B-197430(1),L/M, FEB 2, 1982, OFFICE OF GENERAL COUNSEL

B-197430(1),L/M: Feb 2, 1982

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AIR FORCE ACCOUNTING AND FINANCE CENTER/XSPBB: THIS IS IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION FROM THE CHIEF OF THE ACCOUNTING AND FINANCE BRANCH. AT ISSUE IS THE CLAIM OF MR. JACKSON'S AVERAGE DAILY LODGING COST WAS $7.30. BECAUSE HE WAS UNDER THE IMPRESSION THAT HE WAS ENTITLED TO THE FULL PER DIEM RATE OF $25. OUR CLAIMS DIVISION (NOW CLAIMS GROUP) DETERMINED THERE WAS REASONABLE DOUBT AS TO THE VALIDITY OF MR. THAT SETTLEMENT WAS ISSUED ON AUGUST 12. SINCE SOME QUESTION HAS APPARENTLY ARISEN OVER THE BASIS FOR THIS SECOND SETTLEMENT WE ARE ENCLOSING A COPY OF THE COMPTROLLER GENERAL'S MEMORANDUM OF JUNE 15. WE TRUST THAT THIS WILL RESOVLE ALL PROBLEMS WHICH HAVE ARISEN IN CONNECTION WITH THIS CLAIM.

B-197430(1),L/M, FEB 2, 1982, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

M. G. HUNT, LT. COL., USAF, AIR FORCE ACCOUNTING AND FINANCE CENTER/XSPBB:

THIS IS IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION FROM THE CHIEF OF THE ACCOUNTING AND FINANCE BRANCH, OFFICE OF THE COMPTROLLER, MCCLELLAN AIR FORCE BASE, WHICH YOU FORWARDED TO US THROUGH THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE UNDER PDTATAC CONTROL NUMBER 81-35.

AT ISSUE IS THE CLAIM OF MR. CLIFFORD W. JACKSON FOR PER DIEM COVERING A PERIOD OF TEMPORARY DUTY BEGINNING IN JUNE 1974 AND CONTINUING FOR OVER 7 MONTHS. ALTHOUGH MR. JACKSON'S AVERAGE DAILY LODGING COST WAS $7.30, HE LISTED $13 PER DAY ON HIS VOUCHER IN ORDER TO COVER ALL OF HIS EXPENSES, BECAUSE HE WAS UNDER THE IMPRESSION THAT HE WAS ENTITLED TO THE FULL PER DIEM RATE OF $25. THE AIR FORCE DETERMINED THAT MR. JACKSON HAD FILED A FRAUDULENT VOUCHER AND BEGAN TO RECOUP THE PER DIEM. ON NOVEMBER 14, 1979, OUR CLAIMS DIVISION (NOW CLAIMS GROUP) DETERMINED THERE WAS REASONABLE DOUBT AS TO THE VALIDITY OF MR. JACKSON'S CLAIM AND, THEREFORE, DENIED HIS CLAIM BECAUSE HE HAD FAILED TO SATISFY HIS BURDEN OF PROOF WITH RESPECT TO THE LIABILITY OF THE UNITED STATES.

MR. JACKSON APPEALED THAT DECISION. THE COMPTROLLER GENERAL REVERSED OUR CLAIMS DIVISION, DECIDING THAT MR. JACKSON'S CLAIM SHOULD NOT BE TREATED AS FRAUDULENT. RATHER THAN ISSUING A DECISION, HOWEVER, THE COMPTROLLER GENERAL SIMPLY DIRECTED THE CLAIMS GROUP TO ISSUE ANOTHER SETTLEMENT PROVIDING FOR USE OF MR. JACKSON'S ACTUAL, PROVEN LODGING COSTS AS THE BASIS FOR THE COMPUTATION OF THE PER DIEM RATE FOR THE TOTAL PERIOD OF TEMPORARY DUTY. THAT SETTLEMENT WAS ISSUED ON AUGUST 12, 1981.

SINCE SOME QUESTION HAS APPARENTLY ARISEN OVER THE BASIS FOR THIS SECOND SETTLEMENT WE ARE ENCLOSING A COPY OF THE COMPTROLLER GENERAL'S MEMORANDUM OF JUNE 15, 1981, TO OUR CLAIMS GROUP. WE TRUST THAT THIS WILL RESOVLE ALL PROBLEMS WHICH HAVE ARISEN IN CONNECTION WITH THIS CLAIM.

ATTACHMENT

RETURNED IS FILE Z-2728367 FOR ISSUANCE OF A SETTLEMENT ALLOWING PAYMENT ON THE CLAIM OF MR. CLIFFORD W. JACKSON, A CIVILIAN EMPLOYEE OF THE AIR FORCE, FOR REIMBURSEMENT OF THE EXPENSES HE ACTUALLY INCURRED WHILE PERFORMING TEMPORARY DUTY AT CASTLE AIR FORCE BASE (AFB), CALIFORNIA.

PURSUANT TO TRAVEL ORDER NO. TA 3708 DATED JUNE 28, 1974, MR. JACKSON PROCEEDED FROM MCCLELLAN AIR FORCE BASE (AFB), CALIFORNIA, TO CASTLE AFB IN ORDER TO PERFORM TEMPORARY DUTY FOR A PERIOD OF 90 DAYS. WHEN HE PICKED UP HIS TRAVEL ORDERS HE WAS INFORMED THAT THE PER DIEM RATE FOR THAT AREA WAS $25 PER DAY. SUBSEQUENTLY, MR. JACKSON AGREED TO EXTEND HIS TEMPORARY DUTY FOR AN ADDITIONAL 130 DAYS IN ORDER TO COMPLETE THE MISSION.

UPON FILLING OUT HIS TRAVEL VOUCHER MR. JACKSON LISTED $2,756 AS HIS LODGING EXPENSE. WHEN ASKED IF HE HAD ANY LODGING RECEIPTS MR. JACKSON STATED THAT HE DID NOT SINCE HE WAS NOT INFORMED THAT RECEIPTS WERE REQUIRED. MR. JACKSON WAS THEN TOLD THAT LODGING RECEIPTS WERE REQUIRED ONLY OF THOSE ON TEMPORARY DUTY FOR A LONG PERIOD OF TIME.

SHORTLY THEREAFTER, MR. JACKSON WAS CONTACTED BY THE FEDERAL BUREAU OF INVESTIGATION (FBI), WHO QUESTIONED HIM AS TO WHERE HE LIVED WHILE ON TEMPORARY DUTY. IN ADDITION TO ANSWERING THESE QUESTIONS, MR. JACKSON TOLD THEM THAT SINCE HE WAS UNDER THE IMPRESSION THAT HE WAS ENTITLED TO THE FULL $25 PER DAY HE LISTED $13 PER DAY FOR LODGING TO MEET ALL OF HIS EXPENSES. THE FBI SUBSEQUENTLY DISCOVERED THAT DURING HIS PERIOD OF TEMPORARY DUTY MR. JACKSON'S AVERAGE DAILY LODGING COST WAS $7.30.

IN THE COURSE OF CONSIDERING MR. JACKSON'S APPEAL, WE OBTAINED A COPY OF THE FBI'S INVESTIGATIVE REPORT. AS A RESULT OF THE INVESTIGATION AND THE FACT THAT ONLY $758.30 OF MR. JACKSON'S LODGING COSTS COULD BE VERIFIED THE AIR FORCE DETERMINED THAT MR. JACKSON HAD FILED A FRAUDULENT TRAVEL VOUCHER AND BEGAN TO RECOUP ALL THE PER DIEM WHICH MR. JACKSON HAD RECEIVED.

WE HAVE HELD THAT THE QUESTION OF WHETHER FRAUD EXISTS DEPENDS UPON THE FACTS OF EACH CASE. MOREOVER, THE BURDEN OF ESTABLISHING FRAUD RESTS WITH THE PARTY ALLEGING THE SAME AND MUST BE PROVEN BY EVIDENCE SUFFICIENT TO OVERCOME THE EXISTING PRESUMPTION IN FAVOR OF HONESTY AND FAIR DEALING. WHILE CIRCUMSTANTIAL EVIDENCE MAY BE USED, IT MUST PROVIDE A CLEAR INFERENCE OF FRAUD AND AMOUNT TO MORE THAN A SUSPICION OR CONJECTURE. SEE 57 COMP.GEN. 664, 668 (1978).

IN THE INSTANT CASE, IT IS CLEAR THAT MR. JACKSON DID NOT ACTUALLY INCUR ALL OF THE LODGING EXPENSES HE CLAIMED. HOWEVER, THE RECORD FAILS TO ESTABLISH THAT THERE WAS ANY INTENT ON THE PART OF MR. JACKSON TO FILE A FRAUDULENT TRAVEL VOUCHER. WE NOTE THAT THE ASSISTANT U.S. ATTORNEY FOR THE EASTERN DISTRICT OF CALIFORNIA, IN DECLINING TO PROSECUTE MR. JACKSON, FOUND THAT THE INVESTIGATION FAILED TO PROVE CRIMINAL INTENT AND SPECIFICALLY RECOMMENDED THAT THE AIR FORCE MAKE IT A POLICY TO INFORM EMPLOYEES OF THE REGULATIONS GOVERNING TEMPORARY DUTY EXPENSE REIMBURSEMENT. AS INDICATED IN B-200642, APRIL 7, 1981, THE DECISION NOT TO PROSECUTE MR. JACKSON DOES NOT PRECLUDE A CIVIL OR ADMINISTRATIVE DETERMINATION THAT ITEMS ON HIS VOUCHER WERE FRAUDULENTLY CLAIMED. HOWEVER, HIS RECOMMENDATION WITH RESPECT TO THE AIR FORCE IS PARTICULARLY SIGNIFICANT IN THAT IT SUGGESTS THAT FACTORS OTHER THAN DISHONESTY MAY HAVE BEEN RESPONSIBLE FOR MR. JACKSON'S ACTION IN CLAIMING INFLATED LODGING COSTS.

THE LODGINGS-PLUS SYSTEM OF PER DIEM REIMBURSEMENT HAD BEEN IN EFFECT FOR ONLY A LITTLE OVER ONE YEAR WHEN MR. JACKSON BEGAN HIS TEMPORARY DUTY ASSIGNMENT. AT THIS TIME THE REGULATIONS, PARAGRAPH C 8101 OF VOLUME 2 OF THE JOINT TRAVEL REGULATIONS (CHANGE 103, MAY 1, 1974) PROVIDED THAT LODGING RECEIPTS WOULD NOT NORMALLY BE REQUIRED, BUT COULD BE REQUIRED IN INDIVIDUAL CASES. THE RECORD INDICATES THAT THE AIR FORCE DID NOT FULLY INFORM MR. JACKSON OF THE RULES GOVERNING PER DIEM REIMBURSEMENT. MR. JACKSON'S OWN STATEMENTS INDICATE THAT HE MAY HAVE MISUNDERSTOOD THAT CERTAIN EXPENSES ARE CONSIDERED TO BE REIMBURSED UNDER THE MEALS AND MISCELLANEOUS EXPENSES PORTION OF THE PER DIEM ALLOWANCE AND MAY NOT BE INCLUDED AS COMPONENTS OF THE COST OF LODGINGS. GIVEN THE CONFUSION EXPERIENCED BY MANY EMPLOYEES WHO HAD BEEN ACCUSTOMED TO FLAT RATE PER DIEM REIMBURSEMENT, WE CAN ONLY CONCLUDE THAT THE CIRCUMSTANCES ARE AS CONSISTENT WITH HONESTY AND GOOD FAITH AS WITH DISHONESTY. THUS, THE INFERENCE OF HONESTY IS REQUIRED TO BE DRAWN. B-187975, JULY 23, 1977.

THEREFORE, MR. JACKSON'S TRAVEL VOUCHER FOR THE TIME PERIOD IN QUESTION SHOULD NOT BE TREATED AS FRAUDULENT. AS SUCH, HE IS ENTITLED TO BE REIMBURSED PER DIEM ON A LODGINGS-PLUS BASIS USING THE $758.30 PROVEN LODGINGS COSTS AS THE BASIS FOR THE COMPUTATION OF THE PER DIEM RATE FOR THE TOTAL PERIOD OF TEMPORARY DUTY.

ACCORDINGLY, SETTLEMENT SHOULD ISSUE ON THIS BASIS.