B-147521, JUL. 2, 1962

B-147521, JUL. 2, 1962

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER DATED MAY 25, 1962, FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING REMOVAL OF CERTAIN EXCEPTIONS ISSUED BY OUR NAVY AUDIT BRANCH FOR EXCESS PER DIEM ALLOWANCES PAID IN CONNECTION WITH TEMPORARY DUTY PERFORMED BY NAVAL PERSONNEL INCIDENT TO THE CONVERSION OF THE U.S.S. CORAL SEA (CVA-43 AT BREMERTON, WASHINGTON. THE REQUEST FOR DECISION HAS BEEN ASSIGNED PDTATAC CONTROL NO. 62-10 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

AS TYPICAL OF THE EXCEPTIONS IN QUESTION, THE UNDER SECRETARY OF THE NAVY HAS ENCLOSED A COPY OF THE NOTICE OF EXCEPTION ISSUED IN CONNECTION WITH PAYMENTS MADE TO COMMANDER RAY B. MUELLER, 155659, USN, TOGETHER WITH COPIES OF RELATED PAYMENT FORMS, ORDERS, AND ENDORSEMENTS. BY ORDERS DATED JULY 16, 1959, ISSUED BY THE CHIEF OF NAVAL PERSONNEL, COMMANDER MUELLER WAS ORDERED DETACHED FROM THE NAVAL STATION, SEATTLE, WASHINGTON, ON OR ABOUT AUGUST 22, 1959, AND DIRECTED TO PROCEED TO BREMERTON, WASHINGTON, AND REPORT TO THE COMMANDANT, THIRTEENTH NAVAL DISTRICT, FOR TEMPORARY DUTY IN CONNECTION WITH THE CONVERSION OF THE U.S.S. CORAL SEA (CVA-43) AT THE PUGET SOUND NAVAL SHIPYARD AND FOR DUTY ON BOARD THAT VESSEL WHEN PLACED IN COMMISSION. IT IS STATED THAT COMMANDER MUELLER REPORTED FOR TEMPORARY DUTY AT THE PUGET SOUND NAVAL SHIPYARD ON SEPTEMBER 1, 1959, AND THE U.S.S. CORAL SEA WAS COMMISSIONED ON JANUARY 25, 1960.

FIFTH ENDORSEMENT OF SEPTEMBER 1, 1959, PLACED ON COMMANDER MUELLER'S ORDERS ON HIS REPORTING FOR DUTY IN CONNECTION WITH THE CONVERSION OF THE U.S.S. CORAL SEA AT THE U.S. NAVAL BASE, BREMERTON, WASHINGTON, STATES THAT GOVERNMENT QUARTERS WERE AVAILABLE FOR ASSIGNMENT TO HIM BUT NOT HIS DEPENDENTS, IF ANY. THE ENDORSEMENT GOES ON TO STATE, HOWEVER, THAT "SINCE THE GOVERNMENT QUARTERS ARE CONSIDERED SUBSTANDARD AND INADEQUATE FOR PERMANENT OCCUPANCY, OR TEMPORARY DUTY CONTEMPLATED IN EXCESS OF SIXTY 960/60) DAYS, YOU MAY OCCUPY THESE QUARTERS OR DRAW QUARTERS ALLOWANCE.' APPARENTLY ON THE BASIS OF SUCH ENDORSEMENT, COMMANDER MUELLER AND OTHER NAVAL PERSONNEL INVOLVED WHO WERE ASSIGNED TO TEMPORARY DUTY IN CONNECTION WITH THE CONVERSION OF THE U.S.S. CORAL SEA AT THE PUGET SOUND NAVAL SHIPYARD, AND FOR DUTY ON BOARD THAT VESSEL WHEN PLACED IN COMMISSION, DID NOT OCCUPY THE AVAILABLE QUARTERS AND WERE PAID PER DIEM AT RATES APPLICABLE WHEN GOVERNMENT QUARTERS AND MESSING FACILITIES WERE NOT AVAILABLE.

UPON AUDIT OF THE DISBURSING OFFICER'S ACCOUNTS WE TOOK EXCEPTION TO THE $46 QUARTERS PORTION OF THE PER DIEM PAYMENT MADE TO COMMANDER MUELLER ON VOUCHER 83190, NOVEMBER 1959 ACCOUNT OF P. J. HOUSTON, AND TO OTHER SIMILAR PAYMENTS. THE EXCEPTIONS WERE REFERRED TO THE COMPTROLLER OF THE NAVY BY THE NAVY FINANCE CENTER FOR CONSIDERATION PRIOR TO THEIR RELEASE TO THE FIELD AND THE COMPTROLLER OF THE NAVY BY LETTER OF MAY 25, 1961, NCA211 7220/20-2, REQUESTED REMOVAL OF THE EXCEPTIONS ON THE BASIS THAT THE COMMANDING OFFICER IN DECLARING THE QUARTERS UNACCEPTABLE AND INADEQUATE WAS ACTING WITHIN HIS PREROGATIVE UNDER OPNAV INSTRUCTION 11101.10 OF OCTOBER 1, 1957. UNDER THAT INSTRUCTION IT IS THE RESPONSIBILITY OF THE COMMANDING OFFICER TO DETERMINE THE ADEQUACY OF QUARTERS FOR PERMANENT OCCUPANCY AT THE MEMBER'S PERMANENT DUTY STATION IN LIEU OF A BASIC ALLOWANCE FOR QUARTERS AS DISTINGUISHED FROM PER DIEM FOR TEMPORARY DUTY. THE UNDER SECRETARY OF THE NAVY STATES THAT INSTRUCTIONS HAVE BEEN ISSUED TO DISCONTINUE THE QUESTIONED ENDORSEMENT, AND TO ENDORSE ORDERS EITHER "GOVERNMENT QUARTERS NOT AVAILABLE" OR "GOVERNMENT QUARTERS AVAILABLE," DEPENDING ON THE FACTS IN EACH CASE. IT IS CONTENDED IN THE UNDER SECRETARY'S LETTER, HOWEVER, THAT SINCE THE GOVERNMENT QUARTERS AT BREMERTON, WASHINGTON, HAD BEEN DETERMINED TO BE SUBSTANDARD AND INADEQUATE FOR OCCUPANCY IN EXCESS OF 60 DAYS, GOVERNMENT QUARTERS WERE NOT AVAILABLE WITHIN THE MEANING OF THE JOINT TRAVEL REGULATIONS AND COMMANDER MUELLER AND THE OTHER OFFICERS CONCERNED WERE ENTITLED TO FULL PAYMENT OF PER DIEM DURING THE PERIODS INVOLVED. ON SUCH BASIS IT IS ASKED THAT THE

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY. PARAGRAPH 4206 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT WHEN A MEMBER OF THE UNIFORMED SERVICES IS ASSIGNED TO TEMPORARY DUTY IN CONNECTION WITH THE FITTING OUT OR CONVERSION OF A VESSEL, HE IS AUTHORIZED A PER DIEM ALLOWANCE, AS PRESCRIBED IN PARAGRAPH 4205-5 OF SUCH REGULATIONS, DURING EACH FITTING OUT OR CONVERSION PERIOD. THESE PROVISIONS OF THE REGULATIONS CONTEMPLATE THE PAYMENT OF PER DIEM TO MEMBERS ASSIGNED TO TEMPORARY DUTY IN CONNECTION WITH THE FITTING OUT OR CONVERSION OF A VESSEL, SUBJECT TO APPROPRIATE DEDUCTIONS TO BE MADE WHERE GOVERNMENT QUARTERS ARE AVAILABLE OR UTILIZED.

PARAGRAPH 1150-5 OF THE REGULATIONS PROVIDES THAT THE TERM "GOVERNMENT QUARTERS," UNLESS OTHERWISE QUALIFIED, MEANS "ANY SLEEPING ACCOMMODATIONS OWNED OR LEASED BY THE UNITED STATES GOVERNMENT," AND PARAGRAPH 4451 REQUIRES MEMBERS IN A TRAVEL STATUS TO UTILIZE AVAILABLE GOVERNMENT QUARTERS TO THE MAXIMUM EXTENT PRACTICABLE AND PROVIDES FOR A CERTIFICATION OF THE COMMANDING OFFICER AT THE TEMPORARY STATION, OR HIS REPRESENTATIVE, AS TO THE NONAVAILABILITY OF GOVERNMENT QUARTERS IN SUPPORT OF CLAIMS FOR THE FULL PER DIEM FOR TEMPORARY DUTY OF 24 HOURS OR MORE AT MILITARY INSTALLATIONS. IN VIEW OF SUCH PROVISIONS, THE EXISTENCE OF ANY AVAILABLE USABLE GOVERNMENT QUARTERS PROVIDING SLEEPING ACCOMMODATIONS WOULD PRECLUDE ENTITLEMENT TO THE QUARTERS PORTION OF PER DIEM TO THE MEMBERS CONCERNED, NOTWITHSTANDING THAT THEY FAILED TO OCCUPY SUCH QUARTERS.

AS SPECIFICALLY STATED IN THE FIFTH ENDORSEMENT OF SEPTEMBER 1, 1959, ISSUED AT THE U.S. NAVAL BASE, BREMERTON, WASHINGTON, GOVERNMENT QUARTERS WERE AVAILABLE FOR ASSIGNMENT TO COMMANDER MUELLER. IT FURTHER STATED, HOWEVER, THAT QUARTERS WERE CONSIDERED TO BE SUBSTANDARD AND INADEQUATE FOR PERMANENT OCCUPANCY OR TEMPORARY DUTY CONTEMPLATED IN EXCESS OF 60 DAYS. WHILE SUCH A DETERMINATION WOULD AFFORD AN OFFICER AN OPTION TO OCCUPY INADEQUATE QUARTERS AT HIS PERMANENT STATION OR RECEIVE A QUARTERS ALLOWANCE UNDER SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 252, IT GAVE COMMANDER MUELLER AND THE OTHER OFFICERS ON TEMPORARY DUTY NO SUCH AN OPTION TO OCCUPY THE AVAILABLE QUARTERS OR RECEIVE PER DIEM WITHOUT REDUCTION BECAUSE OF SUCH AVAILABLE QUARTERS. CONSEQUENTLY, THE DETERMINATION OF INADEQUACY OF QUARTERS DID NOT ESTABLISH THEIR NONAVAILABILITY FOR PER DIEM PURPOSES AND WAS IMPROPER UNDER THE CONTROLLING REGULATIONS. OPNAV INSTRUCTION 11101.10 MAY NOT BE VIEWED AS QUALIFYING THE TERM ,GOVERNMENT QUARTERS" CONTAINED IN PARAGRAPH 1150-5 OF THE REGULATIONS SINCE SUCH INSTRUCTION RELATES TO DETERMINATIONS OF ADEQUACY OF BACHELOR OFFICERS' QUARTERS FOR QUARTERS ALLOWANCE PURPOSES.

SINCE THE CITED REGULATIONS REQUIRE A REDUCTION OF THE PER DIEM AUTHORIZED UNLESS THE COMMANDING OFFICER AT THE TEMPORARY DUTY STATION HAS CERTIFIED THAT GOVERNMENT QUARTERS AS DEFINED IN PARAGRAPH 1150-5 WERE NOT AVAILABLE, AND SINCE THE REGULATIONS CONTEMPLATE A PER DIEM REDUCTION WHERE ANY USABLE SLEEPING ACCOMMODATIONS OWNED BY THE GOVERNMENT ARE SHOWN TO HAVE BEEN AVAILABLE TO THE MEMBER, THE FAILURE TO REDUCE THE PER DIEM PAYMENTS AS REQUIRED RESULTED IN AN OVERPAYMENT TO COMMANDER MUELLER IN THE AMOUNT OF $290.

WHILE COMMANDER MUELLER AND THE OTHER OFFICERS INVOLVED MAY NOT HAVE BEEN AT FAULT IN THE MATTER OF THE OVERPAYMENTS OF PER DIEM MADE TO THEM, IT IS WELL ESTABLISHED THAT THE UNITED STATES CANNOT BE BOUND OR ESTOPPED BY AN ERRONEOUS PAYMENT MADE THROUGH ADMINISTRATIVE ERROR BY ITS OFFICERS, WHETHER MADE UNDER MISTAKE OF FACT OR LAW. PERSONS RECEIVING SUCH ERRONEOUS PAYMENTS ACQUIRE NO RIGHT TO THEM AND ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION SINCE RESTITUTION RESULTS IN NO LOSS TO THEM, THEY HAVING RECEIVED SOMETHING FOR NOTHING. SEE BARNES, ET AL. V. DISTRICT OF COLUMBIA, 22 CT.CL. 366; UNITED STATES V. BURCHARD, 125 U.S. 176; AND THE CASES COLLECTED AND DISCUSSED IN UNITED STATES V. SUTTON CHEMICAL CO., 11 F.2D 24, AND IN 63 A.L.R. 1346. EVEN FINANCIAL HARDSHIP WHICH MIGHT RESULT FROM COLLECTION FROM THE RECIPIENT OR THE FACT THAT THE PAYMENTS 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. WE HAVE NO AUTHORITY TO CANCEL THE INDEBTEDNESS ARISING FROM THE OVERPAYMENTS OF PER DIEM MADE TO COMMANDER MUELLER AND THE OTHER OFFICERS CONCERNED CONTRARY TO THE LAW AND REGULATIONS.

THEREFORE THERE APPEARS TO BE NO PROPER BASIS FOR REMOVING THE EXCEPTIONS IN THE CIRCUMSTANCES INVOLVED.