B-118580, MARCH 18, 1954, 33 COMP. GEN. 394

B-118580: Mar 18, 1954

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CLAIMS - DOUBTFUL - ACCOUNTING OFFICER'S PRACTICE WHEN A CASE ARISES WITH RESPECT TO WHICH THERE IS NO CONTROLLING JUDICIAL PRECEDENT AND AS TO WHICH SUBSTANTIAL DOUBT EXISTS AS TO THE ACTION WHICH A COURT OF COMPETENT JURISDICTION MIGHT TAKE. THE DUTY OF THE ACCOUNTING OFFICERS IS TO DENY THE CLAIM AND LEAVE THE CLAIMANT TO REMEDY IN THE COURTS. 1954: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 17. WAS ADDRESSED TO YOU IN CARE OF YOUR WIFE AT 209 EAST 165TH STREET. IT IS ASSUMED THAT SUCH CERTIFICATE HAS BEEN FORWARDED AND RECEIVED BY YOU. YOUR LETTER WILL BE TREATED AS A REQUEST FOR RECONSIDERATION OF THE ACTION HERETOFORE TAKEN BY THIS OFFICE. THE SAID SETTLEMENT DISALLOWED YOUR CLAIM FOR THE REASONS THAT THE MILITARY PAYMENT CERTIFICATES WERE ILLEGALLY IN YOUR POSSESSION.

B-118580, MARCH 18, 1954, 33 COMP. GEN. 394

CLAIMS - DOUBTFUL - ACCOUNTING OFFICER'S PRACTICE WHEN A CASE ARISES WITH RESPECT TO WHICH THERE IS NO CONTROLLING JUDICIAL PRECEDENT AND AS TO WHICH SUBSTANTIAL DOUBT EXISTS AS TO THE ACTION WHICH A COURT OF COMPETENT JURISDICTION MIGHT TAKE, THE DUTY OF THE ACCOUNTING OFFICERS IS TO DENY THE CLAIM AND LEAVE THE CLAIMANT TO REMEDY IN THE COURTS.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO WILLIAM P. HIRSCH, MARCH 18, 1954:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 17, 1953, WITH ENCLOSURES, RELATIVE TO YOUR CLAIM FOR THE PROCEEDS OF CERTAIN MILITARY PAYMENT CERTIFICATES IN THE AMOUNT OF $3,000 CONFISCATED BY THE OFFICE OF THE PROVOST MARSHAL, FAR EAST COMMAND, TOKYO, JAPAN, DEPARTMENT OF THE ARMY, ON JANUARY 25, 1952. SINCE GENERAL ACCOUNTING OFFICE CERTIFICATE OF SETTLEMENT ISSUED TO YOU UNDER DATE OF AUGUST 31, 1953, WAS ADDRESSED TO YOU IN CARE OF YOUR WIFE AT 209 EAST 165TH STREET, NEW YORK, NEW YORK, IT IS ASSUMED THAT SUCH CERTIFICATE HAS BEEN FORWARDED AND RECEIVED BY YOU. HENCE, YOUR LETTER WILL BE TREATED AS A REQUEST FOR RECONSIDERATION OF THE ACTION HERETOFORE TAKEN BY THIS OFFICE.

THE SAID SETTLEMENT DISALLOWED YOUR CLAIM FOR THE REASONS THAT THE MILITARY PAYMENT CERTIFICATES WERE ILLEGALLY IN YOUR POSSESSION, SINCE YOU WERE NOT AUTHORIZED TO ACQUIRE, POSSESS OR USE SUCH CERTIFICATES, AND THAT THERE WAS NO EVIDENCE THAT THE PROCEEDS OF THE CERTIFICATES REPRESENTED YOUR PERSONAL FUNDS ACQUIRED IN LEGAL TRANSACTIONS.

YOU NOW CONTEND THAT YOU HAD AUTHORITY TO USE MILITARY PAYMENT CERTIFICATES AND THAT THE PROCEEDS OF THE CERTIFICATES ACQUIRED BY YOU REPRESENTED PERSONAL EARNINGS AND THE REPAYMENT OF OLD DEBTS BY PERSONS IN THE FAR EAST. IN SUPPORT OF YOUR CLAIM, YOU FURNISHED: (1) THE ORIGINAL AUTHORIZATION FOR USE OF MILITARY PAYMENT CERTIFICATES DATED FEBRUARY 14, 1952; (2) A CERTIFICATION DATED MAY 1, 1952, TO THE EFFECT THAT YOU WERE AUTHORIZED TO USE MILITARY PAYMENT CERTIFICATES; AND (3) AN AFFIDAVIT BY A MR. AND MRS. THOMAS H. YAMATE THAT THEY OWED YOU $3,500 ON A PERSONAL LOAN.

SUBPARAGRAPH 10B, AR35-510, DATED NOVEMBER 1, 1951, PROHIBITED THE POSSESSION OR USE OF MILITARY PAYMENT CERTIFICATES UNLESS ACQUIRED PURSUANT TO THE REGULATIONS CONTAINED THEREIN AND IN SUCH ADDITIONAL REGULATIONS AS MIGHT BE PROMULGATED BY THE OVERSEA COMMANDER CONCERNED. THE AUTHORIZATION OF FEBRUARY 14, 1952, EXTENDED TO YOU THE PRIVILEGE OF USING MILITARY CERTIFICATES ONLY FOR THE PURPOSE OF PAYING FOR MEALS AND PERSONAL ITEMS OR SERVICES. THE RECORD ESTABLISHES THAT YOU ACQUIRED THE MILITARY CERTIFICATES PRIOR TO THE DATE YOU WERE AUTHORIZED TO POSSESS OR USE SUCH CERTIFICATES. ANY DOUBT AS TO YOUR LACK OF AUTHORITY TO POSSESS THE CERTIFICATES SEIZED FROM YOU WOULD APPEAR TO BE RESOLVED BY THE EXCESSIVE AMOUNTS OF SUCH CERTIFICATES IN RELATION TO THE PURPOSE FOR WHICH YOU WERE AUTHORIZED TO POSSESS AND USE MILITARY PAYMENT CERTIFICATES, AND THE FACT THAT YOU COVERTLY ENGAGED ARMED SERVICES PERSONNEL FOR COMPENSATION TO CONVERT THEM FOR YOU.

UNDER SUCH CIRCUMSTANCES, THE MATTER APPEARS TO BE TOO DOUBTFUL TO WARRANT ALLOWING YOUR CLAIM. WHEN A CASE ARISES WITH RESPECT TO WHICH THERE IS NO CONTROLLING JUDICIAL PRECEDENT AND AS TO WHICH SUBSTANTIAL DOUBT EXISTS AS TO THE ACTION WHICH A COURT OF COMPETENT JURISDICTION MIGHT TAKE, IT IS REGARDED AS THE DUTY OF THE ACCOUNTING OFFICERS TO DENY THE CLAIM AND LEAVE THE CLAIMANT TO HIS REMEDY IN THE COURTS. SEE LONGWILL V. UNITED STATES, 17 C.1CLS. 288, 291; CHARLES V. UNITED STATES, 19 ID. 316, 319.

ACCORDINGLY, ON THE PRESENT RECORD THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND IS SUSTAINED.