B-135818, JUN. 13, 1958

B-135818: Jun 13, 1958

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KELLEY: REFERENCE IS MADE TO YOUR LETTER OF APRIL 2. THE ENCLOSURE SUBMITTED WITH YOUR LETTER IS A COPY OF A LETTER DATED APRIL 2. TO THE EFFECT THAT UPON YOUR RETURN TO MILITARY CONTROL YOU WERE MERELY ATTACHED AND CONFINED AT CHANUTE AIR FORCE BASE. WERE WITH YOUR PARENT ORGANIZATION. IT IS ALSO STATED IN THAT LETTER THAT NUMEROUS ATTEMPTS WERE MADE BY YOU TO REINSTATE YOUR CLASS Q ALLOTMENT AS SHOWN BY AFFIDAVITS FROM THE ADJUTANT AND COMMANDING OFFICER OF THE ORGANIZATION TO WHICH YOU WERE CONFINED. THAT THE FAILURE TO REINSTATE SUCH ALLOTMENT WAS DUE TO THE FACT THAT THE PARENT ORGANIZATION NEVER RELEASED YOUR PERTINENT RECORDS IN ORDER THAT THE ORGANIZATION WHERE YOU WERE CONFINED COULD PROCESS YOUR REQUEST.

B-135818, JUN. 13, 1958

TO MR. FRANCIS R. KELLEY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 2, 1958, WITH ENCLOSURES, CONCERNING THE ACTION TAKEN BY OUR CLAIMS DIVISION WHICH DISALLOWED YOUR CLAIM FOR REINSTATEMENT OF A CLASS Q ALLOTMENT FOR A DEPENDENT WIFE DURING THE PERIOD AUGUST 29, 1952, TO FEBRUARY 28, 1953, INCIDENT TO YOUR SERVICE AS AN ENLISTED MAN IN THE UNITED STATES AIR FORCE.

THE ENCLOSURE SUBMITTED WITH YOUR LETTER IS A COPY OF A LETTER DATED APRIL 2, 1958, FROM YOUR WIFE, ALICE A. KELLEY, ADDRESSED TO THE CHIEF, ADJUSTMENT BRANCH, PAY ALLOTMENT DIVISION, AIR FORCE FINANCE CENTER, DENVER, COLORADO, TO THE EFFECT THAT UPON YOUR RETURN TO MILITARY CONTROL YOU WERE MERELY ATTACHED AND CONFINED AT CHANUTE AIR FORCE BASE, ILLINOIS, BUT THAT YOUR PAY RECORDS, ETC., WERE WITH YOUR PARENT ORGANIZATION, NAMELY, AIRCRAFT CONTROL AND WARNING SQUADRON, ROCKVILLE, INDIANA. IT IS ALSO STATED IN THAT LETTER THAT NUMEROUS ATTEMPTS WERE MADE BY YOU TO REINSTATE YOUR CLASS Q ALLOTMENT AS SHOWN BY AFFIDAVITS FROM THE ADJUTANT AND COMMANDING OFFICER OF THE ORGANIZATION TO WHICH YOU WERE CONFINED, AND THAT THE FAILURE TO REINSTATE SUCH ALLOTMENT WAS DUE TO THE FACT THAT THE PARENT ORGANIZATION NEVER RELEASED YOUR PERTINENT RECORDS IN ORDER THAT THE ORGANIZATION WHERE YOU WERE CONFINED COULD PROCESS YOUR REQUEST.

IT APPEARS FROM THE RECORDS THAT ON NOVEMBER 21, 1950, YOU WERE RECALLED TO ACTIVE DUTY AS A STAFF SERGEANT IN THE UNITED STATES AIR FORCE; THAT EFFECTIVE DECEMBER 1, 1950, YOU AUTHORIZED A CLASS Q ALLOTMENT IN THE AMOUNT OF $150 A MONTH IN FAVOR OF YOUR WIFE; AND THAT SUCH ALLOTMENT WAS DISCONTINUED EFFECTIVE JULY 31, 1952, SINCE AT THAT TIME YOU WERE STILL IN AN ABSENT WITHOUT LEAVE STATUS WHICH COMMENCED ON MAY 19, 1952. THE RECORD SHOWS THAT YOU WERE ABSENT WITHOUT LEAVE DURING THE PERIOD MAY 19, 1952, TO AUGUST 29, 1952. THEREAFTER, BY GENERAL COURT-MARTIAL ORDER NO. 13, HEADQUARTERS, CHANUTE AIR FORCE BASE, ILLINOIS, DATED FEBRUARY 28, 1953, ON THE BASIS OF THE CHARGES THERE STATED, YOU WERE SENTENCED TO DISHONORABLE DISCHARGE, CONFINEMENT AT HARD LABOR FOR THREE YEARS, AND FORFEITURE OF ALL PAY AND ALLOWANCES.

THE AIR FORCE FINANCE CENTER, DENVER, COLORADO, DENIED YOUR CLAIM TO REINSTATE YOUR CLASS Q ALLOTMENT FOR THE PERIOD AUGUST 29, 1952, TO FEBRUARY 28, 1953, FOR THE REASON THAT "NO DOCUMENTARY EVIDENCE WAS PRESENTED TO SUBSTANTIATE MR. KELLEY'S CONTENTION THAT HE APPLIED FOR A CLASS Q ALLOTMENT SUBSEQUENT TO 18 AUGUST 1952.' OUR CLAIMS DIVISION BY SETTLEMENT DATED JULY 27, 1955, DISALLOWED A SIMILAR CLAIM FILED BY YOU SINCE IT WAS ADMINISTRATIVELY DETERMINED THAT YOU WERE NOT ENTITLED TO SUCH ALLOTMENT.

THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO ENLISTED MEN OF THE UNIFORMED SERVICES WITH DEPENDENTS FOR THE PERIOD HERE INVOLVED 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. UNDER THE PROVISIONS OF THAT STATUTE, PAYMENT OF THE INCREASED ALLOWANCE FOR QUARTERS TO AN ENLISTED MEMBER WITH DEPENDENTS IS CONTINGENT UPON SUCH MEMBER HAVING IN EFFECT AN ALLOTMENT OF HIS PAY (CLASS Q ALLOTMENT) FOR THE SUPPORT OF THE DEPENDENT OR DEPENDENTS OR WHOSE ACCOUNT THE ALLOWANCE IS CLAIMED. SECTION 10 OF THAT ACT PROVIDES THAT THE SECRETARIES OF THE DEPARTMENTS CONCERNED ARE AUTHORIZED TO PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THAT ACT AND THAT DETERMINATIONS OF DEPENDENCY SHALL BE MADE BY THE SECRETARY OF THE DEPARTMENT CONCERNED OR SUCH PERSON OR PERSONS AS HE MAY DESIGNATE. SECTION 11 PROVIDES THAT SUCH DETERMINATIONS SHALL BE FINAL AND CONCLUSIVE FOR ALL PURPOSES AND NOT SUBJECT TO REVIEW IN ANY COURT OR BY ANY ACCOUNTING OFFICER OF THE GOVERNMENT. REGULATIONS ISSUED PURSUANT TO THE ABOVE AUTHORITY AND IN EFFECT DURING THE PERIOD HERE INVOLVED ARE CONTAINED IN AIR FORCE REGULATION NO. 173-127. PARAGRAPH 12B OF THOSE REGULATIONS PROVIDES AS FOLLOWS:

"B. ENLISTED MEMBER.---BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS WILL CONTINUE TO ACCRUE TO AN ENLISTED MEMBER DURING THE MONTH IN WHICH THE UNAUTHORIZED ABSENCE COMMENCES AND FOR 2 MONTHS FOLLOWING EACH ABSENCE AND SHALL NOT BE CONTINGENT ON THE RIGHT OF SUCH MEMBER TO RECEIVE PAY. IF AN ENLISTED MEMBER VOLUNTARILY SURRENDERS OR IS APPREHENDED AFTER TERMINATION OF CREDIT FOR BASIC ALLOWANCE FOR QUARTERS, CREDIT WILL NOT BE ENTERED ON THE MILITARY PAY RECORD UNLESS THE MEMBER REESTABLISHES HIS RIGHT TO BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS AS PRESCRIBED IN THESE REGULATIONS.'

UNDER THOSE REGULATIONS AN ENLISTED MEMBER, AFTER TERMINATION OF CREDIT FOR BASIC ALLOWANCE FOR QUARTERS, MUST REESTABLISH HIS RIGHT TO SUCH AN ALLOWANCE.

SINCE YOU DID NOT HAVE IN EFFECT A CLASS Q ALLOTMENT DURING THE PERIOD AUGUST 29, 1952, TO FEBRUARY 28, 1953, AND SINCE IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT YOU HAVE NOT ESTABLISHED YOUR RIGHT TO SUCH ALLOTMENT, WE HAVE NO AUTHORITY UNDER THE PROVISIONS OF SECTION 11 OF THE 1950 ACT TO GO BEYOND THE ADMINISTRATIVE DETERMINATION. ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND MUST BE SUSTAINED.

AS YOU ARE AWARE, THERE IS ALSO BEFORE US FOR COLLECTION THE CLAIM OF THE UNITED STATES AGAINST YOU IN THE AMOUNT OF $480.62, REPRESENTING AN OVERPAYMENT OF PAY AND ALLOWANCES PAID TO YOU AS SHOWN BY YOUR MILITARY PAY RECORD AS OF SEPTEMBER 30, 1951, WHICH INDEBTEDNESS HAS NEVER BEEN LIQUIDATED. IN THE EVENT YOU ARE FINANCIALLY UNABLE TO REPAY THE FULL AMOUNT OF THE INDEBTEDNESS AT THIS TIME, WE WILL GIVE CONSIDERATION TO ANY REASONABLE PLAN PRESENTED BY YOU TO LIQUIDATE THE INDEBTEDNESS BY MONTHLY INSTALLMENTS.