B-148216, APR. 12, 1962

B-148216, APR. 12, 1962

TO MR. NORMAN P. NOBACH:

REFERENCE IS MADE TO LETTER OF JANUARY 26, 1962, WRITTEN ON YOUR BEHALF BY MR. HAROLD Q. NOACK, JR., OF FERNHOFF AND WOLFE, ATTORNEYS AT LAW, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $243, REPRESENTING AN OVERPAYMENT OF PER DIEM MADE TO YOU INCIDENT TO DUTY PERFORMED DURING VARIOUS PERIODS FROM DECEMBER 14, 1957, TO MAY 20, 1958, AT YOKOSUKA, JAPAN. THE MATTER OF YOUR INDEBTEDNESS WAS REFERRED TO OUR OFFICE FOR COLLECTION ACTION BY THE U.S. NAVY FINANCE CENTER.

THE RECORD SHOWS THAT BY ORDERS OF COMMANDER SERVICE FORCE, UNITED STATES PACIFIC FLEET, DATED DECEMBER 5, 1957, YOU AND CERTAIN OTHER OFFICERS INCLUDING LIEUTENANT COMMANDER CHARLES J. KEIDEL WERE TO REPORT TO THE COMMANDER MOBILE SUPPORT GROUP CHARLIE FOR TEMPORARY DUTY ON HIS STAFF FOR A PERIOD OF ABOUT FIVE MONTHS, UPON THE COMPLETION OF WHICH YOU WERE TO RETURN TO COMMANDER SERVICE SQUADRON THREE AND RESUME YOUR REGULAR DUTIES. THE ORDERS WERE DELIVERED ON DECEMBER 6, 1957, AND WHILE IT IS SHOWN THAT YOU REPORTED AS DIRECTED ON THE SAME DAY, IT IS INDICATED THAT NO TRAVEL OR CHANGE IN DUTY ASSIGNMENT WAS INVOLVED. FROM ORDERS APPEARING IN THE CLAIM OF COMMANDER KEIDEL FOR PER DIEM FOR DUTY THAT WAS APPARENTLY PERFORMED UNDER THE SAME CIRCUMSTANCES AS IN YOUR CASE, IT APPEARS THAT YOU CONTINUED IN THE PERFORMANCE OF THAT ASSIGNMENT UNTIL JUNE 30, 1958, ON WHICH DATE YOUR TEMPORARY ADDITIONAL DUTY ORDERS WERE TERMINATED BY 17TH ENDORSEMENT OF COMMANDER MOBILE SUPPORT GROUP CHARLIE, DATED JUNE 30, 1958.

BY NOTICE OF EXCEPTION DATED DECEMBER 21, 1960, OUR AUDITORS QUESTIONED AS IMPROPER THE PAYMENT TO YOU OF $243 AS PER DIEM ON VOUCHER NO. 21222 FOR THE PERIODS DECEMBER 14 TO 19, 1957; MARCH 1 TO 6, 1958; MARCH 28 TO APRIL 17, 1958; MAY 8 TO 12, 1958; AND MAY 14 TO 20, 1958, WHILE YOU WERE ON DUTY WITH MOBILE SUPPORT GROUP C AT NAVY 3923, YOKOSUKA, JAPAN. IT IS THERE STATED THAT YOU REPORTED TO MOBILE SUPPORT GROUP C AT NAVY 3923 ON JULY 6, 1957, AND EXCEPT FOR PERIODS OF SHORT DURATION WERE ON DUTY WITH THAT UNIT UNTIL MARCH 6, 1959. GOVERNMENT QUARTERS WERE ASSIGNED YOU AND YOUR DEPENDENTS AT NAVY 3923 ON JULY 5, 1957, AND TERMINATED ON MARCH 7, 1959. YOU APPARENTLY CONTEND THAT YOUR DUTY DURING THE PERIODS IN QUESTION AT YOKOSUKA WITH MOBILE SUPPORT UNIT C WAS NOT PERMANENT DUTY BECAUSE YOU SAY YOU WERE NOT ELIGIBLE FOR GOVERNMENT TRANSPORTATION OF YOUR DEPENDENTS AND HOUSEHOLD EFFECTS TO YOKOSUKA AND FURTHERMORE YOU SAY YOU WERE NOT ELIGIBLE FOR BASE GOVERNMENT HOUSING NOR FOR PARTICIPATION IN A WELFARE AND RECREATION FUND. ON SUCH BASIS YOU APPEAR TO BELIEVE THAT YOU ARE ENTITLED TO THE PER DIEM PAID YOU WHILE STATIONED AT YOKOSUKA.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (A), PROVIDES AUTHORITY, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, FOR THE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES OF TRAVEL AND TRANSPORTATION ALLOWANCES ONLY "WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY.' REGULATIONS PROMULGATED UNDER THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. PARAGRAPH 1150- 10A OF THOSE REGULATIONS DEFINES THE MEMBER'S DESIGNATED POST OF DUTY OR PERMANENT DUTY STATION AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH HE IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY. IT IS THE PLACE WHERE HIS BASIC DUTY ASSIGNMENT IS FOR PERFORMANCE. THE TERM "TEMPORARY DUTY," WHICH INCLUDES TEMPORARY ADDITIONAL DUTY, IS DEFINED IN PARAGRAPH 3003-2 OF THE REGULATIONS, FOR TRAVEL ALLOWANCE PURPOSES, TO MEAN DUTY AT A LOCATION OTHER THAN THE PERMANENT STATION. TO QUALIFY FOR TRAVEL ALLOWANCES UNDER SUCH PROVISIONS, TRAVEL AND TEMPORARY DUTY MUST BE PERFORMED AT A POINT OR POINTS REMOVED FROM THE PLACE AT WHICH THE BASIC DUTY ASSIGNMENT IS FOR PERFORMANCE.

THE QUESTION OF WHAT CONSTITUTES A MEMBER'S DESIGNATED POST OF DUTY IS ONE OF FACT, THE DETERMINATION OF WHICH IS TO BE MADE WITH THE ASSISTANCE OF ANY COMPETENT AVAILABLE EVIDENCE TO ESTABLISH THE PLACE WITHIN WHICH HE MUST PERFORM HIS BASIC DUTY ASSIGNMENT. WHILE AN ADMINISTRATIVE EVALUATION OF THE CHARACTER OF THE ASSIGNMENT, AS REFLECTED IN THE ORDERS DIRECTING ITS PERFORMANCE, ORDINARILY IS GIVEN CONSIDERABLE WEIGHT IN SUCH A DETERMINATION IT IS NOT CONCLUSIVE IN THE MATTER WHEN OTHER AVAILABLE EVIDENCE IS CONSIDERED SUFFICIENT TO INDICATE THE EXISTENCE OF A CONTRARY FACTUAL SITUATION. IN OUR FILE IN THE KEIDEL CASE THERE IS A LETTER OF SEPTEMBER 18, 1958,FROM COMMANDER SERVICE SQUADRON THREE TO COMMANDER SERVICE FORCE, UNITED STATES PACIFIC FLEET, CONSIDERING THE ADVISABILITY OF DESIGNATING A PERMANENT DUTY STATION FOR MOBILE SUPPORT UNIT CHARLIE AT YOKOSUKA. IT IS STATED THEREIN THAT THAT UNIT IS ACTIVATED CONTINUOUSLY IN RESPONSE TO HEAVY YEAR-ROUND USE OF YOKOSUKA AS A BASE FOR SEVENTH FLEET UNITS, AND THAT PERSONNEL ATTACHED TO THE UNIT STAFF "GENERALLY SERVE THEIR FULL TOUR WITH THIS UNIT IN YOKOSUKA AND THUS FOR PRACTICAL PURPOSES THE TAD ASSIGNMENT IS A PERMANENT ONE," AND THAT "AT YOKOSUKA THERE IS A PERMANENT STAFF BUT THE ORDERS OF THE PERSONNEL ASSIGNED THERE DO NOT REFLECT THIS FACT.' IN A STUDY OF THE STAFFING OF MOBILE SUPPORT UNIT CHARLIE AT YOKOSUKA, WHICH WAS ATTACHED TO THE LETTER OF SEPTEMBER 18, 1958, IT WAS REPORTED THAT "IN EFFECT THEY ARE PERMANENTLY ASSIGNED TO YOKOSUKA, BUT THEIR OFFICIAL PERMANENT DUTY STATION IS SASEBO.' WHILE YOUR ORDERS OF DECEMBER 5, 1957, DIRECTED THAT YOU REPORT TO MOBILE SUPPORT GROUP CHARLIE FOR TEMPORARY ADDITIONAL DUTY FOR A PERIOD OF ABOUT FIVE MONTHS, SUCH DUTY WAS PERFORMED FOR A LONGER PERIOD AND IT IS APPARENT FROM THE FOREGOING THAT SUCH DUTY, RATHER THAN ANY OTHER PURPORTED ASSIGNMENT ELSEWHERE, ACTUALLY CONSTITUTED YOUR BASIC DUTY ASSIGNMENT DURING THE PERIOD IN QUESTION AND THAT AS A CONSEQUENCE YOUR DESIGNATED POST OF DUTY FOR PER DIEM PURPOSES WAS IN FACT AT YOKOSUKA. UNDER SUCH CIRCUMSTANCES, THERE WAS NO AUTHORITY FOR PAYING YOU PER DIEM FOR THE PERIODS IN QUESTION AND THE EXCEPTION TAKEN BY OUR AUDITORS TO THE PAYMENT WAS PROPER. ENCLOSED FOR YOUR INFORMATION IS A COPY OF OUR DECISION OF MAY 27, 1959, B-139112, WHICH SUSTAINED THE DISALLOWANCE OF THE CLAIM OF COMMANDER KEIDEL.

WHILE IT MAY BE THAT YOU WERE NOT AT FAULT IN THE MATTER OF THIS ERRONEOUS PER DIEM PAYMENT, IT IS WELL ESTABLISHED THAT PERSONS RECEIVING SUCH ERRONEOUS PAYMENTS ACQUIRE NO RIGHT TO THEM AND ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION SINCE RESTITUTION RESULTS IN NO LOSS TO THEM, THEY HAVING RECEIVED SOMETHING FOR NOTHING. SEE BARNES, ET AL. V. DISTRICT OF COLUMBIA, 22 CT.CL. 366; UNITED STATES V. BURCHARD, 125 U.S. 176; AND THE CASES COLLECTED AND DISCUSSED IN UNITED STATES V. SUTTON CHEMICAL CO., 11 F.2D 24, AND IN 63 A.L.R. 1346. EVEN FINANCIAL HARDSHIP WHICH MIGHT RESULT FROM COLLECTION FROM THE RECIPIENT OR THE FACT THAT THE PAYMENTS MAY HAVE BEEN RECEIVED IN GOOD FAITH "CANNOT STAND AGAINST THE INJUSTICE OF KEEPING WHAT NEVER RIGHTFULLY BELONGED TO HIM AT ALL.' UNITED STATES V. BENTLEY, 107 F.2D 382, 384.

ACCORDINGLY, YOU ARE REQUESTED TO REMIT THE SUM OF $243. YOUR CHECK OR MONEY ORDER SHOULD BE ..END :