B-158223, APR. 11, 1966

B-158223, APR. 11, 1966

TO MR. VERNON P. THOMAS:

THIS IS IN REPLY TO THE LETTER OF YOUR ATTORNEY MR. FRANKLIN E. N. WARREN, DATED NOVEMBER 22, 1965, APPEALING FROM OUR SETTLEMENT OF MAY 19, 1965, WHICH APPROVED THE COLLECTION ACTION TAKEN BY THE DEPARTMENT OF THE ARMY IN RECOVERING OVERPAYMENT OF LIVING QUARTERS ALLOWANCE (LQA) TO YOU.

WITHOUT DETAILING THE FACTS WHICH HAVE BEEN RECITED IN PREVIOUS CORRESPONDENCE A DETERMINATION WAS MADE BY THE FINANCE AND ACCOUNTING OFFICE, UNITED STATES ARMY, JAPAN, ON JANUARY 6, 1963, THAT YOU HAD BEEN OVERPAID $11,547.91 IN LQA BETWEEN MARCH 12, 1951, AND JANUARY 5, 1963. THIS DETERMINATION WAS BASED UPON THE FINDING THAT YOUR WIFE MEIKO KUSANO THOMAS, OWNED THE QUARTERS IN WHICH YOU AND SHE RESIDED. SINCE THAT DETERMINATION WAS INCONSISTENT WITH THE VIEWS EXPRESSED BY THE COMMANDER IN CHIEF, HEADQUARTERS, UNITED STATES ARMY, PACIFIC, WE REFERRED THE MATTER TO THE DEPARTMENT OF THE ARMY FOR CONSIDERATION. UNDER DATE OF MARCH 23, 1966, THE DEPARTMENT OF THE ARMY, OFFICE OF THE DEPUTY CHIEF OF STAFF FOR PERSONNEL, INFORMED US THAT THE FOLLOWING INTERPRETATION HAS BEEN MADE BY THE JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE ARMY:

" "LEGAL OWNERSHIP OF REAL PROPERTY UNDER THE LAW OF JAPAN IS EVIDENCED BY PUBLIC REGISTRATION OF THE PROPERTY. ALTHOUGH THE REGISTERED OWNER OF REAL PROPERTY IN JAPAN MAY GRANT FULL POSSESSION AND USE OF THE PROPERTY TO ANOTHER PERSON, HE REMAINS, NEVERTHELESS, THE LEGAL OWNER OF THAT PROPERTY. IT IS AN UNDISPUTED FACT THAT THE PROPERTY IN QUESTION WAS REGISTERED IN THE NAME OF MR. THOMAS' WIFE. ON THIS BASIS, IT IS THE OPINION OF THIS OFFICE, CONCURRED IN BY AN ADVISOR ON JAPANESE LAW AT THE LIBRARY OF CONGRESS, THAT MRS. THOMAS OWNED THE PROPERTY WITHIN THE MEANING OF JAPANESE LAW. THE SAME CONCLUSION MAY ALSO BE REACHED UNDER APPLICABLE CIVILIAN PERSONNEL REGULATIONS ON QUARTERS ALLOWANCES.'"

IN VIEW OF THE ABOVE AND IN THE ABSENCE OF CLEAR EVIDENCE TO THE CONTRARY WHICH WE DO NOT BELIEVE TO BE PRESENT IN THE INSTANT CASE, WE MUST CONCLUDE THAT YOUR WIFE WAS THE TRUE OWNER OF THE PROPERTY IN QUESTION WITHIN THE MEANING OF JAPANESE LAW AND WITHIN THE TERMS OF PERTINENT STATE DEPARTMENT REGULATIONS WHICH GOVERNED ARMY CIVILIAN PERSONNEL SERVING OVERSEAS, CPR T7, APPENDIX B, SECTION 3.61B (2), EFFECTIVE FEBRUARY 28, 1951.

THESE REGULATIONS ALSO PROVIDED:

"WHEN THE QUARTERS OCCUPIED BY AN OFFICER OR EMPLOYEE ARE OWNED BY HIMSELF OR HIS SPOUSE, OR BOTH, AN AMOUNT EQUAL TO ONE-TENTH OF HIS AND/OR HER PURCHASE PRICE OF SUCH QUARTERS SHALL BE CONSIDERED TO BE THE ANNUAL RATE OF HIS ESTIMATED EXPENSES FOR RENT.' IBID SECTION 3.62D. UNDER THE CIRCUMSTANCES YOUR ENTITLEMENT TO RENT WAS LIMITED TO ONE-TENTH OF THE PURCHASE PRICE OF THE QUARTERS. THE OVERPAYMENT PRESENTLY BEING COLLECTED REPRESENTS THE DIFFERENCE BETWEEN YOUR ENTITLEMENT AS SET FORTH ABOVE AND THE AMOUNT YOU ACTUALLY CLAIMED TO HAVE PAID FOR RENT AND UTILITIES.

COLLECTION OF INDEBTEDNESS OF PERSONNEL RESULTING FROM ERRONEOUS PAYMENT IS AUTHORIZED UNDER THE PROVISIONS OF SECTION 1 OF THE ACT OF JULY 15, 1954, 68 STAT. 482, 5 U.S.C. 46D.

ON THE BASIS OF THE FOREGOING OUR SETTLEMENT OF MAY 19, 1965, IS AND MUST BE SUSTAINED.