B-164188, SEP 9, 1969

B-164188, SEP 9, 1969

MILITARY - DEATH GRATUITY - ERRONEOUS PAYMENT DECISION CONCERNING DEBT REPRESENTING PAY AND ALLOWANCES DUE AT DEATH OF DECEASED AIR FORCE OFFICER WHICH WAS PAID TO WIFE BUT WHICH COURT DETERMINED WAS PROPERTY OF OFFICER'S MINOR CHILDREN. AN AFFIDAVIT BY THE WIFE OF DECEASED OFFICER PURPORTING TO REVOKE AN ASSIGNMENT HAS NO LEGAL SIGNIFICANCE AND BENEFICIARY NEVER HAD ANY RIGHT TO PAY AND ALLOWANCES. IN LETTER TO AIR FORCE ACCOUNTING AND FINANCE CENTER, ACTION TO RECOVER ERRONEOUS PAYMENT WAS RECOMMENDED.

TO KELSOE, STONE & PATERNOSTRO:

WE HAVE YOUR LETTER DATED AUGUST 14, 1969, ENCLOSING A DOCUMENT HEADED "PARTIAL REVOCATION OF ASSIGNMENT" EXECUTED JULY 31, 1969, BY MARIE FIORAVANTI MCKAY HOWELL, IN CONNECTION WITH HER INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $2,073.46 REPRESENTING UNPAID PAY AND ALLOWANCES DUE LIEUTENANT COLONEL JOBE HOWELL, DECEASED, AT DATE OF HIS DEATH, DECEMBER 30, 1965, WHICH WAS ERRONEOUSLY PAID TO HER BY THE AIR FORCE.

MRS. HOWELL'S AFFIDAVIT PURPORTS TO REVOKE, TO THE EXTENT OF $2,073.46, HER ASSIGNMENT DATED DECEMBER 9, 1968, WAIVING IN FAVOR OF WILLIAM C. MILLS AND MILLIE EXA MILLS, GUARDIANS OF THE PERSONS AND ESTATES OF WILLIAM JOBE HOWELL AND DIXIE LYNN HOWELL, MINORS, HER INTEREST IN THE DEATH GRATUITY IN THE AMOUNT OF $3,000. YOU SAY THAT "SINCE THERE WAS NEVER ANY INTENTION TO RELINQUISH HER RIGHTS TO THE $2,073.46, THERE WAS NEVER A MEETING OF THE MINDS WITH RESPECT TO THIS AMOUNT IN THE OTHER ASSIGNMENT."

IN OUR LETTER DATED APRIL 23, 1969, WE FULLY EXPLAINED WHY, PURSUANT TO THE ORDER OF THE 162ND JUDICIAL DISTRICT COURT OF DALLAS COUNTY, TEXAS, MRS. HOWELL WAS REQUIRED TO MAKE THE ASSIGNMENT OF THE DEATH GRATUITY PAYMENT IN THE AMOUNT OF $3,000. WE ALSO FULLY SET FORTH THE REASON WHY SHE NEVER HAD ANY RIGHT TO THE UNPAID PAY AND ALLOWANCES AND THAT THE PAYMENT OF $2,073.46 TO HER BY THE AIR FORCE WAS NOT AUTHORIZED AND WAS CLEARLY ERRONEOUS.

SINCE THE COURT, IN DETERMINING THE DISTRIBUTION OF THE VARIOUS AMOUNTS WHICH WERE SUBMITTED FOR ITS CONSIDERATION, FOUND THAT THE DEATH GRATUITY WAS THE PROPERTY OF WILLIAM JOBE HOWELL AND DIXIE LYNN HOWELL, THE ASSIGNMENT DATED DECEMBER 9, 1968, IN FAVOR OF THE GUARDIANS OF THE CHILDREN WAS MORE IN THE NATURE OF A QUIT-CLAIM OF HER RIGHT THERETO AND HAD NO BEARING ON THE AMOUNT DUE AS PAY AND ALLOWANCES WHICH WAS NOT BEFORE THE COURT. THE AFFIDAVIT EXECUTED BY MRS. HOWELL ON JULY 31, 1969, APPEARS TO BE SELF-SERVING DOCUMENT HAVING NO LEGAL SIGNIFICANCE SINCE SHE NEVER HAD ANY TITLE TO THE AMOUNT OF $2,073.46, AND THUS HAD NO RIGHTS TO ASSIGN IN ANY EVENT. IT SHOULD BE NOTED IN THIS CONNECTION THAT THE AMOUNT OF THE PAY AND ALLOWANCES DUE AT THE DEATH OF COLONEL HOWELL WAS NOT COVERED BY THE ASSIGNMENT OF DECEMBER 9, 1968.

ACCORDINGLY, MRS. HOWELL SHOULD BE ADVISED TO PROMPTLY REFUND TO THE AIR FORCE THE SUM OF $2, 073.46 WHICH WAS PAID TO HER ERRONEOUSLY.

A COPY OF THIS LETTER IS BEING FORWARDED TO THE DEPARTMENT OF THE AIR FORCE WITH A REQUEST THAT COLLECTION ACTION BE CONTINUED.