B-61739, MAR 4, 1947

B-61739, MAR 4, 1947

PRECIS-UNAVAILABLE

THE HONORABLE, THE SECRETARY OF WAR:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 2, 1946, WITH ENCLOSURES, AS FOLLOWS:

"THERE ARE BEFORE THE WAR DEPARTMENT A NUMBER OF CASES INVOLVING ERRONEOUS PAYMENTS OF CLASS 'E' ALLOTMENTS AND CLASS 'F' ALLOWANCES TO DEPENDENTS OF ENLISTED PERSONNEL WHERE IT HAS NOT BEEN POSSIBLE TO EFFECT COLLECTION FROM THE PAYEES. IN SUCH CASES THE AMOUNTS ERRONEOUSLY PAID HAVE BEEN ENTERED AS CHARGES AGAINST THE ENLISTED MEN AND DEDUCTED FROM THEIR PAY. AFTER COLLECTION OF SUCH AMOUNTS HAS BEEN SO EFFECTED, THE ENLISTED MEN HAVE REQUESTED REPAYMENT THEREOF ON THE GROUND THAT THE ERRONEOUS PAYMENTS WERE NOT PROPERLY CHARGEABLE AGAINST THEIR PAY, AND ALLEGING THAT THE ERRORS RESULTING IN THE OVERPAYMENTS WERE DUE TO NO FAULT OR NEGLIGENCE ON THEIR PART.

"FOR THE PURPOSE OF PRESENTING THE ABOVE PROBLEMS TO YOUR OFFICE, TWO REPRESENTATIVE CASES HAVE BEEN SELECTED, ONE INVOLVING ERRONEOUS PAYMENTS OF CLASS 'E' ALLOTMENTS AND THE OTHER INVOLVING ERRONEOUS PAYMENTS OF CLASS 'F' ALLOWANCES. THE OPINION OF THE JUDGE ADVOCATE GENERAL HAS BEEN OBTAINED WITH RESPECT TO EACH OF THESE TWO REPRESENTATIVE CASES, COPIES OF WHICH ARE INCLOSED FOR YOUR INFORMATION, AND, SO FAR AS THE STATEMENTS OF FACTS THEREIN ARE CONCERNED, ARE PART OF THIS SUBMISSION IN ORDER TO SAVE REPETITION. ATTENTION IS PARTICULARLY INVITED TO DECISION OF THE COMPTROLLER OF THE TREASURY IN 26 COMP.GEN. 1085, CITED IN EACH OF THE OPINIONS OF THE JUDGE ADVOCATE GENERAL REFERRED TO.

"IT WILL BE NOTED THAT THE CASE OF SGT. EBAUGH CONCERNS AN ERRONEOUS PAYMENT OF CLASS 'E' ALLOTMENT, AND THE CASE OF STAFF SGT. HILL CONCERNS AN ERRONEOUS PAYMENT OF CLASS 'F' ALLOWANCE, AND THAT IN EACH CASE THE WIFE, THE PAYEE, HAS BEEN DIVORCED FROM THE FORMER ENLISTED MAN, WHO IS NOW MAKING CLAIM FOR THE AMOUNTS WITHHELD FROM HIS PAY.

"AS INDICATED ABOVE, THESE TWO CASES ARE TYPICAL OF A NUMBER OF OTHER CASES BEFORE THE DEPARTMENT FOR CONSIDERATION, AND IN VIEW OF THE DOUBT WHICH EXISTS AS TO WHETHER THE DEPARTMENT WOULD LEGALLY JUSTIFIED IN MAKING REPAYMENT TO MILITARY PERSONNEL, INCLUDING FORMER MILITARY PERSONNEL, OF AMOUNTS COLLECTED UNDER THE CIRCUMSTANCES INDICATED, AND IN ORDER THAT APPROPRIATE INSTRUCTIONS MAY BE GIVEN TO DISBURSING OFFICERS IN THE PREMISES AND TO AVOID THE WORK INVOLVED IN CHARGING THE ACCOUNTS OF MILITARY PERSONNEL IN SUCH CIRCUMSTANCES IF SUCH CHARGING IS NOT AUTHORIZED BY LAW, YOUR DECISION IS REQUESTED AS TO WHETHER AMOUNTS ERRONEOUSLY PAID AS CLASS 'E' ALLOTMENTS AND CLASS 'F' ALLOWANCES TO DEPENDENTS OF ENLISTED PERSONNEL WITHOUT ANY FAULT OR NEGLIGENCE ON THE PART OF SUCH PERSONNEL, WHERE COLLECTION CANNOT BE EFFECTED FROM THE PAYEES, MAY PROPERLY BE CHARGED AGAINST SUCH PERSONNEL."

THIS OFFICE IS REQUIRED BY LAW TO RAISE APPROPRIATE CHARGES IN THE ACCOUNTS OF DISBURSING OFFICERS FOUND RESPONSIBLE FOR ILLEGAL OR OTHERWISE IMPROPER PAYMENTS AND IN THAT CONNECTION IT IS PROVIDED IN THE ACT OF MAY 26, 1946, 49 STAT. 1374, AS FOLLOWS:

"THAT HEREAFTER, WHENEVER UPON THE STATEMENT OF THE ACCOUNT OF ANY DISBURSING OFFICER OF THE UNITED STATES IN THE GENERAL ACCOUNTING OFFICE CREDIT SHALL HAVE BEEN DISALLOWED FOR ANY PAYMENT TO ANY PERSON IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, OTHERWISE ENTITLED TO COMPENSATION FROM THE UNITED STATES OR FROM ANY AGENCY OR INSTRUMENTALITY THEREOF, SUCH COMPENSATION OF THE PAYEE MAY BE WITHHELD UNTIL FULL REIMBURSEMENT HAS BEEN ACCOMPLISHED UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE HEAD OF THE DEPARTMENT, BRANCH, OR INDEPENDENT ESTABLISHMENT (INCLUDING CORPORATIONS) UNDER WHICH SUCH PAYEE IS ENTITLED TO RECEIVE COMPENSATION: PROVIDED, THAT NOTHING CONTAINED IN THIS ACT SHALL BE CONSTRUED TO REPEAL OR IN ANY WAY MODIFY EXISTING LAWS RELATING TO THE COLLECTION OF THE INDEBTEDNESS OF ACCOUNTABLE OF DISBURSING OFFICERS."

ALSO, SEE THE ACT OF MAY 22, 1928, 45 STAT. 698, AS AMENDED BY THE ACT OF JUNE 26, 1934, 48 STAT. 1222, WHICH PROVIDES:

"THAT UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR SHALL PRESCRIBE, WHEN IT HAS BEEN ADMINISTRATIVELY ASCERTAINED THAT AN ENLISTED MAN OF THE ARMY, IS INDEBTED TO THE UNITED STATES OR ANY OF ITS INSTRUMENTALITIES, THE AMOUNT OF SUCH INDEBTEDNESS MAY BE COLLECTED IN MONTHLY INSTALLMENTS BY DEDUCTION FROM HIS PAY ON CURRENT PAY ROLLS; PROVIDED, THAT THE AGGREGATE SUM OF SUCH DEDUCTIONS FOR ANY MONTH SHALL NOT EXCEED TWO-THIRDS OF THE SOLDIER'S RATE OF PAY FOR THAT MONTH; AND PROVIDED FURTHER, THAT WHENEVER ANY PART OF THE PAY OF A SOLDIER FOR A CERTAIN MONTH SHALL HAVE BEEN LEGALLY FORFEITED BY SENTENCE OF COURT MARTIAL, OR OTHERWISE LEGALLY AUTHORIZED TO BE WITHHELD, THEN NO DEDUCTION UNDER THIS ACT SHALL BE SO APPLIED AS TO REDUCE THE ACTUAL PAY RECEIVED BY THE SOLDIER FOR THAT MONTH BELOW ONE-THIRD OF HIS AUTHORIZED RATE OF PAY THEREFOR; AND PROVIDED FURTHER, THAT THE SECRETARY OF WAR MAY CAUSE TO BE REMITTED AND CANCELED ANY PART OF SUCH INDEBTEDNESS REMAINING UNPAID EITHER ON HONORABLE DISCHARGE OF THE ENLISTED MAN FROM THE SERVICE OR PRIOR THERETO WHEN IN HIS OPINION THE INTERESTS OF THE GOVERNMENT ARE BEST SERVED BY SUCH ACTION: AND PROVIDED FURTHER, THAT NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PREVENT COLLECTIONS OF SUCH INDEBTEDNESS ON FINAL STATEMENTS FROM PAY, IN THE PROPORTIONS HEREINBEFORE INDICATED, OR FROM CLOTHING ALLOWANCE SAVINGS."

UNDER THOSE PROVISIONS OF LAW THE QUESTION AS TO WHETHER OR NOT THE PAY OF MILITARY PERSONNEL SHOULD BE WITHHELD, AS AUTHORIZED THEREBY, PRIMARILY IS FOR ADMINISTRATIVE DETERMINATION. SEE 23 COMP.GEN. 850, AND DECISION OF DECEMBER 12, 1946, B-59883, TO THE SECRETARY OF THE NAVY. AS TO THE AUTHORITY OF THE WAR DEPARTMENT TO REFUND AMOUNTS COLLECTED PURSUANT TO THOSE ACTS PROVISION IS MADE IN THE MILITARY APPROPRIATION ACT, 1947, PUBLIC LAW 515, APPROVED JULY 16, 1946, AND PRIOR ANNUAL APPROPRIATION ACTS, UNDER THE HEADING "FINANCE DEPARTMENT, FINANCE SERVICE, ARMY, PAY OF THE ARMY," FOR--

"*** REPAYMENT OF AMOUNTS DETERMINED BY THE SECRETARY OF WAR, OR OFFICERS DESIGNATED BY HIM, TO HAVE BEEN ERRONEOUSLY COLLECTED FROM MILITARY AND CIVILIAN PERSONNEL IN AND UNDER THE MILITARY ESTABLISHMENT ***."

WHILE THE MATTERS REFERRED TO IN YOUR LETTER THUS WOULD APPEAR TO BE FOR YOUR DETERMINATION IN THE FIRST INSTANCE, CONSIDERATION WILL BE GIVEN THE MERITS OF THE TWO EXAMPLES COVERED IN THE MEMORANDA FROM THE JUDGE ADVOCATE GENERAL'S OFFICE, WHICH YOU ENCLOSED.

THE FIRST IN THE CASE OF MASTER SERGEANT MELTON E. EBAUGH, ASN 20342427.

IT APPEARS THAT MASTER SERGEANT EBAUGH REGISTERED A CLASS E ALLOTMENT IN THE AMOUNT OF $35 PER MONTH, EFFECTIVE MAY 1, 1942, IN FAVOR OF HIS WIFE, VERA LORENE EBAUGH, AND THAT HE DISCONTINUED SUCH ALLOTMENT AS OF MAY 31, 1942, AND REQUESTED FAMILY ALLOWANCE PAYMENTS AUTHORIZED BY THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381.

IN WAR DEPARTMENT CIRCULAR NO. 225, DATED JULY 11, 1942, IT WAS STATED THAT WHILE THE FAMILY ALLOWANCE PAYMENTS WOULD BEGIN TO ACCRUE ON JUNE 1, 1942, PAYMENTS THEREOF TO DEPENDENTS WOULD NOT BE MADE UNTIL NOVEMBER 1, 1942, AND PARAGRAPH 11(C) OF THAT CIRCULAR PROVIDED AS FOLLOWS:

"IN CASES WHERE IT IS NECESSARY TO DISCONTINUE OR ADJUST VOLUNTARY ALLOTMENTS OF ENLISTED MEN WHO HAVE CLASS E ALLOTMENTS RUNNING IN ORDER TO PERMIT THE PAY ROLL ACCOUNT OF THE ENLISTED MAN TO PROVIDE THE AMOUNTS REQUIRED BY A AND B ABOVE, AND WHERE HARDSHIP WOULD RESULT IF THE PAYMENT TO DEPENDENTS OF THE AMOUNT FORMERLY PAID AS A CLASS E ALLOTMENT WERE DISCONTINUED DURING THE PERIOD THROUGH SEPTEMBER 30, 1942, THE FOLLOWING PROCEDURE WAS AUTHORIZED:

"(1) THE CLASS E ALLOTMENT MAY BE DISCONTINUED ON W.D.A.G.O. FORM NO. 30 (NOTIFICATION OF DISCONTINUANCE OF ALLOTMENT), AND THE FOLLOWING NOTATION PLACED ON THE REVERSE SIDE OF THE FORM:

"PAYMENT TO CONTINUE THROUGH SEPTEMBER 30, 1942, UNDER THIS ALLOTMENT AND THE TOTAL SO PAID FROM DATE OF CANCELLATION THROUGH SEPTEMBER 30, 1942, IS TO BE DEDUCTED FROM THE FIRST PAYMENT UNDER THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT."

IN ACCORDANCE WITH THAT PROCEDURE PAYMENT OF THE MONTHLY CLASS E ALLOTMENT OF $35 TO SERGEANT EBAUGH'S WIFE WAS CONTINUED FOR THE MONTHS OF JUNE, JULY, AUGUST AND SEPTEMBER BUT THE AMOUNT OF SUCH ALLOTMENT WAS NEITHER DEDUCTED FROM HIS PAY NOR DEDUCTED FROM THE FAMILY ALLOWANCE PAYMENTS SUBSEQUENTLY MADE. THE RESULT WAS THAT THE ENLISTED MAN'S WIFE RECEIVED A TOTAL OF $140 FROM THE GOVERNMENT TO WHICH SHE WAS NOT ENTITLED.

WHILE ALL THE FACT IN THE MATTER ARE NOT ENTIRELY CLEAR AND WHILE THE PARTICULAR REGULATION CITED AS AUTHORITY FOR REQUESTING THAT AN ALLOTMENT BE "DISCONTINUED" WITH THE UNDERSTANDING THAT PAYMENT THEREOF WAS TO CONTINUE AS A CHARGE AGAINST FAMILY ALLOWANCE PAYMENTS TO BE MADE AT A LATER DATE IS DATED SOME TIME AFTER THE EFFECTIVE DATE ON WHICH THE ALLOTMENT HERE INVOLVED WAS TO BE DISCONTINUED, IT IS NOT UNDERSTOOD THAT THE PAYMENTS IN QUESTION WERE MADE WITHOUT THE CONSENT OF THE ENLISTED MAN. IT SEEMS CLEAR THAT HE HAD KNOWLEDGE OF THE REGULATIONS IN THAT RESPECT AND THAT HE KNEW SUCH PAYMENTS WERE BEING MADE. ALSO, HE MUST BE CHARGED WITH KNOWLEDGE THAT THE GOVERNMENT WOULD REQUIRE REFUND THEREOF. IT IS INDICATED THAT SUCH REGULATIONS WERE ISSUED PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 108 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 383. HOWEVER, WHILE THAT SECTION PROVIDES THAT AN ALLOTMENT IN EFFECT AT THE TIME A FAMILY ALLOWANCE BECOMES PAYABLE MAY BE CONTINUED, MODIFIED, OR DISCONTINUED, IN ACCORDANCE WITH SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE HEAD OF THE DEPARTMENT CONCERNED, NOTHING CONTAINED IN THAT SECTION INDICATES THAT AUTHORITY WAS GRANTED TO THE HEAD OF A DEPARTMENT TO CONTINUE AN ALLOTMENT OF AN ENLISTED MAN'S PAY WITHOUT A CONTINUANCE, ALSO, OF THE PRIMARY LIABILITY OF THE ENLISTED MAN WITH RESPECT TO SUCH ALLOTMENTS. HENCE, IT WOULD APPEAR THAT THE AMOUNT ERRONEOUSLY RECEIVED BY THE ENLISTED MAN'S WIFE REPRESENTED ALLOTMENT PAYMENTS RATHER THAN FAMILY ALLOWANCE PAYMENTS AND, IF THAT BE THE CASE, THERE APPEARS TO BE NO QUESTION THAT THE AMOUNT THEREOF PROPERLY WAS FOR CHARGING AGAINST HIS PAY. WHILE UNDER THE APPLICABLE REGULATIONS, RECOVERY COULD HAVE BEEN MADE BY MAKING SUITABLE DEDUCTIONS FROM THE FAMILY ALLOWANCE PAYMENTS, THE FACT THAT THEY WERE NOT SO DEDUCTED DOES NOT EXTINGUISH THE GOVERNMENT'S RIGHT OF RECOVERY.

HOWEVER, EVEN IF THE PAYMENTS MADE TO THE ENLISTED MAN'S WIFE DURING THE MONTHS OF JUNE, JULY, AUGUST AND SEPTEMBER, 1942, COULD BE CONSIDERED TO BE ADVANCE PAYMENTS OF FAMILY ALLOWANCE RATHER THAN ALLOTMENT PAYMENTS THIS OFFICE COULD NOT SUBSCRIBE TO THE THEORY ADVANCED IN THE MEMORANDUM FROM THE JUDGE ADVOCATE GENERAL'S OFFICE REFERRED TO ABOVE THAT THE ENLISTED MAN RECEIVED NO BENEFIT FROM THE MONEYS INVOLVED UNLESS IT CAN BE SHOWN THAT THE WIFE EXPENDED SUCH MONEYS TO MEET HIS PERSONAL OBLIGATIONS OR THAT HE HAD COMMITTED A BREACH OF HIS DUTY TO SUPPORT HIS WIFE AND THAT THE MONEYS HAD BEEN USED TO PURCHASE THE NECESSARIES OF WHICH SHE WAS DEPRIVED BY HIS FAILURE TO SUPPORT HER. ONE OF THE PRIMARY PURPOSES OF THE PROVISIONS AUTHORIZING PAYMENT OF FAMILY ALLOWANCE BENEFITS TO DEPENDENTS OF ENLISTED MEN WAS TO PROVIDE SUPPORT AND NECESSARIES FOR THOSE PERSONS ORDINARILY DEPENDENT ON ENLISTED MEN THEREFOR. HENCE, IT WOULD APPEAR THAT PAYMENTS MADE IN ACCORDANCE WITH THE PROVISIONS AUTHORIZING SUCH BENEFITS SHOULD BE PRESUMED TO BE MADE FOR THE PURPOSE OF PROVIDING SUCH DEPENDENTS WITH SUPPORT; AND, IN DETERMINING LIABILITY FOR ERRONEOUS PAYMENT OF SUCH BENEFITS, THE BURDEN SHOULD BE ON THE ENLISTED MAN TO PROVE AFFIRMATIVELY THAT HE DID NOT RECEIVE ANY BENEFIT FROM SUCH MONEYS.

IN THE ULTIMATE ANALYSIS IT WOULD APPEAR THAT THE SITUATION PRESENTED IS MERELY A CASE WHERE THE GOVERNMENT PAID CERTAIN MONEYS TO THE ENLISTED MAN'S WIFE, ON HIS BEHALF, TO BE USED FOR HER SUPPORT. THE FACT THAT THE GOVERNMENT FAILED TO COLLECT THE MONEYS IN THE MANNER INTENDED DOES NOT RELIEVE THE ENLISTED MAN OF LIABILITY IN THE MATTER.

FOR THE FOREGOING REASONS I AM INCLINED TO THE VIEW THAT THERE IS NO SOUND BASIS FOR REFUNDING TO SERGEANT EBAUGH THE AMOUNT OF THE ERRONEOUS PAYMENTS HERETOFORE COLLECTED FROM HIM.

THE SECOND CASE IS THAT OF STAFF SERGEANT CHARLES C. HILL, ASN 17059215.

IT APPEARS THAT IN AUGUST 1943, STAFF SERGEANT HILL, THEN A SERGEANT, SIGNED AN APPLICATION FOR A FAMILY ALLOWANCE UNDER THE PROVISIONS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, SUPRA, SECTION 106(A) OF WHICH PROVIDED:

"FOR ANY MONTH FOR WHICH A MONTHLY FAMILY ALLOWANCE IS PAID UNDER THIS TITLE TO THE DEPENDENT OR DEPENDENTS OF ANY SUCH ENLISTED MAN THE MONTHLY PAY OF SUCH ENLISTED MAN SHALL BE REDUCED BY, OR CHARGED WITH, THE AMOUNT OF $22 ***. THE AMOUNT OF WHICH THE PAY OF ANY SUCH ENLISTED MAN IS SO REDUCED OR WITH WHICH IT IS SO CHARGED SHALL CONSTITUTE PART OF THE MONTHLY FAMILY ALLOWANCE PAYABLE TO HIS DEPENDENT OR DEPENDENTS."

SECTION 112 OF SUCH ACT PROVIDES, IN PART: "*** THE SECRETARY OF THE DEPARTMENT CONCERNED MAY *** WAIVE THE RECOVERY OF ANY MONEY ERRONEOUSLY PAID UNDER THIS TITLE WHENEVER HE FINDS THAT SUCH RECOVERY WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE. ***."

IT IS INDICATED THAT THE ENLISTED MAN DID NOT REALIZE HE HAD SIGNED AN APPLICATION FOR THE FAMILY ALLOWANCE AND NO ENTRY WAS MADE IN HIS SERVICE RECORD WITH RESPECT THERETO. ACCORDINGLY, WHILE THE FAMILY ALLOWANCE PAYMENTS WERE COMMENCED BEGINNING WITH AUGUST, 1943, AND CONTINUED THROUGH JULY, 1945, THE ENLISTED MAN'S PAY WAS NOT REDUCED BY, OR CHARGED WITH, THE $22 PER MONTH AS REQUIRED BY THE LAW. IN THE MEANTIME, ON OCTOBER 14, 1943, THE ENLISTED MAN WAS PROMOTED TO STAFF SERGEANT, THEREBY BECOMING ENTITLED TO THE PAY OF THE THIRD GRADE, AND HE THUS BECAME INELIGIBLE FOR FURTHER FAMILY ALLOWANCE PAYMENTS. HOWEVER, THE SAID SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, WAS AMENDED BY THE ACT OF OCTOBER 26, 1943, 57 STAT. 579, SO AS TO AUTHORIZE THE FAMILY ALLOWANCE PAYMENTS FOR ALL GRADES OF ENLISTED PERSONNEL, AND A NEW SECTION 108(B) WAS ADDED, READING AS FOLLOWS:

"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 THE 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 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. NO DEPENDENT OF ANY ENLISTED MAN SHALL BE ENTITLED TO FAMILY ALLOWANCE FOR ANY PERIOD FOR WHICH SUCH MONETARY ALLOWANCE IS PAID TO THE ENLISTED MAN ***."

IT IS STATED THAT UPON BEING PROMOTED TO THE GRADE OF STAFF SERGEANT, AND PRIOR TO NOVEMBER 1, 1943, STAFF SERGEANT HILL APPLIED FOR A MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS (WIFE) AND, AS HE APPARENTLY AT THAT TIME HAD AN ALLOTMENT OF HIS PAY IN EFFECT FOR THE SUPPORT OF HIS WIFE IN AN AMOUNT NOT LESS THAN THE AMOUNT OF SUCH MONETARY ALLOWANCE, PAYMENT THEREOF WAS BEGUN IN NOVEMBER, 1943. HOWEVER, SINCE THERE WAS NO EVIDENCE THAT THE FAMILY ALLOWANCE WAS BEING PAID, NOTICE OF THE ENLISTED MAN'S PROMOTION OR OF THE FACT THAT HE WAS BEING PAID THE MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS WAS NOT FURNISHED THE DISBURSING OFFICER MAKING THE FAMILY ALLOWANCE PAYMENTS. THE ALLOTMENT IN FAVOR OF HIS WIFE AND THE PAYMENT OF THE MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS WERE DISCONTINUED AS OF MAY 31, 1944, AT HIS REQUEST, IT BEING INDICATED THAT HE AND HIS WIFE HAD SEPARATED SHORTLY AFTER HIS RETURN TO THE UNITED STATES IN APRIL, 1944, AND THAT THEY WERE DIVORCED ON JULY 2, 1945.

IN THE MEMORANDUM FROM THE JUDGE ADVOCATE GENERAL'S OFFICE IT IS INDICATED THAT THE PROVISION CONTAINED IN SECTION 112 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, QUOTED ABOVE, IS NOT CONSIDERED AS BEING APPLICABLE TO THIS CASE, AND THE OPINION IS EXPRESSED THAT THE ENLISTED MAN SHOULD BE HELD LIABLE FOR THE MONTHLY DEDUCTION OF $22 FOR THE PERIODS FROM AUGUST THROUGH OCTOBER, 1943, AND FROM JUNE 1944 THROUGH JULY 1945. HOWEVER, DOUBT IS EXPRESSED AS TO HIS LIABILITY FOR SUCH DEDUCTION FROM NOVEMBER 1943 THROUGH MAY 1944, SINCE HIS APPLICATION FOR THE ACCEPTANCE OF THE MONETARY ALLOWANCE IN LIEU OF QUARTERS FOR DEPENDENTS (WIFE) BEGINNING NOVEMBER 1, 1943, WOULD APPEAR TO HAVE CONSTITUTED A VALID ELECTION UNDER THE PROVISIONS OF SECTION 108(B) OF THE SAID SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, IN WHICH EVENT HIS ENTITLEMENT TO SUCH MONETARY ALLOWANCE DURING SUCH PERIOD WOULD BE ESTABLISHED. ACCORDINGLY, IT IS REASONED THAT THE FAILURE OF THE GOVERNMENT TO DISCONTINUE THE PAYMENT OF THE FAMILY ALLOWANCE TO HIS WIFE WAS WITHOUT FAULT ON HIS PART, AND THAT IN THE ABSENCE OF EVIDENCE THAT HE ACTUALLY RECEIVED BENEFIT FROM SUCH PAYMENTS, THERE WOULD BE NO BASIS FOR HOLDING HIM LIABLE THEREFOR. HOWEVER, AS INDICATED IN CONNECTION WITH SERGEANT EBAUGH'S CASE, IT IS THE VIEW OF THIS OFFICE THAT THE BURDEN IS ON THE ENLISTED MAN IN SUCH CASES TO ESTABLISH AFFIRMATIVELY THAT HE RECEIVED NO BENEFIT FROM SUCH ERRONEOUS PAYMENTS AND THAT UNLESS IT BE SO ESTABLISHED HE SHOULD BE HELD LIABLE.

ACCORDINGLY, ON THE PRESENT RECORD, IT IS MY OPINION THAT THE AMOUNT COLLECTED FROM STAFF SERGEANT HILL ON ACCOUNT OF THE ERRONEOUS PAYMENTS IN QUESTION SHOULD NOT BE REFUNDED TO HIM.