B-152226, SEP. 10, 1963, 43 COMP. GEN. 249

B-152226, SEP. 10, 1963, 43 COMP. GEN. 249

QUARTERS ALLOWANCE - DEPENDENTS - MISSING WIFE THE ADMINISTRATIVE DISCONTINUANCE OF AN ENLISTED MEMBER'S CLASS Q ALLOTMENT UPON RECEIPT OF INFORMATION OF THE LONG, UNEXPLAINED ABSENCE OF HIS WIFE, AND THE SUSPENSION OF CREDITING HIS ACCOUNT WITH A BASIC ALLOWANCE FOR QUARTERS CONSTITUTING A DETERMINATION OF DEPENDENCY AND RELATIONSHIP UNDER SECTIONS 10 AND 11 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, AS AMENDED, 50 U.S.C. APP. 2210 AND 2211, WHICH DETERMINATION IS CONCLUSIVE AND FINAL AND NOT SUBJECT TO REVIEW IN ANY COURT OR BY ANY ACCOUNTING OFFICER OF THE GOVERNMENT, EXCEPT FOR FRAUD OR GROSS NEGLIGENCE, THE MEMBER IS NOT ENTITLED TO BE CREDITED FOLLOWING THE DISAPPEARANCE OF HIS WIFE WITH A BASIC ALLOWANCE FOR QUARTERS ON HER BEHALF; HOWEVER, SHOULD THE MEMBER SUBSEQUENTLY ESTABLISH BY ACCEPTABLE EVIDENCE THAT HE HAD AND HAS A DEPENDENT WIFE AND SHOULD AN ALLOTMENT FOR HER BE REINSTATED, THE MEMBER WOULD BE ENTITLED TO RETROACTIVE CREDIT FOR THE QUARTERS ALLOWANCE.

TO MAJOR M. T. EBETINO, DEPARTMENT OF THE ARMY, SEPTEMBER 10, 1963:

BY FIRST INDORSEMENT DATED MAY 23, 1963 (RECEIVED HERE AUGUST 8, 1963), THE ARMY FINANCE CENTER, FORWARDED YOUR LETTER OF MAY 17, 1963, WITH ENCLOSURES (ALLOCATED D.O. NO. A-719 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE), REQUESTING AN ADVANCE DECISION PRIMARILY WITH RESPECT TO WHETHER YOU ARE AUTHORIZED TO CREDIT SERGEANT JOHN D. SAVER COOL, RA 39038307, WITH A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT WIFE FOR THE PERIODS MAY 1 TO DECEMBER 31, 1962, AT THE RATE OF $77.10 PER MONTH AND FROM JANUARY 1 TO APRIL 30, 1963, AT THE RATE OF $105 PER MONTH.

YOU SAY THAT INFORMATION RECEIVED FROM SERGEANT JOHN D. SAVER COOL AND CORRESPONDENCE IN HIS FINANCIAL DATA RECORDS FOLDER INDICATE THAT HIS WIFE HAS BEEN MISSING SINCE JUNE 4, 1959, WHILE HE WAS STATIONED IN KOREA. THE SIXTH UNITED STATES ARMY CRIMINAL INVESTIGATION DIVISION WAS NOTIFIED AND WAS UNABLE TO LOCATE HER IN NORTHERN CALIFORNIA. SERGEANT SAVER COOL RETURNED TO THE UNITED STATES IN DECEMBER 1959 ON 45 DAYS' EMERGENCY LEAVE TO LOCATE HIS WIFE WHICH HE WAS UNABLE TO DO. ALL KNOWN INFORMATION PERTAINING TO HER DISAPPEARANCE IS ON FILE WITH THE SAN FRANCISCO, CALIFORNIA, POLICE DEPARTMENT. CLASS Q ALLOTMENT OF $137.10 FOR MEMBER'S WIFE, MRS. GLADYS N. SAVER COOL, WAS DISCONTINUED EFFECTIVE APRIL 30, 1962, UPON RECEIPT OF INFORMATION FROM THE MEMBER'S COMMANDING OFFICER THAT MRS. SAVER COOL HAS BEEN MISSING SINCE JUNE 1959. THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, HAS RECOMMENDED THE CREDITS FOR BASIC ALLOWANCE FOR QUARTERS BE SUSPENDED IF MEMBER IS RECEIVING BASIC ALLOWANCE FOR QUARTERS CURRENTLY. YOU ALSO SAY THAT DOUBTFUL ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS EXISTS BECAUSE OF THE FOLLOWING FACTORS:

A. THE LONG, UNEXPLAINED ABSENCE OF THE MEMBER'S WIFE.

B. THE MEMBER IS NOT VISIBLY CONTRIBUTING SUPPORT TO AN EXISTENT WIFE.

C. THE VERY REAL POTENTIAL THAT THE MEMBER MAY NO LONGER HAVE A DEPENDENT BECAUSE OF DEATH OR POSSIBLE LEGAL ACTION INITIATED BY THE WIFE WITHOUT HIS KNOWLEDGE.

D. CLASS Q ALLOTMENT CHECKS FOR THE PERIOD JUNE 1959 THROUGH APRIL 1962 WITH THE EXCEPTION OF THE CHECK FOR JUNE 1959, WHICH APPEARS TO HAVE BEEN CASHED BY MRS. SAVER COOL, AND THREE OTHER CHECKS ADMITTEDLY CASHED BY THE MEMBER, ARE CURRENTLY OUTSTANDING AND IN THE POSSESSION OF THE MEMBER.

E. NO EVIDENCE OR INFORMATION HAS BEEN OBTAINED WHICH WOULD INDICATE THAT THE WIFE MAY RETURN WITHIN A REASONABLE PERIOD OF TIME.

YOU REQUEST ADVANCE DECISION ON THE FOLLOWING QUESTIONS:

A. MAY THE MEMBER'S PAY ACCOUNT BE RECREDITED BASIC ALLOWANCE FOR QUARTERS AT THE RATE PRESCRIBED FOR A MEMBER WITH A DEPENDENT FOR THE PERIOD MAY 1, 1962 THROUGH DECEMBER 31, 1962?

B. IF THE ANSWER TO THE PRECEDING QUESTION IS IN THE AFFIRMATIVE, MUST DEDUCTIONS FOR THE CLASS Q ALLOTMENT BE MADE TO INCLUDE THE MEMBER'S MANDATORY CONTRIBUTION OF $60 PER MONTH?

C. MAY THE MEMBER'S PAY ACCOUNT BE RECREDITED BASIC ALLOWANCE FOR COLLECTED BY ADJUSTMENT ACTION ON APRIL 16, 1963?

D. MAY THE MEMBER BE CREDITED BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF HIS WIFE FROM APRIL 1, 1963, THE DATE CREDITS WERE STOPPED PENDING DETERMINATION OF ENTITLEMENT?

IN DETERMINING WHETHER A MEMBER HAS A LAWFUL WIFE WITHIN THE MEANING OF THE STATUTORY PROVISIONS AUTHORIZING INCREASED RENTAL ALLOWANCES, WHICH WOULD BE EQUALLY APPLICABLE TO A MEMBER WHOSE PAY ACCOUNT IS CREDITED WITH BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT WIFE, THIS OFFICE HAS PROCEEDED ON THE THEORY THAT THE LANGUAGE OF THE STATUTES, GENERALLY, WITH EXCEPTIONS NOT HERE MATERIAL, RELIEVES A MEMBER CLAIMING SUCH 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.

UNDER THE PROVISIONS OF SECTION 4 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 795, 50 U.S.C. APP. 2204 (H), A MEMBER IS ENTITLED TO A CREDIT FOR BASIC ALLOWANCE FOR QUARTERS ONLY IF HE HAS THE REQUIRED ALLOTMENT IN EFFECT FOR THE SUPPORT OF HIS DEPENDENT. THE STATUTE PRESUPPOSES THE EXISTENCE OF A DEPENDENT WHO WILL RECEIVE THE BENEFITS OF THE ALLOTMENT. COMPARE 37 COMP. GEN. 451. WHILE IT IS RECOGNIZED THAT WHERE A PERSON IS SHOWN TO HAVE BEEN ALIVE AT A CERTAIN TIME, IT IS PRESUMED OR INFERRED THAT HE WAS ALIVE AT A SUBSEQUENT TIME (25 C.J.S. DEATH, SECTION 5), THE FACT THAT THE MEMBER HAD A DEPENDENT ON A FIXED DATE DOES NOT NECESSARILY SUPPORT THE CONCLUSION THAT HE CONTINUED TO HAVE SUCH A DEPENDENT FOR QUARTERS ALLOWANCE PURPOSES WHERE THE DEPENDENT'S ABSENCE OR WHEREABOUTS REMAINS UNEXPLAINED. WE DO NOT BELIEVE THAT CONGRESS INTENDED THAT A MEMBER'S PAY ACCOUNT WOULD BE CREDITED WITH A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT WHERE, AS IN THIS CASE, THE DEPENDENT HAS DISAPPEARED AND HER LONG ABSENCE OR WHEREABOUTS REMAINS UNEXPLAINED.

WHILE SERGEANT SAVER COOL HAD A LAWFUL WIFE PRIOR TO JUNE 4, 1959, HER CONTINUED UNEXPLAINED ABSENCE SINCE THAT TIME SUGGESTS THE POSSIBILITY THAT THE MARITAL RELATIONSHIP BETWEEN THE PARTIES WAS DISSOLVED BY DEATH OR A FINAL DECREE OF DIVORCE. IN CASES SUCH AS THIS, WHERE THERE IS SUBSTANTIAL DOUBT AS TO WHETHER A CLAIMANT IS ENTITLED TO PAYMENT, THE BURDEN IS ON THE CLAIMANT TO PROVE HIS CLAIM AND ALL MATTERS INCIDENTAL THERETO REQUISITE TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES AND HIS RIGHT TO PAYMENT. LONGWILL V. UNITED STATES, 17 CT.CL. 288, AND CHARLES V. UNITED STATES, 19 CT.CL. 316.

IT IS OUR VIEW THAT THE LONG AND UNEXPLAINED ABSENCE OF SERGEANT SAVER COOL'S DEPENDENT RENDERS THE MATTER TOO DOUBTFUL TO WARRANT A CONCLUSION THAT THE MEMBER IS ENTITLED TO BE CREDITED WITH THE BASIC ALLOWANCE FOR QUARTERS ON HER BEHALF AFTER JUNE 1959. MOREOVER, IT APPEARS THAT THE ADMINISTRATIVE ACTION TAKEN TO DISCONTINUE THE MEMBER'S CLASS Q ALLOTMENT OF $137.10 FOR HIS WIFE EFFECTIVE APRIL 30, 1962, UPON RECEIPT OF INFORMATION FROM THE MEMBER'S COMMANDING OFFICER THAT THE WIFE HAS BEEN MISSING SINCE JUNE 1959, AND THE SUSPENSION OF CREDITING BASIC ALLOWANCE FOR QUARTERS CURRENTLY IN EFFECT CONSTITUTED A DETERMINATION OF DEPENDENCY AND RELATIONSHIP UNDER THE PROVISIONS OF SECTIONS 10 AND 11 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, AS AMENDED, 50 U.S.C. APP. 2210 AND 2211, WHICH DETERMINATION IS CONCLUSIVE AND FINAL AND NOT SUBJECT TO REVIEW IN ANY COURT OR BY ANY ACCOUNTING OFFICER OF THE GOVERNMENT EXCEPT FOR CASES INVOLVING FRAUD OR GROSS NEGLIGENCE.

ACCORDINGLY, ON THE PRESENT RECORD, IT MUST BE CONCLUDED THAT SERGEANT SAVER COOL IS NOT ENTITLED TO CREDIT OF A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT WIFE AFTER JUNE 1959. IN THE EVENT IT IS SUBSEQUENTLY ESTABLISHED BY ACCEPTABLE EVIDENCE THAT HE HAD AND HAS A DEPENDENT WIFE AND THE SECRETARY REINSTATES THE ALLOTMENT TO HER, IT APPEARS THAT HE WOULD BE ENTITLED TO A RETROACTIVE CREDIT OF THE QUARTERS ALLOWANCE AS PROVIDED BY THE STATUTE. IN THE LIGHT OF THE ANSWER TO QUESTION A, NO ANSWER IS REQUIRED TO THE REMAINING QUESTIONS.

THEREFORE, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE SUBMITTED VOUCHER, WHICH, WITH SUPPORTING PAPERS, IS RETAINED IN THIS OFFICE.

THE ALLOTMENT CHECKS COVERING THE PERIOD JUNE 1959 THROUGH APRIL 1962, MENTIONED IN YOUR SUBMISSION, ARE THE SUBJECT OF A BILL, H.R. 5422, WHICH WOULD CONFER JURISDICTION ON THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TO HEAR, DETERMINE, AND RENDER JUDGMENT ON THE CLAIM OF SERGEANT SAVER COOL AGAINST THE UNITED STATES FOR THE PROCEEDS OF THOSE CHECKS WHICH WERE ISSUED TO HIS WIFE, GLADYS N. SAVER COOL. IN OUR REPORT ON THAT BILL, WE ARE ADVISING THE CHAIRMAN, COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, THAT IF SERGEANT SAVER COOL WILL SURRENDER THE UNPAID CHECKS IN HIS POSSESSION AND SUBMIT A CANCELLATION OF HIS CLASS Q ALLOTMENT IN FAVOR OF MRS. SAVER COOL RETROACTIVE TO JULY 1, 1959, THE DEPARTMENT OF THE ARMY WILL TAKE APPROPRIATE ACTION TO REIMBURSE HIM FOR THE AMOUNT OF THE CHECKS LESS ANY CREDIT HE RECEIVED FOR BASIC ALLOWANCE FOR QUARTERS DURING THE PERIOD COVERED BY THOSE CHECKS.