B-147644, FEB. 7, 1962

B-147644, FEB. 7, 1962

TO LIEUTENANT JOHN J. COLLIER, JR.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 18, 1961, REQUESTING RECONSIDERATION, ON EQUITABLE GROUNDS, OF THE DEMAND PREVIOUSLY MADE UPON YOU FOR REPAYMENT OF THE $200 MUSTERING-OUT PAY WHICH WAS ERRONEOUSLY PAID TO YOU INCIDENT TO YOUR APPOINTMENT AS SECOND LIEUTENANT IN THE REGULAR AIR FORCE PURSUANT TO SPECIAL ORDERS NO. 173,DATED SEPTEMBER 6, 1955.

YOU HAVE QUOTED A PORTION OF YOUR ORDERS RELATIVE TO THE TENDER OF A TEMPORARY APPOINTMENT IN THE UNITED STATES AIR FORCE COINCIDENT WITH APPOINTMENT IN THE REGULAR AIR FORCE. HOWEVER, A COMPLETE QUOTATION OF THIS PORTION OF YOUR ORDERS IS AS FOLLOWS:

"ACPT OF THIS APT WILL NOT AFFECT TEMP APT OR DR IN TEMP GR HELD BY APPOINTEES. AFRES COM ARE VAC ON THE DAY PRIOR TO DATE OF EXECUTION OF OATH OF OFFICE AS REGAFO. AN O ACPT REGAF APT WHO IS SERVING IN HIS RES OF THE AF GR EQUIVALENT TO OR HIGHER THAN HIS REGAF GR IS TENDERED A TEMP USAF APT IN THE EQUIVALENT OR HIGHER GR WITH NO CHANGE IN CURR AD DS. ALL APPOINTEES ARE ORDERED TO AD IN THE USAF COM GR AS DETA ABOVE ON DATE OF ACPT OF REGAF APT AND ASG TO PRESENT ORG AND STA.'

THE RECORD OF YOUR SERVICE SHOWS THAT YOU ACCEPTED AN APPOINTMENT AS SECOND LIEUTENANT IN THE AIR FORCE RESERVE ON JULY 6, 1953, AND THAT YOU WERE APPOINTED A SECOND LIEUTENANT IN THE AIR FORCE OF THE UNITED STATES ON DECEMBER 8, 1953, AND ORDERED TO ACTIVE DUTY THEREUNDER ON THAT DATE. YOU WERE PROMOTED TO THE TEMPORARY GRADE OF FIRST LIEUTENANT IN THE UNITED STATES AIR FORCE ON JUNE 8, 1955, AND WERE SERVING ON ACTIVE DUTY IN THAT GRADE RATHER THAN UNDER YOUR RESERVE COMMISSION AS SECOND LIEUTENANT AT THE TIME OF YOUR APPOINTMENT AS SECOND LIEUTENANT IN THE REGULAR AIR FORCE. THEREFORE, THE PROVISION IN THE ORDERS WHICH IS APPLICABLE IN YOUR CASE IS THE SENTENCE WHICH READS,"ACPT OF THIS APT WILL NOT AFFECT TEMP APT OR DR IN TEMP GR HELD BY APPOINTEES," RATHER THAN THE SENTENCE PARTIALLY QUOTED BY YOU. EFFECTIVE DECEMBER 8, 1956, YOU WERE PROMOTED TO THE PERMANENT GRADE OF FIRST LIEUTENANT IN THE REGULAR AIR FORCE AND YOU CONTINUED SERVING IN THAT GRADE UNTIL YOUR HONORABLE DISCHARGE ON NOVEMBER 14, 1958.

SINCE THE TERMINATION OF YOUR INACTIVE RESERVE COMMISSION AT THE TIME OF YOUR APPOINTMENT IN THE REGULAR AIR FORCE DID NOT CONSTITUTE A SEPARATION OR DISCHARGE WITHIN THE MEANING OF THE MUSTERING-OUT PAY PROVISIONS OF TITLE V OF THE VETERANS READJUSTMENT ASSISTANCE ACT OF 1952, 66 STAT. 688, NOW CONTAINED IN 38 U.S.C. 2101-2105, AND YOU CONTINUED TO SERVE UNDER YOUR TEMPORARY APPOINTMENT AS FIRST LIEUTENANT, THE PAYMENT MADE TO YOU WAS ERRONEOUS AND YOU ACQUIRED NO RIGHT THERETO. SEE 36 COMP. GEN. 645. AT THE TIME OF YOUR FINAL SEPARATION AND HONORABLE DISCHARGE, NOVEMBER 14, 1958, WHEN YOU OTHERWISE WOULD HAVE BEEN ENTITLED TO MUSTERING-OUT PAY, 38 U.S.C. 2101 (B) PROHIBITED PAYMENT TO A COMMISSIONED OFFICER UNLESS HE WAS DISCHARGED OR RELEASED BEFORE JANUARY 31, 1958.

THE GENERAL ACCOUNTING OFFICE IS CHARGED WITH THE RESPONSIBILITY FOR SETTLING ALL CLAIMS OR DEMANDS BY THE GOVERNMENT OF THE UNITED STATES OR AGAINST IT. SEE 31 U.S.C. 71. THE FACT THAT AN ERRONEOUS PAYMENT WAS MADE TO YOU AND THAT YOU MAY HAVE RELIED IN PART ON SUCH PAYMENT WHEN YOU ACCEPTED YOUR COMMISSION IN THE REGULAR AIR FORCE DOES NOT AFFECT YOUR LEGAL LIABILITY TO REFUND THE AMOUNT DUE. IN THE ABSENCE OF A STATUTE SO PROVIDING, THE GOVERNMENT IS NOT RESPONSIBLE FOR THE MISTAKES OF ITS OFFICERS AND EMPLOYEES AND IT IS WELL SETTLED THAT PERSONS WHO RECEIVE ERRONEOUS PAYMENTS FROM THE UNITED STATES THROUGH ADMINISTRATIVE ERROR OF ITS OFFICERS MUST RETURN THEM TO THE UNITED STATES. WISCONSIN CENTRAL RAILROAD V. UNITED STATES, 164 U.S. 190; UNITED STATES V. BURCHARD, 125 U.S. 176; UNITED STATES V. DEMPSEY, 104 F. 197; UNITED STATES V. BENTLEY, 107 F.2D 382.

ACCORDINGLY, WE HAVE NO RECOURSE OTHER THAN TO REAFFIRM OUR PREVIOUS ACTION IN THIS MATTER AND AGAIN REQUEST YOU TO REMIT THE SUM OF $200 TO COVER THE ERRONEOUS PAYMENT OF MUSTERING-OUT PAY. YOUR CHECK SHOULD BE DRAWN IN FAVOR OF THE U.S. GENERAL ACCOUNTING OFFICE AND SHOULD BE MAILED TO THE U.S. GENERAL ACCOUNTING OFFICE, POST OFFICE BOX 2610, WASHINGTON 13, D.C.

WITH REFERENCE TO YOUR INQUIRY AS TO THE DATE OF TERMINATION OF YOUR APPOINTMENT IN THE AIR FORCE OF THE UNITED STATES, WITHOUT COMPONENT, THE RECORDS BEFORE THIS OFFICE DO NOT SHOW WHETHER OR NOT ANY ACTION WAS TAKEN BEFORE YOUR FINAL SEPARATION TO TERMINATE YOUR APPOINTMENT UNDER 10 U.S.C. 8447 (C), WHICH AUTHORIZES THE PRESIDENT TO VACATE AT ANY TIME A TEMPORARY APPOINTMENT IN A COMMISSIONED GRADE IN THE AIR FORCE OF THE UNITED STATES. IF IT BE ASSUMED THAT THE TEMPORARY APPOINTMENT CONTINUED UNTIL DATE OF YOUR HONORABLE DISCHARGE, NOVEMBER 14, 1958, THAT CIRCUMSTANCE WOULD NOT ENTITLE YOU TO PAY AND ALLOWANCES FOR TRAVEL TIME TO YOUR HOME FOR THE REASONS STATED BELOW.

SECTION 201 (D) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 232 (D) PROVIDES IN PART THAT, IN THE CASE OF MEMBERS OF THE UNIFORMED SERVICES CALLED OR ORDERED TO ACTIVE DUTY IN EXCESS OF 30 DAYS, ACTIVE DUTY SHALL INCLUDE THE TIME REQUIRED TO PERFORM TRAVEL FROM HOME TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO HOME. THIS PROVISION NECESSARILY CONTEMPLATES AN INACTIVE DUTY STATUS FROM WHICH THE MEMBER MAY BE CALLED OR ORDERED TO ACTIVE DUTY FOR COMPARATIVELY SHORT PERIODS OF TIME AND TO WHICH HE WILL AUTOMATICALLY REVERT UPON RELEASE FROM SUCH ACTIVE DUTY. YOUR APPOINTMENT IN THE AIR FORCE RESERVE WAS TERMINATED AT THE TIME OF YOUR APPOINTMENT IN THE REGULAR AIR FORCE UNDER ORDERS OF SEPTEMBER 6, 1955. THEREAFTER YOU HAD NO STATUS WHICH WOULD PERMIT YOUR RELEASE TO INACTIVE DUTY AND YOUR ACTIVE DUTY STATUS COULD BE BROUGHT TO AN END ONLY BY THE TERMINATION OF YOUR REGULAR AIR FORCE COMMISSION. APPARENTLY YOU SUBMITTED YOUR RESIGNATION FROM THE REGULAR AIR FORCE AND YOUR DISCHARGE WAS ACCOMPLISHED UNDER PARAGRAPH 5B, AIR FORCE REGULATION 36 12. WHILE YOU WERE APPOINTED A FIRST LIEUTENANT IN THE AIR FORCE RESERVE, EFFECTIVE NOVEMBER 14, 1958, UPON YOUR HONORABLE DISCHARGE FROM THE REGULAR AIR FORCE, SUCH APPOINTMENT DID NOT ENTITLE YOU TO PAY AND ALLOWANCES FOR TRAVEL TIME FROM YOUR LAST DUTY STATION TO YOUR HOME SINCE YOU WERE NOT RELEASED FROM ACTIVE DUTY UNDER THAT COMMISSION.