B-141669, APR. 21, 1960

B-141669: Apr 21, 1960

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HURST: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 17. THE MATTER OF YOUR INDEBTEDNESS WAS REPORTED TO OUR OFFICE FOR COLLECTION ACTION BY THE DEPARTMENT OF THE ARMY. THE BASIS OF YOUR INDEBTEDNESS WAS EXPLAINED TO YOU IN DETAIL IN OUR LETTER OF OCTOBER 28. WE HAVE BEEN INFORMED BY DEAN RAYMOND J. THAT YOUR DATES OF ATTENDANCE WHILE A STUDENT AT THAT COLLEGE WERE AS FOLLOWS: TABLE FRESHMAN YEAR SEPTEMBER 1950 TO JUNE 1951 SOPHOMORE YEAR SEPTEMBER 1951 TO JUNE 1952 SOPHOMORE YEAR SEPTEMBER 1952 TO JUNE 1953 JUNIOR YEAR SEPTEMBER 1953 TO JUNE 1954 SENIOR YEAR SEPTEMBER 1954 TO JUNE 1955 DEAN NAGLE ALSO REPORTS THAT IT WAS NECESSARY FOR YOU TO REPEAT THE SOPHOMORE YEAR. WE HELD (IN ANSWER TO QUESTION 8) THAT A DENTAL OFFICER IS ENTITLED.

B-141669, APR. 21, 1960

TO DR. STANLEY D. HURST:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 17, 1959, CONCERNING YOUR INDEBTEDNESS OF $410.23 TO THE UNITED STATES, REPRESENTING OVERPAYMENT OF PAY (LONGEVITY) AND ALSO OF PAY AND ALLOWANCES INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY.

THE MATTER OF YOUR INDEBTEDNESS WAS REPORTED TO OUR OFFICE FOR COLLECTION ACTION BY THE DEPARTMENT OF THE ARMY, AND AFTER CORRESPONDENCE WITH YOU AND EXAMINATION OF YOUR RECORDS, THE BASIS OF YOUR INDEBTEDNESS WAS EXPLAINED TO YOU IN DETAIL IN OUR LETTER OF OCTOBER 28, 1959, ADDRESSED TO YOUR REPRESENTATIVE, MISS SARAH F. BISBEE OF THE CHEMUNG COUNTY VETERANS OFFICE. AS WE EXPLAINED IN THAT LETTER, THAT PART OF YOUR INDEBTEDNESS RESULTING FROM AN ERRONEOUS CREDIT OF SERVICE FOR LONGEVITY PAY PURPOSES AROSE BECAUSE OF FAILURE TO MAKE PROPER DEDUCTIONS FROM YOUR FOUR YEARS OF CONSTRUCTIVE SERVICE THE PERIOD OF YOUR CONCURRENT MEMBERSHIP IN THE ARMY ENLISTED RESERVE THE PERIOD OF YOUR CONCURRENT MEMBERSHIP IN THE ARMY ENLISTED RESERVE CORPS WHILE ATTENDING DENTAL SCHOOL. WE HAVE BEEN INFORMED BY DEAN RAYMOND J. NAGLE OF THE NEW YORK UNIVERSITY, COLLEGE OF DENTISTRY, THAT YOUR DATES OF ATTENDANCE WHILE A STUDENT AT THAT COLLEGE WERE AS FOLLOWS: TABLE

FRESHMAN YEAR SEPTEMBER 1950 TO JUNE 1951

SOPHOMORE YEAR SEPTEMBER 1951 TO JUNE 1952

SOPHOMORE YEAR SEPTEMBER 1952 TO JUNE 1953

JUNIOR YEAR SEPTEMBER 1953 TO JUNE 1954

SENIOR YEAR SEPTEMBER 1954 TO JUNE 1955

DEAN NAGLE ALSO REPORTS THAT IT WAS NECESSARY FOR YOU TO REPEAT THE SOPHOMORE YEAR.

IN OUR DECISION OF AUGUST 23, 1956, 36 COMP. GEN. 146, WE CONSIDERED THE PROVISIONS OF SECTION 202 (A) (7) OF THE CAREER COMPENSATION ACT OF 1949, AS ADDED BY SECTION 2 OF THE ACT OF APRIL 30, 1956, 70 STAT. 121, WHICH AUTHORIZE AN ADDITIONAL (CONSTRUCTIVE) SERVICE CREDIT OF FOUR YEARS FOR MEDICAL AND DENTAL OFFICERS OF THE UNIFORMED SERVICES, BUT REQUIRES THAT SUCH SERVICE CREDIT SHALL BE REDUCED BY THE AMOUNT OF ANY SERVICE OTHERWISE CREDITED UNDER THAT SECTION WHICH COVERS ANY PART OF THE PERIOD OF THE OFFICER'S PROFESSIONAL EDUCATION. WE HELD (IN ANSWER TO QUESTION 8) THAT A DENTAL OFFICER IS ENTITLED, UNDER AUTHORITY OF SECTION 202 (A) (7) OF THE 1949 LAW, AS AMENDED, TO A CONSTRUCTIVE SERVICE CREDIT OF FOUR YEARS WITHOUT REGARD TO THE ACTUAL PERIOD WHEN THE DENTAL OFFICER HAS ATTENDED DENTAL SCHOOL. THUS, WHETHER THE ACTUAL PERIOD OF ATTENDANCE AT DENTAL SCHOOL WAS MORE OR LESS THAN FOUR YEARS, THE CONSTRUCTIVE SERVICE CREDIT OF FOUR YEARS IS REQUIRED TO BE REDUCED BY THE AMOUNT OF ANY SERVICE OTHERWISE CREDITABLE TO THE DENTAL OFFICER CONCERNED UNDER AUTHORITY OF SECTION 202 (A) OF THE 1949 LAW, 63 STAT. 807, WHICH COVERS ANY PART OF THE ACTUAL PERIOD OF THE OFFICER'S PROFESSIONAL EDUCATION. EXCEPTION IS PROVIDED FOR A SITUATION WHERE A PERIOD OF ATTENDANCE MUST BE REPEATED. SINCE YOUR CONSTRUCTIVE SERVICE WAS NOT REDUCED BECAUSE OF YOUR CONCURRENT ENLISTED RESERVE SERVICE FROM SEPTEMBER 14, 1950, TO JUNE 20, 1952, YOU WERE ERRONEOUSLY CREDITED FOR PAY PURPOSES WITH OVER EIGHT YEARS' SERVICE ON MAY 1, 1956, RATHER THAN APRIL 5, 1957. AS A RESULT OF SUCH ERRONEOUS CREDIT OF SERVICE, YOU WERE OVERPAID THE AMOUNT OF $385.58.

REGARDING THAT PART OF YOUR INDEBTEDNESS REPRESENTING AN ERRONEOUS PAYMENT OF PAY AND SUBSISTENCE ALLOWANCE FOR THE PERIOD FROM JULY 1 TO JULY 5, 1955, THE RECORD SHOWS THAT INCIDENT TO SPECIAL ORDERS NO. 121, HEADQUARTERS FIRST ARMY, DATED JUNE 24, 1955, YOU WERE TO REPORT TO FORT SAM HOUSTON, TEXAS, NOT LATER THAN JULY 7, 1955, WITH TRAVEL BY PRIVATE AUTOMOBILE AUTHORIZED. YOUR TRAVEL VOUCHER NO. 1804, JULY 1955 ACCOUNTS OF CAPTAIN J. E. GRAHAM, SHOWS THAT YOU RECEIVED YOUR ORDERS AT BROOKLYN, NEW YORK, AND THAT ON JULY 6, 1955, YOU DEPARTED BROOKLYN AND ARRIVED AT FORT SAM HOUSTON ON THE SAME DATE. TRAVEL WAS PERFORMED BY COMMERCIAL AIR.

SECTION 201 (E) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807 (REDESIGNATED AS SECTION 201 (D) BY THE ACT OF MARCH 31, 1955, 69 STAT. 19), PROVIDES:

"* * * THAT IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT, IN THE CASE OF MEMBERS OF THE UNIFORMED SERVICES CALLED OR ORDERED TO EXTENDED ACTIVE DUTY IN EXCESS OF THIRTY DAYS, ACTIVE DUTY SHALL INCLUDE THE TIME REQUIRED TO PERFORM TRAVEL FROM HOME TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO HOME BY THE MODE OF TRANSPORTATION AUTHORIZED IN ORDERS FOR SUCH EMBERS: * * *"

EXECUTIVE ORDER NO. 10153, AUGUST 17, 1950, PRESCRIBING REGULATIONS UNDER THAT SECTION, PROVIDES THAT WHEN TRAVEL BY PRIVATELY OWNED CONVEYANCE IS SPECIFICALLY AUTHORIZED IN CONNECTION WITH REPORTING FOR ACTIVE DUTY, AND TRAVEL IS SO PERFORMED, THE TRAVEL TIME TO BE INCLUDED AS ACTIVE DUTY SHALL BE COMPUTED ON THE BASIS OF ONE DAY FOR EACH 300 MILES TRAVELED, AND ONE DAY FOR EACH FRACTION OF 300 MILES IN EXCESS OF 150 MILES TRAVELED. IT FURTHER PROVIDES THAT THE SECRETARIES CONCERNED MAY PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS AS THEY MAY DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT SUCH REGULATIONS. PARAGRAPH 9 (B) (1), CHANGE NO. 2, ARMY REGULATIONS 35 1320, DATED FEBRUARY 25, 1954, PROVIDES THAT THE PAY AND ALLOWANCES OF COMMISSIONED OFFICERS OF THE ARMY RESERVE "COMMENCE ON THE DAY THEY OFFICIALLY AND NECESSARILY BEGIN TO COMPLY WITH THE ORDERS CALLING THEM TO ACTIVE DUTY.' PARAGRAPH 9 (G) OF THE SAME REGULATION FURTHER PROVIDES IN PERTINENT PART THAT "WHEN AN OFFICER TRAVELS BY AIRPLANE HE IS NOT ENTITLED TO PAY AND ALLOWANCES FOR ANY PERIOD PRIOR TO THE TIME HE ACTUALLY COMMENCES THE TRAVEL.' CONSEQUENTLY, YOUR ACTIVE DUTY STATUS FOR PAY PURPOSES COMMENCED ON JULY 6, 1955, THE DAY YOU COMMENCED TRAVEL, AND YOU WERE ERRONEOUSLY PAID PAY AND ALLOWANCES FOR THE PERIOD JULY 1 TO JULY 5, 1955, RESULTING IN AN ADDITIONAL INDEBTEDNESS OF $24.65 WHICH, COMBINED WITH YOUR INDEBTEDNESS OF $385.58, RESULTS IN THE TOTAL DEBT DUE THE UNITED STATES OF $410.23. THE FACT THAT YOU MAY HAVE VACATED YOUR QUARTERS IN BROOKLYN ON JULY 1, 1955, IS IMMATERIAL SINCE YOU DID NOT COMMENCE TRAVEL TO YOUR DUTY STATION UNTIL JULY 6. IN YOUR CURRENT LETTER YOU STATE THAT "SINCE AN HONEST DIFFERENCE OF OPINION CONCERNING THIS INDEBTEDNESS HAS ARISEN BETWEEN MYSELF AND YOUR OFFICE, THERE SEEMS TO BE NO ALTERNATIVE BUT FURTHER JUDICATION BY AN APPROPRIATE GOVERNMENT AGENCY.'

THERE APPEARS TO BE NO DISPUTE THAT THE PAYMENTS IN QUESTION WERE ERRONEOUSLY MADE BY THE DISBURSING OFFICER CONCERNED, AND IT IS WELL SETTLED THAT THE UNITED STATES IS NOT BOUND OR ESTOPPED BY AN ERRONEOUS PAYMENT MADE BY ITS OFFICERS WITH OR WITHOUT JURISDICTION AND WHETHER MADE UNDER MISTAKE OF FACT OR MISTAKE OF LAW. SEE UNITED STATES V. WURTS, 303 U.S. 414; WISCONSIN CENTRAL RAILROAD V. UNITED STATES, 164 U.S. 190; CASES DISCUSSED IN UNITED STATES V. SUTTON CHEMICAL COMPANY, 11 F.2D 24; HEIDT V. UNITED STATES, 46 F.2D 499. ALSO, SEE UNITED STATES V. NORTHWESTERN NATIONAL BANK AND TRUST COMPANY OF MINNEAPOLIS, 35 F.SUPP. 484, 486, WHERE IT WAS HELD THE RECIPIENT OF MONEY PAID THROUGH MISTAKE, IN EQUITY MUST MAKE RESTITUTION, THE THEORY BEING THAT THE RESTITUTION RESULTS IN NO LOSS TO THE RECIPIENT, SINCE HE MERELY RECEIVED SOMETHING FOR NOTHING. YOUR ATTENTION IS ALSO DIRECTED TO SECTION 236 OF THE REVISED STATUTES, 31 U.S.C. 71, WHICH PROVIDES AS FOLLOWS:

"ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED STATES OR AGAINST IT, AND ALL ACCOUNTS WHATEVER IN WHICH THE GOVERNMENT OF THE UNITED STATES IS CONCERNED, EITHER AS DEBTOR OR CREDITOR, SHALL BE SETTLED AND ADJUSTED IN THE GENERAL ACCOUNTING OFFICE.'

ACCORDINGLY, YOU ARE AGAIN REQUESTED TO REMIT THE SUM OF $410.23 WHICH SHOULD BE MADE PAYABLE TO THE "U.S. GENERAL ACCOUNTING OFFICE," AND SHOULD BE MAILED TO THE U.S. GENERAL ACCOUNTING OFFICE, BOX 2610, WASHINGTON 13, D.C., REFERRING TO CLAIM Z1-938-531.