B-135137, APR. 4, 1958

B-135137: Apr 4, 1958

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JR.: REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 17. THE RECORD SHOWS THAT YOU WERE RELEASED FROM ASSIGNMENT AT CAMP KILMER. YOU WERE PAID MILEAGE AND PER DIEM FOR THE TRAVEL BY PRIVATELY OWNED CONVEYANCE IN THE AMOUNT OF $117.97. UPON AUDIT OF THE DISBURSING OFFICER'S ACCOUNTS AN EXCEPTION WAS TAKEN TO THIS PAYMENT. PARAGRAPH 2 (C) OF THE AIR FORCE REGULATIONS PROVIDED THAT ALL PERSONNEL WOULD BE "REQUIRED TO UTILIZE NSTS FACILITIES" FOR SUCH TRAVEL INCIDENT TO A CHANGE OF OFFICIAL STATION WHEN THAT WAS THE ONLY GOVERNMENT TRANSPORTATION AVAILABLE. GOVERNMENT TRANSPORTATION FOR CONSIDERATION WAS NOT ACCEPTABLE FOR THE REASONS STATED IN THE REGULATIONS. THE USE OF PRIVATELY OWNED CONVEYANCE ON A REIMBURSABLE BASIS WAS AUTHORIZED ONLY WHEN IT WAS DETERMINED BY APPROPRIATE AUTHORITY OF THE SERVICE THAT ADEQUATE GOVERNMENT TRANSPORTATION WAS NOT AVAILABLE OR THAT THE USE THEREOF WOULD INVOLVE DELAY OF MORE THAN 30 DAYS.

B-135137, APR. 4, 1958

TO MR. JESSE C. DUKE, JR.:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 17, 1958, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES, IN THE AMOUNT OF $116.17, REPRESENTING AN ERRONEOUS PAYMENT OF MILEAGE AND PER DIEM MADE INCIDENT TO YOUR SERVICE AS FIRST LIEUTENANT, UNITED STATES AIR FORCE, SERIAL NO. AO 87 1882.

THE RECORD SHOWS THAT YOU WERE RELEASED FROM ASSIGNMENT AT CAMP KILMER, NEW JERSEY, AND TRANSFERRED TO SAINT JOHNES, NEWFOUNDLAND, BY ORDERS DATED AUGUST 6, 1951. PURSUANT THERETO, YOU WERE PAID MILEAGE AND PER DIEM FOR THE TRAVEL BY PRIVATELY OWNED CONVEYANCE IN THE AMOUNT OF $117.97. HOWEVER, UPON AUDIT OF THE DISBURSING OFFICER'S ACCOUNTS AN EXCEPTION WAS TAKEN TO THIS PAYMENT, IN THE AMOUNT OF $116.17, FOR THE REASON THAT THE AIR FORCE REGULATIONS IN EFFECT AT THE TIME REQUIRED THE USE OF GOVERNMENT TRANSPORTATION. SEE AIR FORCE REGULATIONS 75-12, PARAGRAPHS 1-3, DATED JANUARY 23, 1951.

SPECIFICALLY, PARAGRAPH 2 (C) OF THE AIR FORCE REGULATIONS PROVIDED THAT ALL PERSONNEL WOULD BE "REQUIRED TO UTILIZE NSTS FACILITIES" FOR SUCH TRAVEL INCIDENT TO A CHANGE OF OFFICIAL STATION WHEN THAT WAS THE ONLY GOVERNMENT TRANSPORTATION AVAILABLE, EXCEPT THAT ITS USE WOULD NOT BE REQUIRED IF NOT ACCEPTABLE FOR CERTAIN SPECIFIED REASONS. PARAGRAPH 3 PROVIDED FOR AN ADMINISTRATIVE DETERMINATION OF NONAVAILABILITY OF GOVERNMENT TRANSPORTATION, IF, IN FACT, GOVERNMENT TRANSPORTATION FOR CONSIDERATION WAS NOT ACCEPTABLE FOR THE REASONS STATED IN THE REGULATIONS.

UNDER THE ABOVE-CITED REGULATIONS, THE USE OF PRIVATELY OWNED CONVEYANCE ON A REIMBURSABLE BASIS WAS AUTHORIZED ONLY WHEN IT WAS DETERMINED BY APPROPRIATE AUTHORITY OF THE SERVICE THAT ADEQUATE GOVERNMENT TRANSPORTATION WAS NOT AVAILABLE OR THAT THE USE THEREOF WOULD INVOLVE DELAY OF MORE THAN 30 DAYS. IF THESE CONDITIONS WERE FOUND TO EXIST, THE REGULATIONS FURTHER PROVIDED (PARAGRAPH 3 (A) ( THAT IT SHOULD BE SO INDICATED IN THE TRAVEL ORDERS. YOUR ORDERS CONTAINED ONLY THE INITIALS "TPA" (TRAVEL BY PRIVATELY OWNED CONVEYANCE AUTHORIZED) AND, HENCE, DO NOT EVIDENCE AN ADMINISTRATIVE DETERMINATION OF NONAVAILABILITY OF GOVERNMENT TRANSPORTATION AS REQUIRED BY THE AIR FORCE REGULATIONS. WHILE YOU SAY THAT WHEN YOU WERE TRANSFERRED TO NEWFOUNDLAND YOU AND OTHER MEMBERS BEING SO TRANSFERRED WERE URGED TO DRIVE BECAUSE SUFFICIENT ACCOMMODATIONS ABOARD SHIP WERE NOT AVAILABLE, NO EVIDENCE IN SUPPORT OF SUCH STATEMENT HAS BEEN FURNISHED. ACCORDINGLY, UPON THE BASIS OF THE RECORD BEFORE US, THE PAYMENT WAS NOT AUTHORIZED.

CONCERNING THE ADMINISTRATIVE PAYMENT, IT CONSISTENTLY HAS BEEN HELD THAT THE UNITED STATES IS NOT BOUND OR ESTOPPED BY AN ERRONEOUS PAYMENT MADE THROUGH ERROR BY ITS OFFICERS, WHETHER MADE UNDER MISTAKE OF FACT OR MISTAKE OF LAW. PERSONS RECEIVING SUCH ERRONEOUS PAYMENTS ACQUIRE NO RIGHT TO THEM BUT ARE LIABLE IN EQUITY AND GOOD CONSCIENCE TO REFUND THEM. SEE, IN THIS CONNECTION, 29 COMP. GEN. 520, 523, AND THE COURT CASES CITED IN THAT DECISION.