B-172331, JUL 29, 1971

B-172331, JUL 29, 1971

BASIC ALLOWANCE FOR QUARTERS - TRANSIENT QUARTERS DECISION ALLOWING PARTIAL REFUND ON CLAIM OF CAPTAIN ROBERT H. POPPER, JR., USAF, FOR BASIC ALLOWANCE FOR QUARTERS (BAQ) PAID TO, BUT SUBSEQUENTLY RECOVERED FROM CLAIMANT. UNDER TABLE 3-2-5, RULE 7, OF THE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, THE AIR FORCE WAS CORRECT IN RECOVERING THE BAQ ALLOWANCE. FURTHER, THIS CLAIM IS NOT SUITABLE FOR ACTION UNDER THE MERITORIOUS CLAIMS ACT OF 1928. HOWEVER, THE AIR FORCE WAS WRONG IN COLLECTING A SERVICE CHARGE FOR TRANSIENT QUARTERS FOR THE PERIOD IN EXCESS OF 30 DAYS, AND THE CLAIMANT IS THUS DUE A REFUND OF THE DIFFERENCE BETWEEN WHAT HE PAID AND WHAT HE SHOULD HAVE PAID AS A PERMANENT PARTY.

TO CAPTAIN ROBERT H. POPPER, JR.:

FURTHER REFERENCE IS MADE TO YOUR CLAIM FOR REFUND OF BASIC ALLOWANCE FOR QUARTERS PAID TO YOU FOR THE PERIOD OCTOBER 8, 1969, THROUGH DECEMBER 11, 1969, AND SUBSEQUENTLY RECOVERED FROM YOU.

THE AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, FORWARDED YOUR CLAIM HERE FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236.

THE RECORD SHOWS THAT YOU WERE STATIONED AT ANDERSON AIR FORCE BASE, GUAM, THAT YOU WERE LIVING OFF BASE AND BEING PAID BASIC ALLOWANCE FOR QUARTERS AND THAT ON SEPTEMBER 8, 1969, YOU AND YOUR WIFE MOVED INTO TRANSIENT QUARTERS ON THE BASE. YOU SAY THE MOVE WAS AUTHORIZED BECAUSE OF THREATS OF PHYSICAL HARM TO YOUR WIFE BY A MAN WHO HAD PREVIOUSLY ABDUCTED HER. YOU AND YOUR WIFE CONTINUED TO OCCUPY SUCH QUARTERS UNTIL DECEMBER 11, 1969, AND YOU WERE PAID BASIC ALLOWANCE FOR QUARTERS FOR THE ENTIRE PERIOD.

PARAGRAPH 30221 OF THE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL PROVIDES THAT A MEMBER WITH DEPENDENTS WHO IS ENTITLED TO BASIC PAY IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS AT THE RATES PRESCRIBED FOR MEMBERS WITH DEPENDENTS WHEN ADEQUATE QUARTERS ARE NOT FURNISHED FOR HIM AND HIS DEPENDENTS. TABLE 3-2-8, RULE 4 OF THE MANUAL REQUIRES TERMINATION OF THE QUARTERS ALLOWANCE IF THE MEMBER AND HIS DEPENDENTS OCCUPY GOVERNMENT QUARTERS, INCLUDING A GUEST HOUSE OR SIMILAR TYPE FACILITY AT HIS PERMANENT STATION. TABLE 3-2-5, RULE 7 OF THE MANUAL, HOWEVER, PROVIDES THAT THE ALLOWANCE MAY CONTINUE NOT TO EXCEED 30 DAYS WHEN TRANSIENT QUARTERS ARE OCCUPIED. SINCE YOU AND YOUR WIFE OCCUPIED TRANSIENT GOVERNMENT QUARTERS BEYOND 30 DAYS, YOU WERE NOT ENTITLED TO BE PAID AN ALLOWANCE FOR QUARTERS FOR THE PERIOD OCTOBER 8 TO DECEMBER 11, 1969, AND THERE WAS COLLECTED FROM YOU $256 REPRESENTING THE QUARTERS ALLOWANCE PAID FOR SUCH PERIOD.

IT IS WELL SETTLED THAT PERSONS RECEIVING ERRONEOUS PAYMENTS FROM THE GOVERNMENT ACQUIRE NO RIGHT TO SUCH PAYMENTS AND THE COURTS HAVE CONSISTENTLY HELD THAT SUCH PERSONS ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION. 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 RECEIVED SOMETHING FOR NOTHING. 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 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. HENCE, THE AIR FORCE PROPERLY RECOVERED THE ERRONEOUS PAYMENT AND WE FIND NO LEGAL BASIS FOR PAYMENT OF YOUR CLAIM FOR REFUND.

THE MERITORIOUS CLAIMS ACT OF 1928 PROVIDES THAT WHEN A CLAIM IS FILED IN THIS OFFICE THAT MAY NOT BE LAWFULLY ADJUSTED BY USE OF AN APPROPRIATION THERETOFORE MADE, BUT WHICH CLAIM, IN OUR JUDGEMENT CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF CONGRESS, IT SHALL BE SUBMITTED TO THE CONGRESS WITH OUR RECOMMENDATIONS. THE REMEDY IS AN EXTRAORDINARY ONE AND ITS USE IS LIMITED TO EXTRAORDINARY CIRCUMSTANCES.

THE CASES WE HAVE REPORTED FOR THE CONSIDERATION OF THE CONGRESS GENERALLY HAVE INVOLVED EQUITABLE CIRCUMSTANCES OF AN UNUSUAL NATURE AND WHICH ARE UNLIKELY TO CONSTITUTE A RECURRING PROBLEM SINCE TO REPORT TO THE CONGRESS A PARTICULAR CASE WHEN SIMILAR EQUITIES EXIST OR ARE LIKELY TO ARISE WITH RESPECT TO OTHER CLAIMANTS WOULD CONSTITUTE PREFERENTIAL TREATMENT OVER OTHERS IN SIMILAR CIRCUMSTANCES.

WHILE THE OCCUPANCY OF TRANSIENT QUARTERS ON THE BASE AROSE FROM UNUSUAL CIRCUMSTANCES, THE ERRONEOUS PAYMENT TO YOU AROSE FROM AN ADMINISTRATIVE ERROR. THERE ARE NUMEROUS CASES IN WHICH MEMBERS THROUGH ADMINISTRATIVE ERROR RECEIVE OVERPAYMENTS OF PAY AND ALLOWANCES AND ARE REQUIRED TO REPAY THE AMOUNT ERRONEOUSLY RECEIVED. WE DO NOT REGARD YOUR CASE AS CONTAINING SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT REPORTING IT TO THE CONGRESS FOR CONSIDERATION UNDER THE MERITORIOUS CLAIMS ACT OF 1928.

HOWEVER, THE RECORD SHOWS THAT YOU WERE CHARGED $2 PER DAY PER PERSON FOR 99 DAYS (SEPTEMBER 8 TO DECEMBER 15) OR $396 AS A SERVICE CHARGE FOR THE USE OF GOVERNMENT QUARTERS AT ANDERSON AIR FORCE BASE. THE DEPARTMENT OF THE AIR FORCE HAS ADVISED US INFORMALLY THAT THE SERVICE CHARGE FOR MAID/HOUSEKEEPING SERVICE FOR PERMANENT PARTY PERSONNEL AT ANDERSON AIR FORCE BASE AT THE TIME HERE INVOLVED WAS $15 PER MONTH.

WE DO NOT HAVE THE BASE REGULATIONS WITH RESPECT TO SUCH SERVICE CHARGE, BUT PRESUMABLY THE PERMANENT PARTY RATE OF $15 A MONTH WOULD NOT BE APPLICABLE DURING THE 30-DAY PERIOD THAT YOU WERE ENTITLED TO CONTINUE RECEIVING A QUARTERS ALLOWANCE. ON THAT BASIS, AND IN THE ABSENCE OF INFORMATION TO THE CONTRARY, IT IS CONCLUDED THAT DURING THE 30-DAY PERIOD YOU AND YOUR WIFE OCCUPIED THE GUEST HOUSE WITHOUT LOSS OF YOUR QUARTERS ALLOWANCE YOU WERE PROPERLY CHARGED $4 PER DAY FOR 30 DAYS OR $120.

SINCE YOU WERE PERMANENTLY STATIONED AT ANDERSON AIR FORCE BASE, HOWEVER, THE CHARGE AFTER 30 DAYS SHOULD HAVE BEEN AT THE RATE OF $15 PER MONTH. THEREFORE, YOU ARE ENTITLED TO THE DIFFERENCE BETWEEN $4 PER DAY FOR 69 DAYS ($276) AND $0.50 PER DAY FOR 69 DAYS ($34.50) OR $241.50, A SETTLEMENT FOR WHICH IN YOUR FAVOR WILL ISSUE IN DUE COURSE.