B-155265, OCT. 29, 1964

B-155265, OCT. 29, 1964

TO MR. ALBERT W. PORTER, JR.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 19, 1964, IN EFFECT REQUESTING REVIEW OF SETTLEMENT OF OUR CLAIMS DIVISION DATED NOVEMBER 21, 1963, DISALLOWING YOUR CLAIM FOR REFUND OF CHECK AGES OF $119.70 FOR DISLOCATION ALLOWANCE, $95.04 TRAVEL ALLOWANCE FOR DEPENDENTS, PLUS THE DIFFERENCE IN BASIC ALLOWANCE FOR QUARTERS AT $119.70 A MONTH AND $94.20 A MONTH, FOR THE PERIOD JANUARY 1, 1957, THROUGH DECEMBER 1958. THE SETTLEMENT ALSO REQUESTED REPAYMENT OF THE AMOUNT OF $523.25, REPRESENTING OVERPAYMENT OF BASIC ALLOWANCE FOR QUARTERS (DIFFERENCE BETWEEN $94.20 AND $119.70 A MONTH DURING THE PERIOD APRIL 26 THROUGH DECEMBER 31, 1956), IN THE AMOUNT OF $218.25 AND EXCESSIVE READJUSTMENT PAYMENT--- ALLOWED YOU ON THE BASIS OF 18 YEARS OF ACTIVE SERVICE RATHER THAN 17 YEARS YOU ACTUALLY SERVED--- AMOUNTING TO $315, INCIDENT TO YOUR SERVICE IN THE U.S. NAVAL RESERVE.

THE RECORD SHOWS THAT ALTHOUGH YOU WERE THEN MARRIED TO MARIE JAMESON PORTER, YOU CLAIMED AND WERE PAID $285.12 FOR TRANSPORTATION OF YOUR ALLEGED DEPENDENTS, MARJORIE M. AND LEE PORTER, FROM UPPER DARBY, PENNSYLVANIA, TO CHULA VISTA, CALIFORNIA, DURING THE PERIOD JANUARY 22 TO MARCH 15, 1956. YOU ALSO CLAIMED AND WERE PAID $119.70 AS DISLOCATION ALLOWANCE FOR YOUR ALLEGED DEPENDENTS, MARJORIE AND LEE. THESE ITEMS TOTALING $404.82, WERE COLLECTED BY CHECK AGES AGAINST YOUR PAY. SINCE CHARGE I, SPECIFICATION 1, OF GENERAL COURT-MARTIAL ORDER NO. 126-58, DATED DECEMBER 9, 1958, MENTIONED ONLY $190.08 FOR REIMBURSEMENT FOR TRAVEL OF MARJORIE M. PORTER AS A FALSE AND FRAUDULENT CLAIM, YOU ASKED FOR REFUND OF THE AMOUNT OF $95.04 ALLOWED FOR TRANSPORTATION OF LEE PORTER.

BASED ON THE REFUSAL OF THE NAVY DEPARTMENT AND THIS OFFICE TO RECOGNIZE MARJORIE M. PORTER AS YOUR LEGAL WIFE AND THE ACTION OF THE SUPERIOR COURT, LONG BEACH BRANCH, STATE OF CALIFORNIA, IN RECOGNIZING THAT MARIE J. PORTER WAS YOUR LEGAL SPOUSE IN APRIL 1958 AND IN GRANTING HER AN INTERLOCUTORY DECREE OF DIVORCE, YOU CLAIMED THE DIFFERENCE BETWEEN THE BASIC ALLOWANCE FOR QUARTERS GRANTED AN OFFICER WITH DEPENDENTS AND THE ALLOWANCE YOU RECEIVED AS AN OFFICER WITHOUT DEPENDENTS FOR THE PERIOD JANUARY 1, 1957, THROUGH THE DATE OF HER DEATH ON DECEMBER 24, 1958.

SINCE YOU WERE MARRIED TO MARIE JAMESON PORTER AT THE TIME OF YOUR TRANSFER FROM UPPER DARBY TO CHULA VISTA, IT WAS STATED IN THE SETTLEMENT OF NOVEMBER 20, 1963, THAT YOU WERE NOT ENTITLED TO THE PAYMENTS OF TRAVEL AND DISLOCATION ALLOWANCES RECEIVED ON BEHALF OF YOUR ALLEGED DEPENDENTS, MARJORIE PORTER AND HER DAUGHTER LEE, AND THAT THE ENTIRE CHECK AGE OF $404.82 WAS PROPER. BECAUSE YOU OBTAINED A MEXICAN DIVORCE FROM MARIE JAMESON PORTER ON APRIL 25, 1956, AND MARRIED MARJORIE MANCILL ON APRIL 27, 1956, AND AGAIN ON JULY 16, 1956, AND SINCE YOU TERMINATED YOUR ALLOTMENT AT $150 PER MONTH FOR THE SUPPORT OF YOUR DEPENDENT WIFE, MARIE J. PORTER, EFFECTIVE MAY 31, 1956, YOUR CLAIM FOR INCREASED BASIC ALLOWANCE FOR QUARTERS WAS DISALLOWED FOR THE REASON THAT IT WAS NOT CONSIDERED THAT YOU HAD A DEPENDENT WIFE AFTER APRIL 25, 1956, IT HAVING BEEN HELD BY THE COURTS THAT WHERE AN OFFICER HAS REPUDIATED HIS MORAL AND LEGAL OBLIGATIONS TO SUPPORT A WIFE, HE IS IN NO DIFFERENT POSITION THAN THAT OF AN UNMARRIED FELLOW OFFICER.

APPARENTLY YOU HAVE ABANDONED YOUR CLAIM FOR $95.04, REPRESENTING REIMBURSEMENT FOR THE COST OF TRAVEL OF YOUR ALLEGED DEPENDENT, LEE PORTER. HOWEVER, IN YOUR LETTER OF AUGUST 19, 1964, YOU AGAIN ASKED REFUND OF THE DISLOCATION ALLOWANCE AND INCREASED BASIC ALLOWANCE FOR QUARTERS FOR 24 MONTHS FROM JANUARY 1957 THROUGH DECEMBER 1958 AND IN ADDITION CLAIMED THAT YOU ARE ENTITLED TO VARIOUS ITEMS OF INTEREST WHICH YOU SAY RESULTS IN A TOTAL AMOUNT OF $1,012.98 DUE YOU FROM THE UNITED STATES AS OF JULY 31, 1964. ACCORDINGLY, YOU SUGGEST THAT IF THE UNITED STATES WILL WRITE OFF THE BALANCE OF YOUR INDEBTEDNESS ($523.25 LESS THE $70 YOU HAVE PAID TO THE UNITED STATES ATTORNEY, LOS ANGELES, CALIFORNIA, OR $453.25), YOU WILL WRITE OFF THE $1,012.98 ALLEGED TO BE DUE YOU.

YOU BASE YOUR CLAIM FOR DISLOCATION ALLOWANCE AND INCREASED BASIC ALLOWANCE FOR QUARTERS ON THE FACT THAT IT HAS BEEN DETERMINED THAT MARIE J. PORTER WAS YOUR LAWFUL WIFE AND THAT DURING THE PERIOD FROM OCTOBER 1952 UNTIL APRIL 1956 YOU MADE PAYMENTS FOR HER SUPPORT UNDER A PROPERTY SETTLEMENT AGREEMENT ENTERED INTO IN SEPTEMBER 1952, AND FROM SEPTEMBER 1956 THROUGH DECEMBER 1958 YOU PAID HER $75 PER MONTH PURSUANT TO A COURT ORDER.

SECTION 2 (12) OF THE CAREER INCENTIVE ACT OF 1955, APPROVED MARCH 31, 1955, PUB.L. 20, 69 STAT. 21, AMENDED SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 814, 37 U.S.C. 253 (C), NOW 37 U.S.C. 407, TO AUTHORIZE PAYMENT OF A DISLOCATION ALLOWANCE EQUAL TO HIS MONTHLY BASIC ALLOWANCE FOR QUARTERS TO A MEMBER OF THE UNIFORMED SERVICES WHOSE DEPENDENTS ARE AUTHORIZED TO MOVE AND ACTUALLY MOVE IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION. THE DISLOCATION ALLOWANCE WAS PROVIDED ONLY WHERE THE MEMBER'S RECOGNIZED DEPENDENTS ACTUALLY MADE A MOVE IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION.

SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 231 (G) (1958 ED.) PROVIDED THAT FOR THE PURPOSES OF THAT ACT "THE TERM "DEPENDENT" SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES THE LAWFUL WIFE * * * OF ANY MEMBER OF THE UNIFORMED SERVICES * * *.' THIS OFFICE HAS PROCEEDED ON THE THEORY THAT STATUTORY PROVISIONS AUTHORIZING INCREASED ALLOWANCES ON ACCOUNT OF A "LAWFUL WIFE" GENERALLY RELIEVES AN OFFICER CLAIMING SUCH INCREASED ALLOWANCES FROM SHOWING THAT SHE IS IN FACT DEPENDENT ON HIM FOR HER SUPPORT OR THAT HE ACTUALLY DOES SUPPORT HER. 26 COMP. GEN. 514, 516. HOWEVER, IN THE CASE OF ROBEY V. UNITED STATES, 71 CT.CL. 561 (1931), THE COURT HELD THAT AN OFFICER OF THE NAVY WHO IS SEPARATED FROM HIS WIFE AND DOES NOT SUPPORT HER IS NOT ENTITLED TO ALLOWANCES PROVIDED BY LAW FOR AN OFFICER WITH A "LAWFUL WIFE.'

THE EVIDENCE INDICATES THAT YOU AND MARIE J. PORTER HAD NOT LIVED TOGETHER AS MAN AND WIFE SINCE OCTOBER 1952 AND, WHILE THE BONDS OF MATRIMONY BETWEEN YOU WERE NOT ABSOLUTELY DISSOLVED DURING HER LIFETIME, YOU ATTEMPTED TO OBTAIN A DIVORCE FROM HER IN MEXICO AND THEREAFTER MARRIED" MARJORIE MANCILL IN MEXICO AND ARIZONA. ALTHOUGH YOU SAY THAT YOU MADE SUBSTANTIAL MONTHLY PAYMENTS TO MARIE J. PORTER UNDER A MARRIAGE SETTLEMENT AGREED TO IN 1952, AND THAT YOU ALSO WERE REQUIRED TO PAY HER $75 PER MONTH UNDER AN ORDER OF THE COURT FROM SEPTEMBER 1956, NEITHER THE AGREEMENT NOR THE COURT ORDER ARE OF RECORD HERE AND YOUR UNSUPPORTED STATEMENT THAT THESE PAYMENTS WERE MADE MAY NOT BE ACCEPTED AS PROOF OF THE REPRESENTATIONS MADE. IF YOU SHOULD SUBMIT COPIES OF THE AGREEMENT AND THE COURT ORDER TOGETHER WITH SUCH EVIDENCE AS IS NOW AVAILABLE FROM YOUR OWN FILES, AS WELL AS THE FILES OF YOUR WIFE'S ATTORNEY, THAT YOU MADE THE PAYMENTS MENTIONED ABOVE, THE MATTER WILL BE GIVEN FURTHER CONSIDERATION.