B-162696, JAN. 29, 1968

B-162696, JAN. 29, 1968

ARMED SERVICES - CLASS Q ALLOTMENT - CHECKS MAILED TO OTHER THAN LAWFUL WIFE DECISION TO ARMY FINANCE OFFICER CONCERNING CLAIM OF RETIRED MEMBER'S FIRST WIFE FOR CLASS Q ALLOTMENT CHECKS. SINCE MEMBER HAD NO INTENTION OF HAVING HIS LAWFUL WIFE RECEIVE MONTHLY CLASS Q ALLOTMENT CHECKS, BUT INTENDED ANOTHER TO RECEIVE THEM, A VALID ALLOTMENT WAS NOT ESTABLISHED IN FIRST WIFE'S FAVOR AND SHE IS NOT ENTITLED TO PROCEEDS OF THE CHECKS WHICH THE GOVT. INDUCED TO ISSUE PURSUANT TO THE MEMBER'S FRAUDULENT APPLICATION. THE FACT THAT THE WIFE RECEIVED 3 CHECKS DOES NOT MAKE THE ALLOTMENT VALID SINCE THOSE CHECKS WERE NOT MAILED TO HER EITHER UPON THE MEMBER'S OR HER APPLICATION BUT WERE DELIVERED TO HER BY THE MEMBER'S MOTHER CONTRARY TO THE MEMBER'S INTENTION.

TO FINANCE OFFICER:

REFERENCE IS MADE TO LETTER DATED SEPTEMBER 27, 1967, FILE REFERENCE FINC BURKE, THOMAS E., RA 6 841 953, FROM THE EXECUTIVE OFFICER, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, ADVISING OF CURRENT PRESINDENTIAL INQUIRY FROM MRS. RUTH T. BURKE, CONCERNING 57 CLASS Q ALLOTMENT CHECKS WHICH WERE DRAWN TO HER ORDER DURING THE PERIOD MARCH 8, 1951, TO MAY 1, 1956, BUT NEGOTIATED BY SOMEONE ELSE, AND REQUESTING THAT A DETERMINATION BE MADE AS TO WHETHER SHE SHOULD BE PAID THE AMOUNT THEREOF.

OUR FILE SHOWS THAT THE ENLISTED MEMBER CONCERNED, THOMAS E. BURKE, NOW RETIRED, REGISTERED A CLASS Q ALLOTMENT, EFFECTIVE FEBRUARY 1, 1951, IN THE NAME OF HIS DEPENDENT WIFE, RUTH T. BURKE, WHOM HE HAD MARRIED ON SEPTEMBER 23, 1949, AND WHO THEN LIVED AND STILL LIVES IN PHILADELPHIA, PENNSYLVANIA, BUT DIRECTED THAT THE CHECKS BE MAILED TO 3500-1/2 FOURTH AVENUE, COLUMBUS, GEORGIA, WHERE VIRGINIA ALICE BURKE TO WHOM HE WAS BIGAMOUSLY MARRIED RESIDED. CONSEQUENTLY, NINE CHECKS OF $147.50 EACH ISSUED ON HIS ALLOTMENT ACCOUNT COVERING THE PERIOD FROM MARCH 8 TO OCTOBER 31, 1951, AND WERE MAILED TO THAT ADDRESS. EFFECTIVE NOVEMBER 1, 1951, THE ALLOTMENT WAS DECREASED TO $127.50 BECAUSE OF THE MEMBER'S REDUCTION IN GRADE; HOWEVER, RUTH T. BURKE'S ADDRESS ON THE PERTINENT DOCUMENT WAS SHOWN AS 2329 SOUTH FRONT STREET, PHILADELPHIA, PENNSYLVANIA (ACTUALLY THE ADDRESS OF THE MEMBER'S MOTHER) AND AS A RESULT FOUR CHECKS (DECEMBER 4, 1951 TO MARCH 1, 1952) WERE DRAWN AND MAILED TO THAT ADDRESS.

THE CHECK FOR APRIL 1, 1952, WAS DRAWN AND MAILED TO 2908 TILLES AVENUE, FORT SMITH, ARKANSAS, APPARENTLY IN ACCORDANCE WITH A CHANGE OF ADDRESS REQUESTED IN A LETTER DATED JULY 16, 1951, WRITTEN BY VIRGINIA ALICE BURKE BUT SIGNED "MRS. RUTH T. BURKE.' ON THE BASIS OF A REQUEST BY THE MEMBER FOR A CHANGE OF ADDRESS, EFFECTIVE APRIL 1, 1952, TO 2100 NORTH J. STREET, FORT SMITH, ARKANSAS, THE 16 CHECKS ISSUED THEREAFTER UNTIL THE DISCONTINUANCE OF THE ALLOTMENT, JULY 31, 1953, BECAUSE OF THE MEMBER'S DISCHARGE ON JULY 25, 1953, BORE THAT ADDRESS. THE CHECKS ISSUING FROM MAY 1 TO AUGUST 1, 1952 (4 CHECKS), WERE FOR $127.50 EACH AND THE CHECKS WHICH ISSUED FROM SEPTEMBER 1, 1952, TO AUGUST 1, 1953 (12 CHECKS), WERE FOR $137.10 EACH.

THE FILE SHOWS FURTHER THAT UPON HIS REENLISTMENT, THE MEMBER REGISTERED A NEW CLASS Q ALLOTMENT OF $117.10 PER MONTH, EFFECTIVE NOVEMBER 1, 1953, LISTING VIRGINIA R. BURKE, 2100 NORTH J STREET, FORT SMITH, ARKANSAS, AS HIS WIFE, AND THOMAS E. BURKE OF THE SAME ADDRESS AS HIS SON. THE FIRST NAME AND MIDDLE INITIAL WERE CROSSED OFF THE AUTHORIZATION DOCUMENT AND CHANGED TO "RUTH T.' ON THIS ALLOTMENT ACCOUNT 11 CHECKS FOR $117.10 EACH ISSUED FROM DECEMBER 2, 1953, TO OCTOBER 1, 1954, AND 19 CHECKS IN THE AMOUNT OF $137.10 EACH ISSUED FROM NOVEMBER 1, 1954, TO MAY 1, 1956, THE DATE THE ALLOTMENT WAS DISCONTINUED PENDING INVESTIGATION.

IN A LETTER DATED MARCH 29, 1956, RUTH T. BURKE INITIALLY INQUIRED CONCERNING HER ENTITLEMENT TO AN ALLOTMENT ON ACCOUNT OF HER HUSBAND AND IN A LETTER DATED JUNE 15, 1956, SHE STATED THAT SHE HAD NOT FILED CLAIM PREVIOUSLY BECAUSE OF THE MISTAKEN BELIEF THAT HE HAD DIVORCED HER AND BECAUSE OF CERTAIN THREATS HE MADE. ON MARCH 22, 1957, SHE EXECUTED AN AFFIDAVIT IN WHICH SHE ALLEGED THE NONRECEIPT AND NONNEGOTIATION OF 57 OF THE 60 CHECKS INVOLVED AND ON THE SAME DATE SHE EXECUTED A RELEASE OF CLAIM ON THREE CHECKS (3 OF THE 4 CHECKS WHICH WERE MAILED TO THE PHILADELPHIA ADDRESS) WHICH SHE HAD RECEIVED, ENDORSED, AND NEGOTIATED, THE CHECKS APPARENTLY HAVING BEEN DELIVERED TO HER BY THE MEMBER'S MOTHER.

AN INVESTIGATION OF THE NEGOTIATION OF THE CHECKS WAS CONDUCTED BY THE UNITED STATES SECRET SERVICE AND ITS REPORTS DISCLOSE THAT THE SUBJECT 57 CHECKS WERE RECEIVED, ENDORSED, AND NEGOTIATED BY VIRGINIA ALICE BURKE AND THAT THE MEMBER OBTAINED A DIVORCE FROM RUTH T. BURKE ON APRIL 13, 1956. WHILE THE MEMBER ADVISED THE INVESTIGATING AGENT THAT HE RETIRED FROM THE U.S. ARMY ON DECEMBER 31, 1956, THE RECORD SHOWS THAT HE WAS ACTUALLY RETIRED ON JANUARY 31, 1957.

ON NOVEMBER 5, 1958, TREASURER OF THE UNITED STATES, CHECK CLAIMS DIVISION, WASHINGTON, D.C., REFERRED THE MATTER TO OUR CLAIMS DIVISION FOR CONSIDERATION AND ADVICE. BY A LETTER DATED JANUARY 9, 1959, OUR CLAIMS DIVISION ADVISED THE CHECK CLAIMS DIVISION, FOR STATED REASONS, TO ABANDON RECLAMATION PROCEEDINGS ON 38 OF THE INVOLVED CHECKS AND TO RETURN THE AMOUNTS RECLAIMED ON THE REMAINING 19 CHECKS TO THE ENDORSERS WHO SUSTAINED THE LOSS. ALSO, ON THE SAME DATE, OUR CLAIMS DIVISION INFORMED YOUR CENTER OF THE ADVICE FURNISHED TO THE CHECK CLAIMS DIVISION AND IN ADDITION AUTHORIZED YOUR CENTER TO MAKE SETTLEMENT WITH MRS. RUTH T. BURKE, 1941 SOUTH 60TH STREET, PHILADELPHIA 42, PENNSYLVANIA, ON THE BASIS OF ADMINISTRATIVE REPORTS INDICATING THAT SHE WAS ENTITLED TO THE AMOUNTS OF THE CHECKS IN QUESTION.

NOTWITHSTANDING THE AUTHORIZATION FROM OUR CLAIMS DIVISION AND INQUIRIES FROM RUTH T. BURKE, YOUR CENTER HAS DECLINED TO MAKE SETTLEMENT IN HER FAVOR. AS STATED IN A LETTER FROM YOUR CENTER DATED JANUARY 30, 1962, TO THE HONORABLE WILLIAM A. BARRETT, HOUSE OF REPRESENTATIVES, THE RELUCTANCE OF YOUR CENTER TO EFFECT SETTLEMENT IN THIS CASE IS PREDICATED UPON ADVICE RECEIVED FROM A DEPARTMENT OF THE ARMY LEGAL ADVISOR THAT THE RULE ANNOUNCED IN OUR DECISION OF APRIL 12, 1954, B-118147, MUST BE FOLLOWED. YOUR CENTER ALSO STATED IN THAT LETTER THAT RUTH T. BURKE WAS ONLY ENTITLED TO BASIC ALLOWANCE FOR QUARTERS FROM THE DATE OF HER FIRST CLAIM, MARCH 29, 1956, TO THE DATE OF DIVORCE, APRIL 13, 1956, IN THE AMOUNT OF $38.55, AND THAT A CHECK WOULD BE FORWARDED TO HER IN A FEW DAYS.

IN THE LETTER DATED SEPTEMBER 27, 1967, TO OUR CLAIMS DIVISION, YOUR CENTER STATES IT HAS BEEN ITS VIEW THAT THE MEMBER DID NOT IN FACT ALLOT HIS PAY TO MRS. RUTH T. BURKE, NOR WAS AN ALLOTMENT ESTABLISHED FOR HER UNDER THE PROVISIONS OF SECTION 6 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 795, AS AMENDED, FOR THE PERIOD IN QUESTION. THE LETTER FURTHER STATES THAT CONSISTENT WITH THIS VIEW, IT WAS DETERMINED THAT THE MEMBER WAS ERRONEOUSLY PAID BASIC ALLOWANCE FOR QUARTERS IN THE AMOUNT OF $4,448.59 AND THAT $2,128.49 OF THIS AMOUNT HAS BEEN RECOVERED AND COLLECTION AT THE RATE OF $35.92 A MONTH IS BEING MADE FROM HIS RETIRED PAY.

ADDITIONALLY, IT IS STATED THAT SINCE THE MEMBER HAS BEEN PAID IN FULL FOR THE PERIOD INVOLVED, WITH A PART OF THE PAY DUE HIM BEING PAID AT HIS DIRECTION TO VIRGINIA ALICE BURKE, THERE ARE NO FUNDS AVAILABLE TO PAY RUTH T. BURKE FOR THAT PERIOD. ACCORDINGLY, YOUR CENTER REQUESTS THAT THE LETTER DATED JANUARY 9, 1959, FROM OUR CLAIMS DIVISION BE CLARIFIED IN VIEW OF OUR DECISION MENTIONED ABOVE, B 118147.

IN THE CASE COVERED BY OUR DECISION OF APRIL 12, 1954, B-118147, THE ENLISTED MEMBER UPON RECALL TO ACTIVE DUTY REGISTERED A CLASS Q ALLOTMENT IN THE NAME OF HIS DEPENDENT WIFE, EDITH V. BROUGHAM, BUT DIRECTED THAT THE CHECKS ISSUING THEREON BE MAILED TO AN ADDRESS WHERE HE AND ONE KATHERINE LAFLIN WERE RESIDING. UNTIL THE TIME OF HER DEATH IN 1951 OR 1952, KATHERINE LAFLIN NEGOTIATED THE ALLOTMENT CHECKS WHICH ISSUED THEREUNDER AND THE MEMBER NEGOTIATED THE ALLOTMENT CHECKS WHICH ISSUED THEREAFTER UNTIL APPROXIMATELY MARCH 1953, WHEN THE NAVY OBTAINED THE PROPER ADDRESS OF THE MEMBER'S WIFE AND COMMENCED MAILING CHECKS TO HER ON AUTHORITY RECEIVED FROM THE BUREAU OF NAVAL PERSONNEL.

WE HELD THAT UNTIL THE NAVY BEGAN SENDING THE CHECKS TO THE WIFE'S PROPER ADDRESS, THE MEMBER DID NOT HAVE AN ALLOTMENT IN EFFECT FOR HER SUPPORT, AS REQUIRED BY SECTION 4 (H) OF THE DEPENDENTS ASSISTANCE ACT OF 1950, AS A CONDITION TO PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS FOR A DEPENDENT WIFE. THEREFORE, WE SAID THAT THE MEMBER WAS NOT ENTITLED TO THE QUARTERS ALLOWANCE PAID TO HIM FOR THAT PERIOD AND THAT HE WAS INDEBTED TO THE UNITED STATES FOR THE AMOUNT OF SUCH PAYMENTS. WE ALSO HELD THAT THE ALLOTMENT CHECKS WERE MAILED TO THE ADDRESS DESIGNATED BY THE MEMBER AND APPEAR TO HAVE BEEN RECEIVED BY THE PERSON HE INTENDED TO RECEIVE THEM UNTIL HER DEATH, AFTER WHICH THEY WERE RECEIVED AND NEGOTIATED BY HIM. UNDER THESE CIRCUMSTANCES WE CONCLUDED THAT SUCH ALLOTMENT PAYMENTS WERE CLEARLY CHARGEABLE AGAINST HIS PAY IRRESPECTIVE OF THE FACT THAT NO QUARTERS ALLOWANCE WAS PAYABLE FOR THAT PERIOD.

IT IS CLEAR FROM THE FACTS AND CIRCUMSTANCES IN THIS CASE THAT THE MEMBER HAD NO INTENTION TO HAVE RUTH T. BURKE, HIS LAWFUL WIFE, RECEIVE THE MONTHLY CLASS Q ALLOTMENT CHECKS BUT RATHER HE INTENDED THAT VIRGINIA ALICE BURKE WOULD RECEIVE THE CHECKS. THEREFORE, IT HAS BEEN ADMINISTRATIVELY DETERMINED ON THE BASIS OF OUR DECISION OF APRIL 12,1954, THAT BURKE DID NOT ESTABLISH A VALID ALLOTMENT IN FAVOR OF RUTH T. BURKE AND SHE IS NOT ENTITLED TO THE PROCEEDS OF THE 57 CHECKS WHICH THE GOVERNMENT WAS INDUCED TO ISSUE PURSUANT TO THE MEMBER'S FRAUDULENT APPLICATIONS. THE FACT THAT SHE RECEIVED THREE CHECKS DURING THE PERIOD DECEMBER 4, 1951, TO FEBRUARY 1, 1952, DOES NOT REQUIRE ANY CHANGE IN THAT DETERMINATION INASMUCH AS THOSE CHECKS WERE NOT MAILED TO HER EITHER UPON THE MEMBER'S OR HER APPLICATION FOR A CLASS Q ALLOTMENT, BUT APPARENTLY WERE DELIVERED TO HER BY BURKE'S MOTHER CONTRARY TO HIS INTENTIONS.

SINCE THE FACTS IN THIS CASE PARALLEL THOSE IN THE CASE COVERED BY OUR DECISION OF APRIL 12, 1954, B-118147, OUR HOLDING IN THAT DECISION IS FOR APPLICATION HERE. ACCORDINGLY, BURKE WAS NOT ENTITLED TO BASIC ALLOWANCE FOR QUARTERS ON THE BASIS OF THE ALLOTMENT IN FAVOR OF RUTH T. BURKE AND SINCE HE DID NOT ESTABLISH A VALID ALLOTMENT, SHE IS NOT ENTITLED TO THE PROCEEDS OF THE SUBJECT 57 CHECKS.

IN VIEW OF THE FOREGOING, THE AUTHORIZATION FOR SETTLEMENT WITH RUTH T. BURKE, CONTAINED IN THE LETTER OF JANUARY 19, 1959, FROM OUR CLAIMS DIVISION, MAY BE DISREGARDED.