B-150920, MAR. 19, 1963

B-150920, MAR. 19, 1963

TO MR. CATALINO S. MORALES:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 4, 1962, FORWARDED BY YOUR LETTER OF JANUARY 31, 1963, IN WHICH YOU REQUEST RECONSIDERATION OF ACTION TAKEN NOVEMBER 9, 1961, IN WAIVING YOUR INDEBTEDNESS TO THE UNITED STATES FOR ERRONEOUS PAYMENT OF FAMILY ALLOWANCES UNDER THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, CH. 443, 56 STAT. 381, AS AMENDED, IN THE AMOUNT OF $275.60. YOU STATE THAT UNDER PUB.L. 85 217, YOU WERE ENTITLED TO $410.40 BUT THAT SAID ENTITLEMENT WAS USED TO REDUCE YOUR TOTAL INDEBTEDNESS OF $686 TO $275.60, AND THEREFORE THAT $275.60 WAS THE ONLY AMOUNT CONSIDERED BY THE WAIVER COMMITTEE. YOU QUOTED THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, AN ACT BARRING CLAIMS AGAINST THE UNITED STATES IF NOT RECEIVED IN THIS OFFICE WITHIN 10 YEARS FROM THE DATE OF THEIR ACCRUAL, AND STATE THAT, SINCE YOU WERE NOT NOTIFIED OF THE INDEBTEDNESS UNTIL YOU APPLIED FOR THE BENEFITS PROVIDED BY PUB.L. 85 217, THE GOVERNMENT SHOULD BE EXCLUDED BY THE TERMS OF THE BARRING ACT FROM SETTING OFF SUCH BENEFITS AGAINST YOUR INDEBTEDNESS.

RECORDS SHOW THAT YOUR INDEBTEDNESS AROSE AS THE RESULT OF AN ERRONEOUS PAYMENT OF FAMILY ALLOWANCES IN THE AMOUNT OF $686, BASED ON AN APPLICATION FOR FAMILY ALLOWANCES FILED NOVEMBER 25, 1945, IN BEHALF OF YOUR WIFE AND CHILDREN. PAYMENT OF $686 WAS MADE FOR THE GOVERNMENT'S CONTRIBUTION OF $98 A MONTH TO FAMILY ALLOWANCE FOR THE PERIOD APRIL 1 TO OCTOBER 31, 1945, BASED ON SERVICE IN THE ARMY OF THE UNITED STATES FROM APRIL 15, 1945. UNDER THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, AUTHORITY FOR PAYMENT OF FAMILY ALLOWANCE FOR AN ENLISTED MAN'S DEPENDENTS FOR A PERIOD PRIOR TO THE MONTH IN WHICH THE APPLICATION WAS FILED EXISTED ONLY WHERE THE ENLISTED MAN WAS IN THE ARMY OF THE UNITED STATES ON JUNE 23, 1942. YOU WERE A MEMBER OF THE PHILIPPINE SCOUTS ON JUNE 23, 1942, AND NOT AN ENLISTED MAN AS DEFINED IN THE ACT. THEREFORE, THE PAYMENT OF $686 FOR RETROACTIVE FAMILY ALLOWANCES WAS UNAUTHORIZED.

AS THE RESULT OF A CLAIM FOR ADJUSTMENT OF PAY UNDER THE PROVISIONS OF PUB.L. 85-217, APPROVED AUGUST 29, 1957, THE AMOUNT OF $410.40 WAS FOUND DUE YOU BY THE DEPARTMENT OF THE ARMY AND USED TO PARTIALLY OFFSET THE OVERPAYMENT, LEAVING A BALANCE OF $275.60 DUE THE UNITED STATES.

BY LETTERS DATED FEBRUARY 23 AND SEPTEMBER 21, 1960, YOU REQUESTED WAIVER OF THE INDEBTEDNESS UNDER THE PROVISIONS OF SECTION 13, DEPENDENTS ASSISTANCE ACT OF 1950, 50 U.S.C. APP. 2213. SUCH ACTION WAS TAKEN AND ON NOVEMBER 9, 1961, YOU WERE ADVISED THAT THE BALANCE OF YOUR INDEBTEDNESS IN THE AMOUNT OF $275.60 WAS WAIVED.

RESPECTING YOUR CONTENTION THAT THE SETOFF SHOULD BE BARRED BY THE STATUTE OF LIMITATIONS, IT IS AN ESTABLISHED RULE THAT THERE MUST BE A SPECIFIC STATUTORY ENACTMENT BEFORE THE UNITED STATES IS BARRED BY A STATUTE OF LIMITATIONS, 17 COMP. GEN. 25; 53 C.J.S., LIM. OF ACTIONS, SECTION 15. THE ACT OF OCTOBER 9, 1940, IS SPECIFICALLY DESIGNATED AS APPLYING TO CLAIMS AGAINST THE UNITED STATES AND CANNOT OPERATE TO LIMIT THE GOVERNMENT IN ITS ACTIONS TO COLLECT SUMS DUE TO IT. THE DEPARTMENT OF THE ARMY REPORTED THAT YOU WERE ADVISED OF YOUR INDEBTEDNESS ON OCTOBER 24, 1949, IN REPLY TO A CLAIM FOR ADDITIONAL FAMILY ALLOWANCES FOR A SON FROM APRIL 1945. THE INDEBTEDNESS CONSISTED OF ONLY THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE PAYMENTS. AFTER FINAL NOTICE FROM THE DEPARTMENT OF THE ARMY DATED APRIL 6, 1952, A REQUEST FOR REVIEW WAS RECEIVED FROM YOU. SUBSEQUENTLY, YOUR CLAIM FOR BACK PAY UNDER THE 1957 ACT RESULTED IN FINDING THE AMOUNT OF $410.40 DUE YOU, WHICH WAS USED TO OFFSET A PORTION OF THE OVERPAYMENT AND COLLECTION ACTION WAS RESUMED FOR THE BALANCE OF $275.60. FOLLOWING THIS, THE WAIVER ACTION REQUESTED IN YOUR ABOVE LETTERS TO THE DEPARTMENT OF THE ARMY WAS TAKEN AND YOU WERE ADVISED THAT THE BALANCE OF YOUR INDEBTEDNESS IN THE AMOUNT OF $275.60 WAS WAIVED. THE CREDIT OF $410.40 ACCRUED AND WAS APPLIED IN SETOFF BEFORE WAIVER ACTION WAS REQUESTED BY YOU.

ACTION TO WAIVE AN INDEBTEDNESS COVERED BY 50 U.S.C. APP. 2213 IS TAKEN BY THE GENERAL ACCOUNTING OFFICE ON RECOMMENDATION OF THE HEAD OF THE DEPARTMENT CONCERNED. YOU WERE ADVISED BY LETTER DATED JANUARY 26, 1962, THAT THE COLLECTION ACTION TAKEN BY THE DEPARTMENT OF THE ARMY IN SETTING OFF THE AMOUNT OF $410.40 WAS MADE PRIOR TO THE DATE WAIVER ACTION WAS TAKEN BY THIS OFFICE, AND THEREFORE THAT THERE WAS AT THAT TIME AN INDEBTEDNESS OF ONLY $275.60 TO BE CONSIDERED BY THE WAIVER COMMITTEE AND THE WAIVER NECESSARILY WAS EFFECTIVE ONLY IN THE REDUCED AMOUNT. YOU WERE FURTHER ADVISED THAT WAIVER OF RECOVERY OF ERRONEOUS PAYMENTS OR OVERPAYMENTS DOES NOT APPLY TO ANY AMOUNT ALREADY RECOVERED PRIOR TO THE WAIVER AND THAT SUCH AMOUNTS PREVIOUSLY RECOVERED MAY NOT BE REFUNDED.

THE ACTION TAKEN BY THIS OFFICE ON NOVEMBER 9, 1961, WAS PROPER. THE ADVICE CONTAINED IN GENERAL ACCOUNTING OFFICE LETTER OF JANUARY 26, 1962, WAS CORRECT AND IS SUSTAINED.