B-148541, FEB. 4, 1963

B-148541, FEB. 4, 1963

TO DR. HOWARD LAITIN:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 7, 1963, IN WHICH YOU ASSERT THAT OUR LETTER OF DECEMBER 19, 1962, B-148541, WAS NOT RESPONSIVE TO YOUR LETTER OF NOVEMBER 27, 1962, CONCERNING YOUR COUNTERCLAIM FOR THE DIFFERENCE IN THE PAY AND ALLOWANCES OF A SPECIALIST SECOND CLASS AND THAT OF A FIRST LIEUTENANT, UNITED STATES ARMY RESERVE, FOR THE PERIOD JANUARY 19 THROUGH 27, 1957.

OUR FILE SHOWS THAT THE MATTER OF YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $99 HAS BEEN FULLY EXPLAINED TO YOU AND ALTHOUGH YOU HAVE RAISED NO FURTHER QUESTION REGARDING SUCH INDEBTEDNESS, YOU HAVE DECLINED TO REFUND THE AMOUNT INVOLVED DESPITE THE FACT THAT WE HAVE BEEN UNABLE TO FIND ANY LEGAL BASIS FOR THE PAYMENT OF ADDITIONAL PAY AND ALLOWANCES BY REASON OF YOUR INACTIVE DUTY STATUS AS A FIRST LIEUTENANT DURING A PERIOD YOU PERFORMED DUTIES AND RECEIVED PAY AND ALLOWANCES AS AN ENLISTED MEMBER FROM JANUARY 19 THROUGH 27, 1957. WE HAVE NOW REFERRED THE MATTER OF YOUR INDEBTEDNESS TO THE UNITED STATES ATTORNEY, SOUTHERN DISTRICT OF CALIFORNIA, 600 FEDERAL BUILDING, LOS ANGELES 12, CALIFORNIA, FOR COLLECTION ACTION.

WE CONSIDERED YOUR COUNTERCLAIM FOR SUCH ADDITIONAL PAY AND ALLOWANCES ON THE BASIS OF THE FACTS SHOWN IN ARMY OFFICIAL RECORDS AND IN OUR LETTERS OF JUNE 21 AND NOVEMBER 5, 1962, B-148541, WE ADVISED YOU OF THE LEGAL BASIS FOR OUR CONCLUSION THAT YOU ARE NOT ENTITLED TO ANY ADDITIONAL PAY AND ALLOWANCES. YOU HAVE NOT QUESTIONED THE FACTS STATED IN THOSE LETTERS AND WE VIEW SUCH LETTERS AS BEING RESPONSIVE TO YOUR COMMUNICATIONS TO THE EXTENT THAT THEY RELATED TO YOUR INDEBTEDNESS TO THE UNITED STATES AND YOUR COUNTERCLAIM FOR ADDITIONAL PAY AND ALLOWANCES.

CONCERNING YOUR STATEMENT THAT WE HAVE FAILED TO ADVISE YOU AS TO YOUR LEGAL RIGHTS AS A CIVILIAN IN YOUR DEALINGS WITH THIS OFFICE, YOU ARE ADVISED THAT 31 U.S.C. 71 VESTS AUTHORITY IN THIS OFFICE TO SETTLE AND ADJUST "ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED STATES OR AGAINST IT * * * EITHER AS DEBTOR OR CREDITOR.' ACTION TAKEN UNDER THAT AUTHORITY IN DISALLOWING A CLAIM FOR PAY AND ALLOWANCES IS FINAL AND CONCLUSIVE ON THE CLAIMANT AND PAYMENT OF THE CLAIM BY A DISBURSING OFFICER IN THE EXECUTIVE BRANCH OF THE GOVERNMENT MAY NOT BE MADE. 31 U.S.C. 74. HOWEVER, THE CLAIMANT MAY BRING SUIT FOR THE AMOUNT INVOLVED IN THE UNITED STATES COURT OF CLAIMS IF HE BELIEVES SUCH ACTION IS WARRANTED.

THE STATEMENT IN YOUR LETTER OF NOVEMBER 27, 1962, CONCERNING THE "POSSIBILITY" THAT THE AMOUNT DUE YOU FOR THE PERIOD JANUARY 19 TO 27, 1957, SHOULD BE THE DIFFERENCE BETWEEN MILITARY PAY AND YOUR NORMAL CIVILIAN PAY, WAS NOT UNDERSTOOD AS AN ASSERTION OF A CLAIM BY YOU FOR SUCH AMOUNT. HOWEVER, IF YOU INTENDED TO ASSERT A CLAIM FOR THAT AMOUNT, YOU ARE ADVISED THAT WE KNOW OF NO AUTHORITY WHICH WOULD PERMIT THE ALLOWANCE OF SUCH CLAIM BY THIS OFFICE. YOUR ASSUMPTION "THAT MY DETENTION WAS ILLEGAL," HAS BEEN NOTED. A CLAIM FOR CIVILIAN PAY LOST BY REASON OF AN ILLEGAL DETENTION IN THE ARMY APPEARS TO BE ONE WHICH SOUNDS IN TORT. WHILE THE SECRETARY OF THE ARMY HAS BEEN GIVEN AUTHORITY TO CONSIDER CERTAIN TORT CLAIMS, SEE CHAPTER 171, 28 U.S. CODE, PARTICULARLY SECTION 2672, IT APPEARS DOUBTFUL THAT YOUR CLAIM COMES WITHIN THE PURVIEW OF THOSE STATUTORY PROVISIONS.