B-140507, DEC. 1, 1959

B-140507, DEC. 1, 1959

TO MR. BILL E. FRAZIER:

REFERENCE IS MADE TO YOUR LETTER OF JULY 28, 1959, TO THIS OFFICE, AND YOUR LETTER OF OCTOBER 1, 1958, TO THE U.S. ARMY FINANCE CENTER, WHICH WAS FORWARDED HERE, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $135.01 ON ACCOUNT OF ERRONEOUS PAYMENT OF PAY AND SUBSISTENCE ALLOWANCE FOR MAY 6 AND 7, 1955 ($18.01), AND THE ERRONEOUS PAYMENT OF PER DIEM FROM AUGUST 6 TO AUGUST 18, 1955 ($117), INCIDENT TO YOUR SERVICE AS A COMMISSIONED OFFICER IN THE UNITED STATES ARMY. THE MATTER OF YOUR INDEBTEDNESS WAS REPORTED TO US BY THE DEPARTMENT OF THE ARMY FOR COLLECTION ACTION.

WHILE YOU APPARENTLY CONCEDE THE CORRECTNESS OF THE CHARGE OF $18.01 AGAINST YOU AS THE RESULT OF AN ERRONEOUS PAYMENT OF PAY AND SUBSISTENCE ALLOWANCE FOR TWO DAYS EXCESS TRAVEL TIME INCIDENT TO YOUR REPORTING FOR ACTIVE DUTY, YOU REQUEST AN EXPLANATION OF THE BASIS OF THAT PORTION OF YOUR INDEBTEDNESS REPRESENTING ERRONEOUS PAYMENT OF PER DIEM, BASED ON THE RULING "THAT PAYMENT OF PER DIEM ALLOWANCE IS NOT AUTHORIZED FOR DUTY PERFORMED WITHIN THE LIMITS OF A PERMANENT DUTY STATION.' APPARENTLY, YOU REFER TO OUR DECISION OF JUNE 8, 1955, B-122508.

IT APPEARS FROM THE RECORD, THAT WHILE YOU WERE ON TEMPORARY DUTY AT FORT BELVOIR, VIRGINIA, ATTENDING THE ENGINEER SCHOOL, YOU RECEIVED DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 154, DATED AUGUST 4, 1955, DESIGNATING FORT BELVOIR AS YOUR PERMANENT DUTY STATION, EFFECTIVE UPON COMPLETION OF PRESENT COURSE OF INSTRUCTION. YOU WERE PAID PER DIEM FOR THE PERIOD AUGUST 6 UNTIL AUGUST 19, 1955, WHICH APPARENTLY WAS THE DATE OF COMPLETION OF YOUR COURSE OF INSTRUCTION. YOU SAY THAT YOUR COST OF LIVING EXPENSES WERE NECESSARILY HIGHER BECAUSE OF YOUR TEMPORARY DUTY ASSIGNMENT AND THAT SUCH COSTS CONTINUED UNTIL AUGUST 19, 1955.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AUTHORIZES THE PAYMENT OF PER DIEM AND OTHER TRAVEL ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES ONLY FOR PERIODS "WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY.' CONSEQUENTLY, IRRESPECTIVE OF ANY OTHER CONSIDERATION, NO AUTHORITY EXISTS FOR THE PAYMENT OF THOSE ALLOWANCES INCIDENT TO THE PERFORMANCE OF TEMPORARY DUTY UNLESS IT IS PERFORMED AT A POINT REMOVED FROM THE MEMBER'S DESIGNATED POST OF DUTY OR PERMANENT DUTY STATION. PARAGRAPH 1150-10 OF THE JOINT TRAVEL REGULATIONS DEFINES THE TERM "PERMANENT STATION" AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY. IS THE STATION OF HIS BASIC DUTY ASSIGNMENT AND THE PLACE TO WHICH HE MUST REPORT FOR THE ASSUMPTION OF HIS REGULAR DUTIES UPON THE COMPLETION OF A TEMPORARY DUTY ASSIGNMENT OR OTHER ABSENCE FROM HIS REGULAR DUTIES. WHEN YOU RECEIVED YOUR ORDERS OF AUGUST 4, 1955, ASSIGNING YOU TO DUTY AT FORT BELVOIR UPON THE COMPLETION OF YOUR TEMPORARY DUTY, FORT BELVOIR IMMEDIATELY BECAME YOUR PERMANENT DUTY STATION WITHIN THE CONTEMPLATION OF THOSE REGULATIONS, SINCE THAT PLACE WAS THEN DESIGNATED AS THE POST OF DUTY TO WHICH YOU WERE TO REPORT UPON COMPLETION OF THE COURSE OF INSTRUCTION. YOU THEN WERE ABLE TO MAKE THE SAME ARRANGEMENTS FOR PERMANENT LIVING ACCOMMODATIONS AS OTHER OFFICERS ASSIGNED TO DUTY AT THAT PLACE. CONSEQUENTLY, NO AUTHORITY EXISTED TO PAY YOU PER DIEM AT THAT STATION AFTER YOU RECEIVED THE ORDERS OF AUGUST 4 EVEN THOUGH YOU MAY HAVE CONTINUED THEREAFTER TO PERFORM THE SAME DUTIES YOU PREVIOUSLY HAD BEEN PERFORMING THERE.

WITH RESPECT TO OUR DECISION OF JUNE 8, 1955, B-122508, IT SHOULD BE POINTED OUT THAT SUCH DECISION DID NOT ESTABLISH A NEW RULE. ITS PURPOSE WAS TO CALL TO THE ATTENTION OF THE SECRETARY OF DEFENSE THE FACT THAT PART OF THE THEN EXISTING REGULATIONS (PROVIDING THAT A MEMBER AT A TEMPORARY STATION WHO RECEIVES PERMANENT CHANGE OF STATION ORDERS DESIGNATING THE TEMPORARY STATION AS HIS PERMANENT STATION EFFECTIVE ON A FUTURE DATE IS ENTITLED TO PER DIEM UNTIL SUCH EFFECTIVE DATE) WAS WITHOUT AUTHORITY UNDER THE LAW, AND TO SUGGEST ITS CORRECTION. IN RESPONSE TO THAT SUGGESTION SUCH REGULATION WAS CHANGED TO PROVIDE THAT PAYMENT OF PER DIEM IS NOT AUTHORIZED UNDER CIRCUMSTANCES SUCH AS THOSE INVOLVED IN YOUR CASE. SEE CHANGE NO. 38 TO PARAGRAPH 4209 OF THE JOINT TRAVEL REGULATIONS, DATED SEPTEMBER 1, 1955.

WHILE, AS YOU STATE, YOU MAY HAVE RECEIVED THE ERRONEOUS PAYMENT INVOLVED IN GOOD FAITH, 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; UNITED STATES V. SUTTON CHEMICAL COMPANY, 11 F.2D 24; WISCONSIN CENTRAL RAILROAD V. UNITED STATES, 164 U.S. 190, AND UNITED STATES V. BENTLEY, 107 F.2D 382.

CONCERNING YOUR CLAIM FOR BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD AUGUST 6 TO 18, 1955, IT IS NOTED THAT YOUR PAY RECORD SHOWS PAYMENT OF SUCH ALLOWANCE COMMENCING AUGUST 19, 1955, ON THE BASIS OF PARAGRAPH 1 OF BILLETING ORDERS DATED AUGUST 26, 1955, CONFIRMING TERMINATION OF ASSIGNMENT OF BACHELOR OFFICER QUARTERS TO YOU EFFECTIVE AUGUST 19, 1955. PAYMENT OF BASIC ALLOWANCE FOR QUARTERS IS NOT AUTHORIZED FOR PERIODS A MEMBER IS ASSIGNED GOVERNMENT QUARTERS. YOU STATE THAT BACHELOR OFFICER QUARTERS WERE NOT AVAILABLE FOR ASSIGNMENT AT FORT BELVOIR AND THE FACT THAT YOU WERE PAID PER DIEM AT THE RATE OF $9 PER DAY--- THE RATE PAYABLE AT A STATION WHERE NEITHER GOVERNMENT QUARTERS NOR MESS IS AVAILABLE--- LENDS SOME SUPPORT TO YOUR STATEMENT. HOWEVER, IF YOU HAD NOT BEEN ASSIGNED GOVERNMENT QUARTERS, IT WOULD APPEAR THAT PARAGRAPH 1 OF THE ORDERS OF AUGUST 26 WOULD NOT HAVE BEEN ISSUED--- THE BACHELOR OFFICER QUARTERS ASSIGNMENTS OF 28 OTHER STUDENT OFFICERS WERE TERMINATED BY PARAGRAPH 2 OF SUCH ORDERS, THUS INDICATING THAT BACHELOR OFFICER QUARTERS WERE AVAILABLE AT FORT BELVOIR--- AND YOU WOULD HAVE BEEN PAID A BASIC ALLOWANCE FOR QUARTERS FROM THE TIME OF YOUR ENTRY ON ACTIVE DUTY.

IN AN ATTEMPT TO CLARIFY THE MATTER, A REPORT WAS REQUESTED FROM THE COMMANDING OFFICER AT FORT BELVOIR. REPLY OF AUGUST 18, 1959, STATED THAT NO OTHER INFORMATION WAS AVAILABLE AT THAT PLACE. IN THE CIRCUMSTANCES, IT CANNOT BE CONCLUDED THAT YOU ARE INDEBTED TO THE GOVERNMENT SINCE A POSSIBILITY EXISTS THAT YOU ARE ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS IN AN AMOUNT IN EXCESS OF $135.01. ON THE OTHER HAND, NO ADDITIONAL AMOUNT AS BASIC ALLOWANCE FOR QUARTERS MAY BE ALLOWED, SINCE IT CANNOT BE ESTABLISHED THAT GOVERNMENT QUARTERS WERE NOT ASSIGNED TO YOU. ACCORDINGLY, INSTRUCTIONS ARE BEING ISSUED TO REMOVE THE DEBT CHARGE AGAINST YOU.