B-152181, SEP. 10, 1963

B-152181: Sep 10, 1963

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO LETTER OF AUGUST 1. IT APPEARS THAT THE MEMBER WAS PLACED ON TEMPORARY DISABILITY RETIRED LIST EFFECTIVE MAY 1. ANNUITY PAYMENTS WERE ERRONEOUSLY MADE TO HIS MEMBER'S WIDOW ON BEHALF OF THE FOUR CHILDREN AT THE RATE OF $103.20 PER MONTH. SUCH PAYMENTS WERE STOPPED WHEN IT WAS DISCOVERED THAT AN AWARD OF DEPENDENCY AND INDEMNITY COMPENSATION HAD BEEN MADE TO THE WIDOW. THIS AWARD WAS MADE ON SEPTEMBER 7. THE WIDOW WAS INFORMED THEREOF ON SEPTEMBER 10. THE LEGISLATIVE HISTORY OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN SHOWS THAT IT WAS NOT THE INTENTION OF THE CONGRESS TO PERMIT THE CHILDREN OF A MEMBER. TO RECEIVE AN ANNUITY IF HIS WIDOW IS ELIGIBLE FOR THE BENEFITS PROVIDED IN CHAPTER 13 (DEPENDENCY AND INDEMNITY COMPENSATION) OF TITLE 38.

B-152181, SEP. 10, 1963

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF AUGUST 1, 1963, FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING CONSIDERATION OF THE REQUEST FOR WAIVER OF RECOVERY OF CERTAIN ERRONEOUS ANNUITY PAYMENTS MADE TO MRS. VIRGINIA F. HAYDEN, WIDOW OF JAMES A. HAYDEN, JR., 978 80 88, CS1, USN, RETIRED (DECEASED), IN THE NET AMOUNT OF $1,134.12.

IT APPEARS THAT THE MEMBER WAS PLACED ON TEMPORARY DISABILITY RETIRED LIST EFFECTIVE MAY 1, 1962. ON APRIL 23, 1962, HE EXECUTED AN ELECTION UNDER THE PROVISIONS OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446, ELECTING OPTIONS (2)AND (4), IN ORDER TO PROVIDE AN ANNUITY FOR HIS FOUR MINOR CHILDREN AT THE RATE OF ONE-HALF OF HIS REDUCED RETIRED PAY. FOLLOWING HIS DEATH ON MAY 9, 1962, ANNUITY PAYMENTS WERE ERRONEOUSLY MADE TO HIS MEMBER'S WIDOW ON BEHALF OF THE FOUR CHILDREN AT THE RATE OF $103.20 PER MONTH, FROM MAY 1, 1962, TO MARCH 31, 1963. SUCH PAYMENTS WERE STOPPED WHEN IT WAS DISCOVERED THAT AN AWARD OF DEPENDENCY AND INDEMNITY COMPENSATION HAD BEEN MADE TO THE WIDOW, IN THE AMOUNT OF $144 PER MONTH, EFFECTIVE MAY 10, 1962, BY THE VETERANS ADMINISTRATION. THIS AWARD WAS MADE ON SEPTEMBER 7, 1962, UNDER CHAPTER 13 OF TITLE 38, U.S.C. AND THE WIDOW WAS INFORMED THEREOF ON SEPTEMBER 10, 1962.

THE LEGISLATIVE HISTORY OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN SHOWS THAT IT WAS NOT THE INTENTION OF THE CONGRESS TO PERMIT THE CHILDREN OF A MEMBER, HAVING SERVICE LIKE THE DECEASED MEMBER, TO RECEIVE AN ANNUITY IF HIS WIDOW IS ELIGIBLE FOR THE BENEFITS PROVIDED IN CHAPTER 13 (DEPENDENCY AND INDEMNITY COMPENSATION) OF TITLE 38, UNITED STATES CODE. SEE B-149110, JULY 16, 1962, 42 COMP. GEN. 44. THE TOTAL OVERPAYMENT TO MRS. HAYDEN AMOUNTED TO $1,135.20, LESS $1.08, REPRESENTING A REFUND OF DEDUCTION FROM THE RETIRED PAY OF THE MEMBER FOR THE PERIOD MAY 1 THROUGH MAY 9, 1962, OR A NET OVERPAYMENT IN THE AMOUNT OF $1,134.12.

UNDER 10 U.S.C. 1442 THERE NEED BE NO RECOVERY OF SUCH ERRONEOUS PAYMENTS WHEN, IN THE JUDGMENT OF THE SECRETARY CONCERNED AND THE COMPTROLLER GENERAL OF THE UNITED STATES,"THERE HAS BEEN NO FAULT BY THE PERSON TO WHOM THE AMOUNT WAS ERRONEOUSLY PAID AND RECOVERY WOULD BE CONTRARY TO THE PURPOSE OF THIS CHAPTER OR AGAINST EQUITY AND GOOD CONSCIENCE.'

IN 35 COMP. GEN. 401, IN CONSTRUING SUCH PROVISIONS, WE HELD THAT SOMETHING MORE THAN FREEDOM FROM FAULT MUST BE SHOWN BEFORE A BASIS EXISTS FOR EXERCISING A JUDGMENT AS TO WHETHER COLLECTION OF A PARTICULAR OVERPAYMENT OR ERRONEOUS PAYMENTS SHOULD BE WAIVED; THAT UNLESS IT CAN BE ESTABLISHED THAT COLLECTION OF THE OVERPAYMENTS WOULD WORK AN UNDUE HARDSHIP, OR SOME OTHER REASON CAN BE SHOWN AS TO WHY COLLECTION SHOULD NOT BE MADE, IT IS BELIEVED THAT NO PROPER BASIS EXISTS FOR EXERCISE OF THE WAIVER AUTHORITY.

IT IS OUR VIEW THAT THE RECORD CONTAINS SUFFICIENT INFORMATION FROM WHICH IT MAY BE CONCLUDED THAT COLLECTION WOULD WORK AN UNDUE HARDSHIP ON THE MINOR CHILDREN OF THE DECEASED SERVICEMAN CONTRARY TO THE PURPOSE OF THE LAW. ACCORDINGLY, IN THE LIGHT OF THE OTHER FACTS AND CIRCUMSTANCES, WE CONCUR IN YOUR JUDGMENT THAT RECOVERY OF THE ERRONEOUS PAYMENTS WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND SHOULD BE WAIVED IN THIS CASE.