B-164127, MAY 13, 1969

B-164127, MAY 13, 1969

TO MR. CLAUDE E. COOPER:

THIS REFERS TO YOUR LETTERS OF APRIL 11 AND 16, 1969, WITH ENCLOSURES, CONCERNING THE REASON FOR DENIAL OF A CLAIM FOR REIMBURSEMENT OF EXPENSES FOR TRAVEL PERFORMED DURING THE PERIOD FEBRUARY 3 THROUGH MARCH 6, 1959, AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE INCIDENT TO TEMPORARY DUTY PERFORMED AT LACKLAND AIR FORCE BASE, TEXAS.

THE INFORMATION OF RECORD SHOWS THAT THE ORIGINAL VOUCHER DATED MARCH 12, 1959, SUBMITTED BY YOU FOR THE TEMPORARY DUTY ASSIGNMENT, AS COMPUTED BY YOU, AMOUNTED TO $312.85 AND THE ENTIRE AMOUNT WAS DISALLOWED BY THE ADMINISTRATIVE OFFICE ON THE GROUND THAT YOU HAD FALSELY CLAIMED PER DIEM FOR 7 NONWORKDAYS WHEN YOU WERE AT YOUR RESIDENCE IN THE VICINITY OF YOUR OFFICIAL HEADQUARTERS. APPARENTLY, THE ACTION OF THE ADMINISTRATIVE OFFICE WAS PREDICATED ON 28 U.S.C. 2514 WHICH PROVIDES THAT A CLAIM AGAINST THE UNITED STATES SHALL BE FORFEITED BY ANY PERSON WHO CORRUPTLY PRACTICES OR ATTEMPTS TO PRACTICE ANY FRAUD AGAINST THE UNITED STATES IN THE PROOF, STATEMENT, ESTABLISHMENT OR ALLOWANCE THEREOF.

THE FILE REFLECTS THAT BECAUSE OF YOUR IMPROPER CLAIM THE DEPARTMENT OF THE AIR FORCE UNDER DATE OF MAY 8, 1959, ADDRESSED A LETTER TO YOU WHEREIN IT PROPOSED TO REMOVE YOU FROM THE SERVICE NOT LATER THAN 30 DAYS FROM THE DATE OF SUCH LETTER. THAT LETTER, AMONG OTHER THINGS, STATED:

"THE VOUCHER DATED MARCH 12, 1959 (WHICH INCLUDED CLAIM FOR PER DIEM ON THE 7 DAYS REFERRED TO ABOVE) COMPUTED UPON THE BASIS OF YOUR CLAIM, AMOUNTS TO $312.85. THE VOUCHER PROPERLY COMPUTED BASED UPON CORRECTED DISCREPANCIES WHICH YOU HAVE ADMITTED, AMOUNTS TO $70.44. THERE IS A DIFFERENCE OF $242.41 BETWEEN THESE TWO AMOUNTS.' ALSO, YOU WERE ADVISED IN THE LETTER OF YOUR RIGHTS TO A HEARING.

WE UNDERSTAND FROM YOUR CORRESPONDENCE THAT YOU DID NOT REQUEST A HEARING ON THE PROPOSED REMOVAL AT THE TIME BUT INSTEAD RESIGNED FROM THE SERVICE EFFECTIVE MAY 22, 1959, WITH THE ASSURANCE THAT THE CHARGES WOULD BE REMOVED FROM YOUR RECORD. LATER WHEN BECAUSE OF SUCH CHARGES THE CIVIL SERVICE COMMISSION DENIED FEDERAL EMPLOYMENT OPPORTUNITY TO YOU FOR 1 YEAR YOU DID APPEAL THE MATTER TO THAT AGENCY WHICH UPHELD ITS ACTION IN THAT RESPECT. WHY YOU ELECTED TO PURSUE THIS COURSE (RESIGN) IF YOU FELT THE CHARGES HAD NO BASIS IS NOT EXPLAINED.

WE FURTHER UNDERSTAND THAT A MONEY PAYMENT IS NOT YOUR PRIMARY CONCERN. RATHER, YOU WOULD LIKE OUR OFFICE TO COMPUTE THE VOUCHER DATED MARCH 12, 1959, TO ASCERTAIN THE AMOUNT YOU WERE ENTITLED TO FOR THE PERIOD COVERED BY SUCH VOUCHER, FEBRUARY 3, 1959, TO MARCH 6, 1959. IT IS YOUR BELIEF THAT THE COMPUTATION BY THE DEPARTMENT OF THE AIR FORCE OF THE VOUCHER TO SHOW ONLY AN AMOUNT DUE OF $70.44 WAS ERRONEOUS AND THAT YOU WERE ENTITLED TO THE FULL AMOUNT CLAIMED. IF YOUR VIEW IS FOUND TO BE CORRECT BY OUR OFFICE, IT APPARENTLY IS YOUR INTENTION TO SUBMIT OUR FINDING TO THE CIVIL SERVICE COMMISSION IN THE HOPE OF PERSUADING THAT AGENCY TO REVERSE ITS ACTION IN 1959 IN BARRING YOU FROM EMPLOYMENT FOR 1 YEAR. WE ASSUME ANY FAVORABLE ACTION IN THAT RESPECT BY THE COMMISSION WOULD CAST DOUBT ON THE CHARGES BROUGHT AGAINST YOU BY THE DEPARTMENT OF THE AIR FORCE AND THAT YOU WOULD THEN PROCEED TO HAVE SUCH CHARGES EXPUNGED FROM YOUR PERSONNEL FILE.

WE DO NOT HAVE THE ORIGINAL VOUCHER OR A COPY THEREOF WHICH FORMED THE BASIS OF THE ACTION TAKEN AGAINST YOU BY THE DEPARTMENT OF THE AIR FORCE. THE ONLY VOUCHER WE HAVE IS ONE SUBMITTED IN 1967 WHICH YOU SIGNED. MAY BE THAT THE FIGURE OF $70.44 STATED BY THE DEPARTMENT TO HAVE BEEN THE AMOUNT DUE YOU ON THE VOUCHER DATED MARCH 12, 1959, IS NOT CORRECT. HOWEVER, TO BE ENTITLED TO THE FULL AMOUNT OF THE VOUCHER, $312.85, YOU WOULD HAVE TO SHOW ENTITLEMENT TO PER DIEM ON THE 7 NONWORKDAYS PREVIOUSLY REFERRED TO.

IT SEEMS TO US THAT THE MAIN THRUST OF THE CHARGES ARISING OUT OF THE VOUCHER IN QUESTION WAS YOUR ACTION IN CLAIMING PER DIEM FOR THE VOUCHER IN QUESTION WAS YOUR ACTION IN CLAIMING PER DIEM FOR NONWORKDAYS AT YOUR TEMPORARY DUTY STATION WHEN IN FACT YOU WERE AT HOME AND AWARE (AS STATED BY YOUR AGENCY) THAT PAYMENT OF PER DIEM UNDER SUCH CIRCUMSTANCES WAS PRECLUDED. THEREFORE, WE SUBMIT THAT THE STATEMENT OF THE AMOUNT TO WHICH YOU OTHERWISE WOULD HAVE BEEN ENTITLED TO ON THE VOUCHER MAY NOT BE AS MATERIAL AS YOU MIGHT BELIEVE IT TO BE. IN OTHER WORDS, FOR YOU TO PREVAIL IT WOULD BE NECESSARY TO COUNTERACT THE FINDING THAT YOU CLAIMED PER DIEM FOR NONWORKDAYS WHILE AT YOUR HOME WITH KNOWLEDGE THAT SUCH PER DIEM WAS PROHIBITED.

WE NOTE THAT IN SOME OF YOUR CORRESPONDENCE YOU ARE NOW MAKING THE ARGUMENT THAT YOU WERE ENTITLED TO PER DIEM FOR NONWORKDAYS UNDER A PROVISION OF THE REGULATIONS (BOTH DEPARTMENT OF THE AIR FORCE AND STANDARDIZED GOVERNMENT TRAVEL REGULATIONS) WHICH PERMIT AN EMPLOYEE WHO VOLUNTARILY RETURNS TO HIS HEADQUARTERS OR HOME ON A WEEKEND TOBE REIMBURSED FOR TRAVEL EXPENSES NOT IN EXCESS OF THE PER DIEM HE WOULD HAVE BEEN ENTITLED TO HAD HE REMAINED AT HIS TEMPORARY DUTY STATION. THAT PROVISION IS NOT APPLICABLE IN YOUR CASE BECAUSE YOU WERE COMMUTING ON A DAILY BASIS BETWEEN YOUR HOME AND THE TEMPORARY DUTY STATION. THAT IS TO SAY, THAT YOUR CLAIM IF IT HAD BEEN ALLOWED WOULD HAVE INCLUDED REIMBURSEMENT FOR EXPENSES IN RETURNING HOME ON A FRIDAY EVENING AND GOING BACK TO YOUR TEMPORARY DUTY STATION ON MONDAY MORNING. THUS, NO FURTHER AMOUNT WOULD HAVE BEEN FOR CONSIDERATION BECAUSE OF RETURNING HOME FOR WEEKENDS.

BY REASON OF THE FOREGOING, OUR VIEW IS THAT UNLESS THE FINDING OF THE DEPARTMENT OF THE AIR FORCE IN RESPECT OF YOUR CLAIMING PER DIEM FOR NONWORKDAYS UNDER THE CIRCUMSTANCES PREVIOUSLY MENTIONED IS REVERSED WE SEE NO NECESSITY FOR A DETAILED COMPUTATION OF THE VOUCHER DATED MARCH 12, 1959. WE HAVE NOT ATTEMPTED TO ASCERTAIN WHETHER SUCH VOUCHER OR A COPY THEREOF IS STILL IN EXISTENCE.