B-149246, AUG. 14, 1962

B-149246, AUG. 14, 1962

TO CAPTAIN MARK W. WOODS, USN:

BY LETTER DATED MAY 29, 1962, THE ADMINISTRATIVE ASSISTANT TO THE SECRETARY OF THE NAVY FORWARDED HERE YOUR LETTER OF MAY 8, 1962, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $108. THIS INDEBTEDNESS AROSE AS A RESULT OF OUR SETTLEMENT IN YOUR FAVOR, DATED JUNE 15, 1961, IN WHICH YOU WERE ERRONEOUSLY ALLOWED PER DIEM OF $108 INCIDENT TO THE PERFORMANCE OF TEMPORARY DUTY ON BOARD THE U.S.S. COONTZ (DLG-9) FOR THE PERIODS JANUARY 16 TO 28 AND FEBRUARY 6 TO 10, 1961. THIS PAYMENT OF PER DIEM WAS ERRONEOUS FOR THE REASON THAT PARAGRAPH 4201-8 OF THE JOINT TRAVEL REGULATIONS PROHIBITS PAYMENT OF PER DIEM FOR ANY PERIOD OF TEMPORARY DUTY OR TRAINING DUTY ABOARD A GOVERNMENT VESSEL.

IN HIS LETTER OF MAY 29, 1962, THE ADMINISTRATIVE ASSISTANT TO THE SECRETARY OF THE NAVY REFERS TO OUR DECISIONS OF MARCH 25, 1959, B 138332, 38 COMP. GEN. 626, AND APRIL 18, 1960, B-142218. HE SUGGESTS THAT THESE DECISIONS TAKEN TOGETHER AUTHORIZE THE PAYMENT FOR TEMPORARY DUTY ON BOARD A GOVERNMENT VESSEL WHEN QUARTERS AND/OR MESS ARE NOT AVAILABLE. FURTHER STATES, HOWEVER, THAT IT IS REALIZED SUCH CONCLUSION IS CONTRARY TO OUR DECISION OF MARCH 26, 1962, B 148115, 41 COMP. GEN. - .

IN OUR DECISION OF MARCH 25, 1959, 38 COMP. GEN. 626, WE CONSIDERED EXCEPTIONS TAKEN TO PER DIEM PAYMENTS MADE TO MEMBERS FOR TEMPORARY DUTY PERFORMED DURING THE PERIOD FEBRUARY 1 TO MARCH 30, 1958, UNDER ORDERS ASSIGNING THEM TO DUTY ON BOARD THE EX-U.S.S. ANTHONY, IN CONNECTION WITH THE TRANSFER OF THAT VESSEL TO THE NAVY OF THE FEDERAL REPUBLIC OF GERMANY. IT WAS STATED THERE THAT THE OFFICERS AND ENLISTED MEN ON ASSIGNMENTS OF THIS TYPE ARE FURNISHED QUARTERS WITHOUT CHARGE BY THE FOREIGN GOVERNMENT BUT THAT THEY ARE CHARGED FOR SUBSISTENCE. IN THOSE CIRCUMSTANCES, WE HELD THAT PER DIEM PAYMENTS WERE NOT PROPER BUT THAT ENLISTED MEN WERE ENTITLED TO CREDIT OF BASIC ALLOWANCE FOR SUBSISTENCE FOR SUCH TEMPORARY DUTY PERIOD.

SUBSEQUENTLY REPRESENTATIONS WERE MADE BY THE NAVY DEPARTMENT IN SIMILAR CASES TO THE EFFECT THAT THE VESSELS WERE DECOMMISSIONED AND THE UNITED STATES CREWS WERE DETACHED FROM DUTY ASSIGNMENTS ON BOARD THE SHIPS. ALSO, IT WAS STRESSED THAT THE FOREIGN CREW ASSUMES FULL COMMAND RESPONSIBILITY--- A MATERIAL FACTOR IN CASES SUCH AS THIS--- AND OUR DECISION TURNED ON THE FACT THAT UNITED STATES NAVY PERSONNEL WHO WERE ON BOARD THE SHIP WERE THERE AS OBSERVERS OR RUNNING MATES TO THE REGULAR SHIP'S COMPANY. IT WAS FOR THESE REASONS WE CONCLUDED THAT SUCH SHIPS WERE NOT IN FACT GOVERNMENT VESSELS CONTEMPLATED BY PARAGRAPHS 4201-8 AND 4250-8 OF THE JOINT TRAVEL REGULATIONS, AND THEREFORE, IN OUR DECISION OF APRIL 18, 1960, B-142218, WE HELD THAT PER DIEM PAYMENTS MADE TO MEMBERS WHO ARE ASSIGNED TO VESSELS LOANED TO FOREIGN GOVERNMENTS AND WHO ARE NOT FURNISHED QUARTERS AND SUBSISTENCE ON BOARD SUCH VESSELS WILL NOT BE QUESTIONED. THUS, THAT DECISION WAS INTENDED TO APPLY ONLY TO THE SITUATION INVOLVED IN THE TRANSFER OF DECOMMISSIONED SHIPS TO FOREIGN GOVERNMENTS UNDER THE MILITARY ASSISTANCE PROGRAM, AND WAS NOT FOR APPLICATION TO TEMPORARY DUTY ABOARD SHIPS OF THE UNITED STATES NAVY.

VIEWED IN THIS LIGHT, IT IS PLAIN THAT SINCE YOU PERFORMED TEMPORARY DUTY ON BOARD THE U.S.S. COONTZ (DLG-9) WHICH IS A UNITED STATES NAVY SHIP, THE REGULATIONS CLEARLY PRECLUDE PAYMENT OF PER DIEM IN YOUR CASE. SEE B- 148115, MARCH 26, 1962, 41 COMP. GEN. -; B-146670, OCTOBER 11, 1961; B- 149452, JULY 30, 1962.

IT IS UNFORTUNATE THAT AN ERRONEOUS SETTLEMENT WAS MADE IN YOUR CASE. ALSO IT IS REGRETTED THAT OFFICE LETTER OF APRIL 12, 1962, INADVERTENTLY REFERRED TO DUTY PERFORMED AT HOLY LOCH, SCOTLAND, DURING THE PERIOD INVOLVED. IT IS WELL SETTLED, HOWEVER, THAT THE AUTHORITY OF THE COMPTROLLER GENERAL TO REVISE A SETTLEMENT OF A CLAIM BY THIS OFFICE IS INHERENT, AND IS DERIVED FROM THE STATUTORY MANDATE TO SETTLE AND ADJUST ALL CLAIMS BY OR AGAINST THE UNITED STATES, AS DIRECTED BY SECTION 236 OF THE REVISED STATUTES, AS AMENDED, 31 U.S.C. 71. MOREOVER, THE COURTS OF THE UNITED STATES DEFINITELY HAVE ESTABLISHED THE RULE THAT MONEY PAID OUT ON AN ERRONEOUS DETERMINATION OF LAW BY OFFICERS OF THE GOVERNMENT MAY BE RECOVERED FROM THE RECIPIENT. SEE 22 COMP. GEN. 952, AND THE AUTHORITIES THEREIN CITED. HENCE, THERE IS NO LEGAL BASIS FOR RELIEVING YOU OF YOUR RESPONSIBILITY FOR MAKING REFUND OF THE ERRONEOUS PAYMENT.

THEREFORE, YOU ARE AGAIN REQUESTED TO PROMPTLY REMIT TO THIS OFFICE THE AMOUNT OF THE ERRONEOUS PAYMENT RECEIVED, $108. PAYMENT SHOULD BE MADE BY CHECK OR MONEY ORDERS PAYABLE TO "U.S. GENERAL ACCOUNTING OFFICE" AND SHOULD BE MAILED TO THE U.S. GENERAL ACCOUNTING OFFICE, POST OFFICE BOX 2610, WASHINGTON 13, D.C. ..END :