B-147860, JAN. 19, 1962

B-147860, JAN. 19, 1962

TO MR. RICHARD E. TURNER:

THERE HAS BEEN RECEIVED ON YOUR BEHALF A LETTER DATED DECEMBER 12, 1961, FROM MR. ROY SCHAEFFER OF THE ABOVE-NAMED FIRM OF ATTORNEYS IN EFFECT REQUESTING REVIEW OF THE ACTION OF THIS OFFICE RELATIVE TO YOUR INDEBTEDNESS TO THE UNITED STATES ARISING FROM YOUR MILITARY SERVICE.

THE RECORD SHOWS THAT YOU WERE DISCHARGED FROM ENLISTED SERVICE IN THE U.S. AIR FORCE ON NOVEMBER 15, 1951, AT WHICH TIME YOU WERE SERVING IN THE GRADE OF SERGEANT (E-4) WITH OVER FOUR YEARS' SERVICE. YOU ENLISTED IN THE ARMY IN THE GRADE OF PRIVATE (E-2) ON NOVEMBER 16, 1951, FOR THE PURPOSE OF ATTENDING A COURSE OF INSTRUCTION AT OFFICER CANDIDATE SCHOOL, UPON THE COMPLETION OF WHICH AND IF QUALIFIED, YOU WERE TO BE COMMISSIONED AN OFFICER IN THE UNITED STATES ARMY. YOU WERE COMMISSIONED A SECOND LIEUTENANT ON NOVEMBER 22, 1952. AT THE TIME OF YOUR DISCHARGE FROM THE AIR FORCE YOU HAD TO YOUR CREDIT IN YOUR LEAVE ACCOUNT 28 DAYS' ACCRUED UNUSED LEAVE FOR WHICH YOU SHOULD HAVE BEEN PAID A LUMP SUM OF $120.85 REPRESENTING PAY AND ALLOWANCES AS A SERGEANT (E-4) LESS FEDERAL WITHHOLDING TAX, PURSUANT TO SECTION 4 (C) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, 37 U.S.C. 33 (C). INSTEAD, YOUR LEAVE WAS TRANSFERRED TO YOUR NEW ENLISTMENT IN THE ARMY. FOLLOWING YOUR ENLISTMENT IN THE ARMY YOU SERVED CONTINUOUSLY AS AN ENLISTED MAN AND COMMISSIONED OFFICER UNTIL RELEASED FROM ACTIVE DUTY AS FIRST LIEUTENANT ON MARCH 1, 1958.

DURING YOUR SERVICE IN THE ARMY YOU EARNED A MAXIMUM OF 190 DAYS' LEAVE AND USED A TOTAL OF 187 DAYS. THEREFORE, UPON RELEASE FROM ACTIVE DUTY ON MARCH 1, 1958, YOU WERE ENTITLED TO A LUMP-SUM PAYMENT FOR THREE DAYS' LEAVE COMPUTED ON THE BASIS OF A FIRST LIEUTENANT WITH OVER 10 YEARS' SERVICE, OR $52.43. SINCE YOU WERE IN FACT PAID $611.66 FOR 35 DAYS' LEAVE YOU WERE OVERPAID $559.23, WHICH OVERPAYMENT HAS BEEN REDUCED TO $438.38 BY APPLICATION OF THE AMOUNT OF $120.85 DUE YOU FOR ACCRUED LEAVE FROM THE AIR FORCE. SINCE YOU HAVE NOT REPAID THAT AMOUNT OR MADE ARRANGEMENTS FOR ITS LIQUIDATION IN INSTALLMENTS, BY LETTER OF SEPTEMBER 27, 1961, WE REQUESTED THE HEAD OF THE GOVERNMENT AGENCY IN WHICH YOU ARE NOW EMPLOYED, THE FEDERAL AVIATION AGENCY, TO ASSIST US IN MAKING COLLECTION.

IN HIS PRESENT LETTER MR. SCHAEFFER SAYS THAT YOU BELIEVE THE ERRONEOUS PAYMENT WAS VALIDATED BY THE ACT OF AUGUST 28, 1954, 68 STAT. 917. ALSO, HE EXPRESSES THE BELIEF THAT THE SPIRIT OF 10 U.S.C. 2772 HAS BEEN VIOLATED BY OUR REQUEST TO THE FEDERAL AVIATION AGENCY, AND THAT THE GOVERNMENT SHOULD BE LIMITED TO THE SAME REMEDIES IT WOULD HAVE HAD IF YOU HAD REMAINED IN THE SERVICE.

THE ACT OF AUGUST 28, 1954, 68 STAT. 917, VALIDATED CERTAIN ERRONEOUS PAYMENTS FOR ACCRUED LEAVE MADE PRIOR TO THAT DATE TO ANY MEMBER OF THE ARMED FORCES WHO WAS DISCHARGED AFTER AUGUST 31, 1946, FOR THE PURPOSE OF IMMEDIATE REENLISTMENT FOR AN INDEFINITE PERIOD. SINCE THE ERRONEOUS PAYMENT HERE INVOLVED WAS MADE SUBSEQUENT TO AUGUST 28, 1954, THAT ACT AFFORDS NO BASIS FOR VALIDATING SUCH PAYMENT. FOR YOUR INFORMATION, THE PRIMARY PURPOSE OF THE ACT OF AUGUST 28, 1954, WAS TO VALIDATE ERRONEOUS PAYMENTS OF ACCRUED LEAVE TO 51 MEMBERS OF THE ARMY WHO WERE DISCHARGED FROM THEIR CURRENT ENLISTMENTS FOR THE PURPOSE OF REENLISTING FOR AN INDEFINITE PERIOD AND WERE PAID ACCRUED LEAVE DURING THE PERIOD APRIL 1, 1949, TO SEPTEMBER 30, 1949. SEE HOUSE OF REPRESENTATIVES REPORT NO. 2249 DATED JULY 15, 1954, ON S. 22 WHICH BECAME THE ACT OF AUGUST 28, 1954.

THE ACT OF JULY 16, 1892, NOW CODIFIED IN 10 U.S.C. 2772, PROVIDES THAT THE PAY OF AN OFFICER OF THE ARMY, NAVY, AIR FORCE OR MARINE CORPS MAY BE WITHHELD UNDER SECTION 82 OF TITLE 5 ONLY FOR AN INDEBTEDNESS TO THE UNITED STATES ADMITTED BY THE OFFICER OR SHOWN BY THE JUDGMENT OF A COURT OR UPON A SPECIAL ORDER ISSUED IN THE DISCRETION OF THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED. SECTION 82 OF TITLE 5 OF THE CODE PROVIDES THAT "NO MONEY SHALL BE PAID TO ANY PERSON FOR HIS COMPENSATION WHO IS IN ARREARS TO THE UNITED STATES, UNTIL HE HAS ACCOUNTED FOR AND PAID INTO THE TREASURY ALL SUMS FOR WHICH HE MAY BE LIABLE.' UNLIKE THE TYPE OF INDEBTEDNESS INVOLVED IN YOUR CASE, THE PROVISIONS OF 10 U.S.C. 2772 IN CONJUNCTION WITH 5 U.S.C. 82 ARE AIMED GENERALLY AT INDEBTEDNESS OF OFFICERS OF THE ARMY, NAVY, AIR FORCE, OR MARINE CORPS WHO HAVE FAILED TO ACCOUNT FOR PUBLIC FUNDS WITH WHICH THEY HAVE BEEN ENTRUSTED AND FOR WHICH THEY ARE REQUIRED TO ACCOUNT. SEE ENCLOSED COPY OF OUR DECISION TO THE SECRETARY OF DEFENSE DATED NOVEMBER 18, 1957, B-133705, 37 COMP. GEN. 344, AND THE AUTHORITIES THERE CITED. HENCE, CONTRARY TO MR. SCHAEFFER'S APPARENT BELIEF, THE PAY WITHHOLDING PROVISION IN 10 U.S.C. 2772 WOULD NOT HAVE BEEN APPLICABLE TO YOUR TYPE OF INDEBTEDNESS HAD YOU REMAINED IN THE SERVICE.

IN THE EVENT YOU CONTINUED ON ACTIVE DUTY SUBSEQUENT TO A DETERMINATION OF YOUR INDEBTEDNESS, THE ACT OF JULY 15, 1954, 5 U.S.C. 46D, PROVIDES IN PERTINENT PART THAT WHEN IT IS DETERMINED BY THE SECRETARY OF THE DEPARTMENT CONCERNED OR THE HEAD OF THE AGENCY OR INDEPENDENT ESTABLISHMENT CONCERNED, OR ONE OF THEIR DESIGNEES, THAT AN EMPLOYEE OF THE UNITED STATES OR ANY MEMBER OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD, OR A RESERVE COMPONENT THEREOF, IS INDEBTED TO THE UNITED STATES AS THE RESULT OF ANY ERRONEOUS PAYMENT MADE BY THE DEPARTMENT, AGENCY OR INDEPENDENT ESTABLISHMENT CONCERNED TO OR ON BEHALF OF ANY SUCH PERSON, THE AMOUNT OF SUCH INDEBTEDNESS MAY BE COLLECTED IN MONTHLY INSTALLMENTS. THUS, HAD YOU REMAINED IN THE SERVICE SUCH COLLECTION COULD HAVE BEEN MADE BY DEDUCTIONS FROM YOUR PAY WITHOUT AGREEMENT ON YOUR PART. SEE PARAGRAPH 13-31, ARMY REGULATIONS 37-104. SINCE WE ARE REQUIRED BY LAW (31 U.S.C. 71) TO EFFECT COLLECTION OF CERTAIN DEBTS DUE THE UNITED STATES AND SINCE YOU WERE OVERPAID BY THE GOVERNMENT AND ARE NOW EMPLOYED BY THE GOVERNMENT, THE MATTER OF YOUR INDEBTEDNESS WAS BROUGHT TO THE ATTENTION OF THE GOVERNMENT AGENCY BY WHICH YOU ARE NOW EMPLOYED FOR THE PURPOSE OF OBTAINING YOUR VOLUNTARY REMITTANCE. SEE 4 GAO 5000.

WHILE THE OVERPAYMENT TO YOU RESULTED FROM AN ADMINISTRATIVE ERROR, IT IS WELL SETTLED THAT PERSONS RECEIVING MONEY ERRONEOUSLY PAID BY A GOVERNMENT AGENCY OR OFFICIAL ACQUIRE NO RIGHT TO SUCH MONEY AND IT HAS CONSISTENTLY BEEN HELD BY THE COURTS THAT SUCH PERSONS ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION. UNITED STATES V. BARTRON, 35 F.2D 765; UNITED STATES V. BENTLEY, 107 F.2D 382, AND UNITED STATES V. GUDEWIEZ, 45 F.SUPP. 787. ACCORDINGLY, IT WILL BE NECESSARY FOR THIS OFFICE TO CONTINUE COLLECTION PROCEEDINGS.