B-149585, AUGUST 20, 1962, 42 COMP. GEN. 118

B-149585, AUGUST 20, 1962, 42 COMP. GEN. 118

QUARTERS ALLOWANCES - DEPENDENTS - ALLOTMENT CONTINUATION AFTER STATUTORY ELIMINATION - EVIDENCE A PROCEDURE TO CONTINUE CLASS Q ALLOTMENTS FOR ENLISTED MEMBERS OF THE UNIFORMED SERVICES IN PAY GRADES E-4 (WITH OVER 4 YEARS' SERVICE) THROUGH E-9, WITHOUT THEIR EXPRESS CONSENT AND WITHOUT THE MEMBER'S SIGNATURE, AFTER JANUARY 1, 1963, WHEN THE STATUTORY ALLOTMENT REQUIRED FOR ELIGIBILITY FOR QUARTERS ALLOWANCES ON ACCOUNT OF DEPENDENTS IS TERMINATED PURSUANT TO SECTION 3 (3) OF PUBLIC LAW 87-531, 50 U.S.C. APP. 2204 NOTE, MIGHT SUBJECT THE GOVERNMENT TO LIABILITY FOR ALLOTMENT DEDUCTIONS IF THE STATUTE SHOULD BE CONSTRUED AS AN AUTOMATIC ELIMINATION OF THE ALLOTMENT REQUIREMENTS AND, THEREFORE, THE BEST INTERESTS OF THE GOVERNMENT REQUIRE EVIDENCE SIGNED BY THE MEMBER OF HIS DESIRE TO CONTINUE HIS ALLOTMENTS.

TO THE SECRETARY OF THE NAVY, AUGUST 20, 1962:

REFERENCE IS MADE TO LETTER DATED JULY 27, 1962, FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING A DECISION WHETHER WE WOULD BE REQUIRED TO OBJECT TO THE ADOPTION BY THE NAVY AND MARINE CORPS OF A PROCEDURE UNDER WHICH CERTAIN CLASS Q ALLOTMENTS WOULD BE CONTINUED IN FORCE AFTER DECEMBER 1962 IN CASES OF ENLISTED MEMBERS IN PAY GRADES E 4 (OVER 4 YEARS' SERVICE) THROUGH E-9 UNLESS AND UNTIL THE ENLISTED MEMBERS CONCERNED REQUEST OTHERWISE. THE REQUEST FOR DECISION HAS BEEN ASSIGNED SUBMISSION NO. SS-N (MC) -668 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SECTION 302 (H) OF THE CAREER COMPENSATION ACT OF 1949 AS ADDED BY SECTION 4 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 37 U.S.C. 252 (H), PROVIDES THAT THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS "SHALL BE MADE ONLY FOR SUCH PERIOD AS THE ENLISTED MEMBER HAS IN EFFECT AN ALLOTMENT OF PAY NOT LESS THAN THE SUM OF BASIC ALLOWANCE FOR QUARTERS TO WHICH HE IS ENTITLED PLUS" THE ADDITIONAL AMOUNT SPECIFIED BY THAT SECTION "FOR THE SUPPORT OF THE DEPENDENT OR DEPENDENTS ON WHOSE ACCOUNT THE ALLOWANCE IS CLAIMED.' ON JANUARY 1, 1963, HOWEVER, THE STATUTORY ALLOTMENT REQUIREMENT FOR PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO ENLISTED MEMBERS WITH DEPENDENTS IN PAY GRADES E-4 (OVER 4 YEARS' SERVICE) AND ABOVE WILL BE ENTITLED TO A BASIC CLAUSE (3) OF SECTION 3 OF PUBLIC LAW 87 -531, APPROVED JULY 10, 1962, 50 U.S.C. APP. 2204 NOTE. THE STATUTORY ALLOTMENT REQUIREMENT WILL CONTINUE FOR ENLISTED MEMBERS IN PAY GRADES E-1 THROUGH E-4 (4 YEARS' OR LESS SERVICE). SEE CLAUSE (2) OF SECTION 3 OF THE SAME ACT. HOWEVER, ON AND AFTER JANUARY 1, 1963, ENLISTED MEN IN PAY GRADES E-44 (OVER 4 YEARS' SERVICE) AND ABOVE WILL BE ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS ON THE SAME BASIS AS OFFICERS.

THE UNDER SECRETARY SAYS THAT THERE ARE MANY THOUSANDS OF NAVY AND MARINE CORPS ENLISTED MEMBERS IN PAY GRADES E-4 THROUGH E-9 WHOSE DEPENDANTS ARE NOT PERMITTED TO ACCOMPANY THEM WHILE THEY ARE SERVING WITH UNITS OUTSIDE THE UNITED STATES AND ABOARD VESSELS AND THAT THE GREAT MAJORITY OF THESE MEMBERS WILL DESIRE TO CONTINUE THEIR ALLOTMENTS IN FORCE FOR THE SUPPORT OF THEIR DEPENDENTS. IT IS STATED THAT THE DEPARTMENT OF THE NAVY PROPOSES TO CONTINUE PAYING THESE ALLOTMENTS UNLESS AND UNTIL THE MEMBER CONCERNED REQUESTS THAT HIS ALLOTMENT BE TERMINATED OR CHANGED. IT IS FURTHER STATED THAT IN ADDITION TO GIVING THE PROVISIONS OF PUBLIC LAW 87- 531 WIDE DISSEMINATION, THE NAVY PROPOSES TO REQUIRE THAT EVERY AFFECTED ENLISTED MEMBER BE GIVEN A WRITTEN STATEMENT EXPLAINING THAT HE IS NOT REQUIRED TO CONTINUE HIS CLASS Q ALLOTMENT AFTER DECEMBER 1962; THAT IF HE DESIRES HIS ALLOTMENT TO BE STOPPED OR CHANGED TO A DIFFERENT AMOUNT, HE SHOULD SO REQUEST IN THE ESTABLISHED MANNER; AND THAT IF HE DESIRES HIS ALLOTMENT TO BE CONTINUED IN EFFECT, NO ACTION ON HIS PART IS REQUIRED. SIMILAR STATEMENT WILL BE INCLUDED WITH THE ALLOTMENT CHECKS MAILED TO THE DEPENDENTS.

THE UNDER SECRETARY'S LETTER POINTS OUT THAT NAVY AND MARINE CORPS DISBURSING OFFICERS WILL HAVE IMPOSED ON THEM DURING THE MONTHS OF DECEMBER 1962 AND JANUARY 1963 A PARTICULARLY HEAVY WORKLOAD IN CONNECTION WITH THE IMPLEMENTATION OF PUBLIC LAW 87-531, AND IT IS DESIRED THAT EFFECTIVE STEPS BE TAKEN TO ELIMINATE UNESSENTIAL PAPERWORK AND KEEP MONETARY ERRORS TO A MINIMUM. THE LETTER STATES THAT IF IT IS HELD THAT THE ALLOTMENTS IN QUESTION ARE TERMINATED BY OPERATION OF LAW ON JANUARY 1, 1963, IT CAN BE EXPECTED THAT THE EXECUTION, TRANSMISSION AND PROCESSING OF THE LARGE VOLUME OF AUTHORIZATIONS WILL RESULT IN A SUBSTANTIAL NUMBER OF ALLOTMENT CHECKS NOT BEING TIMELY ISSUED OR BEING ISSUED IN INCORRECT AMOUNTS.

THE UNDER SECRETARY'S LETTER CITES SEVERAL OF OUR DECISIONS INVOLVING DEPENDENCY AND CLASS Q ALLOTMENTS, AND THE VIEW IS EXPRESSED THAT, EXCEPT WHERE AN ALLOTMENT HAS BEEN REGISTERED BY DIRECTION OF THE SECRETARY OF THE NAVY UNDER THE AUTHORITY VESTED IN HIM BY SECTION 6 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 50 U.S.C. APP. 2206--- WHICH AUTHORIZES THE SECRETARY TO ESTABLISH AN ALLOTMENT WITHOUT THE CONSENT OF THE MEMBER--- THE ESTABLISHMENT OF A CLASS Q ALLOTMENT IS A VOLUNTARY ACT OF THE MEMBER. ON THE BASIS THAT THE EXISTING CLASS Q ALLOTMENT AUTHORIZATION WAS THE VOLUNTARY ACT OF THE MEMBER, THE NAVY FEELS THAT THE GENERAL REQUIREMENT FOR A VOLUNTARY ALLOTMENT HAS BEEN MET AND THUS CONSTITUTES AUTHORITY TO CONTINUE THE EXISTING ALLOTMENT AFTER DECEMBER 1962 UNLESS AND UNTIL THE MEMBER REQUESTS THAT HIS ALLOTMENT BE TERMINATED OR CHANGED.

A CLASS Q ALLOTMENT, SUCH AS ESTABLISHED BY THE SECRETARY OF THE NAVY WITHOUT THE CONSENT OF THE MEMBER, HAS BEEN CONSIDERED AS BEING IN THE NATURE OF A COMPULSORY ALLOTMENT (SEE GENERALLY 34 COMP. GEN. 164, 166, AND 37 COMP. GEN. 151). IN SUCH CASES IT IS STATED IN THE UNDER SECRETARY'S LETTER THAT THE MEMBER WOULD BE REQUIRED UNDER PUBLIC LAW 87- 531 TO INDICATE IN WRITING WHETHER HE DESIRES TO CONTINUE, CHANGE OR TERMINATE SUCH ALLOTMENT. AS A CONDITION TO THE ENTITLEMENT TO A BASIC ALLOWANCE FOR QUARTERS, THE EXISTING STATUTE SPECIFICALLY REQUIRES THAT THE ENLISTED MEMBER HAVE "IN EFFECT AN ALLOTMENT OF PAY.' IN VIEW OF THIS CONDITION, IT IS AT LEAST ARGUABLE THAT A CLASS Q ALLOTMENT ESTABLISHED UPON THE AUTHORIZATION OF A MEMBER IS NOT ENTIRELY "VOLUNTARY" SINCE ONE DEFINITION OF THAT WORD IS "UNCONSTRAINED BY INTERFERENCE; UNIMPELLED BY ANOTHER'S INFLUENCE; SPONTANEOUS * * *.' AS STATED ABOVE, HOWEVER, THIS STATUTORY REQUIREMENT FOR ALLOTMENTS IS EXPRESSLY REMOVED FOR MEMBERS IN PAY GRADES E-4 (OVER 4 YEARS' SERVICE) AND ABOVE, BY THE PROVISIONS OF PUBLIC LAW 87-531, EFFECTIVE JANUARY 1, 1963.

THUS THE CONDITIONS UNDER WHICH CERTAIN CLASS Q ALLOTMENTS WERE AUTHORIZED ARE BEING CHANGED BY THE GOVERNMENT AND IT WOULD BE ENTIRELY TENABLE TO VIEW SUCH UNILATERAL ACTION BY THE GOVERNMENT AS AN EFFECTIVE ABROGATION OF THOSE ALLOTMENTS. SOME OF THE EXPRESSIONS IN THE REQUEST FOR DECISION ARE NOT INCONSISTENT WITH THAT VIEW INSOFAR AS THEY IMPLY THAT THE NAVY AND MARINE CORPS WOULD AGREE THAT THE CONTINUATION OF THE CLASS Q ALLOTMENTS INVOLVED WOULD NOT BE PROPER IF THE ALLOTTERS WERE NOT NOTIFIED OF THEIR PROPOSED CONTINUANCE AND GIVEN AN OPPORTUNITY TO DISCONTINUE THEM. IF SUCH NOTIFICATION IS NECESSARY THEN IT WOULD SEEM TO FOLLOW THAT SOMETHING IN THE NATURE OF AN EXPRESSION BY THE ENLISTED MAN OF A DESIRE THAT HIS ALLOTMENT BE CONTINUED WOULD BE NECESSARY. BELIEVE THE BEST WAY TO RECORD THAT EXPRESSION WOULD BE TO OBTAIN HIS SIGNATURE ON THE PAPER EVIDENCING IT.

ALLOTMENTS OF PAY ARE SIMPLY ORDERS ON THE PAYMASTER IN THE NATURE OF POWERS OF ATTORNEY AUTHORIZING THE PAY TO BE PAID TO CERTAIN DESIGNATED PERSONS WHO ARE THEREBY EMPOWERED TO RECEIVE AND RECEIPT FOR THE SAME. COMP. DEC. 654. THE SECRETARY OF THE NAVY IS AUTHORIZED BY SECTIONS 6142 AND 6146 OF TITLE 19, U.S. CODE, TO PERMIT NAVY AND MARINE CORPS PERSONNEL TO REGISTER ALLOTMENTS FROM THEIR PAY. SIMILAR AUTHORITY FOR THE ARMY AND AIR FORCE IS CONTAINED IN SECTIONS 3689 AND 8689 OF TITLE 10, U.S.C. REGULATIONS GOVERNING REGISTERING OF ALLOTMENTS FOR NAVY PERSONNEL ARE CONTAINED IN PART D, CHAPTER 4, NAVY COMPTROLLER MANUAL. ASSUMING THAT THE EXISTING AUTHORIZATION ESTABLISHING A CLASS Q ALLOTMENT MEETS THE REQUIREMENTS OF THOSE PROVISIONS OF LAW FOR VOLUNTARY ALLOTMENTS, IT IS NEVERTHELESS QUITE DOUBTFUL THAT THOSE PROVISIONS REASONABLY MAY BE CONSIDERED AS CONSTITUTING AUTHORITY FOR AUTOMATICALLY CONTINUING THE CLASS Q ALLOTMENTS IN EFFECT AFTER THE STATUTORY REQUIREMENT FOR SUCH ALLOTMENTS HAS TERMINATED AND OTHER CONDITIONS EXISTING WHEN SUCH ALLOTMENTS WERE AUTHORIZED HAVE BEEN CHANGED BY THE GOVERNMENT. THE CLASS Q ALLOTMENT WAS ESTABLISHED FOR THE SPECIFIC PURPOSE OF MEETING THE REQUIREMENTS OF THE 1950 ACT. IN THIS CONNECTION, PARAGRAPH 1044365 OF THE MENTIONED NAVY COMPTROLLER MANUAL PROVIDES IN PART THAT A CHANGE IN AN ALLOTMENT FROM ONE PURPOSE TO ANOTHER PURPOSE MAY BE ACCOMPLISHED ONLY BY SUBMITTING AN ALLOTMENT AUTHORIZATION (NAV-COMPT FORM 545) STOPPING THE EXISTING ALLOTMENT AND REGISTERING A NEW ALLOTMENT. WHILE IT IS PROPOSED TO NOTIFY EACH INDIVIDUAL MEMBER THAT IF HE DESIRES TO CONTINUE IN FORCE HIS CLASS Q ALLOTMENT NO ACTION ON HIS PART IS REQUIRED, SUCH NOTIFICATION WOULD BE DIFFICULT OF PROOF, WITHOUT THE MEMBER'S SIGNATURE EVIDENCING ITS RECEIPT, AND IT MIGHT NOT PREVENT THE MEMBER FROM SUCCESSFULLY ALLEGING AT A LATER DATE THAT HE WAS NOT APPRISED OF HIS RIGHT IN THIS RESPECT AND IS ENTITLED TO REFUND OF THE CLASS Q ALLOTMENT DEDUCTIONS ON THE BASIS THAT THEY WERE UNAUTHORIZED AFTER THE EFFECTIVE DATE OF PUBLIC LAW 87-531. THE COURT OF CLAIMS IN THE CASE OF MELVILLE V. UNITED STATES, 23 CT.CL. 74, HELD THAT THE SECRETARY OF THE NAVY HAD NO POWER TO INCREASE A NAVAL OFFICER'S ALLOTMENT WITHOUT HIS CONSENT AND, THEREFORE, HE WAS ENTITLED TO RECOVER THE AMOUNT WITHHELD FROM HIS PAY ON ACCOUNT OF SUCH ALLOTMENT PAYMENTS.

WHILE PUBLIC LAW 87-531 DOES NOT EXPRESSLY PROVIDE FOR TERMINATING THE CLASS Q ALLOTMENTS THAT ENLISTED MEMBERS IN PAY GRADES E-4 (OVER 4 YEARS' SERVICE) THROUGH E-9 HAVE IN EFFECT TO SUPPORT THE PAYMENT OF QUARTERS ALLOWANCE, IT WILL ELIMINATE THE REQUIREMENT FOR SUCH ALLOTMENTS BY THESE MEMBERS IN ORDER TO RECEIVE QUARTERS ALLOWANCE FOR THEIR DEPENDENTS. IS QUITE POSSIBLE THAT THE COURTS WOULD VIEW THE ELIMINATION OF SUCH REQUIREMENTS AS AUTOMATICALLY TERMINATING THE AUTHORITY TO PAY THE ALLOTMENT IN THE ABSENCE OF A SPECIFIC REQUEST OR AUTHORIZATION BY THE MEMBER TO CONTINUE THE ALLOTMENT IN EFFECT OR MAKE A NEW ALLOTMENT. VIEW OF THE POSSIBILITY OF SUCH CONSTRUCTION AND THE LIABILITY OF THE GOVERNMENT FOR ALLOTMENT DEDUCTIONS PREVIOUSLY MADE, IT IS OUR VIEW THAT THE PROPOSAL TO CONTINUE CERTAIN CLASS Q ALLOTMENTS AFTER DECEMBER 1962 WITHOUT THE EXPRESS CONSENT OF THE MEMBERS CONCERNED, EVIDENCED BY THE MEMBER'S SIGNATURE IN EACH CASE, WOULD BE OF DOUBTFUL LEGALITY, AT LEAST, AND WOULD NOT BE IN THE BEST INTEREST OF THE GOVERNMENT. ACCORDINGLY, WE WOULD BE REQUIRED TO OBJECT TO SUCH PROPOSAL. IN VIEW OF THE REPRESENTATIONS MADE IN THIS MATTER, IT IS REGRETTED THAT WE ARE UNABLE TO FURNISH A MORE FAVORABLE REPLY.