B-145719, JUN. 14, 1961

B-145719, JUN. 14, 1961

TO MR. EDWARD R. TILL:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 10, 1961, REQUESTING REVIEW OF THE MATTER OF YOUR INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $168 ARISING AS A RESULT OF ERRONEOUS PER DIEM PAYMENTS YOU RECEIVED INCIDENT TO YOUR SERVICE IN THE ARMY AS A SECOND LIEUTENANT.

THE RECORD SHOWS THAT WHILE YOU WERE AT FORT KNOX, KENTUCKY, IN THE PERFORMANCE OF TEMPORARY DUTY, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 46 DATED MARCH 6, 1956, ASSIGNED YOU TO PERMANENT DUTY AT FORT KNOX EFFECTIVE UPON COMPLETION OF SUCH TEMPORARY DUTY. YOU WERE PAID PER DIEM AT THE RATE OF $4 PER DAY FOR THE PERIOD MARCH 9 TO 15, 1956, IN THE SUM OF $28, AND FOR THE PERIOD MARCH 16 TO APRIL 19, 1956, IN THE SUM OF $140, A TOTAL OF $168. UPON AUDIT OF THE DISBURSING OFFICER'S ACCOUNTS WE TOOK EXCEPTION TO THE PAYMENTS OF PER DIEM FOR THE REASON THAT UPON RECEIPT OF YOUR ORDERS NAMING FORT KNOX AS YOUR PERMANENT STATION THAT PLACE BECAME YOUR DESIGNATED POST OF DUTY AND AS A CONSEQUENCE YOU WERE NO LONGER ENTITLED TO PER DIEM.

AUTHORITY FOR PAYMENT OF PER DIEM TO MEMBERS OF THE UNIFORMED SERVICES IS CONTAINED IN SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253, WHICH 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 OR TO BE PERFORMED UNDER COMPETENT ORDERS UPON CHANGE OF PERMANENT STATION OR OTHERWISE,"OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY.' IRRESPECTIVE OF ANY OTHER CONSIDERATIONS, NO AUTHORITY EXISTS FOR THE PAYMENT OF PER DIEM ALLOWANCES INCIDENT TO TEMPORARY DUTY UNLESS SUCH DUTY IS PERFORMED IN A TRAVEL STATUS AT A POINT REMOVED FROM THE MEMBER'S PERMANENT STATION. A MEMBER'S DESIGNATED POST OF DUTY OR PERMANENT STATION IS THE LOCATION OF HIS BASIC DUTY ASSIGNMENT AND THE PLACE TO WHICH HE IS TO RETURN OR TO PROCEED UPON COMPLETION OF A TEMPORARY DUTY ASSIGNMENT. IF THE LOCATION OF A MEMBER'S PERMANENT STATION IS CHANGED TO THE STATION WHERE TEMPORARY DUTY IS BEING PERFORMED, NO FURTHER TRAVEL IS REQUIRED TO COMPLY WITH THE ORDERS REGARDLESS OF THE EFFECTIVE DATE OF THE CHANGE AND THE MEMBER IS NO LONGER IN A TRAVEL STATUS AWAY FROM HIS DESIGNATED POST OF DUTY.

IN YOUR CASE, ALTHOUGH SPECIAL ORDERS NO. 46 CONTEMPLATED THE CONTINUED PERFORMANCE OF YOUR THEN TEMPORARY DUTY, THE ORDERS ALSO REMOVED THE NECESSITY FOR FURTHER TRAVEL ON YOUR PART AND YOU WERE NO LONGER IN THE STATUS OF BEING AWAY FROM YOUR DESIGNATED POST OF DUTY. NO RIGHT TO PER DIEM COULD ACCRUE TO YOU THEREAFTER SINCE SUCH DUTY WAS THEN BEING PERFORMED AT YOUR DESIGNATED POST OF DUTY. SEE 34 COMP. GEN. 427.

CONCERNING YOUR STATEMENT THAT YOU DID NOT RECEIVE THE ORDERS OF MARCH 6, 1956, UNTIL APRIL 19, 1956, INFORMATION FURNISHED THIS OFFICE BY THE ADJUTANT GENERAL'S OFFICE, DEPARTMENT OF THE ARMY, IS TO THE EFFECT THAT THE ORDERS WERE MAILED TO YOU IN CARE OF THE COMMANDANT OF THE ARMORED SCHOOL, FORT KNOX, ON OR ABOUT MARCH 6, 1956. ALLOWING NORMAL MAILING TIME THE ORDERS ARE CONSIDERED TO HAVE BEEN RECEIVED NOT LATER THAN MARCH 9, 1956. IT IS UNDERSTOOD THAT COPIES OF DEPARTMENT OF THE ARMY SPECIAL ORDERS WHICH ARE SENT AS ORIGINAL ORDERS TO THOSE AFFECTED BEAR MAILING INSTRUCTIONS REQUIRING IMMEDIATE DELIVERY TO THE MEMBER CONCERNED OR PROMPT RETURN TO THE ADJUTANT GENERAL'S OFFICE, DEPARTMENT OF THE ARMY.

ON DISPUTED QUESTIONS OF FACT BETWEEN A CLAIMANT AND ADMINISTRATIVE OFFICERS OF THE GOVERNMENT, THE ESTABLISHED RULE OF THE ACCOUNTING OFFICERS IS TO ACCEPT THE STATEMENTS OF FACTS AS FURNISHED BY THE ADMINISTRATIVE OFFICERS IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. SEE 31 COMP. GEN. 288. THEREFORE, UNLESS YOU CAN ESTABLISH THAT YOU ACTUALLY DID NOT RECEIVE THE ORDERS ON MARCH 9, 1956, AS FOR EXAMPLE, BY SUBMITTING A COPY OF THE ORIGINAL ORDERS ENDORSED TO SHOW A DIFFERENT DELIVERY DATE OR OTHERWISE SUBMIT EVIDENCE THAT YOU DID NOT RECEIVE ORDERS ON OR BEFORE MARCH 9, 1956, WE MUST ACCEPT THE ADMINISTRATIVE REPORT IN THE MATTER. CONSEQUENTLY, ON THAT BASIS, THE SUM OF $168 PAID TO YOU AS PER DIEM AFTER FORT KNOX BECAME YOUR PERMANENT DUTY STATION MAY NOT BE CONSIDERED AS AUTHORIZED UNDER THE LAW AND REFUND OF SUCH PAYMENT MUST BE MADE. IT IS WELL SETTLED THAT, IN THE ABSENCE OF A STATUTE SO PROVIDING, PERSONS WHO RECEIVE ERRONEOUS PAYMENTS FROM THE UNITED STATES THROUGH ADMINISTRATIVE ERROR OF ITS OFFICERS MUST REFUND SUCH PAYMENTS TO THE UNITED STATES. ROBERTSON V. SICHEL, 127 U.S. 507; UNITED STATES V. NORTHWESTERN NATIONAL BANK AND TRUST COMPANY OF MINNEAPOLIS, 35 F.SUPP. 484, 86; WISCONSIN CENTRAL RAILROAD V. UNITED STATES, 164 U.S. 190; UNITED STATES V. BENTLEY, 107 F.2D 382, 384.

ACCORDINGLY, WE HAVE NO CHOICE BUT TO REAFFIRM OUR PREVIOUS ACTION IN THE MATTER. YOU ARE AGAIN REQUESTED TO SEND A CHECK OR MONEY ORDER PAYABLE TO THE "U.S. GENERAL ACCOUNTING OFFICE" IN THE SUM OF $168, ADDRESSED TO THE U.S. GENERAL ACCOUNTING OFFICE, BOX 2610, WASHINGTON 13, D.C. ..END :