B-139970, DEC. 18, 1959

B-139970, DEC. 18, 1959

TO MR. THOMAS D. JARDINE:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 25, 1959, PROTESTING YOUR INDEBTEDNESS OF $50 TO THE UNITED STATES RESULTING FROM AN ERRONEOUS PAYMENT OF UNIFORM MAINTENANCE ALLOWANCE AND TO YOUR LETTER OF NOVEMBER 5, 1959, TO THE U.S. NAVY FINANCE CENTER, REGARDING THIS MATTER. YOU INDEBTEDNESS HAS SINCE BEEN REDUCED TO $42.02, BY THE APPLICATION OF $7.98 DUE YOU AS A BASIC ALLOWANCE FOR QUARTERS IN BEHALF OF DEPENDENT MOTHER FOR A PERIOD OF TRAINING DUTY FROM MAY 17 TO MAY 30, 1959.

THE RECORD SHOWS THAT YOU WERE PAID A $50 UNIFORM MAINTENANCE ALLOWANCE UNDER SECTION 302 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1180, AS AMENDED, ON THE BASIS OF A CLAIM FILED ON DECEMBER 9, 1957. OUR CLAIMS DIVISION LETTER OF AUGUST 12, 1959, TO YOU, EXPLAINED THE EFFECT OF SECTION 243 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 492, RE- ENACTED AS SECTION 305 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 255; BY SECTION 20 (D) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 628. WAS POINTED OUT THAT SECTION 302 OF THE NAVAL RESERVE ACT OF 1938, AS AMENDED, AND SECTION 11 OF THE ACT OF AUGUST 4, 1942, AS AMENDED, WERE REPEALED EFFECTIVE JANUARY 1, 1953, BY THE 1952 ACT (SECTIONS 802 AND 803) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 505), BUT THE THIRD PROVISO IN SUBSECTION (B) OF SECTION 243 CONSTITUTED A SAVINGS PROVISION WHICH BY ITS OWN TERMS PERMITTED OFFICERS FOR A PERIOD OF FOUR YEARS AFTER JULY 9, 1952, THE DATE OF ENACTMENT OF THE 1952 ACT, TO ELECT TO RECEIVE A $50 UNIFORM ALLOWANCE TO WHICH THEY WERE ENTITLED UNDER EXISTING REGULATIONS ISSUED PURSUANT TO THE PRIOR LAWS. YOU WERE ALSO INFORMED THAT, SINCE THE RIGHT OF ELECTION DID NOT EXIST AFTER JULY 9, 1956, PRIOR LAWS AUTHORIZING PAYMENT OF THE ALLOWANCE TO AN OFFICER OTHERWISE QUALIFIED HAVING BEEN REPEALED, THERE WAS NO STATUTORY AUTHORITY FOR PAYMENT OF THE ALLOWANCE TO A MEMBER WHO DID NOT MAKE THE ELECTION WITH THE SPECIFIED FOUR-YEAR PERIOD.

IN YOUR LETTER OF FEBRUARY 9, 1959, YOU STATED THAT IN SUBMITTING YOUR CLAIM FOR THE $50 UNIFORM ALLOWANCE YOU WERE GUIDED BY BUPERS INSTRUCTION 7220.14A, THE PROVISIONS OF WHICH YOU INDICATED WERE KNOWN TO YOU. YOU NOW STATE THAT SUCH INSTRUCTIONS WERE NOT THEN AVAILABLE TO YOU. YOU CONTEND THAT "BUPERS INSTRUCTION 7220.14A IS AMBIGUOUS AND DOES NOT CLEARLY STATE THE LIMITATIONS WITHIN WHICH APPLICATION FOR UNIFORM ALLOWANCE SHOULD BE MADE," AND THAT,"IF THE UNIFORM ALLOWANCE OF $50 WAS PAID BY ERROR BY THE UNITED STATES, THE UNITED STATES SHOULD BEAR THE LOSS RATHER THAN THE SERVICEMAN IN THE ABSENCE OF CLEAR STATUTES AND CLEAR REGULATIONS ON THE SUBJECT.' YOU CONTEND FURTHER THAT PARAGRAPH 3B OF SUCH INSTRUCTIONS, WHICH CONTAINED CLEAR INFORMATION CONCERNING THE EXPIRATION DATE OF JULY 9, 1956, DID NOT CONSTITUTE NOTICE TO YOU OF THAT DATE SINCE IT APPEARED IN SUCH INSTRUCTIONS UNDER THE HEADING "BACKGROUND.'

YOU ARE ADVISED THAT YOUR RIGHTS WERE FIXED BY APPLICABLE PROVISIONS OF LAW, NOT BY ANY ACTUAL NOTICE YOU MAY HAVE HAD OF SUCH STATUTORY PROVISIONS. DESPITE THAT FACT, IT APPEARS THAT THE DEPARTMENT OF THE NAVY MADE A CONSIDERABLE EFFORT TO GIVE NOTICE OF THE SIGNIFICANCE OF THAT DATE TO ALL CONCERNED. BUREAU OF NAVAL PERSONNEL INSTRUCTION NO. 1030.13 OF MAY 10, 1954, FOR DISTRIBUTION TO ALL SHIPS AND STATIONS AS WELL AS NAVAL RESERVE DISTRIBUTION LISTS, PARTS A AND B, IN PARAGRAPH 2, STATED, WITH RESPECT TO UNIFORM MAINTENANCE ALLOWANCES, THAT:

"* * * PRIOR TO 9 JULY 1956, A NAVAL RESERVE OFFICE MAY ELECT TO RECEIVE PAYMENT UNDER THE PROVISIONS OF EITHER THE NAVAL RESERVE ACT OF 1938 OR THE ARMED FORCES RESERVE ACT OF 1952.' INSTRUCTION NO. 1030.13 WAS SUPERSEDED BY BUREAU OF NAVAL PERSONNEL INSTRUCTION NO. 7220.14, DATED APRIL 21, 1955, WITH THE SAME DISTRIBUTION, WHICH AGAIN POINTED OUT THE TERMINATION DATE OF YOUR ELECTION RIGHT. THE REGULATIONS CONTAINED IN VOLUME 4 OF THE NAVY COMPTROLLER'S MANUAL, IN PORTIONS IN EFFECT PRIOR TO JULY 9, 1956 (PARAGRAPHS 044145 (2) (D) AND 044146 (1) (B) (, ALSO CLEARLY STATED THE RIGHT OF ELECTION AND ITS TERMINATION DATE. IT IS CLEAR THAT BOTH THE 1952 STATUTE NOTED ABOVE AND THE CITED REGULATIONS FIXED A TERMINATION OF THE RIGHT OF ELECTION NOT LATER THAN JULY 9, 1956, AND THAT AMPLE NOTICE WAS GIVEN OF THAT FACT.

WITH RESPECT TO YOUR CONTENTION THAT IF THE UNITED STATES PAID YOUR UNIFORM ALLOWANCE IN ERROR THE UNITED STATES SHOULD BEAR THE LOSS, THE JUDICIAL PRECEDENTS ARE CLEAR IN ESTABLISHING THE RIGHT OF THE GOVERNMENT TO RECOVER PAYMENTS ERRONEOUSLY MADE. IN WISCONSIN CENTRAL RAILROAD CO. 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 MADE RESTITUTION. EVEN FINANCIAL HARDSHIPS 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.

REGARDING YOUR DENIAL OF THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE IN THIS MATTER, YOUR ATTENTION IS DIRECTED TO THE PROVISIONS OF 31 U.S.C. 71, WHICH PROVIDES:

"ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED STATES OR AGAINST IT, AND ALL ACCOUNTS WHATEVER IN WHICH THE GOVERNMENT OF THE UNITED STATES IS CONCERNED, EITHER AS DEBTOR OR CREDITOR, SHALL BE SETTLED AND ADJUSTED IN THE GENERAL ACCOUNTING OFFICE.' NO APPEAL HAS BEEN PROVIDED FROM THE DECISIONS OF THIS OFFICE. SEE IN THIS CONNECTION 31 U.S.C. 74. HOWEVER, CERTAIN CLAIMS MAY BE MADE THE BASIS OF SUITS IN THE UNITED STATES COURT OF CLAIMS. SUCH SUITS, IF FILED, MUST BE COMMENCED WITHIN SIX YEARS AFTER THE CLAIMS FIRST ACCRUED. 28 U.S.C. 2501.

THE MATTER OF YOUR INDEBTEDNESS WAS REPORTED TO OUR OFFICE FOR COLLECTION ACTION BY THE UNITED STATES NAVY FINANCE CENTER. WHILE IS IS UNFORTUNATE THAT THE DISBURSING OFFICER WAS NOT AWARE THAT PAYMENT OF THE UNIFORM ALLOWANCE TO YOU WAS UNAUTHORIZED, WE HAVE NO ALTERNATIVE BUT TO TAKE SUCH STEPS AS MAY BE APPROPRIATE TO OBTAIN REFUND OF THE AMOUNT OF THE ERRONEOUS PAYMENT FROM YOU. ACCORDINGLY, YOU ARE AGAIN REQUESTED TO REFUND THE AMOUNT OF $42.02 BY CHECK OR MONEY ORDER PAYABLE TO THE "U.S. GENERAL ACCOUNTING OFFICE, POST OFFICE BOX 2610, WASHINGTON 13, D.C.'