B-144264, OCT. 31, 1960

B-144264, OCT. 31, 1960

TO MR. BERNARD E. O-CONNOR:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 3, 1960, CONCERNING THE GOVERNMENT'S CLAIM AGAINST YOU FOR $135.87, WHICH WAS REPORTED TO US BY THE DEPARTMENT OF THE NAVY AS THE UNCOLLECTED PORTION OF THE OVERPAYMENT RESULTING FROM ERRONEOUS CREDITS OF BASIC ALLOWANCE FOR QUARTERS, AT THE RATE OF $67.50 A MONTH, MADE TO YOUR PAY ACCOUNT FOR THE PERIOD FROM AUGUST 1, 1950, TO JUNE 30, 1951, WHILE YOU WERE SERVING AS AN ENLISTED MAN IN THE U.S. NAVY.

ALTHOUGH THE APPLICABLE PROVISIONS OF LAW PREVIOUSLY HAVE BEEN SET OUT IN VARIOUS LETTERS WRITTEN TO YOU BY OUR OFFICE, THEY WILL BE REPEATED HERE FOR YOUR READY REFERENCES. THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO ENLISTED MEMBERS OF THE UNIFORMED SERVICES WITH DEPENDENTS IS GOVERNED BY SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, AS AMENDED BY THE PROVISIONS OF THE DEPENDENTS ASSISTANCE ACT OF 1950, APPROVED SEPTEMBER 8, 1950, 64 STAT. 794. THE LATTER ACT, INSOFAR AS IT RELATES TO ENLISTED MEN OF THE NAVY, PROVIDES THAT THE ENTITLEMENT TO THE BASIC ALLOWANCE FOR QUARTERS PROVIDED FOR BY THE ACT SHALL BE SUBSTANTIATED IN SUCH MANNER AND IS ACCORDANCE WITH SUCH REGULATIONS AS THE SECRETARY OF THE NAVY MAY PRESCRIBE; THAT THE DEPENDENCY OF A FATHER OR A MOTHER SHALL BE DETERMINED ON THE BASIS OF AN AFFIDAVIT SUBMITTED BY SUCH FATHER OR MOTHER, AND SUCH OTHER EVIDENCE AS THE SECRETARY MAY DEEM NECESSARY UNDER SUCH REGULATIONS AS THE SECRETARY MAY PRESCRIBE; AND THAT NO FATHER OR MOTHER FOR WHOM THE ALLOWANCE IS CLAIMED SHALL BE DEEMED DEPENDENT UNLESS THE ENLISTED MEMBER CLAIMING SUCH DEPENDENCY HAS PROVIDED OVER ONE-HALF OF THE SUPPORT OF SUCH FATHER OR MOTHER FOR SUCH PERIOD OF TIME AS THE SECRETARY MAY PRESCRIBE.

SECTION 10 OF THAT ACT, 64 STAT. 796, PROVIDES THAT THE SECRETARY IS AUTHORIZED TO PRESCRIBE SUCH REGULATIONS FOR THE ADMINISTRATION OF THE ACT AS MAY BE DEEMED NECESSARY TO ENABLE HIM TO CARRY OUT ITS PROVISIONS AND THAT ALL DETERMINATIONS, INCLUDING DETERMINATIONS OF DEPENDENCY, SHALL BE MADE BY THE SECRETARY OR SUCH PERSON OR PERSONS AS HE MAY DESIGNATE. SECTION 11 OF THE ACT, 64 STAT. 797, PROVIDES THAT ANY DETERMINATIONS MADE UNDER THE ACT 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. FURTHER PROVIDES THAT THE SECRETARY MAY AT ANY TIME ON THE BASIS OF NEW EVIDENCE OR FOR OTHER GOOD CAUSE RECONSIDER OR MODIFY ANY DETERMINATION.

THE FACTS CONCERNING YOUR CASE WHICH THE DEPARTMENT OF THE NAVY REPORTED TO US ARE SET FORTH IN A REPORT DATED APRIL 14, 1960, WHICH WE RECEIVED FROM THE U.S. NAVY FINANCE CENTER, CLEVELAND, OHIO. IT IS THERE REPORTED THAT BY APPLICATION OF OCTOBER 16, 1950, TO THE BUREAU OF NAVAL PERSONNEL, YOU CLAIMED THE BASIC ALLOWANCE FOR QUARTERS IN BEHALF OF YOUR MOTHER, FROM AUGUST 1, 1950. IT APPEARS THAT ON THE BASIS OF SUCH APPLICATION A TENTATIVE DETERMINATION OF DEPENDENCY WAS MADE AND THE BASIC ALLOWANCE FOR QUARTERS WAS ENTERED AS A CREDIT ON YOUR PAY RECORD CARD, EFFECTIVE AUGUST 1, 1950. AN AFFIDAVIT SENT TO YOUR MOTHER ON FEBRUARY 27, 1951, WAS NOT RETURNED. THE AFFIDAVIT SENT TO HER ON AUGUST 3, 1951, WAS COMPLETED BY HER ON AUGUST 20, 1951, BUT THE DEPARTMENT OF THE NAVY DETERMINED THAT THE INFORMATION FURNISHED BY HER IN THAT AFFIDAVIT DID NOT ESTABLISH HER DEPENDENCY UPON YOU FOR MORE THAN ONE-HALF OF HER SUPPORT. ACCORDINGLY, YOUR APPLICATION WAS DISAPPROVED BY THE BUREAU OF NAVAL PERSONNEL ON OCTOBER 16, 1951. PRIOR TO THE FINAL ACTION BY THE BUREAU OF NAVAL PERSONNEL, YOU APPLIED TO THE FAMILY ALLOWANCE ACTIVITY, CLEVELAND, OHIO, ON FEBRUARY 11, 1951, FOR BASIC ALLOWANCE FOR QUARTERS IN BEHALF OF YOUR MOTHER, CLAIMED FROM DECEMBER 1, 1950. THE AFFIDAVIT SENT TO YOUR MOTHER ON APRIL 14, 1951, WAS NOT RETURNED AND YOUR APPLICATION WAS, THEREFORE, DISAPPROVED BY THE FAMILY ALLOWANCE ACTIVITY ON JULY 26, 1951. IN YOUR LETTER OF SEPTEMBER 27, 1951, YOU REQUESTED RECONSIDERATION OF YOUR APPLICATION. AFFIDAVITS WERE SENT TO YOUR MOTHER ON JANUARY 10, 1952, AND ON FEBRUARY 27, 1952. THOSE AFFIDAVITS WERE NOT RETURNED TO THE DEPARTMENT OF THE NAVY AND ON MAY 9, 1952, THE DISAPPROVAL WAS SUSTAINED. WE ARE NOT ABLE TO FURNISH YOU A PHOTOCOPY OF ANY OFFICIAL DOCUMENT EVIDENCING THE DISAPPROVAL BY THE DEPARTMENT OF THE NAVY OF YOUR APPLICATION, OR OF ANY OF THE DOCUMENTS SUBMITTED BY YOU OR YOUR MOTHER IN CONNECTION WITH YOUR CLAIM FOR THE QUARTERS ALLOWANCE ON HER ACCOUNT, SINCE WE HAVE NO SUCH DOCUMENTS IN OUR FILES.

IN VIEW OF SUCH DISAPPROVAL, YOU PROPERLY WERE CHARGEABLE WITH THE AMOUNTS CREDITED TO YOUR PAY ACCOUNT AS BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD FROM AUGUST 1, 1950, TO JUNE 30, 1951. THE DEPARTMENT OF THE NAVY REPORTED TO US THAT IN THE ADJUSTMENT OF YOUR ACCOUNT ON SUCH BASIS IT WAS DETERMINED THAT YOU ARE INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $135.87. SINCE THE DEPENDENCY OF YOUR MOTHER IS THE PRINCIPAL POINT AT ISSUE IN THIS CASE AND SINCE THE LAW SPECIFICALLY PROVIDES THAT DETERMINATIONS OF DEPENDENCY BY THE SECRETARY OF THE NAVY, OR SUCH PERSONS AS HE MAY DESIGNATE, ARE FINAL AND CONCLUSIVE SO FAR AS ENLISTED MEN OF THE NAVY ARE CONCERNED, WE HOPE THAT YOU WILL UNDERSTAND THAT A PERSONAL INTERVIEW IN OUR OFFICE CONCERNING THIS MATTER WOULD SERVE NO USEFUL PURPOSE.

SINCE THE DETERMINATIONS OF THE SECRETARY OF THE NAVY AND HIS DESIGNEES ARE FINAL AND CONCLUSIVE ON OUR OFFICE, AND SINCE THE DEPARTMENT OF THE NAVY HAS DETERMINED THAT YOUR MOTHER WAS NOT DEPENDENT UPON YOU FOR HER CHIEF SUPPORT DURING THE PERIOD YOU RECEIVED A QUARTERS ALLOWANCE ON HER ACCOUNT, WE FIND NO BASIS FOR CANCELLATION OF THE GOVERNMENT'S CLAIM AGAINST YOU OR FOR REFUND OF THE AMOUNTS PREVIOUSLY COLLECTED FROM YOU. YOU ARE FURTHER ADVISED THAT, AS PROPOSED BY YOU, THE INDEBTEDNESS MAY BE LIQUIDATED BY THE THREE PAYMENTS, TO BE MADE AS FOLLOWS: (1) $45 BEFORE NOVEMBER 1, 1960; (2) $45 BEFORE FEBRUARY 1, 1961; AND (3) $45.87 BEFORE MAY 1, 1961. SUCH PAYMENTS SHOULD BE MADE BY CHECK OR MONEY ORDER, PAYABLE TO "U.S. GENERAL ACCOUNTING OFFICE" AND FORWARDED TO U.S. GENERAL ACCOUNTING OFFICE, POST OFFICE BOX 2610, WASHINGTON 13, D.C., REFERRING TO "DW-Z-2074669-WCP-5.'