B-138623, NOV. 6, 1959

B-138623: Nov 6, 1959

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MUNNS: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 9. WHICH WAS RELEASED BY OUR OFFICE ON TRANSMITTAL NO. 50857. IN WHICH YOU WERE ERRONEOUSLY ALLOWED PER DIEM WHILE YOU WERE ON DEPLOYMENT DUTY WITH COMPOSITE SQUADRON THIRTY-FIVE (VC-35) AT THE NAVAL AUXILIARY AIR STATION. WHICH WERE STATED IN A LETTER DATED JULY 10. SINCE YOU WERE PAID THIS MONEY AFTER WE CERTIFIED THE SETTLEMENT FOR PAYMENT. SUCH AS IS INVOLVED IN THE SERIES OF ORDERS ISSUED TO YOUR SQUADRON AT THE NAVAL AIR STATION. ORIGINALLY WAS NOT REGARDED. WAS. THAT PER DIEM WAS AUTHORIZED IN SUCH CASES. THERE WAS NOT COMPLETE UNANIMITY OF OPINION WITHIN THE DEPARTMENT OF THE NAVY AS TO THE NATURE OF THE DUTY PERFORMED BY MEMBERS OF UNITS DEPLOYED AWAY FROM PERMANENT DUTY STATIONS WITH THE RESULT THAT UNDER DATE OF JUNE 4.

B-138623, NOV. 6, 1959

TO LIEUTENANT COMMANDER DAVID L. MUNNS:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 9, 1959, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $140.75. THIS INDEBTEDNESS AROSE AS A RESULT OF OUR SETTLEMENT IN YOUR FAVOR, WHICH WAS RELEASED BY OUR OFFICE ON TRANSMITTAL NO. 50857, DATED JUNE 18, 1957, IN WHICH YOU WERE ERRONEOUSLY ALLOWED PER DIEM WHILE YOU WERE ON DEPLOYMENT DUTY WITH COMPOSITE SQUADRON THIRTY-FIVE (VC-35) AT THE NAVAL AUXILIARY AIR STATION, EL CENTRO, CALIFORNIA. THE FACTS OF THE MATTER, WHICH WERE STATED IN A LETTER DATED JULY 10, 1959, FROM OUR CLAIMS DIVISION TO THE SECRETARY OF THE NAVY, NEED NOT BE REPEATED HERE SINCE YOU RECEIVED A COPY OF THAT LETTER FROM THE CHIEF OF NAVAL PERSONNEL.

IN YOUR LETTER YOU CONTEND THAT THE DEPLOYMENT DUTY INVOLVED SHOULD BE CONSIDERED TEMPORARY DUTY BECAUSE IT REQUIRED YOU TO REMAIN AWAY FROM YOUR PERMANENT DUTY STATION FOR FOUR OR FIVE NIGHTS AT A TIME WITH THE RESULT THAT YOU INCURRED ADDITIONAL EXPENSES FOR WHICH YOU SHOULD BE ALLOWED PER DIEM. YOU ALSO QUESTION OUR AUTHORITY TO REVISE THE SETTLEMENT OF JUNE 18, 1957, AND MAKE YOU INDEBTED TO THE UNITED STATES FOR THE SUM OF $140.75, SINCE YOU WERE PAID THIS MONEY AFTER WE CERTIFIED THE SETTLEMENT FOR PAYMENT.

EMPLOYMENT DUTY, SUCH AS IS INVOLVED IN THE SERIES OF ORDERS ISSUED TO YOUR SQUADRON AT THE NAVAL AIR STATION, SAN DIEGO, CALIFORNIA, SEPTEMBER 8, 1954, TO FEBRUARY 4, 1955, ORIGINALLY WAS NOT REGARDED, EITHER HERE OR IN THE NAVY DEPARTMENT, AS ENTITLING PERSONNEL SO ASSIGNED TO PER DIEM IRRESPECTIVE OF ANY PROVISIONS IN THE ORDERS CONCERNING PER DIEM. SUBSEQUENTLY, UPON REPRESENTATIONS BY THE NAVY DEPARTMENT, MADE IN CONNECTION WITH THE CLAIM OF COMMANDER GEORGE CORNELIUS FOR PER DIEM WHILE ON DEPLOYMENT DUTY, THAT THE DUTY INVOLVED, WAS, IN FACT, DUTY OF A NATURE FOR WHICH PER DIEM SHOULD BE PAID, WE HELD IN OUR DECISION OF DECEMBER 9, 1954, 34 COMP. GEN. 284, REFERRED TO IN YOUR LETTER, THAT PER DIEM WAS AUTHORIZED IN SUCH CASES. HOWEVER, NOTWITHSTANDING THE EARLIER REPRESENTATIONS MADE ON BEHALF OF COMMANDER CORNELIUS, THERE WAS NOT COMPLETE UNANIMITY OF OPINION WITHIN THE DEPARTMENT OF THE NAVY AS TO THE NATURE OF THE DUTY PERFORMED BY MEMBERS OF UNITS DEPLOYED AWAY FROM PERMANENT DUTY STATIONS WITH THE RESULT THAT UNDER DATE OF JUNE 4, 1956, THE SECRETARY OF THE NAVY ISSUED SECNAV INSTRUCTION 7220.19. THE STATED PURPOSE OF THIS INSTRUCTION WAS TO CLARIFY THE NAVY DEPARTMENT'S POLICY IN REGARD TO THE ISSUANCE OF TEMPORARY ADDITIONAL DUTY ORDERS AUTHORIZING PAYMENT OF PER DIEM TO MEMBERS OF A MOBILE UNIT WHEN DEPLOYED AT A PLACE AWAY FROM THE PERMANENT DUTY STATION DESIGNATED FOR THAT UNIT. THE INSTRUCTION PROVIDED, AMONG OTHER THINGS, THAT MEMBERS CURRENTLY DEPLOYED WHO HAD NOT BEEN ISSUED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS WOULD BE ISSUED PROPER CONFIRMATORY ORDERS, AND THAT MEMBERS WHO HAD COMPLETED A PERIOD OF TEMPORARY DUTY AND WHO, PRIOR TO RECEIPT OF THE SECNAV INSTRUCTION, WERE ISSUED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS WOULD BE PAID THE APPROPRIATE PER DIEM ALLOWANCE.

PARAGRAPH 6D OF THE INSTRUCTION PROVIDED THAT MEMBERS WHO HAD COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY FOR WHICH THE REQUIRED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS HAD NOT BEEN ISSUED PRIOR TO THE DATE OF THE INSTRUCTION WOULD NOT BE ISSUED CONFIRMING ORDERS. SINCE THE DEPLOYMENT DUTY PERFORMED BY YOU FALLS WITHIN THE COVERAGE OF PARAGRAPH 6D, ISSUANCE OF CONFIRMATORY ORDERS WAS PRECLUDED IN YOUR CASE. IN VIEW OF THE SECNAV INSTRUCTION OF JUNE 4, 1956, WHICH RECOGNIZED THAT DEPLOYMENT DUTY WAS PERFORMED UNDER SEVERAL KINDS OF ORDERS, BUT AUTHORIZED PER DIEM ONLY WHERE IT WAS DIRECTED IN TEMPORARY DUTY ORDERS AS DEFINED IN PARAGRAPH 3000-3003, JOINT TRAVEL REGULATIONS, IT IS CLEAR THAT YOUR CLAIM FOR PAYMENT OF PER DIEM ALLOWANCES UNDER THE DEPLOYMENT ORDERS SHOULD HAVE BEEN DISALLOWED, AND THAT OUR SETTLEMENT OF JUNE 18, 1957, WAS ERRONEOUS. THEREFORE, WE HAD NO RECOURSE OTHER THAN TO REQUIRE YOU TO REPAY THE AMOUNT INVOLVED TO THE UNITED STATES.

CONCERNING YOUR CONTENTION THAT WE DO NOT HAVE AUTHORITY TO REVISE A SETTLEMENT WHICH WE HAVE CERTIFIED FOR PAYMENT, YOU ARE ADVISED THAT, IN ACCORDANCE WITH SETTLED PRECEDENTS OF MANY YEARS' STANDING, THE AUTHORITY OF THE COMPTROLLER GENERAL TO REVISE A SETTLEMENT OF A CLAIM BY THIS OFFICE IS INHERENT, AND IS DERIVED FROM THE STATUTORY MANDATE TO SETTLE AND ADJUST ALL CLAIMS BY OR AGAINST THE UNITED STATES, AS DIRECTED BY SECTION 236 OF THE REVISED STATUTES, AS AMENDED, 31 U.S.C. 71. MOREOVER, THE COURTS OF THE UNITED STATES DEFINITELY HAVE ESTABLISHED THE RULE THAT MONEY PAID OUT ON AN ERRONEOUS DETERMINATION OF LAW BY OFFICERS OF THE GOVERNMENT MAY BE RECOVERED FROM THE RECIPIENT. SEE 22 COMP. GEN. 952 AND THE AUTHORITIES THEREIN CITED. HENCE, THERE IS NO LEGAL BASIS FOR RELIEVING YOU OF YOUR RESPONSIBILITY FOR MAKING REFUND OF THE ERRONEOUS PAYMENT.

ACCORDINGLY, YOU ARE REQUESTED TO PROMPTLY REMIT TO THIS OFFICE THE AMOUNT OF THE ERRONEOUS PAYMENT ($140.75). PAYMENT SHOULD BE MADE BY CHECK OR MONEY ORDER PAYABLE TO "U.S. GENERAL ACCOUNTING OFFICE" AND SHOULD BE MAILED TO THE UNITED STATES GENERAL ACCOUNTING OFFICE, POST OFFICE BOX 2610, WASHINGTON, D.C. ..END :