B-132405, SEP. 27, 1957

B-132405, SEP. 27, 1957

TO MR. BENJAMIN J. BARISH:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 27, 1957, CONCERNING OUR DEMAND FOR REFUND OF THE MUSTERING-OUT PAYMENT IN THE AMOUNT OF $100 MADE TO YOU INCIDENT TO YOUR SEPARATION FROM THE UNITED STATES NAVAL RESERVE ON APRIL 30, 1946.

SECTION 1/B) (5) OF THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT. 8, PROVIDES THAT NO MUSTERING-OUT PAYMENT SHALL BE MADE TO "ANY MEMBER" OF THE ARMED FORCES WHOSE TOTAL PERIOD OF SERVICE HAS BEEN AS A STUDENT "DETAILED" FOR TRAINING UNDER THE ARMY SPECIALIZED TRAINING PROGRAM OR "ANY SIMILAR PROGRAM" UNDER THE JURISDICTION OF THE NAVY. IN PARAGRAPH (5) OF THE EXPLANATION OF SECTION 1/B) OF THE ACT AS CONTAINED IN THE HOUSE OF REPRESENTATIVES REPORT 986, IT IS STATED THAT THE LANGUAGE "SIMILAR PROGRAM" UNDER THE JURISDICTION OF THE NAVY INCLUDES THE NAVY V- 12 PROGRAM. ALSO, THE NAVY REGULATIONS IN EFFECT AT THE TIME INCLUDED AMONG THE PERSONNEL NOT ENTITLED TO MUSTERING-OUT PAY PERSONNEL WHOSE ONLY SERVICE HAD BEEN AS A STUDENT UNDER THE COLLEGE TRAINING PROGRAM.

UNDER THE PROVISIONS OF THE MUSTERING-OUT PAYMENT ACT OF 1944, AND OF THE REGULATIONS OF THE SECRETARY OF THE NAVY ISSUED PURSUANT THERETO, NAVY V- 12 PERSONNEL ARE NOT PRECLUDED AS A WHOLE FROM RECEIVING MUSTERING-OUT PAY, THE REGULATIONS IN THAT RESPECT PROHIBITING SUCH PAYMENTS TO SUCH PERSONNEL WHOSE ONLY SERVICE HAD BEEN AS A STUDENT UNDER THE COLLEGE TRAINING PROGRAM. SEE REGULATIONS ISSUED BY THE SECRETARY OF THE NAVY PUBLISHED AT PAGE 2190, FEDERAL REGISTER, VOLUME 10, PART 2. SUCH REGULATIONS ARE NOT INCONSISTENT WITH THE STATUTORY PROVISION PROHIBITING PAYMENT OF MUSTERING-OUT PAY TO "ANY MEMBER" OF THE ARMED FORCES WHOSE TOTAL SERVICE HAS BEEN AS A STUDENT DETAILED FOR TRAINING UNDER THE COLLEGE TRAINING PROGRAM.

NAVSANDA FORM 550, ISSUED AS A RESULT OF YOUR DISCHARGE, DISCLOSES THAT $100 WAS PAID TO YOU AS MUSTERING-OUT PAY ON APRIL 30, 1946. THIS PAYMENT WAS DRAWN IN YOUR FAVOR FROM THE ACCOUNTS OF O. E. MALA, SYMBOL NO. 520000. IN CONNECTION THEREWITH THERE WAS FURNISHED A COPY OF NAVSANDA FORM 679 FROM THE BUREAU OF NAVAL PERSONNEL, DEPARTMENT OF THE NAVY, WASHINGTON, D.C., STATING THAT YOU WERE NOT ENTITLED TO THE MUSTERING-OUT PAY SINCE YOUR ONLY SERVICE WAS UNDER THE V-12 NAVY COLLEGE TRAINING PROGRAM. ALSO, YOUR NAVY PAY RECORDS SHOW THAT YOU WERE ASSIGNED TO THE NAVAL TRAINING UNIT (V-12), NORTHWESTERN UNIVERSITY, EVANSTON, ILLINOIS, UNTIL APRIL 27, 1946, ON WHICH DATE YOU WERE TRANSFERRED TO THE PERSONNEL SEPARATION CENTER, GREAT LAKES, ILLINOIS, FOR SEPARATION, AND THAT YOU WERE DISCHARGED ON APRIL 30, 1946. WHILE THE RECORDS SHOW THAT YOU WERE ASSIGNED TO CLASS V-6 AT THE TIME OF DISCHARGE, APPARENTLY SUCH ASSIGNMENT WAS ONLY FOR RECORD PURPOSES SINCE IT IS REPORTED THAT YOU PERFORMED NO DUTY OTHER THAN IN THE V-12 TRAINING PROGRAM.

SECTION 5/B) OF THE MUSTERING-OUT PAYMENT ACT OF 1944 PROVIDES AS FOLLOWS:

"THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY SHALL MAKE SUCH REGULATIONS NOT INCONSISTENT WITH THIS ACT AS MAY BE NECESSARY EFFECTIVELY TO CARRY OUT THE PROVISIONS THEREOF, AND THE DECISIONS OF THE SECRETARY OF WAR AND THE SECRETARY OF THE NAVY SHALL BE FINAL AND NOT SUBJECT TO REVIEW BY ANY COURT OR OTHER GOVERNMENT OFFICIAL.'

IT FOLLOWS THAT UNDER THE EXPRESS PROVISIONS OF THE LAW AND STATUTORY REGULATIONS INVOLVED AND THE ADMINISTRATIVE DETERMINATION IN YOUR CASE, YOU WERE NOT ENTITLED TO MUSTERING-OUT PAY AND, THEREFORE, THE AMOUNT OF $100 PAID YOU WAS AN ERRONEOUS PAYMENT.

IT IS WELL ESTABLISHED THAT PERSONS RECEIVING MONEY ERRONEOUSLY PAID BY A GOVERNMENT AGENCY OR OFFICIAL ACQUIRE NO RIGHT TO THE MONEY AND THE COURTS CONSISTENTLY HAVE HELD THAT SUCH PERSONS ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION. SEE BARNES, ET AL. V. DISTRICT OF COLUMBIA, 22 C.CLS. 366, AND THE CASES COLLECTED AND DISCUSSED IN UNITED STATES V. SUTTON CHEMICAL COMPANY, 11 F.2D 24. WHILE THE RECORD INDICATES NEGLIGENCE IN THE DISBURSEMENT OF THE FUNDS INVOLVED IN THIS CASE, IT HAS BEEN HELD THAT IF A BENEFIT IS BESTOWED THROUGH MISTAKE, NO MATTER HOW CARELESS THE ACT OF THE BESTOWER MAY HAVE BEEN, THE RECIPIENT MUST IN EQUITY MAKE RESTITUTION. UNITED STATES V. NORTHWESTERN NATIONAL BANK AND TRUST COMPANY OF MINNEAPOLIS, 35 F.SUPP. 484, 486. THE DOCTRINE APPLIED IN SOME CASES, PROHIBITING THE RECOVERY OF PAYMENTS VOLUNTARILY MADE, DOES NOT APPLY TO PAYMENTS WITHOUT AUTHORITY MADE BY PUBLIC OFFICERS, SINCE SUCH PAYMENTS ARE NOT PRESUMED TO BE MADE VOLUNTARILY BY THE GOVERNMENT, BUT BY ITS OFFICERS IN EXCESS OF THEIR AUTHORITY AND IN DEFIANCE OF THE GOVERNMENT'S RIGHTS. CHAMP SPRING COMPANY V. UNITED STATES, 47 F.2D 1 AND THE CASES CITED THEREIN (CERTIORARI DENIED, 283 U.S. 852). HENCE, THE ERRONEOUS PAYMENT CONSTITUTES A DEBT DUE THE UNITED STATES.

THE UNITED STATES IS NOT BOUND BY ANY STATUTE OF LIMITATIONS IN SUCH CASES. IT FOLLOWS THAT COLLECTION OF THE ERRONEOUS PAYMENT HERE INVOLVED IS REQUIRED.

THE AMOUNT DUE SHOULD BE FORWARDED BY CHECK OR MONEY ORDER PAYABLE TO THE U.S. GENERAL ACCOUNTING OFFICE.