B-150242, JAN. 28, 1963

B-150242: Jan 28, 1963

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III: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 22. YOU WERE ORDERED TO ACTIVE DUTY FROM HENDERSONVILLE. YOUR DUTY STATION WAS STATED TO BE FRESNO. YOU WERE INFORMED THAT YOU WERE NOT ON TEMPORARY DUTY AND THAT AT THAT TIME THE ORDERS OF MAY 17. WERE SHOWN TO YOU. HE NOTIFIED YOU IN PERSON THAT THE ORDERS ASSIGNING YOU TO FORT HOLABIRD ON TEMPORARY DUTY WERE IN ERROR AND THAT NEW ORDERS WOULD BE REQUESTED PLACING YOU IN A PERMANENT STATUS AT FORT HOLABIRD. SUCH ORDERS ACTUALLY WERE ISSUED ON MAY 17. THE ADJUTANT GENERAL HAS REPORTED THAT THOSE ORDERS WERE DISPATCHED TO YOU ON MAY 18. THEY WERE RECEIVED AT FORT HOLABIRD NO LATER THAN MAY 19. AUTHORITY FOR PAYMENT OF PER DIEM TO MEMBERS OF THE UNIFORMED SERVICES IS CONTAINED IN THE PERTINENT STATUTE 37 U.S.C. 404.

B-150242, JAN. 28, 1963

TO SECOND LIEUTENANT THOMAS D. HUNTER, III:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 22, 1962, PROTESTING THE ACTION OF THE CLAIMS DIVISION IN LETTER OF THIS OFFICE DATED JULY 5, 1962, TO THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, RELATIVE TO YOUR INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $444 REPRESENTING PER DIEM PAYMENTS FOR THE PERIOD MAY 19, 1961, TO JULY 31, 1961, FOR PER DIEM INCIDENT TO DUTY PERFORMED AT FORT HOLABIRD, MARYLAND.

BY LETTER ORDER A-01-19, DATED JANUARY 10, 1961, YOU WERE ORDERED TO ACTIVE DUTY FROM HENDERSONVILLE, NORTH CAROLINA. YOUR DUTY STATION WAS STATED TO BE FRESNO, CALIFORNIA, WITH TEMPORARY DUTY EN ROUTE AT FORT BENNING, GEORGIA, TO ATTEND AN ORIENTATION COURSE OF APPROXIMATELY 8 WEEKS' DURATION, FOLLOWED BY FURTHER TEMPORARY DUTY OF APPROXIMATELY 18 WEEKS AT FORT HOLABIRD, MARYLAND, TO ATTEND A COURSE OF INSTRUCTION. APPEARS THAT YOU REPORTED AT FORT HOLABIRD ON MAY 8, 1961. ON MAY 17, 1961, THE ADJUTANT GENERAL ISSUED ORDERS ASSIGNING YOU TO FORT HOLABIRD FOR A PERIOD OF DUTY IN EXCESS OF FIVE MONTHS IN DURATION. HOWEVER, YOU CONTINUED TO BE PAID PER DIEM FOR TEMPORARY DUTY THROUGH JULY 31, 1961. YOU STATE THAT ON AUGUST 6, 1961, YOU WERE INFORMED THAT YOU WERE NOT ON TEMPORARY DUTY AND THAT AT THAT TIME THE ORDERS OF MAY 17, 1961, WERE SHOWN TO YOU. HOWEVER, THE RECORD CONTAINS A STATEMENT BY MAJOR JOSEPH B. PARKER, ACTING ASSISTANT ADJUTANT GENERAL, DATED AUGUST 15, 1961, THAT ON OR ABOUT MAY 18, 1961, HE NOTIFIED YOU IN PERSON THAT THE ORDERS ASSIGNING YOU TO FORT HOLABIRD ON TEMPORARY DUTY WERE IN ERROR AND THAT NEW ORDERS WOULD BE REQUESTED PLACING YOU IN A PERMANENT STATUS AT FORT HOLABIRD. STATED ABOVE, SUCH ORDERS ACTUALLY WERE ISSUED ON MAY 17, 1961. THE ADJUTANT GENERAL HAS REPORTED THAT THOSE ORDERS WERE DISPATCHED TO YOU ON MAY 18, 1961. PRESUMABLY, THEY WERE RECEIVED AT FORT HOLABIRD NO LATER THAN MAY 19, 1961.

AUTHORITY FOR PAYMENT OF PER DIEM TO MEMBERS OF THE UNIFORMED SERVICES IS CONTAINED IN THE PERTINENT STATUTE 37 U.S.C. 404, WHICH PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED OR TO BE PERFORMED UNDER COMPETENT ORDERS UPON A CHANGE OF STATION OR OTHERWISE,"OR WHEN AWAY FROM HIS DESIGNATED POST OF DUTY.' UNDER SUCH PROVISION OF LAW, A RIGHT TO PER DIEM CANNOT ACCRUE TO A MEMBER UNLESS HE IS IN A TRAVEL STATUS AWAY FROM HIS DESIGNATED POST OF DUTY. SEE CALIFANO V. UNITED STATES, 145 CT.CL. 245. WHETHER A DUTY STATION IS A MEMBER'S DESIGNATED POST OF DUTY (OR PERMANENT STATION) FOR SUCH PURPOSES IS A QUESTION OF FACT FOR DETERMINATION ON A CONSIDERATION OF FACTORS SUCH AS DURATION OR NATURE OF ASSIGNMENT, OR WHETHER THE DUTIES ASSIGNED THERE CONSTITUTE THE MEMBER'S PARAMOUNT OR ONLY EXISTING DUTY ASSIGNMENT. 36 COMP. GEN. 757, 38 ID. 853.

IN YOUR CASE THE RECORD INDICATES THAT THE ORDERS OF JANUARY 10, 1961, WERE IN ERROR IN PROVIDING FOR PERMANENT DUTY AT FRESNO, CALIFORNIA, WITH TEMPORARY DUTY AT FORT HOLABIRD, MARYLAND, AND THAT FORT HOLABIRD ACTUALLY WAS YOUR PERMANENT STATION. IN LETTER DATED MAY 23, 1962, FROM THE ADJUTANT GENERAL CONCERNING YOUR CASE, IT IS STATED THAT IT WAS DETERMINED THAT UPON YOUR BEING ORDERED TO ACTIVE DUTY YOU WERE TO BE PERMANENTLY ASSIGNED TO THE OFFICER STUDENT DETACHMENT AT FORT HOLABIRD, WITH TEMPORARY DUTY EN ROUTE AT FORT BENNING, AND THAT THE BASIC ORDERS THEREFORE WERE ERRONEOUS. IT IS SHOWN THAT YOU WERE ADVISED OF THE ERROR ON MAY 18, 1961, AND THAT PROPER CORRECTIVE ORDERS WOULD BE ISSUED. THOSE ORDERS WERE ISSUED ON MAY 17, 1961, AND DISPATCHED TO YOU THE NEXT DAY. SINCE THE FACTUAL SITUATION IS THAT FORT HOLABIRD WAS YOUR PERMANENT STATION AT ALL TIMES, THERE WAS NO AUTHORITY FOR THE PAYMENT OF ANY PER DIEM FOR DUTY PERFORMED THERE. HOWEVER, SINCE THE TEMPORARY DUTY ORDERS WERE ISSUED WITHOUT NOTICE TO YOU OF ANY ERROR AND YOU WERE NOT ADVISED OF THE ERROR IN YOUR ORIGINAL ORDERS UNTIL MAY 18, 1961, WE ARE NOT REQUIRED TO QUESTION THE PER DIEM PAYMENTS MADE THROUGH THAT DATE. HOWEVER, THE OFFICIAL RECORDS SHOW THAT YOU WERE ADVISED OF THE ERROR IN YOUR ORDERS ON MAY 18, 1961, AND CONSEQUENTLY THERE IS NO PROPER BASIS UPON WHICH WE MAY PERMIT YOU TO RETAIN THE ERRONEOUS PAYMENTS MADE FOR THE PERIOD MAY 19 TO JULY 31, 1961.

IN YOUR PRESENT LETTER YOU SAY YOU SHOULD NOT BE PENALIZED BY HAVING TO REPAY THE GOVERNMENT FOR A MISTAKE THAT WAS BEYOND YOUR CONTROL. THE RIGHT OF THE GOVERNMENT TO RECOVER ERRONEOUS PAYMENTS MADE BY IT HAS BEEN CLEARLY ESTABLISHED BY THE COURTS. IN UNITED STATES V. NORTHWESTERN NATIONAL BANK AND TRUST COMPANY OF MINNEAPOLIS, 35 F.SUPP. 484, 486, THE COURT STATED 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 RECEIVE SOMETHING FOR NOTHING. IN WISCONSIN CENTRAL RAILROAD COMPANY 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.

ACCORDINGLY, WE HAVE NO ALTERNATIVE BUT TO CONCLUDE THAT YOU ARE INDEBTED TO THE UNITED STATES FOR THE PER DIEM PAYMENTS RECEIVED FOR THE PERIOD MAY 19, 1961, TO JULY 31, 1961, 74 DAYS AT $6 PER DAY, OR $444, AND MUST REPAY SUCH SUM TO THE UNITED STATES.