B-145046, APR. 24, 1961

B-145046, APR. 24, 1961

TO MR. BRUNO WASSERTHEIL:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 24, 1961, REQUESTING RECONSIDERATION OF OUR CLAIMS DIVISION SETTLEMENT DATED JANUARY 18, 1961, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF PER DIEM WHICH WAS PAID TO YOU FOR THE PERIOD AUGUST 16 TO NOVEMBER 14, 1958, AND ADMINISTRATIVELY RECOVERED AT THE TIME OF YOUR SEPARATION FROM SERVICE.

THE RECORD SHOWS THAT ON MAY 23, 1958, YOU WERE INDUCTED INTO THE ARMY AT FORT DIX, NEW JERSEY. UPON COMPLETION OF YOUR BASIC TRAINING ASSIGNMENT AT FORT DIX, NEW JERSEY, YOU WERE DIRECTED BY ORDERS DATED JULY 26, 1958, TO REPORT FOR DUTY NOT LATER THAN AUGUST 15, 1958, TO ATTEND SCHOOL AT FORT MONMOUTH, NEW JERSEY. BY ORDERS DATED NOVEMBER 13, 1958, YOU WERE TRANSFERRED TO A DUTY STATION AT FORT BUCHANAN, PUERTO RICO. PER DIEM WAS PAID TO YOU IN THE AMOUNT OF $91 FOR THE PERIOD AUGUST 16 TO NOVEMBER 14, 1958, WHILE YOU WERE ATTENDING THE COURSE OF INSTRUCTION AT FORT MONMOUTH. THE SUM OF $87.83 WAS COLLECTED FROM YOUR FINAL PAY IN PARTIAL RECOUPMENT OF THE PER DIEM PAYMENT.

AS A BASIS FOR FAVORABLE CONSIDERATION OF YOUR CLAIM YOU CONTEND THAT SINCE THE FINANCE OFFICE AT FORT BUCHANAN DID NOT PAY YOU THE PER DIEM UNTIL AFTER THE PAYMENT WAS APPROVED BY THE OFFICIALS IN WASHINGTON, D.C., THE PAYMENT SHOULD NOT HAVE BEEN SUBJECT TO RECOUPMENT BY THE ARMY EVEN THOUGH IT WAS SUBSEQUENTLY DETERMINED TO BE ERRONEOUS.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AS AMENDED, 37 U.S.C. 253 (A), PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON A PERMANENT CHANGE OF STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POST OF DUTY.

PARAGRAPH 4201-12 OF THE JOINT TRAVEL REGULATIONS (FORMERLY PARAGRAPH 4201-11), WHICH BECAME EFFECTIVE ON JULY 1, 1957, OR MORE THAN A YEAR PRIOR TO THE TIME HERE INVOLVED, PROVIDES THAT PER DIEM ALLOWANCES ARE NOT PAYABLE TO NEWLY INDUCTED OR ENLISTED MEMBERS WHO, PRIOR TO REPORTING TO THEIR FIRST PERMANENT DUTY STATION, ARE PARTICIPATING IN PERIODS OF BASIC TRAINING, PROCESSING, INDOCTRINATION, OR INSTRUCTION AT PLACES WHERE BOTH GOVERNMENT QUARTERS AND SUBSISTENCE ARE AVAILABLE. THE EFFECT OF THIS REGULATION IS TO BAR THE PAYMENT OF PER DIEM TO "NEWLY INDUCTED OR ENLISTED MEMBERS" FOR THEIR INITIAL PERIOD OR SUBSEQUENT PERIODS OF DUTY PRIOR TO THE TIME THEY REPORT TO THEIR DESIGNATED PERMANENT DUTY STATION.

YOUR ASSIGNMENT TO ATTEND A COURSE OF INSTRUCTION AT FORT MONMOUTH, NEW JERSEY, WAS SIMPLY A CONTINUATION OF YOUR BASIC TRAINING, PROCESSING, INDOCTRINATION, OR INSTRUCTION AS A NEWLY INDUCTED ENLISTED MEMBER AND AS SUCH COMES WITHIN PARAGRAPH 4201-12 OF THE REGULATIONS. IN SUCH CIRCUMSTANCES, YOU WERE NOT ENTITLED TO PER DIEM FOR DUTY PERFORMED AT THE SCHOOL AND THE PAYMENT OF PER DIEM TO YOU FOR SUCH DUTY WAS ERRONEOUS. SEE THE ENCLOSED COPY OF OUR DECISION OF DECEMBER 23, 1957, B-130765, PARTICULARLY THE FINAL PARAGRAPH THEREOF.

WHILE, AS YOU SAY, PAYMENT OF THE PER DIEM TO YOU MAY HAVE BEEN APPROVED BY ARMY OFFICIALS IN WASHINGTON, D.C., SUCH APPROVAL CLEARLY WAS CONTRARY TO THE PROVISIONS OF THE GOVERNING REGULATIONS AND SUCH APPROVAL MAY NOT BE VIEWED AS VALIDATING THE PAYMENT OR AS ESTOPPING THE GOVERNMENT TO RECOVER THE AMOUNT ERRONEOUSLY PAID. IT IS A WELL SETTLED PRINCIPLE OF LAW THAT PERSONS WHO RECEIVE ERRONEOUS PAYMENTS FROM THE UNITED STATES THROUGH ADMINISTRATIVE ERROR OF ITS OFFICERS, OR OTHERWISE, 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; WISCONSIN CENTRAL RAILROAD V. UNITED STATES, 164 U.S. 190; UNITED STATES V. BENTLEY, 107 F.2D 382, 384. NO TIME LIMITATION HAS BEEN PLACED UPON THE GOVERNMENT'S RIGHT TO RECOVER ERRONEOUS PAYMENTS OF THE TYPE HERE INVOLVED.

ACCORDINGLY, THE ACTION TAKEN BY THE FINANCE OFFICER AT FORT BUCHANAN TO COLLECT THE ERRONEOUS PAYMENT FROM YOUR FINAL PAY ON BEHALF OF THE UNITED STATES WAS IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF LAW AND REGULATIONS.

WHILE APPRECIATING YOUR FEELING IN THE MATTER, WE TRUST YOU WILL UNDERSTAND THAT THERE IS NO BASIS ON WHICH WE MAY GIVE YOUR CLAIM FAVORABLE CONSIDERATION AND THAT THE SETTLEMENT OF JANUARY 18, 1961, MUST BE SUSTAINED.