B-233529.2, Aug 18, 1989

B-233529.2: Aug 18, 1989

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The claim is barred in any event by the statute of limitations since it was not received in this Office for more than 43 years after it accrued. Sec. 3702(b)(1) were modified to provide that a claim can be filed with the agency out of whose activities the claim arose to toll the 6-year Barring Act. Are not revived by virtue of the fact that they had been filed with the agency prior to the bar date. We understand from the materials you provided us that there were two conflicting propositions on the November 1988 ballot regarding the Missouri: under Proposition "R. So that passage of Proposition "R" would have required the Navy to home-port the Missouri in another city. Proposition "S" was successful.

B-233529.2, Aug 18, 1989

MILITARY PERSONNEL - Pay - Additional pay - Eligibility - Evidence sufficiency MILITARY PERSONNEL - Pay - Claims - Statutes of limitation DIGEST: A claim by the spouse of a World War II Army Air Force veteran, on the veteran's behalf, for unpaid additional pay due to combat and aviation service activities of that veteran, cannot be paid where the spouse does not present facts which clearly evidence the veteran's right to the additional pay entitlements, along with their lack of payment, and where as here, the claim is barred in any event by the statute of limitations since it was not received in this Office for more than 43 years after it accrued. MILITARY PERSONNEL - Pay - Claims - Statutes of limitation Recently, regulations issued under 31 U.S.C. Sec. 3702(b)(1) were modified to provide that a claim can be filed with the agency out of whose activities the claim arose to toll the 6-year Barring Act. However, this amendment affects only those claims not barred as of June 15, 1989. Personnel claims arising out of military service during World War II which had been barred for many years because they had not been filed in this Office prior to statute of limitations, are not revived by virtue of the fact that they had been filed with the agency prior to the bar date.

The Honorable Barbara Boxer:

November 2, 1988, letter to the Secretary of the Navy that we verify your interpretation of various statutes and regulations as they pertain to the activities of Admiral R. L. Toney, Commander of the San Francisco Naval Base, regarding the home-porting of the USS Missouri in San Francisco. The activities concern Admiral Toney's involvement in a local election issue about the cost to the City of home-porting the Missouri.

We understand from the materials you provided us that there were two conflicting propositions on the November 1988 ballot regarding the Missouri: under Proposition "R," the Navy would pay all home-porting costs, whereas under Proposition "S," the City, pursuant to a memorandum of understanding between the Navy and the former Mayor of San Francisco, would pay the federal government approximately $2 million to keep the Missouri home-ported in San Francisco. The City would also pay $1 million per year for another 20 years. We further understand, from listening to a tape of a radio talk show in which Admiral Toney participated, that according to the Admiral federal law requires a city to contribute to the cost of home-porting, so that passage of Proposition "R" would have required the Navy to home-port the Missouri in another city.

The materials provided also include a letter, written on Navy stationary and signed by Admiral Toney, addressed to "Dear Navy League Member." The letter, dated October 26, 1988, recaps polls showing ballot Proposition "R," the proposition the Admiral says effectively would reject home- porting the Missouri, ahead of Proposition "S," and proceeds to urge the addressee to "help save the Missouri." Ultimately, Proposition "S" was successful.

Through your November 2 letter to the Secretary of the Navy, you ask our Office to verify of your view that Admiral Toney violated (1) Department of Defense (DOD) Directive 1344.10, "Political Activities by Members of the Armed Forces"; (2) 32 C.F.R. Sec. 40.4(c)(7), which concerns DOD use of government property, facilities, and personnel; (3) the statutory restriction at 31 U.S.C. Sec. 1301(a)1 on the use of appropriated money; and (4) 18 U.S.C. Sec. 641, the criminal statute applicable to the improper use of government funds.

Initially, we note that in his February 3, 1989, response to your letter, the Secretary of the Navy recognizes that DOD regulations do prohibit military personnel from engaging in certain political activities. The Secretary asserts, however, that those regulations do not preclude defense officials from explaining or defending policies or actions relating to issues of national defense. In the Secretary's view, Admiral Toney wrote the letter to the Navy League members only to explain the Navy's position on the issues. The Secretary concludes that if Admiral Toney's actions violated the regulations, the violation was "at worst, an inadvertent, technical one."

We think Admiral Toney's actions with respect to the Navy League member letter were not in accord with the DOD policy governing the political activities of service members set out in DOD Directive 1344.10. The Directive states that, as a general policy, a member is entitled to express his personal opinion on a political issue, but not as a representative of the Armed Forces, and may not use his official authority or influence for interfering with an election or soliciting votes for a particular issue. The Directive also deals specifically with nonpartisan political activities, which are defined to include activities supporting or relating to issues, like referenda, not specifically identified with national or state political parties. Participation in local nonpartisan activity is permitted, but the member taking part in such activity may not wear his uniform or use any government property or facilities while campaigning, and may not act in any way that implies that the Department concerned or any of its elements is taking a position or is involved in the campaign.

In the Navy League member letter, Admiral Toney stated:

"If you want the battleship and her escorts in San Francisco Bay; if you want to revitalize the ship repair industry and save blue collar jobs; if you want this area to do its share for national defense; the time to act is now." (Emphasis in original.)

The letter then noted that various San Francisco newspapers have carried letters to the editors that Admiral Toney characterized as "anti- military," and continued:

"... as the polls indicate, this small group is winning. Their success in preventing home-porting will of not only the Bay Area, but also "I urge you to take pen in hand right now and express your opinion. Also, your council president ... has asked me to emphasize her request for your help in this matter. She is asking for volunteers to help save the Missouri".

"As of this writing, there are only eleven days left. The battle can be won if we can overcome complacency and the small, anti-military activist groups. Join the fight." (Emphasis in original.)

In our view, the language of the letter reflects the type of nonpartisan activity proscribed by the DOD Directive. The clear purpose of the letter was to rally support for the ballot proposition that would continue home- porting the Missouri in San Francisco which, when the letter was written, looked like it was going to fail. It is difficult not to infer from the letter-- the call to volunteer "to help save the Missouri," and to "join the fight" in order to win the "battle over complacency and the small, anti-military activist groups"-- that Admiral Toney was using his official capacity as Commander of the San Francisco Naval Base to urge the passage of the referendum that would keep the Missouri in San Francisco.

In contrast, we do not find Admiral Toney's comments on the radio show to be objectionable under the Directive. There, Admiral Toney basically explained in a factual way the benefits that accrue from having the Missouri in San Francisco, the detriments attendant to having the ship home-ported elsewhere, and how the costs to the City compared with obligations undertaken by other cities to home-port ships. The Admiral made it expressly clear that he was not "politicking" on the Navy's behalf and, to the extent the Admiral offered an opinion on the merits of the referenda, we think it was reasonably clear that the opinion was his own.

The DOD regulation at 37 C.F.R. Sec. 40.4(c)(7)(i) precludes the use for other than official purposes of government property, facilities and personnel, with specific examples being stationary, stenographic services, typing assistance, duplication equipment and services. Admiral Toney apparently used those types of services in preparing and mailing the letter to the Navy League members.

It appears to be the position of the Secretary of the Navy, however, as relayed in his February letter to you, that the preparation of the letter was a clear exercise of Admiral Toney's official duties. The Secretary asserts that Admiral Toney's official duties as the senior Navy representative in the Bay area-- at the time of what the Secretary calls a "unique" situation-- included working with local officials and citizens on issues that affected both the Navy and the local community. The Secretary advises that the Admiral prepared the letter in response to a request by the president of the Navy League for factual information about the effect of the referenda on the home porting of the Missouri. The Secretary states:

"I believe that Rear Admiral Toney's intention in writing the letter ... and, indeed, in his other activities was not to interject himself into or campaign for a particular political cause, but to explain the Navy position on the issues just as I had communicated our position to San Francisco Mayor Agnos."

We appreciate the Secretary's view that Admiral Toney's initiation of a response to the request from the Navy League president was an appropriate exercise of his official duties. The Admiral's execution of his duties in that regard, however, led to a letter that was not in accord with DOD policies. Consequently, and notwithstanding the Secretary's view of Admiral Toney's intentions, we do not think the letter as written ought to be considered as serving an official purpose under 37 C.F.R. Sec. 40.4(c)(7)(i).

The provision at 31 U.S.C. Sec. 1301(a) precludes the application of appropriations to objects other than those for which the appropriations were made, except as otherwise provided by law. Assuming that appropriated funds improperly were used to prepare and send the Navy League member letter, we nevertheless do not think it would be appropriate for our Office to attempt recovery in view of the obvious difficulty in determining the exact amount that may have been spent improperly, as well as the fact that the amount evidently was minimal in any event. See 59 Comp.Gen. 115, 121 (1979).

Finally, 18 U.S.C. Sec. 641 prescribes criminal penalties for a person who embezzles or steals government property. Since the enforcement of penal statutes is beyond our jurisdiction, it has been our traditional position that it would be inappropriate for our Office to comment on the applicability of such laws or venture to determine what does or does not constitute a violation. 20 Comp.Gen. 488 (1941).

In sum, we agree that Admiral Toney's preparation and mailing of the October 26, 1988, letter to Navy League members was an improper activity under DOD Directive 1344.10. We do not, however, think that the circumstances warrant an attempt by our Office to recover any funds spent.