B-143356, JUL. 20, 1960

B-143356, JUL. 20, 1960

TO MR. JAMES T. MCCARTHY:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 6, 1960, IN EFFECT REQUESTING REVIEW OF THE CLAIM OF THE UNITED STATES AGAINST YOU IN THE AMOUNT OF $200, REPRESENTING ERRONEOUS PAYMENT OF MUSTERING-OUT PAY WHICH YOU RECEIVED INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY RESERVE.

BY LETTER ORDER NO. 6-155 CC, DATED JUNE 30, 1954, HEADQUARTERS SECOND ARMY, FORT GEORGE G. MEADE, MARYLAND, YOU WERE DIRECTED TO PROCEED ON JANUARY 31, 1955, FROM YOUR HOME AT CLEVELAND, OHIO, TO THE FINANCE SCHOOL AT FORT BENJAMIN HARRISON, INDIANA, WHERE YOU WERE TO REPORT NOT LATER THAN FEBRUARY 1, 1955. TRAVEL BY PRIVATELY OWNED CONVEYANCE WAS AUTHORIZED. IT APPEARS THAT YOU TRAVELED FROM CLEVELAND, OHIO, TO INDIANAPOLIS, INDIANA, FROM 10 A.M. TO 4:20 P.M. ON JANUARY 31, 1955, BY PRIVATELY OWNED CONVEYANCE, AND THAT YOU REPORTED TO FORT BENJAMIN HARRISON ON THE FOLLOWING DAY.

SECTION 201 (E) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 807 (REDESIGNATED AS SECTION 201 (D) BY THE ACT OF MARCH 31 1955, 69 STAT 19), PROVIDES:

"* * * THAT IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT, IN THE CASE OF MEMBERS OF THE UNIFORMED SERVICES CALLED OR ORDERED TO EXTENDED ACTIVE DUTY IN EXCESS OF THIRTY DAYS, ACTIVE DUTY SHALL INCLUDE THE TIME REQUIRED TO PERFORM TRAVEL FROM HOME TO FIRST DUTY STATION AND FROM LAST DUTY STATION TO HOME BY THE MODE OF TRANSPORTATION AUTHORIZED IN ORDERS FOR SUCH EMBERS: * * *"

EXECUTIVE ORDER NO. 10153, AUGUST 17, 1950, PRESCRIBING REGULATIONS UNDER THAT SECTION, PROVIDES THAT WHEN TRAVEL BY PRIVATELY OWNED CONVEYANCE IS SPECIFICALLY AUTHORIZED IN CONNECTION WITH REPORTING FOR ACTIVE DUTY, AND TRAVEL IS SO PERFORMED, THE TRAVEL TIME TO BE INCLUDED AS ACTIVE DUTY SHALL BE COMPUTED ON THE BASIS OF ONE DAY FOR EACH 300 MILES TRAVELED. FURTHER PROVIDES THAT THE SECRETARIES CONCERNED MAY PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS AS THEY MAY DEEM NECESSARY OR DESIRABLE FOR CARRYING OUT SUCH REGULATIONS. PARAGRAPH 9 (B) (1), CHANGE NO. 2, ARMY REGULATIONS 35-1320, DATED FEBRUARY 25, 1954, PROVIDES THAT THE PAY AND ALLOWANCES OF COMMISSIONED OFFICERS OF THE ARMY RESERVE "COMMENCE ON THE DAY THEY OFFICIALLY AND NECESSARILY BEGIN TO COMPLY WITH THE ORDERS CALLING THEM TO ACTIVE DUTY.' ALLOWING TRAVEL TIME OF ONE DAY FOR THE TRAVEL BY PRIVATELY OWNED CONVEYANCE AUTHORIZED BY EXECUTIVE ORDER NO. 10153, YOU WERE NOT OFFICIALLY AND NECESSARILY REQUIRED TO BEGIN TO COMPLY WITH THE ORDERS OF JUNE 30, 1954, UNTIL FEBRUARY 1, 1955, IN ORDER TO REPORT AT FORT BENJAMIN HARRISON, INDIANA, ON THAT DAY. CONSEQUENTLY, YOUR ACTIVE DUTY STATUS AND YOUR RIGHT TO PAY AND ALLOWANCES COMMENCED ON FEBRUARY 1, 1955. SINCE YOU MUST HAVE SERVED ON ACTIVE DUTY PRIOR TO FEBRUARY 1, 1955, IN ORDER TO BE ELIGIBLE FOR MUSTERING-OUT PAYMENT UNDER TITLE V OF THE VETERAN'S READJUSTMENT ASSISTANT ACT OF 1952, 66 STAT. 688, AND PROCLAMATION NO. 3080, ISSUED BY THE PRESIDENT ON JANUARY 5, 1955, AN AUDIT EXCEPTION WAS ISSUED BY OUR OFFICE FOR $200, REPRESENTING THE MUSTERING-OUT PAYMENT YOU RECEIVED UPON YOUR RELEASE FROM ACTIVE DUTY ON JANUARY 30, 1957.

WHILE YOU CONTEND THAT YOUR ORDERS GAVE YOU NO OPTION TO COMMENCE TRAVEL ON FEBRUARY 1, 1955, YOUR ATTENTION IS INVITED TO THE FACT THAT SUCH ORDERS DID NOT REQUIRE YOU TO REPORT FOR DUTY ON JANUARY 31, BUT PERMITTED SUCH REPORTING ON THE FOLLOWING DAY. IF YOU HAD REPORTED ON JANUARY 31, AS YOU COULD HAVE DONE, THAT DAY WOULD HAVE BEEN A DAY OF DUTY. HOWEVER, YOU ELECTED TO DELAY YOUR REPORTING UNTIL THE FOLLOWING DAY, AS PERMITTED BY YOUR ORDERS, BUT IN SO DOING YOU DELAYED ENTERING ON ACTIVE DUTY BY ONE DAY, SINCE TRAVEL WAS NECESSARILY REQUIRED ONLY ON THAT DAY IN ORDER TO SO REPORT. YOU WOULD NOT HAVE BEEN SUBJECT TO MILITARY DISCIPLINE IF YOU HAD DELAYED YOUR DEPARTURE FROM YOUR HOME UNTIL FEBRUARY 1. IF, AS APPARENTLY CONTENDED BY YOU, THE ORDERS OF JUNE 30, 1954, REQUIRED YOU TO COMMENCE TRAVEL ON JANUARY 31, AND REPORT FOR DUTY ON THE FOLLOWING DAY, THEY WERE ERRONEOUS AND WITHOUT EFFECT TO ENTITLE YOU TO MUSTERING-OUT PAY. IN THE ABSENCE OF A STATUTE SO PROVIDING, THE GOVERNMENT IS NOT RESPONSIBLE FOR THE MISTAKES OF ITS OFFICERS AND EMPLOYEES AND IT IS WELL SETTLED THAT PERSONS WHO RECEIVE ERRONEOUS PAYMENTS FROM THE UNITED STATES THROUGH ADMINISTRATIVE ERROR OF ITS OFFICERS MUST RETURN THEM TO THE UNITED STATES. ROBERTSON V. SICHEL, 127 U.S. 507; UNITED STATES V. NORTHWESTERN NATIONAL BANK AND TRUST COMPANY OF MINNEAPOLIS, 35 F.SUPP. 484, 486; WISCONSIN CENTRAL RAILROAD V. UNITED STATES, 164 U.S. 190; UNITED STATES V. BENTLEY, 107 F.2D 382, 384.

ACCORDINGLY, WE HAVE NO RECOURSE OTHER THAN TO REAFFIRM OUR PREVIOUS ACTION IN THE MATTER. YOU ARE AGAIN REQUESTED TO REMIT THE SUM OF $200 BY CHECK OR MONEY ORDER MADE PAYABLE TO THE "U.S. GENERAL ACCOUNTING OFFICE.' SUCH REMITTANCE SHOULD BE ADDRESSED TO THE U.S. GENERAL ACCOUNTING OFFICE, BOX 2610, WASHINGTON 13, D.C. ..END :