B-151027, MAR. 26, 1963

B-151027: Mar 26, 1963

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USMC: REFERENCE IS MADE TO LETTER OF MARCH 1. YOU WERE TRANSFERRED FROM CHERRY POINT. STATING THAT THE TRAVEL WAS PERFORMED DURING THE PERIOD NOVEMBER 30. ON THE BASIS OF YOUR CERTIFICATION THAT THE TRAVEL WAS PERFORMED YOU WERE PAID $278.22. SUBSEQUENTLY AN AUDIT EXCEPTION WAS ISSUED TO THE PAYMENT ON THE GROUNDS THAT THE TRAVEL HAD NOT BEEN PERFORMED AS ALLEGED. AS THE RESULT THE SUM OF $278.22 WAS CHECKED FROM YOUR PAY. YOU WERE TRIED BY GENERAL COURT-MARTIAL FOR VIOLATION OF THE UNIFORM CODE OF MILITARY JUSTICE. A MISTRIAL WAS DECLARED BUT YOU WERE TRIED AGAIN ON OCTOBER 25. ON THE SAME CHARGE AND WERE FOUND NOT GUILTY ON THE SAME DATE. YOU THEN PRESENTED A CLAIM FOR DISLOCATION ALLOWANCE AND FOR TRAVEL OF YOUR DEPENDENTS STATING THAT THE TRAVEL ACTUALLY WAS PERFORMED FROM CHERRY POINT.

B-151027, MAR. 26, 1963

TO SERGEANT MIKE D. MIRELES, USMC:

REFERENCE IS MADE TO LETTER OF MARCH 1, 1963, FROM YOUR ATTORNEYS, KING AND KING, IN EFFECT REQUESTING REVIEW OF THAT PART OF THE SETTLEMENT OF JANUARY 31, 1963, WHICH DISALLOWED YOUR CLAIM FOR $97.38 REPRESENTING REIMBURSEMENT FOR TRAVEL OF YOUR DEPENDENTS FROM CHERRY POINT, NORTH CAROLINA, TO SAN ANTONIO, TEXAS.

BY SPECIAL ORDER NO. 147-59, DATED NOVEMBER 4, 1959, AND FIRST ENDORSEMENT OF NOVEMBER 12, 1959, YOU WERE TRANSFERRED FROM CHERRY POINT, NORTH CAROLINA, TO SAN FRANCISCO, CALIFORNIA, FOR FURTHER TRANSPORTATION TO DUTY OVERSEAS AS A PERMANENT CHANGE OF STATION. YOU REPORTED AT SAN FRANCISCO, CALIFORNIA, ON JANUARY 8, 1960, AND ON JANUARY 11, 1960, YOU FILED A CLAIM FOR DISLOCATION ALLOWANCE AND FOR TRAVEL OF DEPENDENTS (WIFE AND INFANT DAUGHTER) FROM CHERRY POINT, NORTH CAROLINA, TO SAN FRANCISCO, CALIFORNIA, STATING THAT THE TRAVEL WAS PERFORMED DURING THE PERIOD NOVEMBER 30, 1959, TO JANUARY 8, 1960. ON THE BASIS OF YOUR CERTIFICATION THAT THE TRAVEL WAS PERFORMED YOU WERE PAID $278.22, REPRESENTING DISLOCATION ALLOWANCE OF $77.10 AND REIMBURSEMENT FOR YOUR WIFE'S TRAVEL IN THE AMOUNT OF $201.12.

SUBSEQUENTLY AN AUDIT EXCEPTION WAS ISSUED TO THE PAYMENT ON THE GROUNDS THAT THE TRAVEL HAD NOT BEEN PERFORMED AS ALLEGED. AS THE RESULT THE SUM OF $278.22 WAS CHECKED FROM YOUR PAY. ON OCTOBER 11 AND 12, 1962, YOU WERE TRIED BY GENERAL COURT-MARTIAL FOR VIOLATION OF THE UNIFORM CODE OF MILITARY JUSTICE, ARTICLE 132 (TWO SPECIFICATIONS). A MISTRIAL WAS DECLARED BUT YOU WERE TRIED AGAIN ON OCTOBER 25, 1962, ON THE SAME CHARGE AND WERE FOUND NOT GUILTY ON THE SAME DATE. YOU THEN PRESENTED A CLAIM FOR DISLOCATION ALLOWANCE AND FOR TRAVEL OF YOUR DEPENDENTS STATING THAT THE TRAVEL ACTUALLY WAS PERFORMED FROM CHERRY POINT, NORTH CAROLINA, TO SAN ANTONIO, TEXAS, DURING THE PERIOD NOVEMBER 30 TO DECEMBER 6, 1959. THE SETTLEMENT OF JANUARY 31, 1963, YOU WERE ALLOWED $77.10 AS DISLOCATION ALLOWANCE. HOWEVER, YOUR CLAIM FOR REIMBURSEMENT FOR TRAVEL OF YOUR DEPENDENTS WAS DISALLOWED BY REASON OF THE PRIOR CLAIM FOR TRAVEL NOT PERFORMED.

IN THE LETTER OF MARCH 1, 1963, YOUR ATTORNEYS CONTEND THAT SINCE YOU WERE TRIED BY GENERAL COURT-MARTIAL ON THE CHARGE OF PRESENTING A FALSE CLAIM TO THE UNITED STATES AND ACQUITTED, THE QUESTION OF FALSE CLAIM IS RES JUDICATA AND SHOULD NOT PREVENT PAYMENT OF YOUR CLAIM, CITING UNITED STATES V. SMITH, 4 USCMA 369, 15 CMR 369; AND WARTHEN V. UNITED STATES, CT.CL.NO. 311-60, DECIDED JUNE 6, 1962. WHILE THOSE CASES INVOLVE THE DOCTRINE OF RES JUDICATA IN CRIMINAL AND CIVIL MATTERS RESPECTIVELY, THEY DO NOT INVOLVE A SITUATION WHERE THE SAME MATTER WAS CONSIDERED BY A COURT OF CRIMINAL JURISDICTION AND WAS ALSO INVOLVED IN A CIVIL ACTION.

IT LONG HAS BEEN THE RULE THAT DISPOSITION OF CRIMINAL LIABILITY DOES NOT DETERMINE CIVIL LIABILITY. SEE UNITED STATES EX REL. MARCUS V. HESS, 317 U.S. 537, 548, AND HELVERING V. MITCHELL, 303 U.S. 391. THE CHARGE OF VIOLATION OF THE UNIFORM CODE OF MILITARY JUSTICE, ARTICLE 132, BEFORE A COURT-MARTIAL IS OF A CRIMINAL NATURE, WHEREAS A CLAIM FOR REIMBURSEMENT FOR TRAVEL OF DEPENDENTS IS OF A CIVIL NATURE. THE MEASURE OF PROOF REQUIRED FOR CONVICTION OF A CRIME IS DIFFERENT FROM THAT REQUIRED FOR PROOF OF A CIVIL CLAIM, AND, HENCE, THE ACQUITTAL OF THE MEMBER BY A GENERAL COURT-MARTIAL OF THE CHARGE OF VIOLATION OF ARTICLE 132 OF THE UNIFORM CODE OF MILITARY JUSTICE BY THE FILING OF A FALSE AND FRAUDULENT VOUCHER FOR TRAVEL OF DEPENDENTS DOES NOT NECESSARILY ESTABLISH THE VALIDITY OF THE VOUCHER. COMPARE 27 COMP. DEC. 675 AND UNITED STATES V. BURNS, 103 FED.SUPP. 690.

WHERE A CLAIM IS OF DOUBTFUL VALIDITY IT IS THE PRACTICE OF THIS OFFICE TO DENY PAYMENT AND LEAVE THE CLAIMANT TO HIS REMEDY IN THE COURTS UNDER THE PRINCIPLES OF LONGWILL V. UNITED STATES, 17 CT.CL. 288, AND CHARLES V. UNITED STATES, 19 CT.CL. 316. A CLAIM IN THE FORM OF A RECLAIM FOR ANY OR ALL THE AMOUNT RECOUPED BECAUSE OF AN ERRONEOUS PAYMENT OF ANY VOUCHER ITEM OBTAINED BY MISREPRESENTATION IS VIEWED AS A MATTER WHICH SHOULD BE LEFT TO THE COURT OF CLAIMS FOR FINAL RESOLUTION EVEN THOUGH THE RECLAIM INVOLVES NO APPARENT FRAUD OR MISREPRESENTATION. COMPARE KAMEN SOAP PRODUCTS COMPANY, INC. V. UNITED STATES, 129 CT.CL. 619. SEE DECISION OF NOVEMBER 3, 1961, B 146638, 41 COMP. GEN. 285, COPY ENCLOSED.

ACCORDINGLY, YOU ARE ADVISED THAT THE SETTLEMENT OF JANUARY 31, 1963, DISALLOWING YOUR CLAIM FOR TRAVEL OF YOUR DEPENDENTS MUST BE SUSTAINED.