B-121613, MAR 7, 1955

B-121613, MAR 7, 1955

PRECIS-UNAVAILABLE

EMERSON E. SETTLES, JR.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 10, 1954, WITH ENCLOSURES, REQUESTING REVIEW OF SETTLEMENT DATED AUGUST 30, 1954, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $788.20 DEDUCTED FROM YOUR PAY ON ACCOUNT OF ERRONEOUS PAYMENT OF FAMILY ALLOWANCE TO MILDRED JUNE SETTLES TOTALING $1,190.

THE RECORD SHOWS THAT THE INTERLOCUTORY DECREE OF DIVORCE GRANTED ON APRIL 10, 1945, TO HER AS THE WIFE OF RICHARD E. CORNELL IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES, HAD NOT BECOME FINAL ON DECEMBER 6, 1945, THE DATE OF YOUR MARRIAGE TO HER AT LAS VEGAS, NEVADA. FINAL DECREE OF DIVORCE WAS ENTERED IN THAT ACTION ON MAY 7, 1946.

FAMILY ALLOWANCE PAYMENTS WERE MADE TO HER AT THE RATE OF $50 PER MONTH FOR THE PERIOD JANUARY 1946 THROUGH FEBRUARY 1947, AND AT THE RATE OF $80 PER MONTH COMMENCING MARCH 1947. EXCEPT FOR THE THREE MONTH PERIOD JULY THROUGH SEPTEMBER 1948, SUCH PAYMENTS WERE CONTINUED THROUGH FEBRUARY 1949. IT IS INDICATED THAT YOUR MARRIAGE TO MRS. SETTLES HAS NOW BEEN ANNULLED ON THE GROUND THAT SHE WAS THE WIFE OF MR. CORNELL AT THE TIME OF HER MARRIAGE TO YOU. WHILE THE DATE OF THE DECREE IS NOT SHOWN, THE COMPLAINT IN THAT ACTION WAS FILED BY HER ON FEBRUARY 16, 1950, IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES.

UNDER DATE OF FEBRUARY 25, 1952, THE CHIEF OF FIELD BRANCH, BUREAU OF SUPPLIES AND ACCOUNTS, DEPARTMENT OF THE NAVY, PURSUANT TO AUTHORITY DELEGATED TO HIM BY THE SECRETARY OF THE NAVY UNDER SECTION 13 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 794, 797, RECOMMENDED WAIVER OF THE INDEBTEDNESS TO THE GOVERNMENT ARISING OUT OF THE FOREGOING PAYMENTS AND SUCH INDEBTEDNESS IN THE SUM OF $1,190 WAS WAIVED ON NOVEMBER 20, 1952, AS TO MRS. SETTLES, BY THE WAIVER COMMITTEE OF OUR CLAIMS DIVISION UNDER AUTHORITY CONTAINED IN THAT ACT.

AFTER CHECK AGE HAD BEEN INITIATED AGAINST YOUR PAY FOR THAT AMOUNT AND PARTIAL COLLECTION HAD BEEN EFFECTED, YOU REQUESTED BY LETTER OF SEPTEMBER 16, 1953, THAT THE DEBT BE WAIVED. IN WAIVING THE FULL AMOUNT OF THE INDEBTEDNESS ($1,190) ON APRIL 6, 1954, THE WAIVER COMMITTEE ASSUMED THAT SUCH AMOUNT STILL WAS UNLIQUIDATED, ALTHOUGH CHECK AGE IN THE AMOUNT OF $788.20 HAD BEEN ACCOMPLISHED AS OF THAT DATE. WHILE POSSIBLY UNFORTUNATE FROM YOUR POINT OF VIEW, THE FACT THAT DEDUCTIONS WERE BEING MADE FROM YOUR PAY BETWEEN THE DATE YOU APPLIED FOR WAIVER AND DATE OF EVENTUAL WAIVER MAY NOT SERVE TO AUTHORIZE REFUND OF ANY PART OF THE DEBT WHICH HAD BEEN COLLECTED PRIOR TO APRIL 6, 1954.

THE WAIVER COMMITTEE HAD AUTHORITY TO WAIVE ONLY SUCH AMOUNT AS WAS DUE AT THE TIME THE WAIVER ACTION WAS TAKEN. IF THE COMMITTEE HAD BEEN AWARE OF THE ACTUAL FACTS AS TO THE AMOUNT WHICH HAD BEEN COLLECTED, WAIVER WOULD HAVE BEEN MADE ONLY OF THE AMOUNT STILL DUE. THE COMMITTEE'S WAIVER OF THE LARGER AMOUNT WAS INADVERTENT AND CONFERRED NO RIGHT TO REFUND OF THE $788.20, SINCE ITS AUTHORITY EXTENDED ONLY TO THE UNCOLLECTED AMOUNT DUE THE GOVERNMENT. IN THE CIRCUMSTANCES SHOWN THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM AND THE SETTLEMENT OF AUGUST 30, 1954, ACCORDINGLY, IS SUSTAINED.