B-151567, AUG. 1, 1963

B-151567, AUG. 1, 1963

TO MR. JOSEPH D. LAFLEUR, JR.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 29, 1963, IN EFFECT REQUESTING REVIEW OF YOUR INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $173.59, ARISING FROM YOUR SERVICE AS CAPTAIN, U.S. ARMY, AND SUBMITTING A CHECK IN THE SUM OF $18.02 AS FULL PAYMENT.

THE RECORD SHOWS THAT BY LETTERS DATED FEBRUARY 26 AND MARCH 15, 1963, FROM OUR INDIANAPOLIS OFFICE YOU WERE FULLY ADVISED THAT YOU HAD BEEN OVERPAID $18.02 FOR ACCRUED LEAVE AND THAT THE SHIPMENT OF YOUR HOUSEHOLD EFFECTS RESULTED IN EXCESS COST TO THE GOVERNMENT OF $258.16. BY LETTER OF APRIL 19, 1963, YOU WERE ALLOWED A CREDIT OF $102.59 FOR THE REASON THAT YOUR APPLICATION FOR SHIPMENT INDICATED THAT THE SHIPMENT INCLUDED 400 POUNDS OF PROFESSIONAL BOOKS AND PAPERS. THIS REDUCED YOUR TOTAL INDEBTEDNESS TO $173.59. IN YOUR PRESENT LETTER YOU SAY YOU CANNOT ACKNOWLEDGE THE EXCESS COST OF SHIPPING YOUR HOUSEHOLD EFFECTS AS A JUST DEBT FOR THE REASONS THAT (1) THE TOTAL AMOUNT OF YOUR PROFESSIONAL BOOKS AND EQUIPMENT WAS ACTUALLY IN EXCESS OF THE 400 POUNDS SHOWN; (2) SOME GOODS WERE SHIPPED WHICH YOU NEVER TURNED OVER TO THE CARRIER (AND NEVER SIGNED RECEIPT FOR AT DESTINATION); AND (3) YOU HAD INSTRUCTED THE TRANSPORTATION OFFICE AT FORT BELVOIR TO ADVISE YOU, AFTER THE GOODS WERE WEIGHED, WHETHER YOU WERE OVER YOUR ALLOWANCE SO YOU COULD REMOVE THE EXCESS PRIOR TO SHIPMENT.

THE RECORD SHOWS THAT ON JUNE 23, 1960, YOU EXECUTED AN APPLICATION FOR SHIPMENT OF YOUR HOUSEHOLD EFFECTS FROM PUBLIC QUARTERS AT FORT BELVOIR, VIRGINIA, TO A RESIDENCE IN WHEATON, MARYLAND, ON RELEASE FROM ACTIVE DUTY INCIDENT TO PARAGRAPH 95, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 123, DATED JUNE 15, 1960, ACCEPTING YOUR RESIGNATION FROM THE REGULAR ARMY. SIGNING THE APPLICATION YOU AGREED THAT YOU WOULD REMIT ANY EXCESS COST OCCASIONED BY THE SHIPMENT. AS A CAPTAIN YOU WERE ENTITLED UNDER CHAPTER 8 OF THE JOINT TRAVEL REGULATIONS TO SHIPMENT OF HOUSEHOLD EFFECTS WEIGHING 8,947 POUNDS (8,500 POUNDS PLUS AN ALLOWANCE FOR PACKING AND CRATING) AND TO SHIPMENT OF PROFESSIONAL BOOKS AND PAPERS WITHOUT CHARGE TO YOUR WEIGHT ALLOWANCE. YOUR EFFECTS WEIGHING 12,030 POUNDS WERE SHIPPED BY VAN ON GOVERNMENT BILL OF LADING A-3405325 AT A COST TO THE GOVERNMENT OF $1,015.40. SINCE THE SHIPMENT OF YOUR AUTHORIZED WEIGHT ALLOWANCE, 8,947 POUNDS, WOULD HAVE RESULTED IN A COST OF $757.24, THE DEPARTMENT OF THE ARMY CHARGED YOU WITH THE EXCESS COST OF $258.16, LATER REDUCED BY THIS OFFICE BY $102.59 TO ALLOW FOR THE WEIGHT OF PROFESSIONAL BOOKS AND PAPERS INDICATED BY YOUR APPLICATION. THERE IS NO EVIDENCE OF RECORD THAT YOUR PROFESSIONAL BOOKS AND PAPERS ACTUALLY WEIGHED MORE THAN THE 400 POUNDS INDICATED IN YOUR APPLICATION FOR SHIPMENT, AS NOW ALLEGED BY YOU.

WHILE YOU MAY HAVE INDICATED THAT YOU DID NOT DESIRE TO HAVE ALL OF YOUR EFFECTS SHIPPED AT PUBLIC EXPENSE FROM YOUR LAST STATION, AND THE TRANSPORTATION OFFICER AT FORT BELVOIR MAY HAVE ERRED IN SHIPPING ALL YOUR EFFECTS CONTRARY TO YOUR INSTRUCTIONS, IT IS THE INDIVIDUAL MEMBER--- NOT THE GOVERNMENT--- THAT MUST ASSUME THE RESPONSIBILITY FOR DETERMINING THE ITEMS FOR SHIPMENT AND SEEING THAT ONLY THOSE ITEMS SELECTED BY HIM ARE INCLUDED IN THE SHIPMENT. NOTHING IN THE JOINT TRAVEL REGULATIONS SUGGESTS THAT SUCH RESPONSIBILITY MAY BE SHIFTED TO THE TRANSPORTATION OFFICER.

THE SHIPMENT OF YOUR EFFECTS WAS MADE PURSUANT TO YOUR APPLICATION AND YOU RECEIVED THE BENEFIT OF THE SHIPMENT. SINCE THERE WAS NO AUTHORITY OF LAW FOR THE SHIPMENT OF THE EXCESS WEIGHT AT GOVERNMENT EXPENSE, WE HAVE NO CHOICE BUT TO REQUEST THAT YOU REMIT THE EXCESS COST INCURRED AS YOU AGREED TO DO ON THE APPLICATION. IT MAY BE ADDED THAT IT IS WELL SETTLED THAT PERSONS RECEIVING ERRONEOUS PAYMENTS FROM THE GOVERNMENT ACQUIRE NO RIGHT TO SUCH PAYMENTS, AND THE COURTS CONSISTENTLY HAVE HELD THAT SUCH PERSONS ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION. SEE BARNES ET AL. V. DISTRICT OF COLUMBIA, 22 CT.CL. 366; UNITED STATES V. BURCHARD, 125 U.S. 176; UNITED STATES V. WURTZ, 303 U.S. 414; WISCONSIN CENTRAL RAILROAD V. UNITED STATES, 164 U.S. 190; THE CASES COLLECTED AND DISCUSSED IN UNITED STATES V. SUTTON CHEMICAL COMPANY, 11 F.2D 24, AND IN 63 A.L.R. 1346; UNITED STATES V. BARTRON, 35 F.2D 765; UNITED STATES V. BENTLEY, 107 F.2D 382, AND UNITED STATES V. GUDEWICZ, 45 F.SUPP. 787.

SINCE WE ARE UNABLE TO ACCEPT YOUR CHECK FOR $18.02 IN FULL SETTLEMENT OF YOUR INDEBTEDNESS TO THE UNITED STATES, IT WILL BE RETAINED PENDING RECEIPT OF ADVICE FROM YOU AS TO WHETHER YOU WISH IT RETURNED OR APPLIED IN PARTIAL LIQUIDATION OF YOUR INDEBTEDNESS. YOUR CHECK OR MONEY ORDER IN THE SUM NECESSARY TO REPAY THE INDEBTEDNESS SHOULD BE MADE PAYABLE TO "U.S. GENERAL ACCOUNTING OFFICE" AND MAILED TO THE FOLLOWING ADDRESS:

U.S. GENERAL ACCOUNTING OFFICE

BOX 2610

WASHINGTON 13, D.C. ..END :