B-163558, JUL 15, 1968

B-163558, JUL 15, 1968

PRECIS-UNAVAILABLE

MR. SECRETARY:

FURTHER REFERENCE IS MADE TO LETTER DATED FEBRUARY 12, 1968, FROM THE ACTING ASSISTANT SECRETARY OF THE ARMY (FM), REQUESTING A DECISION IN THE CASE OF SERGEANT HENRY K. JACOBUS, RA 51 262 905, RETIRED, MENTAL INCOMPETENT, WHEREIN THE COMMITTEE OF THE MEMBER'S PERSON AND ESTATE CLAIMS A PORTION OF THE RETIRED PAY WHICH ACCRUED TO THE MEMBER FOR THE PERIOD JULY 28 THROUGH OCTOBER 31, 1966. THAT RETIRED PAY HAS BEEN PAID TO THE MEMBER'S WIFE AS HIS GUARDIAN. THE REQUEST FOR DECISION HAS BEEN ASSIGNED SUBMISSION NO. SS-A-972 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE SAID LETTER INDICATES THAT IN 1965 THE MEMBER, WHILE STATIONED AT SCHOFIELD BARRACKS, PEARL HARBOR, HAWAII, WAS INVOLVED IN A MOTORCYCLE ACCIDENT. AS A RESULT OF INJURIES SUSTAINED, THE MEMBER WAS RETIRED ON JULY 28, 1966, WITH A PERMANENT DISABILITY RATING OF 100 PERCENT AFTER HAVING BEEN ADJUDGED MENTALLY INCOMPETENT BY THE CIRCUIT COURT OF THE FIRST CIRCUIT OF HAWAII IN MARCH 1966. PURSUANT TO THAT DETERMINATION, A DUAL GUARDIANSHIP WAS ESTABLISHED IN HAWAII WHEREIN THE CHIEF CLERK OF THE COURT WAS APPOINTED GUARDIAN OF THE MEMBER'S ESTATE AND HIS WIFE, DOROTHY JACOBUS, WAS APPOINTED GUARDIAN OF HIS PERSON.

THE LETTER FURTHER STATES THAT ON JULY 18, 1966, MRS. THELMA CHANG, CHIEF CLERK OF THE COURT, WROTE TO THE ARMY FINANCE CENTER ADVISING OF THE GUARDIANSHIP AND SOUGHT RELEASE OF MONIES DUE THE MEMBER IN ORDER THAT MRS. JACOBUS COULD MEET HER LIVING EXPENSES. ON JULY 25, 1966, MRS CHANG WAS REQUESTED TO SUBMIT AN ITEMIZATION OF MRS. JACOBUS' LIVING EXPENSES, WHICH LIST WAS SUPPLIED ON SEPTEMBER 16, 1966.

IT APPEARS THAT ABOUT THE SAME TIME A SIMILAR LETTER WAS RECEIVED BY THE ARMY FINANCE CENTER FROM MRS. JACOBUS AS IT IS STATED THAT ON AUGUST 8, 1966, SHE WAS ADVISED BY THE FINANCE CENTER THAT IN ORDER FOR HER TO OBTAIN PAYMENT SHE SHOULD ARRANGE TO HAVE A GUARDIAN APPOINTED FOR HER HUSBAND, OR IN LIEU THEREOF, THE ARMY COULD DESIGNATE A TRUSTEE PURSUANT TO 37 U.S.C. 602. IN RESPONSE, MRS. JACOBUS ADVISED THE ARMY FINANCE CENTER OF HER APPOINTMENT AS GUARDIAN AND ENCLOSED PROOF OF THE GUARDIANSHIP. THEREAFTER, NOTWITHSTANDING THE FACT THAT THE PAPERS RECEIVED RELATED TO HER GUARDIANSHIP OF THE MEMBER'S PERSON, NOT HIS ESTATE, MRS. JACOBUS WAS PAID $1,798.07 AS THE DUE BUT UNPAID ACTIVE DUTY PAY OF THE MEMBER AND RETIRED PAY IN THE AMOUNT OF $684.32 FOR THE PERIOD JULY 28 THROUGH OCTOBER 31, 1966.

AFTER THE PAYMENTS MENTIONED WERE MADE AND BEFORE FURTHER PAYMENTS, THE FINANCE CENTER RECEIVED A LETTER FROM THE MEMBER'S BROTHER, A MR. ROBERT FOSTER, IN WHICH HE ADVISED THAT MRS. JACOBUS NO LONGER DESIRED THE RESPONSIBILITIES OF GUARDIANSHIP. WHETHER THIS WAS CONFIRMED AT THAT TIME WITH EITHER MRS. JACOBUS OR MRS. CHANG IS NOT DISCLOSED; HOWEVER, IT APPEARS THAT MR. FOSTER WAS APPOINTED COMMITTEE OF THE PERSON AND ESTATE OF THE MEMBER BY A NEW YORK COURT IN APRIL 1967. ON JUNE 5, 1967, THE FINAL ACCOUNTS OF THE HAWAIIAN GUARDIANSHIP OF THE ESTATE WERE APPROVED BY THE FIRST CIRCUIT COURT OF HAWAII AND THE DUAL GUARDIANSHIP DISSOLVED. PRESUMABLY THAT ACCOUNTING INCLUDED THE RETIRED PAY THAT HAD BEEN RECEIVED BY MRS. JACOBUS AS GUARDIAN OF THE RETIRED MEMBER. ON JUNE 30, 1967, PAYMENT OF THE MEMBER'S RETIRED PAY FOR THE PERIOD OF NOVEMBER 1, 1966, THROUGH JUNE 30, 1967, WAS MADE TO MR. FOSTER, AS COMMITTEE, PRESUMABLY BASED ON RECEIPT OF DOCUMENTATION OF THIS APPOINTMENT AND TERMINATION OF THE HAWAIIAN GUARDIANSHIP.

MR. FOSTER PRESENTLY CLAIMS $183 OF EACH MONTHLY INSTALLMENT OF RETIRED PAY WHICH ACCRUED TO THE MEMBER FOR THE PERIOD JULY 28, 1966, TO OCTOBER 31, 1966, OR APPROXIMATELY $550. HE APPARENTLY CONTENDS THAT OF THE $233 PER MONTH RETIRED PAY WHICH THE MEMBER WAS ENTITLED TO RECEIVE DURING THAT PERIOD ONLY $50 PER MONTH SHOULD HAVE BEEN PAID TO THE MEMBER'S WIFE AS HER APPROPRIATE SHARE AND THAT THE AMOUNT IN EXCESS OF $50 PER MONTH WAS IMPROPERLY PAID.

THE QUESTIONS PRESENTED TO THIS OFFICE FOR DECISION ARE:

(1) WHETHER MR. FOSTER, AS COMMITTEE, MAY RECOVER FROM THE UNITED STATES ALL OR PART OF THE AMOUNTS PAID TO MRS. JACOBUS?

(2) IF HE MAY RECOVER, WHAT SHOULD THE EXTENT OF THAT RECOVERY BE?

(3) IF THE FIRST TWO QUESTIONS ARE RESOLVED IN MR. FOSTER'S FAVOR, SHOULD THE ARMY PROCEED AGAINST MRS. JACOBUS TO RECOVER THE AMOUNT WHICH MUST BE PAID TO MR. FOSTER?

THE RETIRED PAY CLAIMED BY MR. FOSTER HAS BEEN PAID TO THE MEMBER'S WIFE IN HER CAPACITY AS GUARDIAN (OF THE MEMBER'S PERSON) CREATED AND UNDER THE CONTROL OF A HAWAIIAN COURT. WHILE THE PAY IN QUESTION SHOULD HAVE BEEN PAID TO THE GUARDIAN OF HIS ESTATE APPOINTED AND UNDER THE CONTROL OF THE SAME HAWAIIAN COURT, THERE IS NO INDICATION THAT THE PAY WAS NOT RECEIVED FOR AND ON BEHALF OF THE MEMBER AND HIS FAMILY OR THAT THE HAWAIIAN COURT WAS NOT AWARE OF ALL THE FACTS RELATING TO HIS ESTATE WHEN THE GUARDIANSHIP ACCOUNTS WERE APPROVED BY THE COURT AND THE DUAL GUARDIANSHIP DISSOLVED.

IN THE CIRCUMSTANCES WE KNOW OF NO PROPER BASIS FOR THE ADMINISTRATIVE PAYMENT OF RETIRED PAY FOR THE PERIOD JULY 28 THROUGH OCTOBER 31, 1966, TO THE NEW YORK GUARDIAN. ACCORDINGLY, THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE, AND THE SECOND AND THIRD QUESTIONS REQUIRE NO ANSWER.