B-139814, AUG. 19, 1959

B-139814, AUG. 19, 1959

TO MR. CORNELIO UMALI:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 17, 1959, CONCERNING YOUR CLAIM FOR MONETARY ALLOWANCE IN LIEU OF QUARTERS ON ACCOUNT OF A DEPENDENT (WIFE) INCIDENT TO YOUR ENLISTED SERVICE IN THE UNITED STATES NAVAL RESERVE.

THE RECORD SHOWS THAT YOU WERE RECALLED TO ACTIVE DUTY JUNE 4, 1941; THAT YOU WERE IN A MISSING STATUS FROM DECEMBER 24, 1941, UNTIL MARCH 19, 1945, ON WHICH DATE YOU RETURNED TO NAVAL JURISDICTION; AND THAT YOU WERE RELEASED FROM ACTIVE DUTY ON FEBRUARY 9, 1947. UPON YOUR RETURN TO NAVAL JURISDICTION YOUR PAY ACCOUNT WAS RECONSTRUCTED FOR THE PERIOD JUNE 4, 1941, TO MARCH 19, 1945, AND YOU WERE CREDITED AND PAID MONETARY ALLOWANCE IN LIEU OF QUARTERS ON ACCOUNT OF A DEPENDENT (WIFE) FOR THE PERIOD JUNE 4, 1941, TO OCTOBER 31, 1943. PURSUANT TO AN APPLICATION FILED BY YOU AFTER YOUR RETURN TO NAVAL JURISDICTION FOR FAMILY ALLOWANCE ON BEHALF OF DEPENDENTS (WIFE AND TWO CHILDREN), SUCH FAMILY ALLOWANCE WAS AUTHORIZED EFFECTIVE WITH THE MONTH OF MARCH 1945, AND PAID THROUGH FEBRUARY 1947, THE MONTH OF YOUR RELEASE FROM ACTIVE DUTY. IN VIEW OF THE PAYMENT TO YOU OF MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR A DEPENDENT (WIFE) AS SHOWN BY THE RECONSTRUCTED PAY ACCOUNT, YOUR ORIGINAL CLAIM DATED DECEMBER 9, 1946, FOR SUCH ALLOWANCE FROM DECEMBER 1941 TO OCTOBER 1943, WAS DISALLOWED BY SETTLEMENT DATED AUGUST 29, 1947, OF OUR CLAIMS DIVISION. SUBSEQUENT TO THE SETTLEMENT OF AUGUST 29, 1947, THE MATTER OF YOUR ENTITLEMENT TO FAMILY ALLOWANCE ON BEHALF OF YOUR DEPENDENTS (WIFE AND TWO CHILDREN) FOR THE PERIOD PRIOR TO MARCH 9, 1945, WAS REFERRED TO THE DEPARTMENT OF THE NAVY FOR APPROPRIATE ACTION. THE RECORDS OF THAT DEPARTMENT INDICATE THAT FAMILY ALLOWANCE ON BEHALF OF YOUR WIFE AND TWO DEPENDENT CHILDREN WAS RETROACTIVELY AUTHORIZED AND PAID FOR THE PERIOD FROM NOVEMBER 1943 THROUGH FEBRUARY 1945, A DEDUCTION OF $352 BEING MADE FROM THE AMOUNT OTHERWISE DUE TO COVER YOUR CONTRIBUTION OF $22 A MONTH TO SUCH ALLOWANCE FOR THOSE MONTHS (NOVEMBER 1943 THROUGH FEBRUARY 1945). ALSO, IT APPEARS THAT FAMILY ALLOWANCE AT THE RATE OF $80 A MONTH WAS PAID TO YOUR DEPENDENTS FROM MARCH 1945 TO FEBRUARY 1947.

SECTION 8 OF THE ACT OF OCTOBER 26, 1943, 57 STAT. 579, EFFECTIVE NOVEMBER 1, 1943, AMENDED SECTION 108 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381, TO PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"/B) EXCEPT AS OTHERWISE HEREIN PROVIDED, MONETARY ALLOWANCES IN LIEU OF QUARTERS FOR DEPENDENTS AS AUTHORIZED BY SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942 SHALL NOT BE PAYABLE FOR THE PERIOD DURING WHICH FAMILY ALLOWANCES TO DEPENDENTS OF ENLISTED MEN OF THE FIRST, SECOND, OR THIRD GRADES ARE AUTHORIZED BY THIS TITLE. AN ENLISTED MAN WHO, ON THE EFFECTIVE DATE OF THIS ACT, IS RECEIVING, OR, BEING ENTITLED TO A MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS, HAS APPLIED THEREFOR, MAY, AT HIS OPTION, RECEIVE OR CONTINUE TO RECEIVE SUCH MONETARY ALLOWANCE OR ELECT NOT TO RECEIVE SUCH MONETARY ALLOWANCE AND TO HAVE HIS DEPENDENTS BECOME ENTITLED TO RECEIVE FAMILY ALLOWANCE: PROVIDED, THAT PAYMENT OF SUCH MONETARY ALLOWANCE SHALL BE MADE ONLY FOR SUCH PERIODS, FROM THE EFFECTIVE DATE OF THIS ACT, AS THE ENLISTED MAN HAS IN EFFECT AN ALLOTMENT OF PAY, IN AN AMOUNT NOT LESS THAN THE AMOUNT OF SUCH MONETARY ALLOWANCE, FOR THE SUPPORT OF THE DEPENDENTS ON WHOSE ACCOUNT THE ALLOWANCE IS CLAIMED. * * *"

WHILE DETERMINATIONS RESPECTING YOUR PAY ACCOUNT FOR THE PERIOD THAT YOU WERE IN A MISSING STATUS IS A MATTER FOR CONSIDERATION BY THE DEPARTMENT OF THE NAVY, IT WILL BE OBSERVED FROM THE ABOVE-QUOTED STATUTE THAT FAMILY ALLOWANCE BENEFITS WERE NOT PAYABLE CONCURRENTLY WITH MONETARY ALLOWANCE IN LIEU OF QUARTERS ON ACCOUNT OF AN ENLISTED MAN'S DEPENDENTS. ALSO, FOR THE PERIOD FROM NOVEMBER 1943 THROUGH FEBRUARY 1945 THE AMOUNT PAID YOUR DEPENDENTS AS THE GOVERNMENT'S CONTRIBUTION TOWARD FAMILY ALLOWANCE WAS MORE THAN THE MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR A DEPENDENT WIFE WOULD HAVE BEEN. HENCE, IT APPEARS TO HAVE BEEN TO YOUR ADVANTAGE TO HAVE FAMILY ALLOWANCE PAID TO YOUR DEPENDENTS RATHER THAN RECEIVE THE QUARTERS ALLOWANCE.

FURTHERMORE, EFFECTIVE NOVEMBER 1, 1943, ONE OF THE CONDITIONS PRECEDENT TO THE LAWFUL PAYMENT OF MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS WAS THAT ENLISTED MEN MUST HAVE HAD IN EFFECT AN ALLOTMENT OF PAY IN AN AMOUNT NOT LESS THAN THE AMOUNT OF SUCH MONETARY ALLOWANCE FOR THE SUPPORT OF THE DEPENDENTS ON WHOSE ACCOUNT THE ALLOWANCE WAS CLAIMED. THE PURPOSE OF SUCH CONDITION, AS DISCLOSED BY THE LEGISLATIVE HISTORY OF THE ACT WAS TO REQUIRE THAT THE ENLISTED MAN CONTRIBUTE CURRENTLY TO THE SUPPORT OF SUCH DEPENDENTS. SINCE YOUR DEPENDENTS (WIFE AND TWO CHILDREN) LIVED IN THE PHILIPPINE ISLANDS, A COUNTRY OCCUPIED BY THE ENEMY DURING THE PERIOD INVOLVED, ALLOTMENT PAYMENTS TO THEM COULD NOT BE EFFECTED AND, HENCE, YOU DID NOT HAVE IN EFFECT AN ALLOTMENT IN THEIR FAVOR. THEREFORE, PAYMENT OF THE MONETARY ALLOWANCE FOR THE PERIOD NOVEMBER 1943 THROUGH FEBRUARY 1945--- A PERIOD WHEN SUCH ALLOWANCE WAS DEPENDENT UPON HAVING IN EFFECT AN ALLOTMENT TO THE DEPENDENTS AT LEAST EQUAL TO THE ALLOWANCES--- WOULD BE CONTRARY TO THE PROVISIONS OF THE STATUTE.

ACCORDINGLY, NO FURTHER AMOUNT FOR MONETARY ALLOWANCE IN LIEU OF QUARTERS OR FOR FAMILY ALLOWANCE APPEARS TO BE DUE INCIDENT TO YOUR ENLISTED SERVICE IN THE UNITED STATES NAVAL RESERVE.