B-200674.OM, AUG 24, 1981

B-200674.OM: Aug 24, 1981

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PRECIS-UNAVAILABLE THE COMPTROLLER GENERAL: HEREWITH ARE THE FILES RELATING TO SEVERAL REQUESTS FOR WAIVER UNDER 10 U.S.C. 2774. SEVERAL QUESTIONS HAVE ARISEN CONCERNING THE LIABILIYY OF THE MEMBER IN VARIOUS SITUATIONS. DETERMINATIONS OF LIABILITY FOR ERRONEOUS ALLOTMENT PAYMENTS HAVE BEEN BASED ON THE PRINCIPLES SET FORTH IN 33 COMP.GEN. 309 (1954) AND SUBSEQUENT AMPLIFYING AND CLARIFYING DECISIONS. IN 33 COMP.GEN. 309 IT WAS HELD THAT. IF THE ERRONEOUS PAYMENTS ARE MADE AS A RESULT OF THE MEMBER'S FRAUD. THE MEMBER AND THE PAYEE HAVE BEEN HELD JOINTLY LIABLE FOR REFUND. THE DECISION CONCLUDED THAT THE MEMBER SHOULD NOT BE CONSIDERED AT FAULT EXCEPT IN SITUATIONS WHERE THE PAYMENTS WERE MADE TO THE WIFE OR CHILDREN.

B-200674.OM, AUG 24, 1981

PRECIS-UNAVAILABLE

THE COMPTROLLER GENERAL:

HEREWITH ARE THE FILES RELATING TO SEVERAL REQUESTS FOR WAIVER UNDER 10 U.S.C. 2774. THE OVERPAYMENTS INVOLVED RESULTED FROM ERRONEOUS ALLOTMENT PAYMENTS MADE TO DEPENDENTS OF MILITARY MEMBERS. SEVERAL QUESTIONS HAVE ARISEN CONCERNING THE LIABILIYY OF THE MEMBER IN VARIOUS SITUATIONS.

GENERALLY, DETERMINATIONS OF LIABILITY FOR ERRONEOUS ALLOTMENT PAYMENTS HAVE BEEN BASED ON THE PRINCIPLES SET FORTH IN 33 COMP.GEN. 309 (1954) AND SUBSEQUENT AMPLIFYING AND CLARIFYING DECISIONS. IN 33 COMP.GEN. 309 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 HAVE BEEN HELD JOINTLY LIABLE FOR REFUND. CONCERNING ERRONEOUS ALLOTMENTS PAYMENTS MADE FOR PERIODS AFTER THE MEMBER'S SEPARATION, THE DECISION CONCLUDED THAT THE MEMBER SHOULD NOT BE CONSIDERED AT FAULT EXCEPT IN SITUATIONS WHERE THE PAYMENTS WERE MADE TO THE WIFE OR CHILDREN, WHERE THERE EAS NO INDICATION THE MEMBER WAS NOT LIVING WITH HIS WIFE, AND WHERE THE OVERPAYMENTS CONTINUED FOR MORE THAN 3 MONTHS AFTER SEPARATION AND TOTALED AT LEAST $200.

WE HAVE GENERALLY USED THE PRINCIPLES IN 33 COMP.GEN. 309 FOR ESTABLISHING LIABILITY IN CASES INVOLVING WAIVER CONSIDERATION UNDER 10 U.S.C. 2774. THUS, IN THE WILLIAM R. WOODS CASE, B-182354, JANUARY 6, 1975, WHERE AN ALLOTMENT CONTINUED TO THE MEMBER'S WIFE AFTER HE ENTERED INTO AN UNAUTHORIZED ABSENCE STATUS, WE CONCLUDED THAT SINCE IT APPEARED THE MEMBER AND HIS WIFE WERE TOGETHER FOR A PORTION OF THE OVERPAYMENT PERIOD, LIABILITY ON HIS PART WOULD EXIST AND THUS WAIVER WOULD NOT BE APPROPRIATE. HOWEVER, WE ALSO STATED THAT IF EVIDENCE SHOULD BE PRESENTED ESTABLISHING THAT THE MEMBER WAS NOT AWARE OF THE CONTINUING ALLOTMENT PAYMENTS, THEN HE WOULD NOT BE LIABLE FOR REFUND AND HIS WIFE WOULD BE SOLELY LIABLE AS PAYEE OF THE ERRONEOUS ALLOTMENTS.

IN MAKING DETERMINATIONS ON CASES SUBMITTED TO THIS OFFICE, WE HAVE GENERALLY FOLLOWED THE ABOVE LOGIC IN ESTABLISHING LIABILITY. IF THE MEMBER WAS SHOWN TO HAVE HAD KNOWLEDGE THAT ERRONEOUS ALLOTMENT PAYMENTS WERE BEING MADE TO HIS DEPENDENTS (EITHER BEFORE OR AFTER HIS SEPARATION), WE HAVE HELD HIM LIABLE FOR THE OVERPAYMENT AND ALSO AT FAULT FOR NOT REPORTING THE ERROR AND RETAINING THE MONEY FOR REFUND. IF THE REPORT INDICATED THE MEMBER WAS UNAWARE OF THE ERRONEOUS CONTINUATION OF ALLOTMENT PAYMENTS, WE HAVE FOUND HIM NOT LIABLE FOR REFUND, AND HENCE ANY WAIVER ACTION ON HIS BEHALF WAS NOT NECESSARY. RECENTLY, HOWEVER, SEVERAL DECISIONS INVOLVING ALLOTMENT OVERPAYMENTS WHILE THE MEMBERS WERE ON ACTIVE DUTY HAVE APPARENTLY USED DIFFERENT CRITERIA IN ESTABLISHING LIABILITY IN ALLOTMENT CASES.

IN THE CASE OF OLLIE N. MARSHALL, B-193400, JANUARY 31, 1979, INVOLVING ERRONEOUS ALLOTMENT PAYMENTS WHICH CONTINUED TO THE MEMBER'S WIFE AFTER HE REQUESTED TERMINATION, WE HELD THAT THE MEMBER WAS NOT ENTITLED TO REIMBURSEMENT OF AMOUNTS COLLECTED FROM HIM FOR THE OVERPAYMENT. OUR REASONING WAS THAT EVEN THOUGH HE WAS NOT AT FAULT, THE ALLOTMENT PROCEEDS INURED TO HIS BENEFIT AS HE HAD A MORAL AND LEGAL OBLIGATION TO SUPPORT HIS DEPENDENTS AND THE ALLOTMENT SERVED THAT PURPOSE. THUS, EVEN THOUGH THE MEMBER WAS OVERSEAS AND APPARENTLY WAS PROVIDING DIRECT SUPPORT TO HIS WIFE, HE WAS HELD LIABLE TO MAKE REFUND. THE QUESTION OF WHETHER A WAIVER WOULD BE APPROPRIATE WAS NOT CONSIDERED IN THIS CASE.

IN A SIMILAR MATTER, THAT OF NEAL B. BATTS, B-185820, FEBRUARY 11, 1977, WE HELD THAT THE MEMBER HAS NO VALID CLAIM AGAINST THE GOVERNMENT FOR DEDUCTIONS FROM HIS PAY TO COLLECT ERRONEOUS ALLOTMENT PAYMENTS MADE TO A WIFE IN A COMMUNITY PROPERTY STATE SINCE THE PAYMENTS INURED TO THE MEMBER'S BENEFIT AND THERE HAD BEEN A GOOD ACQUITTANCE OF THE GOVERNMENT'S OBLIGATION TO THE MEMBER. SEE ALSO THE CASE OF RICHARD C. RUSHING, B-194692, JULY 24, 1979. WE NOTE THAT EVEN IF THE MEMBERS IN EITHER OF THESE CASES HAD NOT RESIDED IN COMMUNITY PROPERTY STATES, IT APPEARS THAT THE SAME RESULTS COULD HAVE BEEN REACHED UNDER THE REASONING IN THE MARSHALL CASE BECAUSE OF THEIR MORAL AND/OR LEGAL OBLIGATION TO SUPPORT DEPENDENTS.

WE HAVE BEFORE US NOW A MEMBER OF CLAIMS INVOLVING ALLOTMENT OVERPAYMENTS WHERE THERE IS A QUESTION AS TO LIABILITY AND THE APPROPRIATENESS OF FAVORABLE WAIVER ACTION. IN THE CASE OF SAMUEL C. SCHAFFER, Z-2733921, THE MEMBER REDUCED HIS MONTHLY DEPENDENCY ALLOTMENT TO HIS WIFE FROM $335 TO $200, AND THE NAVY PROPERLY DECREASED THE DEDUCTIONS FROM HIS PAY TO $200. HOWEVER, THEY CONTINUED TO PAY THE $335 ALLOTMENT FOR A PERIOD OF 18 MONTHS. SINCE THE RECORD INDICATES THE MEMBER WAS AWAY FROM HIS DUTY STATION FOR MOST OF THE OVERPAYMENT PERIOD AND HE HAS STATED HE AND HIS WIFE DID NOT DISCUSS THE ALLOTMENT CHANGE, IT APPEARS HE SHOULD NOT BE HELD AT FAULT IN THE OVERPAYMENT. IN THE PAST IN CONSIDERING SUCH A CASE, WE WOULD NORMALLY HAVE CONCLUDED THAT SINCE THE MEMBER WAS NOT AT FAULT AND DID NOT NECESSARILY HAVE KNOWLEDGE OF THE ERROR, HE WOULD NOT BE LIABLE FOR THE OVERPAYMENT. HOWEVER, IN VIEW OF THE DETERMINATION IN THE MARSHALL CASE, IT APPEARS WE COULD HOLD MR. SCHAFFER LIABLE SINCE THE ERRONEOUS PAYMENTS SUPPORTED HIS DEPENDENT AND THUS INURED TO HIS BENEFIT. IT ALSO APPEARS WAIVER MAY BE APPROPRIATE IN VIEW OF HIS LACK OF FAULT AND KNOWLEDGE IN THE MATTER. SUCH WAIVER APPROVAL, OF COURSE, WOULD ENTITLE HIM TO A REFUND OF ANY AMOUNTS COLLECTED FROM HIM FOR THE OVERPAYMENT.

IN THE CASE OF CHARLES E. TIMMONS, Z-2810922, THE MEMBER WAS DISCHARGED FROM THE NAVY ON OCTOBER 3, 1978. THROUGH AN ADMINISTRATIVE ERROR HIS DEPENDENCY ALLOTMENT TO HIS WIFE IN THE AMOUNT OF $655.50 WAS PAID FOR THE MONTH OF OCTOBER. IT WOULD INITIALLY SEEM THAT THIS MATTER FALLS UNDER 33 COMP.GEN. 309, 314, RULE 6, WHICH STATES THAT A MEMBER IS NOT LIABLE WHEN THE OVERPAYMENT CONTINUES FOR ONLY 1 MONTH. HOWEVER, AS EDWIN MONSMA POINTS OUT IN HIS MEMO ON THE CASE DATED JUNE 6, 1979, IN VIEW OF THE SUBSTANTIAL SIZE OF THE ALLOTMENT, THE RULES FOUND IN 33 COMP.GEN. 309 MAY NOT BE REASONABLE IN THIS CASE. IN ADDITION, IF THE GENERAL LOGIC EXPRESSED IN THE MARSHALL CASE APPLIES EQUALLY TO SEPARATED MEMBERS AS WELL AS ACTIVE DUTY MEMBERS, WE COULD HOLD THE MEMBER JOINTLY LIABLE BECAUSE THE ALLOTMENT PAYMENT WAS USED FOR HIS DEPENDENT'S SUPPORT.

A SIMILAR SITUATION IS FOUND IN THE CASE OF JAMES M. HUSSEY, Z-2799813, A FORMER AIR FORCE MEMBER. THE SERVICE HELD MRS. HUSSEY SOLELY LIABLE FOR THE ERRONEOUS PAYMENT OF AN ALLOTMENT PAID FOR THE MONTH OF HIS SEPARATION, APPARENTLY BASING THEIR DETERMINATION ON THE RULES IN 33 COMP.GEN. 309. HOWEVER, AGAIN AS IN THE MARSHALL CASE, IT APPEARS THAT THE MEMBER COULD ALSO BE HELD LIABLE ON THE BASIS THAT PAYMENTS INURED FOR THE SUPPORT OF HIS DEPENDENTS.

SIMILAR BUT SLIGHTLY DIFFERENT CIRCUMSTANCES ARE FOUND IN THE CASE OF WALTER L. MATHIS, Z-2810522, A FORMER MEMBER OF THE MARINE CORPS. HE HAD AUTHORIZED A $200 ALLOTMENT PAYABLE TO HIS WIFE EFFECTIVE JUNE 1975. HOWEVER, SINCE HE WAS CONFINED BY CIVIL AUTHORITIES BEGINNING MAY 9, 1975, PAYMENT OF THE ALLOTMENT SHOULD NOT HAVE COMMENCED IN JUNE. THROUGH ADMINISTRATIVE ERROR IT WAS PAID FOR THE MONTHS OF JUNE THROUGH AUGUST 1975. SINCE THE MEMBER WAS INCARCERATED AND STATES HE WAS UNAWARE THE ALLOTMENT WAS BEING PAID, IT APPEARS HE COULD BE CONSIDERED NOT LIABLE FOR THE OVERPAYMENT UNDER 33 COMP.GEN. 309 AND IN ACCORDANCE WITH THE LOGIC IN THE WOODS CASE. THE MARINE CORPS CONCLUDED THAT HE AND HIS WIFE WERE JOINTLY LIABLE, AND SUCH A CONCLUSION AGAIN APPEARS CONSISTENT WITH THE LOGIC IN THE MARSHALL CASE. ALSO, IF HE IS CONSIDERED TO BE LIABLE, IT APPEARS WAIVER WOULD BE APPROPRIATE.

IN ANOTHER CASE INVOLVING A MARINE CORPS MEMBER, THAT OF DAVED L. DELANEY, Z-2812324, THE AGENCY ASKED FOR GUIDANCE IN ASSESSING LIABILITY. MR. DELANEY WAS SEPARATED ON MAY 17, 1976, AND HIS $275 DEPENDENCY ALLOTMENT WAS ERRONEOUSLY PAID TO HIS WIFE FOR MAY AND TWICE FOR JUNE 1976. MR. DELANEY SUBSEQUENTLY REPAID $550 OF THE OVERPAYMENT. THE MARINE CORPS STATES THAT UNDER THE CRITERIA SET FORTH IN 33 COMP.GEN. 309, THE ALLOTTEE WOULD BE HELD LIABLE, BUT THEY FEEL THE POSSIBILITY OF JOINT LIABILITY MAY EXIST BECAUSE OF THE DECISION IN THE BATTS CASE.

IN VIEW OF THE COMPLEXITY OF ISSUES ENCOUNTERED WHEN DEALING WITH ALLOTMENT CASES, WE ASK THE FOLLOWING QUESTIONS:

1. IF ERRONEOUS ALLOTMENT PAYMENTS ARE MADE TO A DEPENDENT, AND THE MEMBER IS NOT AT FAULT AND IS UNAWARE OF THE ERRONEOUS PAYMENTS, TO WHAT EXTENT SHOULD THE ARGUMENT THAT THE MEMBER HAS A MORAL AND LEGAL OBLIGATION TO SUPPORT THE DEPENDENT BE USED IN DETERMINING LIABILITY FOR THE OVERPAYMENT?

2. WOULD THE ANSWER TO QUESTION 1 DIFFER DEPENDING ON WHETHER THE OVERPAYMENT WAS MADE WHILE THE MEMBER WAS ON ACTIVE DUTY, WAS IN A NON PAY STATUS, OR AFTER HE HAD BEEN DISCHARGED?

3. WOULD THE ANSWER TO QUESTION 1 DIFFER DEPENDING ON WHETHER THE DEPENDENT INVOLVED IS THE MEMBER'S SPOUSE, CHILD, OR OTHER RELATIVE DEPENDENT ON THE MEMBER FOR SUPPORT?

4. IF BOTH THE MEMBER AND SPOUSE RESIDE IN A COMMUNITY PROPERTY STATE, IS THAT FACT ALWAYS DETERMINATIVE OF A FINDING OF JOINT LIABILITY FOR ALLOTMENT OVERPAYMENTS?

5. CAN A MEMBER BE HELD LIABLE FOR ERRONEOUS ALLOTMENT PAYMENTS MADE AFTER HIS SEPARATION WHERE SUCH ALLOTMENT PAYMENTS, ALTHOUGH SUBSTANTIAL, CONTINUED FOR ONLY ONE OR TWO MONTHS?

6. IF ANY OR ALL OF THE MEMBERS IN THE FIVE CITED CASES SHOULD BE DETERMINED TO BE JOINTLY LIABLE FOR THE ERRONEOUS ALLOTMENT PAYMENTS RECEIVED BY THEIR DEPENDENTS, IS WAIVER APPROVAL APPROPRIATE IN ANY OF THE CASES?

WHILE THE QUESTIONS WE ARE ASKING ABOVE CONCERN DETERMINATIONS OF LIABILITY FOR WAIVER CONSIDERATION UNDER 10 U.S.C. 2774, WE REALIZE THAT THE CRITERIA USED FOR SUCH DETERMINATIONS WILL ALSO BE APPLIED BY THE AGENCIES FOR PURPOSES OF PURSUING DEBT COLLECTION UNDER THE FEDERAL CLAIMS COLLECTION ACT AND IN ADJUDICATING CLAIMS FOR REFUND OF AMOUNTS COLLECTED FROM MEMBERS IN SUCH CASES. IN THIS REGARD, WE HAVE BEEN INFORMALLY ASKED BY THE MARINE CORPS FOR ADVICE ON SEVERAL OTHER QUESTIONS RELATING TO ALLOTMENT OVERPAYMENTS. THESE FURTHER QUESTIONS ARE PRESENTED BELOW:

7. IN THE DELANEY CASE, AS OF MAY 1, 1980, THE INDEBTEDNESS OF $952.28 HAS BEEN REDUCED TO $101.28 THROUGH PERIODIC INSTALLMENT PAYMENTS. MANY OF THE INSTALLMENT PAYMENTS WERE MADE BY CHECK SIGNED BY LETICIA DELANEY, THE ORIGINAL ALLOTTEE, WHILE OTHER CHECKS WERE SIGNED BY DAVID DELANEY, BUT APPARENTLY DRAWN ON THEIR JOINT CHECKING ACCOUNT. IF IT IS DETERMINED THAT ONLY THE ALLOTTEE IS LIABLE FOR THE ALLOTMENT, TO WHAT EXTENT, IF ANY, SHOULD THE MARINE CORPS REFUND AMOUNTS REPAID TOWARDS THE ALLOTMENT OVERPAYMENT?

8. IF IN OTHER CASES ONLY THE ALLOTTEE IS DETERMINED TO BE LIABLE AND THERE ARE UNPAID FUNDS DUE A SEPARATED MEMBER, SHOULD THE MARINE CORPS ESTABLISH AN INDEBTEDNESS FOR THE DIFFERENCE BETWEEN THE ALLOTMENT OVERPAYMENT AND THE UNPAID FUNDS OR SHOULD THE SERVICE PAY THE SEPARATED MEMBER THE UNPAID FUNDS AND ESTABLISH AN INDEBTEDNESS FOR THE FULL ALLOTMENT OVERPAYMENT?

9. IN CASES WHERE LIABILITY CANNOT BE CLEARLY ESTABLISHED BASED ON THE PRESENT RECORD, IS IT PROPER FOR A SERVICE TO ISSUE DEMAND LETTERS TO BOTH THE FORMER SERVICE MEMBER AND THE ALLOTTEE, OR SHOULD THE SERVICE ATTEMPT TO MAKE A POSITIVE DETERMINATION OF LIABILITY PRIOR TO ISSUANCE OF DEMAND LETTERS TO THE FORMER SERVICE MEMBER?

WE WOULD APPRECIATE AS MUCH GUIDANCE AS CAN BE GIVEN IN THIS AREA, ESPECIALLY AS TO WHETHER ANY MODIFICATIONS TO THE STANDARDS SET FORTH IN 33 COMP.GEN. 309 SHOULD BE FOLLOWED.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858)

RETURNED. THE QUESTIONS WILL BE ANSWERED IN THE SAME ORDER AS PRESENTED AND WILL NOT BE RESTATED.

1. AS IS ILLUSTRATED IN OLLIE N. MARSHALL, B-193400, JANUARY 31, 1979, THE MORAL AND LEGAL OBLIGATION OF A MEMBER TO SUPPORT HIS DEPENDENTS IS AN IMPORTANT CONSIDERATION IN DETERMINING WHETHER THE MEMBER MAY BE LIABLE FOR OVERPAYMENT OF ALLOTMENT PAYMENTS TO DEPENDENTS. SPECIFICALLY, THE MARSHALL CASE INDICATES THAT THE BASIC TEST FOR DETERMINING THE MEMBER'S LIABILITY IS WHETHER THE MEMBER HAD AN INTEREST IN THE ALLOTMENT PAYMENTS, OR THE PROCEEDS FROM THE ALLOTMENT INURED TO HIS BENEFIT. IN DETERMINING THAT MR. MARSHALL WAS JOINTLY AND SEVERALLY LIABLE FOR REPAYMENT OF THE ERRONEOUS ALLOTMENT PAYMENTS MADE TO HIS WIFE WE INDICATED THAT HE HAD A MORAL AND LEGAL OBLIGATION TO SUPPORT HIS WIFE AND CHILDREN AND THE ERRONEOUS ALLOTMENT PAYMENT ALLOWED HIM TO FULFILL THIS RESPONSIBILITY. THEREFORE, HE DERIVED A BENEFIT AND WAS LIABLE FOR REPAYMENT.

WHILE THE MARSHALL CASE ILLUSTRATES THAT THE MORAL AND LEGAL OBLIGATION TO SUPPORT DEPENDENTS MAY RESULT IN THE MEMBER BEING LIABLE FOR REPAYMENT OF ERRONEOUS ALLOTMENTS, THE CASE DOES NOT MANDATE THAT EVERY MEMBER WILL BE LIABLE FOR REPAYMENT OF ERRONEOUS ALLOTMENT PAYMENTS MADE TO HIS DEPENDENTS. THIS IS MADE CLEAR WHEN THE MARSHALL CASE IS READ IN CONJUNCTION WITH CHARLES E. LAWLER, B-194027, MAY 17, 1979. THE LAWLER CASE CONCERNED WHETHER A MEMBER'S INDEBTEDNESS ARISING FROM AN ERRONEOUS PAYMENT OF ALLOTMENTS TO HIS DEPENDENTS WOULD BE WAIVED. IN REFUSING TO WAIVE THE DEBT, WE CONSIDERED CERTAIN FACTORS INCLUDING THE AMOUNT OF THE ALLOTMENT AND ITS RELATION TO THE SIZE OF THE MEMBER'S FAMILY, THE FACT OF WHETHER THE MEMBER LIVED WITH OR APART FROM HIS DEPENDENTS, AND THE ALTERNATE ARRANGEMENTS, IF ANY, MADE BY THE MEMBER TO SUPPORT HIS DEPENDENTS IN THE ABSENCE OF AN ALLOTMENT. WHILE THE LAWLER CASE SPECIFICALLY CONCERNED WAIVER, APPARENTLY THE INITIAL QUESTION OF THE MEMBER'S LIABILITY FOR REPAYMENT NEVER HAVING BEEN PUT IN ISSUE, WE BELIEVE THAT THE FACTORS CONSIDERED IN THE REQUEST FOR WAIVER ARE AMONG THOSE WHICH SHOULD BE CONSIDERED IN DETERMINING WHETHER THE MEMBER WOULD BE LIABLE FOR REPAYING ERRONEOUS ALLOTMENTS MADE TO HIS DEPENDENTS.

A DETERMINATION OF THE MEMBER'S LIABILITY SHOULD BE MADE PRIOR TO CONSIDERING WAIVER SINCE THERE IS NO NEED FOR WAIVER IF THE MEMBER HAS NO LIABILITY. ALSO, WHILE MANY OF THE SAME CONSIDERATIONS ARE INVOLVED IN A LIABILITY AND A WAIVER DETERMINATION, THEY ARE NOT IDENTICAL. THEREFORE, EVEN IF AN INDIVIDUAL'S LIABILITY IS ESTABLISHED, WAIVER MAY BE APPROPRIATE IF COLLECTION OF THE DEBT, AMONG OTHER THINGS, "WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTEREST OF THE UNITED STATES." SEE 10 U.S.C. SEC. 2774. THIS ASPECT WILL BE FURTHER CLARIFIED IN ANSWER TO QUESTION 6.

2. SINCE THE QUESTION OF WHETHER A MEMBER WILL BE LIABLE FOR ERRONEOUS PAYMENTS OF ALLOTMENTS TO HIS DEPENDENTS GENERALLY INVOLVES A FACTUAL DETERMINATION, THE MEMBER'S STATUS MAY BE RELEVANT; HOWEVER, NO HARD AND FAST RULE CAN BE FORMULATED AS TO WHETHER THE MEMBER'S STATUS STANDING ALONE WOULD BE DETERMINATIVE FOR HIS LIABILITY OR NONLIABILITY FOR REPAYMENT.

3. AGAIN AS IN QUESTION 2, WE ARE DEALING WITH AN ELEMENT OF FACT WHICH MAY BE RELEVANT TO A DETERMINATION OF A MEMBER'S LIABILITY BE CANNOT BE CONSIDERED OUTSIDE THE CONTEXT OF A SPECIFIC CASE. HOWEVER, AS WAS RECOGNIZED IN 33 COMP.GEN. 309, 312, THERE IS ORDINARILY A CLOSE COMMUNITY OF INTEREST, LEGAL OBLIGATION OF SUPPORT AND LIKELIHOOD OF JOINT KNOWLEGE BETWEEN THE MEMBER AND HIS SPOUSE AND CHILDREN. THIS MAY NOT EXIST BETWEEN THE MEMBER AND OTHER RELATIVES. THUS, THE RELATIONSHIP OF THE MEMBER TO THE DEPENDENT WOULD BE AN ELEMENT FOR CONSIDERATION.

4. GENERALLY, IF BOTH THE MEMBER AND HIS SPOUSE RESIDE IN A COMMUNITY PROPERTY STATE, THE MEMBER WILL BE JOINTLY AND SEVERALLY LIABLE FOR ERRONEOUS ALLOTMENT PAYMENTS MADE TO HIS SPOUSE SINCE THE PAYMENTS BECOME PART OF THE COMMUNITY PROPERTY IN WHICH THE MEMBER HAS AN INTEREST. THE RATIONALE FOR THIS RULE IS EXPLAINED IN RICHARD C. RUSHING, B-194692, JULY 24, 1979.

5. YES, AND SUCH DETERMINATION SHOULD BE DONE IN ACCORDANCE WITH THE DISCUSSIONS ABOVE. IN THIS TYPE OF SITUATION, THERE IS A HEAVIER BURDEN ON THE GOVERNMENT TO ESTABLISH THE MEMBER'S LIABILITY SINCE ERRONEOUS PAYMENTS CONTINUED FOR ONLY A SHORT TIME AFTER SEPARATION MAY MORE REASONABLY HAVE BEEN CONSIDERED BY THE RECIPIENTS AS RELATING TO THE MEMBER'S SERVICE THAN PAYMENTS MADE LONG AFTER SEPARATION. THE 3 MONTH/$200 GUIDELINE SET OUT IN 33 COMP.GEN. 309, 314 WAS BASED ON THESE CONSIDERATIONS. HOWEVER, IN VIEW OF THE MORE MODERN PAYMENT SYSTEMS AND FASTER TRANSPORTATION SERVICES NOW AVAILABLE, THAT GUIDELINE NEED NOT BE FOLLOWED WHEN IT STRONGLY APPEARS THAT THE MEMBER OR ALLOTTEE SHOULD HAVE BEEN AWARE THE PAYMENT WAS ERRONEOUS.

6. A MEMBER WHO IS DETERMINED TO BE JOINTLY OR SEVERALLY LIABLE MAY HAVE HIS DEBT TO THE UNITED STATES WAIVED. IN OTHER THAN A COMMUNITY PROPERTY STATE (WHERE THE MEMBER'S LIABILITY FLOWS FROM PRINCIPLES OF PROPERTY LAW AND NOT A FORMAL ADJUDICATION), IT WOULD BE UNUSUAL TO DO SO BUT NOT LEGALLY IMPOSSIBLE. THE TEST FOR THE MEMBER'S LIABILITY IS SEPARATE FROM THE TEST FOR WAIVER WHICH IS DONE PURSUANT TO THE REQUIREMENTS SET FORTH IN 10 U.S.C. SEC. 2774. THUS, ANY CONSIDERATION FOR WAIVER SHOULD BE DONE IN ACCORDANCE WITH THE GENERAL PRINCIPLES FOLLOWED IN ANY OTHER WAIVER CONSIDERATION BUT THE FACTS CAUSING THE MEMBER'S LIABILITY MUST BE CONSIDERED IN THE WAIVER ADJUDICATION.

7. ANY PAYMENTS OUT OF THE JOINT CHECKING ACCOUNT ARE NOT TO BE REFUNDED REGARDLESS OF WHETHER THE CHECKS WERE SIGNED BY MR. OR MRS. DELANEY SINCE THEY HAVE A JOINT INTEREST IN THE MONEY DEPOSITED IN SUCH AN ACCOUNT. SEE GENERALLY 41 C.J.S. HUSBAND AND WIFE SEC. 35. IN ADDITION, PAYMENTS BY MR. DELANEY ON HIS WIFE'S DEBT MAY CONSIDERED VOLUNTARY PAYMENTS ON A MORAL OBLIGATION. SEE 33 COMP.GEN. 309, 313.

8. IF THE ALLOTTEE IS SOLELY LIABLE THEN THERE IS NO BASIS TO WITHHOLD ANY AMOUNTS DUE THE SEPARATED MEMBER. ACCORDINGLY, THE SEPARATED MEMBER SHOULD RECEIVE ANY AMOUNTS OWED TO HIM, AND AN INDEBTEDNESS SHOULD BE ESTABLISHED AGAINST THE ALLOTTEE FOR THE FULL AMOUNT OF THE ALLOTMENT OVERPAYMENT.

9. WHERE SUFFICIENT EVIDENCE IS NOT AVAILABLE IN THE PRESENT RECORD TO CLEARLY ESTABLISH OTHERWISE, THE MEMBER AND THE ALLOTTEE MAY BE PRESUMED JOINTLY AND SEVERALLY LIABLE AND DEMAND LETTERS ISSUED TO BOTH.