B-137151, SEP 23, 1958

B-137151, SEP 23, 1958

PRECIS-UNAVAILABLE

JOHN I. PITTMAN, ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 1, 1958, REQUESTING REVIEW OF THE ACTION OF THIS OFFICE IN THE CASE INVOLVING YOUR INDEBTEDNESS TO THE UNITED STATES ARISING FROM THE STORAGE OF YOUR HOUSEHOLD EFFECTS WHILE YOU WERE SERVING AS LIEUTENANT COMMANDER, UNITED STATES NAVAL RESERVE.

BY ORDERS DATED JUNE 3, 1952, YOU WERE DIRECTED TO PROCEED ON OR ABOUT JULY 1, 1952, FROM NAVAL RECRUITING STATION AND OFFICE OF NAVAL OFFICER PROCUREMENT, SAN FRANCISCO, CALIFORNIA, TO NAVAL SCHOOL, NAVAL JUSTICE, NAVAL BASE, NEWPORT, RHODE ISLAND, FOR TEMPORARY DUTY UNDER INSTRUCTION, UPON COMPLETION OF WHICH YOU WERE TO RETURN TO YOUR STATION. YOU WERE DETACHED FROM YOUR STATION ON JULY 1, 1952. THE NEXT DAY YOU PLACED YOUR HOUSEHOLD EFFECTS IN STORAGE WITH THE LYON STORAGE AND MOVING COMPANY, OAKLAND, CALIFORNIA. ON AUGUST 29, 1952, YOU WERE DETACHED FROM DUTY AT NAVY RECRUITING STATION AND OFFICE OF NAVAL OFFICER PROCUREMENT, SAN FRANCISCO, FOR DUTY AFLOAT IN COMPLIANCE WITH ORDERS DATED JUNE 26, 1952. IT APPEARS THAT IN NOVEMBER 1953 YOU EXECUTED AN APPLICATION FOR SIX MONTHS' STORAGE OF HOUSEHOLD EFFECTS INCIDENT TO ORDERS OF OCTOBER 1953, WHICH APPARENTLY RETURNED YOU TO THE UNITED STATES FOR HOSPITALIZATION AND RELEASE FROM ACTIVE DUTY, AND AS A RESULT OF THAT APPLICATION THE DEPARTMENT OF THE NAVY PAID $179.52 TO LYONS STORAGE AND MOVING COMPANY FOR STORAGE OF YOUR HOUSEHOLD EFFECTS FROM NOVEMBER 2, 1953, TO MAY 2, 1954. THE RECORD INDICATES THERE WAS NO SHIPMENT OF YOUR EFFECTS UPON THE EXPIRATION OF THAT PERIOD AND THAT THEY WERE STILL IN STORAGE SEVERAL YEARS LATER. UPON AUDIT OF THE ACCOUNTS OF THE DISBURSING OFFICER INVOLVED THIS OFFICE TOOK EXCEPTION TO THE PAYMENT RESULTING IN THE CHARGE OF INDEBTEDNESS AGAINST YOU. THE DEPARTMENT OF THE NAVY REFERRED THE MATTER OF YOUR INDEBTEDNESS HERE FOR COLLECTION, AND SINCE IT APPEARS YOU ARE PRESENTLY EMPLOYED BY THE INTERSTATE COMMERCE COMMISSION, WE REQUESTED THE CHAIRMAN, BY LETTER OF APRIL 25, 1958, TO EFFECT COLLECTION BY ADMINISTRATIVE MEANS.

SECTION 303(C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, PROVIDES THAT, UNDER SUCH REGULATIONS AS THE SECRETARIES MAY PRESCRIBE, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO "TRANSPORTATION (INCLUDING PACKING, CRATING, DRAYAGE, TEMPORARY STORAGE, AND UNPACKING)" OF HOUSEHOLD EFFECTS, IN CONNECTION WITH A CHANGE OF STATION, TO AND FROM SUCH LOCATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES. PARAGRAPH 8006-1 OF THE JOINT TRAVEL REGULATIONS, IN EFFECT AT THE TIME HERE INVOLVED, PROVIDES FOR TEMPORARY STORAGE OF HOUSEHOLD EFFECTS WHEN NECESSARY IN CONNECTION WITH A PERMANENT CHANGE OF STATION DUE TO CONDITIONS BEYOND CONTROL OF THE MEMBER (INCLUDING DIRECTED SURRENDER OF QUARTERS, ARRIVAL OF SHIPMENT AT DESTINATION BEFORE ARRIVAL OF MEMBER, OR NONAVAILABILITY OF HOUSING AT DESTINATION). IT FURTHER PROVIDES THAT SUCH STORAGE MUST ACCRUE DURING ANY OF THE FOLLOWING PERIODS: (1) AFTER PICKUP OF PROPERTY AND BEFORE DISPATCH OF SHIPMENT FROM CARRIER'S STATION AT POINT OF ORIGIN; (2) WHILE SHIPMENT IS IN TRANSIT OR EN ROUTE AND STORAGE IS NOT FURNISHED FREE OF CHARGE BY CARRIER CONCERNED; OR (3) AFTER ARRIVAL OF SHIPMENT AT CARRIER'S DESTINATION STATION AND BEFORE DELIVERY OF SHIPMENT INTO QUARTERS. THUS, THE LAW AND REGULATIONS CLEARLY CONTEMPLATE TEMPORARY STORAGE ONLY WHEN IT BECOMES NECESSARY AS AN INTEGRAL PART OF AN ACTUAL SHIPMENT OF HOUSEHOLD EFFECTS INCIDENT TO A PERMANENT CHANGE OF STATION. 33 COMP. GEN. 470. FURTHER, IT CONSISTENTLY HAS BEEN HELD THAT WHEN HOUSEHOLD EFFECTS ARE PLACED IN COMMERCIAL STORAGE BY THE OWNER AND ALLOWED TO REMAIN THERE FOR AN EXTENDED PERIOD, AS IN YOUR CASE, NO PART OF SUCH PERIOD OF COMMERCIAL STORAGE CONSTITUTES TEMPORARY STORAGE AUTHORIZED TO BE FURNISHED AT GOVERNMENT EXPENSE. 32 COMP. GEN. 410; 33 ID. 306, 307.

PAYMENT OF SIX MONTHS' STORAGE CHARGES WAS MADE PURSUANT TO YOUR APPLICATION AND FOR YOUR BENEFIT. SINCE THERE WAS NO AUTHORITY FOR TEMPORARY COMMERCIAL STORAGE OF YOUR EFFECTS AT GOVERNMENT EXPENSE, WE HAD NO CHOICE BUT TO REQUEST YOU TO REMIT THE AMOUNT PAID BY THE GOVERNMENT. IT MAY BE ADDED THAT IT IS WELL SETTLED THAT PERSONS RECEIVING ERRONEOUS PAYMENTS FROM THE GOVERNMENT ACQUIRE NO RIGHT TO SUCH PAYMENTS, 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; UNITED STATES V. BURCHARD, 125 U. S. 176; UNITED STATES V. WURTZ, 303 U. S. 414; WISCONSIN CENTRAL RAILROAD V. UNITED STATES, 164 U. S. 190, AND THE CASES COLLECTED AND DISCUSSED IN UNITED STATES V. SUTTON CHEMICAL COMPANY, 11 F. 2D 2B, AND IN 63 A. L. R. 1346.

FOLLOWING OUR LETTER TO THE INTERSTATE COMMERCE COMMISSION, IN REPLY TO WHICH THAT OFFICE ADVISED US THAT ARRANGEMENTS WOULD BE WORKED OUT WITH YOU TO SATISFY YOUR INDEBTEDNESS, YOU FORWARDED TO US YOUR PERSONAL CHECK FOR $179.52 THE PROCEEDS OF WHICH YOU STATED "MAY BE PLACED IN ESCROW WITH THE EXPRESS AUTHORIZATION TO APPLY SUCH AMOUNT IN SATISFACTION OF ANY FINAL JUDGMENT OBTAINED IN CONNECTION WITH THIS MATTER." YOUR CHECK WAS CASHED AND THE PROCEEDS DEPOSITED INTO THE TREASURY OF THE UNITED STATES, THE ONLY FACILITY AVAILABLE TO US FOR SUCH PURPOSE, THIS OFFICE HAVING NO PROCEDURE FOR HOLDING THE CHECK IN ESCROW AS YOU SUGGESTED. IN YOUR LETTER OF AUGUST 8, 1958, YOU INDICATE THAT OUR HANDLING OF YOUR CHECK WAS IMPROPER AND IN VIOLATION OF THE TERMS UNDER WHICH IT WAS DELIVERED.

IT IS HOPED THAT THE INFORMATION CONTAINED IN THIS LETTER IS SUFFICIENT TO ESTABLISH TO YOUR SATISFACTION THAT THE GOVERNMENT'S CLAIM IN THE AMOUNT OF $179.52, THE FULL AMOUNT PAID THE STORAGE COMPANY ON YOUR BEHALF, PROPERLY SHOULD BE REFUNDED BY YOU AND IN THE ABSENCE OF A REQUEST BY YOU THE AMOUNT PREVIOUSLY RECEIVED WILL BE CONSIDERED TO BE IN SATISFACTION OF THAT OBLIGATION. OF COURSE, HOWEVER, CONSIDERING THE TERMS UNDER WHICH YOUR CHECK WAS DELIVERED, IF YOU REQUEST RETURN OF THE AMOUNT THEREOF SUCH ACTION WILL BE TAKEN AND THE USUAL PROCEDURE FOR COLLECTION OF THE AMOUNT DUE REINSTATED. YOU HAVE FURNISHED A PHOTOSTATIC COPY OF YOUR ACCOUNT WITH LYON STORAGE AND MOVING COMPANY FROM WHICH IT APPEARS THAT THE CHARGE TO YOU FOR STORING THESE HOUSEHOLD EFFECTS WAS $16 PER MONTH AS COMPARED TO $29.92 A MONTH PAID BY THE GOVERNMENT FOR THE PERIOD NOVEMBER 2, 1953, TO MAY 2, 1954. IN THIS CONNECTION, THERE IS ENCLOSED A COPY OF LYON STORAGE AND MOVING COMPANY'S INVOICE DATED JUNE 2, 1954, SHOWING THAT THE NAVY WAS CHARGED $29.92 PER MONTH (TOTAL $179.52) FOR STORAGE OF YOUR HOUSEHOLD EFFECTS FOR SIX MONTHS, NOVEMBER 2, 1953, TO MAY 2, 1954; ALSO, A COPY OF A VOUCHER SHOWING PAYMENT OF $179.52 TO THAT FIRM FOR SUCH STORAGE.