B-156380, APR. 19, 1965

B-156380: Apr 19, 1965

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

BARTH WAS FOUND GUILTY OF SELLING GOVERNMENT PROPERTY FOR HIS OWN BENEFIT AND SENTENCED TO IMPRISONMENT AND TO PAY A FINE OF $6. THE FINE WAS NEVER PAID EXCEPT FOR $620 AND IN 1960 THE SUPREME COURT OF THE UNITED STATES HELD THAT IN A SOMEWHAT SIMILAR SITUATION THE PROVISIONS OF THE UNIFORM CODE OF MILITARY JUSTICE PURPORTING TO GIVE THE MILITARY DEPARTMENTS COURT MARTIAL JURISDICTION OVER CIVILIANS WORKING FOR SUCH DEPARTMENTS WERE UNCONSTITUTIONAL. BARTH WAS CHARGED AS HAVING SOLD WE HAVE BEEN IN CORRESPONDENCE WITH THE DEPARTMENT OF THE ARMY ABOUT THIS MATTER AND FINALLY HAVE OBTAINED THE COURT MARTIAL RECORDS AND OTHER PAPERS TO ENABLE US TO MAKE A DETAILED REVIEW OF THE INDEBTEDNESS. WE NOTE FROM THE COURT MARTIAL RECORDS THAT THE VALUE OF THE PROPERTY WAS ORIGINALLY FIXED AT $9.

B-156380, APR. 19, 1965

TO SQUADRON, ALTER AND WEINRIB:

WE REFER TO YOUR LETTER OF OCTOBER 3, 1963, CONCERNING THE INDEBTEDNESS TO THE UNITED STATES OF ERNEST BARTH, A FORMER CIVILIAN EMPLOYEE OF THE UNITED STATES IN AUSTRIA. IN MARCH 1951 MR. BARTH WAS FOUND GUILTY OF SELLING GOVERNMENT PROPERTY FOR HIS OWN BENEFIT AND SENTENCED TO IMPRISONMENT AND TO PAY A FINE OF $6,500 (LATER REDUCED TO $3,500). THE FINE WAS NEVER PAID EXCEPT FOR $620 AND IN 1960 THE SUPREME COURT OF THE UNITED STATES HELD THAT IN A SOMEWHAT SIMILAR SITUATION THE PROVISIONS OF THE UNIFORM CODE OF MILITARY JUSTICE PURPORTING TO GIVE THE MILITARY DEPARTMENTS COURT MARTIAL JURISDICTION OVER CIVILIANS WORKING FOR SUCH DEPARTMENTS WERE UNCONSTITUTIONAL.

IN VIEW OF THE ALLEGATION MADE IN YOUR LETTER THAT THE GOVERNMENT HAD RECOUPED THE ENTIRE VALUE OF THE PROPERTY WITH WHICH MR. BARTH WAS CHARGED AS HAVING SOLD WE HAVE BEEN IN CORRESPONDENCE WITH THE DEPARTMENT OF THE ARMY ABOUT THIS MATTER AND FINALLY HAVE OBTAINED THE COURT MARTIAL RECORDS AND OTHER PAPERS TO ENABLE US TO MAKE A DETAILED REVIEW OF THE INDEBTEDNESS.

WE NOTE FROM THE COURT MARTIAL RECORDS THAT THE VALUE OF THE PROPERTY WAS ORIGINALLY FIXED AT $9,557 REPRESENTING THE VALUE OF 585 1/2 TONS OF CODE ($9,368) AND 13 1/2 TONS OF COAL ($189). ON REVIEW IT WAS FOUND THAT THE MOST TRUSTWORTHY FIGURES AS TO THE AMOUNT OF COAL AND COKE INVOLVED WERE THOSE GIVEN BY THE RECIPIENTS OF THE FUEL WHICH WERE SUPPORTED BY RECEIPTS. THUS THE NUMBER OF TONS OF COKE WERE REDUCED TO 576.7 TONS AT $16 PER TON ($9,227.20) AND THE TONS OF COAL TO 12 AT $14 PER TON ($168) OR A TOTAL VALUE OF $9,395.20. IN GOING THROUGH THE RECORD WE NOTE THERE IS EVIDENCE THAT 26 TONS OF THE COKE DELIVERED TO SALZBURG BRENNSTOFF VERTRIEB WERE RECOVERED BY THE GOVERNMENT. THEREFORE, WE HAVE ALLOWED CREDIT FOR SUCH 26 TONS AT $16 PER TON WHICH REDUCES THE VALUE OF THE STOLEN PROPERTY TO $8,979.20. THERE IS NO INDICATION THAT ANY OTHER COKE OR MONEY WAS RECOVERED FROM THE BUYERS OF THE COKE. THE RECORD ALSO REVEALS THAT MR. BARTH TURNED OVER TO THE GOVERNMENT THE SUM OF 48,000 SCHILLINGS AND A BUICK AUTOMOBILE STATED TO HAVE A VALUE OF $1,200. CONVERTING THE 48,000 SCHILLINGS TO AMERICAN DOLLARS AT THE EXCHANGE RATE OF 26 SCHILLINGS TO ONE DOLLAR (THE OFFICIAL RATE OF EXCHANGE AS STIPULATED BY THE PARTIES CONCERNED) RESULTS IN A FIGURE OF $1,846.15 WHICH WHEN ADDED TO THE $1,200 RESULTS IN A TOTAL OF $3,046.15 AS THE VALUE OF THE MONEY AND PROPERTY TURNED INTO THE AUTHORITIES BY MR. BARTH. SUBSTRACTING $3,046.15 FROM THE FIGURE OF $8,979.20 LEAVES A BALANCE OF $5,933.05 DUE THE UNITED STATES.

WE TURN NOW TO MR. BARTH'S CLAIM FOR REFUND OF $620 WHICH HE PAID ON THE COURT MARTIAL FINE AND FOR $4,812.60 REPRESENTING EARNINGS LOST BECAUSE OF IMPROPER CONFINEMENT. AS TO THE AMOUNT PAID ON THE FINE YOU MAY BE ADVISED THAT OUR POSITION IS THAT REFUND OF SUCH AMOUNT IS NOT AUTHORIZED IN VIEW OF THE CASE OF UNITED STATES V. GETTINGER ET AL., 272 U.S. 734. IN THAT CASE THE SUPREME COURT OF THE UNITED STATES FOUND THAT A UNITED STATES DISTRICT COURT WAS WITHOUT JURISDICTION TO ENTERTAIN A SUIT FOR RECOVERY OF A FINE IMPOSED UNDER A STATUTE SUBSEQUENTLY HELD TO BE UNCONSTITUTIONAL. BUT EVEN IF IT WERE NOT FOR THAT CASE WE ORDINARILY COULD NOT ALLOW REFUND OF A FINE BECAUSE OF THE LACK OF AN APPROPRIATION FOR THAT PURPOSE. COMPARE THE CASE OF NATHAN MALLOW V. UNITED STATES, CT.CL. NO. 372-61, DECIDED APRIL 5, 1963.

CONCERNING THE LOSS OF EARNINGS BY MR. BARTH DURING THE PERIOD INVOLVED YOU ARE INFORMED THAT THE ONLY STATUTE UNDER WHICH WE MAY AUTHORIZE PAYMENT OF SALARY FOR SERVICES NOT RENDERED IS THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, WHICH PROVIDES UNDER CERTAIN CIRCUMSTANCES THAT AN EMPLOYEE OF THE UNITED STATES IN THE CLASSIFIED CIVIL SERVICE OR WITH VETERANS' PREFERENCE MAY BE PAID BACK SALARY IF HE IS REINSTATED OR RESTORED TO DUTY UPON THE GROUNDS THAT HIS REMOVAL FROM THE SERVICE WAS UNJUSTIFIED AND UNWARRANTED. THERE IS NO INDICATION IN THE FILE BEFORE US THAT MR. BARTH WAS EVER RESTORED OR REINSTATED IN HIS CIVILIAN POSITION WITH THE UNITED STATES GOVERNMENT FOR THE REASONS INDICATED. THEREFORE, NO AMOUNT IS FOUND DUE UNDER THAT STATUTE. COMPARE THE CASE OF NATHAN MALLOW V. UNITED STATES, CT.CL. NO. 286-60, DECIDED APRIL 5, 1963, WHICH IS A COMPANION CASE TO THE ONE OF THE SAME NAME PREVIOUSLY CITED. MOREOVER, WE ARE NOT AUTHORIZED TO ALLOW ANY CLAIM FOR DAMAGES BECAUSE OF AN IMPROPER IMPRISONMENT OR CONFINEMENT. COMPARE 28 U.S.C. 1495 AND 2513.

BY REASON OF THE FOREGOING WE MUST HOLD THAT MR. BARTH REPAY TO THE UNITED STATES THE SUM OF $5,933.05. UNLESS ARRANGEMENTS ARE MADE WITHIN A REASONABLE TIME TO REPAY SUCH AMOUNTS WE WILL HAVE NO ALTERNATIVE BUT TO REFER THE MATTER TO THE DEPARTMENT OF JUSTICE FOR POSSIBLE LEGAL ACTION.