B-49494, MAY 18, 1945, 24 COMP. GEN. 831

B-49494, MAY 18, 1945, 24 COMP. GEN. 831

ALLOTMENTS - EXTENT OF AUTHORITY TO WAIVE ERRONEOUS PAYMENTS OR OVERPAYMENTS THE AUTHORITY VESTED IN THE HEADS OF DEPARTMENTS BY SECTION 9 OF THE MISSING PERSONS ACT, AS AMENDED, TO "WAIVE THE RECOVERY OF ERRONEOUS PAYMENTS OR OVERPAYMENTS OF ALLOTMENTS TO DEPENDENTS WHEN RECOVERY IS DEEMED TO BE AGAINST EQUITY AND GOOD CONSCIENCE" EXTENDS ONLY TO ERRONEOUS PAYMENTS OR OVERPAYMENTS MADE IN THE ADMINISTRATION OF THE PROVISIONS OF THE ACT RESPECTING THE AFFAIRS OF PERSONS IN THE ARMED FORCES AND CERTAIN CIVILIAN PERSONNEL WHO MAY BE MISSING, MISSING IN ACTION, ETC., AND NOT TO ALL ERRONEOUS PAYMENTS OR OVERPAYMENTS OF ALLOTMENTS TO DEPENDENTS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, MAY 18, 1945:

I HAVE YOUR LETTER OF APRIL 30, 1945, AS FOLLOWS:

IN CONNECTION WITH FISCAL OPERATIONS OF THE WAR DEPARTMENT, AND PARTICULARLY AS RELATED TO ITS ACTIVITIES DEALING WITH THE HANDLING OF ALLOTMENTS OF MILITARY AND CIVILIAN PERSONNEL UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1899, AS AMENDED, 30 STAT. 981, 10 U.S.C. 894, QUESTIONS HAVE ARISEN WHICH AFFECT THE COLLECTION PROCEDURES OF THE WAR DEPARTMENT GROWING OUT OF OVERPAYMENTS OF, OR ERRONEOUSLY PAID, ALLOTMENTS, ON WHICH YOUR DECISION IS REQUIRED.

SECTION 5 OF THE ACT OF JULY 1, 1944, 58 STAT. 679 ( PUBLIC LAW 408, 78TH CONGRESS), AMENDED SECTION 9 OF THE ACT APPROVED MARCH 7, 1942, AS AMENDED, 56 STAT. 145, BY REWRITING IT AND INCLUDING THEREIN THE FOLLOWING LANGUAGE:

"* * * THE HEAD OF THE DEPARTMENT CONCERNED, OR SUCH SUBORDINATE AS HE MAY DESIGNATE, MAY WAIVE THE RECOVERY OF ERRONEOUS PAYMENTS OR OVERPAYMENTS OF ALLOTMENTS TO DEPENDENTS WHEN RECOVERY IS DEEMED TO BE AGAINST EQUITY AND GOOD CONSCIENCE. * * *"

IN VIEW OF THE ABOVE LANGUAGE, YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTION:

DOES SECTION 9, QUOTED SUPRA, AUTHORIZE THE SECRETARY OF WAR, OR SUCH PERSON AS HE MAY DESIGNATE, TO WAIVE RECOVERY OF ERRONEOUS PAYMENTS OR OVERPAYMENTS WHEN AND IF IT IS DEEMED THAT RECOVERY IS AGAINST EQUITY AND GOOD CONSCIENCE IN CASES OF ALL ALLOTMENTS TO DEPENDENTS MADE BY MILITARY AND CIVILIAN PERSONNEL, REGARDLESS OF THEIR STATUS; IF NOT WHAT IN YOUR OPINION IS THE EXTENT OF ITS APPLICABILITY?

SECTION 9 OF THE MISSING PERSONS ACT OF MARCH 7, 1942, 56 STAT. 144, AS AMENDED BY SECTION 5 OF PUBLIC LAW 408, APPROVED JULY 1, 1944, 58 STAT. 680, A PORTION OF WHICH IS QUOTED IN YOUR LETTER, READS AS FOLLOWS:

SEC. 9. THE HEAD OF THE DEPARTMENT CONCERNED, OR SUCH SUBORDINATE AS HE MAY DESIGNATE, SHALL HAVE AUTHORITY TO MAKE ALL DETERMINATIONS NECESSARY IN THE ADMINISTRATION OF THIS ACT, AND FOR THE PURPOSES OF THIS ACT DETERMINATIONS SO MADE SHALL BE CONCLUSIVE AS TO DEATH OR FINDING OF DEATH, AS TO ANY OTHER STATUS DEALT WITH BY THIS ACT, AND AS TO ANY ESSENTIAL DATE INCLUDING THAT UPON WHICH EVIDENCE OR INFORMATION IS RECEIVED IN SUCH DEPARTMENT OR BY THE HEAD THEREOF. THE DETERMINATION OF THE HEAD OF THE DEPARTMENT CONCERNED, OR OF SUCH SUBORDINATE AS HE MAY DESIGNATE, SHALL BE CONCLUSIVE AS TO WHETHER INFORMATION RECEIVED CONCERNING ANY PERSON IS TO BE CONSTRUED AND ACTED UPON AS AN OFFICIAL REPORT OF DEATH. WHEN ANY INFORMATION DEEMED TO ESTABLISH CONCLUSIVELY THE DEATH OF ANY PERSON IS RECEIVED IN THE DEPARTMENT CONCERNED, ACTION SHALL BE TAKEN THEREON AS AN OFFICIAL REPORT OF DEATH, NOTWITHSTANDING ANY PRIOR ACTION RELATING TO DEATH OR OTHER STATUS OF SUCH PERSON. IF THE TWELVE MONTHS' ABSENCE PRESCRIBED IN SECTION 5 OF THE ACT HAS EXPIRED, A FINDING OF DEATH SHALL BE MADE WHENEVER INFORMATION RECEIVED, OR A LAPSE OF TIME WITHOUT INFORMATION, SHALL BE DEEMED TO ESTABLISH A REASONABLE PRESUMPTION THAT ANY PERSON IN A MISSING OR OTHER STATUS IS NO LONGER ALIVE. PAYMENT OR SETTLEMENT OF AN ACCOUNT MADE PURSUANT TO REPORT, DETERMINATION, OR FINDING OF DEATH SHALL NOT BE RECOVERED OR REOPENED BY REASON OF SUBSEQUENT REPORT OR DETERMINATION WHICH FIXES A DATE OF DEATH EXCEPT THAT AN ACCOUNT SHALL BE REOPENED AND SETTLED UPON THE BASIS OF ANY DATE OF DEATH SO FIXED WHICH IS LATER THAN THAT USED AS A BASIS FOR PRIOR SETTLEMENT. DETERMINATIONS ARE AUTHORIZED TO BE MADE BY THE HEAD OF THE DEPARTMENT CONCERNED, OR BY SUCH SUBORDINATE AS HE MAY DESIGNATE, OF ENTITLEMENT OF ANY PERSON, UNDER PROVISIONS OF THIS ACT, TO PAY AND ALLOWANCES, INCLUDING CREDITS AND CHARGES IN HIS ACCOUNT, AND ALL SUCH DETERMINATIONS SHALL BE CONCLUSIVE: PROVIDED, THAT NO SUCH ACCOUNT SHALL BE CHARGED OR DEBITED WITH ANY AMOUNT THAT ANY PERSON IN THE HANDS OF AN ENEMY MAY RECEIVE OR BE ENTITLED TO RECEIVE FROM, OR HAVE PLACED TO HIS CREDIT BY, SUCH ENEMY AS PAY, WAGES, ALLOWANCES, OR OTHER COMPENSATION: PROVIDED FURTHER, THAT WHERE THE ACCOUNT OF ANY PERSON HAS BEEN CHARGED OR DEBITED WITH ALLOTMENTS PAID PURSUANT TO THIS ACT ANY AMOUNT SO CHARGED OR DEBITED SHALL BE RECREDITED TO SUCH PERSON'S ACCOUNT IN ANY CASE IN WHICH IT IS DETERMINED BY THE HEAD OF THE DEPARTMENT CONCERNED, OR SUCH SUBORDINATE AS HE MAY DESIGNATE, THAT PAYMENT OF SUCH AMOUNT WAS INDUCED BY FRAUD OR MISREPRESENTATION TO WHICH SUCH PERSON WAS NOT A PARTY. WHEN CIRCUMSTANCES WARRANT RECONSIDERATION OF ANY DETERMINATION AUTHORIZED TO BE MADE BY THIS ACT THE HEAD OF THE DEPARTMENT CONCERNED, OR SUCH SUBORDINATE AS HE MAY DESIGNATE, MAY CHANGE OR MODIFY A PREVIOUS DETERMINATION. EXCEPTING ALLOTMENTS FOR UNEARNED INSURANCE PREMIUMS, ANY ALLOTMENTS PAID FROM PAY AND ALLOWANCES OF ANY PERSON FOR THE PERIOD OF THE PERSON'S ENTITLEMENT UNDER THE PROVISIONS OF SECTION 2 OF THIS ACT TO RECEIVE OR HAVE CREDITED SUCH PAY AND ALLOWANCES SHALL NOT BE SUBJECT TO COLLECTION FROM THE ALLOTTEE AS OVER-PAYMENTS WHEN PAYMENT THEREOF HAS BEEN OCCASIONED BY DELAY IN RECEIPT OF EVIDENCE OF DEATH, AND ANY ALLOTMENT PAYMENTS FOR PERIODS SUBSEQUENT TO THE TERMINATION, UNDER THIS ACT OR OTHERWISE, OF ENTITLEMENT TO PAY AND ALLOWANCES, THE PAYMENT OF WHICH HAS BEEN OCCASIONED BY DELAY IN RECEIPT OF EVIDENCE OF DEATH, AND ANY ALLOTMENT PAYMENTS FOR PERIODS SUBSEQUENT TO THE TERMINATION, UNDER THIS ACT OR OTHERWISE, OF ENTITLEMENT TO PAY AND ALLOWANCES, THE PAYMENT OF WHICH HAS BEEN OCCASIONED BY DELAY IN RECEIPT OF EVIDENCE OF DEATH, SHALL NOT BE SUBJECT TO COLLECTION FROM THE ALLOTTEE OR CHARGED AGAINST THE PAY OF THE DECEASED PERSON. THE HEAD OF THE DEPARTMENT CONCERNED, OR SUCH SUBORDINATE AS HE MAY DESIGNATE, MAY WAIVE THE RECOVERY OF ERRONEOUS PAYMENTS OR OVERPAYMENTS OF ALLOTMENTS TO DEPENDENTS WHEN RECOVERY IS DEEMED TO BE AGAINST EQUITY AND GOOD CONSCIENCE. IN THE SETTLEMENT OF THE ACCOUNTS OF ANY DISBURSING OFFICER CREDIT SHALL BE ALLOWED FOR ANY ERRONEOUS PAYMENT OR OVERPAYMENT MADE BY HIM IN CARRYING OUT THE PROVISIONS OF THIS ACT, EXCEPT SECTIONS 13, 16, 17, AND 18, IN THE ABSENCE OF FRAUD OR CRIMINALITY ON THE PART OF THE DISBURSING OFFICER INVOLVED, AND NO RECOVERY SHALL BE MADE FROM ANY OFFICER OR EMPLOYEE AUTHORIZING ANY PAYMENT UNDER SUCH PROVISIONS IN THE ABSENCE OF FRAUD OR CRIMINALITY ON HIS PART. (ITALICS SUPPLIED.)

THE PROVISIONS OF THE SAID MISSING PERSONS ACT OF MARCH 7, 1942, AS AMENDED, PRIMARILY ARE DIRECTED TO MATTERS CONCERNING THE CONTINUANCE OF THE PAY AND ALLOWANCES OF PERSONS IN THE ARMED FORCES AND CERTAIN CIVILIAN EMPLOYEES WHO MAY BE MISSING, MISSING IN ACTION, INTERNED IN A NEUTRAL COUNTRY, CAPTURED BY THE ENEMY, ETC. AMONG OTHER PROVISIONS, THE ACT AUTHORIZES THE HEAD OF THE DEPARTMENT CONCERNED TO DIRECT THE INITIATION, CONTINUANCE, DISCONTINUANCE, INCREASE, DECREASE, SUSPENSION AND RESUMPTION OF ALLOTMENT PAYMENTS TO DEPENDENTS FROM THE PAY AND ALLOWANCES OF SUCH PERSONS IN A MISSING STATUS. WHILE THE AUTHORITY VESTED IN THE HEAD OF THE DEPARTMENT CONCERNED BY SECTION 9, AS AMENDED, SUPRA, TO WAIVE THE RECOVERY OF "ERRONEOUS PAYMENTS OR OVERPAYMENTS OF ALLOTMENTS TO DEPENDENTS" IS STATED IN GENERAL TERMS AND ITS APPLICATION IS NOT SPECIFICALLY LIMITED BY EXPRESS LANGUAGE TO SUCH OVERPAYMENTS MADE IN THE ADMINISTRATION OF THAT ACT, IT REASONABLY APPEARS FROM THE LEGISLATIVE HISTORY OF THE PROVISION THAT SUCH WAS THE INTENT OF CONGRESS.

IN REPORT NO. 1674, DATED JUNE 17, 1944, OF THE COMMITTEE ON NAVAL AFFAIRS, HOUSE OF REPRESENTATIVES, TO ACCOMPANY H.R. 4405, WHICH SUBSEQUENTLY WAS ENACTED INTO LAW AS SAID PUBLIC LAW 408, IT WAS STATED, WITH RESPECT TO THE WAIVER PROVISION, AS FOLLOWS:

PUBLIC LAW 490, AS AMENDED ( MISSING PERSONS ACT), IS A WARTIME ACT. THE ADMINISTRATION OF SUCH ACT IS TO BE EFFECTIVE, PROMPT AND UNHESITATING ACTION IN WORTHY CASES IS NECESSARY. PAYMENTS MUST BE CONTINUED IN MANY CASES DUE TO THE ABSENCE OR DELAY IN TRANSMISSION OF CASUALTY REPORTS. ERRONEOUS PAYMENTS AND OVERPAYMENTS ARE INEVITABLE. IN THE MAIN, HOWEVER, THESE PAYMENTS ARE AUTHORIZED AND ARE INTENDED FOR THE SUPPORT OF DEPENDENTS. THESE DEPENDENTS ARE IN NO WAY RESPONSIBLE FOR THE VAGARIES AND UNCERTAINTIES OF CASUALTY REPORTS AND THE ACTIONS THEREON. IN GENERAL DEPENDENTS ARE IN NEED OF PAYMENTS UP TO THE TIME DEATH BENEFITS BECOME AVAILABLE. FOR THE GOVERNMENT TO SEEK TO RECOVER PAYMENTS SO RECEIVED AND USED BY DEPENDENTS WOULD IN GENERAL BE INEQUITABLE. THE PRESENT ACT, HOWEVER, MAKES NO PROVISION FOR ANY WAIVER OF RECOVERY. SECTION 5 OF THE BILL INCORPORATES IN SECTION 9 AUTHORITY IN THE HEAD OF THE DEPARTMENT CONCERNED TO WAIVE RECOVERIES WHEN AGAINST EQUITY AND GOOD CONSCIENCE.

THAT THE SECRETARY OF THE NAVY TOOK A LIKE VIEW OF THE WAIVER PROVISION IS SHOWN BY HIS LETTER OF JUNE 13, 1944, SET FORTH IN THE SAID COMMITTEE REPORT. SEE, ALSO, THE PREPARED STATEMENT OF MAJOR GENERAL JAY L. BENEDICT INCORPORATED IN THE REPORT OF THE HEARINGS ON THE BILL BEFORE THE COMMITTEE ON NAVAL AFFAIRS, HOUSE OF REPRESENTATIVES, WHERE GENERAL BENEDICT, REPRESENTING THE WAR DEPARTMENT, COMMENTED ON THE SAID WAIVER PROVISION AS FOLLOWS:

IN WARTIME ADMINISTRATION OF THE AFFAIRS OF MISSING PERSONNEL THERE ARE BOUND TO BE TECHNICAL ERRONEOUS PAYMENTS OR OVERPAYMENTS OF ALLOTMENTS TO DEPENDENTS. THERE WILL LIKEWISE BE ERRONEOUS PAYMENTS OR OVERPAYMENTS OF FAMILY ALLOWANCES. FOR THE LATTER, THERE IS A VERY APPROPRIATE AUTHORIZATION IN PUBLIC LAW TO WAIVE RECOVERIES WHEN DEEMED AGAINST EQUITY AND GOOD CONSCIENCE. THE SIMILAR AUTHORIZATION IN THE CASE OF ALLOTMENTS, INCLUDED IN THE AMENDED SECTION 9, IS VERY DESIRABLE. THIS IS TRUE ALSO OF THE PROTECTION AFFORDED DISBURSING AND AUTHORIZING OFFICERS WHO MAY, ACTING IN GOOD FAITH IN AN EFFORT TO EFFECTIVELY CARRY OUT THE LAW, CAUSE ERRONEOUS PAYMENTS OR OVERPAYMENTS, WITHOUT FRAUD OR CRIMINALITY BEING INVOLVED.

IT THUS APPEARS THAT THE WAR DEPARTMENT, AS WELL AS THE NAVY DEPARTMENT AND THE COMMITTEE ON NAVAL AFFAIRS, HOLD THE VIEW THAT THE PURPOSE OF THE WAIVER PROVISION WAS TO AFFORD EQUITABLE RELIEF WHERE ERRONEOUS PAYMENTS OR OVERPAYMENTS OF ALLOTMENTS MIGHT BE MADE TO DEPENDENTS RESULTING FROM THE UNUSUAL CONDITIONS INVOLVED IN THE ADMINISTRATION OF THE AFFAIRS OF MISSING PERSONNEL, AND SUCH VIEWS WERE SET FORTH IN THE HEARINGS AND LEGISLATIVE REPORTS ON THE BILL. HENCE, IT SEEMS CLEAR THAT IT WAS THE LEGISLATIVE INTENT TO AUTHORIZE WAIVERS BY THE HEADS OF THE DEPARTMENTS CONCERNED OR THEIR DESIGNEES ONLY IN CASES OF ERRONEOUS PAYMENTS OR OVERPAYMENTS OF ALLOTMENTS TO DEPENDENTS OCCURRING IN THE ADMINISTRATION OF THE SAID MISSING PERSONS ACT, AS AMENDED, AND THAT IT WAS NOT CONTEMPLATED THAT THE WAIVER PROVISION WOULD HAVE GENERAL APPLICATION.

ASIDE FROM SUCH LEGISLATIVE INTENT IN THE MATTER, AS DISCLOSED BY THE LEGISLATIVE HISTORY, THE INCORPORATION OF SUCH A WAIVER PROVISION, ALTHOUGH STATED IN GENERAL LANGUAGE, IN A STATUTE DEALING PARTICULARLY WITH THE ADMINISTRATION OF THE AFFAIRS OF PERSONS OCCUPYING A STATUS REQUIRING SPECIAL CONSIDERATIONS AND SAFEGUARDS--- A STATUS DISTINCT FROM THAT OCCUPIED BY ALLOTTERS GENERALLY---LENDS FURTHER SUPPORT TO THE VIEW THAT THE AUTHORITY TO WAIVE ERRONEOUS PAYMENTS OR OVERPAYMENTS OF ALLOTMENTS CAN HAVE NO APPLICATION IN CASES OUTSIDE THE SCOPE OF THE ACT. SEE, IN THAT CONNECTION, THE GENERAL PROVISION CONCURRENTLY ENACTED IN THE MILITARY APPROPRIATION ACT, 1945, PUBLIC LAW 374, JUNE 28, 1944, 58 STAT. 575, PRECLUDING THE COLLECTION OF ERRONEOUS ALLOTMENT PAYMENTS WHERE LIABILITY THEREFOR MIGHT EXIST BECAUSE OF THE DEATH OF THE ALLOTTER.

ACCORDINGLY, YOU ARE ADVISED THAT THE WAIVER AUTHORITY VESTED BY SECTION 9 OF THE MISSING PERSONS ACT, AS AMENDED, SUPRA, IN THE HEADS OF THE VARIOUS DEPARTMENTS IS VIEWED AS EXTENDING ONLY TO CASES OF ERRONEOUS PAYMENTS OR OVERPAYMENTS OF ALLOTMENTS TO DEPENDENTS MADE IN THE ADMINISTRATION OF THAT ACT, WHEN RECOVERY OF SUCH PAYMENTS IS DEEMED TO BE AGAINST EQUITY AND GOOD CONSCIENCE, AND AS NOT EXTENDING TO ANY OTHER ERRONEOUS PAYMENTS OR OVERPAYMENTS OF ALLOTMENTS.