B-182354, JAN 6, 1975

B-182354: Jan 6, 1975

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MEMBER'S REQUEST FOR WAIVER PURSUANT TO 10 U.S.C. 2774 OF AN INDEBTEDNESS WHICH AROSE DUE TO ERRONEOUS PAYMENTS TO FORMER WIFE OF CLASS Q DEPENDENCY ALLOTMENT WHICH WERE CONTINUED WHILE HE WAS IN AN ABSENT WITHOUT LEAVE (AWOL) STATUS IS DENIED. GEN. 309 MEMBER'S LIABILITY IS NOT CLEAR. WOODS: THIS ACTION IS IN RESPONSE TO A LETTER FROM MRS. WHILE THE MEMBER WAS IN A NONPAY ABSENT WITHOUT LEAVE (AWOL) STATUS. 350 IN ALLOWANCES WAS PAID FOR THE PERIOD THAT THE MEMBER WAS AWOL. WOODS WAS ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD OF AUGUST 15. WHICH WERE ADMINISTRATIVELY DETERMINED TO BE ERRONEOUS. WAS REDUCED TO $1. STATES THAT WHEN A MEMBER WITH 4 YEARS OF SERVICE OR LESS WHO QUALIFIES FOR A CLASS Q ALLOTMENT ENTERS INTO AN ABSENT WITHOUT LEAVE STATUS AND IS ABSENT FOR MORE THAN 2 MONTHS.

B-182354, JAN 6, 1975

MEMBER'S REQUEST FOR WAIVER PURSUANT TO 10 U.S.C. 2774 OF AN INDEBTEDNESS WHICH AROSE DUE TO ERRONEOUS PAYMENTS TO FORMER WIFE OF CLASS Q DEPENDENCY ALLOTMENT WHICH WERE CONTINUED WHILE HE WAS IN AN ABSENT WITHOUT LEAVE (AWOL) STATUS IS DENIED; HOWEVER, SINCE UNDER 33 COMP. GEN. 309 MEMBER'S LIABILITY IS NOT CLEAR, DEPARTMENT OF THE NAVY SHOULD DETERMINE IF MEMBER HAD KNOWLEDGE OF ERRONEOUS PAYMENTS, AS IT APPEARS THAT IF MEMBER HAD NO KNOWLEDGE HE WOULD NOT BE LIABLE TO UNITED STATES FOR OVERPAYMENTS AND WAIVER WOULD NOT BE FOR CONSIDERATION ALTHOUGH IF HE HAD KNOWLEDGE HE WOULD BE LIABLE AND WAIVER WOULD NOT BE APPROPRIATE.

OVERPAYMENTS OF DEPENDENCY ALLOTMENTS AND WAIVER OF INDEBTEDNESS UNDER 10 U.S.C. 2774 - MR. WILLIAM R. WOODS:

THIS ACTION IS IN RESPONSE TO A LETTER FROM MRS. NANETTE L. WOODS, WRITTEN ON BEHALF OF HER HUSBAND, MR. WILLIAM R. WOODS, A FORMER ENLISTED MEMBER OF THE UNITED STATES NAVY, CONCERNING WAIVER OF HIS INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $1,100, INCIDENT TO HIS SERVICE IN THE NAVY, WHEREIN SHE REQUESTS RECONSIDERATION OF OUR TRANSPORTATION AND CLAIMS DIVISION ACTION OF JULY 11, 1974, WHICH DENIED WAIVER IN HER HUSBAND'S CASE AND IN FURTHER RESPONSE TO A LETTER DATED DECEMBER 28, 1973, FROM THE NAVY, FAMILY ALLOWANCE ACTIVITY, WHICH RECOMMENDED WAIVER OF THE INDEBTEDNESS.

THE FILE SHOWS THAT MR. WOODS ENTERED INTO AN UNAUTHORIZED ABSENCE STATUS ON AUGUST 15, 1970, AND DID NOT RETURN TO NAVAL JURISDICTION UNTIL SEPTEMBER 19, 1972. DURING THE PERIOD OF AUGUST 16, 1970, THROUGH SEPTEMBER 30, 1971, WHILE THE MEMBER WAS IN A NONPAY ABSENT WITHOUT LEAVE (AWOL) STATUS, HIS CLASS Q DEPENDENCY ALLOTMENT OF $100 PER MONTH IN FAVOR OF HIS FORMER WIFE, PRISCILLA S. WOODS, CONTINUED TO BE ISSUED. AS A RESULT, A TOTAL OF $1,350 IN ALLOWANCES WAS PAID FOR THE PERIOD THAT THE MEMBER WAS AWOL. HOWEVER, SINCE MR. WOODS WAS ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD OF AUGUST 15, 1970, THROUGH OCTOBER 31, 1970, IN THE AMOUNT OF $152, THE CLASS Q ALLOTMENT OVERPAYMENTS, WHICH WERE ADMINISTRATIVELY DETERMINED TO BE ERRONEOUS, WAS REDUCED TO $1,198.

RULE 10, TABLE 6-2-4 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL (DODPM), STATES THAT WHEN A MEMBER WITH 4 YEARS OF SERVICE OR LESS WHO QUALIFIES FOR A CLASS Q ALLOTMENT ENTERS INTO AN ABSENT WITHOUT LEAVE STATUS AND IS ABSENT FOR MORE THAN 2 MONTHS, THE CLASS Q ALLOTMENT IS STOPPED WITH THE LAST PAYMENT 2 MONTHS AFTER THE MONTH THE ABSENCE BEGAN.

THUS, OUR TRANSPORTATION AND CLAIMS DIVISION DETERMINED THAT SINCE SUCH PAYMENTS WERE PROPER UNDER THE REGULATIONS, ONLY THOSE CLASS Q ALLOTMENTS IN THE AMOUNT OF $1,100 PAID FOR THE PERIOD OF NOVEMBER 1970, THROUGH SEPTEMBER 1971, CONSTITUTE THE INDEBTEDNESS DUE THE UNITED STATES AND MAY BE CONSIDERED FOR WAIVER UNDER 10 U.S.C. 2774.

THE PRIMARY ISSUE IN THIS CASE IS NOT WHETHER THE MEMBER IS ENTITLED TO WAIVER, BUT WHETHER LIABILITY RESTS WITH THE MEMBER FOR THE ERRONEOUS PAYMENTS MADE TO HIS FORMER WIFE.

IN 33 COMP. GEN. 309 (1954), IT WAS HELD THAT, AS A GENERAL RULE, LEGAL LIABILITY TO THE UNITED STATES RESTS SOLELY UPON PAYEES OF VOLUNTARY ALLOTMENTS OF PAY AND THE RECIPIENTS OF FAMILY ALLOWANCE PAYMENTS FOR ANY SUCH OVERPAYMENTS RECEIVED BY THEM. HOWEVER, IF THE ERRONEOUS PAYMENTS ARE MADE AS A RESULT OF THE MEMBER'S FRAUD, MISREPRESENTATION OR MISTAKE, THE MEMBER AND THE PAYEE ARE JOINTLY LIABLE FOR REFUND.

THE FILE CONTAINS A LETTER FROM MR. WOODS IN WHICH HE STATES THAT HE ENTERED INTO AN UNAUTHORIZED ABSENCE STATUS TO SAVE HIS FIRST MARRIAGE. IT APPEARS, THEREFORE, THAT THE MEMBER WAS LIVING WITH HIS FIRST WIFE FOR AT LEAST PART OF THE TIME THAT SHE WAS RECEIVING THE CLASS Q ALLOTMENT CHECKS. THE FILE DOES NOT INDICATE THE LENGTH OF TIME HE REMAINED WITH HIS FIRST WIFE AFTER ENTERING AN AWOL STATUS. HOWEVER, DUE TO THIS FACT, WE MUST ASSUME KNOWLEDGE ON HIS PART THAT THE PAYMENTS IN QUESTION WERE BEING MADE AND THAT HE UNDERSTOOD THAT NEITHER HE NOR HIS FIRST WIFE WERE ENTITLED THERETO. IF THAT IS THE CASE, THEN LIABILITY ON HIS PART WOULD EXIST, AND, IN VIEW OF SUCH KNOWLEDGE, WAIVER OF THE INDEBTEDNESS WOULD NOT APPEAR TO BE APPROPRIATE. HOWEVER, SHOULD EVIDENCE BE PRESENTED WHICH WOULD ESTABLISH THAT MR. WOODS WAS NOT AWARE THAT IMPROPER CLASS Q ALLOTMENT PAYMENTS WERE BEING MADE TO HIS FORMER WIFE, HE IS NOT LIABLE FOR THEIR REFUND. WE BELIEVE THAT THE DEPARTMENT OF THE NAVY SHOULD ATTEMPT TO DEVELOP THE FACTS IN THE CASE AND DETERMINE MORE SPECIFICALLY WHETHER THE MEMBER IS LIABLE TO REFUND THE OVERPAYMENTS IN QUESTION.

IN THAT CONNECTION IT DOES NOT APPEAR THAT ANY ATTEMPT HAS BEEN MADE TO LOCATE MR. WOODS' FORMER WIFE AND ATTEMPT RECOVERY FROM HER. PURSUANT TO 33 COMP. GEN. 309, SUPRA, IT IS OUR VIEW THAT SINCE SHE WAS THE RECIPIENT OF THE FUNDS IN QUESTION AND RECEIVED THE PROCEEDS FROM THEIR NEGOTIATION SHE IS, AT A MINIMUM, JOINTLY LIABLE FOR THEIR REFUND. IN THE EVENT THAT MR. WOODS HAD NO KNOWLEDGE OF THE OVERPAYMENTS, THEN HIS FORMER WIFE WOULD BE SOLELY LIABLE FOR THEIR REFUND.

ACCORDINGLY, ON THE BASIS OF THE RECORD BEFORE US, THE ACTION TAKEN BY OUR TRANSPORTATION AND CLAIMS DIVISION DATED JULY 11, 1974, MUST BE SUSTAINED. IF FURTHER EVIDENCE IS OBTAINED WHICH IS NOT CLEARLY DETERMINATIVE OF THE QUESTIONS IN THIS CASE THE MATTER SHOULD BE RESUBMITTED FOR FURTHER CONSIDERATION.