B-143356, OCT. 27, 1960

B-143356, OCT. 27, 1960

TO MR. JAMES T. MCCARTHY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26, 1960, AGAIN REFERRING TO THE CLAIM OF THE UNITED STATES AGAINST YOU, IN THE AMOUNT OF $200, REPRESENTING AN ERRONEOUS PAYMENT OF MUSTERING-OUT PAY WHICH YOU RECEIVED INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY RESERVE.

SINCE YOU STRESS THE FACT THAT YOUR ACTIVE DUTY ORDERS DIRECTED YOU TO PROCEED ON JANUARY 31, 1955, FROM YOUR HOME AT CLEVELAND, OHIO, TO THE FINANCE SCHOOL AT FORT BENJAMIN HARRISON, INDIANA, WHERE YOU WERE AUTHORIZED TO REPORT FOR ACTIVE DUTY "NOT LATER THAN" FEBRUARY 1, 1955, THE PROVISION OF LAW AND REGULATIONS GOVERNING YOUR RIGHT TO PAY AND ALLOWANCES ARE AGAIN BROUGHT TO YOUR ATTENTION.

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, DATED AUGUST 17, 1950, ISSUED UNDER AUTHORITY OF THE ABOVE QUOTED STATUTORY PROVISIONS, PROVIDES IN PERTINENT PART THAT, IN CASE TRAVEL BY PRIVATELY OWNED CONVEYANCE IS SPECIFICALLY AUTHORIZED AND THE TRAVEL IS SO PERFORMED,"THE TRAVEL TIME INCLUDED AS ACTIVE DUTY SHALL BE COMPUTED ON THE BASIS OF ONE DAY FOR EACH THREE HUNDRED MILES TRAVELED, AND ONE DAY OF TRAVEL TIME SHALL ALSO BE ALLOWED FOR EACH FRACTION OF THREE HUNDRED MILES IN EXCESS OF ONE HUNDRED AND FIFTY MILES. THE DISTANCE TRAVELED SHALL BE COMPUTED ON THE BASIS OF DISTANCES ESTABLISHED BY THE OFFICIAL MILEAGE TABLES IN USE BY THE UNIFORMED SERVICES.' OFFICIAL MILEAGE TABLES SHOW THAT THE DISTANCE FROM CLEVELAND TO FORT BENJAMIN HARRISON IS LESS THAN 300 MILES.

THE RIGHTS OF ALL MEMBERS OF THE UNIFORMED SERVICES WHO ARE ORDERED TO EXTENDED ACTIVE DUTY IN EXCESS OF 30 DAYS ARE FIXED BY THE QUOTED PROVISIONS OF LAW AND REGULATIONS AND SUCH RIGHTS MAY NOT BE VARIED BY ADMINISTRATIVE ACTION IN THE FORM OF STATEMENTS MADE IN ACTIVE DUTY ORDERS. UNDER SUCH PROVISION OF LAW AND REGULATION A MEMBER WHO LIVES WITHIN 300 MILES OF HIS FIRST DUTY STATION CANNOT ENTER AN ACTIVE DUTY STATUS PRIOR TO THE DAY HE ACTUALLY REPORTS FOR DUTY AT HIS FIRST STATION, IF NO PARTICULAR HOUR OF REPORTING IS SPECIFIED. IT IS WELL ESTABLISHED THAT THEY DAY OF REPORTING IS A DAY OF TRAVEL. SEE DECISIONS OF SEPTEMBER 19, 1956, B-128928; AND OCTOBER 22, 1959, B 140840. SINCE YOUR ACTIVE DUTY ORDERS DIRECTED YOU TO PROCEED ON JANUARY 31, 1955, FROM YOUR HOME AT CLEVELAND AND REPORT AT FORT BENJAMIN HARRISON,"NOT LATER THAN" FEBRUARY 1, 1955, THE DECISION AS TO WHEN YOU WERE TO REPORT FOR ACTIVE DUTY (EITHER JANUARY 31 OR FEBRUARY 1, 1955) WAS LEFT TO YOU. EVEN THOUGH YOU DELAYED DEPARTING FROM YOUR HOME UNTIL 10 A.M. ON JANUARY 31, 1955, YOU ARRIVED IN THE VICINITY OF YOUR STATION WITHIN NORMAL OFFICE HOURS AND YOU HAVE FURNISHED NO INFORMATION WHICH SHOWS THAT YOU WERE PREVENTED FROM REPORTING FOR DUTY AT THAT PLACE ON THAT DAY.

CONCERNING YOUR STATEMENT THAT YOU KNEW OF NO MAIN ROAD TO FORT BENJAMIN HARRISON FROM U.S. ROUTE 40 EXCEPT THROUGH THE CITY OF INDIANAPOLIS, YOU ARE ADVISED THAT THE RAND MCNALLY ROAD ATLAS SHOWS A NUMBER OF ROADS WITHIN THE OUTSIDE THE LIMITS OF THAT CITY, INCLUDING STATE ROUTE 100, LEADING FROM ROUTE 40 TO U.S. ROUTE 36 WHICH PASSES FORT HARRISON. THE POINTS OF DEPARTURE OF MOST OF SUCH ROADS FROM ROUTE 40 ARE CLOSER TO FORT HARRISON THAN THEY ARE TO THE HOTEL IN INDIANAPOLIS WHERE YOU REGISTERED AT 4:21 P.M. HOWEVER, IT APPEARS UNNECESSARY TO DISCUSS THIS MATTER FURTHER, SINCE YOU COULD NOT ENTER AN ACTIVE DUTY STATUS UNTIL THE DAY YOU REPORTED FOR DUTY, FEBRUARY 1, 1955. FOR THE REASONS STATED ABOVE AND SINCE YOU DID NOT SO REPORT ON THE PREVIOUS DAY, THE DIRECTION IN YOUR ORDERS FOR TRAVEL ON THAT DAY AND THE LISTING OF JANUARY 31, 1955, AS THE EFFECTIVE DATE OF DUTY, WHERE WITHOUT LEGAL EFFECT TO PLACE YOU ON ACTIVE DUTY ON THAT DATE. SINCE MUSTERING-OUT PAY IS PAYABLE ONLY TO MEMBERS WHO SERVED ON ACTIVE DUTY "PRIOR" TO FEBRUARY 1, 1955, WE HAVE NO ALTERNATIVE BUT TO TAKE SUCH STEPS AS MAY BE APPROPRIATE TO OBTAIN REFUND OF THE AMOUNT OF THE ERRONEOUS PAYMENT.

CONCERNING YOUR STATEMENT WITH REFERENCE TO "MY MANY MANY UNANSWERED QUESTIONS," YOUR PREVIOUS LETTERS TO THIS OFFICE HAVE BEEN EXAMINED AND, WITH THE EXCEPTION OF AN INQUIRY--- SUBMITTED AS "A PASSING THOUGHT"--- AS TO WHAT THE GOVERNMENT WOULD HAVE DONE IF YOU HAD BEEN INJURED WHILE TRAVELING ON JANUARY 31, 1955, NO UNANSWERED QUESTIONS HAVE BEEN FOUND. WITH RESPECT TO THIS MATTER AND SINCE IN THE EVENT OF SUCH ACCIDENT, IT THEN WOULD HAVE APPEARED THAT YOU COULD HAVE REPORTED FOR DUTY ON THAT DAY BUT FOR SUCH ACCIDENT, IT PROBABLY WOULD HAVE BEEN ASSUMED THAT YOU WERE IN AN ACTIVE DUTY STATUS ON THAT DAY. HOWEVER, SINCE YOU HAD NO ACCIDENT AND FAILED TO REPORT FOR DUTY ON THAT DATE, NO ASSUMPTIONS WERE NECESSARY TO DETERMINE YOUR RIGHTS IN THE PREMISES.

AS YOU HAVE BEEN PREVIOUSLY ADVISED, THE UNITED STATES IS NOT ESTOPPED TO COLLECT AN ERRONEOUS PAYMENT MADE THROUGH ADMINISTRATIVE ERROR BY ITS OFFICERS, WHETHER MADE UNDER MISTAKE OF FACT OR MISTAKE OF LAW, AND PARTIES RECEIVING SUCH ERRONEOUS PAYMENTS ARE REQUIRED TO REFUND THEM. SEE UNITED STATES V. BURCHARD, 125 U.S. 176; UNITED STATES V. WURTS, 303 U.S. 414, AND THE CASES COLLECTED AND DISCUSSED IN UNITED STATES V. SUTTON CHEMICAL COMPANY, 11 F.2D 24. ACCORDINGLY, THE AMOUNT OF THE ERRONEOUS PAYMENT SHOULD BE REFUNDED AS PREVIOUSLY REQUESTED.