B-143940, MAY 22, 1961

B-143940, MAY 22, 1961

TO MRS. JEAN DUNLOP:

REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 30 AND FEBRUARY 13, 1961, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES, IN THE AMOUNT OF $1,411.40, ON ACCOUNT OF ERRONEOUS CLASS Q ALLOTMENT PAYMENTS MADE TO YOU FOR A PERIOD SUBSEQUENT TO THE MONTH OF YOUR FORMER HUSBAND'S DISCHARGE FROM THE UNITED STATES ARMY.

OUR RECORDS SHOW THAT YOUR FORMER HUSBAND, GEORGE A. DUNLOP, WHILE SERVING IN THE ARMY, APPLIED FOR A CLASS Q ALLOTMENT IN YOUR FAVOR TO BE EFFECTIVE NOVEMBER 1, 1950, AND THAT ON THE BASIS OF THIS APPLICATION MONTHLY CHECKS IN THE AMOUNT OF $127.50 EACH WERE ISSUED IN YOUR FAVOR. UNDER THE GOVERNING LAW AND REGULATIONS THAT ALLOTMENT SHOULD HAVE BEEN TERMINATED ON JULY 31, 1951, BY VIRTUE OF THE DISCHARGE OF MR. DUNLOP FROM THE ARMY ON JULY 25, 1951; HOWEVER, THE ARMY, THROUGH ERROR, CONTINUED TO SEND YOUR MONTHLY ALLOTMENT CHECKS OF $127.50 EACH, COVERING THE PERIOD AUGUST 1, 1951, TO JULY 31, 1952 (12 CHECKS), AND $137.10 EACH, COVERING THE PERIOD AUGUST 1 TO SEPTEMBER 30, 1952 (2 CHECKS), RESULTING IN AN OVERPAYMENT OF $1,804.20. THE PAID CHECKS COVERING THOSE PERIODS ARE ON FILE HERE. THE RECORD FURTHER SHOWS THAT IT WAS NOT UNTIL AUGUST 17, 1952, THAT YOU REQUESTED THE ARMY TO STOP THE ALLOTMENT ON THE GROUND THAT YOU WERE DIVORCED FROM YOUR HUSBAND. DESPITE THIS NOTIFICATION, YOU MADE NO EFFORT TO RETURN THE CHECKS DATED SEPTEMBER 1 AND OCTOBER 1, 1952, BUT NEGOTIATED THEM WITHIN A FEW DAYS AFTER THEIR RECEIPT.

THE OVERPAYMENT WAS TIMELY DISCOVERED BY THE ARMY AND ON OCTOBER 23, 1952, THEY INITIALLY REQUESTED YOUR FORMER HUSBAND AND YOU TO REMIT THE AMOUNT INVOLVED. WHEN THAT LETTER AND SUCCEEDING LETTERS BROUGHT NO RESULT, THE INDEBTEDNESS WAS REPORTED TO THIS OFFICE ON JULY 1, 1954, FOR FURTHER APPROPRIATE COLLECTION PROCEEDINGS. IN THIS CONNECTION THE ARMY REPORT INDICATED THAT YOU WERE SOLELY LIABLE FOR THE REPAYMENT OF THE INDEBTEDNESS. THAT DETERMINATION APPARENTLY WAS BASED UPON OUR HOLDING IN 33 COMP. GEN. 309 THAT THE RECIPIENT OF FAMILY ALLOWANCE PAYMENTS IS LIABLE SOLELY TO THE UNITED STATES FOR OVERPAYMENTS UNLESS THE ERRONEOUS PAYMENTS ARE MADE AS A RESULT OF THE SERVICEMAN'S FRAUD, MISREPRESENTATION OR MISTAKE, IN WHICH CASE THE SERVICEMAN AND PAYEE JOINTLY AR LIABLE FOR REFUND. THE MATTER WAS BROUGHT TO THE ATTENTION OF THE WAIVER ADVISORY BOARD, UNITED STATES ARMY, AND THAT BOARD, UPON CONSIDERATION OF THE FACTS AND CIRCUMSTANCES SURROUNDING THE OVERPAYMENT AND AN EVALUATION OF THE INFORMATION CONTAINED IN YOUR CORRESPONDENCE, RECOMMENDED IN THEIR REPORT OF DECEMBER 5, 1955, THAT RECOVERY OF THE INDEBTEDNESS NOT BE WAIVED. YOU WERE INFORMED BY THEIR LETTER OF DECEMBER 27, 1955, THAT IT WOULD NOT BE CONTRARY TO THE PRINCIPLES OF EQUITY AND GOOD CONSCIENCE TO RECOVER THE INDEBTEDNESS FROM YOU AND THAT WAIVER IS NOT WARRANTED. IN 1957 THE AMOUNT OF THE INDEBTEDNESS WAS REDUCED TO $1,411.40 BY THE APPLICATION OF THE AMOUNT IN YOUR CIVIL SERVICE RETIREMENT ACCOUNT.

ON THE BASIS OF INFORMATION OF RECORD ALLUDING TO THE POSSIBILITY THAT GEORGE A. DUNLOP MAY HAVE BEEN ON NOTICE OF THE ERRONEOUS PAYMENTS AND MAY CONCEIVABLY HAVE PARTICIPATED IN THE PROCEEDS DERIVED FROM THE NEGOTIATIONS OF THE CHECKS, THIS OFFICE, AFTER RECENTLY ASCERTAINING HIS CURRENT ADDRESS, MADE APPROPRIATE DEMANDS UPON HIM FOR REPAYMENT OF THE AMOUNT INVOLVED. MR. DUNLOP, THROUGH HIS ATTORNEY, HAS DENIED LIABILITY IN THIS MATTER, ASSERTING THAT SUBSEQUENT TO HIS DISCHARGE IN JULY 1951 HE LIVED WITH YOU FOR ABOUT A MONTH BEFORE BECOMING SEPARATED FROM YOU, THAT THE FIRST CHECK RECEIVED AFTER HIS DISCHARGE WAS RETURNED TO THE OFFICE FROM WHICH IT WAS DISBURSED, THAT HE HAD NO KNOWLEDGE OF CONTINUED PAYMENTS, AND THAT HE NEVER RECEIVED ANY PART OF THE PROCEEDS OF THE CHECKS OR TO ANY EXTENT BENEFITED THEREFROM. IT IS NOTED THAT LETTER OF MAY 13, 1955, FROM MR. WILLIAM O. ILGENFRITZ, VETERANS' EMPLOYMENT SERVICE, UNITED STATES DEPARTMENT OF LABOR, HARRISBURG, PENNSYLVANIA, IS TO THE EFFECT THAT YOU HAD NOT SEEN OR HEARD FROM MR. DUNLOP SINCE JULY 1951.

IN YOUR LETTERS YOU POINTED OUT, AMONG OTHER THINGS, THAT THE CHECKS WERE RECEIVED BY YOU IN GOOD FAITH, THAT YOU DID NOT KNOW AT THE TIME THAT YOUR FORMER HUSBAND HAD BEEN DISCHARGED FROM THE ARMY, AND THAT HE IS RESPONSIBLE FOR ANY MONIES ERRONEOUSLY PAID TO YOU, PARTICULARLY SINCE THE FUNDS WERE USED TO PROVIDE THE NECESSITIES OF LIFE FOR YOURSELF AND YOUR CHILDREN DURING THE PERIOD HE ABANDONED HIS LEGAL RESPONSIBILITY THEREFOR. ALSO, YOU HAVE INDICATED THAT YOUR INCOME IS LIMITED AND THAT IT WOULD BE A FINANCIAL BURDEN IF YOU WERE REQUIRED TO MAKE REFUND OF THE AMOUNT INVOLVED.

WHETHER OR NOT THE CHECKS WERE RECEIVED BY YOU IN GOOD FAITH IS IMMATERIAL INSOFAR AS THE GOVERNMENT'S RIGHT TO RECOVER THE AMOUNT INVOLVED IS CONCERNED. IT IS WELL ESTABLISHED THAT PERSONS WHO RECEIVE MONEY ERRONEOUSLY PAID BY A GOVERNMENT AGENCY OR OFFICIAL ACQUIRE NO RIGHT TO SUCH MONEY AND THE COURTS CONSISTENTLY HAVE HELD THAT SUCH PERSONS ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION. SEE BARNES ET AL. V. DISTRICT OF COLUMBIA, 22 CT.CL. 366. IN THE CASE OF UNITED STATES V. BENTLEY, 107 F.2D 382, IT WAS HELD THAT PAYMENTS MADE THROUGH MISTAKES OF OFFICERS OF THE UNITED STATES ARE RECOVERABLE AND THAT THE SUPPOSED HARDSHIP OF REFUNDING WHAT THE DEFENDANT MAY HAVE SPENT CANNOT STAND UP AGAINST THE INJUSTICE OF KEEPING WHAT NEVER RIGHTFULLY BELONGED TO HIM. SIMILAR RULE WAS ENUNCIATED IN THE CASE OF UNITED STATES V. DORGAN, 157 F.SUPP. 864. LIKEWISE, IN THE CASE OF UNITED STATES V. SMITH, 182 F.SUPP. 503 (1960), THE COURT HELD THAT NOTWITHSTANDING THAT THE DEFENDANT WAS IGNORANT OF THE FACT THAT HER HUSBAND, FROM WHOM SHE HAD BEEN INFORMALLY SEPARATED, WAS NO LONGER IN THE ARMY, THE GOVERNMENT WAS UNQUESTIONABLY ENTITLED TO RECOVER THE FAMILY ALLOWANCE PAYMENTS IMPROPERLY MADE TO HER.

UNDER THE REASONING IN THE ABOVE CASES THERE IS NO DOUBT THAT YOU ARE LIABLE TO MAKE REFUND BECAUSE YOU RECEIVED MONIES FROM THE GOVERNMENT TO WHICH YOU WERE NOT ENTITLED. THE FACT THAT YOUR FORMER HUSBAND, AS STATED BY YOU, FAILED TO MEET HIS LEGAL RESPONSIBILITY TO SUPPORT YOU AND YOUR CHILDREN--- A PERSONAL MATTER AS BETWEEN YOU AND HIM--- DOES NOT LESSEN YOUR OBLIGATION TO MAKE REFUND, NOR DOES IT CONSTITUTE A LEGAL BASIS FOR THIS OFFICE TO LOOK TO HIM FOR REPAYMENT. IT IS UNFORTUNATE THAT THE ARMY MADE AN ERROR IN PERMITTING THE ALLOTMENT PAYMENTS TO CONTINUE BEYOND THE MONTH IN WHICH MR. DUNLOP WAS DISCHARGED, BUT UNDER THE LAW WE ARE WITHOUT AUTHORITY TO WAIVE OR CANCEL YOUR INDEBTEDNESS AND WE ARE LEFT WITH NO ALTERNATIVE BUT TO PURSUE COLLECTION.

WE DO NOT WISH TO IMPOSE ANY UNDUE FINANCIAL HARDSHIP UPON YOU BY A REQUEST FOR AN IMMEDIATE PAYMENT OF THE FULL AMOUNT OF THE INDEBTEDNESS. IN VIEW OF YOUR FINANCIAL CIRCUMSTANCES WE WOULD BE AGREEABLE TO AN ACCEPTABLE PLAN FOR REGULAR MONTHLY PAYMENTS, ACCOMPANIED BY AN INITIAL PAYMENT, FOR THE LIQUIDATION OF THE INDEBTEDNESS WITHIN A REASONABLE TIME. PAYMENTS UNDER SUCH AN ARRANGEMENT SHOULD BE IN THE FORM OF BANK DRAFTS, CHECKS OR MONEY ORDERS MADE PAYABLE TO "U.S. GENERAL ACCOUNTING OFFICE" AND FORWARDED TO U.S. GENERAL ACCOUNTING OFFICE, P.O. BOX 2610, WASHINGTON 13, D.C. THE REFERENCE "Z 1016058" SHOULD BE SHOWN IN CONNECTION WITH EACH REMITTANCE.

IF, WITHIN 30 DAYS FROM THE DATE OF THIS LETTER, A REMITTANCE TOGETHER WITH THE PROPOSED FINANCIAL ARRANGEMENT IS NOT RECEIVED FROM YOU, WE WILL HAVE NO CHOICE UNDER PRESENT PROCEDURES BUT TO REFER THE MATTER TO THE HEAD OF THE AGENCY WHERE YOU ARE NOW EMPLOYED FOR ASSISTANCE IN THE COLLECTION OF THE AMOUNT DUE THE UNITED STATES.