B-133486, OCT. 25, 1957

B-133486, OCT. 25, 1957

TO MR. FRANK V. PADAR:

YOUR LETTER OF AUGUST 5, 1957, REQUESTS REVIEW OF YOUR REPORTED INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $296.30 FOR EXCESSIVE PER DIEM PAYMENTS DURING THE PERIOD FEBRUARY 12 TO APRIL 30, 1952.

THE RECORD SHOWS THAT YOU WERE ORDERED TO TEMPORARY DUTY WITH THE 1901ST ENGINEER AVIATION BATTALION AT KELLY AIR FORCE BASE, TEXAS. YOU WERE PAID PER DIEM ALLOWANCE AT THE RATE OF $5 PER DAY FOR 79DAYS, A TOTAL OF $395, DURING THE PERIOD FEBRUARY 12 TO APRIL 30, 1952. EXCEPTION WAS TAKEN TO THESE PAYMENTS FOR THE REASON THAT THE TEMPORARY DUTY YOU PERFORMED AT KELLY AIR FORCE BASE WAS A COURSE OF INSTRUCTION AND, SINCE QUARTERS AND MESSING FACILITIES WERE AVAILABLE, PAYMENT OF PER DIEM IN EXCESS OF $1 PER DAY FOR 79 DAYS WAS UNAUTHORIZED. THE INDEBTEDNESS OF $316 ($395 LESS $79) WAS REDUCED BY THE SUM OF $19.70, AN AMOUNT ALLOWED FOR DRILL PAY AS MEMBER OF AIR NATIONAL GUARD FOR JUNE 8 AND 15, 1950.

IN YOUR LETTER YOU ENCLOSED A MONEY ORDER FOR $25 AND YOU SAY YOU WILL PAY $10 A MONTH COMMENCING SEPTEMBER 1, 1957, UNTIL THE DEBT IS PAID. HOWEVER, YOU PROTEST PAYMENT OF THIS CLAIM ON THE BASIS THAT YOUR TEMPORARY DUTY AT KELLY AIR FORCE BASE INVOLVED A CONSTRUCTION MISSION AND WAS NOT TRAINING DUTY. YOU ALSO POINT OUT THAT YOUR COMMANDING OFFICER CERTIFIED AS TO THE INADEQUACY OF MESSING FACILITIES AND THAT THE PAYMENT OF PER DIEM WAS ACCEPTED IN GOOD FAITH AND WAS USED TO DEFRAY ADDITIONAL EXPENSES YOU INCURRED AS A RESULT OF THE TEMPORARY DUTY.

YOUR STATEMENTS CONCERNING THE CHARACTER OF THE DUTY INVOLVED AND THE AVAILABILITY OF GOVERNMENT MESSING FACILITIES ARE DIRECTLY CONTRARY TO OFFICIAL ADMINISTRATIVE REPORTS TO THIS OFFICE CONCERNING THIS MATTER. UNDER SUCH CIRCUMSTANCES WE MUST ACCEPT THE ADMINISTRATIVE REPORT AS CORRECT IN ABSENCE OF CLEAR AND CONVINCING EVIDENCE THAT IT IS INCORRECT. SEE 31 COMP. GEN. 288. CONCERNING YOUR STATEMENT THAT YOU ACCEPTED THE PAYMENTS IN GOOD FAITH, YOU ARE ADVISED THAT THE RIGHT OF THE GOVERNMENT TO RECOVER ERRONEOUS PAYMENTS MADE BY ANY OF ITS AGENCIES, OFFICERS, OR EMPLOYEES FROM THE PERSON WHO RECEIVED SUCH PAYMENTS IS NOT DEPENDENT UPON KNOWLEDGE OR LACK OF KNOWLEDGE OF THE ERRONEOUS CHARACTER OF THE PAYMENTS BY THE RECIPIENT THEREOF, NOR IS THE DUTY OF SUCH PERSON TO MAKE RESTITUTION IN ANY WAY AFFECTED BY THE FACT THAT SUCH PAYMENTS MAY HAVE BEEN RECEIVED IN GOOD FAITH.

WE HAVE NO AUTHORITY TO RELIEVE YOU OF YOUR LIABILITY TO REPAY TO THE UNITED STATES THE AMOUNT ILLEGALLY PAID TO YOU. YOUR PROPOSAL TO LIQUIDATE YOUR DEBT BY MONTHLY INSTALLMENTS OF $10 IS ACCEPTED.