B-130240, MAR. 5, 1957

B-130240: Mar 5, 1957

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MD: REFERENCE IS MADE TO YOUR RECENT LETTER. FOR THE PURPOSE OF CLARIFYING OUR POSITION IN THE MATTER OF YOUR INDEBTEDNESS THERE WAS ENCLOSED WITH OUR LETTER OF SEPTEMBER 26. YOU APPEAR TO BE OF THE OPINION THAT THE CONCLUSIONS REACHED IN THAT DECISION WERE IN ERROR AND WITHOUT LEGAL FOUNDATION. YOU ARE ADVISED IN THAT RESPECT THAT OUR VIEWS IN THE MATTER OF YOUR INDEBTEDNESS. HAVE BEEN APPLIED IN DETERMINING THE RIGHTS OF MANY OFFICERS SERVING AS INTERNS UNDER SIMILAR CIRCUMSTANCES AND WE ARE FIRMLY CONVINCED THAT OUR POSITION IS LEGALLY SOUND. THE BASIS FOR THE DETERMINATION OF YOUR LIABILITY TO THE GOVERNMENT FOR THE COMPENSATION RECEIVED BY YOU IN ADDITION TO YOUR MILITARY PAY IS THAT AS AN AIR FORCE OFFICER YOU OCCUPIED A POSITION OF PUBLIC TRUST WHICH COULD NOT LEGALLY BE USED DIRECTLY OR INDIRECTLY FOR YOUR PERSONAL PROFIT.

B-130240, MAR. 5, 1957

TO SHELDON L. FELLMAN, MD:

REFERENCE IS MADE TO YOUR RECENT LETTER, POSTMARKED DECEMBER 5, 1956, CONCERNING THE MATTER OF YOUR INDEBTEDNESS TO THE UNITED STATES IN THE SUM OF $820.80. THE INDEBTEDNESS REPRESENTS COMPENSATION RECEIVED BY YOU FROM THE UNIVERSITY OF MICHIGAN HOSPITAL, ANN ARBOR, MICHIGAN, FOR YOUR SERVICES THERE AS AN INTERN DURING THE PERIOD OCTOBER 18, 1950, TO JUNE 30, 1951, WHILE CONCURRENTLY RECEIVING ACTIVE DUTY PAY AND ALLOWANCES AS AN OFFICER OF THE U.S. AIR FORCE RESERVE.

FOR THE PURPOSE OF CLARIFYING OUR POSITION IN THE MATTER OF YOUR INDEBTEDNESS THERE WAS ENCLOSED WITH OUR LETTER OF SEPTEMBER 26, 1956, A COPY OF DECISION OF APRIL 16, 1953, B-113776 (32 COMP. GEN. 454), CONSIDERING A QUESTION SIMILAR TO THE ONE INVOLVED IN YOUR CASE. YOU APPEAR TO BE OF THE OPINION THAT THE CONCLUSIONS REACHED IN THAT DECISION WERE IN ERROR AND WITHOUT LEGAL FOUNDATION. YOU ARE ADVISED IN THAT RESPECT THAT OUR VIEWS IN THE MATTER OF YOUR INDEBTEDNESS, AS SET FORTH IN THE SAID DECISION OF APRIL 16, 1953, HAVE BEEN APPLIED IN DETERMINING THE RIGHTS OF MANY OFFICERS SERVING AS INTERNS UNDER SIMILAR CIRCUMSTANCES AND WE ARE FIRMLY CONVINCED THAT OUR POSITION IS LEGALLY SOUND.

IN BRIEF, THE BASIS FOR THE DETERMINATION OF YOUR LIABILITY TO THE GOVERNMENT FOR THE COMPENSATION RECEIVED BY YOU IN ADDITION TO YOUR MILITARY PAY IS THAT AS AN AIR FORCE OFFICER YOU OCCUPIED A POSITION OF PUBLIC TRUST WHICH COULD NOT LEGALLY BE USED DIRECTLY OR INDIRECTLY FOR YOUR PERSONAL PROFIT; THAT THE COMPENSATION RECEIVED FROM THE HOSPITAL FOR YOUR SERVICES AS AN AIR FORCE OFFICER BELONGED TO YOUR EMPLOYER, THE GOVERNMENT; AND, THEREFORE, THAT SUCH COMPENSATION MUST BE CONSIDERED AS HAVING BEEN RECEIVED BY YOU FOR THE ACCOUNT AND BENEFIT OF THE GOVERNMENT. COURT CASES IN SUPPORT OF THAT POSITION WERE CITED IN THE DECISION OF APRIL 16, 1953, REFERRED TO ABOVE. ALSO, COMPARE DECISION OF THE UNITED STATES COURT OF CLAIMS IN THE CASES OF MORRISS V. THE UNITED STATES, NO. 6-55, DECIDED APRIL 3, 1956, IN WHICH IT WAS HELD THAT COMPENSATION IN THE FORM OF MEALS FURNISHED TO AN AIR FORCE MEDICAL OFFICER ON DUTY AS AN INTERN IN A PRIVATE HOSPITAL TO WHICH HE HAD BEEN ASSIGNED BY THE GOVERNMENT FOR TRAINING MUST BE CONSIDERED AS HAVING BEEN FURNISHED BY WAY OF COMPENSATION TO THE GOVERNMENT FOR FURNISHING THE INTERN'S SERVICES TO THE HOSPITAL.

YOU SEEM TO QUESTION THE CONCLUSION WE HAVE REACHED IN YOUR CASE BECAUSE RECEIPT BY YOU OF THE AMOUNT INVOLVED WAS NOT PROHIBITED BY THE ACT OF JUNE 25, 1948, 18 U.S.C. 1914, MENTIONED IN THE DECISION FURNISHED YOU WITH OUR LETTER OF SEPTEMBER 26, 1956. THAT ACT IS A PART OF WHAT IS GENERALLY TERMED THE CRIMINAL STATUTES OF THE UNITED STATES. IT, LIKE THE OTHER CRIMINAL PROVISIONS, DESCRIBES CERTAIN ACTION WHICH, IF PERFORMED, SUBJECTS THE PARTY CONCERNED TO PRESCRIBED PUNISHMENT IN THE NATURE OF A FINE, IMPRISONMENT, OR BOTH. THAT ACT WAS CITED NOT AS AUTHORITY FOR THE COLLECTION OF THE AMOUNT ERRONEOUSLY RECEIVED BY YOU BUT TO SHOW THAT, TO THE EXTENT INDICATED IN THE ACT, THE CONGRESS HAD MADE THE RECEIPT OF SALARY BY AN OFFICER OR EMPLOYEE OF THE GOVERNMENT FROM OTHER THAN THE UNITED STATES A CRIME.

WE CONSIDER YOUR OBLIGATION IN THE SUM OF $820.80, REPRESENTING THE COMPENSATION RECEIVED FROM THE UNIVERSITY OF MICHIGAN HOSPITAL, AS HAVING BEEN CLEARLY ESTABLISHED AND PROPERLY STATED. ACCORDINGLY, IT IS REQUESTED THAT THE OBLIGATION BE MET PROMPTLY BY REMITTANCE TO THE UNITED STATES GENERAL ACCOUNTING OFFICE, POST OFFICE BOX 2610, WASHINGTON 13, D.C. IF, AS YOU SUGGEST, FULL PAYMENT IS NOT CONVENIENT AT THIS TIME, YOU MAY SUBMIT A SUBSTANTIAL DOWN PAYMENT TOGETHER WITH A STATEMENT OF A PLAN FOR THE PAYMENT OF THE REMAINDER WITHIN A REASONABLE TIME.