B-143986, JAN. 26, 1961

B-143986, JAN. 26, 1961

TO MR. LOWELL E. HEDGES:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 13, 1960, IN EFFECT REQUESTING REVIEW OF THE ACTION OF THIS OFFICE (CLAIMS DIVISION LETTER OF OCTOBER 24, 1960), IN WHICH YOU WERE ADVISED THAT YOU ARE INDEBTED TO THE UNITED STATES IN THE SUM OF $388.35 AS THE RESULT OF AN ERRONEOUS PAYMENT OF PER DIEM FOR TEMPORARY DUTY FOR THE PERIOD OCTOBER 9, 1955, TO JUNE 12, 1956, AT ANTIGUA, BRITISH WEST INDIES, WHILE YOU WERE SERVING AS AN ENLISTED MAN, UNITED STATES NAVY.

IN THE LETTER OF OCTOBER 24, 1960, IT WAS POINTED OUT THAT THE LAW AUTHORIZES PAYMENT OF TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS WHICH ORDINARILY MEANS WRITTEN ORDERS, BUT THAT A VERBAL ORDER GIVEN IN ADVANCE OF TRAVEL AND SUBSEQUENTLY CONFIRMED IN WRITING, GIVING THE DATE OF THE VERBAL ORDER AND APPROVED BY COMPETENT AUTHORITY WILL MEET THE REQUIREMENT FOR WRITTEN ORDERS IF THEY OTHERWISE COMPLY WITH APPLICABLE REGULATIONS. WE STATED THAT FOR A LONG TIME DUTY OF THE TYPE HERE INVOLVED WAS NOT GENERALLY REGARDED AS TEMPORARY DUTY ENTITLING MEMBERS SO ENGAGED TO PER DIEM AND, AS A RESULT, WAS PERFORMED UNDER ORAL ORDERS OR UNDER WRITTEN ORDERS WHICH SIMPLY DESIGNATED THE ASSIGNMENT AS DUTY. TO CLARIFY THE NAVY DEPARTMENT POLICY IN THIS REGARD THE SECRETARY OF THE NAVY ON JUNE 4, 1956, ISSUED INSTRUCTIONS WHICH PROVIDED (PART D) THAT MEMBERS WHO HAD COMPLETED A PERIOD OF TEMPORARY ADDITIONAL DUTY FOR WHICH THE REQUIRED WRITTEN ORDERS WERE NOT ISSUED PRIOR TO THAT DATE WOULD NOT BE ISSUED CONFIRMING ORDERS. ALSO, YOU WERE ADVISED THAT THE ORDERS OF JUNE 9, 1956, ISSUED IN YOUR CASE DO NOT MEET THE REQUIREMENTS FOR VALID CONFIRMATORY ORDERS.

IN YOUR PRESENT LETTER YOU SAY THAT THE CLAIMS OF OTHER MEMBERS OF YOUR BATTALION AT ANTIGUA HAVE BEEN APPROVE AND THAT THE PAYMENT IN YOUR CASE WAS NOT THE RESULT OF ANY ERROR ON YOUR PART. ALSO, SINCE THE ORDERS WERE ISSUED ON JUNE 9, 1956, AND YOU WERE NOT DETACHED FROM THE DUTY UNTIL JUNE 12, 1956, YOU ASK WHETHER YOU ARE ENTITLED TO PER DIEM FOR THREE DAYS.

BY DECISION B-143986, DATED OCTOBER 7, 1960, COPY ENCLOSED, WE HELD THAT DUTY OF THE TYPE HERE INVOLVED PERFORMED PRIOR TO THE ISSUANCE ON JUNE 7, 1956, OF WHAT PURPORTED TO BE CONFIRMATORY ORDERS--- SIMILAR TO THE ORDERS BEARING THE DATE OF JUNE 9, 1956, ISSUED IN YOUR CASE--- WAS NOT PERFORMED UNDER COMPETENT ORDERS, FOR THE REASONS THERE STATED, AND THAT THERE WAS NO LEGAL AUTHORITY FOR PAYMENT OF PER DIEM UNDER SUCH CIRCUMSTANCES. SINCE, IN THAT CASE, THE DUTY WAS PERFORMED BEFORE THE ISSUANCE OF SECNAV INSTRUCTION 7220.19 OF JUNE 4, 1956, PARTICULAR CONSIDERATION WAS GIVEN TO C AND D OF PARAGRAPH 6 OF THAT INSTRUCTION. WHAT WAS SAID IN THAT DECISION AS TO THE TYPE OF DUTY AND THE REQUIREMENTS FOR COMPETENT CONFIRMATORY ORDERS IS EQUALLY APPLICABLE TO YOUR CLAIM. HOWEVER, PARAGRAPH 6 OF THE INSTRUCTIONS FURTHER PROVIDED IN PART B THAT MEMBERS WHO WERE CURRENTLY (ON JUNE 4, 1956) DEPLOYED AND WHO HAD NOT BEEN ISSUED ORDERS WOULD BE ISSUED WRITTEN TEMPORARY ADDITIONAL DUTY ORDERS UPON RECEIPT OF THE INSTRUCTIONS AND WOULD BE ENTITLED TO PER DIEM FROM THE DATE THE ORDERS WERE ISSUED. THE RECORD DOES NOT SHOW WHEN THE INSTRUCTIONS WERE RECEIVED IN ANTIGUA. HOWEVER, IT IS NOTED THAT ALTHOUGH YOUR ORDERS ARE DATED JUNE 9, 1956, THEY RECITE AS AN ACCOMPLISHED FACT THAT "YOU WERE DETACHED ON 12 JUNE 1956 TO COMPLY WITH" ORDERS TRANSFERRING YOU TO A SEPARATION CENTER IN THE CONTINENTAL UNITED STATES, THUS INDICATING THAT THEY WERE IN FACT ISSUED AFTER THE DUTY AT ANTIGUA HAD BEEN COMPLETED. PART B OF PARAGRAPH 6 IS PROSPECTIVE ONLY. THAT IS, IT APPLIES ONLY WHERE THE MEMBER WAS ISSUED COMPETENT ORDERS AFTER JUNE 4, 1956, AND CONTINUED ON DUTY AFTER THE ACTUAL DATE OF ISSUANCE OF THE ORDERS. THAT APPARENTLY WAS NOT THE SITUATION IN YOUR CASE. IN ANY EVENT, SINCE THE ORDERS WHICH WERE ISSUED DO NOT CONFIRM SPECIFIC VERBAL ORDERS DIRECTING TRAVEL AND TEMPORARY DUTY AWAY FROM YOUR PERMANENT STATION PROVIDE FOR YOUR FURTHER ASSIGNMENT TO A NEW PERMANENT STATION OR FOR YOUR RETURN TO YOUR OLD PERMANENT STATION UPON COMPLETION OF SUCH DUTY THEY ARE NOT COMPETENT ORDERS SUCH AS WOULD BE REQUIRED TO SUPPORT A PAYMENT OF PER DIEM FOR TEMPORARY DUTY FOR JUNE 9, 10 AND 11, 1956.

WHILE YOU MAY HAVE ACCEPTED THE PAYMENT IN GOOD FAITH, IT IS WELL SETTLED THAT PERSONS RECEIVING ERRONEOUS PAYMENTS FROM THE GOVERNMENT ACQUIRE NO RIGHT TO SUCH PAYMENTS AND THE COURTS CONSISTENTLY HAVE HELD THAT SUCH PERSONS ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION. 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 V. UNITED STATES, 164 U.S. 190, IT WAS HELD 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.

ACCORDINGLY, YOUR REMITTANCE IN THE AMOUNT OF $388.35 SHOULD BE MADE IN THE MANNER SPECIFIED IN THE LETTER OF OCTOBER 24, 1960, OR YOU MAY SUBMIT AN INITIAL PAYMENT TOGETHER WITH A DEFINITE PLAN FOR SETTLEMENT OF THE BALANCE.