B-135927, MAY 26, 1958

B-135927: May 26, 1958

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO LETTER OF APRIL 21. WHO SUBSEQUENTLY WAS DETERMINED NOT TO BE DEPENDENT. IT IS STATED THAT THE REQUEST WAS APPROVED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE. WAS FOUND NOT TO HAVE A DEPENDENT. HE EXPRESSES THE VIEW THAT ENTITLEMENT TO CREDIT OF BASIC ALLOWANCE FOR QUARTERS OF OFFICERS IS BASED UPON THE PROVISION OF THE CAREER COMPENSATION ACT OF 1949. THE SECRETARY OF THE DEPARTMENT CONCERNED OR HIS DESIGNEE IS AUTHORIZED TO DELEGATE OR REDELEGATE SUCH AUTHORITY: * * * "/2211) ANY DETERMINATIONS OR WAIVERS MADE UNDER THIS ACT (SECTIONS 2201- 2216 OF THIS APPENDIX) SHALL BE FINAL AND CONCLUSIVE FOR ALL PURPOSES AND SHALL NOT BE SUBJECT TO REVIEW IN ANY COURT OR BY ANY ACCOUNTING OFFICER OF THE GOVERNMENT.

B-135927, MAY 26, 1958

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF APRIL 21, 1958, FROM THE ASSISTANT SECRETARY OF THE NAVY (FINANCIAL MANAGEMENT) REQUESTING A DECISION AS TO WHETHER THE RECOVERY OF CREDIT OF BASIC ALLOWANCE FOR QUARTERS TO AN OFFICER ON BEHALF OF A DEPENDENT PARENT, WHO SUBSEQUENTLY WAS DETERMINED NOT TO BE DEPENDENT, MAY BE WAIVED UNDER SECTION 11 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 50 U.S.C. APP. 2211. IT IS STATED THAT THE REQUEST WAS APPROVED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, AND ASSIGNED SUBMISSION NO. 337.

THE LETTER OF APRIL 21, 1958, REFERS TO THE CASE OF AN OFFICER OF THE DENTAL CORPS WHO, SUBSEQUENT TO RECEIVING CREDIT OF BASIC ALLOWANCE FOR QUARTERS IN THE AMOUNT OF $1,559.92 ON BEHALF OF A DEPENDENT PARENT, WAS FOUND NOT TO HAVE A DEPENDENT. HE HAS REQUESTED WAIVER OF THE AMOUNT OF THE INDEBTEDNESS REMAINING DUE, $580.28. THE ASSISTANT SECRETARY STATES THAT IT HAS LONG BEEN THE VIEW THAT SECTION 11 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, DOES NOT GRANT TO THE SECRETARIES OF THE SEVERAL SERVICES AUTHORITY TO WAIVE RECOVERY OF ERRONEOUS PAYMENTS IN THE CASE OF OFFICERS. HE ALSO STATES, HOWEVER, THAT IT HAS BEEN URGED THAT THE DEPENDENTS ASSISTANCE ACT OF 1950, WHICH AMENDS THE CAREER COMPENSATION ACT OF 1949 BY GRANTING TO THE SEVERAL SECRETARIES THE AUTHORITY TO DETERMINE DEPENDENCY OF PARENTS OF OFFICERS AND ENLISTED MAN, ALSO EMBRACES THE AUTHORITY TO WAIVE RECOVERY OF ANY MONEY ERRONEOUSLY PAID WHEN SUCH RECOVERY WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE. THE ASSISTANT SECRETARY ALSO REFERS TO OUR DECISION OF JANUARY 11, 1951, B- 90615, 30 COMP. GEN. 282, AND TO A SENATE REPORT ON THE DEPENDENTS ASSISTANCE ACT, AND HE EXPRESSES THE VIEW THAT ENTITLEMENT TO CREDIT OF BASIC ALLOWANCE FOR QUARTERS OF OFFICERS IS BASED UPON THE PROVISION OF THE CAREER COMPENSATION ACT OF 1949, RATHER THAN THE 1950 ACT.

SECTION 1 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 974, TEMPORARILY CHANGED THE PROVISIONS OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, WITH RESPECT TO DETERMINATIONS OF THE DEPENDENCY OF PARENTS OF MEMBERS OF THE UNIFORMED SERVICES WHICH INCLUDE OFFICERS AS WELL AS OTHER MEMBERS. SECTIONS 10 AND 11 OF THE 1950 ACT (50 U.S.C. APP. 2210-2211) PROVIDES IN PERTINENT PART AS FOLLOWS:

"/2210) * * * ALL WAIVERS AND DETERMINATIONS, INCLUDING DETERMINATIONS OF DEPENDENCY AND RELATIONSHIP SHALL BE MADE BY THE SECRETARY OF THE DEPARTMENT CONCERNED OR SUCH OTHER PERSON OR PERSONS AS HE MAY DESIGNATE, AND THE SECRETARY OF THE DEPARTMENT CONCERNED OR HIS DESIGNEE IS AUTHORIZED TO DELEGATE OR REDELEGATE SUCH AUTHORITY: * * *

"/2211) ANY DETERMINATIONS OR WAIVERS MADE UNDER THIS ACT (SECTIONS 2201- 2216 OF THIS APPENDIX) SHALL BE FINAL AND CONCLUSIVE FOR ALL PURPOSES AND SHALL NOT BE SUBJECT TO REVIEW IN ANY COURT OR BY ANY ACCOUNTING OFFICER OF THE GOVERNMENT, EXCEPT FOR CASES INVOLVING FRAUD OR GROSS NEGLIGENCE. THE SECRETARY OF THE DEPARTMENT CONCERNED MAY AT ANY TIME ON THE BASIS OF NEW EVIDENCE OR FOR OTHER GOOD CAUSE RECONSIDER OR MODIFY ANY SUCH DETERMINATION, AND MAY WAIVE THE RECOVERY OF ANY MONEY ERRONEOUSLY PAID UNDER THIS ACT (SAID SECTIONS) WHENEVER HE FINDS THAT SUCH RECOVERY WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE.'

THE PROVISIONS OF THE DEPENDENTS ASSISTANCE ACT OF 1950 WERE EXTENDED TO JULY 1, 1959, BY SECTION 103 OF THE ACT OF JUNE 30, 1955, 69 STAT. 223.

IN OUR DECISION OF JANUARY 11, 1951, 30 COMP. GEN. 282, WE RECOGNIZED THAT UNDER THE 1950 ACT THE SECRETARIES WERE GIVEN AUTHORITY TO MAKE DETERMINATIONS OF RELATIONSHIP OR DEPENDENCY IN THE CASE OF PARENTS. HOWEVER, NO CHANGE WAS MADE IN THAT ACT AS TO THE PAYMENTS TO BE MADE TO OFFICERS BASED ON A FINDING OF DEPENDENCY. PRIOR TO THE DEPENDENTS ASSISTANCE ACT OF 1950, AN OFFICER'S RIGHT TO BASIC ALLOWANCE FOR QUARTERS WAS GOVERNED BY THE PROVISIONS OF SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, AND SUCH OFFICERS WERE PAID BASIC ALLOWANCE FOR QUARTERS IN ACCORDANCE WITH THE RATES THERE PRESCRIBED. THE 1950 ACT DID NOT AMEND OR CHANGE THE BASIC PROVISIONS OF SECTION 302 OF THE 1949 ACT, RATHER, THAT SECTION (302) WAS AMENDED BY SECTION 4 OF THE 1950 ACT BY MERELY ADDING NEW SUBSECTIONS APPLICABLE TO ENLISTED MEMBERS ONLY. OFFICERS RECEIVED NO MONETARY BENEFITS UNDER THE 1950 ACT. THE TITLE OF THE DEPENDENTS ASSISTANCE ACT OF 1950,"TO PROVIDE ALLOWANCES FOR DEPENDENTS OF ENLISTED MEMBERS OF THE UNIFORMED SERVICES, TO SUSPEND CERTAIN PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, AND FOR OTHER PURPOSES," AND ITS LEGISLATIVE HISTORY CLEARLY INDICATES THAT THE PROVISION OF SECTION 11 OF THAT ACT AUTHORIZING THE SECRETARY CONCERNED TO "WAIVE THE RECOVERY OF ANY MONEY ERRONEOUSLY PAID UNDER THIS ACT WHENEVER HE FINDS THAT SUCH RECOVERY WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE" MEANS ONLY THOSE AMOUNTS ERRONEOUSLY PAID TO ENLISTED MEMBERS UNDER THAT ACT. IN THAT CONNECTION, IN HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H.R. 9262 AND 9469, DATED AUGUST 8, 1950, WHICH WAS THE FORERUNNER OF S. 4071 WHICH BECAME THE DEPENDENTS ASSISTANCE ACT OF 1950, COMMANDER P. M. LINDSAY, UNITED STATES NAVY, MADE A STATEMENT THAT "THE OFFICERS ARE NOT A PART OF THIS BILL.' ALSO, SEE SENATE REPORT NO. 2372, DATED AUGUST 21, 1950, ACCOMPANYING S. 4071. WHEN THE BILL WAS CONSIDERED ON THE FLOOR OF THE SENATE, SENATOR TYDINGS EMPHASIZED THAT "THIS (BILL) APPLIES TO ENLISTED MEN ONLY.' SEE PAGE 13187, CONGRESSIONAL RECORD DATED AUGUST 22, 1950.

WE FIND NO AUTHORITY UNDER THE PROVISIONS OF SECTION 11 OF THE DEPENDENTS ASSISTANCE ACT OF 1950 WHICH WOULD AUTHORIZE THE SECRETARY OF THE NAVY TO WAIVE RECOVERY OF MONEY ERRONEOUSLY CREDITED TO OFFICERS FOR BASIC ALLOWANCE FOR QUARTERS. YOUR QUESTION IS ANSWERED ACCORDINGLY.