B-142552, MAY 17, 1960

B-142552: May 17, 1960

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BOTTOMS: REFERENCE IS MADE TO YOUR LETTER OF MARCH 27. YOU WERE DIRECTED TO PROCEED FROM BOSTON. FROM WHICH POINT YOU WERE TO PROCEED TO LONDON. HER TRAVEL FROM MCGUIRE AIR FORCE BASE TO BURTONWOOD WAS BY GOVERNMENT AIR. YOU WERE REIMBURSED ON A MILEAGE BASIS FOR HER TRAVEL FROM BOSTON TO MARTINSVILLE AND FROM THE LATTER PLACE TO MCGUIRE AIR FORCE BASE. BOTH THE DEPARTMENT OF THE NAVY AND THE CLAIMS DIVISION OF THIS OFFICE HAVE ADVISED YOU THAT SINCE TRAVEL OF YOUR DEPENDENT TO YOUR OVERSEAS STATION WAS NOT RESTRICTED. YOUR MAXIMUM ENTITLEMENT FOR HER LAND TRAVEL IN THE UNITED STATES WAS FROM YOUR OLD STATION TO THE PORT OF EMBARKATION. YOU BELIEVE YOUR CLAIM WAS VALID. ASK IF THERE IS ANOTHER AGENCY TO WHICH THE MATTER MAY BE SUBMITTED FOR REVIEW.

B-142552, MAY 17, 1960

TO MR. A. R. BOTTOMS:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 27, 1960, RELATIVE TO YOUR INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $53.94 ARISING FROM AN ERRONEOUS PAYMENT FOR TRAVEL OF YOUR DEPENDENT WHILE SERVING AS ENSIGN, UNITED STATES NAVAL RESERVE.

BY ORDERS DATED NOVEMBER 7, 1956, YOU WERE DIRECTED TO PROCEED FROM BOSTON, MASSACHUSETTS, TO MCGUIRE AIR FORCE BASE, NEW JERSEY, AND REPORT THE NEXT DAY FOR GOVERNMENT AIR TRANSPORTATION TO BURTONWOOD, ENGLAND, FROM WHICH POINT YOU WERE TO PROCEED TO LONDON, ENGLAND, FOR DUTY. YOUR WIFE TRAVELED FROM BOSTON, MASSACHUSETTS, TO MARTINSVILLE, VIRGINIA, ON NOVEMBER 10, 1956, AND APPROXIMATELY TWO MONTHS LATER SHE TRAVELED FROM MARTINSVILLE TO LONDON, YOUR OVERSEAS STATION, VIA MCGUIRE AIR FORCE BASE AND BURTONWOOD. HER TRAVEL FROM MCGUIRE AIR FORCE BASE TO BURTONWOOD WAS BY GOVERNMENT AIR. YOU WERE REIMBURSED ON A MILEAGE BASIS FOR HER TRAVEL FROM BOSTON TO MARTINSVILLE AND FROM THE LATTER PLACE TO MCGUIRE AIR FORCE BASE, AS WELL AS FROM BURTONWOOD TO LONDON, ENGLAND, WHERE SHE ESTABLISHED A RESIDENCE. UPON AUDIT OF THE DISBURSING OFFICER'S ACCOUNTS WE TOOK EXCEPTION TO PAYMENT FOR HER LAND TRAVEL IN EXCESS OF THE DISTANCE FROM BOSTON TO MCGUIRE AIR FORCE BASE AND FROM BURTONWOOD TO LONDON. BOTH THE DEPARTMENT OF THE NAVY AND THE CLAIMS DIVISION OF THIS OFFICE HAVE ADVISED YOU THAT SINCE TRAVEL OF YOUR DEPENDENT TO YOUR OVERSEAS STATION WAS NOT RESTRICTED, YOUR MAXIMUM ENTITLEMENT FOR HER LAND TRAVEL IN THE UNITED STATES WAS FROM YOUR OLD STATION TO THE PORT OF EMBARKATION. IN YOUR PRESENT LETTER YOU SAY THAT YOU HAD LESS THAN EIGHT HOURS' NOTIFICATION OF THE CHANGE OF STATION AND IN ORDER TO PROVIDE FOR YOUR WIFE'S WELL-BEING UNTIL SHE COULD PROCEED TO YOUR NEW STATION YOU THOUGHT IT BEST FOR HER TO RETURN TO HER HOME. THEREFORE, YOU BELIEVE YOUR CLAIM WAS VALID, AND ASK IF THERE IS ANOTHER AGENCY TO WHICH THE MATTER MAY BE SUBMITTED FOR REVIEW.

PARAGRAPH 7008-3 OF THE JOINT TRAVEL REGULATIONS, IN EFFECT AT THE TIME HERE INVOLVED, AUTHORIZED TRAVEL OF DEPENDENTS TO A DESIGNATED LOCATION WHEN THE MEMBER WAS ORDERED TO AN OVERSEAS STATION AND HIS DEPENDENTS WERE NOT AUTHORIZED TO TRAVEL AT THE SAME TIME. THAT PROVISION WAS AMPLIFIED BY PARAGRAPH 7008-2, NAVY TRAVEL INSTRUCTIONS, WHICH SPECIFICALLY PROVIDED THAT EXCEPT FOR THOSE AREAS OVERSEAS WHERE REGULATIONS WERE IN EFFECT PROHIBITING CONCURRENT TRAVEL OF THE MEMBER AND HIS DEPENDENTS, IT WOULD BE NECESSARY FOR A MEMBER UNDER ORDERS TO AN OVERSEAS STATION TO SUBMIT A REQUEST TO THE APPROPRIATE AREA COMMANDER FOR APPROVAL OF DEPENDENTS' ENTRY AND RECEIVE A NEGATIVE REPLY PRIOR TO SUBMITTING AN APPLICATION OR A CLAIM FOR DEPENDENTS' TRAVEL TO A DESIGNATED PLACE. SINCE THOSE PROVISIONS ARE FOR APPLICATION IN YOUR CASE NOTWITHSTANDING THAT YOU DID NOT HAVE NORMAL NOTICE OF CHANGE OF STATION, IT SEEMS CLEAR THAT YOU WERE NOT ENTITLED TO REIMBURSEMENT FOR YOUR WIFE'S TRAVEL TO A DESIGNATED PLACE. THE COURTS LONG HAVE HELD THAT THE RECIPIENT OF AN ERRONEOUS PAYMENT FROM THE GOVERNMENT IS REQUIRED TO RETURN THE MONEY SO RECEIVED. EVEN 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, THE ACTION IN THE CLAIM OF THE UNITED STATES AGAINST YOU WAS CORRECT AND IS SUSTAINED. SUCH ACTION, AS IN THE CASE OF ALL CLAIMS REFERRED HERE FOR CONSIDERATION, IS BINDING AND CONCLUSIVE ON THE ADMINISTRATIVE BRANCH OF THE GOVERNMENT.