B-147755, JAN. 22, 1962

B-147755, JAN. 22, 1962

TO MR. LOUIS J. DITRANI:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 22, 1961, CONCERNING YOUR CLAIM FOR $100 AS ADMINISTRATIVE FUNCTION PAY INCIDENT TO YOUR SERVICE AS AN OFFICER IN THE AIR FORCE RESERVE.

THE RECORD INDICATES THAT FOR FIVE MONTHS IN 1960 YOU WERE THE COMMANDING OFFICER OF HEADQUARTERS SQUADRON, 445TH TROOP CARRIER WING, A RESERVE UNIT BASED AT DOBBINS AIR FORCE BASE, GEORGIA, AND WERE PAID $20 PER MONTH ADMINISTRATIVE FUNCTION PAY FOR THAT PERIOD. THE DEPARTMENT OF THE AIR FORCE SUBSEQUENTLY DETERMINED THAT THE PAYMENT WAS ERRONEOUS AND COLLECTED $100 BY DEDUCTIONS IN YOUR PAY ACCOUNT FOR MAY, JUNE AND JULY 1961. SETTLEMENT OF NOVEMBER 6, 1961, DISALLOWING YOUR CLAIM, IT WAS STATED THAT THE APPROVED TABLE OF ORGANIZATION SHOWS THAT A WING HEADQUARTERS SQUADRON SECTION OR GROUP HEADQUARTERS SQUADRON SECTION IS NOT A DISTINCT OR SEPARATE UNIT AND, THEREFORE, THAT YOU DID NOT QUALIFY FOR ADMINISTRATIVE FUNCTION PAY. IT IS YOUR CONTENTION THAT THE ADMINISTRATIVE FUNCTION PAY WAS PROPERLY PAID TO YOU UNDER PARAGRAPH 10620B, AIR FORCE MANUAL 173-22, DATED DECEMBER 15, 1956, AND THAT IT WAS RECOUPED BECAUSE OF PROVISIONS CONTAINED IN PARAGRAPH 50138, AIR FORCE MANUAL 177-105, JULY 1, 1960. YOUR PRESENT LETTER YOU QUESTION HOW MONEY EARNED IN GOOD FAITH AND PAID IN GOOD FAITH COULD BE COLLECTED FROM YOU UNDER SUBSEQUENTLY ISSUED REGULATIONS. YOU SAY THAT YOU PERFORMED THE ADMINISTRATIVE DUTIES OF A SQUADRON COMMANDER AND CONTEND THAT SINCE AUTHORITY EXISTS FOR PAYING SQUADRON COMMANDERS A DISTINCTION BETWEEN TYPES OF SQUADRON COMMANDERS CANNOT BE JUSTIFIED ON THE BASIS OF A TABLE OF ORGANIZATION.

SECTION 501 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 301 (C), PROVIDES THAT NATIONAL GUARD AND RESERVE OFFICERS COMMANDING ORGANIZATIONS HAVING ADMINISTRATIVE FUNCTIONS CONNECTED THEREWITH SHALL BE ENTITLED TO $240 A YEAR FOR THE FAITHFUL PERFORMANCE OF SUCH ADMINISTRATIVE FUNCTIONS UNDER SUCH REGULATIONS AS THE SECRETARY CONCERNED MAY PRESCRIBE; AND FOR THE PURPOSE OF DETERMINING HOW MUCH SHALL BE PAID TO SUCH OFFICERS SO PERFORMING SUCH FUNCTIONS, ,THE SECRETARY CONCERNED MAY, FROM TIME TO TIME, DIVIDE THEM INTO CLASSES AND FIX THE AMOUNT PAYABLE TO THE OFFICERS IN EACH CLASS.'

THE ADMINISTRATIVE FUNCTIONS FOR WHICH ADMINISTRATIVE FUNCTION PAY ACCRUED DURING THE PERIOD OF YOUR CLAIM ARE SET OUT IN PARAGRAPH 10620A, AIR FORCE MANUAL 173-22, CHANGE 3, DATED MARCH 28, 1958, AS FOLLOWS:

"ALL DUTIES OTHER THAN DRILLING OR TRAINING TROOPS ARE ADMINISTRATIVE FUNCTIONS. THESE FUNCTIONS INCLUDE BUT ARE NOT LIMITED TO, DUTIES IN CONNECTION WITH DISCIPLINE, SUPERVISION OF CARETAKERS, AIR TECHNICIANS, PRESERVATION OF EQUIPMENT, SAFEGUARDING OF PROPERTY, SUBSISTENCE, PAY, CLOTHING ACCOUNTS, REPORTS, RETURN AND THE KEEPING OF ORGANIZATION RECORDS.'

PARAGRAPH 10620B OF THE MANUAL PROVIDED THAT THE COMMANDER OF AIR FORCE RESERVE ORGANIZATIONS NAMED AS SEPARATE ORGANIZATIONS IN THE APPROVED TABLES OF ORGANIZATION OR DULY CONSTITUTED AIR RESERVE CENTER GROUPS AND SQUADRONS WERE ELIGIBLE FOR ADMINISTRATIVE FUNCTION PAY. PARAGRAPH 10622, HOWEVER, PROVIDED IN SUBSTANCE THAT COMMANDERS OF AIR FORCE RESERVE TRAINING CATEGORY A UNITS AND AIR FORCE RESERVE GROUPS AND SQUADRONS ASSIGNED OR ATTACHED TO NUMBERED AIR RESERVE CENTERS, ARE ENTITLED TO ADMINISTRATIVE FUNCTION PAY PROVIDED THE OFFICER PERFORMS THE ADMINISTRATIVE FUNCTIONS OF THE ORGANIZATION. HENCE, IT SEEMS CLEAR THAT THE SEPARATE ORGANIZATION PROVISIONS OF PARAGRAPH 10620B WERE NOT INTENDED TO LIMIT THE PAYMENT OF ADMINISTRATIVE FUNCTION PAY TO COMMANDERS OF SEPARATE ORGANIZATIONS. SUCH PROVISIONS APPEAR TO BE SIMPLY A RECOGNITION THAT COMMANDERS OF SEPARATE ORGANIZATIONS NECESSARILY PERFORM THE ADMINISTRATIVE FUNCTIONS OF THE ORGANIZATION AND, THEREFORE, ONLY A SHOWING OF SEPARATE ORGANIZATION IS REQUIRED TO SUPPORT THE PAYMENT OF ADMINISTRATIVE FUNCTION PAY TO SUCH COMMANDERS. WHEN THE ORGANIZATION IS NOT FUNCTIONING SEPARATELY BUT IS A SUBORDINATE PART OF THE LARGER GROUP, THE ADMINISTRATIVE FUNCTIONS OF THE ORGANIZATION ARE, FOR THE MOST PART, NORMALLY PERFORMED BY THE HEADQUARTERS OF THE LARGER GROUP. SEE AIR FORCE REGULATIONS 20-15. CONSEQUENTLY, IN SUCH CASES, PAYMENT OF ADMINISTRATIVE FUNCTION PAY MUST BE SUPPORTED BY A CLEAR SHOWING THAT COMMANDERS OF THE SUBORDINATE UNITS DID IN FACT PERFORM THE ADMINISTRATIVE FUNCTIONS OF THEIR UNITS. SINCE YOUR SQUADRON DID NOT FUNCTION AS A SEPARATE ORGANIZATION AND THE RECORD DOES NOT OTHERWISE ESTABLISH THAT YOU PERFORMED THOSE DUTIES SET OUT IN THE ABOVE-QUOTED PARAGRAPH 10620A, AIR FORCE MANUAL 173-22, WE MAY NOT CONCLUDE CONTRARY TO THE AIR FORCE DETERMINATION, THAT YOU WERE QUALIFIED FOR THE ADMINISTRATIVE FUNCTION PAY WHICH YOU RECEIVED.

WHILE THE AMOUNT CREDITED TO YOUR ACCOUNT AS ADMINISTRATIVE FUNCTION PAY MAY HAVE BEEN RECEIVED IN GOOD FAITH, THAT FACT DID NOT ENTITLE YOU TO RETAIN IT. THE COURTS HAVE HELD THAT THERE IS NO EQUITABLE RIGHT TO RETAIN MONEY ERRONEOUSLY PAID BY THE GOVERNMENT. THE COURT STATED IN UNITED STATES V. NORTHWESTERN NATIONAL BANK AND TRUST COMPANY OF MINNEAPOLIS, 35 F.SUPP. 484, 486, 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. SEE 35 COMP. GEN. 401.

ACCORDINGLY, ON THE PRESENT RECORD, THE SETTLEMENT OF NOVEMBER 6, 1961, WAS CORRECT AND IS SUSTAINED. IF, HOWEVER, YOU CAN ESTABLISH THAT YOU ACTUALLY PERFORMED THE SPECIFIED ADMINISTRATIVE FUNCTIONS OF YOUR SQUADRON AND OFFICIAL VERIFICATION CAN BE OBTAINED OF SUCH FACT, THE MATTER WILL RECEIVE FURTHER CONSIDERATION.