(iii) A suit by a prospective defendant has been instituted against the United States or the injured party, and the suit arises out of the occurrence which gave rise to the claim.

(3) Waiver. (i) When requested by the injured party or his attorney, consideration will be given to waiving the claim of the United States in order to avoid undue financial hardship upon the injured party. A hardship waiver must be based upon a showing of actual, not imagined, hardship. A determination of hardship ordinarily cannot be made in the absence of a known amount available to settle the claims of the injured party and the Government. There must be a finding that the reasonable value of the injured party's claim for permanent injuries, pain and suffering, decreased earning power and other items of special damage would not be satisfied if the full amount of the Government's claim is collected. Such factors as pension rights and other Government benefits accruing to the injured party will mitigate against a finding of hardship. Sympathy for the injured party or those connected with him and other subjective considerations are not relevant in determining undue financial hardship. An objective balance between the interests of the injured party and the Government may be obtained by a partial waiver, or in exceptional cases, a full waiver.

(a) Claims within delegated authority (subparagraph (1) of this paragraph). Subject to the provisions of subparagraph (2) of this paragraph, if the judge advocate determines that a waiver in whole or part should be granted, he will attach to the file a memorandum setting forth the basis for such waiver. If the waiver is in full, he may then execute a release on behalf of the United States and dispose of the file as prescribed by pertinent regulations. If the judge advocate finds that a partial waiver should be granted, he may then conclude a settlement and proceed as above. Upon objection by the injured party or his attorney to the judge advocate's determination that a claim should not be waived, or as to the amount of a partial waiver, the objector should be advised that an appeal may be taken. Appeals should be in writing, addressed to the staff judge advocate of the Army or comparable area command and forwarded through the judge advocate making the initial determination.

(b) Claims in excess of delegated authority (subparagraph (1) of this paragraph). If the judge advocate determines that a waiver should be granted in whole or in part, he will forward the claim file directly to the Judge Advocate General, ATTN: Chief, Litigation Division, Department of the Army, Washington, D.C., 20310. If the judge advocate determines that a waiver should not be granted, he will inform the injured party or his attorney of such finding. The judge advocate may then proceed to collect the claim, but if the injured party or his attorney objects to the judge advocate's determination, the objector should be advised that an appeal may be taken. Appeals should be in writing, addressed to the Judge Advocate General as set forth above and forwarded through the judge advocate making the initial determination.

(ii) Judge advocates may waive claims within their delegated authority (subparagraph (1) of this paragraph) for the convenience of the Government if the evidence clearly indicates that no prospective defendant is able to pay and no insurance covers the incident involved, or if, after reasonable efforts, no prospective defendant or insurer can be located. In such cases no release will be issued. The judge advocate will attach to the file a memorandum setting forth the basis for the waiver and dispose of the file as prescribed by pertinent regulations. In all other cases, the judge advocate who receives a request for waiver of all or part of a claim for the convenience of the Government, or who believes that it would be in the interest of the Government to waive all or part of a claim, will forward the claim file directly to the Judge Advocate General, ATTN: Chief, Litigation Division, Department of the Army, Washington, D.C., 20310, with his recommendations and supporting reasons.

(4) Installment payments. If the prospective defendant admits liability and offers to discharge his indebtedness by means of installment payments, the judge advocate will accept such payments and deposit them with the nearest disbursing officer. He will retain the file until full payment has been made or until it becomes apparent that the defendant is not going to make full payment. In the latter case the judge advocate will take the action prescribed in subparagraph (5) of this paragraph.

(a) General. Except as provided for in paragraphs (d) and (e) of this section and other pertinent regulations, before an enlisted member in pay grade E-4 (4 years or less service), E-3, E-2, or E-1 is entitled to credit for basic allowance for quarters for dependents, he must have in effect an allotment of pay to be known as class Q to his dependent(s) (as required by the Dependents Assistance Act of 1950, as amended) in an amount at least equal to the applicable rate for basic allowance for quarters plus $40.

(2) Determination of dependent parent. (i) If dependency of parent is approved, the applicable amount of basic allowance for quarters will be credited from the effective date indicated by the member and allotment deductions made in accordance with instructions furnished by the Commanding General, Finance Center, U.S. Army. A signed statement authorizing the applicable increase of the class Q allotment will be entered on the reverse of DD Form 137 substantially as follows:

Upon approval I hereby authorize an increase of my present class Q allotment of to $-- (BAQ plus 840).

(Signature)

Example. An enlisted member in pay grade E-4 (4 years or less service) applies for basic allowance for quarters for his parent. Credit for basic allowance for quarters is not entered on the military pay record; however, DA Form 1341 (Allotment Authorization) authorizing an allotment for the parent must be submitted in an amount not less than $40. The reverse of DD Form 137 will be annotated as follows:

Upon approval I hereby authorize an increase of my present class Q allotment of $40 to $123.10.

(Signature)

(ii) If the dependency of the parent is disapproved, the member will be in

formed of the disapproval and advised that the allotment currently in effect ($40) will continue unless he takes action to change or discontinue the allotment. If the member desires to change the allotment after notice of disapproval, he will do so by discontinuing the class Q allotment and initiating a class E allotment.

(3) Determination of wife and child relationship and parent dependency. If the relationship of the wife and child is established and the dependency of the parent is disapproved, or vice versa, the Commanding General, Finance Center, U.S. Army, will increase the allotment to the eligible dependent to the minimum amount required by the Dependents Assistance Act of 1950 as amended, and discontinue the allotment to the ineligible dependent. The finance and accounting officer will be advised of proper entries to be made on the military pay record. The finance and accounting officer will notify the personnel officer of the action taken. The personnel officer will advise the member to initiate a class E allotment if he desires to continue support to the ineligible dependent. If the entire claim is disapproved the allotment authorizations will continue in effect until the member takes action to change or discontinue the allotments, but credit for basic allowance for quarters will not be allowed.

Example. An enlisted member in pay grade E-4 (4 years or less service) applies for basic allowance for quarters for wife, child, and parent and states that he wants to allot $90 for his wife and child and $55 for his parent. Relationship of wife and child is in doubt. Credit for basic allowance for quarters will not be entered on the military pay voucher until determination of dependency or relationship is established by the Commanding General, Finance Center, U.S. Army. Class Q allotment authorizations for the wife and the parent will be prepared and apportioned by the enlisted member in a total amount of not less than $40. The reverse of DD Form 137 will be annotated as follows:

Upon approval I hereby authorize an increase of my present class Q allotments to $145 payable as follows:

Mrs. Jane Doe from $25 to $90.
Mrs. Mary Blank from $15 to $55.

(Signature)

(e) Allotment pending approval of dependency or relationship for part of claim-(1) General. When an enlisted member claims credit for basic allowance for quarters for dependents and determination of dependency or relationship for any part of the claim is to be made by the Commanding General,

Finance Center, U.S. Army, the member must have in effect a class Q allotment in an amount not less than the applicable rate of basic allowance for quarters for which determination of dependency has been made by the finance and accounting officer, plus the amount of the member's required contribution. Credit for allowance for quarters will be entered on the military pay voucher for that portion of the approved claim and allotment deductions made in accordance with the allotment authorization. A signed statement will be entered on the reverse of DD Form 137 on which determination of the dependency has been made authorizing an increase to the existing allotment to an amount not less than the minimum required to be allotted in the event of approval and indicating the apportionment desired. In determining the dependency of a parent, the total amount to be allotted will be considered instead actually allotted pending dependency determination.

of the amount

Example. An enlisted member in pay grade E-4 (4 years or less service) applies for basic allowance for quarters for wife, child, and parent and states that he wants to allot $45 to his parent and $100 to his wife, if approved. Credit for basic allowance for quarters in the amount of $83.10 (wife and child) is entered on the military pay voucher on the basis of determination of the finance and accounting officer. An allotment for $100 is initiated for the wife and one for $23.10 is initiated for the parent on DA Form 1341 ($45 minus $21.90 which is basic allowance for quarters applicable to parent on basis of $105 minus $83.10). The reverse of DD Form 137 will be annotated as follows: Upon approval I hereby authorize an in

(7) Grade E-4 completes over 4 years service. A class Q allotment is not required for the calendar month in which a member in pay grade E-4 completes over 4 years service.

(8) Member demoted to grade requiring allotment. A class Q allotment is not required for the calendar month in which a member is demoted to pay grade E-1, E-2, E-3, or E-4 (4 years or less service) if the allotment is effective from the first day of the following month.

(2) Change due to promotion or demotion. (i) When a member is promoted or demoted to a grade which results in an increase or decrease in the amount of the class Q allotment requirement, and his allotment is registered in one of the normal amounts (i.e., $95.20, $123.10, or $145) and there has been no apportionment among the allottees, the allotment will be increased or decreased as provided in subdivisions (ii), (iii) and (iv) of this subparagraph.

*

(Interpret or apply sec. 4, 64 Stat. 795, as amended; 50 U.S.C. 2204)

CODIFICATION: § 538.13 was amended as follows, 28 F.R. 8025, Aug. 7, 1963:

1. Paragraph (a) was amended.

2. In paragraph (d), subparagraphs (2) and (3) were amended.

3. In paragraph (e), subparagraph (1) was amended.

4. In paragraph (h), subparagraph (7) was amended and subparagraph (8) added. 5. In paragraph (j), subparagraph (2) (i) was amended.