B-134018, DEC. 17, 1957

B-134018, DEC. 17, 1957

TO MR. FRANK T. SHEEHY:

YOUR LETTER DATED JULY 26, 1957, REQUESTS REVIEW OF YOUR INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $95.49, REPRESENTING AN OVERPAYMENT OF PAY AND ALLOWANCES INCIDENT TO YOUR RELEASE FROM ACTIVE DUTY.

BY ORDERS DATED MAY 29, 1956, YOU WERE RELEASED FROM ACTIVE DUTY AND AUTHORIZED TO TRAVEL FROM YOUR LAST DUTY STATION AT UNITED STATES NAVAL RECEIVING STATION, UNITED STATES NAVAL STATION, SAN DIEGO, CALIFORNIA, TO CHICAGO, ILLINOIS, THE PLACE FROM WHICH YOU WERE ORDERED TO ACTIVE DUTY. YOUR HOME OF RECORD AT THAT TIME WAS SAN FRANCISCO, CALIFORNIA. YOU WERE PAID $111.41 FOR EIGHT DAYS' TRAVEL TIME FOR TRAVEL FROM SAN DIEGO TO CHICAGO. EXCEPTION WAS TAKEN TO THIS PAYMENT ON THE GROUND THAT YOU WERE ENTITLED TO PAY AND ALLOWANCES FOR ONLY TWO DAYS' TRAVEL TIME ($15.92) TO SAN FRANCISCO, CALIFORNIA. YOU WERE REQUESTED TO REMIT THE SUM OF $95.49 ($111.41 LESS $15.92).

IT IS INDICATED THAT YOU ELECTED TRAVEL TO CHICAGO, WHICH WAS THE PLACE FROM WHICH YOU WERE ORDERED TO ACTIVE DUTY, AND YOU STATE THAT YOUR ORDERS PROVIDED FOR THIS TRAVEL, AND THAT THOSE ORDERS WERE WRITTEN IN ACCORDANCE WITH BUSANDA MANUAL, 54230-2A (3). YOU CONCLUDE THAT THE GOVERNMENT'S CLAIM IS BASED ON MISTAKE IN THAT "PLACE FROM WHICH YOU WERE ORDERED TO ACTIVE DUTY" HAS BEEN CONFUSED WITH "HOME OF RECORD.'

BUSANDA MANUAL, 54230-2A (3) (SUPERSEDED BY NAV COMPT. MANUAL PARS. 044230-3) PROVIDES AS FOLLOWS:

"IF TRAVEL BY PRIVATE CONVEYANCE NOT SPECIFICALLY AUTHORIZED IN THE RELEASE ORDERS AND TRAVEL PERFORMED BY PRIVATE CONVEYANCE, ACTIVE DUTY PAY IS PAYABLE FOR THE ACTUAL TIME TO TRAVEL TO HOME NOT TO EXCEED THE TRAVEL TIME COMPUTED ON THE BASIS OF ACTUAL AND NECESSARY CARRIER SCHEDULES OVER THE SHORTEST USUALLY TRAVELED ROUTE.'

THIS REGULATION WAS ISSUED PURSUANT TO SECTION 201 (E) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807, 37 U.S.C. 232 (E). SECTION 201 (E) (NOW SECTION 201 (D) ( OF THE ACT PROVIDES THAT IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT, IN THE CASE OF MEMBERS OF THE UNIFORMED SERVICES CALLED OR ORDERED TO EXTENDED ACTIVE DUTY IN EXCESS OF 30 DAYS, ACTIVE DUTY SHALL INCLUDE THE TIME REQUIRED TO PERFORM TRAVEL FROM "HOME" TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO "HOME" BY THE MODE OF TRANSPORTATION AUTHORIZED IN ORDERS FOR SUCH MEMBER. IN OUR DECISION OF SEPTEMBER 8, 1954, B-120297, IT WAS HELD THAT THE TERM"HOME" AS USED IN SECTION 201 (E) OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, AUTHORIZING ACTIVE DUTY PAY AND ALLOWANCES FOR TIME REQUIRED TO TRAVEL TO AND FROM ACTIVE DUTY STATIONS UPON ENTERING AND LEAVING THE SERVICE, MEANS THE PLACE RECORDED AS HOME WHEN ORDERED TO ACTIVE DUTY AND THAT THERE IS NO LEGAL BASIS TO AUTHORIZE ACTIVE DUTY PAY AND ALLOWANCES FOR THE TIME REQUIRED TO PERFORM TRAVEL, BY THE MODE OF TRANSPORTATION AUTHORIZED IN THE ORDERS, IN EXCESS OF THAT REQUIRED FOR TRAVEL FROM AND TO THE HOME OF RECORD. THEREFORE, SINCE THE EIGHT-DAY TRAVEL TIME PROVISION IN YOUR ORDERS OF MAY 29, 1956, WAS CONTRARY TO THIS INTERPRETATION OF THE STATUTE, WHICH BY LAW IS BINDING ON ALL EXECUTIVE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT, THE PAY AND ALLOWANCES YOU RECEIVED ON THE BASIS OF SUCH ORDERS WAS UNAUTHORIZED, AND MUST BE REPAID TO THE GOVERNMENT. THIS IS SO EVEN THOUGH THE ERRONEOUS PAYMENTS WERE ACCEPTED BY YOU IN GOOD FAITH AND WERE THE RESULT OF MISTAKE OF GOVERNMENT PERSONNEL RESPONSIBLE FOR THE ISSUANCE OF YOUR ORDERS OF MAY 29, 1956. THE GOVERNMENT CANNOT BE BOUND BY THE NEGLIGENT OR ERRONEOUS ACTS OF ITS OFFICERS OR AGENTS IN THE ABSENCE OF A STATUTE SO PROVIDING. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515. SINCE IT IS OFFICIALLY REPORTED THAT YOUR HOME OF RECORD WHEN YOU ENTERED ON ACTIVE DUTY WAS SAN FRANCISCO, YOU WERE ENTITLED TO PAY AND ALLOWANCES ONLY FOR TRAVEL TIME FROM (SAN DIEGO, CALIFORNIA) YOUR LAST DUTY STATION TO YOUR HOME OF RECORD (SAN FRANCISCO, CALIFORNIA) A DISTANCE OF 598 MILES. SINCE YOU ACTUALLY RECEIVED PAY AND ALLOWANCES IN THE AMOUNT OF $111.41 FOR TRAVEL TO CHICAGO, ILLINOIS, YOU RECEIVED AN OVERPAYMENT OF $95.49 ($111.41 LESS $15.92).

ACCORDINGLY, WE HAVE NO RECOURSE OTHER THAN TO REQUIRE THAT YOU REFUND TO THE UNITED STATES THE SUM OF $95.49 ILLEGALLY PAID TO YOU, AND YOU ARE REQUESTED TO SEND US A CHECK OR MONEY ORDER IN THAT AMOUNT MADE PAYABLE TO THE ORDER OF THE "U.S. GENERAL ACCOUNTING OFFICE.' THE PAYMENT SHOULD BE MAILED TO THE UNITED STATES GENERAL ACCOUNTING OFFICE, P.O. BOX 2610, WASHINGTON 13, D.C. ..END :