND MINOR CHILD AT THE RATE OF $80 PER MONTH FOR THE PERIOD AUGUST 1. YOUR MILITARY SERVICE RECORD REVEALS YOU WERE DISCHARGED FROM THE ARMY ON AUGUST 19. A DEPENDENT WAS NOT ENTITLED TO FAMILY ALLOWANCE SUBSEQUENT TO THE END OF THE MONTH IN WHICH A CHANGE IN STATUS OCCURRED IF THAT CHANGE IN STATUS RESULTED IN A LOSS OF ENTITLEMENT UNDER THE LAW.

B-135765, MAY 19, 1958

TO STAFF SERGEANT ALFONSO UNDERWOOD:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 13, 1958, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES WHICH AROSE OUT OF OVERPAYMENTS OF FAMILY ALLOWANCE TO YOUR FORMER WIFE, EMMA LOU UNDERWOOD, DURING THE PERIOD SEPTEMBER 1, 1946, THROUGH NOVEMBER 30, 1957, SUBSEQUENT TO YOUR DISCHARGE FROM THE UNITED STATES ARMY.

YOU ARE ADVISED THAT LETTERS WRITTEN IN YOUR BEHALF BY HONORABLE GEORGE HUDDLESTON, JR., HOUSE OF REPRESENTATIVES, TOGETHER WITH LETTERS HE RECEIVED FROM YOU, HAVE ALSO BEEN RECEIVED HERE.

IN YOUR LETTERS YOU CONTENT THAT YOU ARE NOT LIABLE TO REFUND THE OVERPAYMENTS INVOLVED AND YOU REQUEST SUSPENSION OF COLLECTIONS FROM YOUR CURRENT AIR FORCE PAY PENDING OUR FINAL DISPOSITION OF THE QUESTIONS RAISED.

THE RECORD SHOWS THAT FAMILY ALLOWANCE PAYMENTS WERE MADE TO YOUR WIFE AND MINOR CHILD AT THE RATE OF $80 PER MONTH FOR THE PERIOD AUGUST 1, 1944, THROUGH NOVEMBER 30, 1947. YOUR MILITARY SERVICE RECORD REVEALS YOU WERE DISCHARGED FROM THE ARMY ON AUGUST 19, 1946.

SECTION 107 (B) OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, 37 U.S.C. 202, PROVIDED THAT THE MONTHLY FAMILY ALLOWANCE SHOULD "BE TERMINATED OR REDUCED, AS MAY BE REQUIRED, ON THE LAST DAY OF THE MONTH IN WHICH THE DISBURSING OFFICER PAYING THE ALLOWANCE RECEIVES NOTICE OF A CHANGE IN STATUS OF THE ENLISTED MAN OR A DEPENDENT WHICH TERMINATED OR LIMITED THE RIGHT OF HIS DEPENDENT OR DEPENDENTS TO RECEIVE SUCH ALLOWANCE: PROVIDED, THAT THE ENTITLEMENT TO FAMILY ALLOWANCE SHALL TERMINATE OR BE MODIFIED AT THE END OF THE MONTH IN WHICH SUCH CHANGE IN STATUS * * * OCCURS.'

THUS, A DEPENDENT WAS NOT ENTITLED TO FAMILY ALLOWANCE SUBSEQUENT TO THE END OF THE MONTH IN WHICH A CHANGE IN STATUS OCCURRED IF THAT CHANGE IN STATUS RESULTED IN A LOSS OF ENTITLEMENT UNDER THE LAW.

DUE TO YOUR DISCHARGE FROM THE SERVICE AUGUST 19, 1946, ENTITLEMENT TO FAMILY ALLOWANCE CEASED AT THE END OF THAT MONTH AND THE PAYMENTS MADE FROM SEPTEMBER 1, 1946, THROUGH NOVEMBER 30, 1947, RESULTED IN AN OVERPAYMENT IN THE AMOUNT OF $1,200, WHICH IS DUE THE UNITED STATES. THE LIABILITY FOR THE INDEBTEDNESS WAS ADMINISTRATIVELY DETERMINED TO BE JOINT AND SEVERAL AS TO THE PAYEE AND YOURSELF. THE DEBT WAS REFERRED TO THIS OFFICE AS UNCOLLECTIBLE ON AUGUST 27, 1954, BY THE FINANCE CENTER, UNITED STATES ARMY. THE MATTER OF COLLECTION WAS FURTHER REFERRED BY THIS OFFICE ON APRIL 27, 1956, TO THE COMMANDING GENERAL, AIR FORCE FINANCE CENTER, FOR CONSIDERATION FOR COLLECTION ACTION UNDER PUBLIC LAW 497, APPROVED JULY 15, 1954, 68 STAT. 482, INASMUCH AS YOU WERE THEN SERVING IN THE UNITED STATES AIR FORCE. THE DEPARTMENT OF THE AIR FORCE UNDERTOOK THE COLLECTION OF WHICH YOU NOW COMPLAIN.

YOUR CORRESPONDENCE IN THE PRESENT FILE SHOWS THAT YOU ALLEGE YOU HAD NO KNOWLEDGE OF THE PAYMENTS OF FAMILY ALLOWANCE WHICH WERE MADE SUBSEQUENT TO YOUR DISCHARGE FROM THE SERVICE IN 946; THAT YOU WERE SEPARATED BY COURT ORDER FROM EMMA LOU UNDERWOOD; AND THAT YOU AND YOUR WIFE WERE LIVING APART AT THAT TIME.

ORDINARILY, A SERVICE MEMBER WOULD NOT BE LIABLE FOR ANY PART OF THE FAMILY ALLOWANCE PAID FOR MONTHS SUBSEQUENT TO HIS DISCHARGE (EXCEPT FOR PAYMENTS TO HIS WIFE OR MINOR CHILD UNDER THE RULES APPLIED TO THESE CASES) SINCE HE WOULD NOT BE RESPONSIBLE FOR THE FAILURE OF THE DISBURSING OFFICER TO RECEIVE OR ACT UPON NOTICE OF SUCH DISCHARGE.

WE HAVE HELD THAT WHERE A FAMILY ALLOWANCE HAS BEEN ERRONEOUSLY PAID OR OVERPAID TO THE MEMBER'S WIFE OR UNMARRIED MINOR CHILD AFTER THE MEMBER'S SEPARATION FROM THE UNIFORMED SERVICES AND NOTHING APPEARS TO REBUT THE PRESUMPTION THAT THE MEMBER RETURNED HOME AFTER SEPARATION AND WAS LIVING WITH THE WIFE OR CHILD AND KNEW OF THE OVERPAYMENTS AND THE OVERPAYMENTS CONTINUED FOR MORE THAN THREE MONTHS AFTER SEPARATION AND THE TOTAL AMOUNT OVERPAID AFTER SEPARATION WAS AT LEAST $200, A CHARGE OF JOINT LIABILITY WILL BE RAISED AGAINST THE MEMBER AND THE PAYEE. SEE 33 COMP. GEN. 309, 314.

YOUR UNSUPPORTED SELF-SERVING ALLEGATIONS THAT YOU WERE LEGALLY SEPARATED FROM YOUR WIFE AND HAD NO KNOWLEDGE OF THE FACT OF OVERPAYMENT MAY NOT BE CONSIDERED, ON THE PRESENT RECORD, AS REBUTTING THE PRESUMPTION THAT YOU RETURNED HOME AFTER DISCHARGE AND WERE LIVING WITH YOUR WIFE AND HAD KNOWLEDGE, THEREFORE, OF THE OVERPAYMENTS, PARTICULARLY SINCE THIS PRESUMPTION IS SUPPORTED BY INFORMATION CONTRADICTING YOUR ALLEGATIONS IN THIS RESPECT WHICH WAS CONTAINED IN LETTERS RECEIVED HERE FROM EMMA LOU UNDERWOOD. IN ONE OF SUCH LETTERS SHE STATED:

"* * * I ACKNOWLEDGE RECEIPT OF THE MONIES, HOWEVER, MY FORMER HUSBAND TOLD ME AT THAT TIME HE WAS STILL IN THE RESERVES AND THAT WE WERE STILL ENTITLED TO RECEIVE THE CHECKS. AS WE WERE STILL MARRIED AT THE TIME WE BOTH USED THE MONEY.

"SINCE MY FORMER HUSBAND TOLD ME WE WERE ENTITLED TO THE MONEY AND HE SPENT AT LEAST HALF THE MONEY, I FEEL THAT HE SHOULD BE THE ONE TO REFUND THE MONEY AND NOT MY PRESENT HUSBAND. * * *"

IT IS REQUESTED THAT YOU SUBMIT HERE FOR OUR USE IN FURTHER CONSIDERATION OF THE MATTER A CERTIFIED TRUE COPY OF THE COURT SEPARATION ORDER WHICH YOU STATE WAS IN EFFECT AT THE TIME OF YOUR DISCHARGE TOGETHER WITH ANY AVAILABLE DOCUMENTARY EVIDENCE WHICH WOULD TEND TO SUPPORT YOUR VERSION OF THE PERTINENT FACTS SUCH EVIDENCE SHOULD CLEARLY SHOW WHERE YOU RESIDED AT ALL TIMES DURING THE PERIOD AUGUST 19, 1946, TO NOVEMBER 30, 1947, AND WHERE YOUR WIFE AND CHILD RESIDED DURING THAT PERIOD.

THE AIR FORCE FINANCE CENTER, DENVER, HAS BEEN REQUESTED TO SUSPEND COLLECTIONS FROM YOUR CURRENT AIR FORCE PAY (BEING MADE TO LIQUIDATE THE FAMILY ALLOWANCE DEBT) UNTIL RECEIPT OF FURTHER ADVICE FROM THIS OFFICE.