B-144505, JAN. 24, 1961

B-144505: Jan 24, 1961

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THAT YOU WERE CREDITED WITH FAMILY SEPARATION ALLOWANCE AT THE RATE OF $2.30 PER DAY FOR THE PERIOD MARCH 4 TO MAY 4. WHICH EXCEPTION IS STILL OUTSTANDING. WITHHOLDING OF THIS CREDIT WAS BASED ON OUR DECISION OF JULY 17. WHICH HELD THAT THERE WAS NO LEGAL BASIS FOR PARAGRAPH 4304. UPON WHICH ITS AUTHORITY WAS BASED. IT WAS SUGGESTED TO THE SECRETARY OF DEFENSE THAT PROMPT ACTION SHOULD BE TAKEN TO RECOVER ALL PAYMENTS SO MADE. THE QUESTION WAS RECONSIDERED AND ADHERED TO IN OUR DECISION OF OCTOBER 3. IT WAS REPORTED BY THE DEPARTMENT OF DEFENSE THAT A DRAFT OF PROPOSED LEGISLATION FOR PRESENTATION TO THE CONGRESS WAS BEING PREPARED. ADVICE WAS REQUESTED AS TO WHETHER OR NOT THE MILITARY DEPARTMENTS MIGHT SUSPEND COLLECTION ACTION UNTIL THE CONGRESS HAD CONSIDERED AND ACTED UPON THE PROPOSED LEGISLATION.

B-144505, JAN. 24, 1961

TO MR. HERBERT M. ZYDNEY:

YOUR LETTER DATED NOVEMBER 2, 1960, PROPOUNDS CERTAIN QUESTIONS RELATING TO A DEMAND UPON YOU FOR REFUND OF THE AMOUNT OF $142.60 RECEIVED AS FAMILY SEPARATION ALLOWANCE UNDER PARAGRAPH 4304 OF THE JOINT TRAVEL REGULATIONS DURING YOUR ACTIVE SERVICE IN THE UNITED STATES AIR FORCE.

YOUR MILITARY PAY RECORD CLOSED JUNE 30, 1956, COVERING YOUR SERVICE AS SECOND LIEUTENANT, UNITED STATES AIR FORCE, SHOWS THAT YOU REPORTED FOR DUTY AT DETACHMENT 1, 3114TH AMMUNITION SUPPLY SQUADRON, APO 179, NEW YORK, NEW YORK, ON JANUARY 13, 1956; THAT YOUR WIFE, JUNE R. ZYDNEY, ARRIVED AT YOUR OVERSEAS STATION ON MAY 4, 1956, AND THAT YOU WERE CREDITED WITH FAMILY SEPARATION ALLOWANCE AT THE RATE OF $2.30 PER DAY FOR THE PERIOD MARCH 4 TO MAY 4, 1956. ON SEPTEMBER 5, 1956, OUR DEFENSE ACCOUNTING AND AUDITING DIVISION STATED NOTICE OF EXCEPTION NO. 702127 IN THE AMOUNT OF $142.60 AGAINST THE CREDIT TO YOU OF FAMILY SEPARATION ALLOWANCE, WHICH EXCEPTION IS STILL OUTSTANDING.

WITHHOLDING OF THIS CREDIT WAS BASED ON OUR DECISION OF JULY 17, 1956, B- 128338, B-128339, WHICH HELD THAT THERE WAS NO LEGAL BASIS FOR PARAGRAPH 4304, JOINT TRAVEL REGULATIONS, EFFECTIVE MARCH 1, 1956, PURPORTING TO PROVIDE FOR FAMILY SEPARATION ALLOWANCE PAYMENTS TO MEMBERS OF THE UNIFORMED SERVICES AT OVERSEAS STATIONS WHEN UNACCOMPANIED BY THEIR DEPENDENTS AND NOT ASSIGNED QUARTERS FOR THEMSELVES BECAUSE THE PROVISIONS OF THAT PARAGRAPH WENT BEYOND THE SCOPE OF SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, UPON WHICH ITS AUTHORITY WAS BASED. IT WAS SUGGESTED TO THE SECRETARY OF DEFENSE THAT PROMPT ACTION SHOULD BE TAKEN TO RECOVER ALL PAYMENTS SO MADE. THE QUESTION WAS RECONSIDERED AND ADHERED TO IN OUR DECISION OF OCTOBER 3, 1956, 36 COMP. GEN. 274.

BY LETTER DATED MAY 29, 1957, IT WAS REPORTED BY THE DEPARTMENT OF DEFENSE THAT A DRAFT OF PROPOSED LEGISLATION FOR PRESENTATION TO THE CONGRESS WAS BEING PREPARED, WHICH, IF ENACTED INTO LAW, WOULD SPECIFICALLY AUTHORIZE THE TYPE OF ALLOWANCE IN QUESTION UNDER CERTAIN CONDITIONS AND WOULD VALIDATE THE PAYMENTS MADE FOR THE PERIOD MARCH 1 THROUGH JULY 31, 1956. ADVICE WAS REQUESTED AS TO WHETHER OR NOT THE MILITARY DEPARTMENTS MIGHT SUSPEND COLLECTION ACTION UNTIL THE CONGRESS HAD CONSIDERED AND ACTED UPON THE PROPOSED LEGISLATION. IT WAS STATED, HOWEVER, THAT IN ORDER TO PROTECT THE DISBURSING OFFICERS, COLLECTIONS WOULD CONTINUE TO BE MADE FROM MEMBERS WHO HAD BEEN ERRONEOUSLY PAID THE ALLOWANCE UPON THEIR DISCHARGE OR RELEASE FROM ACTIVE DUTY. IN LETTER OF JUNE 14, 1957, TO THE SECRETARY OF DEFENSE WE APPROVED SUSPENSION OF COLLECTION ACTION AS INDICATED, PENDING CONSIDERATION OF THE PROPOSED LEGISLATION BY CONGRESS. A DRAFT OF THE PROPOSED LEGISLATION TO VALIDATE THE PAYMENT OF FAMILY SEPARATION ALLOWANCES WAS EVENTUALLY INTRODUCED IN THE HOUSE OF REPRESENTATIVES, JUNE 3, 1959, AS H.R. NO. 7527, 86TH CONGRESS, FIRST SESSION, AND WAS REFERRED TO THE COMMITTEE ON ARMED SERVICES. NO ACTION WAS TAKEN ON THIS BILL PRIOR TO THE ADJOURNMENT OF THE CONGRESS AND UNLESS IT IS AGAIN INTRODUCED, NO FURTHER ACTION CAN BE TAKEN.

THE RECORD NOW AVAILABLE TO US DOES NOT PERMIT A SPECIFIC REPLY TO YOUR FIRST QUESTION ASKING WHY YOU WERE NOT NOTIFIED UNTIL JUNE 6, 1960, OF YOUR INDEBTEDNESS. COLLECTION SHOULD HAVE BEEN MADE, IN ACCORDANCE WITH AGREED PROCEDURE, FROM YOUR FINAL PAY ACCOUNT WHEN YOU LEFT THE SERVICE ON JANUARY 31, 1958.

YOU ALSO ASK WHY YOU WERE NOT NOTIFIED AT THE TIME OF OUR DECISIONS IN ORDER THAT YOU MIGHT PRESENT CONTRARY ARGUMENTS SINCE YOUR PERSONAL FUNDS WERE INVOLVED. THE BINDING EFFECT ON THE EXECUTIVE BRANCH OF THE GOVERNMENT OF OUR DECISIONS RELATIVE TO THE AVAILABILITY OF FEDERAL FUNDS FOR EXPENDITURE, OR THE PROPRIETY OF EXPENDITURE ALREADY MADE, IS UNQUESTIONED, 39 COMP. GEN. 264, 268. AS A RESULT OF OUR DETERMINATION THAT THE SO-CALLED "FAMILY SEPARATION ALLOWANCES" WERE UNAUTHORIZED, MORE THAN 4,800 NOTICES OF EXCEPTION TOTALING IN EXCESS OF $774,000 WERE ISSUED AGAINST THE ACCOUNTABLE OFFICERS FOR PAYMENT OF THESE ALLOWANCES. IT WAS NEITHER PRACTICABLE NOR NECESSARY TO NOTIFY EACH MEMBER OF HIS INDEBTEDNESS AND ALLOW HIM TO PRESENT HIS REASONS FOR BELIEVING THE PAYMENTS TO BE PROPER. WE HAVE NO REASON TO DOUBT THAT YOU AND OTHER MEMBERS WHO RECEIVED THESE ERRONEOUS PAYMENTS ACCEPTED THEM IN GOOD FAITH. PRESUMABLY, HOWEVER, MOST OVERPAYMENTS BASED ON UNAUTHORIZED REGULATIONS ARE MADE AND ACCEPTED IN GOOD FAITH. THE COURTS OF THE UNITED STATES HAVE ESTABLISHED THE RULE THAT MONEY PAID UPON AN ERRONEOUS DETERMINATION BY OFFICERS OR AGENTS OF THE GOVERNMENT, WHETHER WITH OR WITHOUT JURISDICTION OF THE PARTICULAR SUBJECT MATTER, MAY BE RECOVERED BACK FROM THE RECIPIENT. UNITED STATES V. GUDEWICZ, (1942) 45 F.SUPP. 787, FOLLOWING UNITED STATES V. BENTLEY, 107 F.2D 382, CITING UNITED STATES V. BURCHARD, 125 U.S. 176; UNITED STATES V. STAHL, 151 U.S. 366; WISCONSIN CENTRAL R.R. COMPANY V. UNITED STATES, 164 U.S. 190, AND UNITED STATES V. WURTZ, 303 U.S. 414.

WITH REGARD TO YOUR REQUEST FOR INFORMATION PERTAINING TO ANY OTHER SUMS WHICH WERE PAID TO YOU IN ERROR OR THROUGH MISTAKE OF LAW, WHETHER ANY OTHER COLLECTION PROCEEDINGS AGAINST YOU ARE NOW PENDING OR SUSPENDED OR CONTEMPLATED, AND WHEN YOU MAY CONSIDER YOURSELF FREE FROM ANY FURTHER CLAIMS OR DEMANDS ARISING OUT OF YOUR MILITARY SERVICE, IT MUST BE STATED WE CANNOT GIVE YOU CATEGORICAL ANSWERS. THERE IS NO RECORD IN THIS OFFICE AT THIS TIME OF ANY OTHER AMOUNTS WHICH MAY HAVE BEEN PAID TO YOU UNDER MISTAKE OF FACT OR LAW, NOR ARE THERE ANY OTHER COLLECTION PROCEEDINGS PENDING HERE OR CONTEMPLATED BY THIS OFFICE. YOU ARE ADVISED, HOWEVER, THAT IF IT SHOULD BE FOUND THAT YOU ARE FURTHER OBLIGATED TO THE UNITED STATES BY REASON OF HAVING RECEIVED ERRONEOUS AND ILLEGAL PAYMENTS INCIDENT TO YOUR MILITARY SERVICE OF WHICH WE ARE NOT NOW AWARE IT WOULD BE OUR RESPONSIBILITY TO TAKE ALL STEPS AVAILABLE TO US TO EFFECT A RECOVERY FOR THE GOVERNMENT OF SUCH ERRONEOUS PAYMENTS.

IN OUR OPINION YOUR OBLIGATION TO THE GOVERNMENT IN THE SUM OF $142.60, THE AMOUNT ERRONEOUSLY RECEIVED BY YOU AS FAMILY SEPARATION ALLOWANCE, IS CLEAR. SHOULD YOU FAIL OR REFUSE TO PAY THE AMOUNT OF SUCH INDEBTEDNESS TO THE DEPARTMENT OF THE AIR FORCE, THE MATTER WILL IN DUE COURSE BE REFERRED HERE FOR FURTHER COLLECTION ACTION AND WE WILL HAVE NO ALTERNATIVE BUT TO PROCEED WITH COLLECTION ACTION.