B-128338, B-128339, JUN 22, 1959
Highlights
TO MEMBERS OF THE UNIFORMED SERVICES ASSIGNED TO OVERSEAS DUTY WHERE QUARTERS WERE NOT AVAILABLE TO THE MEMBER AND WHOSE DEPENDENTS DID NOT RESIDE AT OR IN THE VICINITY OF THE MEMBER'S OVERSEAS STATION. PARAGRAPH 4304 WAS ADDED TO THE JOINT TRAVEL REGULATIONS PRESCRIBING THE FAMILY SEPARATION ALLOWANCE. THE PRACTICAL EFFECT OF THIS FAMILY SEPARATION ALLOWANCE WAS TO GIVE TO THE MEMBERS CONCERNED. THE BASIC ALLOWANCE FOR QUARTERS AUTHORIZED FOR MEMBERS WITHOUT DEPENDENTS WHO WERE REQUIRED TO SECURE QUARTERS FOR THEMSELVES. WE HELD THAT THERE WAS NO STATUTORY AUTHORITY FOR PAYMENT OF THE FAMILY SEPARATION ALLOWANCE PROVIDED BY THE NEW PARAGRAPH 4304 OF THE JOINT TRAVEL REGULATIONS. PARAGRAPH 4304 WAS RESCINDED AND THE FAMILY SEPARATION ALLOWANCE PAYMENTS WERE DISCONTINUED.
B-128338, B-128339, JUN 22, 1959
PRECIS-UNAVAILABLE
HONORABLE CARL VINSON, CHAIRMAN:
COMMITTEE ON ARMED SERVICES
HOUSE OF REPRESENTATIVES
YOUR LETTER OF JUNE 11, 1959, ACKNOWLEDGED JUNE 15, REQUESTS OUR COMMENTS ON H.R. 7527 TO VALIDATE THE PAYMENT OF FAMILY SEPARATION ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES.
BY JOINT DETERMINATION NO. 5-56 EFFECTIVE MARCH 1, 1956, THE PER DIEM TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE OF THE DEPARTMENT OF DEFENSE PRESCRIBED A CHANGE TO JOINT TRAVEL REGULATIONS AUTHORIZING A FAMILY SEPARATION ALLOWANCE PAYABLE ON A GRADUATED SCALE ACCORDING TO RANK, TO MEMBERS OF THE UNIFORMED SERVICES ASSIGNED TO OVERSEAS DUTY WHERE QUARTERS WERE NOT AVAILABLE TO THE MEMBER AND WHOSE DEPENDENTS DID NOT RESIDE AT OR IN THE VICINITY OF THE MEMBER'S OVERSEAS STATION. BY CHANGE 46, DATED MAY 1, 1956, PARAGRAPH 4304 WAS ADDED TO THE JOINT TRAVEL REGULATIONS PRESCRIBING THE FAMILY SEPARATION ALLOWANCE. THE PRACTICAL EFFECT OF THIS FAMILY SEPARATION ALLOWANCE WAS TO GIVE TO THE MEMBERS CONCERNED, IN ADDITION TO THE BASIC ALLOWANCE FOR QUARTERS AUTHORIZED FOR THEM AS MEMBERS WITH DEPENDENTS, THE BASIC ALLOWANCE FOR QUARTERS AUTHORIZED FOR MEMBERS WITHOUT DEPENDENTS WHO WERE REQUIRED TO SECURE QUARTERS FOR THEMSELVES.
ON JUNE 16, 1956, OUR AUDIT PERSONNEL QUESTIONED THE VALIDITY OF THE NEW REGULATION. IN DECISION OF JULY 17, 1956, B-128338, B-128339, TO THE SECRETARY OF DEFENSE, COPY ENCLOSED, WE HELD THAT THERE WAS NO STATUTORY AUTHORITY FOR PAYMENT OF THE FAMILY SEPARATION ALLOWANCE PROVIDED BY THE NEW PARAGRAPH 4304 OF THE JOINT TRAVEL REGULATIONS. FOLLOWING THIS DECISION, PARAGRAPH 4304 WAS RESCINDED AND THE FAMILY SEPARATION ALLOWANCE PAYMENTS WERE DISCONTINUED. IN DECISION OF OCTOBER 3, 1956, 36 COMP.GEN. 274, COPY ENCLOSED, WE RECONSIDERED THE MATTER AND ADHERED TO OUR PREVIOUS DECISION.
FOLLOWING THE DECISION OF JULY 17, 1956, OUR AUDIT PERSONNEL ISSUED MORE THAN 4,800 NOTICES OF EXCEPTION TOTALING IN EXCESS OF $774,000 AGAINST THE ACCOUNTABLE OFFICERS FOR PAYMENTS OF THESE FAMILY SEPARATION ALLOWANCES. BY LETTER OF MAY 29, 1957, THE DEPARTMENT OF DEFENSE REPORTED THAT RELIEF LEGISLATION WAS CONTEMPLATED AND ASKED THAT WE RECONSIDER THAT PART OF THE DECISIONS OF JULY 17 AND OCTOBER 3, 1956, SUGGESTING PROMPT RECOVERY OF THE ERRONEOUS PAYMENTS. IN LETTER OF JUNE 14, 1957, COPY ENCLOSED, THE DEPARTMENT WAS ADVISED THAT WE HAD NO OBJECTION TO SUSPENSION OF COLLECTION PROCEEDINGS PENDING CONSIDERATION OF THE PROPOSED LEGISLATION BY CONGRESS. THE CONGRESS HAS BEEN INFORMED OF A PART OF THESE PARTICULAR ERRONEOUS PAYMENTS IN OUR REPORTS ON THE AUDIT OF ACCOUNTS OF DISBURSING OFFICERS OF THE ARMY, NAVY AND AIR FORCE.
WE HAVE NO REASON TO DOUBT THAT THE MEMBERS WHO RECEIVED THESE ERRONEOUS PAYMENTS ACCEPTED THEM IN GOOD FAITH. PRESUMABLY, HOWEVER, MOST, IF NOT ALL, OVERPAYMENTS BASED UPON UNAUTHORIZED REGULATIONS ARE ACCEPTED IN GOOD FAITH. CONSEQUENTLY, IF SUCH REASON IS ANY COMPELLING JUSTIFICATION FOR PERMITTING THE MEMBERS TO RETAIN SUCH PAYMENTS, THERE WOULD APPEAR TO BE LITTLE BASIS FOR THE GOVERNMENT TO ATTEMPT RECOVERY OF ANY SUCH OVERPAYMENT. MOREOVER, SINCE THE AVERAGE NOTICE OF EXCEPTION IN THESE CASES IS APPROXIMATELY $161 ($774,000 DIVIDED BY 4,800), IT DOES NOT APPEAR THAT REQUIRING THE MEMBERS CONCERNED TO REFUND THE OVERPAYMENTS WILL SUBJECT THEM TO ANY UNDULY SEVERE HARDSHIP.
IT MAY BE NOTED THAT THIS BILL REFLECTS WHAT APPEARS TO BE A GROWING TENDENCY TO SUBMIT VALIDATING LEGISLATION TO CONGRESS IN CASES WHERE WE HAVE FOUND A SIZEABLE NUMBER OF OVERPAYMENTS OF A SPECIFIC CLASS, INSTEAD OF PROCEEDING PROMPTLY TO COLLECT THE OVERPAYMENTS AS CONTEMPLATED BY THE ACT OF JULY 15, 1954, 68 STAT. 482. ALSO, IT MAY BE NOTED THAT PROVISIONS IN BILLS OF THIS TYPE TO REFUND ANY AMOUNTS WHICH HAVE BEEN REPAID AS A RESULT OF THE OVERPAYMENT, IMPOSES ADDITIONAL ADMINISTRATIVE BURDEN, INCREASES COSTS, AND CAUSES DUPLICATION OF EFFORT WHEN THE AUDITORS WHO ISSUED THE EXCEPTIONS AND THE ADMINISTRATIVE PERSONNEL WHO PROCESSED THE REPAYMENTS, ARE REQUIRED TO PROCESS, AUDIT AND REVIEW REFUNDS FOR THE SAME TRANSACTIONS.
IN ADDITION TO SUCH CONSIDERATIONS, WE DO NOT VIEW WITH FAVOR LEGISLATION WHICH IS DISCRIMINATORY IN EFFECT. BY PERMITTING THE MEMBERS CONCERNED TO RETAIN THESE OVERPAYMENTS RECEIVED DURING THE PERIOD THE REGULATIONS WERE IN EFFECT, THE BILL WOULD DISCRIMINATE AGAINST ALL OTHER MEMBERS OF THE UNIFORMED SERVICES SIMILARLY SITUATED WHO DID NOT RECEIVE THE FAMILY SEPARATION ALLOWANCE PAYMENTS.
WE DO NOT RECOMMEND THE H.R. 7527 BE ACCORDED FAVORABLE CONSIDERATION.