B-137704, NOV 19, 1958

B-137704, NOV 19, 1958

PRECIS-UNAVAILABLE

MR. JOHN NAUGHTON:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 3, 1958, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES RESULTING FROM AN IMPROPER PAYMENT TO YOU OF $138 FOR MILEAGE ON RELEASE FROM ACTIVE DUTY AS A MEMBER OF THE ARMED FORCES ON NOVEMBER 11, 1953, AT FORT DEVENS, MASSACHUSETTS.

YOUR RIGHT TO THE PAYMENT IN QUESTION WAS FIXED UNDER AUTHORITY OF THE PERTINENT PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949. SECTION 303(A) OF THE ACT, 63 STAT. 813, PROVIDES, AMONG OTHER THINGS, THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES "FOR TRAVEL PERFORMED OR TO BE PERFORMED" UNDER COMPETENT ORDERS UPON "RELEASE FROM ACTIVE DUTY *** FROM LAST DUTY STATION TO HOME OR TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY." THE RECORDS SHOW THAT WHEN YOU WERE DISCHARGED ON SEPTEMBER 9, 1952, FOR THE CONVENIENCE OF THE GOVERNMENT, PRIOR TO THE EXPIRATION OF YOUR ENLISTMENT, YOU WERE SERVING AT FORT BLISS, TEXAS, AND THAT YOU CONTINUED ON ACTIVE DUTY AT THAT STATION AS A COMMISSIONED OFFICER. SUBSEQUENTLY YOU WERE TRANSFERRED TO FORT DEVENS, MASSACHUSETTS, FROM WHICH STATION YOU WERE RELEASED FROM ACTIVE DUTY ON NOVEMBER 11, 1953, AND PAID MILEAGE COMPUTED ON THE DISTANCE FROM THERE TO FORT BLISS, TEXAS, IN THE AMOUNT OF $142.92.

THE QUESTION WHETHER MILEAGE MAY BE COMPUTED ON THE BASIS OF THE DISTANCE FROM THE LAST DUTY STATION TO A PLACE TREATED AS THE PLACE FROM WHICH CALLED TO ACTIVE DUTY WHEN SUCH PLACE WAS IN FACT THE PLACE WHERE THE MEMBER, HAVING PREVIOUSLY ENTERED ON ACTIVE DUTY AS AN ENLISTED MAN, WAS COMMISSIONED IN THE RESERVE AND CONTINUED ON ACTIVE DUTY WAS CONSIDERED IN OUR DECISION OF SEPTEMBER 8, 1954, B-120297, TO THE SECRETARY OF DEFENSE, A COPY OF WHICH WAS FURNISHED TO YOU BY OUR OFFICE. IN HOLDING THAT PAYMENTS ON THAT BASIS WERE NOT AUTHORIZED, IT WAS STATED THAT -

"THE OBVIOUS PURPOSE OF THE STATUTORY PROVISIONS FOR PAYMENT OF MILEAGE UPON SEPARATION FROM THE SERVICE OR RELEASE FROM ACTIVE DUTY IS TO RETURN THE MEMBER TO HIS HOME OR TO THE PLACE AT WHICH HE ENTERED THE SERVICE FROM CIVILIAN LIFE. CLEARLY THE MILITARY INSTALLATION AT WHICH A MEMBER'S STATUS WAS CHANGED FROM THAT OF AN ENLISTED MAN TO A COMMISSIONED RESERVIST HAS NO SIGNIFICANCE IN DETERMINING THE PLACE TO WHICH HE IS ENTITLED TO A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION UPON RELEASE FROM ACTIVE DUTY."

WHEN THAT DECISION WAS RENDERED THERE WAS IN EFFECT PARAGRAPH 4156, CASE 19, CHANGE 26, DATED SEPTEMBER 1, 1954, OF THE JOINT TRAVEL REGULATIONS, WHICH PROVIDED THAT A MEMBER WHO WAS SEPARATED FROM THE SERVICE FOR THE EXPRESS PURPOSE OF CONTINUING IN THE SERVICE (OTHER THAN AT THE EXPIRATION OF HIS ENLISTMENT) IN THE SAME OR ANOTHER STATUS WAS NOT ENTITLED TO MILEAGE ON SUCH DISCHARGE, BUT SAVED TO HIM A RIGHT TO MILEAGE UPON ULTIMATE SEPARATION FROM THE SERVICE OR RELEASE FROM ACTIVE DUTY FROM THE PLACE OF SEPARATION OR RELEASE FROM ACTIVE DUTY TO THE PLACE OF ENTRY INTO THE SERVICE OR TO THE HOME OF RECORD AS HE MIGHT ELECT. SUCH REGULATION RECOGNIZED THAT A SEPARATION FROM THE SERVICE FOR THE SOLE PURPOSE OF CONTINUING IN ANOTHER STATUS WAS INEFFECTIVE TO INCREASE THE MILEAGE ACCRUING TO A MEMBER UPON FINAL SEPARATION OR RELEASE FROM ACTIVE DUTY AS A MEMBER OF THE ARMED SERVICES. THE DETERMNATION MADE IN YOUR CASE WAS NOT PREDICATED ON ANY CHANGE IN YOUR ENTITLEMENT TO MILEAGE INCIDENT TO RELEASE FROM ACTIVE DUTY. IN THIS CONNECTION, THE DECISION OF SEPTEMBER 8, 1954, AND THE ADMINISTRATIVE REGULATIONS, AS AMENDED, MERELY SET FORTH WHAT WAS THE REQUIRED RULE IN THAT RESPECT UNDER THE PERTINENT PROVISIONS OF THE 1949 STATUTE. AS POINTED OUT IN THE LETTER OF SEPTEMBER 9, 1958, FROM OUR CLAIMS DIVISION, THE APPLICABLE REGULATIONS IN EFFECT AT THE TIME OF YOUR RELEASE FROM ACTIVE DUTY WERE SUBSTANTIALLY THE SAME AS THOSE IN EFFECT WHEN THE DECISION OF SEPTEMBER 8, 1954, B-120297, WAS RENDERED. THE DECISION MADE NO CHANGE IN OUR INTERPRETATION OF THE LAW BUT WAS IN LINE WITH PRIOR DECISIONS ON THE SUBJECT AND, HENCE, IS APPLICABLE TO THE PAYMENT WHICH YOU RECEIVED.

YOUR CONTENTION THAT THERE WAS A ONE-DAY BREAK IN YOUR SERVICE WHEN DISCHARGED AS AN ENLISTED MAN ON SEPTEMBER 9, 1952, AND APPOINTED A SECOND LIEUTENANT EFFECTIVE THE FOLLOWING DAY IS WITHOUT MERIT. HISTORICALLY, THE LAW NEVER HAS RECOGNIZED FRACTIONAL PARTS OF A DAY IN MATTERS OF RETIREMENT, PROMOTION OR APPOINTMENT OF MILITARY PERSONNEL, AND A MEMBER IS CONSIDERED TO BE ON ACTIVE DUTY FOR 24 HOURS OF EACH DAY OF HIS ENLISTED OR ACTIVE COMMISSIONED SERVICE. 28 COMP. GEN. 381. UNDOUBTEDLY YOU RECEIVED A FULL DAY'S PAY AS AN ENLISTED MAN FOR SEPTEMBER 9 AND A FULL DAY'S PAY FOR SEPTEMBER 10 AS AN OFFICER. HENCE, THERE IS NO BASIS FOR CONCLUDING THAT THERE WAS A BREAK IN YOUR SERVICE SO AS TO EXCEPT YOU FROM THE APPLICABLE REGULATIONS. THEREFORE, WHEN RELEASED FROM ACTIVE DUTY YOU WERE ENTITLED TO MILEAGE ONLY FROM FORT DEVENS, MASSACHUSETTS, TO PROVIDENCE, RHODE ISLAND, YOUR HOME OF RECORD AND PLACE OF ENTRANCE ON ACTIVE DUTY AS A MEMBER OF THE ARMED SERVICES ON AUGUST 21, 1951, OR 82 MILES AT $0.06 PER MILE, $4.92. ACCORDINGLY, YOU WERE OVERPAID THE SUM OF $138 - $142.92 LESS $4.92.

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. SATTON CHEMICAL COMPANY, 11 FED. 2D, 24, AND OTHER CASES COLLECTED AND DISCUSSED IN 63 A. L. R. 1346.

SINCE OUR REVIEW OF THE RECORDS SUSTAINS THE CONCLUSION THAT YOU ARE INDEBTED TO THE UNITED STATES IN THE SUM OF $138, 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 TO Z-1072358. THIS REQUEST IS MADE UNDER AUTHORITY CONTAINED IN 31 U.S.C. 71.

RESPECTING YOUR REQUEST FOR A COPY OF THE DIRECTIVE AUTHORIZING PAYMENT OF THE FUNDS TO YOU IN THE FIRST INSTANCE, YOU ARE ADVISED THAT WE ARE NOT AWARE OF THE EXISTENCE OF ANY SUCH AN ADMINISTRATIVE DIRECTIVE.