B-165602, APR. 24, 1969

B-165602: Apr 24, 1969

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POPE: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 13. THE RECORD INDICATES THAT YOU WERE DIVORCED ON MARCH 6. THAT THE CUSTODY OF YOUR THREE CHILDREN WAS AWARDED TO THEIR MOTHER AND THAT YOU WERE ORDERED TO PAY $135 PER MONTH FOR THEIR SUPPORT. YOUR FORMER WIFE ADVISED THE ARMY THAT YOU WERE NOT SUPPORTING THE CHILDREN. THE ORDER SHOWS THAT IT WAS BASED ON YOUR PETITION THAT YOUR FORMER WIFE REFUSED TO ACCEPT SUPPORT MONEY FOR THE CHILDREN FROM YOU AND THAT YOU WERE APPREHENSIVE THAT SHE MIGHT CHARGE YOU WITH DEFAULT OF YOUR OBLIGATION TO THE CHILDREN. THE COURT ORDER DIRECTED THAT THE BONDS BE PURCHASED FOR THE CHILDREN IN JOINT TENANCY WITH YOU AND THAT YOU WERE TO HAVE PHYSICAL CUSTODY OF THE BONDS SUBJECT TO THE ORDER OF THE COURT OR THE REQUIREMENTS OF THE CHILDREN.

B-165602, APR. 24, 1969

TO SERGEANT FIRST CLASS JAMES E. POPE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 13, 1969, WITH ENCLOSURES, REQUESTING REVIEW OF THE SETTLEMENT OF FEBRUARY 5, 1969, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE AMOUNT RECOVERED FROM YOUR MILITARY PAY FOR OVERPAYMENT OF BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF YOUR THREE MINOR CHILDREN FOR THE PERIOD MARCH 1, 1965, THROUGH FEBRUARY 28, 1966.

THE RECORD INDICATES THAT YOU WERE DIVORCED ON MARCH 6, 1964, IN THE DISTRICT COURT OF THE STATE OF COLORADO, COUNTY OF EL PASO; THAT THE CUSTODY OF YOUR THREE CHILDREN WAS AWARDED TO THEIR MOTHER AND THAT YOU WERE ORDERED TO PAY $135 PER MONTH FOR THEIR SUPPORT. BY LETTER OF MARCH 4, 1965, YOUR FORMER WIFE ADVISED THE ARMY THAT YOU WERE NOT SUPPORTING THE CHILDREN.

ON MAY 20, 1965, THE SAME COURT ISSUED AN ORDER DIRECTING YOU TO PURCHASE BONDS AT A COST OF $45 PER CHILD EACH MONTH. THE ORDER SHOWS THAT IT WAS BASED ON YOUR PETITION THAT YOUR FORMER WIFE REFUSED TO ACCEPT SUPPORT MONEY FOR THE CHILDREN FROM YOU AND THAT YOU WERE APPREHENSIVE THAT SHE MIGHT CHARGE YOU WITH DEFAULT OF YOUR OBLIGATION TO THE CHILDREN. THE COURT ORDER DIRECTED THAT THE BONDS BE PURCHASED FOR THE CHILDREN IN JOINT TENANCY WITH YOU AND THAT YOU WERE TO HAVE PHYSICAL CUSTODY OF THE BONDS SUBJECT TO THE ORDER OF THE COURT OR THE REQUIREMENTS OF THE CHILDREN.

THE COURT ORDER FURTHER SHOWS THAT YOUR FORMER WIFE HAD MARRIED ANOTHER SERVICEMAN, AND THE RECORD INDICATES THAT SUCH WAS THE CASE WHEN SHE WROTE TO THE ARMY ON MARCH 4, 1965. SUPPORT OF THE CHILDREN, HOWEVER, WAS STILL YOUR RESPONSIBILITY.

BY COURT ORDER DATED JULY 11, 1967, THE SAVINGS BONDS IN THE CUSTODY OF THE REGISTRY FUND OF THE COURT WERE RELEASED TO YOU AND YOUR FORMER WIFE'S COUNSEL FOR DISTRIBUTION ACCORDING TO THE TERMS OF AN AGREEMENT YOU AND SHE HAD ENTERED INTO ON JULY 10, 1967, AND THE ORDER OF MAY 20, 1965, WAS SET ASIDE. THE COURT ORDER OF JULY 11, 1967, SHOWS THAT THE CHILDREN WERE TO BE ADOPTED BY THE HUSBAND OF YOUR FORMER WIFE. A SUBSEQUENT ARMY REPORT SHOWS THAT THE PRESENT HUSBAND, DONALD L. RIGGLE, IS RECEIVING A BASIC ALLOWANCE FOR QUARTERS FOR HIS WIFE AND THE THREE CHILDREN. THE AGREEMENT BETWEEN YOU AND YOUR FORMER WIFE AND APPROVED BY THE COURT WAS NOT FURNISHED WITH YOUR CLAIM AND THE RECORD DOES NOT OTHERWISE SHOW THAT ANY OF THE BONDS WENT TO THE CHILDREN.

YOUR CLAIM WAS BASED ON AN AFFIDAVIT EXECUTED BY YOUR FORMER WIFE ON OCTOBER 3, 1967, THAT SHE ,NEVER FILED AN OFFICIAL COMPLAINT NOR SIGNED OFFICIAL PAPERS WITH THE MILITARY AUTHORITIES FOR NON SUPPORT.' IT WAS YOUR CONTENTION THAT THIS ESTABLISHED THAT YOU DID SUPPORT YOUR CHILDREN DURING THE PERIOD COVERED BY THE CLAIM AND THEREFORE, WERE ENTITLED TO BASIC ALLOWANCE FOR QUARTERS.

PARAGRAPH 10321 (1) ( (C), ARMY REGULATIONS 37-104 (CHANGE 2, OCTOBER 22, 1965), PROVIDES THAT WHERE MINOR CHILDREN OF A DIVORCED MEMBER ARE IN THE LEGAL CUSTODY OF THEIR MOTHER (WHO IS REMARRIED TO ANOTHER MEMBER WHO IS NOT ASSIGNED PUBLIC QUARTERS AND IS PAID BASIC ALLOWANCE FOR QUARTERS IN LIEU THEREOF), THE DIVORCED MEMBER IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF LEGITIMATE UNMARRIED CHILDREN UNDER 21 YEARS OF AGE, PROVIDED IT IS SHOWN HE ,CONTRIBUTES TO THEIR SUPPORT.' THE REGULATION CONTEMPLATES CURRENT CONTRIBUTIONS FOR THE SUPPORT OF THE CHILDREN FOR THE PERIOD FOR WHICH THE QUARTERS ALLOWANCE IS CLAIMED.

IN VIEW OF THESE REGULATIONS, AND SINCE NO BONDS WERE PURCHASED DURING THE PERIOD MARCH 1, 1965, THROUGH NOVEMBER 30, 1965, FOR THE SUPPORT OF YOUR CHILDREN, THE SETTLEMENT MENTIONED ABOVE DISALLOWED YOUR CLAIM FOR REFUND OF THE AMOUNT YOU RECEIVED AS BASIC ALLOWANCE FOR QUARTERS FOR THAT PERIOD.

WITH RESPECT TO THE PERIOD DECEMBER 1965, THROUGH FEBRUARY 1966, DURING WHICH BONDS WERE PURCHASED, THE SETTLEMENT STATED THAT IF THE BONDS FOR THOSE MONTHS WERE NOT TURNED OVER TO THE CHILDREN OR OTHERWISE MADE AVAILABLE FOR THEIR USE, BUT WERE AWARDED TO YOU, THEN YOU MADE NO CONTRIBUTION FOR THEIR SUPPORT FOR THOSE MONTHS AND YOUR CLAIM FOR THAT PERIOD ALSO WAS DISALLOWED.

THE SETTLEMENT ALSO STATED, HOWEVER, THAT FURTHER CONSIDERATION WOULD BE GIVEN THE MATTER UPON RECEIPT OF ADDITIONAL EVIDENCE SHOWING THAT YOU CONTRIBUTED TO THE SUPPORT OF YOUR CHILDREN DURING THAT PERIOD, AND THAT SUCH EVIDENCE SHOULD BE ACCOMPANIED BY AN AUTHENTICATED COPY OF THE STIPULATION AND AGREEMENT OF JULY 10, 1967, WHICH WAS APPROVED BY THE COURT ON JULY 11, 1967.

IN YOUR PRESENT LETTER, YOU AGAIN PLACE RELIANCE ON YOUR FORMER WIFE'S AFFIDAVIT OF OCTOBER 3, 1967, THAT SHE NEVER FILED AN OFFICIAL COMPLAINT OF NONSUPPORT. YOU SAY THAT THE BONDS WERE NOT PURCHASED PRIOR TO NOVEMBER (DECEMBER) DUE TO THE FACT THAT YOU WERE REPAYING AN INDEBTEDNESS TO THE GOVERNMENT FOR THE ERRONEOUS PAYMENT OF QUARTERS ALLOWANCE AND WERE IN TRANSIT FROM KOREA TO EUROPE. ALSO, YOU STATE YOU WERE NOT IN CONTACT WITH YOUR FORMER WIFE BUT WERE PAYING SUPPORT TO THE COURT, AND IN JULY 1967, THE COURT ISSUED AN ORDER STATING THAT ALL THE BONDS HELD BY THE COURT WOULD BE RELEASED TO YOU AND COUNSEL FOR YOUR FORMER WIFE FOR DISTRIBUTION. IN THE EVENT THAT THIS INFORMATION DOES NOT AFFORD A BASIS FOR THE PAYMENT OF YOUR CLAIM YOU REQUEST ADVICE AS TO WHERE YOU MAY FILE YOUR NEXT HIGHER APPEAL.

YOUR LETTER WAS NOT ACCOMPANIED BY A COPY OF THE STIPULATION AND AGREEMENT BETWEEN THE PARTIES DATED JULY 10, 1967, NOR HAVE YOU FURNISHED EVIDENCE THAT ANY OF THE BONDS FOR DECEMBER 1965, THROUGH FEBRUARY 1966, WERE TURNED OVER TO THE CHILDREN OR OTHERWISE MADE AVAILABLE FOR THEIR USE. NEITHER HAVE YOU FURNISHED ANY OTHER EVIDENCE THAT YOU ACTUALLY CONTRIBUTED TO THE SUPPORT OF YOUR CHILDREN DURING THE PERIOD INVOLVED.

APPARENTLY, IT IS YOUR BELIEF THAT YOUR FORMER WIFE'S AFFIDAVIT OF OCTOBER 3, 1967, OVERCOMES HER LETTER OF MARCH 4, 1965, ALLEGING NONSUPPORT AND SHOULD BE SUFFICIENT TO ESTABLISH THAT YOU SUPPORTED YOUR CHILDREN. THE AFFIDAVIT APPARENTLY HAS REFERENCE TO AN OFFICIAL COMPLAINT TO THE DIVORCE COURT OR THE FILING OF "OFFICIAL PAPERS" WITH MILITARY AUTHORITIES ALLEGING NONSUPPORT. SHE DID NOT AVER, HOWEVER, THAT YOU DID SUPPORT THE CHILDREN OR INDICATE THAT YOU CONTRIBUTED IN ANY WAY TO THEIR SUPPORT. HER LETTER OF MARCH 4, 1965, YOUR OWN STATEMENTS TO THE COURT IN MAY 1965, AS SHOWN ABOVE, AND THE FACT THAT A BOND ALLOTMENT WAS NOT PUT IN EFFECT UNTIL DECEMBER 1965, CLEARLY INDICATE THAT YOU MADE NO PAYMENTS FOR THE SUPPORT OF THE CHILDREN DURING THE PERIOD MARCH 1965, THROUGH NOVEMBER 1965, AND YOU HAVE FURNISHED NO EVIDENCE WHATEVER TO ESTABLISH THAT YOUR CHILDREN RECEIVED ANY BENEFIT FROM THE BONDS YOU PURCHASED FOR DECEMBER 1965, THROUGH FEBRUARY 1966, OR THAT YOU OTHERWISE CONTRIBUTED TO THEIR SUPPORT.

ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 5, 1969, IS CORRECT AND IS SUSTAINED.

THE ACTIONS OF THIS OFFICE ON CLAIMS PRESENTED HERE FOR SETTLEMENT ARE FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. ASIDE FROM THE JURISDICTION OF THIS OFFICE, THE COURT OF CLAIMS OF THE UNITED STATES AND THE UNITED STATES DISTRICT COURTS HAVE JURISDICTION TO CONSIDER AND DETERMINE SUITS FOR PAY AND ALLOWANCES BELIEVED TO BE DUE INCIDENT TO THE SERVICE OF MEMBERS OF THE UNIFORMED SERVICES IF FILED WITHIN SIX YEARS AFTER THEY FIRST ACCRUED. 28 U.S.C. 1346 (2), 1491, 2401 AND 2501.