B-155161, JAN. 21, 1965

B-155161, JAN. 21, 1965

TO SPECIALIST/5 ROBERT W. HOLMAN, RA 16 225 213:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 24, 1964, IN EFFECT REQUESTING RECONSIDERATION OF YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED IN CONNECTION WITH THE TRAVEL OF YOUR DEPENDENTS FROM SAN RAFAEL, CALIFORNIA, AND TEMPLE, TEXAS, TO SPRING LAKE, NORTH CAROLINA, INCIDENT TO YOUR PERMANENT CHANGE OF STATION. THE CLAIM WAS DISALLOWED BY SETTLEMENT DATED AUGUST 4, 1964.

BY SPECIAL ORDERS NO. 51, LETTERMAN GENERAL HOSPITAL, SAN FRANCISCO, CALIFORNIA, DATED MARCH 12, 1962, YOU WERE REASSIGNED TO FORT BRAGG, NORTH CAROLINA. IN MAY 1962, YOU SUBMITTED A CLAIM TO THE FINANCE AND ACCOUNTING OFFICE, FORT BRAG, IN WHICH YOU CERTIFIED THAT YOUR DEPENDENTS (WIFE, 4 CHILDREN AND STEPCHILD) TRAVELED BY PRIVATELY OWNED VEHICLE FROM SAN RAFAEL, CALIFORNIA, TO SPRING LAKE, NORTH CAROLINA. ON THE BASIS OF THAT CERTIFICATION ATTESTING TO THE CORRECTNESS OF THOSE FACTS, YOU WERE PAID $498.15, REPRESENTING A MONETARY ALLOWANCE COMPUTED AT THE RATE OF 15 CENTS PER MILE FOR 3,321 MILES.

AN AUDIT EXCEPTION WAS RAISED AGAINST THE PAYMENT MADE TO YOU FOR THE REASON THAT AT THE TIME YOUR DEPENDENTS PROCEEDED TO SPRING LAKE ONLY TWO OF THEM (2 CHILDREN) RESIDED WITH YOU AT SAN RAFAEL AND THE OTHERS (WIFE, 2 CHILDREN AND STEPCHILD) WERE LOCATED AT TEMPLE, TEXAS. THE FULL AMOUNT, $498.15, WAS SUBSEQUENTLY COLLECTED FROM YOU. ON NOVEMBER 26, 1963, YOU WERE TRIED BY SPECIAL COURT-MARTIAL FOR VIOLATION OF THE UNIFORM CODE OF MILITARY JUSTICE IN THAT YOU HAD SUBMITTED A FALSE CLAIM; HOWEVER, YOU WERE FOUND "NOT GUILTY" ON THE CHARGE. CONSEQUENTLY, YOU PRESENTED A CLAIM TO THE LOCAL FINANCE OFFICE ON MAY 4, 1964, AND IN THE CLAIM FORM YOU CERTIFIED THAT YOUR DEPENDENTS TRAVELED FROM STINSON BEACH, CALIFORNIA (ABOUT 10 MILES SOUTHWEST FROM SAN RAFAEL) AND TEMPLE, TEXAS, TO SPRING LAKE. THE CLAIM, WHICH PURSUANT TO REGULATIONS WAS FORWARDED TO OUR CLAIMS DIVISION FOR DISPOSITION, WAS DISALLOWED BY SETTLEMENT DATED AUGUST 4, 1964, FOR THE REASON THAT THE CONFLICTING STATEMENTS MADE BY YOU AS TO THE LOCATION OF YOUR DEPENDENTS WHEN YOU RECEIVED YOUR ORDERS AND THE DATES AND PLACES FROM WHICH THE TRAVEL COMMENCED RAISED SUBSTANTIAL DOUBT CONCERNING THE VALIDITY OF THE ENTIRE CLAIM.

IN THE LETTER OF AUGUST 24, 1964, YOU SAY THAT THERE APPEARS TO BE A MISUNDERSTANDING OF THE FACTS ON WHICH YOUR CLAIM IS BASED. YOU POINT OUT, IN THIS RESPECT, THAT WHEN YOU RECEIVED SPECIAL ORDERS NO. 186 (NO. 51) TRANSFERRING YOU TO FORT BRAGG, YOU WERE RESIDING IN SAN RAFAEL WITH 2 CHILDREN AND THAT YOUR WIFE AND THE OTHER 3 CHILDREN WERE RESIDING IN TEMPLE AND, FURTHER, THAT UPON DEPARTING FROM SAN FRANCISCO, CALIFORNIA, YOU WENT TO TEMPLE, PICKED UP THE REST OF YOUR FAMILY AND PROCEEDED TO FORT BRAGG. ADDITIONALLY, YOU SAY THAT YOUR ORIGINAL CLAIM WAS TO COVER ALL YOUR DEPENDENTS FOR TRAVEL FROM SAN RAFAEL TO FORT BRAGG AND THAT YOU UNDERSTAND WHILE THIS IS NOT AUTHORIZED YOU ARE "AUTHORIZED TRAVEL PAY" FOR YOUR FAMILY FROM SAN FRANCISCO AND TEMPLE TO FORT BRAGG. THE FACTS PERTAINING TO THE LOCATION OF YOUR DEPENDENTS, AS YOU RELATED ABOVE, ARE IN AGREEMENT WITH THOSE APPEARING IN THE RECORD AT THE TIME OF THE DISALLOWANCE OF YOUR CLAIM.

SINCE IT IS STATED IN YOUR RECLAIM VOUCHER AND IN YOUR LETTER OF AUGUST 24, 1964, THAT YOUR WIFE AND THREE OF THE CHILDREN WERE LOCATED AT TEMPLE, TEXAS, WHEN YOU RECEIVED YOUR TRANSFER ORDERS AND THAT THEY TRAVELED WITH YOU FROM THERE TO SPRING LAKE, NORTH CAROLINA, IT SEEMS EVIDENT THAT YOU WERE AWARE OF YOUR MISREPRESENTATIONS WHEN YOU CERTIFIED ON THE VOUCHER CLAIMING REIMBURSEMENT FOR THEIR TRAVEL THAT THEY HAD PERFORMED TRAVEL FROM SAN RAFAEL, CALIFORNIA, TO SPRING LAKE. THERE SEEMS LITTLE DOUBT THAT THE ORIGINAL CLAIM WHICH YOU SUBMITTED WAS ALLOWED ON THE BASIS OF THE MISREPRESENTATIONS OF THE FACTS INVOLVED, AND WE VIEW A CLAIM IN THE FORM OF A RECLAIM FOR ANY OR ALL OF THE AMOUNT RECOUPED BECAUSE OF AN ERRONEOUS PAYMENT OBTAINED BY MISREPRESENTATION OF A MATERIAL FACT AS A CLAIM OF DOUBTFUL VALIDITY.

THE FACT THAT YOU WERE ACQUITTED IN A COURT-MARTIAL PROCEEDING DOES NOT BY ITSELF JUSTIFY THE PAYMENT OF AN OTHERWISE QUESTIONABLE CLAIM. IT LONG HAS BEEN THE RULE THAT THE DISPOSITION OF CRIMINAL LIABILITY DOES NOT DETERMINE CIVIL LIABILITY. SEE UNITED STATES EX REL. MARCUS V. HESS, 317 U.S. 537, 548 (1943), AND HELVERING V. MITCHELL, 303 U.S. 391 (1938). COURT-MARTIAL PROCEEDING FOR VIOLATION OF THE UNIFORM CODE OF MILITARY JUSTICE 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 OR VIOLATION OF MILITARY REGULATIONS IS DIFFERENT FROM THAT REQUIRED FOR PROOF OF A CIVIL CLAIM AND, HENCE, THE ACQUITTAL OF THE MEMBER ON THE CHARGE OF HAVING FILED A FALSE AND FRAUDULENT VOUCHER FOR TRAVEL OF DEPENDENTS DOE NOT NECESSARILY ESTABLISH THE VALIDITY OF THE PAYMENT AS COVERED BY THAT VOUCHER. COMPARE 27 COMP. DEC. 675 AND UNITED STATES V. BURNS, 103 FED.SUPP. 690 (D. MARYLAND 1952).

IN CONSONANCE WITH THE PRINCIPLES ENUNCIATED IN LONGWILL V. UNITED STATES, 17 CT.CL. 288 (1881), AND CHARLES V. UNITED STATES, 19 CT.CL. 316 (1884), IT HAS BEEN THE PRACTICE OF THIS OFFICE IN CASES INVOLVING CLAIMS OF DOUBTFUL VALIDITY TO DENY PAYMENT AND LEAVE THE CLAIMANT TO HIS REMEDY IN THE COURTS. HENCE, A CLAIM IN THE FORM OF A RECLAIM FOR ANY OR ALL OF THE AMOUNT RECOVERED BECAUSE OF AN ERRONEOUS PAYMENT ON 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 (1954). SEE, ALSO, OUR DECISION OF NOVEMBER 3, 1961, B-146638, 41 COMP. GEN. 285, COPY ENCLOSED.

IN VIEW OF THE FOREGOING, YOU ARE ADVISED THAT THE SETTLEMENT OF AUGUST 4, 1964, IS CORRECT AND, THEREFORE, MUST BE SUSTAINED.