B-130944, SEP. 24, 1957

B-130944, SEP. 24, 1957

TO MR. SAMUEL B. FRYEFIELD:

REFERENCE IS MADE TO YOUR LETTER OF JULY 16, 1957, REGARDING YOUR INDEBTEDNESS TO THE UNITED STATES FOR CERTAIN ERRONEOUS FAMILY ALLOWANCE PAYMENTS MADE TO YOUR FORMER WIFE WHILE YOU WERE SERVING IN THE NAVY.

IT WAS EXPLAINED TO YOU IN DECISION OF MAY 22, 1957, B-130944, THAT UNDER SECTION 106/C) (1) OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 383, AS AMENDED, PAYMENT OF FAMILY ALLOWANCE TO A WIFE LIVING SEPARATE AND APART FROM AN ENLISTED MAN UNDER A COURT ORDER OR WRITTEN AGREEMENT WAS AUTHORIZED ONLY WHEN AND TO THE EXTENT THAT THE COURT ORDER OR WRITTEN AGREEMENT MADE PROVISIONS FOR THE PAYMENT OF ALIMONY OR SUPPORT FOR HER. SINCE THE PAYMENTS IN QUESTION WERE MADE TO YOUR FORMER WIFE IN HER OWN RIGHT AFTER THE ENTRY OF THE INTERLOCUTORY AND FINAL DECREES OF DIVORCE TERMINATING YOUR MARRIAGE AND AS THE DEPARTMENT OF THE NAVY HAS REPORTED THAT THOSE DECREES MADE NO PROVISION FOR THE PAYMENT OF ALIMONY OR SUPPORT FOR YOUR WIFE, THE PAYMENTS WERE CONTRARY TO THE STATUTE AND CONSTITUTED ERRONEOUS PAYMENTS. THE RECORDS AVAILABLE TO US DO NOT SHOW THAT YOU MADE ANY EFFORT TO NOTIFY THE NAVY AUTHORITIES OF YOUR DIVORCE DURING THE PERIOD OF THESE PAYMENTS AND, HENCE, WE HELD THAT YOU ARE LIABLE FOR THE ERRONEOUS PAYMENTS.

IN YOUR LETTER OF JULY 16, 1957, YOU SAY THAT APPARENTLY WE ACCEPT A DOUBLE STANDARD OF ENTITLEMENT TO ALLOWANCES, ONE FOR OFFICERS AND ANOTHER FOR ENLISTED MEN. ALSO, YOU SAY THAT AN AGREEMENT WHICH WAS MADE A PART OF YOUR DIVORCE DECREE WAS VERBALLY APPROVED BY A NAVY FAMILY AFFAIRS OFFICER AT THE NAVAL STATION, TERMINAL ISLAND, CALIFORNIA, AND THE AMOUNTS CALLED FOR BY THAT AGREEMENT SHOW THAT AN EFFORT WAS MADE TO FULFILL THE FAMILY ALLOWANCE REQUIREMENTS AT THAT TIME. YOU ASK WHETHER, IN SUCH CIRCUMSTANCES, WE STILL MUST HOLD YOU LEGALLY LIABLE FOR THE PAYMENTS AND, IF SO, WHETHER YOU SHOULD APPLY TO THE COURTS FOR RELIEF OR SEEK TO HAVE A PRIVATE BILL INTRODUCED IN CONGRESS FOR YOUR RELIEF.

IT MAY BE STATED FOR YOUR INFORMATION THAT THE ONLY STANDARD WE USE IN RESOLVING QUESTIONS COMING UNDER OUR JURISDICTION IS THE LAW APPLICABLE TO THE PARTICULAR MATTER CONCERNED. IN SUCH CONNECTION, THE LAWS GOVERNING THE PAYMENT OF ALLOWANCES TO OFFICERS ARE SEPARATE AND DISTINCT FROM THE PROVISIONS OF THE SERVICEMAN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, AND DIFFER MATERIALLY IN CERTAIN RESPECTS. THE APPLICATION OF MATERIALLY DIFFERING STATUTORY PROVISIONS OBVIOUSLY MAY RESULT IN DIFFERENT CONCLUSIONS.

THE RECORDS FURNISHED US BY THE NAVY AUTHORITIES IN YOUR CASE DO NOT CONTAIN ANY AGREEMENT BETWEEN YOU AND YOUR FORMER WIFE PROVIDING THAT YOU MAKE PAYMENTS FOR HER SUPPORT, NOR WERE WE OTHERWISE INFORMED BY THE NAVY THAT SUCH AN AGREEMENT EXISTED. IF YOU WILL FURNISH US WITH COPIES OF ANY SUCH AGREEMENT AND THE DIVORCE DECREE WHICH INCORPORATES THE AGREEMENT, AND SUCH DOCUMENTS SHOW THAT YOU WERE REQUIRED TO CONTRIBUTE TO THE SUPPORT OF YOUR FORMER WIFE DURING THE PERIOD CONCERNED, WE WILL GIVE THIS MATTER FURTHER CONSIDERATION. IN THE ABSENCE OF SUCH EVIDENCE, HOWEVER, WE HAVE NO ALTERNATIVE BUT TO CONTINUE COLLECTION PROCEEDINGS AGAINST YOU FOR THE BALANCE OF THE AMOUNT DUE THE UNITED STATES IN THIS CASE.

REGARDING YOUR INQUIRY RELATIVE TO OBTAINING RELIEF IN THIS CASE, IT MAY BE STATED THAT SECTION 13 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 797, AUTHORIZES THE COMPTROLLER GENERAL, UPON THE RECOMMENDATION OF THE HEAD OF THE DEPARTMENT CONCERNED, OR SUCH SUBORDINATE AS HE MAY DESIGNATE, AND A SHOWING THAT COLLECTION WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE, TO WAIVE INDEBTEDNESSES GROWING OUT OF ERRONEOUS PAYMENTS OF ALLOWANCES UNDER THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED. ANY REQUEST FOR CONSIDERATION UNDER THAT PROVISION SHOULD BE ADDRESSED TO THE DEPARTMENT OF THE NAVY. AS TO POSSIBLE COURT ACTION YOUR ATTENTION MAY BE INVITED TO 28 U.S.C. 1346 AND 1491. THE MATTER OF A PRIVATE RELIEF BILL COULD BE TAKEN UP WITH THE APPROPRIATE MEMBER OF CONGRESS FROM THE STATE WHERE YOU RESIDE.