B-165384, NOV. 13, 1968

B-165384, NOV. 13, 1968

TO MR. CLIFFORD L. PETTY:

FURTHER REFERENCE IS MADE TO LETTER OF AUGUST 22, 1968, WRITTEN IN YOUR BEHALF BY YOUR ATTORNEY, MR. ROBERT W. FETTY, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $180.

BY ORDERS DATED JULY 13, 1959, UNDERWATER DEMOLITION TEAM ELEVEN, U.S. NAVAL AMPHIBIOUS BASE, CORONADO, CALIFORNIA, YOU AND OTHERS WERE ORDERED TO TEMPORARY DUTY TO WAKE ISLAND FOR DUTY INVOLVING DIVING AND DEMOLITION OF EXPLOSIVES IN CONNECTION WITH MILSPAC PROJECT. YOU WERE PAID A TOTAL OF $588.50 AS SPECIAL DIVING PAY FOR DIVES PERFORMED DURING AUGUST, SEPTEMBER AND OCTOBER 1959.

THE SPECIAL DIVING PAY WAS PAID TO YOU PURSUANT TO THE PROVISIONS OF SECTION 205 (B) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 236 (B) (1958 ED.), IN EFFECT DURING THE PERIOD INVOLVED. SECTION 205 (B) PROVIDED THAT MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY AND EMPLOYED AS DIVERS IN ACTUAL SALVAGE OR REPAIR OPERATIONS IN DEPTHS OF OVER NINETY FEET, OR IN DEPTHS OF LESS THAN NINETY FEET WHEN THE OFFICER IN CHARGE OF THE SALVAGE OR REPAIR OPERATION SHALL FIND, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, THAT EXTRAORDINARY HAZARDOUS CONDITIONS EXIST, SHALL, IN ADDITION TO BASIC PAY, BE ENTITLED TO RECEIVE THE SUM OF $5.50 PER HOUR FOR EACH HOUR OR FRACTION THEREOF WHILE SO EMPLOYED.

SUBSEQUENTLY, THE NAVY DETERMINED THAT THE PAYMENTS OF SPECIAL DIVING PAY WERE ERRONEOUS FOR THE REASON THAT THE DIVES WERE PERFORMED IN CONNECTION WITH A CONSTRUCTION PROJECT AND NOT ACTUAL SALVAGE OR REPAIR OPERATIONS AS CONTEMPLATED BY THE STATUTE. THE MATTER OF THE ERRONEOUS PAYMENTS WAS FORWARDED TO THIS OFFICE AS UNCOLLECTIBLE. YOU HAVE PAID THE SUM OF $408.50 TO THIS OFFICE, THEREBY REDUCING THE DEBT TO $180.

ALTHOUGH YOU WERE NO WAY AT FAULT AND ACCEPTED THE PAYMENT OF SPECIAL DIVING PAY IN GOOD FAITH, THE FACT REMAINS THAT YOU WERE OVERPAID AND LEGALLY LIABLE FOR THE RESULTING INDEBTEDNESS. THEREFORE, THERE IS NO LEGAL AUTHORITY UNDER WHICH WE MAY RELIEVE YOU OF THE BALANCE OF YOUR INDEBTEDNESS AND REFUND THE SUM YOU REPAID TO THE GOVERNMENT. IN THE SETTLEMENT OF CLAIMS AGAINST THE UNITED STATES, THIS OFFICE MUST COMPLY WITH THE LAWS ENACTED BY CONGRESS. THEREFORE, WE TRUST YOU WILL UNDERSTAND THAT WE HAVE NO ALTERNATIVE BUT TO SUSTAIN OUR PRIOR ACTION IN THE MATTER.

THE ACT OF APRIL 10, 1928, 45 STAT. 413, 31 U.S.C. 236, PROVIDES, HOWEVER, FOR THE SUBMISSION TO THE CONGRESS BY THIS OFFICE OF THOSE CLAIMS AGAINST THE UNITED STATES WHICH MAY NOT BE LAWFULLY ADJUSTED BUT WHICH ARE DETERMINED TO CONTAIN "SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS.' SINCE THE CONGRESS HAS ENACTED RELIEF LEGISLATION IN THE CASE OF ONE OTHER MEMBER OF UNDERWATER DEMOLITION TEAM ELEVEN, WHO LIKE YOU WAS OBLIGATED TO REFUND THE SPECIAL DIVING PAY, WE ARE REPORTING YOUR CLAIM TO THE CONGRESS WITH THE RECOMMENDATION FOR ITS FAVORABLE CONSIDERATION.