B-139188, JUN 10, 1959

B-139188, JUN 10, 1959

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL J. L. WHIPPLE:

BY FIRST ENDORSEMENT DATED MARCH 30, 1959, THE FIELD DIVISION, OFFICE OF THE CHIEF OF FINANCE, FORWARDED YOUR LETTER OF MARCH 13, 1959, WITH ENCLOSURES, SUBMITTING FOR ADVANCE DECISION (ASSIGNED DO NO. 410 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE) A VOUCHER STATED IN FAVOR OF MRS. REGINA M. BEDNER, WIFE OF DAVID L. BEDNER, FORMER ENLISTED MAN, REGULAR ARMY, REPRESENTING A CLASS Q ALLOTMENT FOR THE PERIOD MAY 1, 1956, TO AUGUST 31, 1956, IN THE CIRCUMSTANCES DISCLOSED. THE PROPOSED PAYMENT IS BASED ON A CORRECTION OF THE ENLISTED MAN'S PAY RECORDS UNDER THE PROVISIONS OF 10 U.S.C. 1552.

IT APPEARS FROM THE RECORDS AND THE INFORMATION FURNISHED THAT MR. BEDNER WAS INDUCTED INTO THE ARMY ON JUNE 8, 1953, AND AFTER SERVING OVER SIX MONTHS HE ENLISTED IN THE REGULAR ARMY ON DECEMBER 19, 1953. HE WAS RELEASED FROM ACTIVE DUTY AND TRANSFERRED TO THE ARMY RESERVE ON DECEMBER 18, 1956. IT APPEARS THAT HE AUTHORIZED A CLASS Q ALLOTMENT FOR HIS FORMER WIFE AND CHILD IN THE AMOUNT OF $117.10 A MONTH PAYABLE TO HIS WIFE EFFECTIVE JULY 1, 1953, AND THAT SUCH ALLOTMENT WAS DISCONTINUED JANUARY 31, 1954, BECAUSE OF THE DEATH OF HIS WIFE ON JANUARY 30, 1954. APPEARS FURTHER THAT FOLLOWING HIS FIRST WIFE'S DEATH HE AUTHORIZED A CLASS Q ALLOTMENT OF $91.30 A MONTH TO MRS. ROSE SORRENTINO, CUSTODIAN OF HIS CHILD (MATERNAL GRANDMOTHER) EFFECTIVE JANUARY 1, 1954; THAT SUCH ALLOTMENT WAS INCREASED TO $137.10 A MONTH EFFECTIVE NOVEMBER 1, 1954; AND THAT PAYMENTS WERE MADE THROUGH AUGUST 31, 1956.

IT IS REPORTED THAT THE ENLISTED MEMBER SUBMITTED DOCUMENTS AUTHORIZING THE DISCONTINUANCE OF THE ALLOTMENT OF $137.10 TO HIS CHILD EFFECTIVE JULY 31, 1956, BECAUSE THE CHILD WAS ADOPTED BY THIRD PARTIES. YOU SAY THAT THE AUTHORIZATION WAS RECEIVED TOO LATE TO PREVENT THE MAILING OF THE CHECK FOR AUGUST 1956 AND SINCE THE CHILD WAS ADOPTED ON AUGUST 13, 1956, IT WAS DETERMINED BY YOUR OFFICE THAT ENTITLEMENT EXISTED TO THE ALLOTMENT THROUGH AUGUST 31, 1956.

YOU REPORT THAT FORMS 137 AND 1341 DATED AUGUST 27, 1956, WERE RECEIVED SHOWING THAT THE SERVICE MEMBER REMARRIED ON APRIL 14, 1956, AND HE AUTHORIZED A CLASS Q ALLOTMENT OF $137.10 A MONTH IN BEHALF OF HIS WIFE, MRS. REGINA M. BEDNER, EFFECTIVE SEPTEMBER 1, 1956. PAYMENTS WERE MADE THROUGH DECEMBER 31, 1956, WHEN THE ALLOTMENT WAS DISCONTINUED DUE TO HIS DISCHARGE ON DECEMBER 18, 1956. YOUR LETTER INDICATES THAT INFORMATION ON FILE SHOWS THAT THE SERVICEMAN INITIATED DOCUMENTS ON APRIL 23, 1956, AUTHORIZING AN ALLOTMENT OF $137.10 A MONTH FOR HIS WIFE EFFECTIVE MAY 1, 1956. HOWEVER, BECAUSE OF AN ADMINISTRATIVE ERROR, THE DOCUMENTS WERE NOT FORWARDED TO THE FINANCE CENTER, INDIANAPOLIS, INDIANA, AND THEREFORE NO PAYMENTS WERE MADE TO THE WIFE FOR THE PERIOD MAY 1, 1956, TO AUGUST 31, 1956. IN THAT CONNECTION, ITEM 40 OF THE ENLISTED MAN'S PAY RECORD CLOSED JUNE 30, 1956, CONTAINS A NOTATION THAT DEPENDENCY WAS ESTABLISHED FOR WIFE AND CHILD ON MAY 1, 1956. YOU ALSO SAY THAT IF THE ALLOTMENT OF $137.10 A MONTH HAD BEEN APPORTIONED BETWEEN HIS WIFE AND CHILD IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 89, ARMY REGULATIONS 37-104, THE WIFE WOULD HAVE RECEIVED TWICE AS MUCH AS THE CHILD ($91.40 AND $45.70 A MONTH RESPECTIVELY).

MR. BEDNER REQUESTED THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS TO CORRECT HIS RECORDS TO SHOW THAT HE WAS ENTITLED TO REIMBURSEMENT OF $548.40, WHICH HE BELIEVED SHOULD HAVE BEEN PAID TO HIS PRESENT WIFE, REGINA M. BEDNER, FOR THE FOUR MONTHS AFTER THEIR MARRIAGE, MAY THROUGH AUGUST 1956. THAT AMOUNT REPRESENTS $137.10, THE FULL CLASS Q ALLOTMENT FOR THAT PERIOD. THE CORRECTION BOARD IN ITS CONCLUSIONS ON JUNE 11, 1958, RECOGNIZED THAT THERE WAS SOME DELAY IN EFFECTING APPLICANT'S SPECIFIC REQUEST FOR A CHANGE IN HIS ALLOTMENT DUE TO AN ADMINISTRATIVE ERROR, BUT DENIED MR. BEDNER'S APPLICATION BECAUSE OF INSUFFICIENT EVIDENCE OF ERROR OR INJUSTICE TO WARRANT GRANTING THE RELIEF REQUESTED. HOWEVER, ON NOVEMBER 18, 1958, THE UNDER SECRETARY OF THE ARMY, IN A MEMORANDUM FOR THE ADJUTANT GENERAL, REQUESTED THE CORRECTION OF THE RECORDS AS FOLLOWS:

"HAVING CONSIDERED THE FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS, AND UNDER THE PROVISIONS OF 10 U.S.C. 1552, IT IS REQUESTED:

"THAT ALL OF THE DEPARTMENT OF THE ARMY RECORDS OF DAVID L. M. BEDNER BE CORRECTED TO SHOW THAT HE AUTHORIZED A CLASS Q ALLOTMENT OF $137.10 PER MONTH IN FAVOR OF HIS WIFE, REGINA M. BEDNER, DURING THE MONTH OF APRIL 1956 AND THAT SUCH ALLOTMENT WAS APPROVED BY THE FINANCE CENTER, INDIANAPOLIS, INDIANA, EFFECTIVE 1 MAY 1956, AND PRORATED BETWEEN HIS WIFE AND CHILD THROUGH THE MONTH OF AUGUST 1956."

THEREAFTER ON JANUARY 30, 1959, MR. BEDNER EXECUTED A CERTIFICATE ACCEPTING THE PAYMENT TENDERED (UNDER THE PROVISIONS OF 10 U.S.C. 1552(C)) IN THE AMOUNT OF $335.82, PAYABLE TO MRS. REGINA M. BEDNER, ALLOTTEE, COMPUTED AS FOLLOWS: CLASS Q ALLOTMENT AT $91.40 A MONTH FOR THE PERIOD MAY 1 TO AUGUST 31, 1956, $365.60, LESS $29.78 DUE THE UNITED STATES BY REASON OF OVERPAYMENT OF TRAVEL PAY ON DISCHARGE, DECEMBER 18, 1956.

SINCE AFTER SIX MONTHS' SERVICE AS AN INDUCTEE MR. BEDNER WAS DISCHARGED AT FORT CAMPBELL, KENTUCKY, FOR THE SPECIFIC PURPOSE OF REENLISTING IN THE REGULAR ARMY, HE WAS NOT ENTITLED TO AN INCREASED TRAVEL ALLOWANCE UPON FINAL DISCHARGE BY REASON OF HIS DISCHARGE AND REENLISTMENT AT FORT CAMPBELL, KENTUCKY. UPON FINAL DISCHARGE, HE WAS ENTITLED ONLY TO MILEAGE FROM FORT EUSTIS, VIRGINIA, TO HIS HOME OF RECORD, BALTIMORE, MARYLAND, THE PLACE FROM WHICH HE APPARENTLY WAS ORDERED TO ACTIVE DUTY. THE DISTANCE BETWEEN FORT EUSTIS, VIRGINIA, TO HIS HOME OF RECORD, BALTIMORE, MARYLAND, THE PLACE FROM WHICH HE APPARENTLY WAS ORDERED TO ACTIVE DUTY. THE DISTANCE BETWEEN FORT EUSTIS, VIRGINIA, AND BALTIMORE, MARYLAND, IS 213 MILES AT $.06 A MILE, OR $12.78, RESULTING IN A OVERPAYMENT OF $43.50, LESS CREDIT DUE HIM OF $13.72, LEAVING A BALANCE OF $29.78 DUE THE UNITED STATES.

YOU SAY THAT, SINCE THE ALLOTMENT WAS NOT APPORTIONED BETWEEN THE WIFE AND CHILD DURING THE PERIOD IN QUESTION, THE FOLLOWING QUESTIONS CONCERNING THE WIFE'S ENTITLEMENT ARE RAISED:

"A. DOES THE CORRECTED RECORD STATED ON 18 NOVEMBER 1958 REQUIRE PAYMENT TO CONFORM TO THE RECORD AS CORRECTED?

"B. IF AN ADJUSTMENT OF PAYMENT IS REQUIRED, WHAT IS THE PROPER AMOUNT DUE EACH PAYEE UNDER THE CORRECTED RECORD?

"C. IF THE PAYMENT IS MADE, WILL MRS. SORRENTINO, WHO RECEIVED PAYMENT FOR THE SERVICEMAN'S CHILD, BE REQUIRED TO REFUND THE DIFFERENCE BETWEEN THE AMOUNT SHE HAS RECEIVED AND THAT AMOUNT DUE HER AS A RESULT OF THE ADJUSTMENT?"

UNDER THE PROVISIONS OF 10 U.S.C. 1552(A), THE SECRETARY OF A MILITARY DEPARTMENT, UNDER PROCEDURES ESTABLISHED BY HIM AND APPROVED BY THE SECRETARY OF DEFENSE, AND ACTING THROUGH BOARDS OF CIVILIANS OF THE EXECUTIVE PART OF THAT MILITARY DEPARTMENT, MAY "CORRECT" ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. SUCH SECTION FURTHER PROVIDES THAT, EXCEPT WHEN PROCURED BY FRAUD, A CORRECTION IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES. HENCE, UNDER THE STATUTE ANY ACTION TO BE TAKEN WITH RESPECT TO A MEMBER'S PAY ACCOUNT FOLLOWING A CORRECTION OF HIS RECORD MUST BE CONSISTENT WITH THE RECORD AS CORRECTED.

WITH RESPECT TO QUESTION C, WHEN A MEMBER AUTHORIZES AN ALLOTMENT OF HIS PAY, UNDER THE APPLICABLE STATUTES THE ALLOTMENT PAYMENTS ARE MADE SUBJECT TO ANY CONDITIONS THAT MAY BE IMPOSED BY REGULATIONS. REGULATIONS CONTAINED IN AR 35-1465, DATED JULY 7, 1955, AND IN AR 35 1901, DATED JULY 20, 1955, PROVIDED FOR PAYMENT OF THE CLASS Q ALLOTMENT UNTIL RECEIPT BY ALLOTMENT OPERATIONS OF NOTICE TO CHANGE OR DISCONTINUE THE ALLOTMENT AND ALSO PROVIDED FOR ADDITIONAL ALLOTMENT DEDUCTIONS FROM THE MEMBER'S PAY WHERE PAYMENT OF THE ALLOTMENT COULD NOT BE TIMELY CHANGED OR DISCONTINUED BECAUSE OF DELAY IN THE RECEIPT BY ALLOTMENT OPERATIONS OF APPROPRIATE DOCUMENTS. WHERE THE CHANGE OR DISCONTINUANCE NOTICE WAS NOT TIMELY RECEIVED, IN THE CIRCUMSTANCES OF THIS CASE, PAYMENTS ON THE BASIS OF INFORMATION THEN IN ALLOTMENT OPERATIONS WERE PROPER PAYMENTS FOR WHICH DEDUCTIONS FROM THE MEMBER'S PAY WERE REQUIRED TO BE MADE. IN ORDER FOR THE GOVERNMENT TO RECOVER THE ALLOTMENT PAYMENTS FROM MRS. SORRENTINO IT WOULD BE NECESSARY TO ESTABLISH THAT ALLOTMENT OPERATIONS RECEIVED TIMELY NOTICE OF THE REDUCTION IN OR DISCONTINUANCE OF THE ALLOTMENT. THE ALLOTMENT PAYMENTS RECEIVED BY HER FOR THE PERIOD MAY THROUGH AUGUST 1956 APPEAR TO HAVE BEEN PROPERLY MADE AND THERE IS NOT APPARENT ANY TENABLE BASIS UPON WHICH THE GOVERNMENT MAY RECOVER ANY PART OF THEM FROM HER. WHILE THE CORRECTION MADE IN THIS CASE BY THE SECRETARY OF THE ARMY IS NOT ENTIRELY CLEAR, IT DOES NOT PURPORT TO CHANGE THE RECORD OF THE PAYMENTS ACTUALLY MADE FOR THE BENEFIT OF THE ENLISTED MAN'S CHILD AND IN OUR OPINION SUCH CORRECTION MAY NOT BE VIEWED AS RETROACTIVELY MAKING MRS. SORRENTINO LIABLE FOR REFUND OF ANY PART OF THE PAYMENTS INVOLVED WHICH WERE PROPERLY PAID TO HER UNDER THE APPLICABLE REGULATIONS PURSUANT TO THE MEMBER'S REQUEST AND FOR HIS BENEFIT. QUESTION C IS ANSWERED IN THE NEGATIVE.

A CLASS Q ALLOTMENT, LIKE OTHER ALLOTMENTS, IS AN AUTHORIZATION BY A MEMBER IN THE MILITARY SERVICE TO PAY A SPECIFIED AMOUNT OF HIS PAY AND ALLOWANCES TO A DESIGNATED ALLOTTEE. SUCH AUTHORIZATION WAS RECOGNIZED IN THIS CASE AND, AS INDICATED ABOVE, CERTAIN PROPER ALLOTMENT PAYMENTS WERE MADE AND CHARGED AGAINST THE MEMBER'S ACCOUNT. THE BALANCE OF HIS PAY AND ALLOWANCES, AFTER OTHER PROPER DEDUCTIONS, WAS RECEIVED BY HIM AND IT DOES NOT APPEAR, EVEN AFTER THE CORRECTION OF THE RECORD, THAT ANY AMOUNT REMAINS TO HIS CREDIT WHICH MAY BE PAID TO HIS WIFE AS A CLASS Q ALLOTMENT. THERE IS NO INDICATION IN THE RECORD THAT THE MEMBER HAS NOT RECEIVED THE BALANCE OF HIS AUTHORIZED PAY AND ALLOWANCES, AFTER PROPER DEDUCTIONS, AND PAYMENT OF AN ADDITIONAL ALLOTMENT - WHICH MUST ALSO BE CONSIDERED PART OF HIS PAY AND ALLOWANCES - WOULD RESULT IN AN OVERPAYMENT OF PAY AND ALLOWANCES WHICH WOULD BE FOR RECOVERY FROM THE MEMBER. KNOW OF NO AUTHORITY FOR PAYMENT OF A CLASS Q ALLOTMENT TO THE FORMER ENLISTED MAN'S WIFE WITHOUT A CORRESPONDING DEBIT IN HIS PAY ACCOUNT. ACCORDINGLY, SINCE IT APPEARS THAT PAYMENT OF THE AMOUNT CLAIMED BY THE FORMER ENLISTED MAN FOR HIS WIFE WOULD RESULT IN HIS INDEBTEDNESS TO THE GOVERNMENT FOR THE FULL AMOUNT PAID, NO PAYMENT IS PROPER. QUESTION A IS ANSWERED IN THE NEGATIVE AND, IN VIEW OF THAT ANSWER, NO REPLY TO QUESTION B IS REQUIRED. THE VOUCHER AND SUPPORTING PAPERS ARE RETAINED HERE.