B-223382, DEC 8, 1986

B-223382, DEC 8, 1986

MILITARY PERSONNEL - TRAVEL - ACTUAL SUBSISTENCE EXPENSES - FRAUD - ALLEGATION SUBSTANTIATION - EVIDENCE SUFFICIENCY MILITARY PERSONNEL - TRAVEL - ACTUAL SUBSISTENCE EXPENSES - REIMBURSEMENT - PRO RATE SHARES DIGEST: AGENCY RECOUPED SUBSISTENCE EXPENSES ADVANCED TO AN EMPLOYEE, DETERMINING THAT HE HAD FILED A FRAUDULENT CLAIM FOR LODGINGS BECAUSE HE CLAIMED THE FULL AMOUNT FOR A ROOM HE HAD SHARED, AND BECAUSE THE NAME OF HIS ROOMMATE WAS INKED OUT ON THE HOTEL RECEIPT ACCOMPANYING HIS TRAVEL VOUCHER. FIND THAT THE EVIDENCE IN THE RECORD IS INSUFFICIENT TO ESTABLISH A CLEAR INFERENCE OF FRAUD ON THE PART OF THE EMPLOYEE. ACCORDINGLY, THE EMPLOYEE MAY RECOVER SUBSISTENCE EXPENSES RECOUPED FROM HIM, WITH LODGING EXPENSES LIMITED TO THE AMOUNT HE ACTUALLY INCURRED.

LIEUTENANT ALAN M. GARDNER, M.D. - SUSPECTED FRAUDULENT TRAVEL CLAIM Z- 2854721 - B-223382-O.M.

THIS RESPONDS TO YOUR MEMORANDUM OF JUNE 12, 1986, REQUESTING OUR OPINION AS TO WHETHER LIEUTENANT ALAN M. GARDNER, M.D., A MEDICAL OFFICER IN THE UNITED STATES NAVAL RESERVES, MAY RECOVER SUBSISTENCE EXPENSES WHICH THE NAVY RECOUPED FROM HIM ON THE BASIS OF ITS SUSPICION THAT HE HAD FILED A FRAUDULENT CLAIM FOR LODGINGS. AS EXPLAINED BELOW, WE FIND THAT THE RECORD DOES NOT SUPPORT A CLEAR INFERENCE OF FRAUD ON THE PART OF LIEUTENANT GARDNER, AND, ACCORDINGLY, HIS CLAIM FOR SUBSISTENCE EXPENSES MAY BE PAID.

DURING THE PERIOD APRIL 17 TO APRIL 22, 1983, LIEUTENANT GARDNER ATTENDED A MEDICAL CONFERENCE IN KAUAI, HAWAII, AND SHARED A HOTEL ROOM WITH ANOTHER MEDICAL OFFICER. THEY INCURRED TOTAL LODGING EXPENSES OF $228.80, AND EACH OFFICER FILED A TRAVEL VOUCHER CLAIMING THE FULL AMOUNT. THE NAVY APPARENTLY INSTRUCTED LIEUTENANT GARDNER'S ROOMMATE THAT HE COULD BE REIMBURSED FOR ONE-HALF THE COST OF THE HOTEL ROOM, AND, UPON HIS SUBMISSION OF A REVISED VOUCHER, ALLOWED HIM LODGING EXPENSES OF $114.40 IN ADDITION TO HIS OTHER SUBSISTENCE EXPENSES. THE NAVY DID NOT ALLOW LIEUTENANT GARDNER AN OPPORTUNITY TO SUBMIT A REVISED VOUCHER BECAUSE IT DISCOVERED THAT THE NAME OF HIS ROOMMATE ON THE HOTEL RECEIPT ACCOMPANYING HIS VOUCHER HAD BEEN "INKED OUT."

THE NAVY SUSPECTED THAT LIEUTENANT GARDNER HAD INTENDED TO DEFRAUD THE GOVERNMENT, AND IT REFERRED THE MATTER FOR INVESTIGATION BY THE NAVAL INVESTIGATIVE SERVICE (NIS). IN SEPTEMBER 1983, NIS ISSUED A REPORT CONCLUDING THAT LIEUTENANT GARDNER'S CLAIM FOR THE FULL AMOUNT OF LODGING EXPENSES HAD RESULTED FROM HIS INEXPERIENCE WITH TRAVEL MATTERS RATHER THAN FROM "CRIMINAL INTENT." LATER IN 1983, THE NAVY CONDUCTED A PRELIMINARY INVESTIGATION OF COURT-MARTIAL CHARGES BASED ON LIEUTENANT GARDNER'S CLAIM FOR LODGING EXPENSES AND DECIDED TO DISMISS THE CHARGES BECAUSE SEVERAL FACTORS CREATED "DOUBT" AS TO WHETHER HE ACTED WITH FRAUDULENT INTENT. SPECIFICALLY, THE NAVY NOTED THAT LIEUTENANT GARDNER HAD SOUGHT ASSISTANCE FROM NAVY PERSONNEL WHEN PREPARING HIS TRAVEL VOUCHER BECAUSE HE WAS UNFAMILIAR WITH TRAVEL REIMBURSEMENT RULES, AND THAT LIEUTENANT GARDNER'S ROOMMATE HAD ALSO MISTAKENLY FILED A CLAIM FOR THE FULL AMOUNT OF LODGING EXPENSES.

DESPITE THE DISMISSAL OF DISCIPLINARY PROCEEDINGS AGAINST LIEUTENANT GARDNER, THE NAVY'S DISBURSING OFFICE DETERMINED THAT HIS CLAIM FOR LODGING EXPENSES WAS FRAUDULENT, AND, THEREFORE, THAT HE COULD NOT BE ALLOWED ANY SUBSISTENCE EXPENSES FOR THE PERIOD APRIL 17 TO APRIL 22, 1983. ACCORDINGLY, THE NAVY REQUIRED LIEUTENANT GARDNER TO REPAY $454.92 OF THE TRAVEL FUNDS WHICH HAD BEEN ADVANCED TO HIM.

LIEUTENANT GARDNER DISPUTED THE NAVY'S DETERMINATION OF FRAUD, STATING THAT HE CLAIMED THE FULL AMOUNT FOR LODGING EXPENSES ON HIS TRAVEL VOUCHER BECAUSE HE WAS NOT SURE WHETHER HE WAS REQUIRED TO STATE THE TOTAL COST OF THE HOTEL ROOM OR ONLY HIS SHARE IN THE "COST OF LODGING" BLOCK OF THE VOUCHER. HE DENIES THAT HE INKED OUT HIS ROOMMATE'S NAME ONE THE HOTEL RECEIPT HE SUBMITTED WITH HIS VOUCHER, AND HE SUGGESTS THAT THE MARKING MAY HAVE BEEN MADE BY DISBURSING OR CLERICAL PERSONNEL DURING THE PROCESSING OF HIS CLAIM. WITH RESPECT TO THIS LATTER POINT, LIEUTENANT GARDNER STATES THAT THE DISBURSING OFFICER HANDLING HIS CLAIM ADMITTED IN SWORN TESTIMONY DURING ONE OF THE NAVY'S INVESTIGATIONS THAT SHE HAD MADE ONLY A CURSORY EXAMINATION OF HIS VOUCHER AND THE ACCOMPANYING HOTEL RECEIPT WHEN SHE RECEIVED THEM, AND THAT IT WAS POSSIBLE THAT OTHER DISBURSING OR CLERICAL PERSONNEL HAD SUBSEQUENTLY MADE THE MARKING ON THE RECEIPT.

THE RELEVANT STANDARD FOR DETERMINING WHETHER A CLAIM IS FRAUDULENT IS STATED IN CHARLES W. HAHN, B-187975, JULY 28, 1977, AS FOLLOWS:

"*** THE BURDEN OF ESTABLISHING FRAUD RESTS UPON THE PARTY ALLEGING THE SAME AND MUST BE PROVEN BY EVIDENCE SUFFICIENT TO OVERCOME THE EXISTING PRESUMPTION IN FAVOR OF HONESTY AND FAIR DEALING. CIRCUMSTANTIAL EVIDENCE IS COMPETENT FOR THIS PURPOSE, PROVIDED IT AFFORDS A CLEAR INFERENCE OF FRAUD AND AMOUNTS TO MORE THAN SUSPICION OR CONJECTURE. HOWEVER, IF, IN ANY CASE, THE CIRCUMSTANCES ARE AS CONSISTENT WITH HONESTY AND FAIR DEALING AS WITH DISHONESTY, THE INFERENCE OF HONESTY IS REQUIRED TO BE DRAWN."

APPLYING THE HAHN STANDARD, WE FIND THAT THE CIRCUMSTANCES OF LIEUTENANT GARDNER'S CASE ARE AS CONSISTENT WITH HONESTY AND FAIR DEALING AS WITH DISHONESTY, AND, ACCORDINGLY, THE INFERENCE OF HONESTY MUST BE DRAWN. ALTHOUGH LIEUTENANT GARDNER IMPROPERLY CLAIMED THE FULL AMOUNT OF HOTEL EXPENSES HE HAD SHARED WITH HIS ROOMMATE, THE NIS REPORT AS WELL AS THE NAVY'S DECISION TO DISMISS COURT-MARTIAL PROCEEDINGS RECOGNIZE THAT THE IMPROPER CLAIM MAY HAVE RESULTED FROM LIEUTENANT GARDNER'S INEXPERIENCE WITH TRAVEL-REIMBURSEMENT RULES AND VOUCHER-FILING REQUIREMENTS RATHER THAN FROM AN INTENT TO DEFRAUD THE GOVERNMENT. FURTHERMORE, THE INK MARKING ON LIEUTENANT GARDNER'S HOTEL RECEIPT, STANDING ALONE, DOES NOT SUPPORT A CLEAR INFERENCE OF FRAUD ON HIS PART. LIEUTENANT GARDNER DENIED THAT HE HAD CROSSED OUT HIS ROOMMATE'S NAME ON THE RECEIPT, AND, AS HE HAS SUGGESTED, IT IS CONCEIVABLE THAT A MEMBER OF THE NAVY'S DISBURSING OR CLERICAL STAFF WAS RESPONSIBLE FOR THE MARKING.

BECAUSE THE RECORD IN LIEUTENANT GARDNER'S CASE DOES NOT SUPPORT A CLEAR INFERENCE OF FRAUD, HE IS ENTITLED TO RECOVER SUBSISTENCE EXPENSES FOR THE PERIOD APRIL 22, 1983. OF COURSE, HIS REIMBURSEMENT FOR LODGING EXPENSES MUST BE LIMITED TO $114.40, THE AMOUNT HE ACTUALLY INCURRED.

WE ARE ATTACHING YOUR CLAIMS FILE Z-2854721, AS WELL AS A COPY OF THE INVESTIGATIVE REPORT WHICH WE OBTAINED FROM NIS. WE SUGGEST THAT THE SETTLEMENT BE EXPEDITED BECAUSE OF THE PENDING CONGRESSIONAL INTEREST COUPLED WITH THE LENGTH OF TIME IT HAS BEEN IN THIS OFFICE.