A-93836, OCTOBER 19, 1938, 18 COMP. GEN. 352

A-93836: Oct 19, 1938

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IS ENTITLED TO REIMBURSEMENT FOR FEES AND MILEAGE NECESSARILY ADVANCED TO THE WITNESS FROM PERSONAL FUNDS AT THE TIME OF THE SERVICE. THERE IS NO REQUIREMENT THAT SUCH ADVANCES BE ONLY BY A DISBURSING OFFICER. IT WAS CERTIFIED MARCH 12. YOU WERE ORDERED VERBALLY BY THE COMMANDING GENERAL. YOUR CLAIM WAS DISALLOWED FOR THE REASON YOU WERE NOT DIRECTED TO MAKE ADVANCE PAYMENT FROM PERSONAL FUNDS BY WRITTEN ORDERS FROM PROPER AUTHORITY PRIOR TO SERVING THE SUBPOENA. WHILE THE WITNESS SIGNED A RECEIPT FOR THE FEES AND MILEAGE TENDERED AT THE TIME THE SUBPOENA WAS SERVED. WHETHER A WARRANT OF ATTACHMENT ISSUED BECAUSE OF SUCH NEGLECT OR FAILURE TO APPEAR IS NOT SHOWN. ARE HEREBY CONFIRMED AND MADE OF RECORD.

A-93836, OCTOBER 19, 1938, 18 COMP. GEN. 352

MILEAGE AND FEES - CIVILIAN WITNESS BEFORE ARMY COURT-MARTIAL - REIMBURSEMENT FOR ADVANCES FROM PERSONAL FUNDS BY SUBPOENA SERVING OFFICER THE OFFICER SERVING THE SUBPOENA FOR THE APPEARANCE OF A CIVILIAN WITNESS BEFORE AN ARMY GENERAL COURT-MARTIAL, WHEN ORDERED BY PROPER AUTHORITY, IS ENTITLED TO REIMBURSEMENT FOR FEES AND MILEAGE NECESSARILY ADVANCED TO THE WITNESS FROM PERSONAL FUNDS AT THE TIME OF THE SERVICE, AND THERE IS NO REQUIREMENT THAT SUCH ADVANCES BE ONLY BY A DISBURSING OFFICER, BUT THE ORDERS SHOULD BE IN WRITING, ISSUED IN ADVANCE OF THE PAYMENT DIRECTED AND NOT CONFIRMATORY OF THE ACTION PREVIOUSLY TAKEN, AND A CERTIFIED COPY SHOULD BE FILED IN SUPPORT OF THE REIMBURSEMENT VOUCHER, AS WELL AS THE CASH RECEIPT, EVIDENCING ACTUAL PAYMENT.

ACTING COMPTROLLER GENERAL ELLIOTT TO FIRST LIEUTENANT MILLARD C. YOUNG, UNITED STATES ARMY, OCTOBER 19, 1938:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 12, 1938, REQUESTING REVIEW OF SETTLEMENT NO. 0720508, DATED MAY 24, 1938, DISALLOWING YOUR CLAIM FOR $4, COVERING REIMBURSEMENT OF PERSONAL FUNDS ADVANCED TO ONE ELEANOR M. BOYLE, FOR FEES AND MILEAGE PURSUANT TO A SUBPOENA ISSUED AND PERSONALLY SERVED FOR HER APPEARANCE AS A CIVILIAN WITNESS BEFORE A GENERAL COURT MARTIAL CONVENED DECEMBER 16, 1937, AT 1:15 P.M., AT MITCHEL FIELD, NEW YORK, TO TESTIFY AS A WITNESS FOR THE UNITED STATES IN THE CASE OF TECHNICAL SERGEANT HOMER H. HUNT.

IT WAS CERTIFIED MARCH 12, 1938, BY COLONEL J. A. ULIO, A.G.D., ASSISTANT ADJUTANT GENERAL, THAT IN YOUR CAPACITY AS ASSISTANT TRIAL JUDGE ADVOCATE OF A GENERAL COURT MARTIAL, MITCHEL FIELD, NEW YORK, YOU WERE ORDERED VERBALLY BY THE COMMANDING GENERAL, SECOND CORPS AREA, TO SERVE A SUBPOENA UPON ONE ELEANOR M. BOYLE, 131 JORALEMAN STREET, BROOKLYN, NEW YORK, AND TO TENDER HER IN ADVANCE FEES FOR ATTENDANCE FOR ONE DAY IN COURT AND MILEAGE TO AND FROM HER PLACE OF RESIDENCE TO THE PLACE OF TRIAL. YOU CLAIM YOU ADVANCED SUCH CIVILIAN WITNESS $1.50 FOR ONE DAY'S ATTENDANCE AT THE COURT MARTIAL CONVENED AT MITCHEL FIELD, AND FIVE CENTS PER MILE FOR 50 MILES' TRAVEL FROM HER RESIDENCE TO MITCHEL FIELD AND RETURN, $2.50. YOUR CLAIM WAS DISALLOWED FOR THE REASON YOU WERE NOT DIRECTED TO MAKE ADVANCE PAYMENT FROM PERSONAL FUNDS BY WRITTEN ORDERS FROM PROPER AUTHORITY PRIOR TO SERVING THE SUBPOENA. WHILE THE WITNESS SIGNED A RECEIPT FOR THE FEES AND MILEAGE TENDERED AT THE TIME THE SUBPOENA WAS SERVED, SHE DID NOT APPEAR AS A WITNESS. WHETHER A WARRANT OF ATTACHMENT ISSUED BECAUSE OF SUCH NEGLECT OR FAILURE TO APPEAR IS NOT SHOWN. YOU NOW SUBMIT FOR CONSIDERATION CONFIRMATORY WRITTEN ORDERS ISSUED BY COMMAND OF MAJOR GENERAL MCCOY, DATED JUNE 17, 1938, AS FOLLOWS:

THE VERBAL ORDERS GIVEN TO FIRST LIEUTENANT MILLARD C. YOUNG, AIR CORPS, ON DECEMBER 14, 1937, TO SERVE A SUBPOENA ON ELEANOR M. BOYLE, 131 JORALEMAN STREET, BROOKLYN, NEW YORK, TO APPEAR AND TESTIFY AS A WITNESS FOR THE GOVERNMENT AT THE TRIAL IN THE CASE OF THE UNITED STATES VS. TECHNICAL SERGEANT HOMER H. HUNT, BEFORE A GENERAL COURT MARTIAL CONVENED AT MITCHEL FIELD, NEW YORK, PURSUANT TO PARAGRAPH 1, SPECIAL ORDERS NO. 209, HEADQUARTERS SECOND CORPS AREA, SEPTEMBER 9, 1937, AND THE VERBAL ORDERS GIVEN AT THE SAME TIME TO TENDER TO THE SAID ELEANOR M. BOYLE FEES FOR ONE DAY'S ATTENDANCE AS A WITNESS AND MILEAGE FROM BROOKLYN, NEW YORK, TO MITCHEL FIELD, NEW YORK, AND RETURN, ARE HEREBY CONFIRMED AND MADE OF RECORD, IT HAVING BEEN IMPRACTICABLE TO ISSUE WRITTEN ORDERS IN ADVANCE.

ARTICLES OF WAR, 22 AND 23, 41 STAT. 791, PROVIDE:

ART. 22. PROCESS TO OBTAIN WITNESSES.--- EVERY TRIAL JUDGE ADVOCATE OF A GENERAL OR SPECIAL COURT-MARTIAL AND EVERY SUMMARY COURT MARTIAL SHALL HAVE POWER TO ISSUE THE LIKE PROCESS TO COMPEL WITNESSES TO APPEAR AND TESTIFY WHICH COURTS OF THE UNITED STATES, HAVING CRIMINAL JURISDICTION, MAY LAWFULLY ISSUE; BUT SUCH PROCESS SHALL RUN TO ANY PART OF THE UNITED STATES, ITS TERRITORIES, AND POSSESSIONS.

ART. 23. REFUSAL TO APPEAR OR TESTIFY.--- EVERY PERSON NOT SUBJECT TO MILITARY LAW WHO, BEING DULY SUBPOENAED TO APPEAR AS A WITNESS BEFORE ANY MILITARY COURT * * * WILLFULLY NEGLECTS OR REFUSES TO APPEAR, OR REFUSES TO QUALIFY AS A WITNESS, OR TO TESTIFY, OR PRODUCE DOCUMENTARY EVIDENCE WHICH SUCH PERSON MAY HAVE BEEN LEGALLY SUBPOENAED TO PRODUCE, SHALL BE DEEMED GUILTY OF A MISDEMEANOR, FOR WHICH SUCH PERSON SHALL BE PUNISHED ON INFORMATION IN THE DISTRICT COURT OF THE UNITED STATES * * * PROVIDED, THAT THE FEES OF SUCH WITNESS AND HIS MILEAGE, AT THE RATES ALLOWED TO WITNESSES ATTENDING THE COURTS OF THE UNITED STATES, SHALL BE DULY PAID OR TENDERED SAID WITNESS, SUCH AMOUNTS TO BE PAID OUT OF THE APPROPRIATION FOR THE COMPENSATION OF WITNESSES: * *

THE ARMY APPROPRIATION ACT OF JULY 1, 1937, 50 STAT. 448, PROVIDES FUNDS UNDER THE HEADING ,EXPENSES OF COURTS MARTIAL: "

FOR EXPENSES OF COURTS MARTIAL, COURTS OF INQUIRY, MILITARY COMMISSIONS, RETIRING BOARDS, AND COMPENSATION OF REPORTERS AND WITNESSES ATTENDING SAME, CONTRACT STENOGRAPHIC REPORTING SERVICES, AND EXPENSES OF TAKING DEPOSITIONS AND SECURING OTHER EVIDENCE FOR USE BEFORE THE SAME, $40,000.

ARMY REGULATIONS 35-4120, PARAGRAPH 3E, PROMULGATED PURSUANT TO THE ABOVE CITED STATUTE, PROVIDE THAT:

WHEN ORDERED BY PROPER AUTHORITY, THE FEES OF A WITNESS AND HIS MILEAGE AT THE RATES ALLOWED, INCLUDING FEE FOR ONE DAY'S ACTUAL ATTENDANCE AND MILEAGE FOR THE JOURNEY TO AND FROM THE PLACE WHERE THE WITNESS IS TO APPEAR UNDER THE SUBPOENA, WILL BE TENDERED OR PAID IN ADVANCE BY THE PROPER DISBURSING OFFICER.

THE STATUTE PROVIDES THAT FEES AND MILEAGE SHALL BE PAID OR TENDERED WITNESSES, AND THE ATTORNEY GENERAL HAS HELD, 23 OP.ATTY.GEN. 424, THAT PAYMENT MUST BE MADE AT THE TIME OF THE SERVICE OF THE SUBPOENA. PUBLIC FUNDS ARE ORDINARILY ADVANCED TO DESIGNATED DISBURSING OFFICERS FOR THE PAYMENT OF OBLIGATIONS OF THE UNITED STATES, BUT THERE APPEARS NOTHING IN THE STATUTE THAT FEES AND MILEAGE MUST BE ADVANCED TO THE WITNESS BY A DISBURSING OFFICER. IT WAS HELD IN 18 M.S.COMP. DEC. 718, SEPTEMBER 10, 1901, THAT THE OFFICER SERVING THE SUBPOENA IS ENTITLED TO REIMBURSEMENT FOR FEES AND MILEAGE NECESSARILY ADVANCED TO A WITNESS. THERE HAS BEEN NO CHANGE IN THE STATUTE WHICH WOULD NECESSITATE A CHANGE IN THIS MODE OF PAYMENT.

IN ORDER TO BE ENTITLED TO REIMBURSEMENT, THE OFFICER SERVING A SUBPOENA SHOULD BE "ORDERED BY PROPER AUTHORITY" AS REQUIRED BY THE REGULATIONS TO ADVANCE SUCH PAYMENT. THE ORDERS SHOULD BE IN WRITING, ISSUED IN ADVANCE OF THE PAYMENT DIRECTED, AND A CERTIFIED COPY SHOULD BE FILED IN SUPPORT OF THE REIMBURSEMENT VOUCHER, AS WELL AS THE CASH RECEIPT, EVIDENCING ACTUAL PAYMENT.

THE CONFIRMATORY ORDERS SUBMITTED WILL UNDER THE CIRCUMSTANCES BE TREATED AS AUTHORITY FOR THE PAYMENT MADE BY YOU TO ELEANOR M. BOYLE, BUT HEREAFTER CONFIRMATORY ORDERS MAY NOT BE ACCEPTED AS AUTHORITY FOR THE REIMBURSEMENT OF PERSONAL FUNDS ADVANCED FOR FEES AND MILEAGE TO CIVILIAN WITNESSES.

UPON REVIEW THE SETTLEMENT IS MODIFIED AND $4 IS CERTIFIED DUE YOU. SETTLEMENT WILL ISSUE IN DUE COURSE FOR SUCH AMOUNT.