B-141401, JAN. 27, 1961

B-141401, JAN. 27, 1961

TO CAPTAIN WALTER W. BELL:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 1, 1960, RELATIVE TO THE MATTER OF YOUR INDEBTEDNESS TO THE UNITED STATES RESULTING FROM THE OVERPAYMENT OF A $200 PER MONTH CLASS E ALLOTMENT TO YOUR FORMER WIFE, MRS. ROSEANNA W. BELL (NOW MRS. DAVIS) DURING THE 17-MONTH PERIOD FROM JUNE 1951 TO OCTOBER 1952, INCLUSIVE.

THE ALLOTMENT IN QUESTION WAS INITIATED BY YOU IN THE MONTH OF APRIL 1951, TO BE EFFECTIVE AS OF MAY 1, 1951. ON MAY 24, 1951, YOU EXECUTED THE PRESCRIBED FORM (DD FORM 234) DISCONTINUING THE ALLOTMENT WITH PAYMENT AUTHORIZED ONLY FOR THE MONTH OF MAY 1951. THE RECORD INDICATES THAT THE DISCONTINUANCE FORM (TIMELY EXECUTED SO AS TO STOP THE ALLOTMENT WITH PAYMENT FOR THE MONTH OF MAY 1951, ONLY) WAS NOT ASSOCIATED IN THE ALLOTMENT OFFICE WITH YOUR ALLOTMENT ACCOUNT DUE TO THE FACT THAT A DIFFERENT (ALTHOUGH SIMILAR) ARMY SERIAL NUMBER WAS ENTERED ON THE DISCONTINUANCE FORM FROM THAT SHOWN ON THE AUTHORIZATION FORM EXECUTED BY YOU IN APRIL 1951. THUS, WHILE THE ALLOTMENT OFFICE CONTINUED TO PAY THE ALLOTMENT TO YOUR FORMER WIFE, NO DEDUCTIONS THEREFOR WERE MADE IN YOUR MILITARY PAY ACCOUNTS, RESULTING IN THE OVERPAYMENT OF THE ALLOTMENT FOR A PERIOD OF 17 MONTHS.

YOU DENY LIABILITY AS TO ANY PART OF THE OVERPAYMENT MADE TO YOUR FORMER WIFE INSOFAR AS SUCH LIABILITY CAN BE STATED TO REST ON THE DIFFERENT ARMY SERIAL NUMBERS WHICH WERE ENTERED ON THE PRESCRIBED FORMS FOR STARTING (0- 985828) AND STOPPING (0-9985828) THE CLASS E ALLOTMENT HERE IN QUESTION. IN THAT CONNECTION THE RECORD DISCLOSES DISCREPANCIES IN YOUR ARMY SERIAL NUMBER WITH RESPECT TO OTHER ALLOTMENTS OF YOUR PAY WHICH WERE IN EFFECT BOTH PRIOR TO AND DURING THE PERIOD (JUNE 1951 TO OCTOBER 1952) OF THE CLASS E ALLOTMENT IN QUESTION. THIS FACT ALONE THEREFORE SHOULD HAVE PLACED YOU ON NOTICE AS TO THE LIKELIHOOD OF AN ERROR OCCURRING IN YOUR ALLOTMENT ACCOUNT AS THE RESULT OF AN IMPROPERLY SHOWN SERIAL NUMBER AND HENCE AN EXTRA DEGREE OF DILIGENCE AND CAUTION WAS IN ORDER ON YOUR PART TO PREVENT SUCH A MISTAKE. HOWEVER, IN VIEW OF THE PARTICULAR CIRCUMSTANCES HERE PRESENTED, IT DOES NOT APPEAR THAT THE OVERPAYMENT RESULTING FROM DIFFERENT ARMY SERIAL NUMBERS SHOWN IN THE STARTING AND STOPPING ACTION TAKEN BY YOU WITH RESPECT TO THE CLASS E ALLOTMENT ABOVE REFERRED TO WAS ENTIRELY AND SOLELY YOUR FAULT.

HOWEVER THAT MAY BE, IT IS QUITE CLEAR THAT AT LEAST ONE REASON FOR THE OVERPAYMENT IN YOUR CLASS E ALLOTMENT ACCOUNT WAS THE FACT THAT YOU DID NOT COMMUNICATE WITH YOUR WIFE DURING THE PERIOD INVOLVED. IT IS STATED IN YOUR LETTER OF NOVEMBER 1, 1960, THAT YOU AND YOUR FORMER WIFE ,BECAME LEGALLY SEPARATED" IN THE MONTH OF FEBRUARY 1950; THAT IN APRIL 1951, YOU AUTHORIZED PAYMENT OF A CLASS E ALLOTMENT "FOR HER SUPPORT" AND THAT IN THE FOLLOWING MONTH OF MAY 1951, IN ORDER TO SECURE AN ADVANCE IN PAY UPON BEING TRANSFERRED TO GERMANY, YOU REQUESTED THAT THE CLASS E ALLOTMENT TO YOUR FORMER WIFE BE TERMINATED. YOU STATE THAT "INASMUCH AS MY WIFE AND I WERE SEPARATED SINCE FEBRUARY OF 1950, I HAD NO WAY OF KNOWING THAT SHE WAS RECEIVING THE ALLOTMENT OF $200 PER MONTH; I WAS NOT CORRESPONDING WITH HER AT ANY TIME AFTER THE SEPARATION.' YOU ALSO STATE THAT YOUR PRESENT PERSONAL AND FINANCIAL CIRCUMSTANCES HAVE RESULTED "FROM A RELIANCE ON MY PART UPON THE FACT THAT I WOULD NOT HAVE TO PAY AN ALLOTMENT TO MY EX-WIFE AFTER I TOOK STEPS TO TERMINATE SUCH ALLOTMENT.' ALSO, THAT YOU "HAVE NEVER RECEIVED ANY BENEFIT, TANGIBLE OR INTANGIBLE, FROM THE PAYMENT OF SUCH ALLOTMENT" TO YOUR FORMER WIFE.

SINCE YOU TERMINATED THE ONLY ALLOTMENT YOU HAD IN FAVOR OF YOUR FORMER WIFE AFTER PAYMENT FOR THE MONTH OF MAY 1951, AND INASMUCH AS YOU STATE THAT YOU DID NOT CORRESPOND WITH HER AFTER YOUR SEPARATION IN THE MONTH OF FEBRUARY 1950, IT DOES NOT APPEAR THAT YOU WERE EXTENDING ANY FINANCIAL SUPPORT TO YOUR FORMER WIFE DURING THE PERIOD OF YOUR MILITARY SERVICE (WITH THE EXCEPTION OF THE MONTH OF MAY 1951) FROM THE DATE OF YOUR ENTRANCE ON ACTIVE DUTY IN THE MONTH OF AUGUST 1950, TO JUNE 4, 1953, THE DATE THAT THE DECREE OF DIVORCE WAS ISSUED SEVERING THE MARITAL RELATIONSHIP THERETOFORE EXISTING BETWEEN YOU AND MRS. ROSEANNA BELL. THAT SITUATION, UNLESS THE CLASS E ALLOTMENT, WHICH WAS PAID TO YOUR WIFE FOR THE PERIOD FROM JUNE 1951 TO OCTOBER 1952, INCLUSIVE, IS NOW RECOGNIZED BY YOU AS FOR HER SUPPORT AND MAINTENANCE DURING THAT PERIOD, THERE WILL ARISE FOR THE CONSIDERATION BY THIS OFFICE THE BONA FIDES OF YOUR CLAIM FOR INCREASED RENTAL ALLOWANCE AS AN OFFICER WITH A DEPENDENT (WIFE) FOR ANY PART OF THE PERIOD (EXCEPT THE MONTH OF MAY 1951) PRECEDING THE DATE OF YOUR DIVORCE IN JUNE 1953; THAT IS, A REFUSAL BY YOU AT THIS TIME TO RECOGNIZE THE OVERPAYMENT OF THE CLASS E ALLOTMENT MADE TO YOUR FORMER LAWFUL WIFE DURING THE PERIOD JUNE 1951 TO OCTOBER 1952 WOULD APPEAR TO BE TANTAMOUNT TO AN EXPRESS DENIAL BY YOU OF ANY SUPPORT FOR YOUR THEN LAWFUL WIFE. CONSEQUENTLY THE VALIDITY OF THE PAYMENTS OF INCREASED RENTAL ALLOWANCES MADE TO YOU FOR THE PERIOD PRECEDING JUNE 4, 1953, WOULD BE BROUGHT INTO ISSUE, ESPECIALLY SINCE THE RECORD AND YOUR OWN STATEMENTS IN THE LETTER OF NOVEMBER 1, 1960, STRONGLY INDICATE THAT YOU DID NOT CONTRIBUTE TO THE SUPPORT OF YOUR THEN LAWFUL WIFE ON WHOSE ACCOUNT YOU CLAIMED AND RECEIVED INCREASED RENTAL ALLOWANCES AS AN OFFICER WITH A DEPENDENT (WIFE).

IN DETERMINING WHETHER AN OFFICER HAS A "LAWFUL WIFE" WITHIN THE MEANING OF THE STATUTORY PROVISIONS AUTHORIZING INCREASED RENTAL ALLOWANCES, THIS OFFICE HAS PROCEEDED ON THE THEORY THAT THE LANGUAGE OF THE STATUTES GENERALLY RELIEVES AN OFFICER CLAIMING INCREASED ALLOWANCES ON ACCOUNT OF A LAWFUL WIFE FROM SHOWING THAT SHE IS IN FACT DEPENDENT ON HIM FOR HER SUPPORT OR THAT HE ACTUALLY DOES SUPPORT HER. THAT VIEW IS CONSISTENT WITH THE DECISIONS OF THE COURT OF CLAIMS IN STRAUSS V. UNITED STATES, 73 CT.CL. 690, AND RAWLINS V. UNITED STATES, 93 CT.CL. 231. HOWEVER, THAT GENERAL RULE IS NOT FREE FROM SOME EXCEPTIONS. FOR EXAMPLE, SUCH INCREASED ALLOWANCES WERE DENIED AN OFFICER IN THE CASE OF ROBEY V. UNITED STATES, 71 CT.CL. 561, NOTWITHSTANDING PROOF THAT HIS MARITAL RELATIONSHIP HAD NOT TERMINATED, THE COURT STATING THAT ,WHILE THE PLAINTIFF HAD A LAWFUL WIFE DURING THE PERIOD OF HIS CLAIM, HE REPUDIATED HIS MORAL AND LEGAL OBLIGATIONS TO PROVIDE FOR HER AND IS IN NO DIFFERENT POSITION THAN THAT OF AN UNMARRIED FELLOW OFFICER.' THUS, IT HAS BEEN HELD THAT, NOTWITHSTANDING THE LITERAL TERMS OF THE STATUTES, THE PROVISIONS FOR THE PAYMENT OF INCREASED RENTAL ALLOWANCES FOR DEPENDENTS ARE NOT INTENDED TO CONFER AN OUTRIGHT GRATUITY ON MEMBERS WHO REPUDIATE THEIR OBLIGATIONS TO SUPPORT THEIR DEPENDENTS OR WHO ARE WHOLLY ABSOLVED OF SUCH AN OBLIGATION.

ON THE BASIS OF THE PRESENT RECORD, WE ARE UNABLE TO CONCLUDE THAT YOU SHOULD NOT BE HELD LIABLE IN CONNECTION WITH THE CLASS E ALLOTMENT OVERPAYMENTS WHICH WERE MADE TO YOUR FORMER WIFE, MRS. ROSEANNA BELL (NOW MRS. DAVIS) OF 4108 16TH STREET, ECORSE 29, MICHIGAN.