B-142327, MAY 20, 1960

B-142327, MAY 20, 1960

TO MR. RICHARD G. COHEN:

YOUR LETTER OF DECEMBER 1, 1959, CONCERNS AN INDEBTEDNESS OF $77.10 REPORTED TO BE DUE THE UNITED STATES THAT AROSE BY REASON OF AN ERRONEOUS PAYMENT TO YOU OF A DISLOCATION ALLOWANCE WHILE ON ACTIVE DUTY AS A SERGEANT, UNITED STATES ARMY RESERVE (ER 13,396,879).

BY SPECIAL ORDER NO. 135 (PARAGRAPH 101) HEADQUARTERS, NEW YORK MILITARY DISTRICT (ARMY RESERVE), DATED JULY 12, 1955, YOU WERE RELIEVED OF YOUR ARMY RESERVE ASSIGNMENT AND ASSIGNED TO 1299TH SERVICE UNIT, RECEIVING STATION, FORT DIX, NEW JERSEY, FOR ACTIVE DUTY, WITH INSTRUCTIONS TO PROCEED AND REPORT THERETO FROM YOUR HOME (OR TEMPORARY ADDRESS, IF SHOWN), ON JULY 17, 1955. THOSE ORDERS SPECIFICALLY PROVIDE THAT TRAVEL OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD GOODS AT GOVERNMENT EXPENSE WOULD NOT BE AUTHORIZED PERSONNEL ASSIGNED TO 1299TH SERVICE UNIT, RECEIVING STATION, AT FORT DIX UNTIL AFTER RECEIPT BY INDIVIDUAL OF FURTHER DISPOSITION ORDERS. BY ORDERS DATED NOVEMBER 15, 1955, YOU WERE RELIEVED OF YOUR ASSIGNMENT (PIPELINE) SVC BTRY 880TH FA BN, FORT DIX, AND ASSIGNED TO THE KANSAS CITY REGIONAL OFFICE, ARMY AUDIT AGENCY, 8630TH DU, FOR DUTY AS "ACCT ASSTS.' YOU SAY THAT BEFORE YOU ARRIVED THERE THE ORDERS WERE CHANGED ASSIGNING YOU TO ST. LOUIS, MISSOURI.

IN COMPLIANCE WITH THE LATTER ORDERS--- WHICH CONSTITUTED A PERMANENT CHANGE OF STATION--- YOU REPORTED FOR DUTY WITH THE ARMY AUDIT AGENCY, ST. LOUIS BRANCH, ST. LOUIS, MISSOURI, ON OR ABOUT DECEMBER 2, 1955, YOUR TRAVEL THERETO HAVING BEEN PERFORMED AT GOVERNMENT EXPENSE. IT IS SHOWN, ALSO, THAT YOUR WIFE TRAVELED TO YOUR PERMANENT STATION (ST. LOUIS) FROM PHILADELPHIA, PENNSYLVANIA, AND THAT YOU HAVE BEEN PAID MONETARY ALLOWANCE THEREFOR AS AUTHORIZED BY LAW AND EXISTING REGULATIONS. THE INDEBTEDNESS OF $77.10 REPRESENTS THE AMOUNT PAID TO YOU AS A DISLOCATION ALLOWANCE FOLLOWING YOUR CHANGE OF STATION ORDERS TO ST. LOUIS AND THE TRAVEL OF YOUR DEPENDENTS THERETO. SUBSEQUENTLY, IT WAS DETERMINED THAT THE PAYMENT TO YOU OF A DISLOCATION ALLOWANCE WAS NOT AUTHORIZED, AND AN EXCEPTION WAS RAISED AGAINST THE ACCOUNT OF THE DISBURSING OFFICER EFFECTING SUCH PAYMENT. OUR RECORDS SHOW THAT SEVERAL LETTERS HAVE BEEN ADDRESSED TO YOU REQUESTING REFUND OF $77.10--- THE SUM ERRONEOUSLY PAID TO YOU AS A DISLOCATION ALLOWANCE.

SECTION 2 (12) OF THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 21, AMENDING SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, 37 U.S.C. 253 (C), AUTHORIZES PAYMENT OF A DISLOCATION ALLOWANCE, UNDER REGULATIONS APPROVED BY THE SECRETARY CONCERNED, TO A MEMBER OF THE UNIFORMED SERVICES WHOSE DEPENDENTS ARE AUTHORIZED TO MOVE AND ACTUALLY DO MOVE IN CONNECTION WITH ORDERS DIRECTING A PERMANENT CHANGE OF STATION. THE PURPOSE OF DISLOCATION ALLOWANCE IS TO PARTIALLY REIMBURSE A MEMBER WITH DEPENDENTS FOR THE EXPENSES INCURRED IN RELOCATING HIS HOUSEHOLD UPON A PERMANENT CHANGE OF STATION. SEE PARAGRAPH 9000 OF THE JOINT TRAVEL REGULATIONS. HOWEVER, PARAGRAPH 9003-3 OF THE ABOVE-CITED REGULATIONS PROVIDES THAT A DISLOCATION ALLOWANCE WILL NOT BE PAYABLE IN CONNECTION WITH PERMANENT CHANGE OF STATION TRAVEL PERFORMED "FROM HOME OR FROM PLACE FROM WHICH ORDERED TO ACTIVE DUTY TO FIRST PERMANENT DUTY STATION UPON APPOINTMENT, CALL TO ACTIVE DUTY, ENLISTMENT, REENLISTMENT, OR INDUCTION.'

IN VIEW OF THE EXPRESS TERMS OF THE CITED STATUTE AND APPLICABLE REGULATIONS, AND INASMUCH AS ST. LOUIS WAS YOUR FIRST PERMANENT STATION--- YOUR ASSIGNMENT TO FORT DIX PENDING FURTHER DISPOSITION ORDERS BEING, IN FACT, A TEMPORARY DUTY ASSIGNMENT, THE PAYMENT TO YOU OF A DISLOCATION ALLOWANCE UPON THE TRAVEL OF YOUR DEPENDENTS TO ST. LOUIS, WAS ERRONEOUS. WHILE IT IS UNFORTUNATE THAT THE ERRONEOUS PAYMENT WAS MADE, IT IS WELL ESTABLISHED THAT PERSONS RECEIVING MONEY ERRONEOUSLY PAID BY A GOVERNMENT AGENCY OR OFFICIAL ACQUIRE NO LEGAL RIGHT THERETO, AND THE COURTS CONSISTENTLY HAVE HELD THAT SUCH PERSONS ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION. SEE UNITED STATES V. BURCHARD, 125 U.S. 176; UNITED STATES V. WURTS, 303 U.S. 414; WISCONSIN CENTRAL RAILROAD V. UNITED STATES, 164 U.S. 190; UNITED STATES V. SUTTON CHEMICAL COMPANY, 11 F.2D 24, AND THE CASES CITED AND DISCUSSED IN 63 A.L.R. 1346.

OUR OFFICE IS WITHOUT AUTHORITY TO CANCEL YOUR INDEBTEDNESS OR RELIEVE YOU OF YOUR OBLIGATION TO REFUND THE ILLEGAL PAYMENT, AND NEITHER IS THE DEPARTMENT OF THE ARMY VESTED WITH AUTHORITY TO RELIEVE YOU OF THE RESPONSIBILITY TO PAY THE SUM FOUND TO BE DUE THE UNITED STATES.

FOR REASONS HEREINABOVE INDICATED, YOU ARE AGAIN REQUESTED TO PROMPTLY REMIT THE SUM OF $77.10 BY CHECK OR MONEY ORDER MADE PAYABLE TO THE U.S. GENERAL ACCOUNTING OFFICE, TO THE FOLLOWING ADDRESS:

U.S. GENERAL ACCOUNTING OFFICE

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