B-133927, NOV. 5, 1957

B-133927: Nov 5, 1957

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ATTORNEY AT LAW: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 16. THE EXPLANATION FOR THIS OVERPAYMENT WAS SET FORTH IN THE LETTER DATED MAY 7. THE CASE WAS REFERRED HERE. WHICH IS SUBSTANTIALLY THE SAME AS THE REPEALED PROVISIONS OF 38 U.S.C. 11A-2. WE ARE PRECLUDED FROM REVIEWING THE ADMINISTRATOR'S DECISION ON ANY QUESTION OF LAW OR FACT CONCERNING A CLAIM FOR BENEFITS OR PAYMENTS UNDER ANY LAW ADMINISTERED BY THE VETERANS ADMINISTRATION. YOU WILL AGREE THAT WE HAVE NO ALTERNATIVE IN THE MATTER OTHER THAN TO REQUEST THAT YOU LIQUIDATE THE INDEBTEDNESS. THE APPLICATION OF YOUR INSURANCE DIVIDEND ON THE OVERPAYMENT APPEARS TO HAVE BEEN PROPER. SUCH SET OFF IS NOT PROHIBITED BY SECTION 1001 (B) OF THE ACT OF JUNE 17.

B-133927, NOV. 5, 1957

TO MR. MALCOLM D. SMITH, ATTORNEY AT LAW:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 16, 1957, RELATIVE TO THE GOVERNMENT'S CLAIM AGAINST YOU FOR OVERPAYMENT OF SUBSISTENCE ALLOWANCE DURING THE PERIOD MARCH 6 TO MAY 29, 1948.

THE EXPLANATION FOR THIS OVERPAYMENT WAS SET FORTH IN THE LETTER DATED MAY 7, 1957, TO YOU FROM THE ACTING FINANCE OFFICER, VETERANS ADMINISTRATION REGIONAL OFFICE, BALTIMORE, MARYLAND. AFTER EFFORTS TO RECOVER THE OVERPAYMENT BY THE VETERANS ADMINISTRATION FAILED, THE CASE WAS REFERRED HERE. SEE 31 U.S.C. 71. BY VIRTUE OF SECTION 211 (A) OF THE ACT OF JUNE 17, 1957, 71 STAT. 92, WHICH IS SUBSTANTIALLY THE SAME AS THE REPEALED PROVISIONS OF 38 U.S.C. 11A-2, WE ARE PRECLUDED FROM REVIEWING THE ADMINISTRATOR'S DECISION ON ANY QUESTION OF LAW OR FACT CONCERNING A CLAIM FOR BENEFITS OR PAYMENTS UNDER ANY LAW ADMINISTERED BY THE VETERANS ADMINISTRATION. IN THE CIRCUMSTANCES, YOU WILL AGREE THAT WE HAVE NO ALTERNATIVE IN THE MATTER OTHER THAN TO REQUEST THAT YOU LIQUIDATE THE INDEBTEDNESS.

IN YOUR LETTER OF JUNE 3, 1957, YOU QUESTION THE LEGALITY OF APPLYING THE INSURANCE DIVIDENDS TO REDUCE THE INDEBTEDNESS. THE APPLICATION OF YOUR INSURANCE DIVIDEND ON THE OVERPAYMENT APPEARS TO HAVE BEEN PROPER, THE UNITED STATES GENERALLY HAVING THE RIGHT TO OFFSET, FROM AMOUNTS ALLOWABLE ON CLAIMS FILED WITH IT, AMOUNTS OF INDEBTEDNESS DUE TO THE UNITED STATES FROM THE CLAIMANT. MCKNIGHT'S CASE, 13 C.CLS. 292, 306, BONNAFON'S CASE, 14 C.CLS. 484, 489. ALSO, SUCH SET OFF IS NOT PROHIBITED BY SECTION 1001 (B) OF THE ACT OF JUNE 17, 1957, 71 STAT. 122, WHICH IS SUBSTANTIALLY THE SAME AS THE REPEALED PROVISIONS OF 38 U.S.C. 454A, SINCE THE INDEBTEDNESS AROSE UNDER THE LAWS RELATING TO VETERANS.

YOU ALSO EXPRESS AN OPINION IN THE LETTER OF JUNE 3, 1957, TO THE EFFECT THAT THE GOVERNMENT'S CLAIM IS BARRED BY THE STATUTE OF LIMITATIONS. GENERALLY, THE UNITED STATES, WHEN ASSERTING SOVEREIGN RIGHTS, IS NOT BOUND BY ANY STATUTE OF LIMITATION UNLESS CONGRESS HAS CLEARLY MANIFESTED SUCH AN INTENTION IN EXPRESS TERMS. COMPARE UNITED STATES V. NASHVILLE CHATTANOOGA AND ST. LOUIS RY. COMPANY, 118 U.S. 120. SINCE CONGRESS HAS NOT EXPRESSLY BOUND THE GOVERNMENT BY A STATUTE OF LIMITATIONS IN CASES INVOLVING OVERPAYMENTS OF VETERANS' BENEFITS, IT APPEARS THAT RECOVERY ON THE INSTANT CLAIM IS NOT BARRED BY STATUTE.

IN CONNECTION WITH YOUR INDEBTEDNESS, OUR REPLY HAS BEEN DELAYED PENDING VERIFICATION WITH THE VETERANS ADMINISTRATION OF THE AMOUNT DUE. THROUGH ERROR THE AMOUNT ORIGINALLY STATED WAS $210, WHEREAS, THE CORRECT AMOUNT IS $201.67 COMPUTED AS FOLLOWS:

TABLE

MARCH 6 TO MARCH 31, 1948 $ 54.17

APRIL 1 TO APRIL 30, 1948 75.00

MAY 1 TO MAY 29, 1948 72.50

TOTAL $ 201.67

THE MARCH CHECK TOTALED $65, BUT THE PERIOD OF OVERPAYMENT STARTED ON MARCH 6, 1948. SINCE THE NATIONAL SERVICE LIFE INSURANCE DIVIDEND OF $74.40 HAS BEEN APPLIED AGAINST THIS INDEBTEDNESS, THE PRESENT BALANCE IS $127.27. YOUR REMITTANCE IN THIS AMOUNT SHOULD BE BY CHECK, DRAFT OR MONEY ORDER, PAYABLE TO THE "U.S. GENERAL ACCOUNTING OFFICE" AND FORWARDED TO THE FOLLOWING ADDRESS:

U.S. GENERAL ACCOUNTING OFFICE

POST OFFICE BOX 2610

WASHINGTON 13, D.C.

THE REFERENCE "Z-1246955" SHOULD BE SHOWN ON ALL PAYMENTS AND CORRESPONDENCE RELATING TO THIS DEBT.