B-115898, JUL. 21, 1955

B-115898: Jul 21, 1955

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WHILE THEY WERE ON DUTY AT THE AMERICAN LEGATION. BY OUR SETTLEMENTS YOU WERE ALLOWED $120 FOR TREATMENT OF THE OFFICER AND $325 FOR TREATMENT OF THE ENLISTED MAN. YOU WERE ADVISED IN THE SETTLEMENTS THAT THE ALLOWANCES WERE IN ACCORDANCE WITH ARMY REGULATIONS 40-510. AUTHORIZING PAYMENT OF SUCH EXPENSES AT REASONABLE RATES IN CASES SUCH AS THIS WHERE THE TREATMENT WAS PROCURED WITHOUT APPROVAL OF HIGHER AUTHORITY. YOU SUGGEST THAT IF THERE HAS BEEN AN INFRACTION OF THE REGULATIONS THE MATTER IS ONE BETWEEN THIS GOVERNMENT AND THE OFFICER AND THE ENLISTED MAN. IS NO LONGER AN ACT OF THE GOVERNMENT. THE COURTS HAVE HELD CONSISTENTLY THAT ONE ENTERING INTO A CONTRACT WITH AN OFFICER OR EMPLOYEE OF THE GOVERNMENT IS CHARGED WITH NOTICE OF THE LIMITATION PLACED UPON THE AUTHORITY OF THE OFFICER OR EMPLOYEE TO OBLIGATE THE UNITED STATES.

B-115898, JUL. 21, 1955

TO DR. P. H. HADIDIAN:

THE DEPARTMENT OF THE ARMY HAS FORWARDED TO US YOUR LETTER OF JANUARY 31, 1954, AND A FILE OF CORRESPONDENCE, REGARDING THE SETTLEMENTS WHICH WE MADE ON YOUR CLAIMS FOR PAYMENT FOR DENTAL TREATMENT RENDERED COLONEL LAWRENCE C. MITCHELL AND MASTER SERGEANT JOSEPH E. BROSS, UNITED STATES ARMY, WHILE THEY WERE ON DUTY AT THE AMERICAN LEGATION, DAMASCUS, SYRIA.

YOU MADE CLAIM FOR $237 IN THE CASE OF COLONEL MITCHELL AND $603 IN THE CASE OF SERGEANT BROSS. BY OUR SETTLEMENTS YOU WERE ALLOWED $120 FOR TREATMENT OF THE OFFICER AND $325 FOR TREATMENT OF THE ENLISTED MAN. YOU WERE ADVISED IN THE SETTLEMENTS THAT THE ALLOWANCES WERE IN ACCORDANCE WITH ARMY REGULATIONS 40-510, DATED DECEMBER 4, 1951, AUTHORIZING PAYMENT OF SUCH EXPENSES AT REASONABLE RATES IN CASES SUCH AS THIS WHERE THE TREATMENT WAS PROCURED WITHOUT APPROVAL OF HIGHER AUTHORITY.

YOU APPEAR TO BELIEVE THAT, HAVING RENDERED THE SERVICES AT THE REQUEST OF COLONEL MITCHELL, YOU SHOULD RECEIVE PAYMENT IN THE FULL AMOUNT CLAIMED, REGARDLESS OF ANY GOVERNING LAW OR REGULATION. YOU SUGGEST THAT IF THERE HAS BEEN AN INFRACTION OF THE REGULATIONS THE MATTER IS ONE BETWEEN THIS GOVERNMENT AND THE OFFICER AND THE ENLISTED MAN.

THE UNITED STATES GOVERNMENT LIMITS THE AUTHORITY OF ITS OFFICERS AND EMPLOYEES TO OBLIGATE APPROPRIATED MONEYS. WHERE AN AGENT OF THE GOVERNMENT ACTS IN EXCESS OF THE AUTHORITY VESTED IN HIM, HIS ACT, FROM A LEGAL STANDPOINT, IS NO LONGER AN ACT OF THE GOVERNMENT. THE UNDERWRITER, 6 F.2D 937. MOREOVER, THE COURTS HAVE HELD CONSISTENTLY THAT ONE ENTERING INTO A CONTRACT WITH AN OFFICER OR EMPLOYEE OF THE GOVERNMENT IS CHARGED WITH NOTICE OF THE LIMITATION PLACED UPON THE AUTHORITY OF THE OFFICER OR EMPLOYEE TO OBLIGATE THE UNITED STATES. SEE HUME V UNITED STATES, 132 U.S. 406; JACOB REED'S SONS V UNITED STATES, 273 U.S. 200; AND DAVIS V. UNITED STATES, 59 C.CLS. 197. THE UNAUTHORIZED ACTS OF ITS AGENTS CANNOT OBLIGATE THE GOVERNMENT. FILOR V. UNITED STATES, 9 WALL. 45; AND WHITESIDE, ET AL. V. UNITED STATES, 93 U.S. 247, 257.

ARMY REGULATIONS 40-510, DECEMBER 4, 1951, PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"5. DENTAL CARE BY CIVILIAN DENTISTS.--- A. FOR WHOM AUTHORIZED.--- SUBJECT TO THE CONDITIONS AND LIMITATIONS SPECIFIED HEREIN, DENTAL CARE BY CIVILIAN DENTISTS AT THE EXPENSE OF ARMY MEDICAL SERVICE FUNDS IS AUTHORIZED FOR THE FOLLOWING PERSONNEL AND NONE OTHER WHEN THE REQUIRED CARE CANNOT BE PROCURED FROM AVAILABLE DENTAL FACILITIES OF THE DEPARTMENT OF DEFENSE OR OTHER FEDERAL AGENCIES OUTSIDE DEPARTMENT OF DEFENSE, OR FROM A MEDICAL OFFICER (ONE BEING AVAILABLE (PAR. 1F) (, PROVIDED THAT THIS WILL NOT APPLY TO PERSONNEL WHO OBTAIN ELECTIVE DENTISTRY FROM CIVILIAN DENTISTS:

"/1) OFFICERS, WARRANT OFFICERS, AND ENLISTED PERSONNEL OF THE REGULAR ARMY AND CADETS OF THE UNITED STATES MILITARY ACADEMY WHEN ON A DUTY STATUS * * *

"D. ROUTINE OR EXTENSIVE DENTAL CARE.

"/1) CIVILIAN DENTISTS MAY NOT BE EMPLOYED AT PUBLIC EXPENSE FOR THE TREATMENT OF CHRONIC LESIONS, FILLING OPERATIONS, PROSTHETIC REPLACEMENTS, AND OTHER PROLONGED OR EXTENSIVE PROCEDURES, SUCH AS THOSE REQUIRED FOLLOWING THE RELIEF OF AN IMMEDIATE EMERGENCY, UNTIL SPECIFIC APPROVAL FOR SUCH EMPLOYMENT HAS BEEN RECEIVED FROM THE APPROVING AUTHORITY ( (2) BELOW), PROVIDED THAT IN THE CASE MILITARY PERSONNEL ON DETAIL WITHOUT TROOPS IN FOREIGN COUNTRIES, DENTAL SERVICE OF THIS CHARACTER WHICH IS URGENTLY NECESSARY MAY BE PROCURED AT REASONABLE RATES WITHOUT PRIOR APPROVAL OF HIGHER AUTHORITY.

"/2) APPLICATION FOR AUTHORITY TO EMPLOY A CIVILIAN DENTIST FOR ROUTINE OR EXTENSIVE DENTISTRY ( (1) ABOVE) WILL BE MADE AS FOLLOWS:

"/C) FOR ALL INSTALLATIONS AND ACTIVITIES OUTSIDE CONTINENTAL UNITED STATES.--- THE APPROPRIATE OVERSEA COMMANDER.

"6. RENDITION AND PAYMENT OF ACCOUNTS FOR SERVICES OF CIVILIAN DENTISTS.- -- A. ACCOUNTS WILL BE PREPARED LOCALLY IN THE NAME OF THE DENTIST ON WD AGO FORM 8-9 (PUBLIC VOUCHER FOR MEDICAL SERVICES) AND DA AGO FORM 8-10 (PUBLIC VOUCHER FOR MEDICAL SERVICES, DEPARTMENT OF THE ARMY) AND FORWARDED FOR SETTLEMENT TO THE APPROVING AUTHORITY INDICATED IN PARAGRAPH 5D (2). CHARGES WILL BE ALLOWED IN REASONABLE AMOUNT ONLY. VOUCHERS FOR DENTAL SERVICES RENDERED MILITARY PERSONNEL ON DUTY WITHOUT TROOPS OVERSEAS WILL BE PAID LOCALLY. IN CASES WHICH PRESENT UNUSUAL OR DIFFICULT ASPECTS, THE ARMY OR OVERSEA COMMANDER WILL REQUEST ADVICE AND RECOMMENDATION OF THE SURGEON GENERAL, DEPARTMENT OF THE ARMY, WASHINGTON 25, D.C.'

PROVISIONS OF SIMILAR IMPORT WERE CONTAINED IN PRIOR ARMY REGULATIONS ON THE SUBJECT.

UNDER THE PROVISIONS OF SUCH REGULATIONS, ROUTINE OR EXTENSIVE DENTAL CARE MAY BE PROCURED WITHOUT APPROVAL OF HIGHER AUTHORITY BY MILITARY PERSONNEL ON DETAIL WITHOUT TROOPS IN FOREIGN COUNTRIES ONLY WHEN THE DENTAL SERVICE IS "URGENTLY NECESSARY" AND THEN ONLY AT "REASONABLE ES.' THE ACCOUNTS FOR SUCH SERVICES ARE TO BE PREPARED LOCALLY AND FORWARDED FOR SETTLEMENT TO THE APPROVING AUTHORITY--- THE APPROPRIATE OVERSEA COMMANDER. THE REGULATIONS DECLARE EXPRESSLY THAT "CHARGES WILL BE APPROVED IN REASONABLE AMOUNTS ONLY.' IN CASES PRESENTING UNUSUAL OR DIFFICULT ASPECTS, THE ADVICE AND RECOMMENDATION OF THE SURGEON GENERAL MUST BE REQUESTED.

SINCE PRIOR APPROVAL HAD NOT BEEN OBTAINED FROM THE OVERSEA COMMANDER IN THE CASES OF COLONEL MITCHELL AND SERGEANT BROSS AND THERE WAS SOME DOUBT AS TO THE URGENCY IN THEIR CASES, AND AS THE CHARGES FOR THEIR DENTAL SERVICE APPEARED UNREASONABLE, THE MILITARY AUTHORITIES AT DAMASCUS FORWARDED YOUR CLAIMS THROUGH CHANNELS TO THE SURGEON GENERAL, AS REQUIRED BY THE REGULATIONS. THE SURGEON GENERAL FORWARDED THE CLAIMS HERE FOR SETTLEMENT WITH A STATEMENT THAT YOUR CHARGES APPEARED EXCESSIVE. FURTHER STATED THAT CHARGES CONSIDERED REASONABLE WOULD BE APPROXIMATELY $120 IN THE CASE OF COLONEL MITCHELL AND $325 IN THE CASE OF SERGEANT BROSS. WHILE THE RECORD DID NOT ESTABLISH THAT THEIR NEED FOR YOUR SERVICES WAS URGENT, WE RESOLVED THE DOUBT IN YOUR FAVOR AND AUTHORIZED PAYMENT TO YOU IN THE AMOUNT DETERMINED BY THE SURGEON GENERAL TO BE REASONABLE. UNDER THE EXPRESS PROVISIONS OF THE REGULATIONS YOU MAY NOT BE PAID MORE.

THE RECORDS, WHICH INCLUDE A COPY OF A LETTER FROM COLONEL MITCHELL, SUGGEST THAT, DURING THE PERIOD OF HIS SERVICE IN DAMASCUS, THE REGULATIONS WERE EITHER OVERLOOKED OR DISREGARDED BY CERTAIN ARMY PERSONNEL IN DAMASCUS IN ORDER TO OBTAIN YOUR SERVICES, WHICH APPARENTLY WERE THE BEST IN THE AREA. HOWEVER, THAT SITUATION AFFORDS NO BASIS UPON WHICH WE MAY ALLOW YOU ANY AMOUNT IN EXCESS OF A REASONABLE AMOUNT. THE AMOUNT CHARGED BY YOU, OVER THE AMOUNT AUTHORIZED TO BE PAID BY THE REGULATIONS, WOULD APPEAR TO BE THE PERSONAL RESPONSIBILITY OF THE OFFICER AND THE ENLISTED MAN AND YOU SHOULD LOOK TO THEM FOR PAYMENT.

CHECKS NOS. 3,678,33, AND 3,678,335, DATED DECEMBER 7, 1953, IN THE AMOUNTS OF $120 AND $325, RESPECTIVELY, DRAWN IN YOUR FAVOR BY JAMES V. COMINGS, FINANCE OFFICER, UNITED STATES ARMY, IN PAYMENT OF OUR SETTLEMENTS ON YOUR CLAIMS, ARE RETURNED TO YOU. SUCH CHECKS MAY BE NEGOTIATED BY YOU WITHOUT PREJUDICE TO ANY RIGHT WHICH YOU MAY BELIEVE YOU HAVE TO RECOVER AN ADDITIONAL AMOUNT ELSEWHERE.