B-142351, APR. 28, 1960

B-142351, APR. 28, 1960

TO MR. CARL TROISE:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 14, 1960, PROTESTING YOUR INDEBTEDNESS OF $50 TO THE UNITED STATES RESULTING FROM AN ERRONEOUS PAYMENT OF UNIFORM MAINTENANCE ALLOWANCE TO YOU INCIDENT TO YOUR SERVICE AS A MEMBER OF THE UNITED STATES NAVAL RESERVE.

THE RECORD INDICATES THAT YOU WERE PAID A $50 UNIFORM MAINTENANCE ALLOWANCE UNDER SECTION 302 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1180, AS AMENDED, ON THE BASIS OF A CLAIM WHICH YOU FILED IN AUGUST 1956. SECTION 302 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, WAS REPEALED EFFECTIVE JANUARY 1, 1953, BY SECTION 803 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 505, BUT SECTION 243/B) OF THE 1952 ACT, 66 STAT. 493, IN EFFECT AT THE TIME YOU FILED YOUR CLAIM, PROVIDED IN PERTINENT PART AS FOLLOWS:

"THAT UNTIL FOUR YEARS AFTER JULY 9, 1952, AN OFFICER MAY ELECT TO RECEIVE THE UNIFORM REIMBURSEMENT NOT TO EXCEED $50 TO WHICH HE MAY BE ENTITLED UNDER EXISTING REGULATIONS PURSUANT TO SECTION 302 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, OR SECTION 11 OF THE ACT OF AUGUST 4, 1942, AS AMENDED. THIS SUBSECTION DOES NOT APPLY TO OFFICERS OF THE ARMY WITHOUT COMPONENT OR OF THE AIR FORCE WITHOUT COMPONENT.'

THE ABOVE-QUOTED PROVISO CONSTITUTED A SAVINGS PROVISION WHICH, BY ITS TERMS, PERMITTED OFFICERS FOR A PERIOD OF FOUR YEARS AFTER JULY 9, 1952, THE DATE OF ENACTMENT OF THE 1952 ACT, TO ELECT TO RECEIVE THE $50 UNIFORM ALLOWANCE TO WHICH THEY WERE ENTITLED UNDER EXISTING REGULATIONS ISSUED PURSUANT TO THE PRIOR LAWS, SUCH AS SECTION 302 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1180, AS AMENDED. ANY RIGHT TO PAYMENT WHICH YOU MAY HAVE HAD UNDER THE 1938 ACT WAS PRESERVED TO YOU FOR A PERIOD OF FOUR YEARS BY SUCH PROVISO. THE RIGHT TO ELECTION, HOWEVER, NO LONGER EXISTED AFTER JULY 9, 1956, AND SINCE THE PROVISIONS OF THE 1938 LAW AUTHORIZING THE ALLOWANCE HAD BEEN REPEALED, THERE WAS NO AUTHORITY FOR PAYMENT OF THE ALLOWANCE TO YOU SINCE YOU DID NOT MAKE YOUR ELECTION WITHIN THE SPECIFIED FOUR-YEAR PERIOD. THE FACT THAT YOU MAY HAVE FILED A CLAIM ON NOVEMBER 23, 1953, DOES NOT ALTER THIS CONCLUSION SINCE SUCH CLAIM SPECIFICALLY SHOWED AN ELECTION TO BE PAID UNDER THE PROVISIONS OF THE 1952 ACT FOR WHICH YOU HAD NOT YET ACCRUED SUFFICIENT QUALIFYING SERVICE FOR PAYMENT OF THE $50 UNIFORM MAINTENANCE ALLOWANCE. IN THAT RESPECT, THE RESERVE OFFICERS RECORDING ACTIVITY CERTIFIED THAT YOU DID NOT HAVE SUFFICIENT QUALIFYING SERVICE FOR PAYMENT UNDER THE 1952 ACT, SINCE IT IS SHOWN THAT THE DATE OF YOUR LAST CORRECT ENTITLEMENT WAS MARCH 25, 1948, AND YOU HAD COMPLETED ONLY ONE SATISFACTORY YEAR (FISCAL YEAR 1957) FOR UNIFORM ALLOWANCE PURPOSES SINCE THAT TIME. IT WAS REPORTED THAT THE 35 POINTS PER YEAR MINIMUM REQUIREMENT, EARNED BY DUTY WHICH REQUIRED WEARING THE UNIFORM, HAD NOT BEEN MET IN ANY OTHER YEAR SINCE MARCH 25, 1948. APPEARS THAT THE DEPARTMENT OF THE NAVY MADE A CONSIDERABLE EFFORT TO GIVE NOTICE OF THE SIGNIFICANCE OF THE FINAL DATE OF ELECTION TO ALL CONCERNED. BUREAU OF NAVAL PERSONNEL INSTRUCTION NO. 1030.13 OF MAY 10, 1954, FOR DISTRIBUTION TO ALL SHIPS AND STATIONS AS WELL AS NAVAL RESERVE DISTRIBUTION LIST, PARTS A AND B, IN PARAGRAPH 2, STATED, WITH RESPECT TO UNIFORM MAINTENANCE ALLOWANCES, THAT:

" * * * PRIOR TO 9 JULY 1956, A NAVAL RESERVE OFFICER MAY ELECT TO RECEIVE PAYMENT UNDER THE PROVISIONS OF EITHER THE NAVAL RESERVE ACT OF 1938 OR THE ARMED FORCES RESERVE ACT OF 1952.' INSTRUCTION NO. 1030.13 WAS SUPERSEDED BY BUREAU OF NAVAL PERSONNEL

INSTRUCTION NO. 1030.13 WAS SUPERSEDED BY BUREAU OF NAVAL PERSONNEL DISTRIBUTION, WHICH AGAIN POINTED OUT THE TERMINATION DATE OF YOUR ELECTION RIGHT. THE REGULATIONS CONTAINED IN VOLUME 4 OF THE NAVY COMPTROLLER'S MANUAL, IN PORTIONS IN EFFECT PRIOR TO JULY 9, 1956 (PARAGRAPHS 044145/2//D) AND 044146/1//B/), ALSO CLEARLY STATED THE RIGHT OF ELECTION AND ITS TERMINATION DATE. IT IS CLEAR THAT BOTH THE 1952 STATUTE NOTED ABOVE AND THE CITED REGULATIONS FIXED A TERMINATION OF THE RIGHT OF ELECTION NOT LATER THAN JULY 9, 1956, AND THAT AMPLE NOTICE WAS GIVEN TO THAT FACT.

THE JUDICIAL PRECEDENTS ARE CLEAR IN ESTABLISHING THE RIGHT OF THE GOVERNMENT TO RECOVER PAYMENTS ERRONEOUSLY MADE. 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 ERRORS OF ITS OFFICERS ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION. EVEN FINANCIAL HARDSHIPS WHICH MIGHT RESULT FROM COLLECTION FROM THE RECIPIENT OR THE FACT THAT PAYMENT MAY HAVE BEEN RECEIVED IN GOOD FAITH "CANNOT STAND AGAINST THE INJUSTICE OF KEEPING WHAT NEVER RIGHTFULLY BELONGED TO HIM AT ALL.'

THE MATTER OF YOUR INDEBTEDNESS WAS REPORTED TO OUR OFFICE FOR COLLECTION BY THE UNITED STATES NAVY FINANCE CENTER. WHILE IT IS UNFORTUNATE THAT THE DISBURSING OFFICER WAS NOT AWARE THAT PAYMENT OF THE UNIFORM MAINTENANCE ALLOWANCE TO YOU WAS UNAUTHORIZED, WE HAVE NO ALTERNATIVE BUT TO TAKE SUCH STEPS AS MAY BE APPROPRIATE TO OBTAIN REFUND OF THE AMOUNT OF THE ERRONEOUS PAYMENT FROM YOU. ACCORDINGLY, YOU ARE AGAIN REQUESTED TO REFUND THE AMOUNT OF $50 BY CHECK OR MONEY ORDER PAYABLE TO THE "U. S. GENERAL ACCOUNTING OFFICE," POST OFFICE BOX 2610, WASHINGTON 13, D. C.