B-40309, AUGUST 14, 1944, 24 COMP. GEN. 117

B-40309, AUGUST 14, 1944, 24 COMP. GEN. 117

QUARTERS ALLOWANCE - DEPENDENTS - ALLOTMENT FOR SUPPORT OF DEPENDENTS AS CONDITION VOLUNTARY ALLOTMENTS OF PAY MADE BY AN ENLISTED MAN FOR THE SUPPORT OF HIS FAMILY, ETC., WHICH ARE NOT PAID TO THE ALLOTTEE REMAIN THE PROPERTY OF THE ENLISTED MAN AND ARE NOT THE PROPERTY OF THE ALLOTTEE, EVEN THOUGH THE ALLOTTEE MAY HAVE RECEIVED, BUT FAILED TO NEGOTIATE PRIOR TO DEATH, A CHECK IN PAYMENT OF THE ALLOTMENT. WHERE A NAVY ENLISTED MAN HAD IN EFFECT AN ALLOTMENT OF PAY FOR HIS DEPENDENT'S SUPPORT IN AN AMOUNT NOT LESS THAN THE MONETARY ALLOWANCE AUTHORIZED BY SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942 IN LIEU OF QUARTERS FOR DEPENDENTS, WHICH, AS PROVIDED BY SECTION 108 (B) OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, ENTITLED HIM TO CONTINUE TO RECEIVE THE MONETARY ALLOWANCE, HE MAY BE PAID THE MONETARY ALLOWANCE UP TO AND INCLUDING THE DATE OF THE DEPENDENT'S DEATH, EVEN THE ALLOTMENT WAS NOT PAID FOR THE MONTH OF DEATH EITHER BECAUSE OF STOPPAGE UPON NOTIFICATION OF DEATH, OR BECAUSE THE ALLOTMENT CHECK, NOT HAVING BEEN NEGOTIATED, WAS RETURNED AND CANCELED. A NAVY ENLISTED MAN WHO HAD IN EFFECT AN ALLOTMENT OF PAY FOR HIS DEPENDENT'S SUPPORT, UNDER SECTION 108 (B) OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, PROVIDING THAT PAYMENT OF THE MONETARY ALLOWANCE AUTHORIZED BY SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942 IN LIEU OF QUARTERS FOR DEPENDENTS MAY BE CONTINUED DURING PERIODS THE MAN HAS IN EFFECT SUCH AN ALLOTMENT NOT LESS THAN THE ALLOWANCE, IS ENTITLED, ON DISCHARGE FROM THE SERVICE ON AN INTERMEDIATE DAY OF THE MONTH, TO ALLOWANCE UP UNTIL THE DATE OF DISCHARGE, EVEN THOUGH THAT MONTH'S ALLOTMENT WAS NOT PAID TO THE ALLOTTEE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, AUGUST 14, 1944:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 16, 1944, FILE JAG:K:WG:MMA 8358, AS FOLLOWS:

THE NAVY DEPARTMENT HAS UNDER CONSIDERATION A QUESTION RELATIVE TO THE RIGHT OF WILLIAM KENNETH CARR, CM1C, NSNR, TO RETAIN AMOUNTS CREDITED HIM AS MONETARY ALLOWANCE IN LIEU OF QUARTERS ON BEHALF OF HIS DEPENDENT MOTHER DURING THE PERIOD NOVEMBER 1, 1943, TO NOVEMBER 18, 1943.

THE RECORDS OF THE NAVY DEPARTMENT SHOW THAT CARR REGISTERED AN ALLOTMENT OF $60 PER MONTH IN FAVOR OF HIS MOTHER, FIRST PAYMENT JANUARY 1943, AND THAT SUCH ALLOTMENT WAS DISCONTINUED AT CARR'S REQUEST AFTER THE OCTOBER 1943 PAYMENT BECAUSE OF THE DEATH OF HIS MOTHER ON 18 NOVEMBER 1943.

THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942 (56 STAT. 381; 37 U.S.C. SUPP. 201 ET. SEQ.), AS AMENDED BY THE ACT OF OCTOBER 26, 1943 ( PUBLIC LAW 174-78TH CONGRESS), PROVIDES, IN PART, AS FOLLOWS:

"SEC. 108 (B). EXCEPT AS OTHERWISE HEREIN PROVIDED, MONETARY ALLOWANCES IN LIEU OF QUARTERS FOR DEPENDENTS AS AUTHORIZED BY SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942 SHALL NOT BE PAYABLE FOR THE PERIOD DURING WHICH FAMILY ALLOWANCES TO DEPENDENTS OF ENLISTED MEN OF THE FIRST, SECOND, OR THIRD GRADES ARE AUTHORIZED BY THIS TITLE. AN ENLISTED MAN WHO, ON THE EFFECTIVE DATE OF THIS ACT, IS RECEIVING, OR, BEING ENTITLED TO A MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS, HAS APPLIED THEREFOR, MAY, AT HIS OPTION, RECEIVE OR CONTINUE TO RECEIVE SUCH MONETARY ALLOWANCE OR ELECT NOT TO RECEIVE SUCH MONETARY ALLOWANCE AND TO HAVE HIS DEPENDENTS BECOME ENTITLED TO RECEIVE FAMILY ALLOWANCE: PROVIDED, THAT PAYMENT OF SUCH MONETARY ALLOWANCE SHALL BE MADE ONLY FOR SUCH PERIODS, FROM THE EFFECTIVE DATE OF THIS ACT, AS THE ENLISTED MAN HAS IN EFFECT AN ALLOTMENT OF PAY, IN AN AMOUNT NOT LESS THAN THE AMOUNT OF SUCH MONETARY ALLOWANCE, FOR THE SUPPORT OF THE DEPENDENTS ON WHOSE ACCOUNT THE ALLOWANCE IS CLAIMED. * * *" (ITALICS SUPPLIED.)

IN CONNECTION WITH THE ITALICIZED PORTION OF SECTION 108 (B), SUPRA, YOUR DECISION IS REQUESTED AS TO WHETHER STOPPAGE OF THE ALLOTMENT FOR THE SUPPORT OF HIS DEPENDENT MOTHER AFTER PAYMENT FOR THE MONTH IMMEDIATELY PRECEDING THE MONTH IN WHICH HER DEATH OCCURRED PRECLUDES PAYMENT TO CARR OF MONETARY ALLOWANCE IN LIEU OF QUARTERS ON BEHALF OF HIS DEPENDENT MOTHER UP TO AND INCLUDING THE DATE OF HER DEATH ON NOVEMBER 18, 1943. ALTHOUGH CARR'S CASE IS THE ONLY ONE NOW UNDER CONSIDERATION IN THE NAVY DEPARTMENT, IT IS ASSUMED THAT MANY SIMILAR CASES WILL ARISE IN THE FUTURE.

THERE IS ALSO FOR CONSIDERATION THOSE CASES IN WHICH AN ENLISTED MAN,WHO HAD IN EFFECT AN ALLOTMENT OF HIS PAY FOR THE SUPPORT OF HIS DEPENDENT, WAS BEING PAID MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR SUCH DEPENDENT, THE DEPENDENT DIED, AND NOTIFICATION OF THE DEATH OF SUCH DEPENDENT WAS NOT RECEIVED IN SUFFICIENT TIME TO STOP PAYMENT OF THE ALLOTMENT AS OF THE MONTH IMMEDIATELY PRECEDING THE MONTH IN WHICH THE DEATH OF THE DEPENDENT OCCURRED. IN EACH SUCH CASE THE ALLOTMENT CHECK PAYABLE TO THE DEPENDENT WAS RETURNED TO THE ISSUING OFFICE FOR CANCELLATION AND THE AMOUNT THEREOF WAS REFUNDED TO THE ENLISTED MAN CONCERNED. AN EXPRESSION OF YOUR VIEWS IS REQUESTED AS TO WHETHER THE ENLISTED MAN IN SUCH CASES IS ENTITLED TO RETAIN AMOUNTS CREDITED TO HIM AS MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR HIS DEPENDENT UP TO AND INCLUDING THE DATE OF THE DEATH OF SUCH DEPENDENT.

OTHER CASES HAVE ARISEN IN THE NAVY DEPARTMENT WHEREIN AN ENLISTED MAN WAS DISCHARGED FROM THE NAVAL SERVICE ON AN INTERMEDIATE DAY OF THE MONTH AND IN ORDER TO PREVENT AN OVERPAYMENT OF THE ALLOTMENT REGISTERED FOR THE SUPPORT OF HIS DEPENDENT, IT WAS NECESSARY, IN THIS CIRCUMSTANCE, TO STOP PAYMENT OF SUCH ALLOTMENT AS OF THE MONTH IMMEDIATELY PRECEDING THE MONTH DURING WHICH SUCH ENLISTED MAN WAS DISCHARGED. YOUR FURTHER DECISION IS REQUESTED AS TO WHETHER STOPPAGE OF THE ALLOTMENT REGISTERED IN FAVOR OF THE DEPENDENT OF THIS ENLISTED MAN PRIOR TO THE DATE OF HIS DISCHARGE WILL PRECLUDE PAYMENT TO SUCH ENLISTED MAN OF MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR HIS DEPENDENT UP TO AND INCLUDING THE DATE OF HIS DISCHARGE FROM THE NAVAL SERVICE.

THE MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS OF ENLISTED MEN OF THE FIRST THREE GRADES IS AUTHORIZED BY THE SECOND PARAGRAPH OF SECTION 10 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 363, 364, WHICH PROVIDES:

EACH ENLISTED MAN OF THE FIRST, SECOND, OR THIRD GRADE, IN THE ACTIVE MILITARY, NAVAL, OR COAST GUARD SERVICE OF THE UNITED STATES HAVING A DEPENDENT AS DEFINED IN SECTION 4 OF THIS ACT, SHALL, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, BE ENTITLED TO RECEIVE, FOR ANY PERIOD DURING WHICH PUBLIC QUARTERS ARE NOT PROVIDED AND AVAILABLE FOR HIS DEPENDENT, THE MONTHLY ALLOWANCE FOR QUARTERS AUTHORIZED BY LAW TO BE GRANTED TO EACH ENLISTED MAN NOT FURNISHED QUARTERS IN KIND: PROVIDED, THAT SUCH ENLISTED MEN SHALL CONTINUE TO BE ENTITLED TO THIS ALLOWANCE ALTHOUGH RECEIVING THE ALLOWANCE PROVIDED IN THE FIRST PARAGRAPH OF THIS SECTION IF BY REASON OF ORDERS OF COMPETENT AUTHORITY HIS DEPENDENT IS PREVENTED FROM DWELLING WITH HIM. SUCH ALLOWANCE IS SPECIFICALLY MADE PAYABLE TO THE ENLISTED MAN AND IS NOT A RIGHT OF THE DEPENDENTS.

IT WILL BE NOTED THAT UNDER SECTION 108 (B) OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS ADDED BY SECTION 8 OF THE ACT OF OCTOBER 26, 1943, 57 STAT. 579, THE PERTINENT PART OF WHICH IS QUOTED IN YOUR LETTER, ALL THAT IS REQUIRED TO QUALIFY AN ENLISTED MAN FOR A MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS TO WHICH HE OTHERWISE IS ENTITLED IS THAT HE HAVE IN EFFECT AN ALLOTMENT OF HIS PAY, IN AN AMOUNT NOT LESS THAN THE AMOUNT OF SUCH MONETARY ALLOWANCE, FOR THE SUPPORT OF THE DEPENDENTS ON WHOSE ACCOUNT THE ALLOWANCE IS CLAIMED. SHOULD BE NOTED THAT IT IS NOT AN ALLOTMENT OF THE MONETARY ALLOWANCE IN LIEU OF QUARTERS, BUT ANY ALLOTMENT OF HIS PAY EQUAL TO SUCH ALLOWANCE, THE LAW PROVIDES ONLY THAT SUCH ALLOTMENT BE IN EFFECT, THUS LEAVING THE PAYMENT THEREOF TO BE ACCOMPLISHED IN ACCORDANCE WITH EXISTING LAW AND REGULATIONS RELATIVE TO ALLOTMENTS, GENERALLY.

THE RULE, LONG ESTABLISHED, HAS BEEN THAT VOLUNTARY ALLOTMENTS OF PAY--- AND THESE ARE VOLUNTARY ALLOTMENTS WHICH MAY BE INITIATED AND TERMINATED AT THE ELECTION OF THE ALLOTTER--- MADE BY AN ENLISTED MAN FOR THE SUPPORT OF HIS FAMILY, ETC., WHICH ARE NOT PAID TO THE ALLOTTEE, REMAIN THE PROPERTY OF THE ENLISTED MAN AND ARE NOT THE PROPERTY OF THE ALLOTTEE EVEN THOUGH SUCH ALLOTTEE MAY HAVE RECEIVED, BUT FAILED TO NEGOTIATE PRIOR TO DEATH, A CHECK IN PAYMENT OF SUCH AN ALLOTMENT. SEE 1 COMP. GEN. 217 AND 2 ID. 778.

CARR ACTUALLY HAD IN EFFECT AN ALLOTMENT OF HIS PAY, WHICH IT IS ASSUMED WAS EQUAL TO THE AMOUNT OF THE QUARTERS ALLOWANCE, UP UNTIL THE DATE HIS DEPENDENT MOTHER DIED. UPON THE DEATH OF HIS MOTHER ON NOVEMBER 18, 1943, HE CANCELLED THE ALLOTMENT AND, IN ACCORDANCE WITH ADMINISTRATIVE PROCEDURE, THE ALLOTMENT WAS DISCONTINUED AS OF THE CLOSE OF THE PRECEDING MONTH--- OCTOBER 31, 1943. IN VIEW OF THE RULE STATED ABOVE, THE RESULT WOULD HAVE BEEN THE SAME HAD THE ALLOTMENT NOT BEEN DISCONTINUED UNTIL THE CLOSE OF THE MONTH IN WHICH HIS MOTHER DIED AS WAS DONE IN THE CASES REFERRED TO IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER. IN EITHER CASE, THE PAYMENT OF THE ALLOTMENT TO THE ALLOTTEE'S ESTATE, WOULD HAVE BEEN IMPROPER. HOWEVER, SUCH NONPAYMENT DOES NOT ALTER THE RIGHTS OF THE ENLISTED MAN TO THE MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS TO WHICH THEY ARE OTHERWISE ENTITLED. THE ALLOTMENTS WERE IN EFFECT UP UNTIL THE DEATH OF THEIR DEPENDENTS AND THUS THE ENLISTED MEN WERE QUALIFIED TO RECEIVE SUCH ALLOWANCE. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE AND YOUR SECOND IN THE AFFIRMATIVE.

THIS RULE APPLIES, ALSO, TO THE ENLISTED MEN WHO WERE DISCHARGED FROM THE NAVAL SERVICE ON AN INTERMEDIATE DAY OF THE MONTH. THEY HAD ALLOTMENTS OF PAY IN EFFECT AND PRESUMABLY HAD DEPENDENTS AS REQUIRED BY THE LAW TO QUALIFY THEM FOR THE QUARTERS ALLOWANCE AND THE FACT THAT SUCH ALLOTMENTS WERE NOT PAID TO THE ALLOTTEES FOR THE MONTH IN WHICH SUCH ENLISTED MEN WERE SEPARATED FROM THE SERVICE, WAS DUE ONLY TO ADMINISTRATIVE REGULATIONS IN THAT RESPECT. ACCORDINGLY, THEY ARE ENTITLED TO BE PAID THE MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS UP UNTIL THE DATE OF DISCHARGE.