BNUMBER:  B-271983
DATE:  December 3, 1996
TITLE:  Danny J. Oldland

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Matter of:Danny J. Oldland

File:     B-271983

Date:December 3, 1996

DIGEST

A military member received erroneous payments of an overseas housing 
allowance, basic allowance for quarters, and a cost of living 
allowance at the with dependent rate after he and his wife had 
separated and moved into separate quarters off base.  Partial waiver 
was granted under 10 U.S.C.  sec.  2774 (1994) for the period prior to 
their execution of a formal separation agreement because the member 
reasonably may not have been aware that he was not entitled to the 
allowance at the with dependent rate.  However, waiver was denied for 
the remaining period because the separation agreement provided that 
there would be no spousal support and there was no showing that he 
actually supported her.  On appeal, since the member has not 
established that he provided support to his wife during the period 
after executing the separation agreement, the action denying waiver 
for that part of the debt is sustained.

DECISION

This decision responds to correspondence from Stephen J. Dunn, Esq., 
who is seeking reconsideration of Settlement Z-2927601, Nov. 8, 1994, 
on behalf of 
Mr. Danny J. Oldland.  That settlement denied waiver of a part of Mr. 
Oldland's debt due the United States.  We conclude that the settlement 
was correct and is sustained.

Mr. Danny J. Oldland, while a member of the United States Air Force 
stationed at the Kadena Air Force Base in Okinawa, Japan, and living 
on base with his wife, was receiving an overseas housing allowance, 
basic allowance for quarters, and a cost of living allowance at the 
with dependent rate on her behalf.  On September 17, 1990, they 
separated.  Following that separation, they moved into separate 
quarters off base and on December 12, 1990, they executed a formal 
separation agreement.  The member continued to receive these 
allowances at the with dependent rate until August 29, 1991, when it 
was first learned by appropriate authority that he and his wife had 
separated.  On investigation, it was determined that he was not 
entitled to these allowances after September 17, 1990, and that he had 
been overpaid $9,049.07.

Following Mr. Oldland's request for waiver under 10 U.S.C.  sec.  2774 
(1994) and denial of waiver by the Defense Finance and Accounting 
Service, the matter was submitted here for reconsideration.  By 
Settlement Z-2927601, supra, it was concluded that, although he was 
not entitled to the allowances during the period September 17, 1990, 
through August 29, 1991, he reasonably may not have been aware that he 
was not entitled to receive dependent allowances during the period 
September 17, 1990, to December 11, 1990, prior to the date of his 
separation agreement.  As a result, we waived collection of $2,383.73 
of the debt.  We denied waiver for the remaining debt of $6,665.34 
because Mr. Oldland and his wife were formally separated on December 
12, 1990,[1] and they executed a separation agreement containing the 
statement that "[t]he Parties waive any claim to alimony or spousal 
support from the other."  We concluded that, since he was not 
providing spousal support thereafter, that he could not reasonably 
have believed he was entitled to continue receiving dependent 
allowances.

Mr. Oldland argues that he made repeated good faith attempts to 
ascertain from those whom he presumed were knowledgeable about the 
allowances he was entitled to receive.  He argues further that he did 
provide support for his wife, in that he made two large payments to 
her in September 1990.  He contends that the reason that the statement 
regarding no spousal support was inserted into the separation 
agreement was that the earlier payments were in satisfaction of all 
future support obligations.

The record in the case does not support his arguments.  The date used 
in the statement submitted to support Mr. Oldland's appeal that he 
attempted to learn about his allowance entitlements was October 1990.  
Assuming that to be true, those efforts would merely further support 
the basis upon which we granted him partial waiver of his debt for the 
period ending December 11, 1990.  However, it does not provide a basis 
to waive any of his debt for the period beginning December 12, 1990, 
when he and his wife executed the agreement that he would no longer be 
required to provide her with support.  In that regard, since the 
payments Mr. Oldland claims he made as support payments antedated the 
separation agreement by more than two months, the payments, the amount 
of those payments, and their purpose, should have been made part of 
that record.  They were not.

In contrast to Mr. Oldland's assertions, the record shows that, while 
Mr. Oldland's wife admits having received $10,500, she states that the 
amount represented the division of their joint bank account when they 
separated in September 1990, and she denied that she received any 
monetary support from him.  She also admits that she received $26,000 
from a certificate of deposit, but when the certificate of deposit was 
purchased in 1987, it was mostly her money that was used.  As a 
result, she considered the money hers when she withdrew it, rather 
than it representing support payments from Mr. Oldland.  There is 
nothing in the record that refutes her assertions.  

Therefore, it is our view that Mr. Oldland has not established that he 
provided his wife with spousal support during the period in question 
and the action previously taken is sustained.

/s/Seymour Efros
for Robert P. Murphy
General Counsel  

1. Erroneously stated in the settlement as September 12, 1990.