B-141482, JAN. 26, 1960

B-141482, JAN. 26, 1960

TO MR. KENNETH C. SORENSON:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 9, 1959, IN EFFECT REQUESTING REVIEW OF THE CLAIM OF THE UNITED STATES AGAINST YOU IN THE AMOUNT OF $200 REPRESENTING ERRONEOUS PAYMENT OF MUSTERING-OUT PAY WHICH YOU RECEIVED INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY RESERVE. WE HAVE ALSO RECEIVED A LETTER DATED NOVEMBER 9, 1959, FROM THE HONORABLE GERALD T. FLYNN, UNITED STATES HOUSE OF REPRESENTATIVES, REQUESTING RECONSIDERATION OF THE CLAIM AGAINST YOU.

BY SPECIAL ORDERS NO. 244, DATED DECEMBER 14, 1954, HEADQUARTERS, FIFTH ARMY, CHICAGO, ILLINOIS, YOU WERE DIRECTED TO PROCEED ON JANUARY 31, 1955, FROM YOUR HOME AT RACINE, WISCONSIN, TO THE ENGINEER SCHOOL, FORT BELVOIR, VIRGINIA, WHERE YOU WERE TO REPORT ON FEBRUARY 3, 1955, ON TEMPORARY DUTY FOR THE PURPOSE OF ATTENDING A COURSE OF INSTRUCTION. TRAVEL BY PRIVATELY OWNED CONVEYANCE WAS AUTHORIZED. YOUR TRAVEL VOUCHER NO. 32626, MARCH 1955 ACCOUNTS OF R. C. CLYNES, SHOWS THAT YOU TRAVELED FROM RACINE, WISCONSIN, TO FORT BELVOIR, VIRGINIA, JANUARY 29 TO FEBRUARY 2, 1955, A DISTANCE OF 847 MILES, BY PRIVATELY OWNED CONVEYANCE.

SECTION 201 (E) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807 (REDESIGNATED AS SECTION 201 (D) BY THE ACT OF MARCH 31, 1955, 69 STAT. 19), PROVIDES:

"* * * THAT IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT, IN THE CASE OF MEMBERS OF THE UNIFORMED SERVICES CALLED OR ORDERED TO EXTENDED ACTIVE DUTY IN EXCESS OF THIRTY DAYS, ACTIVE DUTY SHALL INCLUDE THE TIME REQUIRED TO PERFORM TRAVEL FROM HOME TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO HOME BY THE MODE OF TRANSPORTATION AUTHORIZED IN ORDERS FOR SUCH EMBERS: * * *"

EXECUTIVE ORDER NO. 10153, AUGUST 17, 1950, PRESCRIBING REGULATIONS UNDER THAT SECTION, PROVIDES THAT WHEN TRAVEL BY PRIVATELY OWNED CONVEYANCE IS SPECIFICALLY AUTHORIZED IN CONNECTION WITH REPORTING FOR ACTIVE DUTY, AND TRAVEL IS SO PERFORMED, THE TRAVEL TIME TO BE INCLUDED AS ACTIVE DUTY SHALL BE COMPUTED ON THE BASIS OF ONE DAY FOR EACH 300 MILES TRAVELED, AND ONE DAY FOR EACH FRACTION OF 300 MILES IN EXCESS OF 150 MILES TRAVELED. IT FURTHER PROVIDES THAT THE SECRETARIES CONCERNED MAY PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS AS THEY MAY DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT SUCH REGULATIONS. PARAGRAPH 9 (B) (1), CHANGE NO. 2, ARMY REGULATIONS 35-1320, DATED FEBRUARY 25, 1954, PROVIDES THAT THE PAY AND ALLOWANCES OF COMMISSIONED OFFICERS OF THE ARMY RESERVE "COMMENCE ON THE DAY THEY OFFICIALLY AND NECESSARILY BEGIN TO COMPLY WITH THE ORDERS CALLING THEM TO ACTIVE DUTY.' ALLOWING TRAVEL TIME OF THREE DAYS FOR THE TRAVEL BY PRIVATELY OWNED CONVEYANCE AUTHORIZED BY EXECUTIVE ORDER NO. 10153, YOU WERE NOT OFFICIALLY AND NECESSARILY REQUIRED TO BEGIN TO COMPLY WITH THE ORDERS OF DECEMBER 14, 1954, UNTIL FEBRUARY 1, 1955, TO ENABLE YOU TO REPORT AT FORT BELVOIR, VIRGINIA, ON FEBRUARY 3, 1955. CONSEQUENTLY, YOUR ACTIVE DUTY STATUS AND YOUR RIGHT TO PAY AND ALLOWANCES COMMENCED ON FEBRUARY 1, 1955. SINCE YOU MUST HAVE SERVED ON ACTIVE DUTY PRIOR TO FEBRUARY 1, 1955, IN ORDER TO BE ELIGIBLE FOR MUSTERING-OUT PAYMENT UNDER TITLE V OF THE VETERANS' READJUSTMENT ASSISTANCE ACT OF 1952, 66 STAT. 688, AND PROCLAMATION NO. 3080, ISSUED BY THE PRESIDENT ON JANUARY 5, 1955, AN AUDIT EXCEPTION WAS ISSUED BY OUR OFFICE FOR $200 REPRESENTING THE MUSTERING-OUT PAYMENT YOU RECEIVED UPON YOUR RELEASE FROM ACTIVE DUTY ON JANUARY 30, 1957.

IN YOUR LETTER OF NOVEMBER 9, 1959, YOU CONTEND YOU WERE ON ACTIVE DUTY ON JANUARY 31, 1955, BECAUSE YOU WERE PAID FOR THAT DAY. WE HAVE YOUR PAY RECORD CARD FOR THE PERIOD ENDING JUNE 30, 1955. THIS SHOWS YOU WERE CREDITED WITH PAY AND ALLOWANCES BEGINNING ON FEBRUARY 1, 1955, AND RECEIVED NO PAY FOR JANUARY 31, 1955. UNDER THE PROVISIONS OF THE ACT OF JUNE 30, 1906, AS AMENDED BY THE ACT OF JUNE 30, 1945, 5 U.S.C. 84, THE MONTHLY PAY OF MEMBERS ORDERED TO ACTIVE DUTY FOR A PERIOD OF NOT LESS THAN ONE MONTH IS REQUIRED TO BE COMPUTED ON THE BASIS OF A 30-DAY MONTH "THUS EXCLUDING THE 31ST OF ANY CALENDAR MONTH FROM THE COMPUTATION.' COMP. GEN. 875. HENCE, THE RECORD DOES NOT SUPPORT YOUR CONTENTION THAT YOU WERE PAID FOR JANUARY 31, 1955,AND YOU WERE NOT ENTITLED TO PAY FOR THAT DAY. ALSO, THE FACT THAT YOUR ORDERS WERE IN ERROR IN DIRECTING YOU TO DEPART ON JANUARY 31, 1955, WHICH YOU OBEYED IN GOOD FAITH, DOES NOT AFFECT YOUR LEGAL LIABILITY TO REFUND THE AMOUNT DUE. IN THE ABSENCE OF A STATUTE SO PROVIDING, THE GOVERNMENT IS NOT RESPONSIBLE FOR THE MISTAKES OF ITS OFFICERS AND EMPLOYEES AND IT IS WELL SETTLED THAT PERSONS WHO RECEIVE ERRONEOUS PAYMENTS FROM THE UNITED STATES THROUGH ADMINISTRATIVE ERROR OF ITS OFFICERS MUST RETURN THEM TO THE UNITED STATES. ROBERTSON V. SICHEL, 127 U.S. 507; UNITED STATES V. NORTHWESTERN NATIONAL BANK AND TRUST COMPANY OF MINNEAPOLIS, 35 F.SUPP. 484, 486; WISCONSIN CENTRAL RAILROAD V. UNITED STATES, 164 U.S. 190; UNITED STATES V. BENTLEY, 107 F.2D 382, 384.

ACCORDINGLY, WE HAVE NO RECOURSE OTHER THAN TO REAFFIRM OUR PREVIOUS ACTION IN THE MATTER. YOU ARE AGAIN REQUESTED TO REMIT THE SUM OF $200 WHICH SHOULD BE MADE PAYABLE TO THE "U.S. GENERAL ACCOUNTING OFFICE," AND SHOULD BE ADDRESSED TO THE U.S. GENERAL ACCOUNTING OFFICE, BOX 2610, WASHINGTON 13, D.C. ..END :