B-139970, MAR. 9, 1960

B-139970, MAR. 9, 1960

TO MR. THOMAS D. JARDINE:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 15, 1960, FURTHER PROTESTING YOUR INDEBTEDNESS OF $50 TO THE UNITED STATES RESULTING

FROM AN ERRONEOUS PAYMENT OF UNIFORM MAINTENANCE ALLOWANCE. YOUR INDEBTEDNESS HAS BEEN REDUCED TO $42.02, BY THE APPLICATION OF $7.98 DUE YOU AS BASIC ALLOWANCE FOR QUARTERS IN BEHALF OF DEPENDENT MOTHER FOR A PERIOD OF TRAINING DUTY FROM MAY 17 TO MAY 30, 1959.

THIS INDEBTEDNESS WAS THE SUBJECT OF OUR DECISION TO YOU DATED DECEMBER 18, 1959, B-139970. IN THAT DECISION WE POINTED OUT THE LAW AND REGULATIONS APPLICABLE TO THE MATTER AND THE REASONS WHY YOU ARE INDEBTED TO THE UNITED STATES FOR THE ERRONEOUS PAYMENT TO YOU OF A UNIFORM MAINTENANCE ALLOWANCE. CONTRARY TO YOUR CONTENTION, THE CONCLUSION REACHED IN THAT DECISION WAS NOT BASED ON A TECHNICAL CONSTRUCTION OF THE STATUTE, BUT WAS BASED ON THE CLEAR LANGUAGE OF THE STATUTE. UNDER THE LAW AND REGULATIONS, YOUR RIGHT OF ELECTION TO RECEIVE THE $50 UNIFORM MAINTENANCE ALLOWANCE EXPIRED NOT LATER THAN JULY 9, 1956. YOUR CLAIM WAS FILED ON DECEMBER 9, 1957, WHICH WAS AFTER YOUR RIGHT OF ELECTION HAD EXPIRED. THE CLAIM WAS ERRONEOUSLY APPROVED AND PAID BY THE NAVY, CONTRARY TO THE CLEAR PROVISIONS OF THE STATUTE AND WHEN NO LEGAL RIGHT EXISTED TO SUCH PAYMENT.

IN ANSWER TO THE STATEMENTS IN YOUR LETTER THAT WE HAVE MADE NO EFFORT TO SETTLE AND ADJUST THIS CLAIM AND HAVE MADE NO OFFER IN COMPROMISE, YOU ARE ADVISED THAT WE HAVE NO AUTHORITY TO CANCEL CLAIMS IN FAVOR OF THE UNITED STATES OR SETTLE SUCH CLAIMS FOR ANY SUM LESS THAN THE FULL AMOUNT DUE. YOU ARE FURTHER ADVISED THAT WHERE A PERSON IS BOTH DEBTOR AND CREDITOR TO THE GOVERNMENT IN ANY FORM, THE ACCOUNTING OFFICERS ARE REQUIRED BY LAW TO CONSIDER BOTH THE CREDITS AND DEBITS IN AN ACCOUNT AND TO CERTIFY FOR PAYMENT ONLY THE BALANCE DUE, IF ANY. TAGGART V. UNITED STATES, 17 C.CLS. 322; 14 COMP. GEN. 897, 900. HENCE, THE APPLICATION OF $7.98 DUE YOU AS BASIC ALLOWANCE FOR QUARTERS IN BEHALF OF YOUR DEPENDENT MOTHER IN PARTIAL LIQUIDATION OF YOUR INDEBTEDNESS OF $50 WAS PROPER. IT FOLLOWS THAT YOUR PRESENT CLAIM FOR $7.98 OTHERWISE DUE YOU AS BASIC ALLOWANCE FOR QUARTERS MAY NOT BE ALLOWED.

REGARDING YOUR RIGHT TO A JUDICIAL REVIEW OF OUR DECISION, YOU ARE AGAIN ADVISED THAT 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. THERE APPEARS TO BE NO BASIS, HOWEVER, FOR CONSTRUING THE PROVISIONS OF THE ADMINISTRATIVE PROCEDURES ACT, 5 U.S.C. 1009, OR 28 U.S.C., CITED IN YOUR LETTER, AS AUTHORIZING JUDICIAL REVIEW OF THE ACTION TAKEN BY OUR OFFICE.

ACCORDINGLY, OUR DECISION TO YOU DATED DECEMBER 18, 1959, B-139970, IS AFFIRMED. YOU SHOULD REFUND THE AMOUNT OF YOUR INDEBTEDNESS AS REQUESTED IN THAT DECISION.

YOUR ORIGINAL ORDERS DATED APRIL 23, 1959, AND COPIES OF DEPENDENCY CERTIFICATE OF JUNE 10, 1959, ARE RETURNED HEREWITH AS REQUESTED BY YOU.