B-168018, NOV 20, 1974

B-168018, NOV 20, 1974

1. WHERE FORMER MEMBER SUBMITS COPY OF MILITARY PAY VOUCHER SHOWING WITHHOLDING FOR A CLASS Q ALLOTMENT AUTHORIZED UNDER 50 U.S.C. APP. 2204, FOR MONTH IN WHICH ALLOTMENT WAS EFFECTIVE AND FOR FOLLOWING MONTH WHEN HE WAS DISCHARGED, BUT WHICH DOES NOT SHOW THAT SUCH ALLOTMENT WAS TO BE MADE RETROACTIVE TO PREVIOUS MONTHS OR WHERE WAIVER OF ALLOTMENT REQUIREMENT BY SECRETARY OF THE ARMY OR HIS DESIGNEE HAS NOT BEEN MADE, ALLOWANCE MAY NOT BE PAID FOR MONTHS PRIOR TO ITS EFFECTIVE DATE. 2. FORMER MEMBER, WHO PREVIOUSLY CLAIMED BAQ AT THE ONE DEPENDENT RATE, AND WHO NOW CLAIMS BAQ AT THE THREE OR MORE DEPENDENTS RATE AS AUTHORIZED BY 50 U.S.C. APP. 2203, IS NOT ENTITLED TO PAYMENT AT THE HIGHER RATE, IN THE ABSENCE OF EVIDENCE OF BIRTH CERTIFICATES OF HIS STEP-CHILDREN AND PROOF OF TERMINATION OF THE MARRIAGE BETWEEN THEIR NATURAL PARENTS AS REQUIRED BY AR 37-125. 3. WHERE A DISCHARGED FORMER MEMBER, WHO WAS FOUND TO HAVE BEEN OVERPAID IN THE AMOUNT OF $107.65, CONTENDS THAT SUCH AMOUNT WAS PAYMENT FOR TRAVEL FROM PLACE OF DISCHARGE TO HOME OF RECORD, THIS CONTENTION IS WITHOUT MERIT SINCE RECORD CLEARLY SHOWS THAT OVERFPAYMENT IN QUESTION AROSE AS A RESULT OF ISSUANCE OF COMMERCIAL TRANSPORTATION TR'S TO THE FORMER MEMBER WHILE ON ACTIVE DUTY AND OVERPAYMENTS MADE FOR PERIODS OF EXCESS LEAVE. PAYMENT FOR DISCHARGE TRAVEL WAS IN THE AMOUNT OF $142.08, AND WAS NOT INVOLVED IN THE COMPUTATION.

BASIC ALLOWANCE FOR QUARTERS AND INDEBTEDNESS TO THE UNITED STATES - RODNEY E. KELLAR:

THIS ACTION IS IN RESPONSE TO AN UNDATED LETTER FROM MR. RODNEY E. KELLAR, 409 PALM PLACE, POMONA, CALIFORNIA 91766, WHICH REQUESTS RECONSIDERATION OF OUR DECISION B-168018, DATED NOVEMBER 19, 1973, WHICH MODIFIED OUR DECISION B-168018, DATED OCTOBER 13, 1969, WHICH SUSTAINED OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT DATED SEPTEMBER 4, 1969, DISALLOWING MR. KELLAR'S CLAIM FOR BASIC ALLOWANCE FOR QUARTERS (BAQ) FOR DEPENDENT WIFE FROM THE DATE OF HIS MARRIAGE THROUGH THE DATE OF HIS DISCHARGE FROM THE UNITED STATES ARMY, AS A PRIVATE (E-2).

THE INFORMATION IN OUR FILE SHOWS THAT MR. KELLAR ENTERED ON ACTIVE DUTY IN THE UNITED STATES ARMY AS A PRIVATE (E-1) ON AUGUST 6, 1968, AND THAT ON OCTOBER 3, 1968, MR. KELLAR MARRIED. IN HIS RECENT LETTER, MR. KELLAR STATES THAT AT THE TIME HE MARRIED, HIS WIFE ALREADY HAD THREE CHILDREN AND THAT THEY ALL BECAME HIS DEPENDENTS THEREAFTER.

IN OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT DATED SEPTEMBER 4, 1969, THE FORMER MEMBER'S CLAIM FOR GAQ FOR DEPENDENT WIFE FROM THE DATE OF HIS MARRIAGE THROUGH THE DATE OF HIS DISCHARGE WAS DISALLOWED BECAUSE NO RECORD COULD BE FOUND TO ESTABLISH THAT HE HAD FILED AN APPLICATION FOR A CLASS Q ALLOTMENT WHILE HE WAS ON ACTIVE DUTY AS WAS REQUIRED BY PARAGRAPH 30201 AND TABLE 3-2-8, RULE 7, NOTE 1 OF THE DEPARTMENT OF DEFENSE MILIARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL (DODPM). OUR DECISION B-168018, OCTOBER 13, 1969, SUSTAINED THE DISALLOWANCE BY OUR TRANSPORTATION AND CLAIMS DIVISION FOR THE SAME REASON.

BY LETTER DATED AUGUST 20, 1973, FROM THE UNITED STATES ARMY FINANCE SUPPORT AGENCY, INDIANAPOLIS, INDIANA, EVIDENCE TO SUBSTANTIATE IN PART THE FORMER MEMBER'S CLAIM THAT HE HAD APPLIED FOR THE REQUIRED CLASS Q ALLOTMENT, EFFECTIVE IN JANUARY 1969, WAS SUBMITTED TO OUR OFFICE FOR CONSIDERATION. IN OUR DECISION B-168018, NOVEMBER 19, 1973, UPON CONSIDERATION OF THE MATERIAL SUBMITTED, WE CONCLUDED THEREIN THAT THE FORMER MEMBER WAS ENTITLED TO BAQ AT THE ONE DEPENDENT RATE BEGINNING IN JANUARY 1969 THROUGH HIS DATE OF DISCHARGE, BUT THAT HE WAS NOT ENTITLED TO BAQ PRIOR TO JANUARY 1969, BECAUSE THERE STILL WAS NO EVIDENCE THAT A CLASS Q ALLOTMENT HAD BEEN INITIATED PRIOR TO THAT MONTH; THAT THE ALLOTMENT ACTION TAKEN BY THE FORMER MEMBER IN JANUARY 1969 WAS MADE RETROACTIVE TO COVER AN EARLIER PERIOD; NOR WAS THERE EVIDENCE THAT THE SECRETARY OF THE ARMY OR HIS DESIGNEE WAIVED THE ALLOTMENT REQUIREMENT AS AUTHORIZED BY 50 U.S.C. APP. 2204(D). AS A RESULT, THE FORMER MEMBER WAS FOUND TO BE ENTITLED TO TWO MONTHS BAQ AT THE ONE DEPENDENT RATE, AMOUNTING TO $120, HOWEVER, $107.65 WAS FOUND DUE THE UNITED STATES BECAUSE OF AN OVERPAYMENT AT DISCHARGE. THEREFORE, THE FORMER MEMBER RECEIVED $12.35.

IN HIS RECENT LETTER, THE FORMER MEMBER REQUESTS RECONSIDERATION OF THE NOVEMBER 13, 1973 DECISION IN HIS CASE AND CONTENDS THAT HE IS ENTITLED TO BAQ AT THE THREE OR MORE DEPENDENTS RATE EQUAL TO $105 PER MONTH FROM THE DATE OF HIS MARRIAGE THROUGH THE DATE OF HIS DISCHARGE. FURTHER, THAT THE $107.65 WHICH WAS FOUND TO BE AN OVERPAYMENT AT THE TIME OF HIS DISCHARGE WAS TRAVEL PAY FROM HIS PLACE OF DISCHARGE TO HIS HOME OF RECORD.

SECTION 4 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, CH. 922, 64 STAT. 795, AS AMENDED, 50 U.S.C. APP. 2204, THEN IN EFFECT, PROVIDED THAT THE PAYMENT OF BAQ TO ENLISTED MEMBERS IN PAY GRANDES E-1, E-2, WITH DEPENDENTS, SHALL BE MADE ONLY FOR SUCH PERIOD AS THE ENLISTED MEMBER HAS IN EFFECT AN ALLOTMENT OF PAY (CLASS Q) NOT LESS THAN THE SUM OF THE BAQ TO WHICH HE IS ENTITLED PLUS $40, FOR THE SUPPORT OF THE DEPENDENT OR DEPENDENTS ON WHOSE ACCOUNT THE ALLOWANCE IS CLAIMED. THE ALLOTMENT SHALL NOT BE REQUIRED FOR THE CALENDAR MONTH IN WHICH SUCH MEMBER IS DISCHARGED, IF NOT IMMEDIATELY REENLISTED, OR FOR THE CALENDAR MONTH IN WHICH DEPENDENCY COMMENCES IF THE ALLOTMENT IS EFFECTIVE FROM THE FOLLOWING MONTH. IT IS FURTHER PROVIDED IN THAT SECTION THAT ANY DELAY IN INITIATING AN ALLOTMENT SHALL NOT INVALIDATE ENTITLEMENT TO BAQ, PROVIDING THAT SUCH ALLOTMENT IS MADE RETROACTIVE FOR SUCH PERIOD AS THE MEMBER MAY ELECT TO CLAIM THE ALLOWANCE FOR HIS DEPENDENT OR DEPENDENTS. BUT IF THE SECRETARY CONCERNED FINDS THAT SUCH DELAY WAS CAUSED BY THE EXIGENCIES OF THE SERVICE, HE MAY WAIVE THE ALLOTMENT REQUIREMENT, OR THE ADDITIONAL INCREMENT THERETO, AS APPLICABLE, FOR SUCH RETROACTIVE PERIOD.

SINCE IT APPEARS FROM THE RECORD THAT THE FORMER MEMBER'S CLASS Q ALLOTMENT DID NOT BECOME EFFECTIVE UNTIL JANUARY 1969, AND SINCE THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE ALLOTMENT WAS MADE RETROACTIVE TO COVER THE PERIOD PRIOR TO JANUARY 1969, THE FORMER MEMBER IS NOT ENTITLED TO PAYMENT OF BAQ PRIOR TO JANUARY 1969. SEE B 168413, DECEMBER 29, 1969, COPY ENCLOSED.

WITH REGARD TO THE MATTER OF WAIVER IN THIS CASE, THIS OFFICE HAS BEEN INFORMALLY ADVISED THAT THE OFFICIALS AT THE U.S. ARMY FINANCE SUPPORT AGENCY ARE AUTHORIZED TO WAIVE THE CLASS Q ALLOTMENT DEDUCTION REQUIREMENTS FOR THE PERIOD INVOLVED. WAIVER CONSIDERATION BY THEM REQUIRES THAT MEMBERS REQUEST SUCH ACTION. IF SUCH A REQUEST IS MADE AND APPROVED BY THE FINANCE SUPPORT AGENCY, WE WOULD HAVE NO OBJECTION TO THE PAYMENT OF BAQ TO THE MEMBER FOR THE PERIOD IN QUESTION, IF OTHERWISE CORRECT.

WITH REGARD TO THE QUESTION OF THE MONTHLY RATE OF BAQ TO WHICH THE FORMER MEMBER IS ENTITLED, THE MEMBER STATES IN HIS MOST RECENT LETTER THAT AT THE TIME OF HIS MARRIAGE HIS WIFE ALREADY HAD THREE CHILDREN, THEREFORE, BECAUSE OF HIS THREE STEPCHILDREN HE CONTENDS THAT HE IS ENTITLED TO BAQ AT THE E-1 OR E-2 RATE (BOTH RATES ARE THE SAME, $105 PER MONTH FOR THREE OR MORE DEPENDENTS), INSTEAD OF THE E-1 OR E-2 RATE IN THE AMOUNT OF $60 PER MONTH FOR ONE DEPENDENT. SEE 50 U.S.C. APP. 2203.

PARAGRAPH 4-19 OF ARMY REGULATION NO. 37-125, THEN IN EFFECT, PROVIDED THAT A SERVICE MEMBER WHO CLAIMS CREDIT FOR BAQ FOR A DEPENDENT STEPCHILD (CHILD OF WIFE BY FORMER MARRIAGE) WHEN THE STEPCHILD RESIDES WITH THE MEMBER WILL SUBMIT THE FOLLOWING DOCUMENTS: (1) DA FORM 3298; (2) STATEMENT OF MEMBER FURNISHING INFORMATION CONCERNING ITEMS OF COST OF SUPPORT OF STEPCHILD, STEPCHILD'S INCOME ON PROPERTY IN HIS OWN NAME, TRUSTS OF WHICH THE STEPCHILD IS THE BENEFICIARY, CONTRIBUTIONS OF SUPPORT FROM NATURAL FATHER; AND (3) STEPCHILD'S BIRTH CERTIFICATE AND PROOF OF TERMINATION OF MARRIAGE BETWEEN NATURAL PARENTS OF THE STEPCHILD.

THE INFORMATION IN THE RECORD MAY BE ACCEPTED AS SUFFICIENT TO MEET REQUIREMENTS (1) AND (2) ABOVE, BUT BEFORE WE CAN DETERMINE THAT THE FORMER MEMBER IS ENTITLED TO BAQ AT THE THREE OR MORE DEPENDENTS RATE, ADEQUATE DOCUMENTATION CONCERNING REQUIREMENT (3) MUST BE SUBMITTED BY THE FORMER MEMBER. WHILE THE RECORD CONTAINS A LETTER DATED SEPTEMBER 10, 1969, FROM THE FORMER MEMBER'S WIFE TO THE TRANSPORTATION AND CLAIMS DIVISION IN WHICH IT IS STATED THAT THE BIRTH CERTIFICATES OF THREE CHILDRENS HAD BEEN SENT HERE, THIS APPEARS TO BE THE FIRST TIME THAT THE MEMBER CLAIMED BAQ AT THE THREE OR MORE DEPENDENTS RATE BECAUSE OF HIS THREE DEPENDENT STEPCHILDREN. WE NOTE, HOWEVER, THAT THE RECORD DOES NOT CONTAIN ANY COPIES OF BIRTH CERTIFICATES TO SUPPORT SUCH CLAIM. IF THE FORMER MEMBER WILL FORWARD SUCH DOCUMENTATION TO OUR TRANSPORTATION AND CLAIMS DIVISION, FURTHER CONSIDERATION WILL BE GIVEN THAT CLAIM.

WITH REGARD TO THE FORMER MEMBER'S CONTENTION THAT THE $107.65 WHICH WAS FOUND TO BE AN OVERPAYMENT AT THE TIME OF HIS DISCHARGE WAS TRAVEL PAY FROM HIS PLACE OF DISCHARGE TO HIS HOME OF RECORD, THE FILE SHOWS THAT WHILE THE FORMER MEMBER WAS ON LEAVE HE WAS FURNISHED TRANSPORTATION REQUEST NO. P4,203,918, ISSUED SEPTEMBER 18, 1968, FOR COMMERCIAL TRANSP6RTATION FROM LOS ANGELES, CALIFORNIA, TO LOUISVILLE, KENTUCKY, AND TRANSPORTATION REQUEST NO. P4,203,919, ISSUED SEPTEMBER 18, 1968, FOR COMMERCIAL TRANSPORTATION FROM STANDIFORD FIELD, KENTUCKY, TO FORT KNOX, KENTUCKY. THE COST OF SUCH TRANSPORTATION WAS $82. OUR RECORDS ALSO SHOW THAT THE FORMER MEMBER WAS IN AN EXCESS LEAVE STATUS FOR THE PERIOD NOVEMBER 2 THROUGH DECEMBER 1, 1968, AND DECEMBER 7 THROUGH DECEMBER 22, 1968, RESULTING IN AN OVERPAYMENT OF BASIC PAY AND LEAVE RATIONS IN THE AMOUNT OF $221.42. COLLECTIONS FOR EXCESS LEAVE OVERPAYMENT WERE MADE ON THE FORMER MEMBER'S FEBRUARY 1969 MLITARY PAY VOUCHER IN THE AMOUNT OF $196.57, TOGETHER WITH AN FICA ADJUSTMENT OF $0.80, WHICH RESULTED IN THE $107.65 OVERPAYMENT OF PAY AND ALLOWANCES AT TIME OF DISCHARGE. OUR RECORDS FURTHER SHOW THAT THE FORMER MEMBER WAS PAID TRAVEL PAY UPON DISCHARGE IN THE AMOUNT OF $142.08, WHICH AMOUNT WAS NOT INVOLVED IN THE ABOVE COMPUTATION.

ACCORDINGLY, ON THE BASIS OF THE RECOD PRESENTLY BEFORE US THE ACTION TAKEN IN OUR DECISION B-168018, DATED NOVEMBER 19, 1973, WAS CORRECT.