B-143058, JUN. 22, 1960

B-143058: Jun 22, 1960

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YOU WERE ORDERED TO ACTIVE DUTY FROM YOUR HOME. THE ORDERS SPECIFICALLY PROVIDED THAT TRAVEL OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD EFFECTS WAS NOT AUTHORIZED FOR MEMBERS ASSIGNED TO TEMPORARY DUTY PENDING FURTHER ASSIGNMENT UNTIL PERMANENT CHANGE OF STATION ORDERS WERE ISSUED. FORT BELVOIR WAS DESIGNATED YOUR PERMANENT STATION UPON COMPLETION OF COURSE OF INSTRUCTIONS. SINCE PER DIEM FOR TEMPORARY DUTY WAS PAID TO YOU AFTER RECEIPT OF ORDERS DESIGNATING FORT BELVOIR YOUR PERMANENT STATION YOU WERE REQUIRED TO REMIT. HAVE REMITTED. THE ACTION REQUIRING YOU TO REMIT THE PER DIEM WAS IN ACCORDANCE WITH DECISIONS OF THIS OFFICE. COPIES OF WHICH WERE FURNISHED YOU BY OUR CLAIMS DIVISION LETTER OF FEBRUARY 18.

B-143058, JUN. 22, 1960

TO MR. JOSEPH J. HESKETH, JR.:

YOUR LETTER OF MAY 12, 1960, IN EFFECT REQUESTS REVIEW OF THE ACTION OF THIS OFFICE RELATING TO YOUR INDEBTEDNESS TO THE UNITED STATES ARISING FROM YOUR SERVICE AS SECOND LIEUTENANT, UNITED STATES ARMY RESERVE.

BY ORDERS OF MAY 21, 1954, AMENDED ON THE SAME DATE BY VERBAL ORDERS, LATER CONFIRMED IN WRITING TO DESIGNATE THE DUTY TEMPORARY DUTY PENDING FURTHER ASSIGNMENT, YOU WERE ORDERED TO ACTIVE DUTY FROM YOUR HOME, EDGEWOOD, RHODE ISLAND, AND DIRECTED TO PROCEED TO FORT BELVOIR, VIRGINIA, AND TO REPORT NOT LATER THAN OCTOBER 14, 1954, FOR TEMPORARY DUTY FOR THE PURPOSE OF ATTENDING ENGINEER OFFICERS' BASIC COURSE. THE ORDERS SPECIFICALLY PROVIDED THAT TRAVEL OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD EFFECTS WAS NOT AUTHORIZED FOR MEMBERS ASSIGNED TO TEMPORARY DUTY PENDING FURTHER ASSIGNMENT UNTIL PERMANENT CHANGE OF STATION ORDERS WERE ISSUED. BY ORDERS DATED JANUARY 17, 1955, FORT BELVOIR WAS DESIGNATED YOUR PERMANENT STATION UPON COMPLETION OF COURSE OF INSTRUCTIONS. SINCE PER DIEM FOR TEMPORARY DUTY WAS PAID TO YOU AFTER RECEIPT OF ORDERS DESIGNATING FORT BELVOIR YOUR PERMANENT STATION YOU WERE REQUIRED TO REMIT, AND HAVE REMITTED, THE SUM OF $26.42 ERRONEOUSLY PAID TO YOU ASPER DIEM FOR THE PERIOD JANUARY 19 TO FEBRUARY 3, 1955. THE ACTION REQUIRING YOU TO REMIT THE PER DIEM WAS IN ACCORDANCE WITH DECISIONS OF THIS OFFICE, COPIES OF WHICH WERE FURNISHED YOU BY OUR CLAIMS DIVISION LETTER OF FEBRUARY 18, 1960.

THERE IS FURTHER INVOLVED, HOWEVER, THE FACT THAT YOUR WIFE TRAVELED FROM EDGEWOOD, RHODE ISLAND, TO ALEXANDRIA, VIRGINIA, ON OCTOBER 29 AND 30, 1954, INCIDENT TO THE ORDERS TO TEMPORARY DUTY, AND THAT YOU WERE PAID $25.32 AS REIMBURSEMENT FOR SUCH TRAVEL. YOU WERE ADVISED IN THE CLAIMS DIVISION LETTER OF FEBRUARY 18, 1960, THAT SUCH PAYMENT WAS ERRONEOUS FOR THE REASON THAT THE TRAVEL WAS PERFORMED PRIOR TO JANUARY 17, 1955, THE DATE ON WHICH FORT BELVOIR WAS DESIGNATED AS YOUR PERMANENT STATION. YOUR PRESENT LETTER YOU STATE THAT UPON YOUR WIFE'S ARRIVAL AT THE STATION, YOU REQUESTED REIMBURSEMENT AND WERE INFORMED IT WAS NOT AUTHORIZED; THAT IN 1956, THE FINANCE OFFICER AT FORT BELVOIR DISSEMINATED INFORMATION TO THE EFFECT THAT A DECISION OF THIS OFFICE AUTHORIZED PAYMENT OF DEPENDENT TRAVEL ALLOWANCE UNDER CIRCUMSTANCES SIMILAR TO THOSE INVOLVED IN YOUR CASE, AND THAT YOU WERE INFORMED BY ACQUAINTANCES THAT SEVERAL FINANCE OFFICERS OTHER THAN THE ONE WHO MADE THE PAYMENT TO YOU MADE PAYMENTS FOR TRAVEL OF DEPENDENTS UNDER LIKE CIRCUMSTANCES.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), PROVIDES THAT UNDER SUCH CONDITIONS AND LIMITATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES "WHEN ORDERED TO MAKE A CHANGE OF PERMANENT STATION" SHALL BE ENTITLED TO TRANSPORTATION FOR DEPENDENTS. PARAGRAPH 7000-2, ITEM 11, CHANGE 25, DATED AUGUST 1, 1954, JOINT TRAVEL REGULATIONS, SPECIFICALLY PROVIDES THAT TRANSPORTATION OF DEPENDENTS IS NOT AUTHORIZED AT PUBLIC EXPENSE WHERE THE DEPENDENTS TRAVEL PRIOR TO ISSUANCE OF PERMANENT CHANGE OF STATION ORDERS AND THE VOUCHER IS NOT SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, OF THE HEADQUARTERS ISSUING THE ORDERS THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF CHANGE OF STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED. IT SEEMS CLEAR THAT THE REGULATION CONTEMPLATES THAT TRAVEL OF DEPENDENTS AT GOVERNMENT EXPENSE IS NOT AUTHORIZED UNTIL THE MEMBER HAS DEFINITE KNOWLEDGE OF AN IMPENDING PERMANENT CHANGE OF STATION. THEREFORE, IT HAS BEEN THE RULE THAT THE REGULATION IS APPLICABLE TO AUTHORIZE PAYMENT ONLY WHERE DEPARTURE OF DEPENDENTS IS DURING THE COMPARATIVELY SHORT PERIOD OF TIME WHICH MAY ELAPSE BETWEEN THE TIME OF AN ADMINISTRATIVE DETERMINATION TO ORDER A MEMBER TO MAKE A CHANGE OF STATION AND THE DATE ON WHICH ORDERS DIRECTING SUCH CHANGE ACTUALLY ARE ISSUED. 34 COMP. GEN. 241.

SINCE NO SUCH CERTIFICATE HAS BEEN FURNISHED IN YOUR CASE AND SINCE NO TRAVEL WAS NECESSARY UNDER THE ORDERS OF JANUARY 17, 1955--- YOUR WIFE THEN BEING AT YOUR STATION--- IT SEEMS CLEAR THAT REIMBURSEMENT WAS NOT AUTHORIZED FOR THE TRAVEL PERFORMED BY YOUR WIFE. WE ARE NOT AWARE OF ANY DECISION AUTHORIZING TRAVEL OF DEPENDENTS UNDER SUCH CIRCUMSTANCES. THE CONTRARY, REFUND IS REQUIRED OF ANY PAYMENT MADE IN A CASE SUCH AS YOURS.

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. 180, IT WAS HELD THAT PERSONS WHO RECEIVE ERRONEOUS PAYMENTS FROM THE UNITED STATES 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.

SINCE IT SEEMS CLEAR THAT YOU WERE NOT ENTITLED TO YOUR WIFE'S TRAVEL AT PUBLIC EXPENSE, THE SUM OF $25.32 SHOULD BE REMITTED IN THE MANNER SET FORTH IN CLAIMS DIVISION LETTERS OF FEBRUARY 18 AND APRIL 25, 1960.