B-136250, JUN. 19, 1958

B-136250: Jun 19, 1958

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USAR: REFERENCE IS MADE TO YOUR LETTER DATED MAY 7. YOU REQUEST THAT THE MATTER BE SUBMITTED TO HIGHER AUTHORITY AS YOU DO NOT RECOGNIZE THE INDEBTEDNESS AND YOU STATE THAT YOU DID NOT RECEIVE ANY PAY FOR ASSEMBLIES ATTENDED AS AN AUDITOR STUDENT BUT THAT YOU WERE PAID ONLY FOR THOSE ASSEMBLIES WHICH YOU ATTENDED AS AN ASSIGNED STUDENT. YOUR RIGHT TO THE TRAINING DUTY PAY IN QUESTION WAS FIXED BY REGULATIONS ISSUED UNDER AUTHORITY CONTAINED IN SECTION 501 OF THE CAREER COMPENSATION ACT OF 1949. INACTIVE DUTY TRAINING PAY FOR THEIR PARTICIPATION WHEN THEIR ATTENDANCE AT REGULARLY SCHEDULED ASSEMBLIES DURING ANY QUARTER EQUALS OR EXCEEDS 75 PERCENT OF THE REGULARLY SCHEDULED ASSEMBLIES FOR THAT QUARTER. * * *" AUDITOR STUDENTS ARE DEFINED IN PARAGRAPH 2C (1).

B-136250, JUN. 19, 1958

TO LIEUTENANT COLONEL ALFRED KISSILEFF, USAR:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 7, 1958, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES RESULTING FROM IMPROPER PAYMENT TO YOU OF $106.60 FOR ATTENDING INACTIVE DUTY TRAINING ASSEMBLIES AS A MEMBER OF THE U.S. ARMY RESERVE DURING THE FIRST QUARTER OF 1956 WHEN YOUR ATTENDANCE AS AN ASSIGNED STUDENT FELL BELOW 75 PERCENT OF THE SCHEDULED ASSEMBLIES NECESSARY TO QUALIFY FOR TRAINING DUTY PAY FOR THAT QUARTER. YOU REQUEST THAT THE MATTER BE SUBMITTED TO HIGHER AUTHORITY AS YOU DO NOT RECOGNIZE THE INDEBTEDNESS AND YOU STATE THAT YOU DID NOT RECEIVE ANY PAY FOR ASSEMBLIES ATTENDED AS AN AUDITOR STUDENT BUT THAT YOU WERE PAID ONLY FOR THOSE ASSEMBLIES WHICH YOU ATTENDED AS AN ASSIGNED STUDENT.

YOUR RIGHT TO THE TRAINING DUTY PAY IN QUESTION WAS FIXED BY REGULATIONS ISSUED UNDER AUTHORITY CONTAINED IN SECTION 501 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED BY THE ACT OF JULY 9, 1952, 37 U.S.C. 301. PARAGRAPH 6B (4), ARMY REGULATIONS 140-250, CHANGE 3, DATED DECEMBER 8, 1954, IN EFFECT DURING THE PERIOD INVOLVED, PROVIDED AS FOLLOWS:

"REINFORCEMENTS ASSIGNED AS USAR SCHOOL STUDENTS MAY RECEIVE, SUBJECT TO THE AVAILABILITY OF FUNDS, INACTIVE DUTY TRAINING PAY FOR THEIR PARTICIPATION WHEN THEIR ATTENDANCE AT REGULARLY SCHEDULED ASSEMBLIES DURING ANY QUARTER EQUALS OR EXCEEDS 75 PERCENT OF THE REGULARLY SCHEDULED ASSEMBLIES FOR THAT QUARTER. * * *"

AUDITOR STUDENTS ARE DEFINED IN PARAGRAPH 2C (1), ARMY REGULATIONS 140- 353 AS:

"INDIVIDUALS AWAITING ASSIGNMENT OR ATTACHMENT TO USAR SCHOOLS, OR THOSE INDIVIDUALS WHO DO NOT MEET PREREQUISITES FOR ENROLLMENT, WHO HAVE PROCURED THE PERMISSION OF THE USAR SCHOOL COMMANDANT PRIOR TO ENROLLMENT. * * *"

IT IS TO BE NOTED THAT PARAGRAPH 6B (4) OF THE QUOTED REGULATIONS IS ADDRESSED TO REINFORCEMENTS ASSIGNED AS USAR SCHOOL STUDENTS. IT IS NOT APPLICABLE IN ANY WAY TO AUDITOR STUDENTS. THE REQUIREMENT FOR ATTENDANCE AT 75 PERCENT OF THE ASSEMBLIES IN ORDER TO QUALIFY FOR PAY FOR THE QUARTER, NECESSARILY WAS APPLICABLE TO TOTAL ATTENDANCE AS AN ASSIGNED STUDENT. THERE IS NOTHING IN THE LANGUAGE OF THE QUOTED REGULATIONS WHICH INDICATES THAT MERE PERMISSIVE ATTENDANCE IN AN INFORMAL STATUS WAS TO BE INCLUDED IN COMPUTING AN ATTENDANCE PERCENTAGE FIGURE. THE REGULATIONS HAVE NOT BEEN SO CONSTRUED BY THE DEPARTMENT OF THE ARMY AND WE SEE NO BASIS TO QUESTION THE ADMINISTRATIVE INTERPRETATION OF SUCH REGULATIONS.

THE SUBMITTED RECORD SHOWS THAT YOUR REQUEST FOR ATTENDANCE AT THE 2072D ARASU, USAR SCHOOL, AS A STUDENT IN AN INFORMALLY ENROLLED CATEGORY WAS APPROVED NOVEMBER 22, 1955. HOWEVER, YOUR ASSIGNMENT TO THE SCHOOL WAS NOT EFFECTIVE UNTIL FEBRUARY 1, 1956, AND THE ASSEMBLIES YOU ATTENDED ON JANUARY 12 AND 26, 1956, WERE NOT ATTENDED AS AN ASSIGNED MEMBER OF THE SCHOOL STUDENT DETACHMENT. IN SUCH CIRCUMSTANCES, THE ASSEMBLIES YOU ATTENDED IN JANUARY 1956, WHILE IN AN INFORMALLY ENROLLED STUDENT STATUS, MAY NOT BE COUNTED FOR THE PURPOSE OF MEETING THE 75 PERCENT ATTENDANCE REQUIREMENT FOR PAY DURING THE QUARTER. HAVING ATTENDED AS AN ASSIGNED STUDENT BUT FIVE OF THE EIGHT SCHEDULED ASSEMBLIES, YOU WERE NOT QUALIFIED TO RECEIVE ANY PAY FOR THE QUARTER JANUARY TO MARCH, 1956.

IT IS WELL ESTABLISHED THAT PERSONS RECEIVING MONEY ERRONEOUSLY PAID BY A GOVERNMENT AGENCY OR OFFICIAL, ACQUIRE NO RIGHT THERETO 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, WISCONSIN CENTRAL RAILROAD V. UNITED STATES, 164 U.S. 190, UNITED STATES V. SUTTON CHEMICAL COMPANY, 11 FED.2D 24, AND OTHER CASES COLLECTED AND DISCUSSED IN 63 A.L.R. 1346.

SINCE OUR REVIEW OF THE PERTINENT RECORDS SUSTAINS THE ADMINISTRATIVE CONCLUSION THAT YOU ARE INDEBTED TO THE UNITED STATES, IN THE SUM OF $106.60, YOU ARE REQUESTED TO REMIT THAT AMOUNT BY CASH OR MONEY ORDER MADE PAYABLE TO THE "UNITED STATES GENERAL ACCOUNTING OFFICE.' THE REMITTANCE SHOULD BE FORWARDED TO:

U.S. GENERAL ACCOUNTING OFFICE, POST OFFICE BOX 2610, WASHINGTON 13, D.C. MAKING REFERENCE TP Z-1877957. THIS REQUEST IS MADE UNDER AUTHORITY CONTAINED IN 31 U.S.C. 71.