B-134904, FEB. 17, 1958

B-134904, FEB. 17, 1958

TO MR. LESLIE MILLER:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 16, 1957, FROM YOUR ATTORNEY, MR. WILLIAM M. HOUSER, JR., REGARDING AN INDEBTEDNESS RESULTING FROM FAMILY ALLOWANCE PAYMENTS MADE TO BYRLE MARGARET MILLER, YOUR FORMER WIFE, FOR THE PERIOD FROM MAY 1944 THROUGH FEBRUARY 1945.

YOU APPLIED, ON AUGUST 31, 1944, FOR THE FAMILY ALLOWANCE FOR BYRLE MARGARET MILLER, WHOM YOU DESIGNATED AS YOUR WIFE, AND REQUESTED THAT THE FAMILY ALLOWANCE BE MADE RETROACTIVE TO MAY 1, 1944. THE RECORDS INDICATE THAT SOME TIME ABOUT FEBRUARY 1945 YOU REQUESTED STOPPAGE OF THE FAMILY ALLOWANCE, AT WHICH TIME YOU FURNISHED A COPY OF A FINAL JUDGMENT OF DIVORCE ENTERED ON NOVEMBER 6, 1944, IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES, IN THE CASE OF BYRLE M. MILLER, PLAINTIFF V. LESLIE MILLER, DEFENDANT. IN THAT FINAL JUDGMENT OF DIVORCE IT WAS SHOWN THAT AN INTERLOCUTORY JUDGMENT OF DIVORCE IN FAVOR OF THE PLAINTIFF WAS ENTERED ON OCTOBER 27, 1943. PAYMENT OF THE FAMILY ALLOWANCE FOR THE PERIOD FROM MAY 1944 THROUGH AUGUST 1944, IN THE AMOUNT OF $200, WAS MADE BY CHECK NO. 13,806,347, DATED SEPTEMBER 27, 1944. THEREAFTER PAYMENTS AT THE RATE OF $50 A MONTH WERE MADE FOR THE 6-MONTH PERIOD FROM SEPTEMBER 1944 THROUGH FEBRUARY 1945. THE TOTAL OF SUCH PAYMENTS WAS $500. YOUR NAVY PAY RECORD FOR THE PERIOD FROM JULY 1 TO DECEMBER 31, 1944, SHOWS FAMILY ALLOWANCE DEDUCTIONS AT THE RATE OF $22 A MONTH FOR THE PERIOD FROM MAY 1944 THROUGH DECEMBER 1944 IN THE AMOUNT OF $176, AND YOUR PAY RECORD FOR THE PERIOD FROM JANUARY 1 TO JUNE 30, 1945, SHOWS FAMILY ALLOWANCE DEDUCTIONS AT THE RATE OF $22 A MONTH FOR THAT PERIOD IN THE AMOUNT OF $132. THE SUM OF $308, REPRESENTING THE TOTAL OF SUCH FAMILY ALLOWANCE DEDUCTIONS, WAS RECREDITED TO YOUR PAY ACCOUNT ON YOUR PAY RECORD FOR THE PERIOD FROM JANUARY 1 TO JUNE 30, 1945.

MR. HOUSER, CITING THE CASE OF PETERS V. PETERS, 60 F.2D 313, STATES THAT ALTHOUGH YOUR WIFE OBTAINED AN INTERLOCUTORY DECREE OF DIVORCE ON OCTOBER 27, 1943, THERE WAS A SUBSEQUENT RECONCILIATION AND THAT FOR SUCH REASON THE INTERLOCUTORY DECREE UNDER CALIFORNIA LAW BECAME NULL AND VOID. SAYS THAT YOU APPLIED FOR THE FAMILY ALLOWANCE, EFFECTIVE MAY 1944, IN GOOD FAITH AND THAT YOU IMMEDIATELY STOPPED THE FAMILY ALLOWANCE PAYMENTS WHEN YOU LEARNED IN FEBRUARY 1945 THAT YOUR WIFE, CONTRARY TO THE RECONCILIATION AND THE LAW OF CALIFORNIA, HAD RECEIVED A FINAL DIVORCE DECREE. HE CONTENDS THAT YOU SHOULD NOT BE FORCED TO PAY THE AMOUNT OF THE FAMILY ALLOWANCE PAYMENTS, SINCE YOU OWED A DUTY OF SUPPORT TO YOUR WIFE DURING THE PERIOD INVOLVED.

SECTION 106 (A) OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 382, PROVIDED THAT THE MONTHLY PAY OF AN ENLISTED MAN SHOULD BE REDUCED BY OR CHARGED WITH $22 FOR ANY MONTH FOR WHICH A FAMILY ALLOWANCE WAS PAID TO THE DEPENDENT OF SUCH ENLISTED MAN. SECTION 107 OF THE ACT, AS AMENDED BY THE ACT OF OCTOBER 26, 1943, 57 STAT. 579, PROVIDED THAT:

"/B) THE MONTHLY FAMILY ALLOWANCE PROVIDED FOR BY THIS TITLE SHALL BE PAID FOR THE PERIOD BEGINNING * * * AND SHALL BE TERMINATED OR REDUCED, AS MAY BE REQUIRED, ON THE LAST DAY OF THE MONTH IN WHICH THE DISBURSING OFFICER PAYING THE ALLOWANCE RECEIVES NOTICE OF A CHANGE IN STATUS OF THE ENLISTED MAN OR A DEPENDENT WHICH TERMINATED OR LIMITED THE RIGHT OF HIS DEPENDENT OR DEPENDENTS TO RECEIVE SUCH ALLOWANCE: PROVIDED, THAT THE ENTITLEMENT TO FAMILY ALLOWANCE SHALL TERMINATE OR BE MODIFIED AT THE END OF THE MONTH IN WHICH SUCH CHANGE IN STATUS OF THE ENLISTED MAN OR A DEPENDENT OCCURS * * *.'

YOUR ATTENTION IS INVITED TO OUR DECISION OF JANUARY 27, 1954, B 116606, B-118807, 33 COMP. GEN. 309, 312, WHERE, AS TO FAMILY ALLOWANCE PAYMENTS MADE WHILE THE ENLISTED MAN CONCERNED WAS IN THE SERVICE, IT WAS POINTED OUT THAT THE ENLISTED MAN WOULD BE JOINTLY LIABLE WITH THE RECIPIENT OF THE FAMILY ALLOWANCE FOR DEDUCTIONS NOT MADE FOR ANY INTERVENING MONTHS BETWEEN THE CHANGE OF STATUS AND THE DATE THE DISBURSING OFFICER RECEIVED NOTICE. HE WOULD NOT BE LIABLE FOR THE AMOUNT OF THE GOVERNMENT'S CONTRIBUTION TO SUCH FAMILY ALLOWANCE PAYMENTS FOR SUCH INTERVENING MONTHS, UNLESS IT WAS SHOWN THAT HE WAS AT FAULT.

ON THE BASIS OF THE FACTS AS SHOWN AND THE APPLICABLE STATUTORY PROVISIONS IT IS CONCLUDED, THEREFORE, THAT SINCE THE SUM OF $308, REPRESENTING THE TOTAL OF THE FAMILY ALLOWANCE DEDUCTIONS MADE FROM YOUR PAY FOR THE PERIOD FROM MAY 1944 THROUGH JUNE 1945 WAS RECREDITED TO YOUR PAY ACCOUNT WHILE YOU WERE IN THE SERVICE, YOU WERE OVERPAID IN THE AMOUNT OF $220 REPRESENTING YOUR REQUIRED CONTRIBUTION TO THE FAMILY ALLOWANCE AT THE RATE OF $22 A MONTH FROM MAY 1944 THROUGH FEBRUARY 1945.

OUR RECORDS SHOW THAT CHECK NO. 49,197, DATED NOVEMBER 17, 1945, FOR $46.69, WAS DRAWN TO YOUR ORDER BY J. H. RICHBURG ON VOUCHER NO. 3909 46, COVERING MILEAGE AND SUBSISTENCE ALLOWANCE INCIDENT TO YOUR TRAVEL FROM U.S. NAVAL RECEIVING STATION, TERMINAL ISLAND, SAN PEDRO, CALIFORNIA, TO U.S. NAVAL BARRACKS, PUGET SOUND NAVY YARD, BREMERTON, WASHINGTON, UNDER ORDERS DATED OCTOBER 10, 1945. THAT CHECK WAS CANCELED AND THE PROCEEDS WERE APPLIED IN PARTIAL LIQUIDATION OF YOUR INDEBTEDNESS, LEAVING A BALANCE OF $173.31 NOW DUE THE UNITED STATES. CALIFORNIA, TO U.S. NAVAL BARRACKS, PUGET SOUND NAVY YARD, BREMERTON, WASHINGTON, UNDER ORDERS DATED OCTOBER 10, 1945. THAT CHECK WAS CANCELED AND THE PROCEEDS WERE APPLIED IN PARTIAL LIQUIDATION OF YOUR INDEBTEDNESS, LEAVING A BALANCE OF $173.31 NOW DUE THE UNITED STATES.