B-126707, AUG. 12, 1957

B-126707: Aug 12, 1957

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VAUGHN: WE HAVE RECEIVED YOUR LETTER OF APRIL 1. WHEREIN THERE WAS FOUND TO BE DUE YOU THE AMOUNT OF $235.06 AS PAY AND LEAVE RATIONS FOR LEAVE STANDING TO YOUR CREDIT ON DECEMBER 13. $36.36 WAS DEDUCTED AS WITHHOLDING TAX AND THE REMAINDER. WAS APPLIED TO YOUR PREVIOUSLY DETERMINED INDEBTEDNESS TO THE UNITED STATES OF $329.96. YOU STATE THAT YOU WERE NOT INFORMED OF THE ABOVE SETTLEMENT UNTIL AFTER YOU HAD FILED YOUR INCOME TAX RETURN FOR 1956 AND THAT YOU HAVE RECEIVED NO WITHHOLDING STATEMENT IN REGARD TO THE TAX WITHHELD IN THE SETTLEMENT OF APRIL 9. WHICH WAS HELD TO REPRESENT YOUR INDEBTEDNESS TO THE UNITED STATES AT DATE OF DISCHARGE FROM THE ARMY. SINCE CERTAIN PORTIONS OF THAT AMOUNT WERE RETAINED AS WITHHOLDING TAX.

B-126707, AUG. 12, 1957

TO MR. VENSON E. VAUGHN:

WE HAVE RECEIVED YOUR LETTER OF APRIL 1, 1957, REGARDING OUR SETTLEMENT OF APRIL 9, 1956, WHEREIN THERE WAS FOUND TO BE DUE YOU THE AMOUNT OF $235.06 AS PAY AND LEAVE RATIONS FOR LEAVE STANDING TO YOUR CREDIT ON DECEMBER 13, 1951, THE DATE OF YOUR DISCHARGE FROM THE AIR FORCE. OF THE AMOUNT OF $235.06, $36.36 WAS DEDUCTED AS WITHHOLDING TAX AND THE REMAINDER, $198.70, WAS APPLIED TO YOUR PREVIOUSLY DETERMINED INDEBTEDNESS TO THE UNITED STATES OF $329.96, REDUCING THAT INDEBTEDNESS TO $131.26.

YOU STATE THAT YOU WERE NOT INFORMED OF THE ABOVE SETTLEMENT UNTIL AFTER YOU HAD FILED YOUR INCOME TAX RETURN FOR 1956 AND THAT YOU HAVE RECEIVED NO WITHHOLDING STATEMENT IN REGARD TO THE TAX WITHHELD IN THE SETTLEMENT OF APRIL 9, 1956. YOU POINT OUT THAT YOU DID NOT RECEIVE THE FULL AMOUNT OF $329.96, WHICH WAS HELD TO REPRESENT YOUR INDEBTEDNESS TO THE UNITED STATES AT DATE OF DISCHARGE FROM THE ARMY, DECEMBER 12, 1953, SINCE CERTAIN PORTIONS OF THAT AMOUNT WERE RETAINED AS WITHHOLDING TAX. YOU SAY THAT YOU DO NOT THINK THAT IT IS FAIR TO EXPECT YOU TO REFUND MONEYS WHICH YOU NEVER RECEIVED. ALSO, YOU STATE THAT $235.06, DUE YOU ON DECEMBER 13, 1951, WAS NOT CREDITED TO YOU UNTIL APRIL 9, 1956, AND YOU FEEL THAT YOU SHOULD RECEIVE INTEREST ACCORDINGLY. YOU FURTHER STATE THAT YOU DESIRE A NOTARIZED AFFIDAVIT STATING THAT PAYMENT OF THE AGREED AMOUNT OF YOUR INDEBTEDNESS WOULD FOREVER CANCEL ANY INDEBTEDNESS YOU MIGHT HAVE TO THE UNITED STATES ON ACCOUNT OF YOUR ARMY SERVICE FROM DECEMBER 14, 1951, TO DECEMBER 12, 1953. FINALLY, YOU SAY THAT YOU WOULD LIKE TO HAVE FOR YOUR PERSONAL INSPECTION COPIES OF THE REGULATIONS(1) SHOWING WILMINGTON, CALIFORNIA, AS A PORT OF EMBARKATION AT THE TIME OF YOUR DISCHARGE FROM THE ARMY, FOR TROOPS AS AGAINST CARGO, FOR ANCHORAGE, ALASKA (THE PLACE OF YOUR ENLISTMENT); AND (2) COVERING CLOTHING ALLOWANCES.

IT APPEARS THAT FOLLOWING A PRIOR ENLISTMENT IN THE AIR FORCE YOU SERVED THEREIN AS AN ENLISTED MAN FROM JANUARY 27, 1950, TO DECEMBER 13, 1951, AND THAT YOU SERVED AS AN ENLISTED MAN OF THE REGULAR ARMY FROM DECEMBER 14, 1951, TO DECEMBER 12, 1953. IT FURTHER APPEARS THAT IN CONNECTION WITH YOUR ARMY SERVICE YOU WERE OVERPAID AS FOLLOWS:

TABLE

(1) LEAVE RATIONS AT $1.20 PER DAY FOR THE TEN-DAY PERIOD JANUARY 8 TO 17, 1952, INCLUSIVE. (REASON--- NOT IN A LEAVE STATUS) ......................................... $ 12.00

(2) THIRTY-THREE DAYS' LEAVE PAYMENT (CREDITED PAY AT $168.17 PER MONTH, LEAVE SUBSISTENCE AT .70 PER DAY AND LEAVE QUARTERS AT $1.25 PER DAY). (REASON--- ACCRUED 60 DAYS' LEAVE DURING THE PERIOD DECEMBER 14, 1951, TO DECEMBER 12, 1953, INCLUSIVE; USED 58 DAYS' LEAVE; BALANCE 2 DAYS' LEAVE; HENCE PAYMENT FOR 35 DAYS' LEAVE WAS IMPROPER) ....................................... $249.34

(3) TRAVEL ALLOWANCE AT DISCHARGE (REASON--- CREDITED $135.06 FOR 2,251 MILES AT ?06 PER MILE; ENTITLED TO $96.42, ONLY, AS TRAVEL ALLOWANCE OVER ESTABLISHED ROUTE REQUIRING LEAST AMOUNT OF LAND TRAVEL, 1,607 MILES AT ?06 PER MILE) ................................... 38.64

(4) OVERCREDIT OF MONETARY MAINTENANCE CLOTHING ALLOWANCE FOR THE PERIOD DECEMBER 29, 1951, TO DECEMBER 12, 1953, INCLUSIVE. (REASON--- CREDITED $134, "STANDARD" MONETARY MAINTENANCE CLOTHING ALLOWANCE, WHICH ACCRUES ONLY AFTER COMPLETION OF THE FIRST THREE YEARS OF CONTINUOUS ACTIVE ARMY SERVICE; ENTITLED TO "BASIC" MONETARY MAINTENANCE CLOTHING ALLOWANCE, IN THE AMOUNT OF $104.02, WHICH ACCRUES DURING THE FIRST THREE YEARS OF CONTINUOUS ACTIVE DUTY) ..................................................... 29.98

TOTAL OVERPAYMENT $329.96

WE HAVE NO ARMY REGULATIONS OR JOINT TRAVEL REGULATIONS FOR DISTRIBUTION. WE OBTAIN FROM THE DEPARTMENTS CONCERNED SUCH COPIES AS ARE NECESSARY FOR OUR OWN USE.

UPON YOUR DISCHARGE FROM THE ARMY ON DECEMBER 12, 1953, YOU WERE CREDITED WITH TRAVEL ALLOWANCE FOR 2,251 MILES FROM FORT SILL, OKLAHOMA,TO FORT LEWIS, WASHINGTON. IT WAS DETERMINED THAT YOU SHOULD HAVE BEEN CREDITED FOR 1,607 MILES FROM FORT SILL TO WILMINGTON, CALIFORNIA. THIS DETERMINATION WAS ON THE BASIS OF PERTINENT PROVISIONS OF PARAGRAPH 4157 (CHANGE 18), JOINT TRAVEL REGULATIONS, EFFECTIVE DECEMBER 1, 1953, AS FOLLOWS:

TABLE

"4157 COMPUTATION OF DISTANCES

UPON SEPARATION FROM THE

SERVICE, RELEASE FROM

ACTIVE DUTY, PLACEMENT ON

THE TEMPORARY DISABILITY

RETIRED LIST, OR RETIREMENT

"6. TO POINTS OVERSEAS--- SEPARATED IN THE UNITED STATES

"B. TRAVEL NOT TO BE PERFORMED. DISTANCE WILL BE COMPUTED FROM THE PLACE OF SEPARATION TO THE PORT OF EMBARKATION SPECIFIED IN SUBPAR. 8B.

"8. PORTS OF EMBARKATION AND DEBARKATION

"B. TRAVEL NOT TO BE PERFORMED. THE PORTS OF EMBARKATION OR DEBARKATION FOR THE PURPOSE OF SUBPARS. 5B AND 6B WILL BE AS SPECIFIED BELOW, WHETHER THE LOCATION OUTSIDE THE UNITED STATES IS AT SEA OR OTHERWISE. OF THE PORTS SPECIFIED, THE ONE WHICH INVOLVES THE LESSER AMOUNT OF LAND TRAVEL IN THE UNITED STATES WILL BE USED.

1. WHEN THE LOCATIONS OVERSEAS ARE EAST OF 100 DEGREES WEST LONGITUDE BUT WEST OF 100 DEGREES EAST LONGITUDE:

NEW YORK, N.Y.

NEW ORLEANS, LA.

NORFOLK, VA.

2. WHEN THE LOCATIONS OVERSEAS ARE WEST OF 100 DEGREES WEST LONGITUDE BUT EAST OF 100 DEGREES EAST LONGITUDE:

SEATTLE, WASH.

SAN FRANCISCO, CALIF.

WILMINGTON, CALIF.'

PARAGRAPH 4157 REMAINED UNCHANGED UNTIL MODIFIED BY CHANGE 22, APRIL 1, 1954, TO JOINT TRAVEL REGULATIONS.

REGARDING THE MATTER OF CLOTHING ALLOWANCES, ARMY SPECIAL REGULATIONS 32- 20-1, DECEMBER 7, 1951, WERE IN EFFECT FROM THAT DATE UNTIL SUPERSEDED BY ARMY SPECIAL REGULATIONS 32-20-1, JANUARY 18, 1954. THE FOLLOWING QUOTATIONS ARE FROM THE REGULATIONS OF DECEMBER 7, 1951.

"10. INITIAL ALLOWANCES.--- A. MANDATORY ALLOWANCE.--- THE MANDATORY ALLOWANCE FOR MALE AND FEMALE ENLISTED PERSONNEL WILL BE AS AUTHORIZED IN SR 32-20-2.

"C. TO WHOM ISSUED.--- INITIAL ALLOWANCE OF CLOTHING WILL BE ISSUED IN KIND TO---

"/7) AN ENLISTED INDIVIDUAL ENLISTING FROM ANOTHER SERVICE, I.E., NAVY, AIR FORCE, MARINE CORPS, ETC., WITHOUT REGARD TO DATE OF DISCHARGE FROM PREVIOUS SERVICE.

"11. MAINTENANCE ALLOWANCES.--- THERE ARE TWO TYPES OF MAINTENANCE ALLOWANCES, I.E., BASIC AND STANDARD. THESE ALLOWANCES ARE THE AMOUNTS PAID TO ENLISTED PERSONNEL TO ENABLE THEM TO PAY FOR REPAIRS AND REPLACEMENTS OF PERSONAL CLOTHING DURING THEIR ARMY CAREER. ALLOWANCES WILL NORMALLY BE COMPUTED ANNUALLY AND PUBLISHED IN SR 32-20-2 ON 1 JULY OF EACH YEAR, TO BE EFFECTIVE FOR THE ENTIRE FISCAL YEAR.

A. BASIC MAINTENANCE ALLOWANCE.--- THE BASIC MAINTENANCE ALLOWANCE IS PROVIDED FOR THE REPAIR AND REPLACEMENT OF ALL MANDATORY (AND SPECIAL SUPPLEMENTARY, IF AUTHORIZED) ITEMS OF PERSONAL CLOTHING NORMALLY REQUIRED DURING THE FIRST 3 YEARS OF SERVICE. THIS ALLOWANCE IS PAID MONTHLY DURING THE FIRST 3 YEARS OF CONTINUOUS ACTIVE DUTY TO ENLISTED PERSONNEL COMING UNDER ONE OF THE CATEGORIES LISTED IN PARAGRAPH 10C. EFFECTIVE 1 JANUARY 1952, BASIC MAINTENANCE ALLOWANCE FOR ENLISTED MEN AND WOMEN WILL COMMENCE ON THE FIRST DAY OF THE SEVENTH MONTH OF ACTIVE FEDERAL SERVICE.

B. STANDARD MAINTENANCE ALLOWANCE.--- THE STANDARD MAINTENANCE ALLOWANCE IS A SLIGHTLY LARGER SUM OF MONEY PROVIDED FOR THE CONTINUED REPAIR AND REPLACEMENT OF PERSONAL CLOTHING AFTER COMPLETION OF THE FIRST 3 YEARS CONTINUOUS ACTIVE ARMY SERVICE. THIS ALLOWANCE IS PAID MONTHLY TO THE ENLISTED PERSONNEL COMING UNDER ONE OF THE FOLLOWING CATEGORIES, BEGINNING WITH THE FIRST MONTH OF THE FOURTH YEAR OF CONTINUOUS ACTIVE FEDERAL SERVICE AND CONTINUING DURING THE REMAINDER OF AN INDIVIDUAL'S CONTINUOUS ACTIVE SERVICE IN THE ARMY: * * *"

THE REGULATIONS PROVIDED THAT DURING THE PERIOD FROM MARCH 1, 1951, TO JUNE 30, 1952, THE BASIC MAINTENANCE ALLOWANCE SHOULD BE PAID AT THE MONTHLY RATE OF $5.10 AND THAT THE STANDARD MAINTENANCE ALLOWANCE SHOULD BE PAID AT THE MONTHLY RATE OF $6.60. FROM JULY 1, 1952, THROUGHOUT THE REMAINDER OF YOUR SERVICE, THE REGULATIONS PROVIDED FOR PAYMENT OF THE BASIC MAINTENANCE ALLOWANCE AT THE MONTHLY RATE OF $4.20 AND FOR PAYMENT OF THE STANDARD MAINTENANCE ALLOWANCE AT THE MONTHLY RATE OF $5.40.

YOU WILL NOTE THAT SINCE YOU DID NOT COMPLETE THREE YEARS' ARMY SERVICE, YOU DID NOT BECOME ENTITLED TO THE STANDARD MAINTENANCE ALLOWANCE FOR CLOTHING WITH WHICH YOU WERE CREDITED.

AS TO THE MATTER OF INTEREST ON THE AMOUNT FOUND TO HAVE BEEN DUE YOU ON DECEMBER 13, 1951, IT IS WELL SETTLED THAT THE UNITED STATES IS NOT LIABLE FOR THE PAYMENT OF INTEREST ON ITS OBLIGATIONS EXCEPT WHERE SPECIFICALLY PROVIDED FOR BY CONTRACT OR STATUTE. SEABOARD AIR LINE RAILWAY COMPANY V. UNITED STATES, 261 U.S. 299; 8 COMP. GEN. 668; 27 ID. 690. MOREOVER, IT MAY ALSO BE POINTED OUT THAT YOU HAVE NOT BEEN REQUESTED TO PAY INTEREST ON AMOUNTS OWED BY YOU TO THE UNITED STATES SINCE DECEMBER 12, 1953.

AS TO THE MATTER OF AN AFFIDAVIT THAT PAYMENT OF THE AMOUNT FOUND TO REPRESENT YOUR INDEBTEDNESS ON THE ITEMS SHOWN ABOVE WOULD FOREVER CANCEL ANY AND ALL MATTERS OF INDEBTEDNESS TO THE UNITED STATES IN CONNECTION WITH YOUR ARMY SERVICE, WE BELIEVE YOU WILL REALIZE THAT THERE EXISTS NO AUTHORITY FOR US TO MAKE SUCH A COMMITMENT, ONE OF THE MAJOR FUNCTIONS OF THIS OFFICE BEING THE AUDIT OF PAYMENTS MADE BY OTHER AGENCIES OF THE GOVERNMENT FROM FUNDS APPROPRIATED BY THE CONGRESS, WITH A VIEW TO RECOVERING THE AMOUNTS OF ANY SUCH PAYMENTS WHICH MAY HAVE BEEN MADE WITHOUT AUTHORITY OF LAW. YOU MAY BE ASSURED, HOWEVER, THAT DEMANDS BY US FOR REFUND OF AMOUNTS PAID AS PAY OR ALLOWANCES FOR SERVICE IN THE ARMED FORCES ARE MADE ONLY IN THOSE CASES WHERE THERE IS CLEAR AND CONVINCING EVIDENCE THAT THE PAYMENTS INVOLVED WERE NOT AUTHORIZED.

AS TO THE MATTER OF THE DEDUCTION OF $36.36 AS WITHHOLDING TAX FROM THE AMOUNT OF $235.06 OTHERWISE APPLICABLE TO YOUR INDEBTEDNESS TO THE GOVERNMENT, SUCH TAX OBLIGATION HAS PRIORITY OVER ALL OTHER CLASSES OF INDEBTEDNESS TO THE UNITED STATES. 24 COMP. GEN. 334. HENCE, THE SETTLEMENT OF APRIL 9, 1956, PROPERLY APPLIED AGAINST YOUR INDEBTEDNESS AT DATE OF YOUR DISCHARGE FROM THE ARMY ONLY THE AMOUNT DUE YOU, LESS WITHHOLDING TAX, AT DATE OF YOUR DISCHARGE FROM THE AIR FORCE. IF YOU HAVE NOT RECEIVED A WITHHOLDING STATEMENT COVERING THE ITEM OF $36.36, IT IS SUGGESTED THAT YOU MAKE APPLICATION THEREFOR TO THE DEPARTMENT OF THE AIR FORCE.

REGARDING YOUR CONTENTION THAT YOU SHOULD NOT BE REQUIRED TO REFUND THE FULL AMOUNT OF $329.96 SINCE A PORTION WAS WITHHELD AS TAX, IT MAY BE POINTED OUT THAT YOU PRESUMABLY RECEIVED CREDIT IN YOUR ANNUAL INCOME TAX RETURNS FOR ANY AMOUNT WITHHELD. ANY ADJUSTMENT IN THAT RESPECT WOULD BE FOR CONSIDERATION BY THE INTERNAL REVENUE SERVICE.

ACCORDINGLY, THE SETTLEMENT OF APRIL 9, 1956, IS SUSTAINED AND ACTION SHOULD BE TAKEN PROMPTLY TO LIQUIDATE THE BALANCE OF YOUR INDEBTEDNESS IN THE AMOUNT OF $131.26.