B-141845, MAR. 16, 1960

B-141845: Mar 16, 1960

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LIEBMAN: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 26. REQUESTING FURTHER INFORMATION RELATIVE TO YOUR INDEBTEDNESS TO THE UNITED STATES ON ACCOUNT OF EXCESS LEAVE TAKEN DURING THE PERIOD YOU WERE ON ACTIVE DUTY AS A MEMBER OF THE ARMY OF THE UNITED STATES. THE RECORD SHOWS THAT DURING THE PERIOD YOU WERE ON ACTIVE DUTY JUNE 25. IN A PRIOR LETTER YOU STATED THAT 68 DAYS' LEAVE WAS EMERGENCY LEAVE WHICH YOU THOUGHT WAS NOT CHARGEABLE AS REGULAR LEAVE AND APPARENTLY THE ADMINISTRATIVE OFFICE ERRONEOUSLY COMPUTED YOUR LEAVE ON THAT BASIS. INASMUCH AS THE RECORD SHOWS THAT SHORTLY PRIOR TO YOUR SEPARATION YOU WERE GRANTED 20 DAYS' LEAVE AND AT YOUR SEPARATION YOU WERE PAID FOR 15 DAYS' ACCRUED LEAVE.

B-141845, MAR. 16, 1960

TO MR. NORMAN S. LIEBMAN:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 26, 1959, REQUESTING FURTHER INFORMATION RELATIVE TO YOUR INDEBTEDNESS TO THE UNITED STATES ON ACCOUNT OF EXCESS LEAVE TAKEN DURING THE PERIOD YOU WERE ON ACTIVE DUTY AS A MEMBER OF THE ARMY OF THE UNITED STATES, US 51 257 588.

THE RECORD SHOWS THAT DURING THE PERIOD YOU WERE ON ACTIVE DUTY JUNE 25, 1953, TO MAY 25, 1955, YOU ACCRUED 58 DAYS' LEAVE AND YOU USED 103 DAYS RESULTING IN 45 DAYS' EXCESS LEAVE. IN A PRIOR LETTER YOU STATED THAT 68 DAYS' LEAVE WAS EMERGENCY LEAVE WHICH YOU THOUGHT WAS NOT CHARGEABLE AS REGULAR LEAVE AND APPARENTLY THE ADMINISTRATIVE OFFICE ERRONEOUSLY COMPUTED YOUR LEAVE ON THAT BASIS, INASMUCH AS THE RECORD SHOWS THAT SHORTLY PRIOR TO YOUR SEPARATION YOU WERE GRANTED 20 DAYS' LEAVE AND AT YOUR SEPARATION YOU WERE PAID FOR 15 DAYS' ACCRUED LEAVE. HOWEVER, YOU APPARENTLY NOW CONCEDE THAT EMERGENCY LEAVE IS PROPERLY CHARGEABLE AS REGULAR LEAVE AND THAT THE EXCESS LEAVE COMPUTATION WAS PROPER, BUT YOU QUESTION THE CHARGE FOR THE LAST 20 DAYS' LEAVE SINCE YOU SAY THE ARMY ORDERED SUCH LEAVE AS AN ECONOMY MEASURE AND YOU HAD NO CHOICE IN THE MATTER. YOU REQUEST FURTHER, WHETHER A RECENT DECISION BY A DISTRICT COURT JUDGE AS REFERRED TO IN A LOCAL NEWSPAPER CLIPPING SENT BY YOU, MAY HAVE ANY BEARING ON YOUR STATUS AS A DEBTOR.

SECTION 3 OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, 37 U.S.C. 31A, PROVIDES, IN EFFECT, THAT EACH MEMBER OF THE ARMED FORCES SHALL BE ENTITLED TO LEAVE AT THE RATE OF TWO AND ONE-HALF CALENDAR DAYS FOR EACH MONTH OF ACTIVE SERVICE, EXCLUDING PERIODS OF (1) ABSENCE FROM DUTY WITHOUT LEAVE, (2) ABSENCE OVER LEAVE, AND (3) CONFINEMENT AS THE RESULT OF A SENTENCE OF COURT-MARTIAL. LEAVE MAY BE TAKEN ON A CALENDAR-DAY BASIS AS VACATION OR ABSENCE FROM DUTY WITH PAY, ANNUALLY, AS ACCRUING OR OTHERWISE, IN ACCORDANCE WITH REGULATIONS ISSUED BY THE SEVERAL SECRETARIES. SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT, 37 U.S.C. 33 (B), PROVIDES THAT WHEN THE SECRETARY CONCERNED AUTHORIZES A MEMBER TO BE ABSENT IN EXCESS OF THE NUMBER OF DAYS OF LEAVE AUTHORIZED, THAT MEMBER SHALL NOT BE ENTITLED TO ANY PAY OR ALLOWANCES DURING SUCH ABSENCE.

ARMY REGULATIONS 630-5, DATED SEPTEMBER 16, 1955, AND ITS PREDECESSOR ARMY REGULATIONS 600-15, SEPTEMBER 24, 1953, PROVIDES THAT EMERGENCY LEAVE SHALL BE CHARGEABLE TO ACCRUED LEAVE AND SUCH LEAVE IN EXCESS OF ACCRUED LEAVE MAY BE GRANTED AS EXCESS LEAVE. THE GRANTING OF LEAVE IS AN ADMINISTRATIVE MATTER AND WE HAVE NO INFORMATION OTHER THAN YOUR STATEMENT AS TO THE REASON WHY YOU WERE GRANTED 20 DAYS OF LEAVE IN APRIL 1955. HOWEVER, SINCE YOU ACTUALLY USED SUCH LEAVE, IT IS CHARGEABLE AGAINST YOUR ACCOUNT EVEN THOUGH IT MAY HAVE BEEN GRANTED BECAUSE OF AN ERROR IN YOUR LEAVE RECORD.

THE UNITED STATES IS NOT BOUND BY AN ERRONEOUS PAYMENT MADE THROUGH AN ADMINISTRATIVE ERROR OF ITS OFFICERS. SEE ROBERTSON V. SICHEL, 127 U.S. 507, 515; UNITED STATES V. SUTTON CHEMICAL COMPANY, 11 F.2D 24, AND UNITED STATES V. BENTLEY, 107 F.2D 382. PRESUMABLY THE LEAVE GRANTED YOU APRIL 4 -23, 1955, WOULD NOT HAVE BEEN AUTHORIZED ADMINISTRATIVELY HAD YOUR LEAVE BEEN CORRECTLY COMPUTED, BUT THE ERRONEOUS GRANTING OF SUCH LEAVE IN ADDITION TO THE EXCESS EMERGENCY LEAVE PREVIOUSLY GRANTED AND THE PAYMENT FOR 15 DAYS' ACCRUED LEAVE WHICH YOU RECEIVED AT DISCHARGE RESULTED IN YOUR RECEIVING AN ERRONEOUS PAYMENT WHICH, EVEN THOUGH RECEIVED IN GOOD FAITH, DID NOT RIGHTFULLY BELONG TO YOU. YOU ARE LIABLE IN EQUITY AND GOOD CONSCIENCE TO REFUND THE OVERPAYMENT.

WITH RESPECT TO THE SUIT BY THE UNITED STATES AGAINST ONE HORACE M. SMALL, TO RECLAIM AMOUNTS OVERPAID HIM BECAUSE OF FAILURE TO MAKE PROPER DEDUCTIONS FROM HIS MONTHLY PAY FOR FAMILY ALLOWANCE PAYMENTS TO HIS WIFE BETWEEN 1942 AND 1946, WHICH THE DISTRICT COURT JUDGE IS REPORTED TO HAVE DISMISSED FOR THE REASON THAT THE DELAY IN DEMANDING RESTITUTION AND INSTITUTING SUIT WAS UNREASONABLE AND INEXCUSABLE, IT MAY BE STATED THAT WHILE A DECISION OF A COURT OF COMPETENT JURISDICTION IS GIVEN FULL AND DUE CONSIDERATION, THE RECORD BEFORE US DOES NOT DISCLOSE THAT THE REPORTED ACTION BECAME A FINAL JUDGMENT IN THAT CASE. FURTHERMORE, THAT CASE INVOLVED A FAR LONGER PERIOD THAN IS INVOLVED IN YOUR CASE AND WAS BASED ON DIFFERENT STATUTORY PROVISIONS. HENCE, IT IS NOT CONSIDERED AS A CONTROLLING PRECEDENT IN THE DISPOSITION OF THE GOVERNMENT'S CLAIM AGAINST YOU. ALSO, IT IS A GENERAL PRINCIPLE OF PUBLIC POLICY THAT LACHES IS NOT IMPUTABLE TO THE GOVERNMENT. SEE UNITED STATES V. AMERICAN BELL TELEPHONE COMPANY, 167 U.S. 224, 264; E. I. DUPONT DENEMOURS AND CO. V. DAVIS, 264 U.S. 456, 462, AND UNITED STATES V. SUMMERLIN, 310 U.S. 414, 416.

ACCORDINGLY, WE HAVE NO RECOURSE OTHER THAN TO REAFFIRM OUR PREVIOUS ACTION IN THE MATTER. YOU ARE AGAIN REQUESTED TO REMIT THE SUM OF $277.58. CHECK OR MONEY ORDER FOR THAT SUM SHOULD BE MADE PAYABLE TO THE "U.S. GENERAL ACCOUNTING OFFICE" AND SHOULD BE ADDRESSED TO THE U.S. GENERAL ACCOUNTING OFFICE, BOX 2610, WASHINGTON 13, D.C. ..END :