A-10628, SEPTEMBER 10, 1925, 5 COMP. GEN. 181

A-10628: Sep 10, 1925

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SAID APPROPRIATION IS AVAILABLE FOR THE PAYMENT OF THE CLAIM. THE SETTLEMENT'S ACTION IS STILL SUBJECT TO REVISION BY THE ACCOUNTING OFFICERS AS MUCH SO AS IF NO DEFICIENCY APPROPRIATION HAD BEEN NECESSARY OR MADE. THE FACT THAT AN AMOUNT INADVERTENTLY FOUND DUE BY SETTLEMENT OF THE ACCOUNTING OFFICERS IS REPORTED TO CONGRESS AND INCLUDED IN A DEFICIENCY APPROPRIATION ACT DOES NOT CONFER A LEGAL RIGHT THERETO. - INASMUCH AS THIS SUM WAS VOTED ME BY AN ACT OF CONGRESS. IT IS SUBMITTED THAT THE CANCELLATION OF THE WARRANT WAS ILLEGAL AND THAT I SHOULD BE REIMBURSED THE AMOUNT OF $665.24. ALLOWANCE OF THE AMOUNT IN QUESTION WAS BASED ON YOUR ADVANCEMENT ON DECEMBER 16. YOUR CLAIM WAS MADE TO COVER SUCH DIFFERENCE OF PAY TO AND INCLUDING JUNE 30.

A-10628, SEPTEMBER 10, 1925, 5 COMP. GEN. 181

CLAIMS - CERTIFICATION TO CONGRESS - REVISION WHERE CONGRESS HAS PROVIDED BY A DEFICIENCY APPROPRIATION FOR THE PAYMENT OF AN AMOUNT CERTIFIED DUE A CLAIMANT BY THE ACCOUNTING OFFICERS AND REPORTED FOR APPROPRIATION BY THE SECRETARY OF THE TREASURY, SAID APPROPRIATION IS AVAILABLE FOR THE PAYMENT OF THE CLAIM, BUT THE SETTLEMENT'S ACTION IS STILL SUBJECT TO REVISION BY THE ACCOUNTING OFFICERS AS MUCH SO AS IF NO DEFICIENCY APPROPRIATION HAD BEEN NECESSARY OR MADE. THE FACT THAT AN AMOUNT INADVERTENTLY FOUND DUE BY SETTLEMENT OF THE ACCOUNTING OFFICERS IS REPORTED TO CONGRESS AND INCLUDED IN A DEFICIENCY APPROPRIATION ACT DOES NOT CONFER A LEGAL RIGHT THERETO.

COMPTROLLER GENERAL MCCARL TO LIEUT. COMMANDER CORNELIUS H. MACK, UNITED STATES NAVY, SEPTEMBER 10, 1925:

YOUR LETTER OF MAY 15, 1925, ADDRESSED TO THE TREASURY DEPARTMENT, REQUESTING THAT YOU BE PAID THE SUM OF $665.24 APPROPRIATED BY CONGRESS IN THE DEFICIENCY ACT OF MARCH 1, 1921, UPON CERTIFICATION BY THE TREASURY DEPARTMENT, HAS BEEN REFERRED TO THIS OFFICE FOR CONSIDERATION.

YOU STATE THAT---

INASMUCH AS THIS SUM WAS VOTED ME BY AN ACT OF CONGRESS, IT IS SUBMITTED THAT THE CANCELLATION OF THE WARRANT WAS ILLEGAL AND THAT I SHOULD BE REIMBURSED THE AMOUNT OF $665.24.

IT APPEARS THAT BY SETTLEMENT OCTOBER 9, 1920, THE AUDITOR FOR THE NAVY DEPARTMENT CERTIFIED DUE YOU $665.24, REPRESENTING DIFFERENCE BETWEEN THE PAY OF A LIEUTENANT, JUNIOR GRADE, AND LIEUTENANT FROM AUGUST 29, 1916, TO JANUARY 31, 1918, AND ADDITIONAL COMMUTATION OF QUARTERS FOR ONE ROOM FROM AUGUST 29, 1916, TO MARCH 31, 1917. ALLOWANCE OF THE AMOUNT IN QUESTION WAS BASED ON YOUR ADVANCEMENT ON DECEMBER 16, 1919, TO THE RANK OF LIEUTENANT, EFFECTIVE FROM AUGUST 29, 1916, THE DATE ON WHICH YOUR RUNNING MATE IN THE LINE ATTAINED THAT RANK.

YOUR CLAIM WAS MADE TO COVER SUCH DIFFERENCE OF PAY TO AND INCLUDING JUNE 30, 1918, BUT NOTHING WAS FOUND DUE YOU FOR THE PERIOD FEBRUARY 1 TO JUNE 30, 1918, THE PAY ROLLS SHOWING YOU HAD BEEN CREDITED PAY OF A LIEUTENANT FOR THAT PERIOD. UPON RECEIPT OF NOTIFICATION OF SETTLEMENT OF OCTOBER 9, 1920, ON OCTOBER 14, 1920, YOU WROTE THE AUDITOR FOR THE NAVY DEPARTMENT STATING THAT THOUGH CREDITED AND PAID SUCH DIFFERENCE OF PAY FOR THE PERIOD FEBRUARY 1 TO JUNE 30, 1918, SAME WAS SUBSEQUENTLY CHECKED AGAINST YOUR ACCOUNT, AND RENEWED YOUR CLAIM FOR SAID AMOUNT. IN REPLY TO SAID CLAIM THE AUDITOR FOR THE NAVY DEPARTMENT ADVISED YOU THAT HAVING PASSED ON YOUR CLAIM FOR SUCH DIFFERENCE OF PAY HE WAS WITHOUT AUTHORITY TO REOPEN THE CASE UNTIL EXPIRATION OF ONE YEAR FROM DATE OF SETTLEMENT; AND THAT WITHIN SAID PERIOD YOU HAD RIGHT TO APPEAL TO THE COMPTROLLER OF THE TREASURY. ON OCTOBER 10, 1921, YOU ADDRESSED A LETTER TO THE AUDITOR FOR THE NAVY DEPARTMENT REQUESTING THAT YOUR CLAIM, SETTLED OCTOBER 9, 1920, BE REOPENED FOR FURTHER CONSIDERATION RELATIVE TO MISTAKE OF FACT WITH RESPECT TO RECEIPT BY YOU OF DIFFERENCE OF PAY FOR THE PERIOD FEBRUARY 1 TO JUNE 30, 1918, AND RETURNED WITH SAID APPLICATION TREASURY WARRANT FOR THE AMOUNT ALLOWED YOU BY SETTLEMENT OF OCTOBER 9, 1920. PURSUANT TO THAT APPLICATION THE GENERAL ACCOUNTING OFFICE IN SETTLEMENT OF NOVEMBER 7, 1921, REOPENED YOUR CLAIM AND BY REASON OF THE FACT THAT YOU WERE NOT ENTITLED TO ANY DIFFERENCE OF PAY OR ALLOWANCES ALLOWED YOU BY THE AUDITOR FOR THE NAVY IN SETTLEMENT OF OCTOBER 9, 1920, RETURNED THE WARRANT TO THE TREASURER OF THE UNITED STATES FOR CANCELLATION.

YOUR ADVANCEMENT TO THE RANK OF LIEUTENANT ON DECEMBER 16, 1919, WAS MADE PURSUANT TO THE ACT OF JULY 1, 1918, 40 STAT. 708, WHICH ASSIMILATED THE RANK OF OFFICERS OF THE DENTAL CORPS (WITHIN CERTAIN LIMITATIONS) TO THE RANK OF OFFICERS OF THE NAVAL MEDICAL CORPS. PRIOR TO SAID SETTLEMENT OF OCTOBER 9, 1920, SAID ACT OF JULY 1, 1918, BY DECISION DATED MARCH 7, 1919, 25 COMP. DEC. 647, HAD BEEN CONSTRUED BY THE COMPTROLLER OF THE TREASURY NOT TO BE RETROACTIVE IN ITS EFFECT SO AS TO CONFER INCREASED PAY AND ALLOWANCES THEREUNDER PRIOR TO DATE OF APPROVAL OF THE ACT. THAT CONSTRUCTION OF SAID ACT OF JULY 1, 1918, WAS IN EFFECT AND BINDING ON THE AUDITOR FOR THE NAVY DEPARTMENT WHEN BY SETTLEMENT OF OCTOBER 9, 1920, HE ALLOWED YOU THE DIFFERENCE OF PAY IN QUESTION. 4 COMP. DEC. 723.

THE FACT THAT THE AMOUNT INADVERTENTLY FOUND DUE YOU IN SAID SETTLEMENT WAS REPORTED TO CONGRESS AND INCLUDED IN THE DEFICIENCY APPROPRIATION IN THE ACT OF MARCH 1, 1921, 41 STAT. 1185, DID NOT GIVE YOU ANY LEGAL RIGHT THERETO. WHERE CONGRESS HAS PROVIDED BY A DEFICIENCY APPROPRIATION FOR THE PAYMENT OF AN AMOUNT CERTIFIED DUE A CLAIMANT BY THE ACCOUNTING OFFICERS AND REPORTED FOR APPROPRIATION BY THE SECRETARY OF THE TREASURY, SAID APPROPRIATION IS AVAILABLE FOR THE PAYMENT OF THE CLAIM, BUT THE SETTLEMENT ACTION IS STILL SUBJECT TO REVISION BY THE COMPTROLLER GENERAL, AS MUCH SO AS IF NO DEFICIENCY APPROPRIATION HAD BEEN NECESSARY. 23 COMP. DEC. 259; 2 MS. COMP. GEN. 12, OCTOBER 1, 1921.

ALSO AN OVERPAYMENT MADE BY MISTAKE IS MADE IN VIOLATION OF LAW AND THE OFFICER CAN ACQUIRE NO LEGAL RIGHT THERETO. YOUR PAY WAS FIXED BY LAW AND NO ONE WAS AUTHORIZED TO PAY YOU ANY MORE. OVERPAYMENTS TO AN OFFICER MADE BY MISTAKE CAN BE CORRECTED AT ANY TIME AND THE OVERPAYMENT CHARGED AGAINST THE OFFICER'S ACCOUNT. UNITED STATES. V. BURCHARD, 125 U.S. 176; 8 COMP. DEC. 24.