B-142459, MAY 2, 1960

B-142459: May 2, 1960

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JR.: REFERENCE IS MADE TO YOUR LETTER OF MARCH 14. THE TRAVEL AND TEMPORARY DUTY WERE PERFORMED INCIDENT TO ORDERS EXEMPLIFIED BY LETTER ORDERS NO. 11-86. YOU WERE ADVISED THAT SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949. AUTHORIZE PAYMENT OF TRAVEL EXPENSES ONLY WHEN SUCH TRAVEL IS ON PUBLIC BUSINESS. IN SPORTS EVENTS AS A PART OF THE ATHLETIC AND RECREATIONAL PROGRAM OF THE ARMY IS NOT TRAVEL ON PUBLIC BUSINESS. 38 COMP. IN YOUR PRESENT LETTER YOU SAY YOU ARE NOT TO BLAME FOR THE ERRONEOUS PAYMENTS AND EXPRESS THE BELIEF THAT YOU SHOULD NOT BE REQUIRED TO REMIT THE PAYMENTS FOR THE REASON THAT THE TRAVEL WAS PERFORMED INCIDENT TO ORDERS. IT WAS 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.

B-142459, MAY 2, 1960

TO MR. CLARENCE J. CLARK, JR.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 14, 1960, RELATIVE TO YOUR INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $203.45, INCIDENT TO YOUR SERVICE AS FIRST LIEUTENANT, UNITED STATES ARMY.

THE INDEBTEDNESS CONSISTS OF PAYMENTS MADE TO YOU AS TRAVEL AND PER DIEM ALLOWANCES FOR TRAVEL AND TEMPORARY DUTY IN GERMANY IN SEPTEMBER, OCTOBER AND NOVEMBER 1956, AS NON-PLAYING OFFICER MANAGER FOR THE REGIMENTAL FOOTBALL TEAM. THE TRAVEL AND TEMPORARY DUTY WERE PERFORMED INCIDENT TO ORDERS EXEMPLIFIED BY LETTER ORDERS NO. 11-86, DATED NOVEMBER 14, 1956, WHICH DIRECTED YOU TO PROCEED FROM NURNBERG, GERMANY, TO SCHWABISCH HALL, GERMANY, FOR APPROXIMATELY THREE DAYS' TEMPORARY DUTY IN CONNECTION WITH THE ARMY'S ATHLETIC PROGRAM.

UPON AUDIT OF THE DISBURSING OFFICER'S ACCOUNTS WE TOOK EXCEPTION TO THE PAYMENTS AS NOT AUTHORIZED BY LAW. BY OFFICE LETTER OF FEBRUARY 17, 1960, YOU WERE ADVISED THAT SECTION 303 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253, AND THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT THERETO, AUTHORIZE PAYMENT OF TRAVEL EXPENSES ONLY WHEN SUCH TRAVEL IS ON PUBLIC BUSINESS, AND THAT IT CONSISTENTLY HAS BEEN THE VIEW OF THIS OFFICE THAT TRAVEL OF MEMBERS OF THE UNIFORMED SERVICES IN CONNECTION WITH PARTICIPATION, OTHER THEN COMMAND SUPERVISION, IN SPORTS EVENTS AS A PART OF THE ATHLETIC AND RECREATIONAL PROGRAM OF THE ARMY IS NOT TRAVEL ON PUBLIC BUSINESS. 38 COMP. GEN. 873. HOWEVER, IN YOUR PRESENT LETTER YOU SAY YOU ARE NOT TO BLAME FOR THE ERRONEOUS PAYMENTS AND EXPRESS THE BELIEF THAT YOU SHOULD NOT BE REQUIRED TO REMIT THE PAYMENTS FOR THE REASON THAT THE TRAVEL WAS PERFORMED INCIDENT TO ORDERS.

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. WISCONSIN CENTRAL RAILROAD COMPANY V. UNITED STATES, 164 U.S. 190, IT WAS 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.

IN THE CIRCUMSTANCES, 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 REASONABLE INSTALLMENTS. ANY REQUEST FOR REPAYMENT ON THAT BASIS SHOULD BE ADDRESSED TO THE GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION, WASHINGTON 25, D.C. ..END :