B-61095, OCTOBER 31, 1946, 26 COMP. GEN. 291

B-61095, OCTOBER 31, 1946, 26 COMP. GEN. 291

DISBURSING OFFICERS AND AGENTS - RELIEF - FOREIGN SERVICE OFFICERS THE PROVISIONS OF SECTION 11 OF THE MISSING PERSONS ACT AUTHORIZING ADMINISTRATIVE OFFICERS FINALLY TO SETTLE THE ACCOUNTS OF PERSONS INVOLVED IN CERTAIN WAR CASUALTY SITUATIONS AFFORD NO BASIS FOR ADMINISTRATIVE RELIEF OF A FOREIGN SERVICE ACCOUNTABLE OFFICER FROM RESPONSIBILITY FOR LOSSES OCCASIONED BY ENEMY ACTION--- SUCH PROVISIONS BEING APPLICABLE TO PAY, ETC., ACCOUNTS OF INDIVIDUALS AND NOT TO DISBURSING OFFICERS' ACCOUNTS; RATHER, THE MATTER OF RELIEF IN SUCH A SITUATION IS ONE FOR PRESENTATION TO THE COURT OF CLAIMS FOR CONSIDERATION (28 U.S.C. 250 (3), 253) OR TO THE CONGRESS FOR SPECIFIC RELIEF BY PRIVATE LEGISLATION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, OCTOBER 31, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 16, 1946 (REFERENCE DF:S:KJW), AS FOLLOWS:

THERE HAS BEEN REFERRED TO ME CERTIFICATE OF SETTLEMENT NO. H-155209 /T) S ISSUED BY THE GENERAL ACCOUNTING OFFICE UNDER DATE OF NOVEMBER 27, 1945 TO COVER THE ACCOUNTS OF LELAND C. ALTAFFER, FOREIGN SERVICE OFFICER, WHICH SHOWS AN AUDITED BALANCE DUE THE UNITED STATES OF $23,283.62, REPRESENTING ACCOUNTING DIFFERENCES IN THE OFFICER'S ACCOUNTS RENDERED WHILE HE WAS STATIONED AT AMOY, CHINA.

ACCORDING TO INFORMATION CONTAINED IN THE OFFICER'S LETTER OF SEPTEMBER 15, 1943, CITED BY THE GENERAL ACCOUNTING OFFICE IN ITS ACCOUNTING DIFFERENCES SHEET ATTACHED TO THE SETTLEMENT UNDER REFERENCE, MR. ALTAFFER WAS INTERNED BY THE JAPANESE ON DECEMBER 8, 1941 AND HIS ACCOUNTS FOR THE MONTHS OF OCTOBER AND NOVEMBER, 1941 WERE LEFT IN THE CONSULATE SAFE AT AMOY AND SUBSEQUENTLY DESTROYED BY THE JAPANESE. THE OFFICER STATED IN THE LETTER THAT THE AMOUNT OF CASH ON HAND AND FEE STAMPS WERE IN THE CONSULATE SAFE; THAT THE COMMANDER OF THE JAPANESE NAVAL FORCES INFORMED HIM THAT ANY AND ALL MONEY FOUND IN THE CONSULATE OR DEPOSITED IN THE AMOY BANKS BELONGING TO THE AMERICAN GOVERNMENT WAS CONFISCATED BY THE JAPANESE ARMED FORCES.

FURTHER, IN A DESPATCH DATED JANUARY 3, 1946, ADDRESSED TO THE SECRETARY OF STATE, MR. ALTAFFER STATES THAT "AS A RESULT OF ENEMY ACTION IN THE WAR, I WAS SEIZED BY THE JAPANESE MARINES AT AMOY AT 4 A.M. ON DECEMBER 8, 1941 AND WAS NEVER ALLOWED ACCESS TO THE FEE STAMPS AND CASH WHICH WERE LOCKED IN THE CONSULATE SAFE THEREAFTER.'

SECTION 11 OF THE ACT OF MARCH 7, 1942, 50 U.S. CODE, SUPPLEMENT V, 1011, PROVIDES AS FOLLOWS:

"THE HEAD OF THE DEPARTMENT CONCERNED, OR SUCH PERSON AS HE MAY DESIGNATE, IS AUTHORIZED TO SETTLE THE ACCOUNTS OF PERSONS FOR WHOSE ACCOUNT PAYMENTS HAVE BEEN MADE PURSUANT TO THE PROVISIONS OF SECTIONS 2 TO 7, BOTH INCLUSIVE, OF THIS ACT (SECTIONS 1002-1007 OF THIS APPENDIX), AND THE ACCOUNTS OF SURVIVORS OF CASUALTIES TO SHIPS, STATIONS AND MILITARY RECORDS, AND SUCH SETTLEMENT SHALL BE CONCLUSIVE UPON THE ACCOUNTING OFFICERS OF THE GOVERNMENT IN EFFECTING SETTLEMENTS OF THE ACCOUNTS OF DISBURSING OFFICERS.'

PURSUANT TO THE AUTHORITY VESTED IN ME BY THE ABOVE-QUOTED SECTION 11 OF THE ACT OF MARCH 7, 1942, I HAVE DETERMINED THAT THE LOSS OF THE DISBURSING RECORDS OF LELAND ALTAFFER OCCURRED WITHOUT FAULT OF NEGLIGENCE ON HIS PART, AND THAT CREDIT IN THE AMOUNT OF $23,283.62, REPRESENTING THE ACCOUNTING DIFFERENCES IN QUESTION, IS PROPER FOR ALLOWANCE IN THE SETTLEMENT OF THIS OFFICER'S ACCOUNTS.

IT IS APPARENT THAT YOU ARE OF THE VIEW THAT SECTION 11 OF THE ACT OF MARCH 7, 1942, 56 STAT. 146, QUOTED IN YOUR LETTER, VESTS IN THE SECRETARY OF STATE THE SAME OR SIMILAR AUTHORITY WITH RESPECT TO THE RELIEF OF DISBURSING OFFICERS OF THE DEPARTMENT OF STATE AS IS CONFERRED UPON THE SECRETARY OF THE NAVY BY THE ACT OF JULY 11, 1919, 41 STAT. 132 (31 U.S.C. 105), AND UPON THE SECRETARY OF WAR BY THE ACT OF DECEMBER 13, 1944, 58 STAT. 800. THE LATTER TWO ACTS PROVIDE FOR RELIEF OF DISBURSING OFFICERS OF THE SERVICES INVOLVED FROM RESPONSIBILITY ON ACCOUNT OF LOSS OR DEFICIENCY WHILE IN THE LINE OF DUTY OF GOVERNMENT FUNDS, VOUCHERS, RECORDS OR PAPERS IN THEIR CHARGE WHEN THE RESPECTIVE SECRETARIES SHALL HAVE DETERMINED THAT THE PARTICULAR DISBURSING OFFICER INVOLVED WAS IN THE LINE OF DUTY AND THE LOSS OR DEFICIENCY OCCURRED WITHOUT FAULT OR NEGLIGENCE ON HIS PART. HOWEVER, SECTION 11 OF THE ACT OF MARCH 7, 1942, DOES NOT SPELL OUT THE RELIEF CONTENDED FOR BY YOU. AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THAT SECTION DISCLOSES THAT THE ACCOUNTS REFERRED TO THEREIN ARE THE ACCOUNTS OF INDIVIDUALS EMBRACED BY SECTIONS 2 TO 7 OF THE ACT, 56 STAT. 144, 145. IN THIS CONNECTION THERE ARE FOR NOTING EXCERPTS FROM THE HEARINGS BEFORE THE SENATE COMMITTEE ON NAVAL AFFAIRS ON H.R. 6466, 77TH CONGRESS, WHICH BECAME THE ACT OF MARCH 7, 1942, AS FOLLOWS:

MR. CASSIDY. AS I EXPLAINED YESTERDAY, SENATOR, THAT IS NO HELP AT ALL. IT IS A RESTATEMENT, IN THE LANGUAGE OF A LAW THAT NOW EXISTS ON THE STATUTE BOOKS ENACTED JULY 11, 1919, AND THAT HAS TO DO WITH THE RELIEF OF THE DISBURSING OFFICER, BUT NOW WE ARE TALKING ABOUT THE INDIVIDUAL MAN'S ACCOUNT, WHERE WE HAVE RECONSTRUCTED HIS ACCOUNT WHILE HE IS CAPTURED AT CORREGIDOR, AND WE ARE TALKING ABOUT THE INDIVIDUAL MAN'S ACCOUNT AND NOT THE DISBURSING OFFICER'S ACCOUNT, SIR. ( PAGE 45.)

COLONEL WALSH. WE HAVE CONSIDERED THE SITUATION WOULD BE SUCH AS WOULD REQUIRE A DEFINITE DETERMINATION TO BE MADE UPON THE FACTS AS THEY ARE AVAILABLE TO THE HEAD OF THE DEPARTMENT, SO THAT THE PURPOSES OF THE BILL CAN BE APPLIED. AS MR. CASSIDY JUST POINTED OUT, I THINK THE GOVERNING FACTOR IS THAT WE ARE DISCUSSING THE PAY OF THE INDIVIDUAL SOLDIER, THE INDIVIDUAL SAILOR, OR THE INDIVIDUAL OFFICER, THE PAY THAT IS MADE TO HIS DEPENDENTS. IT IS THE PURPOSE OF THIS BILL TO PROTECT THE DEPENDENT RATHER THAN TO PROTECT THE ACCOUNTS OF THE DISBURSING OFFICER, THROUGH WHOM THEY PASS. ( PAGE 45.)

SENATOR BYRD. DID NOT THE GENERAL ACCOUNTING OFFICE, THIS GENTLEMAN, SAY HE WOULD ACCEPT THE CERTIFICATION OF THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY WHEN THE ACCOUNTS ARE LOST?

MR. CASSIDY. HE SAID THAT AS FAR AS THE DISBURSING OFFICER IS CONCERNED, AND THERE IS A LAW TODAY, THE ACT OF JULY 11, 1919, THAT REQUIRES THE GENERAL ACCOUNTING OFFICE TO DO THAT VERY THING, BUT WE ARE NOT TALKING ABOUT THE DISBURSING OFFICER'S ACCOUNTS, WE ARE TALKING ABOUT THE RECONSTRUCTED ACCOUNT OF THE INDIVIDUAL, THE MAN'S ACCOUNT THAT WE MUST SET UP TODAY TO PAY. ( PAGE 50.)

THEN ON PAGE 57, AFTER QUOTATION OF THE PROVISIONS OF THE ACT OF JULY 11, 1919, THE FOLLOWING APPEARS:

THAT IS PERMANENT LEGISLATION, SIR, AND THEY HAVE OFFERED THAT SAME LANGUAGE, THAT SAME LANGUAGE, DIFFERENTLY PHRASED, AS A SUBSTITUTE FOR SECTION 11 OF THE BILL. THAT IS NOT THE LEGISLATION WE SEEK.

THUS THE DISTINCTION BETWEEN SETTLING THE ACCOUNTS OF DISBURSING OFFICERS AND SETTLING THE ACCOUNTS OF THE INDIVIDUALS COVERED BY SECTIONS 2 TO 7 OF THE STATUTE WAS CLEARLY DRAWN AND IT SPECIFICALLY WAS BROUGHT OUT THAT THE SETTLEMENTS CONTEMPLATED BY SECTION 11 OF THE STATUTE RELATE TO SETTLEMENTS OF THE LATTER CLASS. FURTHERMORE, IF THE EFFECT OF SECTION 11 IS SUCH AS CONTENDED BY YOU THERE WOULD HAVE BEEN NO NEED FOR THE SUBSEQUENT ENACTMENT OF THE ACT OF DECEMBER 13, 1944, PROVIDING FOR RELIEF OF DISBURSING OFFICERS OF THE ARMY ON ACCOUNT OF LOSS OF FUNDS, RECORDS, ETC. UNDER THE CIRCUMSTANCES IT APPEARS TO BE CLEAR THAT SECTION 11 OF THE ACT OF MARCH 7, 1942, DOES NOT AFFORD RELIEF FROM RESPONSIBILITY ON ACCOUNT OF LOSSES SUFFERED BY DISBURSING OFFICERS OF THE DEPARTMENT OF STATE, AND THAT THE MATTER OF RELIEF IN A CASE SUCH AS HERE INVOLVED IS ONE FOR PRESENTATION TO THE COURT OF CLAIMS FOR CONSIDERATION UNDER SECTIONS 250 (3) AND 253, TITLE 28, U.S.C. OR TO THE CONGRESS FOR SPECIFIC RELIEF BY MEANS OF A PRIVATE ACT.