B-141260, MAY 17, 1960

B-141260, MAY 17, 1960

TO MR. HARRY B. BERNHARD:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 15, 1960, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $49.50 ARISING FROM YOUR SERVICE IN THE ARMY AS A SECOND LIEUTENANT. THE INDEBTEDNESS REPRESENTS ERRONEOUS PER DIEM ALLOWANCE PAYMENTS MADE TO YOU AT FORT LEE, VIRGINIA, AFTER MAY 16, 1955, THE APPARENT DATE OF YOUR RECEIPT OF ORDERS OF MAY 13, 1955, WHICH MADE FORT LEE, VIRGINIA, YOUR PERMANENT DUTY STATION.

YOU REFER TO OUR LETTER OF DECEMBER 30, 1959, IN WHICH WE RECONSIDERED THE MATTER OF YOUR INDEBTEDNESS AND REJECTED YOUR OFFER TO PAY $10 IN FULL SETTLEMENT. IN YOUR PRESENT LETTER YOU OFFER TO SEND $15 IN FULL SETTLEMENT OF THE MATTER. YOU SAY THIS IS A FAIR SETTLEMENT BECAUSE YOUR LEGAL LIABILITY FOR THE INDEBTEDNESS IS DOUBTFUL. IT APPEARS TO BE YOUR VIEW THAT THE PERMANENT CHANGE OF STATION ORDERS OF MAY 13, 1955, ASSIGNING YOU TO DUTY AT FORT LEE, VIRGINIA, DID NOT NECESSARILY MEAN THAT YOUR PERMANENT STATION WOULD BE AT THAT PLACE, SINCE THE ORGANIZATION TO WHICH YOU WERE ASSIGNED "CONSISTED OF SEVERAL LOCATIONS QUITE REMOTE FROM FORT .'

IF, AS ALLEGED, THE 9135TH TU QM TRAINING COMMAND TO WHICH YOU WERE PERMANENTLY ASSIGNED, CONSISTED OF DIFFERENT UNITS SOME OF WHICH WERE STATIONED AT PLACES OTHER THAN FORT LEE, THAT CIRCUMSTANCE WOULD BE WITHOUT SIGNIFICANCE WITH RESPECT TO THE MATTER HERE INVOLVED SINCE THE ORDERS OF MAY 13, 1955, ASSIGNED YOU TO "9135TH TU QM TNG COMD, FT LEE, VA.' SUCH ORDER CONSTITUTED AN ASSIGNMENT TO DUTY AT FORT LEE AND THAT PLACE BECAME YOUR PERMANENT DUTY STATION UPON RECEIPT OF SUCH ORDERS.

CONCERNING YOUR STATEMENT THAT YOU DID NOT RECEIVE THE ORDERS OF MAY 13, 1955, UNTIL ABOUT JUNE 1, 1955, INFORMATION FURNISHED THIS OFFICE IS TO THE EFFECT THAT ORDERS WERE RECEIVED AT FORT LEE ON MAY 16, 1955. DISPUTED QUESTIONS OF FACT BETWEEN A CLAIMANT AND ADMINISTRATIVE OFFICERS OF THE GOVERNMENT, THE ESTABLISHED RULE OF THE ACCOUNTING OFFICERS IS TO ACCEPT THE STATEMENT OF FACTS AS FURNISHED BY THE ADMINISTRATIVE OFFICERS IN ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME PRESUMPTION OF THE CORRECTNESS THEREOF. SEE 31 COMP. GEN. 288.

YOUR STATEMENTS ARE NOT UNDERSTOOD WHICH REFER TO THE INADEQUACY OF THE QUARTERS YOU OCCUPIED AT FORT LEE, THAT FUTURE CLASSES WERE TO RECEIVE PER DIEM AT THE RATE OF $3 PER DAY (RATHER THAN THE $1.65 RATE PAID TO YOU) "TO MAKE UP FOR SUCH DEFICIENCIES," AND THAT IF YOU HAD BEEN CALLED TO ACTIVE DUTY TWO WEEKS LATER THE TOTAL PER DIEM PAYMENT WOULD HAVE BEEN $309 INSTEAD OF THE $169.95 PAID YOU. ONLY ONE RATE OF PER DIEM IS PRESCRIBED IN THE JOINT TRAVEL REGULATIONS FOR MEMBERS UNDERGOING COURSES OF INSTRUCTION AT AN INSTALLATION OF THE UNIFORMED SERVICES WHERE BOTH GOVERNMENT MESS AND QUARTERS ARE AVAILABLE AND THAT RATE WAS $1.65 PER DAY DURING THE PERIOD INVOLVED. THE RATE AT A STATION WHERE ONLY A GOVERNMENT MESS WAS AVAILABLE WAS $5 A DAY. THE PURPOSE OF THE LAW AUTHORIZING PAYMENT OF PER DIEM TO MEMBERS IN A TRAVEL STATUS AWAY FROM THEIR DESIGNATED POST OF DUTY IS TO REIMBURSE THEM FOR THE MORE THAN NORMAL EXPENSES TO WHICH THEY ARE PUT IN OBTAINING QUARTERS AND SUBSISTENCE ON A TRANSIENT BASIS AT HOTELS AND PUBLIC RESTAURANTS. SINCE YOU OCCUPIED GOVERNMENT QUARTERS, YOU INCURRED NO EXPENSE FOR QUARTERS. THE FACT THAT YOU REGARD SUCH QUARTERS AS INADEQUATE IS IMMATERIAL. IN THIS CONNECTION YOUR ATTENTION IS INVITED TO THE PROVISION IN PARAGRAPH 5-8A, ARMY REGULATIONS 37-104, AS FOLLOWS:

"ANY QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES IN FACT OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES AT HIS PERMANENT STATION BY A MEMBER WITHOUT DEPENDENTS WILL BE DEEMED TO HAVE BEEN ASSIGNED TO SUCH MEMBER AS APPROPRIATE AND ADEQUATE QUARTERS.'

IT IS CLEAR THAT THE SUM OF $49.50, PAID TO YOU AS PER DIEM AFTER FORT LEE BECAME YOUR PERMANENT DUTY STATION, WAS NOT AUTHORIZED UNDER THE LAW. SINCE YOU ARE LEGALLY LIABLE TO MAKE RESTITUTION TO THE UNITED STATES FOR THE FULL AMOUNT OF THE ERRONEOUS PAYMENT, YOUR OFFER TO PAY $15 IN FULL SETTLEMENT OF YOUR DEBT IS NOT ACCEPTABLE. YOU ARE AGAIN REQUESTED TO SEND A CHECK OR MONEY ORDER PAYABLE TO THE "U.S. GENERAL ACCOUNTING OFFICE" IN THE SUM OF $49.50 AND ADDRESSED TO THE U.S. GENERAL ACCOUNTING OFFICE, BOX 2610, WASHINGTON 13, D.C. ..END :