B-142665, JUN. 20, 1960

B-142665, JUN. 20, 1960

TO MR. WALLACE DAY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 21, 1960, RELATING TO YOUR INDEBTEDNESS TO THE UNITED STATES IN THE NET AMOUNT OF $69.18, CONSISTING OF THE SUM OF $85.50 ERRONEOUSLY PAID TO YOU AS DISLOCATION ALLOWANCE UPON CHANGE OF STATION FROM FORT BLISS, TEXAS, TO UPPER HAYFORD, ENGLAND, LESS THE SUM OF $16.32 WITHHELD TO PARTIALLY LIQUIDATE YOUR INDEBTEDNESS, SUCH SUM REPRESENTING THE NET AMOUNT ALLOWED YOU IN CONNECTION WITH YOUR CLAIM FOR LONGEVITY PAY FOR OVER TWO YEARS' SERVICE FROM MAY 29 TO JUNE 17, 1957.

IN YOUR LETTER YOU DISCUSSED AT LENGTH THE MATTER OF THE GOVERNMENT'S CLAIM FOR REFUND OF THE DISLOCATION ALLOWANCE ERRONEOUSLY PAID TO YOU, AND APPARENTLY AS A BASIS FOR QUESTIONING THE VALIDITY OF THE CLAIM YOU STATED THAT---

"* * * THE ALLEGED SUM WAS GRANTED TO THE PARTY BY AN AGENT OF THE PRINCIPAL WITH FULL APPROVAL IN ACCORDANCE WITH THE CURRENT POLICY OF THE DAY. THE AGENT PREVIOUSLY HAD BEEN TRAINED, SELECTED AND GIVEN ALL EXISTING DOCUMENTS ON THE SUBJECT WITH THE FULL AUTHORITY TO CARRY OUT THE POLICY AS HE KNEW IT TO BE. WAS IT NOT THE INTENT OF THE UNITED STATES THAT UPON JANUARY 1960, IF THE ALLEGED DISLOCATION ALLOWANCE WERE IN FACT PAID, THAT THIS SUM IN QUESTION SHOULD BECOME THE PERSONAL PROPERTY OF THE PAYEE AND IT WAS NOT THE INTENT OF THE PARTIES THAT THE PAYEE WAS MERELY A BAILEE OF THE CHOSES IN ACTION.'

ALSO, WITH REFERENCE TO YOUR CLAIM FOR PER DIEM WHILE STATIONED AT FORT BLISS YOU STATED THAT ,I SEE THE CUT OFF DATE FOR SETTLING PER DIEM DEBTS WAS JULY 1, 1959," AND YOU INDICATED THAT YOU FILED YOUR CLAIM FOR PER DIEM UNDER DATE OF JUNE 21, 1959, THEREBY IMPLYING THAT YOUR CLAIM SHOULD HAVE BEEN ALLOWED. IT SEEMS CLEAR THAT YOU MISUNDERSTOOD WHAT WAS SAID IN THE SETTLEMENT OF FEBRUARY 26, 1960,DENYING YOUR CLAIM. IT WAS NOT STATED IN THE SETTLEMENT THAT JULY 1, 1959, WAS A "CUT OFF" DATE FOR SETTLING CLAIM FOR PER DIEM. IN THE SETTLEMENT OUR CLAIMS DIVISION REFERRED TO OUR DECISION OF JUNE 19, 1959, B-138900, TO THE SECRETARY OF DEFENSE, RELATING TO THE OPINION RENDERED MARCH 4, 1959, BY THE COURT OF CLAIMS IN THE CASE OF CALIFANO V. UNITED STATES, C.CLS.NO. 85-58, IN WHICH IT WAS HELD THAT A TRAVEL STATUS CANNOT EXIST FOR A MEMBER OF THE UNIFORMED SERVICES IN THE ABSENCE OF A DESIGNATED POST OF DUTY AWAY FROM WHICH TRAVEL IS PERFORMED, AND THAT ORDERS DIRECTING A MEMBER PROCEED FROM HIS HOME TO A STATION FOR FOUR MONTHS' INDOCTRINATION AND FURTHER ASSIGNMENT TO DUTY, DID NOT PLACE HIM IN A TRAVEL STATUS AT THAT STATION, SINCE IT WAS THE ONLY POST OF DUTY HE HAD AT THE TIME. BY THE DECISION OF JUNE 19, 1959, WE ADVISED THE SECRETARY OF DEFENSE THAT FROM THAT DATE WE WOULD FOLLOW THE RULING IN THE CALIFANO CASE IN APPLICABLE CASES BEFORE US FOR SETTLEMENT, BUT THAT PAYMENTS OF PER DIEM MADE ADMINISTRATIVELY PRIOR TO JULY 1, 1959, WOULD NOT BE QUESTIONED, IF OTHERWISE CORRECT, REGARDLESS OF THE PERIOD COVERED. SINCE YOUR CLAIM FOR PER DIEM WAS RECEIVED HERE AFTER OUR DECISION OF JUNE 19, 1959, IT WAS FOR DISALLOWANCE WHEN RECEIVED. WHILE IT WAS STATED IN OUR DECISION THAT THE RULING IN THE CALIFANO CASE WOULD NOT BE APPLIED TO PAYMENTS MADE ADMINISTRATIVELY, THAT IS, BY THE DEPARTMENTS CONCERNED, BEFORE JULY 1, 1959, IF OTHERWISE PROPER, THAT DATE HAS NO APPLICATION IN THE SETTLEMENT OF THE CLAIM THAT YOU PRESENTED TO THIS OFFICE.

WITH REFERENCE TO YOUR INDEBTEDNESS IN THE NET AMOUNT OF $69.18, AND IN RESPONSE TO YOUR REQUEST TO BE FURNISHED WITH THE "NECESSARY DOCUMENTS SHOWING THAT THE ALLEGED PAYMENT WAS IN FACT MADE," THERE IS ENCLOSED A COPY OF YOUR PAYROLL RECORD FOR THE PERIOD JULY 23, 1955, THROUGH JUNE 30, 1956. IT WILL BE SEEN THAT ON THE RECORD FOR THE PERIOD JANUARY 1 THROUGH JUNE 30, 1956, YOU WERE CREDITED (LINE 26) WITH DISLOCATION ALLOWANCE IN THE AMOUNT OF $85.50. UNDER DATE OF MAY 5, 1958, OUR AUDITORS ISSUED A NOTICE OF EXCEPTION TO THE PAYMENT OF THE ALLOWANCE FOR THE REASON THAT YOUR ASSIGNMENT AS A STUDENT AT FORT BLISS, TEXAS, WAS TEMPORARY DUTY PENDING FURTHER ORDERS, UPPER HEYFORD, ENGLAND, BEING YOUR FIRST PERMANENT DUTY STATION, AND REFERENCE WAS MADE TO PARAGRAPH 9003-3, JOINT TRAVEL REGULATIONS, WHICH PROHIBITS PAYMENT OF A DISLOCATION ALLOWANCE INCIDENT TO TRAVEL PERFORMED TO THE FIRST PERMANENT DUTY STATION UPON ENTRY INTO SERVICE OR CALL TO ACTIVE DUTY. UNDER THE CITED REGULATIONS PAYMENT TO YOU OF A DISLOCATION ALLOWANCE WAS UNAUTHORIZED AND IT FOLLOWS THAT YOU ARE PRESENTLY INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $69.18.

THE FACT THAT YOU WERE ERRONEOUSLY CREDITED WITH DISLOCATION ALLOWANCE BY AN OFFICER OR AGENT OF THE GOVERNMENT AND RECEIVED THE PAYMENT IN GOOD FAITH CONSTITUTES NO LEGAL BASIS FOR YOU TO RETAIN THE PAYMENT SINCE IT IS WELL ESTABLISHED THAT, IN THE ABSENCE OF SPECIFIC STATUTORY PROVISIONS, THE UNITED STATES IS NOT LIABLE FOR THE NEGLIGENT ACTIONS OF ITS OFFICERS OR AGENTS AND IS ENTITLED TO RECOVER ERRONEOUS PAYMENTS EVEN THOUGH THE RECIPIENT RECEIVED THE PAYMENT IN GOOD FAITH. IT IS REQUESTED THAT WITHIN THIRTY DAYS FROM THE DATE OF THIS LETTER YOU REMIT THE AMOUNT DUE OR SUBMIT A PARTIAL PAYMENT TOGETHER WITH A PLAN FOR LIQUIDATING THE ENTIRE INDEBTEDNESS WITHIN A REASONABLE PERIOD.

WITH REFERENCE TO THE MATTER OF INCOME TAXES, REFERRED TO ON PAGE TWO OF YOUR LETTER, WE ARE INFORMALLY ADVISED BY THE INTERNAL REVENUE SERVICE THAT THE ALLOWANCE HERE IN QUESTION APPARENTLY IS NOT TAXABLE. YOUR INCOME TAX RETURN FOR THE YEAR 1956 SHOULD SHOW WHETHER YOU INCLUDED THE ALLOWANCE OF $85.50 IN YOUR TAXABLE INCOME. IN ANY EVENT, THE MATTER OF YOUR TAX LIABILITY IS ONE FOR CONSIDERATION BY THE INTERNAL REVENUE SERVICE.