B-154400, JULY 14, 1969, 49 COMP. GEN. 38

B-154400, JULY 14, 1969, 49 COMP. GEN. 38

DISBURSING OFFICERS -- LACK OF DUE CARE, ETC. -- UNFAMILIARITY WITH PROCEDURE AN ACCOUNTABLE OFFICER OF THE UNIFORMED SERVICES WHO AUTHORIZED PER DIEM PAYMENTS TO MEMBERS FURNISHED QUARTERS AND SUBSISTENCE ON THE BASIS OF A RETROACTIVE AMENDMENT THAT DELETED THE PROVISION FOR GROUP TRAVEL AND A UNIT MOVEMENT FROM TEMPORARY DUTY ORDERS FAILED TO EXERCISE THE DUE CARE REQUIRED BY 31 U.S.C. 82A-2 FOR ENTITLEMENT TO RELIEF. THE DISBURSING OFFICER'S RELIANCE ON ASSURANCE FROM HIGHER HEADQUARTERS THAT A UNIT MOVEMENT WAS NOT INVOLVED AND THAT THE MEMBERS WERE ENTITLED TO PER DIEM, AND HIS FAILURE TO EITHER FOLLOW ADMINISTRATIVE PROCEDURES BASED ON COMPTROLLER GENERAL DECISIONS TO THE EFFECT THAT MEMBERS MAY NOT BE PAID A PER DIEM WHEN FURNISHED QUARTERS AND SUBSISTENCE, OR TO SUBMIT THE DOUBTFUL CLAIMS TO THE UNITED STATES GENERAL ACCOUNTING OFFICE FOR SETTLEMENT, IS NOT THE DUE CARE CONTEMPLATED BY THE STATUTE.

TO THE SECRETARY OF THE AIR FORCE, JULY 14, 1969:

FURTHER REFERENCE IS MADE TO LETTER OF MAY 26, 1969, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE REQUESTING THAT RELIEF FOR IMPROPER PAYMENTS BE GRANTED TO AN AIR FORCE ACCOUNTING AND FINANCE OFFICER, LIEUTENANT COLONEL R. L. POEHLEIN, PURSUANT TO THE ACT OF AUGUST 11, 1955, 69 STAT. 687, 31 U.S.C. 82A-2.

THE PAYMENTS IN QUESTION WERE MADE ON THE BASIS OF THE RETROACTIVE APPLICATION GIVEN AN AMENDMENT TO TEMPORARY DUTY ORDERS UNDER WHICH MEMBERS FROM ELLSWORTH AIR FORCE BASE, SOUTH DAKOTA, PERFORMED TEMPORARY DUTY AT FAIRCHILD AIR FORCE BASE, WASHINGTON, WITH THEIR UNITS IN SUPPORT OF THE 28TH BOMBARDMENT WING, HEAVY, STRATEGIC AIR COMMAND. THE ORIGINAL ORDERS INDICATED GROUP TRAVEL AND A UNIT MOVEMENT, NO PER DIEM BEING AUTHORIZED FOR MEMBERS IN SUCH STATUS WHEN GOVERNMENT QUARTERS AND SUBSISTENCE WERE AVAILABLE. PARAGRAPH M4201 14, JOINT TRAVEL REGULATIONS, EFFECTIVE JULY 1, 1962. THE LATER AMENDMENT TO THE ORDERS DELETED THE PROVISION WITH RESPECT TO GROUP TRAVEL AND A UNIT MOVEMENT.

IN DECISION OF MARCH 23, 1966, 45 COMP. GEN. 599, TO A FORMER SECRETARY OF THE AIR FORCE WE HELD THAT THESE PER DIEM PAYMENTS, BASED ON ORDERS WHICH RETROACTIVELY MODIFIED EXISTING ORDERS, WERE ERRONEOUS IN THOSE CASES WHERE GOVERNMENT QUARTERS AND MESS WERE AVAILABLE TO THE INDIVIDUAL MEMBERS AND THAT APPROPRIATE ACTION SHOULD BE TAKEN PROMPTLY TO RECOVER THE AMOUNTS THE MEMBERS WERE ERRONEOUSLY PAID.

THE AIR FORCE ACCOUNTING AND FINANCE CENTER PURSUED COLLECTION ACTION AS REQUIRED BY 31 U.S.C. 82A-2. THEREAFTER, THE COMMANDER, AIR FORCE ACCOUNTING AND FINANCE CENTER, TRANSMITTED HERE REPORTS OF UNCOLLECTIBILITY OF INDEBTEDNESS IN CERTAIN CASES AND REQUESTED THAT WE GRANT RELIEF TO COLONEL POEHLEIN UNDER THE PROVISIONS OF 31 U.S.C. 82A 2. SUCH RELIEF ACTION WAS DENIED BY OFFICE LETTERS OF APRIL 10 AND NOVEMBER 20, 1967, AND FEBRUARY 17, 1969, B-154400, ISSUED BY OUR REGIONAL OFFICE, DENVER, COLORADO.

IN THE LETTERS IT WAS EXPLAINED THAT THE FAILURE OF THE ACCOUNTABLE OFFICER TO FOLLOW ESTABLISHED AIR FORCE PROCEDURES (PARAGRAPH 17C(3), NOTE 2, AIR FORCE MANUAL 10-3, AND PARAGRAPH 40321, AIR FORCE MANUAL 177-103) BASED ON COMPTROLLER GENERAL DECISIONS, CONSTITUTES SUCH LACK OF DUE CARE AS TO REQUIRE DENIAL OF RELIEF UNDER 31 U.S.C. 82A-2.

IN URGING THAT THE PAYMENTS SHOULD NOT BE ATTRIBUTED TO A LACK OF DUE CARE, THE ASSISTANT SECRETARY STATES IN HIS LETTER THAT FROM THE RECORD IT IS CLEAR THAT COLONEL POEHLEIN QUESTIONED WHETHER THE MEMBERS WERE IN A UNIT MOVEMENT STATUS AND UPON ASSURANCE FROM HIGHER HEADQUARTERS THAT UNIT MOVE WAS NOT INVOLVED AND THAT THE MEMBERS WERE ENTITLED TO THE PER DIEM, HE PROCEEDED TO MAKE 517 PAYMENTS OF PER DIEM ALLOWANCE IN THE TOTAL AMOUNT OF $30,761.50.

FURTHER, THE ASSISTANT SECRETARY SAYS THAT WHILE IN RETROSPECT HE AGREES THAT COLONEL POEHLEIN SHOULD HAVE SUBMITTED THE VOUCHERS THROUGH CHANNELS TO AFAFC AND EVENTUALLY TO THE GENERAL ACCOUNTING OFFICE FOR DECISION, THE BEST COURSE OF ACTION WOULD NOT NECESSARILY HAVE BEEN CLEAR TO ONE IN HIS POSITION AT THE TIME THE PAYMENTS WERE MADE.

IT APPEARS TO BE THE ASSISTANT SECRETARY'S VIEW THAT COLONEL POEHLEIN COULD SATISFY THE REQUIREMENTS OF THIS OFFICE BY MERELY SEEKING GUIDANCE FROM HIGHER HEADQUARTERS. ALSO, HE EXPRESSES THE BELIEF THAT ADHERENCE TO A PROCEDURE OF OBTAINING AN ADVANCE DECISION FROM THE COMPTROLLER GENERAL ON EACH PROBLEM THAT ARISES WOULD HINDER AGENCY OPERATIONS AND THAT ACCOUNTING AND FINANCE OFFICERS NORMALLY REQUEST ADVANCE DECISIONS ONLY IN THOSE CASES WHERE SUBSTANTIAL DOUBT EXISTS. IN THIS CONNECTION HE SAYS THAT THE DAILY BUSINESS OF THE AIR FORCE MUST GO FORWARD WITHOUT DELAYS WHICH MIGHT BE CAUSED BY A SUPERCAUTIOUS APPROACH IN RESPONSIBLE PERSONNEL. THE ASSISTANT SECRETARY CONCLUDES THAT COLONEL POEHLEIN EXERCISED THE SAME DEGREE OF CARE THAT A REASONABLY PRUDENT MAN WOULD HAVE EXERCISED AND, THEREFORE, THE RELIEF REQUESTED IN HIS CASE SHOULD BE GRANTED.

UNDER THE PROVISIONS OF SECTION 1 OF THE ACT OF AUGUST 11, 1955, PUBLIC LAW 84-365, 69 STAT. 687, 31 U.S.C. 82A-2, THE COMPTROLLER GENERAL OR HIS DESIGNEE, IN HIS DISCRETION, IS AUTHORIZED TO RELIEVE A DISBURSING OFFICER OF ACCOUNTABILITY AND RESPONSIBILITY, AND ALLOW CREDIT IN HIS OFFICIAL DISBURSING ACCOUNTS FOR A DEFICIENCY WHICH EXISTS OR OCCURS IN THE OFFICIAL DISBURSING ACCOUNTS OF ANY DISBURSING OFFICER OR FORMER DISBURSING OFFICER OF ANY DEPARTMENT, AGENCY, OR INDEPENDENT ESTABLISHMENT OF THE GOVERNMENT IN CONSEQUENCE OF THE MAKING OF ANY ILLEGAL, IMPROPER, OR INCORRECT PAYMENT. THAT AUTHORIZATION MAY BE EXERCISED ONLY WHEN THE COMPTROLLER GENERAL OR ANY OFFICER OF THE GENERAL ACCOUNTING OFFICE DESIGNATED BY THE COMPTROLLER GENERAL DETERMINES UPON HIS OWN MOTION OR UPON WRITTEN FINDINGS AND RECOMMENDATIONS MADE BY THE HEAD OF THE DEPARTMENT, AGENCY, OR INDEPENDENT ESTABLISHMENT CONCERNED, OR HIS DESIGNEES FOR THE PURPOSE, THAT SUCH PAYMENT WAS NOT THE RESULT OF BAD FAITH OR LACK OF DUE CARE ON THE PART OF THE DISBURSING OFFICER.

THE PURPOSE OF THE STATUTE WAS TO PROVIDE A PERMANENT AND UNIFORM METHOD WHEREBY DISBURSING OFFICERS OR FORMER DISBURSING OFFICERS OF THE UNITED STATES MIGHT BE GRANTED RELIEF FROM LIABILITY FOR ERRONEOUS AND IMPROPER PAYMENTS NOT RESULTING FROM BAD FAITH OR A LACK OF DUE CARE ON THEIR PART. ALSO, IT WAS INTENDED TO OBVIATE THE TIME AND EXPENSE OF THE CONGRESS IN CONSIDERING PRIVATE RELIEF BILLS WHICH UNIFORMLY HAVE RELIEVED DISBURSING OFFICERS FOR PAYMENTS MADE UNDER THESE CONDITIONS.

IN HOUSE OF REPRESENTATIVES REPORT NO. 996, 84TH CONGRESS, 1ST SESSION, FROM THE COMMITTEE ON GOVERNMENT OPERATIONS, TO ACCOMPANY H.R. 7034 WHICH BECAME PUBLIC LAW 365, 84TH CONGRESS, IT WAS STATED AS FOLLOWS:

YOUR COMMITTEE WISHES TO STRESS THAT AUTHORITY GRANTED BY SECTION 1 OF H.R. 7034 TO THE COMPTROLLER GENERAL IS PURELY PERMISSIVE AND IS TO BE EXERCISED AT HIS DISCRETION. THE AUTHORITY BEING GRANTED IS NOT INTENDED TO EXCUSE CASES WHICH INVOLVE FRAUD OR NEGLIGENCE IN ANY WAY. "ILLEGAL" OR "IMPROPER" PAYMENT WITHIN THE SENSE OF THIS LEGISLATION IS ONE WHICH THE COMPTROLLER GENERAL FINDS IS NOT IN STRICT TECHNICAL CONFORMITY WITH THE REQUIREMENTS OF LAW APART FROM ANY QUESTION OF FRAUD OR NEGLIGENCE.

AS STATED ABOVE, THESE PAYMENTS WERE BASED ON A RETROACTIVE EFFECT GIVEN TO AN AMENDMENT OF ORDERS FOR TEMPORARY DUTY BY MILITARY PERSONNEL AS A UNIT MOVEMENT AT FAIRCHILD AIR FORCE BASE. HERE COLONEL POEHLEIN ADMITTEDLY WAS IN DOUBT AS TO WHETHER THE PAYMENTS OF PER DIEM WERE AUTHORIZED ON THE BASIS OF THE RETROACTIVE AMENDMENT. PRESUMABLY, HE WAS AWARE OF THE WELL-ESTABLISHED RULE THAT THE CIRCUMSTANCES IN WHICH AN ATTEMPTED RETROACTIVE MODIFICATION OR CORRECTION OF A TRAVEL ORDER MAY BE RECOGNIZED AS AUTHORIZING AN ADDITIONAL PAYMENT FOR PRIOR TRAVEL OR TEMPORARY DUTY ARE SO EXCEPTIONAL THAT CLAIMS BASED THEREON SHOULD BE SUBMITTED TO THIS OFFICE FOR SETTLEMENT, INSTEAD OF BEING PAID ADMINISTRATIVELY. 23 COMP. GEN. 713 (1944); 24 ID. 439 (1944). ALSO, AND AS STATED ABOVE, SIMILAR PROVISIONS ARE SET FORTH IN IMPLEMENTING REGULATIONS OF THE AIR FORCE.

COLONEL POEHLEIN, HOWEVER, ELECTED TO RELY ON ASSURANCES HE RECEIVED FROM HIGHER HEADQUARTERS OF THE DEPARTMENT OF THE AIR FORCE THAT THE PAYMENTS OF PER DIEM WERE PROPER. THE FACT THAT HE DID NOT AVAIL HIMSELF OF THE PROCEDURE OPEN TO HIM AND REQUIRED BY REGULATION OF SEEKING A DECISION IN ADVANCE OF THE PAYMENT, OR FORWARDING THE VOUCHERS TO THIS OFFICE FOR SETTLEMENT AS DOUBTFUL CLAIMS, WE BELIEVE SHOWS A LACK OF DUE CARE CONTEMPLATED BY THE STATUTE. 14 COMP. GEN. 464 (1934); 23 ID. 578, 582 (1944).

CONCERNING THE ASSISTANT SECRETARY'S STATEMENTS IN HIS LETTER THAT ADHERENCE TO A PROCEDURE OF OBTAINING ADVANCE DECISIONS FROM THIS OFFICE WOULD HINDER AGENCY OPERATIONS AND DELAY THE BUSINESS OF THE AIR FORCE, IT IS OUR VIEW THAT EVEN IF PAYMENT SEEMS URGENT, SUCH CIRCUMSTANCES WOULD NOT AFFORD A BASIS FOR MAKING AN ERRONEOUS PAYMENT WITHOUT A PROPER DETERMINATION OF ENTITLEMENT. MOREOVER, IN THIS CASE, SINCE THE MEMBERS INVOLVED WERE FURNISHED QUARTERS AND SUBSISTENCE, THE URGENCY OF THE PER DIEM PAYMENTS IS NOT APPARENT.

IN THE ASSISTANT SECRETARY'S LETTER THE VIEW IS INDICATED THAT THE FACT THAT COLONEL POEHLEIN SOUGHT GUIDANCE FROM HIGHER HEADQUARTERS, SHOULD BE CONSIDERED SUFFICIENT AS A CONDITION FOR GRANTING RELIEF. THIS OFFICE FIRMLY BELIEVES, HOWEVER, THAT IF A DISBURSING OFFICER RELIES ON GUIDANCE FROM HIGHER ADMINISTRATIVE AUTHORITY AS TO THE VALIDITY OF A DOUBTFUL PAYMENT, RATHER THAN EXERCISING HIS STATUTORY RIGHT TO SUBMIT THE DOUBTFUL PAYMENT TO THIS OFFICE FOR ADVANCE DECISION, HE HAS NOT EXERCISED THE DUE CARE CONTEMPLATED BY THE RELIEF STATUTE. 14 COMP. GEN. 578, 583 (1935). IF THE FACT THAT A DISBURSING OFFICER SOUGHT GUIDANCE FROM A HIGHER HEADQUARTERS SHOULD BE CONSIDERED A SUFFICIENT BASIS FOR GRANTING RELIEF FOR AN ERRONEOUS PAYMENT, IT WOULD IN EFFECT GIVE THE DEPARTMENT POWER TO RENDER OUR AUDIT PROCESSES FRUITLESS AND PLACE OUR OFFICE IN A POSITION WHERE IT COULD NOT ADEQUATELY PROTECT THE INTERESTS OF THE GOVERNMENT.

FOR THE FOREGOING REASONS WE WOULD NOT BE JUSTIFIED IN CONCLUDING THAT THE ERRONEOUS PAYMENTS MADE BY COLONEL POEHLEIN WERE NOT THE RESULT OF LACK OF DUE CARE ON HIS PART AS REQUIRED BY 31 ..END :