B-138315, AUG. 24, 1959

B-138315, AUG. 24, 1959

TO KRAUSE AND KLEIN, ATTORNEYS AT LAW:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 8, 1959, RELATIVE TO THE MATTER OF THE INDEBTEDNESS OF LEROY AND FRANCES ROBSON TO THE UNITED STATES IN THE SUM OF $864.

IT APPEARS THAT ROBSON APPLIED FOR FAMILY ALLOWANCE BENEFITS FOR FRANCES ROBSON SHORTLY AFTER THEIR MARRIAGE IN JULY 1942; THAT PAYMENT OF THE BENEFITS AT $50 A MONTH TO FRANCES ROBSON WAS AUTHORIZED EFFECTIVE AUGUST 1, 1942, AND CONTINUED UNTIL RECEIPT OF AN APPLICATION FOR SUCH BENEFITS FROM ELEANOR ROBSON, IN BEHALF OF HERSELF AND TWO INFANT CHILDREN, AS DEPENDENTS OF LEROY ROBSON. UPON RECEIPT OF THIS APPLICATION FAMILY ALLOWANCE PAYMENTS ON BEHALF OF MRS. FRANCES ROBSON WERE DISCONTINUED EFFECTIVE JUNE 30, 1944, PENDING INVESTIGATION TO DETERMINE THE LAWFUL WIFE OF LEROY ROBSON. UPON INVESTIGATION, THE DEPARTMENT OF THE ARMY FOUND THAT IN 1936 OR 1938, LEROY AND ELEANOR ROBSON HAD ENTERED INTO A COMMON LAW MARRIAGE RELATIONSHIP; THAT ON OCTOBER 24, 1940, LEROY ROBSON COMMENCED DIVORCE PROCEEDINGS AGAINST ELEANOR P. ROBSON IN THE CIRCUIT COURT FOR THE COUNTY OF WASHTENAW, STATE OF MICHIGAN, ALLEGING THAT SHE WAS HIS COMMON LAW WIFE; THAT ELEANOR P. ROBSON, THE DEFENDANT, FILED AN ANSWER AND A CROSS BILL OF COMPLAINT; THAT UPON A STIPULATION FILED BY THE ATTORNEYS, THE COURT ORDERED THE PLAINTIFF, LEROY ROBSON, TO PAY THE DEFENDANT $7 A WEEK FOR SUPPORT OF THE CHILD; THAT A RECONCILIATION WAS EFFECTED AND THE ACTION SUBSEQUENTLY DISMISSED.

IN VIEW OF THESE CIRCUMSTANCES, THE DEPARTMENT OF THE ARMY (OFFICE OF DEPENDENCY BENEFITS AND ITS SUCCESSOR THE ARMY FINANCE CENTER) DETERMINED THAT FRANCES ROBSON WAS NOT THE LAWFUL WIFE OF LEROY ROBSON; THAT SHE WAS NEVER ELIGIBLE FOR THE BENEFITS AND THAT ELEANOR ROBSON AND CHILDREN WERE THE LAWFUL WIFE AND DEPENDENTS OF THE SERVICE MAN.

IT FURTHER APPEARS THAT ELEANOR ROBSON OBTAINED A DECREE OF DIVORCE FROM LEROY ROBSON IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE, STATE OF MICHIGAN, ON MARCH 16, 1948; THAT LEROY ROBSON ANSWERED THE COMPLAINT BUT WITHDREW THE ANSWER, AND WAS ORDERED TO PAY $15 A WEEK FOR THE SUPPORT OF TWO MINOR CHILDREN.

THE DEPARTMENT OF THE ARMY, ON JUNE 12, 1948, UNDER THE AUTHORITY GRANTED BY SECTION 112 OF THE SERVICEMEN'S DEPENDENT ALLOWANCE ACT OF 1942, 56 STAT. 384, DETERMINED THAT FRANCES ROBSON WAS NOT THE LAWFUL WIFE OF THE SERVICEMAN BY REASON OF HIS PRIOR UNDISSOLVED MARRIAGE AND THAT ALL PAYMENTS OF FAMILY ALLOWANCE TO HER WERE ERRONEOUS. AFTER UNSUCCESSFUL EFFORTS TO COLLECT THE ERRONEOUS PAYMENTS, THE INDEBTEDNESS WAS REPORTED TO OUR OFFICE AS UNCOLLECTIBLE BY THE DEPARTMENT OF THE ARMY IN ACCORDANCE WITH ESTABLISHED PROCEDURE, IN THE AMOUNT OF $864.

ON FEBRUARY 2, 1955, AFTER MANY ATTEMPTS HERE TO OBTAIN PAYMENT OF THE INDEBTEDNESS, LEROY L. ROBSON AND FRANCES ROBSON WERE CERTIFIED TO BE JOINTLY AND SEVERALLY LIABLE TO THE UNITED STATES IN THE AMOUNT OF $864 AND THE MATTER WAS REFERRED TO THE ATTORNEY GENERAL FOR APPROPRIATE ACTION. WE HAVE BEEN ADVISED THAT THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, EASTERN DIVISION, DECIDED THE ACTION AGAINST LEROY ROBSON AND FRANCES ROBSON IN FAVOR OF THE GOVERNMENT AND ENTERED JUDGMENT FOR $864, WITH INTEREST AND COSTS. IN ITS OPINION THE COURT STATED THAT IT FELT IT HAD NO RIGHT TO QUESTION THE DETERMINATION BY THE DEPARTMENT OF THE ARMY (OF AN INVALID SECOND MARRIAGE) IN VIEW OF THE EXPRESS PROVISIONS OF SECTION 112 OF THE 1942 ACT, SUPRA. THE COURT ALSO STATED THAT:

"IF IT WOULD BE OF VALUE TO A FINAL DETERMINATION OF THIS CASE, IT MIGHT BE PROPER TO SAY THAT IF THE MATTER WERE SUBJECT TO THE REVIEW OF THIS COURT UNDER THE FACTS PRESENTED AND A FULL CONSIDERATION THEREOF, IT IS THE VIEW OF THE COURT THAT THE DETERMINATION BY THE SECRETARY OF WAR WAS CORRECT AND, SHOULD THE COURT BE WRONG ON THE MATTER OF JURISDICTION, THEN I WOULD FIND THAT THE GOVERNMENT IS ENTITLED TO RECOVER FOR THE REASON THAT THE MONEY PAID WAS TO THE WRONG PERSON AND THAT THE DEFENDANT FRANCES J. ROBSON WAS NOT AT ANY TIME ENTITLED THERETO.'

YOU THEN REQUESTED THE DEPARTMENT OF THE ARMY TO REOPEN THE MATTER CONCERNING THE DEPENDENCY STATUS OF FRANCES J. ROBSON, AND THAT DEPARTMENT REQUESTED THE RETURN OF THE FILES WHICH HAD BEEN FORWARDED HERE FOR APPROPRIATE ACTION WHEN THE INDEBTEDNESS WAS CONSIDERED UNCOLLECTIBLE BY THAT OFFICE. BY LETTER DATED MARCH 9, 1959, OUR CLAIMS DIVISION DECLINED TO RETURN THE FILES AS NO USEFUL PURPOSE WOULD BE SERVED, IN VIEW OF THE REPEAL OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, SUPRA.

IN YOUR PRESENT LETTER YOU REFER TO THE LETTER OF MARCH 9, 1959, AND STATE THAT NOTWITHSTANDING THE REPEAL OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, INASMUCH AS THE PROBLEM AROSE UNDER THE 1942 ACT, AND THE ACT PROVIDED FOR REDETERMINATIONS BY THE SECRETARY OF WAR (ARMY), IT STILL GOVERNS. YOU FURTHER STATE THAT THE RECORD WAS OBTAINED EX PARTE WITHOUT OPPORTUNITY BEING AFFORDED MR. ROBSON TO PRESENT EVIDENCE IN HIS OWN BEHALF. YOU ALSO STATE THAT THE DECISION OF THE UNITED STATES DISTRICT COURT INFERRED THAT ROBSON'S SOLE REMEDY WAS TO REQUEST A REDETERMINATION OF THE STATUS OF FRANCES ROBSON BY THE ADMINISTRATIVE OFFICE.

SECTION 112 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, SUPRA, PROVIDED THAT THE SECRETARY'S DETERMINATIONS OF FACT WERE FINAL AND CONCLUSIVE FOR ALL PURPOSES, AND THE COURT IN FINDING AGAINST LEROY ROBSON AND FRANCES ROBSON SO HELD. UNDER THIS SECTION THE FINDINGS COULD BE RECONSIDERED OR MODIFIED ON THE BASIS OF NEW EVIDENCE OR FOR GOOD CAUSE, AND IN ADDITION, THE SECTION PROVIDED FOR THE WAIVER OF THE RECOVERY OF ANY ERRONEOUS PAYMENTS WHERE SUCH RECOVERY WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE. HOWEVER, THIS ACT WAS REPEALED BY SECTION 531 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 841. THE EFFECT OF THE REPEAL OF THE 1942 ACT HAS HERETOFORE BEEN CONSIDERED BY OUR OFFICE IN DECISIONS DATED NOVEMBER 30, 1949, 29 COMP. GEN. 241, AND AUGUST 2, 1950, 30 COMP. GEN. 65.

IN THE DECISION OF NOVEMBER 30, 1949, WE HELD, QUOTING FROM THE SYLLABUS, AS FOLLOWS:

"THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, COINCIDENTLY WITH ITS REPEAL ON OCTOBER 1, 1949, WAS CONTINUED IN EFFECT FOR A LIMITED PERIOD BY THE CAREER COMPENSATION ACT OF 1949 AS TO MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO THE SAVED TOTAL COMPENSATION BENEFITS OF SECTION 515 (B) THEREOF, SO THAT THE SECRETARIES OF THE DEPARTMENTS CONCERNED MAY CONTINUE, AFTER OCTOBER 1, 1949, BUT UNDER THE AUTHORITY OF SECTION 112 OF THE 1942 ACT, AS AMENDED, TO WAIVE RECOVERY OF ERRONEOUS OR EXCESS PAYMENTS OF FAMILY ALLOWANCES, PROVIDED SUCH PAYMENTS WERE MADE TO DEPENDENTS OF MEMBERS WHO REMAIN WITHIN THE PURVIEW OF THE TOTAL COMPENSATION SAVINGS VISION.'

IN THE DECISION OF AUGUST 2, 1950, ALSO QUOTING FROM THE SYLLABUS, WE HELD THAT:

"WHERE ENLISTED MEMBERS OR FORMER ENLISTED MEMBERS OF THE UNIFORMED SERVICES HAVE NOT BEEN AND CURRENTLY COULD NOT BECOME ENTITLED TO THE BENEFITS OF THE SAVED PAY PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, THE SECRETARY OF THE DEPARTMENT CONCERNED MAY NOT EXERCISE THE AUTHORITY GRANTED HIM UNDER THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, TO MAKE DETERMINATIONS ESTABLISHING DEPENDENCY WITH RESPECT TO FAMILY ALLOWANCE APPLICATIONS FILED BY SUCH MEMBERS OR THEIR DEPENDENTS AS SUCH AUTHORITY REMAINED IN EFFECT UNDER THE 1949 ACT ONLY AS TO PERSONS ENTITLED TO THE BENEFITS OF THE SAVED PAY PROVISIONS OF THE LATTER ACT.'

A COPY OF EACH OF THE DECISIONS IS ENCLOSED.

THE WAIVER PROVISION OF THE 1942 ACT (SECTION 112), WHICH HAD BEEN REPEALED, WAS REINSTITUTED IN AN ALTERED FORM BY SECTION 13 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 797, WHICH PROVIDES THAT THE COMPTROLLER GENERAL, UPON THE RECOMMENDATION OF THE ARMY AUTHORITIES AND A SHOWING THAT COLLECTION WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE, MAY WAIVE INDEBTEDNESSES ARISING OUT OF ERRONEOUS PAYMENTS OF FAMILY ALLOWANCE. HENCE, THE REQUEST OF THE DEPARTMENT OF THE ARMY FOR THE RETURN OF THE FILES IN THIS CASE COULD ONLY BE FOR THE PURPOSE OF POSSIBLE RECOMMENDATION OF WAIVER OF THE INDEBTEDNESS AS AGAINST EQUITY AND GOOD CONSCIENCE. IT APPEARS THAT YOU HAVE ALREADY BEEN ADVISED OF OUR CLAIMS DIVISION REPLY TO THE DEPARTMENT OF THE ARMY REQUEST THAT, SINCE THE MATTER OF LEROY AND FRANCES ROBSON'S INDEBTEDNESS TO THE UNITED STATES HAS BEEN REFERRED TO THE DEPARTMENT OF JUSTICE AND HAS BEEN REDUCED TO JUDGMENT, THEIR LIABILITIES FOR THE AMOUNT THEREOF WOULD NO LONGER BE A PROPER MATTER FOR THE CONSIDERATION OF OUR WAIVER COMMITTEE UNDER THE DEPENDENTS ASSISTANCE ACT OF 1950 IF SUCH ACTION WERE RECOMMENDED, AND HENCE, NO USEFUL PURPOSE COULD BE SERVED BY RETURNING THE FILE.

AS TO MR. ROBSON'S OPPORTUNITY TO PRESENT EVIDENCE IN HIS OWN BEHALF, IT APPEARS THAT HE HAD AMPLE OPPORTUNITY TO DO SO PRIOR TO THE REPEAL OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942. AS EARLY AS NOVEMBER 1943, ROBSON DENIED THE COMMON LAW MARRIAGE WITH ELEANOR ROBSON AND IN HIS AFFIDAVIT STATED THAT RELATIONS BETWEEN THEM HAD CEASED IN 1937, NOTWITHSTANDING THE FACT THAT HE HAD FILED A PETITION FOR DIVORCE AGAINST ELEANOR ROBSON IN 1940, AND THAT A SECOND CHILD WAS BORN TO THE UNION AT A LATER DATE. HE ALSO HAD AMPLE OPPORTUNITY TO PROTEST THE TERMINATION OF THE PAYMENT OF ALLOWANCES TO FRANCES ROBSON, AND ALSO TO SUBMIT EVIDENCE IN RESPONSE TO THE MANY DEMANDS FOR PAYMENT OF THE INDEBTEDNESS. IT THUS APPEARS THAT EACH OF THE CONTENTIONS ARE WITHOUT MERIT.

SINCE THE MATTER HAS NOW BEEN REDUCED TO JUDGMENT, ALL FURTHER CORRESPONDENCE SHOULD BE DIRECTED TO THE UNITED STATES DISTRICT ATTORNEY OR TO THE DEPARTMENT OF JUSTICE.