B-129147, OCT. 26, 1956

B-129147: Oct 26, 1956

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YOU WERE ALLOWED $3. THIS SETTLEMENT ACTION WAS BASED ON A VIEW THAT UNDER SECTION 4 OF THE ACT OF OCTOBER 6. INDIVIDUALS ENLISTED IN THE ARMY OF THE UNITED STATES ARE ENTITLED TO BE RETIRED AFTER A MINIMUM OF 20 YEARS OF SERVICE. THAT MEMBERS OF THE UNIFORMED SERVICES WHO HAD BEEN MEMBERS OF THE PHILIPPINE SCOUTS BUT WHO WERE RETIRED AFTER 20 YEARS OF SERVICE WHILE SERVING IN AN ENLISTMENT IN THE ARMY OF THE UNITED STATES WERE NOT ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE PAY AUTHORIZED FOR ENLISTED MEMBERS OF THE ARMY OF THE UNITED STATES. WAS ERRONEOUS AND YOU HAVE BEEN OVERPAID THE AMOUNT ALLOWED BY THE SETTLEMENT. THE COURTS HAVE HELD THAT THE UNITED STATES CANNOT BE BOUND OR ESTOPPED BY A PAYMENT MADE THROUGH ERROR BY ITS OFFICERS.

B-129147, OCT. 26, 1956

TO MR. SIXTO CAMALONGAY:

BY SETTLEMENT DATED MARCH 24, 1955, OF THE CLAIMS DIVISION OF OUR OFFICE, YOU WERE ALLOWED $3,714.14, REPRESENTING THE DIFFERENCE BETWEEN THE RETIRED PAY WHICH YOU RECEIVED AS A PHILIPPINE SCOUT AND THE RETIRED PAY AUTHORIZED FOR A CORPORAL, ARMY OF THE UNITED STATES, WITH OVER 22 YEARS' SERVICE FOR THE PERIOD MAY 1, 1946, TO JUNE 30, 1952.

THIS SETTLEMENT ACTION WAS BASED ON A VIEW THAT UNDER SECTION 4 OF THE ACT OF OCTOBER 6, 1945, 59 STAT. 539, INDIVIDUALS ENLISTED IN THE ARMY OF THE UNITED STATES ARE ENTITLED TO BE RETIRED AFTER A MINIMUM OF 20 YEARS OF SERVICE. THAT LAW, HOWEVER, APPLIES ONLY TO ENLISTED MEN OF THE REGULAR ARMY. BY DECISION OF SEPTEMBER 5, 1956, B/126885, IN THE CASE OF GREGORIO BAYLON (COPY ENCLOSED), WHOSE RETIREMENT SITUATION APPEARS TO BE IDENTICAL WITH YOURS, WE HELD, FOR THE REASONS SET OUT IN THE DECISION, THAT MEMBERS OF THE UNIFORMED SERVICES WHO HAD BEEN MEMBERS OF THE PHILIPPINE SCOUTS BUT WHO WERE RETIRED AFTER 20 YEARS OF SERVICE WHILE SERVING IN AN ENLISTMENT IN THE ARMY OF THE UNITED STATES WERE NOT ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE PAY AUTHORIZED FOR ENLISTED MEMBERS OF THE ARMY OF THE UNITED STATES. ACCORDINGLY, THE SETTLEMENT OF MARCH 24, 1955, WAS ERRONEOUS AND YOU HAVE BEEN OVERPAID THE AMOUNT ALLOWED BY THE SETTLEMENT. ALSO, ALL PAYMENTS OF RETIRED PAY IN EXCESS OF THE AMOUNT OF YOUR PHILIPPINE SCOUT RETIRED PAY MADE TO YOU SINCE THAT SETTLEMENT BY DEPARTMENTAL DISBURSING OFFICERS REPRESENT OVERPAYMENTS TO YOU.

THE COURTS HAVE HELD THAT THE UNITED STATES CANNOT BE BOUND OR ESTOPPED BY A PAYMENT MADE THROUGH ERROR BY ITS OFFICERS, WHETHER MADE UNDER MISTAKE OF FACT OR LAW. PERSONS RECEIVING SUCH ERRONEOUS PAYMENTS ACQUIRE NO RIGHT TO THEM AND ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION. SEE BARNES ET AL. V. DISTRICT OF COLUMBIA, 22 C.CLS. 366; UNITED STATES V. BURCHARD, 125 U.S. 176; WISCONSIN CENTRAL V. UNITED STATES, 164 U.S. 190; UNITED STATES V. NORTHWESTERN NATIONAL BANK AND TRUST CO. OF MINNEAPOLIS, 35 F.SUPP. 484; UNITED STATES V. SUTTON CHEMICAL COMPANY, 11 F.2D 24; UNITED STATES V. BENTLEY, 107 F.2D 382. THUS, YOU ARE LIABLE TO THE UNITED STATES FOR THE AMOUNT OF THE OVERPAYMENTS.

OUR CLAIMS DIVISION WILL ADVISE YOU AT A LATER DATE AS TO THE EXACT AMOUNT OF YOUR INDEBTEDNESS. IT APPEARS, HOWEVER, THAT IN ADDITION TO THE SUM OF $3,714.14 PAID ON THE SETTLEMENT OF MARCH 24, 1955, YOU WERE PAID $2,032.38 ON VOUCHER NO. 453, MAY 1955 ACCOUNTS OF M. R. HINCH, LT. COL. USAF, SYMBOL NO. 225-952, AS ADDITIONAL RETIRED PAY. ON THAT BASIS ALONE YOUR INDEBTEDNESS IS IN EXCESS OF $5,700. IF YOU ARE UNABLE TO LIQUIDATE THE INDEBTEDNESS IN A LUMP-SUM, YOU MAY DO SO IN REASONABLE MONTHLY INSTALLMENTS. COMMUNICATIONS REGARDING THIS MATTER SHOULD BE ADDRESSED TO THE CLAIMS DIVISION, GENERAL ACCOUNTING OFFICE, WASHINGTON 25, D.C., CITING THIS DECISION BY NUMBER AND DATE AND REFERRING TO CLAIM NO. Z- 1574337.