B-91928, MAR 7, 1950

B-91928, MAR 7, 1950

PRECIS-UNAVAILABLE

THE HONORABLE, THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 6, 1950, REQUESTING DECISION AS TO WHETHER, UNDER THE FACTS AND CIRCUMSTANCES RELATED THEREIN, ODIS F. HARPER, RA 34,074,146, IS ENTITLED TO RETAIN THE DIFFERENCE BETWEEN THE PAY RECEIVED BY HIM AS A TECHNICIAN, FOURTH GRADE, AND THAT OF A PRIVATE FOR THE PERIOD FROM APRIL 16, 1946, TO DECEMBER 22, 1948, AND DIFFERENCE BETWEEN PAY RECEIVED AS A SERGEANT AND THAT OF A PRIVATE FOR THE PERIOD FROM DECEMBER 23, 1948, TO MARCH 19, 1949.

THE FACTS ARE SUMMARIZED IN YOUR LETTER AS FOLLOWS:

"*** ODIS F. HARPER WAS ENLISTED IN THE REGULAR ARMY ON 20 MARCH 1946 IN THE GRADE OF PRIVATE, TO SERVICE FOR A PERIOD OF THREE YEARS; ON 6 APRIL 1946 HE WAS ASSIGNED TO COMPANY B, 59TH MEDICAL TRAINING BATTALION, IN THE GRADE OF PRIVATE; ON 16 APRIL 1946 HE WAS RELIEVED FROM ASSIGNMENT AND TRANSFERRED IN GRADE TO THE 1848TH SERVICE COMMAND UNIT, CAMP HOOD, TEXAS. THROUGH ADMINISTRATIVE ERROR HIS GRADE ON THE TRANSFER ORDER, SPECIAL ORDERS NO. 42, DATED 16 APRIL 1946, WAS SHOWN AS 'TEC 4' (TECHNICIAN, FOURTH GRADE). THE EVIDENCE SUBMITTED INDICATED THAT HARPER ASSUMED AND SATISFACTORILY PERFORMED THE DUTIES OF A TECHNICIAN, FOURTH GRADE ON AND AFTER 16 APRIL 1946, ALTHOUGH NO ORDERS WERE ACTUALLY ISSUED PROMOTING HIM TO THAT GRADE. ON 9 AUGUST 1946, A WARRANT WAS ISSUED PURPORTING TO APPOINT HIM TO THE PERMANENT GRADE OF TECHNICIAN, FOURTH GRADE TO RANK FROM 20 MARCH 1946. THE FACT OF SATISFACTORY SERVICE IS FURTHER VERIFIED BY THE CONVERSION OF HIS GRADE FROM TECHNICIAN, FOURTH GRADE TO CORPORAL ON 1 AUGUST 1948, AS PROVIDED BY SECTION II, DEPARTMENT OF THE ARMY CIRCULAR NO. 202, DATED 7 JULY 1948, AND HIS SUBSEQUENT PROMOTION TO SERGEANT (THIRD GRADE) ON 23 DECEMBER 1948. SUBSEQUENT TO ENLISTMENT ON 20 MARCH 1946, ODIS F. HARPER WAS FIRST PAID IN FULL TO INCLUDE THE MONTH OF APRIL 1946, AND WAS SHOWN ON THE PAYROLL AS A TECHNICIAN, FOURTH GRADE, AND WAS SO PAID. PAYMENT TO HIM WAS CONTINUED IN THE GRADE THROUGH 22 DECEMBER 1948, AND IN THE GRADE OF SERGEANT FROM 23 DECEMBER 1948 THROUGH 19 MARCH 1949. HE WAS DISCHARGED ON 19 MARCH 1949 AND REENLISTED THE FOLLOWING DAY."

IT APPEARS FROM THE ENCLOSURES SUBMITTED WITH YOUR LETTER THAT IT WAS NOT UNTIL JUNE 17, 1948, THAT INQUIRES INTO HARPER'S RANK WERE INITIATED BY THE ARMY, AND THAT AFTER INVESTIGATING THE CASE THE POST INSPECTOR, FORT SAM HOUSTON, TEXAS, CONCLUDED THAT THERE IS NO EVIDENCE OF A DELIBERATE INTENT ON THE PART OF HARPER TO DEFRAUD THE GOVERNMENT. IT REASONABLY APPEARS THAT THE ERRONEOUS PAYMENTS GREW OUT OF ERRORS OF THE GOVERNMENT, AND IN THAT CONNECTION IT IS NOTED THAT HARPER ASSUMED AND PERFORMED THE DUTIES OF THE GRADE OF TECHNICIAN, FOURTH GRADE, WITH THE FULL KNOWLEDGE OF THE ARMY AUTHORITIES; THAT A WARRANT AS TECHNICIAN, FOURTH GRADE, WAS ISSUED TO HIM IN AUGUST 1946, AND AN ORDER PROMOTING HIM TO SERGEANT-- BASED UPON THE ASSUMPTION BY THE ARMY THAT HE THEN WAS A TECHNICIAN, FOURTH GRADE-- WAS ISSUED IN DECEMBER 1948. HENCE, IT APPEARS THAT THERE IS NO BASIS, INSOFAR AS THE RECORD BEFORE THIS OFFICE DISCLOSES, FOR ANY ASSUMPTION THAT HARPER DID NOT RECEIVE THE PAY PERTAINING TO SUCH GRADES IN GOOD FAITH.

IN BENNETT V. UNITED STATES, 19 C.CLS, 379, AN ARMY OFFICER'S RESIGNATION AS OF OCTOBER 16, 1866, WAS ACCEPTED. ON DECEMBER 4, 1866, BY DIRECTION OF THE PRESIDENT, THE ORDER OF ACCEPTANCE WAS REVOKED AND HE WAS DIRECTED TO RETURN TO DUTY. IN CONSIDERING THE RIGHT OF THE OFFICER TO RETAIN THE PAY RECEIVED BY HIM FOR ACTUAL SERVICE FOR THE PERIOD THAT HE WAS NOT AN OFFICER DE JURE FROM DECEMBER 4, 1866, TO FEBRUARY 23, 1867, DATE OF SUBSEQUENT VALID APPOINTMENT, THE COURT STATED AT PAGE 388:

"*** ALL PARTIES CONCERNED ACTED IN GOOD FAITH. THE CLAIMANT ACTUALLY PERFORMED THE SERVICE FOR WHICH HE WAS PAID, AND IN OUR OPINION, UNDER ALL THE CIRCUMSTANCES, HE HAS RECEIVED NO MONEY WHICH IN EQUITY AND GOOD CONSCIENCE HE CANNOT RETAIN."

IN PALEN V. UNITED STATES, ID. 389, 394, A CASE INVOLVING SIMILAR FACTS, INSOFAR AS HERE MATERIAL, THE COURT SAID:

"3. AS TO THE COUNTERCLAIM. THE CLAIMANT RECEIVED THE PAY AND ALLOWANCE OF A HOSPITAL CHAPLAIN FOR THE TIME FROM MARCH 16, 1866, WHEN HIS FIRST MUSTER-OUT WAS REVOKED, TO THE TIME OF HIS SECOND MUSTER-OUT, SEPTEMBER 1, 1867, DURING ALL OF WHICH PERIOD HE PERFORMED SERVICE AS SUCH. ***

"THIS MONEY WAS PAID TO THE CLAIMANT ON MUTUAL MISTAKE AS TO BOTH THE RIGHT OF THE GOVERNMENT TO HIS SERVICES AS A PUBLIC OFFICER AND HIS RIGHT TO THE OFFICE AND ITS EMOLUMENTS. THE CLAIMANT DID ACTUALLY PERFORM THE SERVICES ATTACHED TO THE OFFICE, AND AS IT IS NOT POSSIBLE NOW TO CORRECT THE MISTAKE ON THE ONE SIDE BY RETURNING THE SERVICES, SO THE MISTAKE ON THE OTHER SIDE OUGHT NOT TO BE CORRECTED BY COMPELLING HIM TO PAY BACK THE MONEY WHICH HE HAD RECEIVED IN GOOD FAITH ***. SEE ALSO UNITED STATES V. ROYER, 268 U.S. 394.

IN VIEW OF THE FOREGOING, AND IN THE ABSENCE OF EVIDENCE THAT THE ERRONEOUS PAYMENTS WERE NOT RECEIVED IN GOOD FAITH, HARPER IS ENTITLED TO RETAIN THE AMOUNT OF THE DIFFERENCE BETWEEN THE PAY OF A PRIVATE AND THAT RECEIVED FOR THE PERIOD APRIL 16, 1946, TO MARCH 19, 1949.