B-135930, MAY 7, 1958

B-135930: May 7, 1958

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JEFFERS: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 20. THE PAYMENTS WERE MADE TO HER AT THE RATE OF $12 PER MONTH FOR THE PERIOD FROM MARCH 1943 THROUGH NOVEMBER 1948. WILLAMS WAS DISCHARGED FROM THE ARMY ON APRIL 7. WERE ERRONEOUS. IN THE CIRCUMSTANCES IT WILL BE CONSIDERED THAT THE ENLISTED MAN WAS OVERPAID IN HIS PAY ACCOUNTS. ALLISON IS INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $804. IT IS WELL ESTABLISHED THAT PERSONS RECEIVING MONEY ERRONEOUSLY PAID BY A GOVERNMENT AGENCY OR OFFICIAL ACQUIRE NO RIGHT TO THE MONEY AND THE COURTS CONSISTENTLY HAVE HELD THAT SUCH PERSONS ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION. IT HAS BEEN HELD THAT IF A BENEFIT IS BESTOWED THROUGH MISTAKE.

B-135930, MAY 7, 1958

TO MR. FRED H. JEFFERS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 20, 1958, RELATING TO THE CLAIM OF THE UNITED STATES AGAINST MRS. ETHEL ALLISON IN THE AMOUNT OF $828. THAT AMOUNT REPRESENTS OVERPAYMENTS OF CLASS E ALLOTMENT MADE TO HER INCIDENT TO THE SERVICE OF JOHN C. WILLIAMS AS AN ENLISTED MAN IN THE ARMY, SERVICE NO. 32 377 297.

THE PAYMENTS WERE MADE TO HER AT THE RATE OF $12 PER MONTH FOR THE PERIOD FROM MARCH 1943 THROUGH NOVEMBER 1948. MR. WILLAMS WAS DISCHARGED FROM THE ARMY ON APRIL 7, 1943. IT FOLLOWS THAT THE PAYMENTS MADE THEREAFTER FOR WHICH NO COLLECTION POSSIBLY COULD BE MADE FROM THE ENLISTED MAN'S PAY, FROM MAY 1943 THROUGH NOVEMBER 1948, WERE ERRONEOUS, RESULTING IN AN OVERPAYMENT TO MRS. ALLISON OF THE AMOUNT OF $804. IN THE CIRCUMSTANCES IT WILL BE CONSIDERED THAT THE ENLISTED MAN WAS OVERPAID IN HIS PAY ACCOUNTS, IN THE AMOUNT OF $24, FOR THE MONTHS OF MARCH AND APRIL 1943. ACCORDINGLY, MRS. ALLISON IS INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $804.

IT IS WELL ESTABLISHED THAT PERSONS RECEIVING MONEY ERRONEOUSLY PAID BY A GOVERNMENT AGENCY OR OFFICIAL ACQUIRE NO RIGHT TO THE MONEY AND THE COURTS CONSISTENTLY HAVE HELD THAT SUCH PERSONS ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION. SEE BARNES, ET AL. V. DISTRICT OF COLUMBIA, 22 C.CLS. 366. WHILE THE RECORD INDICATES NEGLIGENCE IN THE DISBURSEMENT OF THE FUNDS INVOLVED IN THIS CASE, IT HAS BEEN HELD THAT IF A BENEFIT IS BESTOWED THROUGH MISTAKE, NO MATTER HOW CARELESS THE ACT OF THE BESTOWER MAY HAVE BEEN, THE RECIPIENT MUST IN EQUITY MAKE RESTITUTION. UNITED STATES V. NORTHWESTERN NATIONAL BANK AND TRUST COMPANY OF MINNEAPOLIS, 35 F.SUPP. 484, 486. THE DOCTRINE APPLIED IN SOME CASES, PROHIBITING THE RECOVERY OF PAYMENTS VOLUNTARILY MADE, DOES NOT APPLY TO PAYMENTS MADE WITHOUT AUTHORITY BY PUBLIC OFFICERS, SINCE SUCH PAYMENTS ARE NOT PRESUMED TO BE MADE VOLUNTARILY BY THE GOVERNMENT, BUT BY ITS OFFICERS IN EXCESS OF THEIR AUTHORITY. CF. UNITED STATES V. BURCHARD, 125 U.S. 176. UNDER THE CIRCUMSTANCES, IT IS YOUR CLIENT'S LIABILITY TO MAKE RESTITUTION RATHER THAN THAT OF MR. WILLIAMS. SEE, IN THIS CONNECTION MELVILLE V. UNITED STATES, 23 C.CLS. 74.

WITH RESPECT TO YOUR INQUIRY CONCERNING THIS MATTER, YOU ARE ADVISED THAT THERE IS NO FEDERAL STATUTE OF LIMITATIONS WHICH WOULD BAR RECOVERY BY THE UNITED STATES OF THE AMOUNT DUE IN THIS CASE.

THERE HAS BEEN CONSIDERABLE CORRESPONDENCE WITH RESPECT TO THIS MATTER. IT IS THE POLICY OF OUR OFFICE TO AFFORD THE DEBTOR THE OPPORTUNITY TO LIQUIDATE HER OBLIGATION TO THE GOVERNMENT ON THE BASIS OF THE PRINCIPAL AMOUNT DUE--- WITHOUT ADDITIONS FOR INTEREST AND COSTS--- AND WITHOUT ANY UNNECESSARY HARDSHIP UPON HER. FOR THAT REASON, AN ARRANGEMENT FOR THE REPAYMENT OF THE INDEBTEDNESS BY REASONABLE MONTHLY INSTALLMENTS WOULD BE ACCEPTABLE HERE, PROVIDED THE PAYMENTS ARE MADE AT REGULAR INTERVALS.

IT IS REQUESTED THAT YOUR REPLY BE ADDRESSED TO THE U.S. GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION, WASHINGTON 25, D.C., WITHIN 30 DAYS FROM THE DATE OF THIS LETTER, IN ORDER THAT APPROPRIATE ACTION MAY BE TAKEN BY OUR OFFICE.