B-130647, APR. 15, 1957

B-130647, APR. 15, 1957

TO MR. JOE CARROLL ANTHONY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 21, 1956, WHICH WAS RECEIVED BY US FROM THE CHIEF OF NAVAL PERSONNEL, DEPARTMENT OF THE NAVY, CONCERNING AN INDEBTEDNESS RESULTING FROM ERRONEOUS FAMILY ALLOWANCE PAYMENTS MADE TO MELVA ANTHONY, YOUR FORMER WIFE, FOR THE PERIOD FROM JUNE 1, 1946, THROUGH MARCH 31, 1947, WHILE YOU WERE SERVING IN THE NAVY.

IT APPEARS THAT YOU APPLIED FOR THE FAMILY ALLOWANCE FOR MELVA ANTHONY TO BE EFFECTIVE WITH THE MONTH OF DECEMBER 1943 AND THAT SUCH ALLOWANCE, AT $50 A MONTH, WAS PAID TO HER THROUGH MARCH 1947. ON JANUARY 20, 1947, WHILE STATIONED AT THE U.S. NAVAL AIR STATION, CORPUS CHRISTI,TEXAS, YOU ADDRESSED A COMMUNICATION TO THE CHIEF OF NAVAL PERSONNEL, VIA THE COMMANDING OFFICER, REQUESTING THAT FAMILY ALLOWANCE PAYMENTS TO MELVA ANTHONY BE DISCONTINUED BECAUSE YOU WERE DIVORCED FROM HER ON MAY 17, 1946, IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF MARIN. A COPY OF THE INTERLOCUTORY DECREE OF DIVORCE ENTERED IN THAT COURT ON MAY 24, 1946, IN THE CASE OF JOE ANTHONY, PLAINTIFF V. MELVA ANTHONY, DEFENDANT, AND YOUR SWORN STATEMENT DATED JANUARY 20, 1947, WERE ATTACHED TO THAT COMMUNICATION. BY AN ENDORSEMENT, ALSO DATED JANUARY 20, 1947, THE PAPERS WERE FORWARDED TO THE OFFICE OF THE CHIEF OF NAVAL PERSONNEL, WHERE THEY WERE RECEIVED ON JANUARY 28, 1947. THERE IS NO SHOWING THAT YOU GAVE ANY PRIOR NOTICE OF THE CHANGE IN YOUR MARITAL STATUS.

PRESUMABLY, THE CHECKS FOR JANUARY, FEBRUARY AND MARCH 1947 WERE ISSUED AFTER THE NAVY DEPARTMENT HAD RECEIVED THE EVIDENCE REGARDING SUCH CHANGE IN YOUR MARITAL STATUS. IN APPEARS, ALSO, THAT THE CHECK FOR DECEMBER 1946, WHICH HAD BEEN RETURNED BECAUSE THE PAYEE WAS NOT AT THE ADDRESS TO WHICH IT WAS SENT, WAS RELEASED TO HER BY THE NAVY DEPARTMENT ON MARCH 21, 1947. THEREAFTER, THE NAVY DEPARTMENT ON MAY 23, 1947, CONTINUED THE FAMILY ALLOWANCE IN QUESTION, EFFECTIVE MAY 31, 1946, RESULTING IN AN OVERPAYMENT FOR THE PERIOD FROM JUNE 1, 1946, TO MARCH 31, 1947, IN THE AMOUNT OF $500.

IN OUR DECISION DATED JANUARY 27, 1954, 33 COMP. GEN. 309, 314, IT WAS HELD THAT WHEN ERRONEOUS FAMILY ALLOWANCE PAYMENT FOR PERIODS PRIOR TO A MEMBER'S SEPARATION FROM THE SERVICE RESULT FROM THE MEMBER'S FAILURE TO GIVE THE GOVERNMENT TIMELY NOTICE OF CHANGE CONDITIONS KNOWN TO THE MEMBER (SUCH AS DIVORCE OF A DEPENDENT) AFFECTING THE ALLOWANCE, THE MEMBER IS REGARDED AT FAULT. IT WAS ALSO HELD THAT WHERE THE SERVICE MEMBER WAS AT FAULT, THE MEMBER AND THE PAYEE ARE JOINTLY AND SEVERALLY LIABLE TO REPAY THE AMOUNT AND COLLECTION MAY BE MADE WHOLLY FROM EITHER OR PARTLY FROM EACH.

SINCE NEITHER THE INTERLOCUTORY DECREE NOR THE FINAL DECREE, WHICH WAS DATED MAY 26, 1947, MADE PROVISION FOR THE PAYMENT OF ANY AMOUNT TO YOUR FORMER WIFE AND SINCE YOU WERE AT FAULT IN THAT YOU FAILED TO GIVE PROMPT NOTICE OF THE CHANGE IN YOUR MARITAL STATUS, YOU ARE JOINTLY AND SEVERALLY LIABLE WITH YOUR FORMER WIFE FOR THE FAMILY ALLOWANCE PAYMENTS TOTALING $300 MADE TO HER FOR THE PERIOD FROM JUNE 1 TO NOVEMBER 30, 1946. AS THE SUM OF $5 HAS BEEN COLLECTED FROM YOU, THE BALANCE REMAINING DUE IS $295. THE FAMILY ALLOWANCE DEDUCTIONS MADE FROM YOUR PAY DURING THE PERIOD INVOLVED ARE NOT FOR APPLICATION AGAINST THIS INDEBTEDNESS SINCE DURING SUCH PERIOD FAMILY ALLOWANCE PAYMENTS WERE ALSO MADE IN BEHALF OF LEE C. ANTHONY, YOUR MINOR SON BY A FORMER MARRIAGE. SINCE IT APPEARS THAT THE FAMILY ALLOWANCE CHECKS FOR DECEMBER 1946 AND FOR JANUARY, FEBRUARY AND MARCH 1947 WERE RELEASED AFTER THE NAVY DEPARTMENT HAD RECEIVED NOTICE OF THE CHANGE IN YOUR MARITAL STATUS, IT IS NOT CONSIDERED THAT YOU ARE LIABLE FOR SUCH ERRONEOUS PAYMENTS. THE PRESENT WHEREABOUTS OF MRS. MELVA ANTHONY (NOW MRS. MELVA TUCKER) IS NOT KNOWN.

ACCORDINGLY, THE MATTER OF YOUR INDEBTEDNESS IN THE REDUCED AMOUNT OF $295 IS BEING BROUGHT TO THE ATTENTION OF THE CHIEF OF NAVAL PERSONNEL, DEPARTMENT OF THE NAVY, FOR APPROPRIATE ACTION.