B-163462, MAY 24, 1968

B-163462, MAY 24, 1968

TO MR. DAVID S. LORD:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 8, 1968, FURNISHING A POWER OF ATTORNEY EXECUTED IN YOUR FAVOR BY MR. JAMES M. AVIS, CONCORDIA, KANSAS, IN CONNECTION WITH HIS CLAIM FOR REFUND OF $6,900 WHICH WAS IMPOUNDED BY MILITARY AUTHORITIES IN VIETNAM. WE ALSO HAVE YOUR LETTER OF APRIL 25, 1968, REQUESTING INFORMATION AS TO THE STATUS OF THE CLAIM.

THE RECORDS SHOW THAT ON JANUARY 24, 1967, IN A GENERAL COURT MARTIAL PROCEEDING IN SAIGON, VIETNAM, MR. JAMES M. AVIS, THEN A STAFF SERGEANT, UNITED STATES ARMY, WAS FOUND GUILTY ON SEVEN SPECIFICATIONS OF CHARGE I, AS SET FORTH IN GENERAL COURT-MARTIAL ORDER NO. 20, DATED FEBRUARY 21, 1967; THAT IS, VIOLATIONS OF PARAGRAPH 4G (1) OF UNITED STATES MILITARY ASSISTANCE COMMAND VIETNAM DIRECTIVE NO. 643-1, DATED FEBRUARY 3, 1966, BY HAVING IN HIS POSSESSION SPECIFIED AMOUNTS OF UNITED STATES CURRENCY OTHER THAN ONE CENT COINS, AGGREGATING THE SUM OF $18,300. IT IS SHOWN IN SPECIFICATION 6 OF THAT CHARGE THAT ON OR ABOUT MARCH 27, 1966, MR. AVIS UNLAWFULLY HAD IN HIS POSSESSION $6,900, BUT THE RECORD BEFORE US DOES NOT SHOW WHETHER THIS WAS THE AMOUNT IMPOUNDED BY THE MILITARY AUTHORITIES AND NOW CLAIMED BY HIM. HE WAS FOUND NOT GUILTY ON CHARGES II AND III, CHARGES CONCERNING ALLEGED THREATS AND CURRENCY EXCHANGE VIOLATIONS (CONVERSION OF MILITARY PAYMENT CERTIFICATES INTO UNITED STATES CURRENCY) IN CONNECTION WITH HIS OFFICIAL POSITION.

MR. AVIS WAS SENTENCED TO PAY TO THE UNITED STATES A FINE OF $3,500 AND TO BE REDUCED TO THE GRADE OF E-4. THAT SENTENCE WAS APPROVED BY HIGHER AUTHORITY ON FEBRUARY 21, 1967. ON AUGUST 21, 1967, HE WAS DISCHARGED FROM THE ARMY AND THE COPIES OF THE FINAL MILITARY PAY VOUCHER SHOW THAT ON THAT DATE AFTER APPLICATION OF HIS FINAL PAY AND ALLOWANCES TO HIS INDEBTEDNESS ON ACCOUNT OF THE FINE AND OTHER ITEMS THERE WAS STILL DUE THE UNITED STATES THE SUM OF $3,328.94 (BALANCE OF AMOUNT OVERPAID AT DISCHARGE $3,249.27; NONDEDUCTION OF CLASS E ALLOTMENT FOR AUGUST 1967, $77.10; AND BASIC ALLOWANCE FOR SUBSISTENCE (RATIONS) FOR APRIL 6, 1967, $2.57).

BY LETTER DATED FEBRUARY 28, 1967, MR. AVIS REQUESTED APPROPRIATE AUTHORITIES IN VIETNAM TO REFUND THE INVOLVED AMOUNT OF $6,900; HOWEVER, THAT REQUEST WAS DENIED BECAUSE IT WAS NOT IN CONSONANCE WITH APPLICABLE REGULATIONS. ON SEPTEMBER 4, 1967, FOLLOWING HIS DISCHARGE FROM THE ARMY, HE AGAIN PRESENTED A CLAIM FOR THOSE FUNDS. ALSO, BY LETTER DATED SEPTEMBER 27, 1967, YOU WROTE TO THE FINANCE CENTER, U.S. ARMY, FORT BENJAMIN HARRISON, INDIANAPOLIS, INDIANA, ADVISING THAT YOU WERE REPRESENTING MR. AVIS IN HIS CLAIM AGAINST THE UNITED STATES AND ASSERTING THAT SINCE THE FUNDS WERE HELD AS EVIDENTIARY PROPERTY, THE ARMY IS OBLIGED TO RETURN SUCH FUNDS TO THE RIGHTFUL OWNER. IN THIS CONNECTION, YOU SAY THAT IT WAS POINTED OUT IN THE COURT-MARTIAL PROCEEDINGS THAT SUCH FUNDS WERE THE PROPERTY OF MR. AVIS.

THERE IS NOTHING IN THE RECORD BEFORE US TO SHOW THAT MR. AVIS HAS DISCLOSED THE SOURCE OF OR HOW HE OBTAINED UNITED STATES CURRENCY IN THE SUBSTANTIAL AMOUNT OF $18,300, THE FUNDS WHICH HE WAS CONVICTED OF ILLEGALLY HAVING IN HIS POSSESSION. THE SPECIFICATIONS UNDER CHARGES II AND III, MENTIONED ABOVE, RECITE THAT STAFF SERGEANT AVIS WAS A NON COMMISSIONED OFFICER IN CHARGE OF FLIGHT BOOKINGS TO THE UNITED STATES FOR THE 5TH SPECIAL FORCES GROUP (AIRBORNE) AT TAN SON NHUT AIRBASE, VIETNAM, AND THAT HE UNLAWFULLY RECEIVED UNITED STATES CURRENCY IN EXCHANGE FOR MILITARY PAYMENT CERTIFICATES FOR SERVICES TO BE RENDERED IN ASSIGNING SEATS ON AIRCRAFT PROVIDING OFFICIAL MILITARY TRANSPORTATION FROM VIETNAM TO THE UNITED STATES. WHILE HE WAS ACQUITTED ON THOSE TWO CHARGES, THAT FACT DOES NOT ESTABLISH THAT THE UNITED STATES CURRENCY IN QUESTION WAS NOT OBTAINED THROUGH THE IMPROPER EXERCISE OF HIS OFFICIAL POSITION.

IN THIS CONNECTION, THERE IS ON FILE A COPY OF MESSAGE FROM THE COMMANDING GENERAL, UNITED STATES ARMY, VIETNAM, LONG BINH, VIETNAM, WHICH, AMONG OTHER THINGS, REPORTS THAT THE EVIDENCE AT THE TRIAL ESTABLISHED THAT OF THE TOTAL OF $18,300 IN UNITED STATES CURRENCY ALLEGED IN THE SEVEN SPECIFICATIONS, AT LEAST $11,400 OF THIS CURRENCY WAS UNLAWFULLY CONVERTED FROM MILITARY PAYMENT CERTIFICATES AND THAT SINCE THE $6,900 IN UNITED STATES CURRENCY REPRESENTED UNLAWFULLY ACQUIRED MILITARY PAYMENT CERTIFICATES WHICH MR. AVIS HAD WRONGFULLY SOLICITED OTHER SERVICE MEMBERS TO CONVERT TO UNITED STATES CURRENCY FOR HIS BENEFIT, THE EVIDENCE CUSTODIAN WAS ADVISED TO DISPOSE OF THE CURRENCY AS "PROHIBITED PROPERTY" UNDER THE PROVISIONS OF PARAGRAPH 10D, ARMY REGULATIONS NO. 190-22, DATED OCTOBER 18, 1960, BY DEPOSITING THE FUNDS WITH AN APPROPRIATE FINANCE OFFICE.

THE AMOUNT INVOLVED, $6,900, WAS DEPOSITED INTO THE TREASURY OF THE UNITED STATES AS A MISCELLANEOUS RECEIPT, BEING DESCRIBED IN THE DEPOSIT VOUCHER AS "FUNDS SEIZED IN ILLEGAL CURRENCY TRANSACTIONS" IN VIETNAM.

IN THE CASE OF SMITH V UNITED STATES, 130 CT. CL. 222, 126 F.SUPP. 433, (1954), THE COURT WAS PETITIONED TO RENDER JUDGMENT FOR $13,500, REPRESENTING THE VALUE OF DUTCH GUILDERS WHICH THE PLAINTIFF HAD PERSONALLY ACQUIRED DURING THE COURSE OF HIS DUTIES AS AN ARMY FINANCE OFFICER AND SURRENDERED TO THE GOVERNMENT. THE COURT SAID, IN PERTINENT PART, AS FOLLOWS:

"THE RECORD FAILS TO SHOW THE VALUE AT THE TIME AND PLACE OF TAKING THESE GUILDERS TO BE SUBSTANTIALLY MORE THAN THE BLACK-MARKET PRICE AT THE TIME AND PLACE OF TAKING, WHATEVER THEY MAY HAVE BEEN WORTH IN HOLLAND, AND WHATEVER THEY MAY HAVE BEEN WORTH HAD THEY GONE THROUGH THE REGULAR CHANNELS OF TRADE. THE RECORD DOES NOT SHOW HOW THE GUILDERS ARRIVED IN ENGLAND NOR THE SOURCES FROM WHICH THEY CAME.

"* * * THE COURT-MARTIAL PROCEEDINGS WOULD HAVE NO EFFECT ON THE TRANSACTION IN ENGLAND EXCEPT AS HIS ADMITTED GUILT WHEN CORNERED IN FRANCE MIGHT TEND TO BEAR UPON THE CREDIT TO BE GIVEN TO HIS STORY AS TO THE DETAILS OF HIS ACCUMULATION OF THE DUTCH GUILDERS. TO PERMIT A FINANCIAL OFFICER OF THE GOVERNMENT TO KEEP ILL-GOTTEN GAINS OBTAINED IN CONSCIOUS VIOLATION OF THE RULES GOVERNING THE OFFICE WITH WHICH HE WAS CONNECTED WOULD PUT A PREMIUM ON MISCONDUCT. * * * " JUDGMENT WAS AWARDED TO THE PLAINTIFF ONLY FOR $972.50, THE AMOUNT OF MONEY WHICH HE HAD TO HIS CREDIT AT THE TIME THE ILLEGAL TRANSACTIONS WERE STARTED.

IN VIEW OF THE ADMINISTRATIVE DETERMINATION THAT THE CURRENCY REPRESENTS UNLAWFULLY ACQUIRED MILITARY PAYMENT CERTIFICATES WHICH AVIS (APPARENTLY IN HIS OFFICIAL POSITION) HAD WRONGFULLY SOLICITED OTHER MEMBERS TO CONVERT, FOR HIS BENEFIT, TO UNITED STATES CURRENCY IN VIOLATION OF THE CURRENCY-CONTROL REGULATIONS, WE CONSIDER HIS CLAIM TOO DOUBTFUL TO WARRANT FAVORABLE ACTION. WHEN A CASE ARISES WITH RESPECT TO WHICH THERE IS NO CONTROLLING JUDICIAL PRECEDENT AND AS TO WHICH SUBSTANTIAL DOUBT EXISTS AS TO THE ACTION WHICH A COURT OF COMPETENT JURISDICTION MIGHT TAKE, IT IS REGARDED AS THE DUTY OF THE ACCOUNTING OFFICERS TO DENY THE CLAIM AND LEAVE THE CLAIMANT TO HIS REMEDY IN THE COURTS. SEE 33 COMP. GEN. 394 AND SEE ALSO, LONGWILL V UNITED STATES, 17 CT. CL. 288, 291 (1882), AND CHARLES V UNITED STATES, 19 CT. CL. 316, 319 (1884).