B-142290, MAY 19, 1960

B-142290: May 19, 1960

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

REDFIELD: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 3. WHILE YOU WERE SERVING AS SECOND LIEUTENANT. YOUR LETTER WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF OUR CLAIMS DIVISION'S ACTION OF JANUARY 28. THE RECORD SHOWS THAT YOU WERE ON TEMPORARY DUTY UNDER INSTRUCTION AT FORT KNOX. YOU WERE ASSIGNED TO FORT KNOX FOR PERMANENT DUTY. ALTHOUGH ORDERS WERE RECEIVED AT FORTH KNOX ON MARCH 9. THE PAYMENTS WERE MADE ON VOUCHERS 818498 AND 820662 IN THE MARCH AND APRIL 1956 ACCOUNTS. LIKE ACTION WAS TAKEN IN SIMILAR CASES UNDER THE SAME ORDERS. AUTHORITY FOR THE PAYMENT OF PER DIEM TO MEMBERS OF THE UNFORMED SERVICES IS CONTAINED IN SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949. UNDER SUCH PROVISION OF LAW A RIGHT TO PER DIEM CANNOT ACCRUE TO A MEMBER UNLESS HE IS IN A TRAVEL STATUS AWAY FROM HIS DESIGNATED POST OF DUTY.

B-142290, MAY 19, 1960

TO MR. THOMAS H. REDFIELD:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 3, 1960, RELATIVE TO (1) YOUR INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $168 ARISING FROM AN OVERPAYMENT OF PER DIEM, AND (2) YOUR CLAIM FOR REIMBURSEMENT FOR YOUR WIFE'S TRAVEL FROM NEW YORK, NEW YORK, TO FULDA, GERMANY, WHILE YOU WERE SERVING AS SECOND LIEUTENANT, ARMY. YOUR LETTER WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF OUR CLAIMS DIVISION'S ACTION OF JANUARY 28, 1960, IN REQUESTING PAYMENT OF THE INDEBTEDNESS, AND THE SETTLEMENT OF JULY 30, 1959, WHICH DISALLOWED YOUR CLAIM.

WITH RESPECT TO YOUR INDEBTEDNESS TO THE UNITED STATES, THE RECORD SHOWS THAT YOU WERE ON TEMPORARY DUTY UNDER INSTRUCTION AT FORT KNOX, KENTUCKY, WHEN BY DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 46, DATED MARCH 6, 1956, YOU WERE ASSIGNED TO FORT KNOX FOR PERMANENT DUTY. ALTHOUGH ORDERS WERE RECEIVED AT FORTH KNOX ON MARCH 9, 1956, YOU CONTINUED TO RECEIVE PER DIEM AT THE RATE OF $4 UNTIL APRIL 19, 1956. THE PAYMENTS WERE MADE ON VOUCHERS 818498 AND 820662 IN THE MARCH AND APRIL 1956 ACCOUNTS, RESPECTIVELY, OF LIEUTENANT COLONEL P. W. HERBST. UPON AUDIT OF THE DISBURSING OFFICER'S ACCOUNTS WE TOOK EXCEPTION TO THE PAYMENT OF PER DIEM FOR THE PERIOD MARCH 9 TO APRIL 19, 1956, A TOTAL OF $168. LIKE ACTION WAS TAKEN IN SIMILAR CASES UNDER THE SAME ORDERS. IN YOUR PRESENT LETTER YOU SAY YOU ACCEPTED THE PAYMENTS IN GOOD FAITH, AND REQUEST THAT YOU BE FURNISHED COPIES OF THE PERTINENT REGULATIONS AND YOUR PAY RECORDS.

AUTHORITY FOR THE PAYMENT OF PER DIEM TO MEMBERS OF THE UNFORMED SERVICES IS CONTAINED IN SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (A), WHICH PROVIDES 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 CHANGE OF STATION OR OTHERWISE,"OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY.' UNDER SUCH PROVISION OF LAW A RIGHT TO PER DIEM CANNOT ACCRUE TO A MEMBER UNLESS HE IS IN A TRAVEL STATUS AWAY FROM HIS DESIGNATED POST OF DUTY. PARAGRAPH 4209 OF THE JOINT TRAVEL REGULATIONS (CHANGE 38, SEPTEMBER 1, 1955), PROMULGATED PURSUANT TO THAT ACT, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"A MEMBER WHO IS AT A TEMPORARY DUTY STATION (OR ON LEAVE FROM SUCH TEMPORARY DUTY STATION) WHEN PERMANENT CHANGE OF STATION ORDERS ARE ISSUED DESIGNATING THE TEMPORARY DUTY STATION AS HIS PERMANENT STATION WHICH ORDERS ARE EFFECTIVE UPON RECEIPT OR CANCEL THE REQUIREMENT TO RETURN TO HIS OLD PERMANENT STATION, OR THE MEMBER IN FACT REMAINS AT THE TEMPORARY DUTY STATION UNTIL THE EFFECTIVE DATE OF HIS PERMANENT CHANGE OF STATION ORDERS, WILL NOT BE ENTITLED TO PER DIEM ALLOWANCES AFTER RECEIPT OF THE PERMANENT CHANGE OF STATION ORDERS AT HIS TEMPORARY DUTY STATION.'

IN YOUR CASE, THE ORDERS OF MARCH 6, 1956, DESIGNATED FORT KNOX AS YOUR PERMANENT STATION AND SUCH ORDERS WERE RECEIVED ON MARCH 9, 1956. ALTHOUGH THE ORDERS DIRECTED THE CONTINUED PERFORMANCE OF YOUR THEN TEMPORARY DUTY, NO RIGHT TO PER DIEM ACCRUED TO YOU THEREAFTER FOR SUCH DUTY SINCE IT THEN WAS FOR PERFORMANCE AT YOUR DESIGNATED POST OF DUTY. SEE 34 COMP. GEN. 427. COPIES OF THE PAYROLL MONEY LISTS ON WHICH YOU SIGNED TO ACKNOWLEDGE RECEIPT OF PER DIEM FOR THE PERIODS FEBRUARY 16 TO MARCH 15, 1956, AND MARCH 16 TO APRIL 19, 1956, ARE ENCLOSED.

THE RIGHT OF THE GOVERNMENT TO RECOVER ERRONEOUS PAYMENTS MADE BY IT HAS BEEN CLEARLY ESTABLISHED BY THE COURTS. IN UNITED STATES V. NORTHWESTERN NATIONAL BANK AND TRUST COMPANY OF MINNEAPOLIS, 35 F.SUPP. 484, 486, THE COURT STATED THAT THE RECIPIENT OF AN ERRONEOUS PAYMENT RESULTING FROM A MISTAKE BY A PUBLIC OFFICIAL,MUST IN EQUITY MAKE RESTITUTION, SINCE RESTITUTION RESULTS IN NO LOSS TO HIM, HE HAVING RECEIVED SOMETHING FOR NOTHING. IN WISCONSIN CENTRAL RAILROAD COMPANY V. UNITED STATES, 164 U.S. 190, IT WAS HELD THAT PERSONS WHO RECEIVE ERRONEOUS PAYMENTS FROM THE UNITED STATES THROUGH ADMINISTRATIVE ERROR OF ITS OFFICERS ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION. EVEN FINANCIAL HARDSHIP WHICH MIGHT RESULT FROM COLLECTION FROM THE RECIPIENT OR THE FACT THAT THE PAYMENT MAY HAVE BEEN RECEIVED IN GOOD FAITH ,CANNOT STAND AGAINST THE INJUSTICE OF KEEPING WHAT NEVER RIGHTFULLY BELONGED TO HIM AT ALL.' UNITED STATES V. BENTLEY, 107 F.2D 382, 384.

ACCORDINGLY, IT WILL BE NECESSARY FOR YOU TO REMIT THE ERRONEOUS PAYMENTS. IF YOU ARE UNABLE TO LIQUIDATE YOUR INDEBTEDNESS IN ONE PAYMENT YOU MAY ARRANGE TO DO SO IN REGULAR INSTALLMENTS.

BY PARAGRAPH 39, SPECIAL ORDERS NO. 231, DATED OCTOBER 15, 1956, YOU WERE TRANSFERRED FROM FORT KNOX, KENTUCKY, TO 14TH ARMORED CAVALRY REGIMENT, APO 26, EFFECTIVE NOVEMBER 9, 1956. THE ORDERS STATED THAT THE ESTIMATED DATE OF TERMINATION OF YOUR SERVICE WAS DECEMBER 30, 1957, AND THAT YOUR DEPENDENT WOULD NOT ACCOMPANY YOU OR JOIN YOU AT YOUR OVERSEAS STATION. IT APPEARS THAT UPON ARRIVAL AT YOUR OVERSEAS STATION, FULDA, GERMANY, YOU MADE INQUIRY AS TO TRANSPORTATION FOR YOUR WIFE AND WERE INFORMED THAT CONSIDERING THE TIME THAT WOULD BE REQUIRED TO ARRANGE FOR HER TRAVEL YOU WOULD NOT HAVE SUFFICIENT REMAINING SERVICE AFTER HER ARRIVAL TO QUALIFY FOR HER TRANSPORTATION AT GOVERNMENT EXPENSE. YOU THEREUPON ARRANGED FOR HER TRAVEL BY COMMERCIAL AIR AT PERSONAL EXPENSE. YOUR CLAIM FOR REIMBURSEMENT WAS DISALLOWED FOR THE REASON THAT APPLICABLE REGULATIONS (PARAGRAPH 7002 OF THE JOINT TRAVEL REGULATIONS) REQUIRE THE USE OF GOVERNMENT TRANSPORTATION FOR TRAVEL OF DEPENDENTS TO OR FROM STATIONS BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES IF AVAILABLE, AND THAT THE RECORD SHOWS THAT GOVERNMENT TRANSPORTATION WAS AVAILABLE FOR ALL DEPENDENTS ELIGIBLE TO TRAVEL TO GERMANY AT THE TIME HERE INVOLVED. YOUR PRESENT LETTER YOU REQUEST INFORMATION AS TO THE REGULATIONS WHICH PREVENTED YOUR WIFE FROM BEING ELIGIBLE, AND THAT A COPY OF SUCH REGULATIONS BE FURNISHED YOU.

THE TRANSPORTATION OF DEPENDENTS IS GOVERNED BY REGULATIONS PROMULGATED BY THE SECRETARIES PURSUANT TO SECTION 303 (C) OF OF THE CAREER COMPENSATION ACT, AS AMENDED, 37 U.S.C. 253 (C). ARMY REGULATIONS 55-46, OCTOBER 25, 1956, REQUIRE THAT A MEMBER DESIRING TRANSPORTATION FOR HIS DEPENDENT TO AN OVERSEAS STATION SUBMIT AN APPLICATION; THAT TRANSPORTATION WILL BE FURNISHED ONLY UPON APPROVAL OF THE OVERSEAS COMMANDER, AND THAT IT MAY BE FURNISHED EITHER CONCURRENTLY WITH THE TRAVEL OF THE MEMBER OR AT A LATER DATE ON A PRIORITY BASIS. PARAGRAPH 6 OF THOSE REGULATIONS SPECIFICALLY PROVIDES THAT REQUESTS FOR MOVEMENT OF DEPENDENTS OVERSEAS WILL BE DISAPPROVED WHEN THE PRINCIPAL "WILL HAVE LESS THAN ONE YEAR OF ACTIVE DUTY SERVICE OR LESS THAN ONE YEAR OF CURRENT FOREIGN SERVICE TOUR REMAINING AFTER ARRIVAL OF DEPENDENTS IN THE OVERSEAS COMMAND.' YOUR WIFE WAS NOT AUTHORIZED TO TRAVEL ON A CONCURRENT BASIS AND IT IS APPARENT THAT HER TRAVEL ON A PRIORITY BASIS AFTER YOUR ARRIVAL WOULD HAVE RESULTED IN HER ARRIVAL AT YOUR STATION WHEN YOU HAD LESS THAN ONE YEAR OF REMAINING OVERSEAS DUTY. SINCE YOU WERE NOT ELIGIBLE FOR TRANSPORTATION FOR YOUR WIFE, NO AUTHORIZATION WAS ISSUED FOR HER TRAVEL. THERE IS NO BASIS FOR THE PAYMENT OF YOUR CLAIM AND THEREFORE, THE SETTLEMENT OF JULY 30, 1959, IS SUSTAINED.

COPIES OF THE VARIOUS REGULATIONS MENTIONED ABOVE ARE NOT AVAILABLE TO US FOR FURNISHING TO YOU AS REQUESTED. PERHAPS YOU MAY BE ABLE TO OBTAIN THEM FROM THE ADJUTANT GENERAL OF THE ARMY. HOWEVER, WE BELIEVE THEY HAVE BEEN REFERRED TO OR QUOTED FROM IN SUFFICIENT DETAIL TO CLEARLY ESTABLISH THEIR APPLICABILITY TO YOUR INDEBTEDNESS AND YOUR CLAIM.