B-200642, DEC 5, 1983

B-200642, DEC 5, 1983

DIGEST: 1. THIS CASE WHICH HAS NOW COME BEFORE OUR OFFICE FOR THE THIRD TIME CONCERNS THE DISPOSITION OF A SUSPECTED FRAUDULENT PER DIEM CLAIM ABOUT WHICH THE AIR FORCE AND THE CLAIMANT STILL HAVE MANY LEGAL AND FACTUAL DISPUTES. ON THE BASIS OF THE EVIDENCE IN THE RECORD, WE BELIEVE THAT THE AIR FORCE HAS SUSTAINED ITS BURDEN OF PROVING FRAUD FOR 30 OF THE DAYS DURING THE FIRST PERIOD OF THE CLAIM. THUS, NO REIMBURSEMENT OF PER DIEM EXPENSES MAY BE ALLOWED FOR THOSE DAYS. 2. AS TO THE REST OF THE FIRST PERIOD AND ALL OF THE SECOND PERIOD, WE BELIEVE THAT THE CLAIMANT'S EXPENDITURES, AS SUBSTANTIATED BY THE EVIDENCE DEVELOPED DURING THE AIR FORCE'S INVESTIGATION, DO NOT APPEAR TO BE TAINTED BY FRAUD. THUS, PER DIEM IS ALLOWED FOR THOSE DAYS AS SHOWN BY OUR CALCULATION. EXCESS AMOUNT OF RECOUPMENT SHOULD BE REFUNDED TO CLAIMANT.

CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE - DISPOSITION OF SUSPECTED FRAUDULENT PER DIEM CLAIM - RECONSIDERATION AFTER SECOND REMAND:

THIS CASE CONCERNING THE DISPOSITION OF A SUSPECTED FRAUDULENT PER DIEM CLAIM HAS NOW COME BEFORE OUR OFFICE FOR THE THIRD TIME. IN OUR FIRST DECISION, CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, 60 COMP.GEN. 357 (1981), WE DECIDED CERTAIN LEGAL ISSUES AND REMANDED THIS CASE TO THE DEPARTMENT OF THE AIR FORCE FOR A RECALCULATION OF THE AMOUNT OF SUSPECTED FRAUD AND A DETERMINATION OF THE NUMBER OF DAYS, IF ANY, FOR WHICH FRAUDULENT INFORMATION WAS SUBMITTED BY CLAIMANT, A CIVILIAN EMPLOYEE OF THE AIR FORCE ("EMPLOYEE"). BECAUSE THE PARTIES, THROUGH THEIR COUNSEL, RAISED SEVERAL QUESTIONS CONCERNING THE RECALCULATION, OUR SUBSEQUENT DECISION, CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, 61 COMP.GEN. 399 (1982), SET FORTH IN SOME DETAIL THE PROCEDURES TO BE FOLLOWED AND WE REMANDED THE MATTER TO THE AIR FORCE AGAIN.

DESPITE THESE DECISIONS, THERE STILL REMAIN BOTH LEGAL AND FACTUAL DISPUTES BETWEEN THE PARTIES. FOR THE FOLLOWING REASONS, WE NOW HOLD THAT THE AIR FORCE WAS ENTITLED TO RECOUP $1,125.50 FROM EMPLOYEE, BUT MUST REFUND TO EMPLOYEE THE AMOUNT WHICH HAS BEEN RECOUPED FROM HIM IN EXCESS OF THAT AMOUNT.

THE FACTS OF THIS CASE, WHICH HAVE BEEN SET FORTH IN DETAIL IN OUR PREVIOUS DECISIONS, MAY BE BRIEFLY SUMMARIZED AS FOLLOWS. THE EMPLOYEE'S PERMANENT DUTY STATION WAS MCCLELLAN AIR FORCE BASE, CALIFORNIA. FROM APPROXIMATELY MAY 28, 1974, TO SEPTEMBER 30, 1974, EMPLOYEE WAS ON TEMPORARY DUTY (TDY) AT JACKSONVILLE, FLORIDA, AND FROM APPROXIMATELY OCTOBER 1, 1974, TO MARCH 10, 1975, HE WAS ON TDY AT OTIS AFB, MASSACHUSETTS.

FOR THE ABOVE PERIODS OF TDY, EMPLOYEE CLAIMED AND WAS PAID TOTAL PER DIEM EXPENSES OF $6,588. AT SOME LATER DATE, A SUSPICION AROSE THAT EMPLOYEE'S CLAIM FOR LODGING WAS FALSE IN PART. THE AIR FORCE OFFICE OF SPECIAL INVESTIGATIONS (AFOSI) AND THE FEDERAL BUREAU OF INVESTIGATION (FBI) INVESTIGATED AND CONCLUDED THAT HE HAD DEFRAUDED THE GOVERNMENT BY APPROXIMATELY $1,000. AFTER A JURY TRIAL ON CRIMINAL FRAUD CHARGES IN THE U. S. DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA IN AUGUST 1978, EMPLOYEE WAS FOUND NOT GUILTY OF THE CHARGES.

IN THE MEANTIME, ON JUNE 30, 1978, THE AIR FORCE ACCOUNTING AND FINANCE OFFICER (AFO) DETERMINED THE TRAVEL CLAIM TO BE FALSE AND ADMINISTRATIVELY INITIATED A RECOUPMENT ACTION FOR $6,588, THE ENTIRE PER DIEM PORTION OF THE VOUCHER. SINCE THAT DATE VARIOUS AMOUNTS PER PAY PERIOD HAVE BEEN AND ARE BEING DEDUCTED FROM EMPLOYEE'S PAY. SUBSEQUENTLY, HOWEVER, THE AIR FORCE HAS CONCEDED THAT NO FRAUD OCCURRED DURING THE PERIOD FROM JULY 10, 1974, TO SEPTEMBER 30, 1974, AND HAS ALLOWED EMPLOYEE $2,050 FOR THIS PERIOD. THUS, THE AMOUNT REMAINING IN DISPUTE IS NOW REDUCED TO $4,538, AND THE EMPLOYEE'S REMAINING CLAIM TO TDY CONSISTS OF TWO PERIODS: (1) MAY 28, 1974 TO JULY 9, 1974; AND (2) OCTOBER 1, 1974 TO MARCH 10, 1975.

IN ORDER TO ESTABLISH FRAUD WHICH WOULD SUPPORT EITHER THE DENIAL OF A CLAIM, OR A RECOUPMENT ACTION IN THE CASE OF A PAID VOUCHER AS HERE, OUR OFFICE HAS OBSERVED THAT:

"'*** THE BURDEN OF ESTABLISHING FRAUD RESTS UPON THE PARTY ALLEGING THE SAME AND MUST BE PROVEN BY EVIDENCE SUFFICIENT TO OVERCOME THE EXISTING PRESUMPTION IN FAVOR OF HONESTY AND FAIR DEALING. CIRCUMSTANTIAL EVIDENCE IS COMPETENT FOR THIS PURPOSE, PROVIDED IT AFFORDS A CLEAR INFERENCE OF FRAUD AND AMOUNTS TO MORE THAN A SUSPICION OR CONJECTURE. HOWEVER, IF, IN ANY CASE, THE CIRCUMSTANCES ARE AS CONSISTENT WITH HONESTY AND GOOD FAITH AS WITH DISHONESTY, THE INFERENCE OF HONESTY IS REQUIRED TO BE DRAWN.' B-187975, JULY 28, 1977."

57 COMP.GEN. 664, 668 (1978). A MERE DISCREPANCY OR INACCURACY, IN ITSELF, CANNOT BE EQUATED WITH AN INTENT TO DEFRAUD THE GOVERNMENT. 57 COMP.GEN. AT 668.

TURNING NOW TO AN EXAMINATION OF THE EVIDENCE, WE BRIEFLY SUMMARIZE THE VOLUMINOUS RECORD IN THIS CASE AS FOLLOWS. IN ITS LATEST SUBMISSION THE AIR FORCE REITERATES ITS CONTENTION THAT IT HAS GENERALLY ESTABLISHED FRAUD BY THE EMPLOYEE FOR THE FIRST PERIOD OF HIS TDY AT JACKSONVILLE, FLORIDA, FROM MAY 28 TO JULY 9, 1974. IN SUPPORT OF ITS CONTENTIONS, THE AIR FORCE RELIES ON REPORTS OF INTERVIEWS, AND DOCUMENTARY EVIDENCE IN ITS INVESTIGATIVE FILES WHICH, IT CONTENDS, PROVES THAT THE EMPLOYEE FORGED AT LEAST ONE RENT RECEIPT FOR THE PERIOD OF JUNE 10, 1974 TO JULY 9, 1974. THE EMPLOYEE RESPONDS BY DENYING THAT ANY FRAUD WAS COMMITTED. IN SUPPORT OF THIS CONTENTION, HE RELIES, AMONG OTHER THINGS, ON TESTIMONY FROM HIS TRIAL WHICH HE MAINTAINS EXONERATES HIM, OR AT MOST DEMONSTRATES THAT THE AMOUNT HE CLAIMED FOR ELECTRIC BILLS, FOR EXAMPLE, WAS HIS GOOD FAITH EFFORT AT AN ESTIMATE WHICH WAS ABOUT THE SAME AS THE ACTUAL COSTS, AND DID NOT CONSTITUTE FRAUD ON HIS PART.

OUR EVALUATION OF THIS FIRST PERIOD IS AS FOLLOWS. ON THE BASIS OF THE EVIDENCE IN THE RECORD, WE BELIEVE THAT THE AIR FORCE HAS SUSTAINED ITS BURDEN OF PROVING THAT EMPLOYEE PRESENTED AND WAS REIMBURSED ON THE BASIS OF A FALSE RENT RECEIPT FOR THE PERIOD JUNE 10, 1974 TO JULY 9, 1974. THE RECEIPT WAS IN THE AMOUNT OF $346.40, BUT THE AIR FORCE INVESTIGATION SHOWED THE ACTUAL TOTAL AMOUNT OF RENT, FURNITURE RENT, TAX AND UTILITY EXPENSES TO BE ONLY $294 FOR THIS PERIOD. ACCORDINGLY, WE CONSIDER THESE 30 DAYS TO BE TAINTED BY FRAUD AND PER DIEM FOR THEM MAY NOT BE ALLOWED. AS TO THE REST OF THE FIRST PERIOD, HOWEVER, WE BELIEVE THAT THE EMPLOYEE'S EXPENDITURES, AS SUBSTANTIATED BY THE EVIDENCE DEVELOPED DURING THE AIR FORCE'S INVESTIGATION DO NOT APPEAR TO BE TAINTED BY FRAUD AND THUS PER DIEM IS ALLOWED FOR THE PERIOD FROM MAY 28, 1974 TO JUNE 9, 1974, IN ACCORDANCE WITH THE CALCULATION BELOW.

THE EVIDENCE PRESENTED FOR THE SECOND PERIOD OF TDY AT OTIS AFB, MASSACHUSETTS IS OF A DIFFERENT CHARACTER. AS OUR FIRST DECISION IN THIS MATTER OBSERVED: "WE NOTE THERE IS NO INDICATION IN THE RECORD OF ANY FRAUD IN CONNECTION WITH HIS TDY IN MASSACHUSETTS FROM OCTOBER 1974 TO MARCH 1975." 60 COMP.GEN. AT 361. AS OUR SECOND DECISION IN THIS MATTER STATED, 61 COMP.GEN. AT 402, FRAUD CANNOT BE ESTABLISHED MERELY BY SHOWING A DEVIATION FROM AN AVERAGE OR ESTIMATED FIGURE FOR COST OF LODGING. SINCE THE AIR FORCE HAS NOT PRESENTED ANY EVIDENCE OF FRAUD FOR THE SECOND PERIOD FROM OCTOBER 1, 1974, TO MARCH 10, 1975, THE CLAIM APPEARS TO BE PROPER AND WE WILL ALLOW THE EMPLOYEE PER DIEM FOR THIS PERIOD.

PURSUANT TO THE AIR FORCE'S REQUEST FOR SPECIFICATION OF AN EXACT AMOUNT, WE WILL NOW CALCULATE EMPLOYEE'S PER DIEM ENTITLEMENT IN ACCORD WITH THE METHOD SET FORTH IN OUR SECOND DECISION IN THIS CASE. 61 COMP.GEN. AT 402 -03.

FIRST, FROM OUR REVIEW OF THE RECORD, AS EXPLAINED ABOVE, WE CONCLUDE THAT OF THE TOTAL NUMBER OF DAYS UNDER CONSIDERATION HERE FOR TWO PERIODS OF TDY (204), THERE WERE 30 TAINTED DAYS AND 174 UNTAINTED DAYS. WE NOTE, HOWEVER, THAT THE NUMBER OF UNTAINTED DAYS FOR WHICH PER DIEM IS ALLOWED IS ONLY 162.5 BECAUSE 11.5 DAYS OF EXCESS TRAVEL TIME, ALL OF WHICH WERE OUTSIDE THE TAINTED PERIOD, MUST BE DEDUCTED UNDER THE REGULATIONS IN EFFECT AT THAT TIME. SEE 2 JTR PARAGRAPH C10157 (CHANGE 103 MAY 1, 1974); FTR PARAGRAPH 1-4.1 ET SEQ. (FPMR 101 7) (MAY 1973). THIS IS SO BECAUSE EMPLOYEE'S TRAVEL ORDER DID NOT AUTHORIZE USE OF HIS PRIVATELY OWNED VEHICLE AS ADVANTAGEOUS TO THE GOVERNMENT, AS WE NOTED PREVIOUSLY IN 61 COMP.GEN. AT 403. (WE NOTE THAT THE FIGURE GIVEN THERE OF 12.5 DAYS WAS BASED ON THE AIR FORCE'S RECALCULATION AND SHOULD HAVE BEEN 11.5 DAYS.)

SECONDLY, USING THE EXPENSE AMOUNTS SUBSTANTIATED IN THE AIR FORCE'S SUBMISSION, WE OBTAIN THE FOLLOWING RESULTS:

(1) AVERAGE COST OF LODGING $8.78 TOTAL AMOUNT PAID FOR LODGINGS ($1,422.24) DIVIDED BY NUMBER OF NIGHTS (162) FOR WHICH LODGINGS WERE OR WOULD HAVE BEEN REQUIRED - EXCLUDING TAINTED NIGHTS.

(WE EXCLUDE 11 NIGHTS DUE TO EXCESS TRAVELTIME AND ADDITIONAL NIGHT OF MARCH 10, 1975 BECAUSE EMPLOYEE ARRIVED AT HIS RESIDENCE AT 7:30 P.M. THAT DAY.)

(2) PER DIEM RATE (ROUNDED TO THE NEXT WHOLE DOLLAR, AND SUBJECT TO THE THEN MAXIMUM OF $25) $21. AVERAGE COST OF LODGING ($8.78) PLUS ALLOWANCE FOR MEALS AND MISCELLANEOUS EXPENSES ($11.80).

(3) PER DIEM ALLOWANCE DUE EMPLOYEE $3,412.50. PER DIEM RATE ($21) MULTIPLIED BY NUMBER OF UNTAINTED DAYS (162.5) FOR WHICH PER DIEM IS ALLOWED.

(4) AMOUNT TO BE RECOUPED BY GOVERNMENT $1,125.50 AMOUNT PAID TO EMPLOYEE ($4,538) MINUS PER DIEM ALLOWANCE PROPERLY DUE EMPLOYEE ($3,412.50).

SINCE IT IS OUR UNDERSTANDING THAT THE AIR FORCE HAS ALREADY RECOUPED MORE THAN $1,125.50, THE AMOUNT WHICH HAS BEEN RECOUPED IN EXCESS OF THAT FIGURE SHOULD BE REFUNDED TO EMPLOYEE. FURTHERMORE, SINCE IT IS OUR UNDERSTANDING THAT EMPLOYEE'S ORIGINAL VOUCHER WHICH WAS SUBMITTED IN EVIDENCE AT THE TRIAL IS NOT READILY AVAILABLE, THIS DECISION ITSELF CONSTITUTES AUTHORIZATION FOR THE APPROPRIATE AIR FORCE OFFICIAL TO CEASE RECOUPMENT AND TO REFUND TO EMPLOYEE THE AMOUNT WHICH HAS BEEN RECOUPED IN EXCESS OF $1,125.50.