B-41159, MAY 18, 1944, 23 COMP. GEN. 879

B-41159, MAY 18, 1944, 23 COMP. GEN. 879

TRAVELING EXPENSES - NAVY ENLISTED MAN TESTIFYING AS GOVERNMENT WITNESS WHERE A NAVY ENLISTED MAN, WHILE PERFORMING HIS REGULARLY ASSIGNED DUTIES, OBTAINED INFORMATION REGARDING THE POSSIBLE VIOLATION OF THE NATIONAL MOTOR VEHICLE THEFT ACT BY ANOTHER ENLISTED MAN, HIS SUBSEQUENT TRAVEL UNDER ORDERS OF HIS SUPERIOR OFFICER TO COMPLY WITH A SUBPOENA TO APPEAR AS A GOVERNMENT WITNESS BEFORE A FEDERAL GRAND JURY IN CONNECTION WITH SUCH PROBABLE VIOLATION MAY BE CONSIDERED AS WITHIN THE CONDITION IN SECTION 850, REVISED STATUTES, AS AMENDED, UNDER WHICH TRAVELING EXPENSES OF A GOVERNMENT EMPLOYEE-WITNESS ARE CHARGEABLE TO THE APPROPRIATION OF THE EMPLOYING AGENCY RATHER THAN TO THE DEPARTMENT OF JUSTICE APPROPRIATION. IN THE CASE OF A NAVY ENLISTED MAN WHO TRAVELED UNDER NAVY ORDERS TO APPEAR AS A GOVERNMENT WITNESS BEFORE A FEDERAL GRAND JURY, THE SUBSISTENCE EXPENSES PAYABLE UNDER THE PROVISIONS OF SECTION 850, REVISED STATUTES, AS AMENDED, RELATING TO THE TRAVELING EXPENSE OF GOVERNMENT EMPLOYEE-WITNESSES, SHOULD BE PAID ON A COMMUTED BASIS--- RATHER THAN ON AN ACTUAL EXPENSE BASIS--- AS PRESCRIBED BY TABLE II, EXECUTIVE ORDER NO. 9206, FOR ENLISTED MEN TRAVELING ON DUTY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MAY 18, 1944:

REFERENCE IS MADE TO THE LETTER OF MARCH 30, 1944, (1JAG:II:WJG:Z L20-3) MM), REQUESTING DECISION AS TO THE APPROPRIATION PROPERLY CHARGEABLE WITH THE TRAVEL EXPENSES OF WILLARD W. WADDELL, CHIEF SPECIALIST (R) V-6, WHILE TRAVELING UNDER ORDERS AS A WITNESS.

IT APPEARS FROM THE VOUCHER SUBMITTED AND ACCOMPANYING FILE OF CORRESPONDENCE THAT WADDELL WHILE ATTACHED TO THE UNITED STATES NAVY RECRUITING SUBSTATION AT YUMA, ARIZONA, WAS AUTHORIZED IN ORDERS FROM HIS SUPERIOR OFFICER DATED MARCH 18, 1943, TO COMPLY WITH A SUBPOENA ISSUED BY THE UNITED STATES ATTORNEY AT TUCSON, ARIZONA TO APPEAR BEFORE A FEDERAL GRAND JURY OF THE UNITED STATES DISTRICT COURT AT TUCSON, ARIZONA, ON MARCH 24, 1943, AS A GOVERNMENT WITNESS. THE UNITED STATES MARSHALL FOR THE DISTRICT OF ARIZONA, B. J. MCKINNEY, PAID THE EXPENSES OF THE TRAVEL INVOLVED IN THE AMOUNT OF $20.93 FROM THE APPROPRIATION FEES OF WITNESSES, DEPARTMENT OF JUSTICE, 1943, ON HIS VOUCHER NO. 1250 OF THE APRIL 1943, ACCOUNTS, WHICH AMOUNT LATER WAS REFUNDED BY THE PAYEE AND TAKEN UP AND ACCOUNTED FOR BY THE MARSHAL IN HIS ACCOUNTS FOR NOVEMBER 1943.

THE VOUCHER NOW SUBMITTED BY CHIEF SPECIALIST WADDELL IS IN THE AMOUNT OF $19.56 AND COVERS SUBSISTENCE ITEMS TOTALING $7 AND MILEAGE OF $15.06, LESS AMOUNT OF $2.50 STATED TO HAVE BEEN PAID FOR STATION RATE SUBSISTENCE FOR THE PERIOD INVOLVED. DOUBT AS TO WHETHER CURRENT NAVAL APPROPRIATIONS MAY BE CONSIDERED LEGALLY AVAILABLE FOR PAYMENT THEREOF APPEARS TO HAVE ARISEN, AS INDICATED BY FIRST INDORSEMENT OF FEBRUARY 7, 1944, OF THE JUDGE ADVOCATE GENERAL TO THE CHIEF OF NAVAL PERSONNEL, BY REASON OF DECISION OF JULY 22, 1943, 23 COMP. GEN. 47, WHEREIN IT WAS HELD THAT THE TRAVEL EXPENSES OF AN EMPLOYEE OF THE FOOD AND DRUG ADMINISTRATION, FEDERAL SECURITY AGENCY, CALLED UPON TO TESTIFY AS TO FACTS ASCERTAINED WHILE PERFORMING HIS OFFICIAL DUTIES, AT THE REQUEST OF AND IN CONNECTION WITH COURT PROCEEDINGS INITIATED BY THE OFFICE OF PRICE ADMINISTRATION, WHICH DID NOT DIRECTLY INVOLVE THE FOOD AND DRUG LAWS, WERE NOT PROPERLY CHARGEABLE TO THE APPROPRIATION OF THE EMPLOYING AGENCY. IT WAS STATED IN THE DECISION OF JULY 22, 1943, IN PART, AS FOLLOWS:

* * * WHILE THE LANGUAGE OF THE SAID STATUTE WOULD APPEAR TO BE SOMEWHAT AMBIGUOUS IN THAT IT DOES NOT INDICATE THE EXTENT TO WHICH THE AGENCY MUST BE INTERESTED IN THE LITIGATION SO THAT IT MAY BE REGARDED AS BEING INVOLVED IN THE CASE WITHIN THE TERMS OF THE LAW, IT WOULD SEEM A REASONABLE CONSTRUCTION OF THE PROVISION IN QUESTION THAT THE EMPLOYING AGENCY IS REQUIRED TO PAY FROM ITS APPROPRIATION THE TRAVELING EXPENSES INCURRED BY THE WITNESS ONLY WHERE THE INFORMATION OR FACTS ASCERTAINED BY THE EMPLOYEE AS PART OF HIS OFFICIAL DUTIES FORMS THE BASIS OF THE CASE, OR WHERE THE PROCEEDING IS PREDICATED UPON A LAW THAT THAT AGENCY IS REQUIRED TO ADMINISTER.

THE FACTS OF RECORD IN THE PRESENT CASE SHOW THAT CHIEF SPECIALIST WADDELL WAS RECRUITER IN CHARGE OF THE UNITED STATES NAVY RECRUITING SUBSTATION AT YUMA, ARIZONA, WHEN ON FEBRUARY 13, 1943, THE UNITED STATES ARMY MILITARY POLICE AT YUMA DELIVERED TO HIM THREE MEN, TWO SHOWN AS BELONGING TO THE NAVY AND THE OTHER BELONGING TO THE UNITED STATES COAST GUARD, PRESUMABLY STRAGGLERS OR DESERTERS AT THE TIME AND APPREHENDED WHILE TRAVELING WITHOUT CREDENTIALS IN A STOLEN MOTOR EHICLE; THAT CHIEF SPECIALIST WADDELL ACCEPTED THE MEN AND TURNED THEM OVER TO THE SHERIFF OF YUMA COUNTY, ARIZONA, FOR SAFEKEEPING, WHO INCARCERATED THEM IN THE YUMA COUNTY JAIL WHERE ON THE AFTERNOON OF THE SAME DAY THEY WERE QUESTIONED BY CHIEF SPECIALIST WADDELL AND AN ARMY PROVOST MARSHAL; AND THAT UPON THE CONCLUSION OF THE INVESTIGATION BY THE TWO OFFICERS, TWO OF THE MEN WERE RELEASED TO NAVY AUTHORITIES, ONE TO THE SHORE PATROL, AND ONE TO THE SENIOR SHORE PATROL OFFICE, SAN DIEGO, CALIFORNIA, THE THIRD MAN, ONE DONALD WILLIAM LEE MARIN, AS/R) 632-702, UNITED STATES COAST GUARD, BEING HELD ON A CHARGE OF A PROBABLY VIOLATION OF THE NATIONAL MOTOR VEHICLE THEFT ACT. IN CONNECTION WITH HIS TESTIMONY BEFORE THE GRAND JURY, CHIEF SPECIALIST WADDELL STATES:

* * * ON 23 MARCH 1943, I DID THEN TRAVEL BY PRIVATELY OWNED AUTOMOBILE TO TUCSON, ARIZONA AND THE FOLLOWING MORNING AND EARLY AFTERNOON DID APPEAR BEFORE THE GRAND JURY GIVING MY TESTIMONY WHICH DID CONCERN A PROBABLE VIOLATION OF THE NATIONAL MOTOR VEHICLE THEFT ACT. I HEREBY SUBMIT THAT I DID BECOME COGNIZANT OF THE ABOVE MENTIONED TESTIMONY WHILE ACTING IN MY REGULAR ASSIGNED DUTY AS RECRUITER IN CHARGE, U.S. NAVY, RECRUITING SUBSTATION, YUMA, ARIZONA. THIS STATEMENT SEEMS TO REMOVE ANY DOUBT THAT MIGHT EXIST AS TO THE EMPLOYMENT STATUS OF CHIEF SPECIALIST WADDELL WHEN HE CAME INTO POSSESSION OF THE FACTS TO WHICH HE LATER TESTIFIED, AND MAY BE CONSIDERED AS BRINGING THE CASE WITHIN THE CONDITION UNDER WHICH THE EXPENSES OF TRAVEL ARE HELD TO BE CHARGEABLE TO THE EMPLOYING AGENCY. SEE IN THIS CONNECTION 4 COMP. GEN. 1070, AND DECISIONS CITED THEREIN WHICH CONSIDERED QUESTIONS INVOLVING THE CONSTRUCTION OF SECTION 850, REVISED STATUTES, PRIOR TO ITS AMENDMENT BY THE ACT OF DECEMBER 24, 1942, 56 STAT. 1088. REGARDING THE LANGUAGE OF SECTION 850, REVISED STATUTES, AS AMENDED, IT WAS SAID IN DECISION OF JANUARY 15, 1943, B 30581, TO THE CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION, IN CONNECTION WITH THE TRAVELING EXPENSES OF A WITNESS, A FORMER EMPLOYEE OF THE COMMISSION, WHO WAS THEN ENLISTED IN THE UNITED STATES ARMY, HAT:

SECTION 850 OF THE REVISED STATUTES FORMERLY REFERRED TO "ANY CLERK OR OTHER OFFICER OF THE UNITED STATES," BUT, EVEN THAT MORE RESTRICTIVE LANGUAGE HAS BEEN REGARDED AS INCLUDING MEMBERS OF THE MILITARY FORCES WHO ARE CALLED UPON TO TESTIFY FOR THE UNITED STATES IN A CIVIL (AS DISTINGUISHED FROM A MILITARY) PROCEEDING * * *. MANIFESTLY, SAID SECTION 850 UNDER ITS SLIGHTLY BROADER LANGUAGE AS NOW AMENDED IS APPLICABLE TO PERSONS IN THE MILITARY SERVICE * * *.

* * * THE FORMER RULE THAT ONLY THE ACTUAL EXPENSES FOR SUBSISTENCE WERE ALLOWABLE THEREUNDER HAS BEEN REGARDED AS DISPLACED BY THE SEVERAL STATUTES, APPLICABLE TO THE GOVERNMENT GENERALLY, WHICH SUBSTITUTED A COMMUTATION OR ALLOWANCE IN LIEU OF SUBSISTENCE. (* * * 12 COMP. GEN. 22; DEPARTMENT OF JUSTICE CIRCULAR 2470, SEPTEMBER 27, 1933), WITH THE RESULT THAT WITNESSES UNDER THE FORMER SECTION 850 MAY BE PAID EXACTLY WHAT WOULD HAVE BEEN ALLOWED FOR THEIR OFFICIAL TRAVEL IN THE DEPARTMENT IN WHICH EMPLOYED. * * * SEE ALSO 19 COMP. GEN. 201.

ON THE BASIS OF THE FACTS AND CIRCUMSTANCES SHOWN BY THE PRESENT RECORD, THE CURRENT NAVAL APPROPRIATION " PAY, SUBSISTENCE, AND TRANSPORTATION, NAVY, 1943," MAY BE CONSIDERED LEGALLY AVAILABLE FOR THE PAYMENT OF OTHERWISE PROPER TRAVEL EXPENSES COVERED BY THE VOUCHER SUBMITTED. AS THE CLAIMANT HELD AN ENLISTED RATING IN THE NAVY AT THE TIME THE TRAVEL WAS PERFORMED AND WAS TRAVELING UNDER NAVY ORDERS, THE TRAVEL ALLOWANCES ARE PROPERLY FOR COMPUTATION UNDER THE PROVISION OF EXECUTIVE ORDER NO. 9206, EFFECTIVE JUNE 1, 1942, AND PUBLISHED IN BUREAU OF NAVAL PERSONNEL MANUAL, 1942, ARTICLE D-10103. UNDER TABLE II THEREOF, HAVING DEPARTED FROM YUMA, ARIZONA, AT 11 A.M., MARCH 23, 1943, AND RETURNED THERETO AT 3:30 A.M., MARCH 25, 1943, HE IS ENTITLED TO COMMUTATION FOR SUBSISTENCE AND QUARTERS IN THE AMOUNT OF $6, INSTEAD OF $7 AS CLAIMED ON AN ACTUAL EXPENSE BASIS.

THE VOUCHER, TOGETHER WITH THE FILE OF RELATED CORRESPONDENCE, IS RETURNED HEREWITH.