B-140212, AUG. 14, 1959

B-140212, AUG. 14, 1959

TO MR. REGIS M. GRADEN:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 26, 1959, RELATIVE TO YOUR CLAIM FOR REFUND OF CHECK AGE IN THE AMOUNT OF $24 COVERING THE MONETARY VALUE OF A CERTAIN ITEM OF CLOTHING CHARGED AGAINST YOUR INITIAL CLOTHING ALLOWANCE WHICH YOU STATE WAS NOT RECEIVED BY YOU. YOU PROTEST CLAIMS DIVISION SETTLEMENT OF JUNE 18, 1959, WHICH DISALLOWED YOUR CLAIM ON THE GROUNDS THAT YOU ACKNOWLEDGED AND SIGNED FOR THE RECEIPT OF CLOTHING AND SMALL STORES VALUED AT $154.85 ON APRIL 3, 1957, INCLUDING THE ITEM IN QUESTION.

ON THE RECORD IN THIS OFFICE, THE CLAIMS DIVISION SETTLEMENT IS SUPPORTED BY A COPY OF ,REQUISITION RECEIPT--- MEN'S CLOTHING AND SMALL STORES, NAVSANDA FORM 28, DATED APRIL 3, 1957" (HEREAFTER REFERRED TO AS FORM 28), IN WHICH YOU ACKNOWLEDGED BY YOUR SIGNATURE THEREON THAT THE CLOTHING ITEMIZED, INCLUDING THE ITEM IN QUESTION, WAS RECEIVED BY YOU. IN THIS RESPECT, IT HAS BEEN RECOGNIZED BY THE COURTS THAT WHERE DOCUMENTS OF AN AGENCY OF THE UNITED STATES SHOWING DELIVERY ARE UNDER CONSIDERATION, THE DOCUMENT WILL MAKE OUT A PRIMA FACIE CASE FOR THE GOVERNMENT IN A CONTESTED CASE UNLESS THE DOCUMENTS IS SELF-VITIATING. SEE SOUTHARD V. UNITED STATES, 218 F.2D 943. THE COURT IN THAT CASE ALSO HELD THAT APPLYING THE TEST TO SALES DOCUMENTS WHERE THE RECEIPT EVIDENCED DELIVERY, THE DOCUMENTS SHOULD BE HELD TO MAKE OUT A PRIMA FACIE CASE FOR THE GOVERNMENT. SINCE THE AUTHENTICITY OF YOUR SIGNATURE IS NOT QUESTIONED, IT DOES NOT APPEAR THAT A MERE DENIAL THAT YOU RECEIVED THE CLOTHING, INCLUDING THE ITEM IN QUESTION, AS ITEMIZED IN THE RECEIPT, IS SUFFICIENT TO OVERCOME THE EFFECT OF THE RECEIPT.

IN YOUR LETTER OF JUNE 26, 1959, YOU EMPHASIZE THAT YOUR TESTIMONY AT A COURT-MARTIAL WHEREIN ALBERT T. SKENBERG WAS CONVICTED OF IRREGULAR AND FRAUDULENT ACTIVITIES WHILE ON DUTY AS PETTY OFFICER IN CHARGE OF CLOTHING AND SMALL STORES AT UNITED STATES NAVAL STATION, LONG BEACH, CALIFORNIA, HAS, IN EFFECT, VITIATED YOUR ACKNOWLEDGMENT AND SIGNATURE CONTAINED IN THE FORM 28. THE CONVICTION BY THE COURT MARTIAL DID NOT RESULT IN A FINDING OR DECISION BY THE COURT THAT YOU DID NOT RECEIVE THE CLOTHING YOU ACKNOWLEDGED RECEIVING BY YOUR SIGNATURE UPON YOUR FORM 28, AND DOES NOT ESTABLISH THAT YOU DID NOT RECEIVE THE COST FOR WHICH YOU WERE CHARGED $24.

YOU ALSO SUPPORT YOUR POSITION BY REFERENCE TO THE LETTER REPORT OF FEBRUARY 24, 1959, FROM LIEUTENANT JUNIOR GRADE FLOYD LOUIS IRVIN, USN, TO THE COMMANDING OFFICER, U.S. NAVAL STATION, LONG BEACH, CALIFORNIA, ON THE SUBJECT OF THE CLAIM YOU HAVE SUBMITTED. THE REPORT HAS BEEN FORWARDED TO THIS OFFICE BY FIRST ENDORSEMENT OF THAT COMMANDING OFFICER VIA THE U.S. NAVAL FINANCE CENTER. LIEUTENANT IRVIN SUBMITS AS FINDINGS OF FACT THAT YOU WERE ISSUED CLOTHING ON OR ABOUT THE TIME THAT SKONBERG WAS IN CHARGE OF THE CLOTHING AND SMALL STORE RETAIL ISSUE STORE, U.S. NAVAL STATION, LONG BEACH, CALIFORNIA; THAT SKONBERG WAS CONVICTED BY COURT-MARTIAL FOR IRREGULAR AND FRAUDULENT ACTIVITIES WHILE ON DUTY IN CHARGE OF THE STORE; THAT TESTIMONY INTRODUCED AT THE COURT-MARTIAL SHOWED THAT SKONBERG DIRECTED PERSONNEL UNDER HIS SUPERVISION TO ISSUE CLOTHING IN LESSER QUANTITIES THAN THOSE INDICATED ON FORM 28, WHICH RESULTED IN CHARGES BEING ENTERED IN THE PAY ACCOUNTS OF PERSONNEL FOR CLOTHING NOT ACTUALLY RECEIVED; THAT THE FORM 28 OF APRIL 3, 1957, WHICH BEARS YOUR SIGNATURE, INDICATED THE ITEM LISTED IN YOUR CLAIM WAS CHARGED TO YOUR PAY ACCOUNT; AND THAT THE ITEM LISTED IN YOUR CLAIM IS THE SAME OR SIMILAR TO THE ITEMS TESTIFIED AS HAVING NOT BEEN RECEIVED BY VARIOUS WITNESSES AT THE COURT- MARTIAL TRIAL OF SKONBERG. HE DOES NOT CERTIFY, HOWEVER, THAT YOU DID NOT RECEIVE THE ITEM IN QUESTION OR THAT YOU DID NOT RECEIVE ANY OTHER ITEM LISTED IN THE FORM 28 DATED APRIL 3, 1957, THAT YOU SIGNED.

ALTHOUGH LIEUTENANT IRVIN STATES IN PARAGRAPH 3 OF HIS LETTER THAT IT IS HIS OPINION THAT SKONBERG CAUSED TO BE ISSUED CLOTHING IN LESSER QUANTITIES THAN INDICATED ON FORM 28 OR THAT SKONBERG ALTERED IT TO SHOW ITEMS ISSUED WHICH WERE NOT ACTUALLY RECEIVED, IN VIEW OF THE FACT THAT THE FORM 28 CONTAINS YOUR ACKNOWLEDGMENT OF RECEIPT OF THE CLOTHING ITEM IN QUESTION AND YOUR SIGNATURE, OPINION EVIDENCE CANNOT BE ACCEPTED AS ESTABLISHING THAT YOU DID NOT ACTUALLY RECEIVE THE ITEM WHICH IS THE SUBJECT OF YOUR CLAIM. ACCORDINGLY, HIS RECOMMENDATIONS IN PARAGRAPH 4, BASED UPON SUCH AN OPINION, DOES NOT PROVIDE A SUFFICIENT BASIS FOR THE PAYMENT OF YOUR CLAIM.

IT IS A RULE OF THE ACCOUNTING OFFICERS THAT CLAIMANT MUST FURNISH THE EVIDENCE AND INFORMATION NECESSARY TO ESTABLISH THEIR CLAIMS AGAINST THE UNITED STATES, AND THE BURDEN IMPOSED BY SUCH RULE MUST BE MET IN EACH CASE IN ORDER TO JUSTIFY THE ACCOUNTING OFFICERS IN CERTIFYING THE CLAIMS FOR PAYMENT. IN THE ABSENCE OF POSITIVE EVIDENCE TO SHOW AS A MATTER OF FACT, RATHER THAN OPINION, THAT THE FORM 28 CONTAINING YOUR ACKNOWLEDGMENT OF RECEIPT AND SIGNATURE IS NOT WHAT IT PURPORTS TO BE, THE REQUIREMENTS OF THE RULE HAVE NOT BEEN MET. ACCORDINGLY, ON THE PRESENT RECORD BEFORE THIS OFFICE, THE SETTLEMENT OF JUNE 18, 1959, WHICH DISALLOWED YOUR CLAIM, IS SUSTAINED.