B-155161, APR. 6, 1965

B-155161, APR. 6, 1965

TO SPECIALIST/5 ROBERT W. HOLMAN, RA 16 225 213:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 30, 1965, RETURNING A COPY OF OUR DECISION OF JANUARY 21, 1965, B-155161, TO YOU, AND IN EFFECT REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR REIMBURSEMENT OF THE EXPENSES INCURRED IN CONNECTION WITH THE TRAVEL OF YOUR DEPENDENTS FROM SAN RAFAEL, CALIFORNIA, AND TEMPLE, TEXAS, TO SPRING LAKE, NORTH CAROLINA, INCIDENT TO PERMANENT CHANGE-OF-STATION ORDERS DATED MARCH 12, 1962.

IN OUR DECISION OF JANUARY 21, 1965, WE SUSTAINED THE SETTLEMENT DATED AUGUST 4, 1964, WHICH DISALLOWED YOUR RECLAIM PRESENTED TO THE LOCAL ARMY FINANCE OFFICE ON MAY 4, 1964, ON THE GROUND THAT SUCH RECLAIM WAS OF DOUBTFUL VALIDITY INASMUCH AS YOU HAD STATED ON THE RECLAIM VOUCHER THAT AT THE TIME OF THE RECEIPT OF THE CHANGE-OF STATION ORDERS YOUR WIFE AND 3 OF YOUR DEPENDENT CHILDREN WERE LOCATED AT TEMPLE, TEXAS, AND THAT YOUR OTHER 2 DEPENDENT CHILDREN WERE LOCATED AT STINSON BEACH, CALIFORNIA (ABOUT 10 MILES SOUTHWEST OF SAN RAFAEL, CALIFORNIA), WHEREAS IN YOUR ORIGINAL CLAIM YOU STATED THAT YOUR WIFE AND DEPENDENT CHILDREN WERE LOCATED AT SAN RAFAEL. ALSO, WE SAID IN THAT DECISION THAT THE FACT THAT YOU WERE ACQUITTED IN A COURT MARTIAL PROCEEDING ON THE CHARGE OF HAVING SUBMITTED A FALSE CLAIM DID NOT BY ITSELF JUSTIFY THE PAYMENT OF AN OTHERWISE QUESTIONABLE CLAIM AND WE CITED DECISIONS OF THE UNITED STATES SUPREME COURT IN SUPPORT OF THAT PREMISE. ADDITIONALLY, IT WAS POINTED OUT THAT IT HAS BEEN THE PRACTICE OF THIS OFFICE IN CASES INVOLVING CLAIMS OF DOUBTFUL VALIDITY TO DENY PAYMENT AND LEAVE THE CLAIMANT TO HIS REMEDY IN THE COURTS.

YOU STATE IN YOUR LETTER OF JANUARY 30, 1965, THAT YOUR WIFE AND CHILDREN RESIDED WITH YOU IN SAN RAFAEL FROM JUNE 1961 UNTIL ABOUT JANUARY 6, 1962, WHEN YOUR WIFE, HAVING KNOWLEDGE THAT YOU WOULD GO TO FORT BRAGG,"WENT TO VISIT AT HOME (TEMPLE, TEXAS)" ALONG WITH 3 OF YOUR CHILDREN WITH THE INTENTION TO REMAIN THERE UNTIL YOU RECEIVED YOUR ORDERS TO PROCEED TO FORT BRAGG. ON JANUARY 10, 1962, YOU SAY YOU SUBMITTED A "DA FORM 1049" REQUESTING REASSIGNMENT TO FORT BRAGG, NORTH CAROLINA. IT IS ALSO STATED IN YOUR LETTER THAT YOU AND THE 2 REMAINING CHILDREN MOVED TO A SMALLER HOUSE AT STINSON BEACH AND THAT WHEN YOU RECEIVED YOUR ORDERS ON MARCH 12, 1962, YOU WENT TO TEMPLE TO PICK UP YOUR WIFE AND 3 CHILDREN WHILE EN ROUTE TO SPRING LAKE, NORTH CAROLINA. ACCORDINGLY, YOU MAINTAIN THAT YOU ARE ENTITLED TO REIMBURSEMENT OF THE TRANSPORTATION EXPENSES CLAIMED BECAUSE YOUR WIFE AND 3 DEPENDENT CHILDREN ACTUALLY TRAVELED FROM SAN RAFAEL TO SPRING LAKE, STOPPING EN ROUTE AT TEMPLE FOR A VISIT, AND YOU PAID FOR THEIR TRANSPORTATION FROM SAN RAFAEL.

THE REGULATIONS, PROMULGATED PURSUANT TO THE PERTINENT STATUTE (37 U.S.C. 406), WHICH GOVERN YOUR CASE ARE EMBODIED IN PARAGRAPH 7000-9 OF THE JOINT TRAVEL REGULATIONS. THOSE REGULATIONS PROVIDE THAT MEMBERS ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON A PERMANENT CHANGE OF STATION EXCEPT WHEN THE DEPENDENTS DEPART FROM THE OLD STATION PRIOR TO THE ISSUANCE OF ORDERS AND THE VOUCHER IS NOT SUPPORTED BY A CERTIFICATE OF THE COMMANDING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, OF THE HEADQUARTERS ISSUING THE ORDERS THAT THE MEMBER WAS ADVISED PRIOR TO THE ISSUANCE OF PERMANENT CHANGE-OF-STATION ORDERS THAT SUCH ORDERS WOULD BE ISSUED. UNDER THOSE REGULATIONS, PAYMENT MAY BE MADE TO A MEMBER ONLY IN SUCH CASES WHERE IT IS SHOWN THAT HE HAD DEFINITE KNOWLEDGE OF AN IMPENDING PERMANENT CHANGE OF STATION AND HAD MOVED HIS DEPENDENTS IN ANTICIPATION OF THE RECEIPT OF THE ORDERS DIRECTING THE CHANGE OF STATION. MERE GENERAL INFORMATION AS TO AN EVENTUAL CHANGE OF DUTY STATION IS NOT SUFFICIENT TO MEET THE REQUIREMENTS OF THE REGULATION. COMP. GEN. 241.

IT APPEARS THAT ON JANUARY 10, 1962, WHEN YOU SUBMITTED THE DA FORM 1049 REQUESTING YOUR REASSIGNMENT TO A NEW DUTY STATION YOU HAD NO KNOWLEDGE OR ASSURANCE THAT YOUR DUTY STATION WOULD BE CHANGED SINCE THAT REQUEST REQUIRED ADMINISTRATIVE ACTION, THAT IS, EITHER AN ADMINISTRATIVE APPROVAL OR DISAPPROVAL. SUCH ASSURANCE COULD COME ONLY AFTER THE DATE THE FORM WAS ADMINISTRATIVELY APPROVED AND YOU WERE POSITIVELY INFORMED OR OTHERWISE PLACED ON NOTICE THAT CHANGE-OF STATION ORDERS WOULD ISSUE IN DUE COURSE. IN VIEW THEREOF AND SINCE YOUR WIFE AND 3 OF YOUR CHILDREN HAD DEPARTED FOR TEMPLE PRIOR TO THE DATE YOU SUBMITTED THE REQUEST FOR REASSIGNMENT, IT CANNOT BE SAID ON THE RECORD BEFORE US THAT YOU HAD DEFINITE KNOWLEDGE OF AN IMPENDING CHANGE OF STATION AT THE TIME OF THEIR DEPARTURE.

INASMUCH AS YOUR WIFE AND THE 3 CHILDREN WHO DEPARTED FOR TEMPLE HAD RESIDED WITH YOU AT SAN RAFAEL PRIOR TO THEIR DEPARTURE, YOU INDICATE THAT NO MISREPRESENTATIONS WERE MADE ON YOUR REIMBURSEMENT VOUCHER WHEN YOU CERTIFIED THAT THEY HAD TRAVELED FROM SAN RAFAEL TO SPRING LAKE, NORTH CAROLINA. ON THAT VOUCHER, IT IS SHOWN THAT ON THE DATE OF RECEIPT OF YOUR ORDERS OF MARCH 12, 1962, YOUR WIFE AND 3 OF YOUR CHILDREN (DEBBIE, ROBERT WILLIAM II, AND JOSEPH LERAY) WERE RESIDING AT 914 MICHIGAN STREET, SAN RAFAEL, CALIFORNIA; THAT THEY DEPARTED THEREFROM ON MARCH 14, 1962, AND THAT THEY ARRIVED AT SPRING LAKE ON APRIL 26, 1962. YOU NOW SAY THAT YOUR WIFE AND 3 OF YOUR CHILDREN (INCLUDING DEBBIE AND ROBERT WILLIAM II) DEPARTED FROM SAN RAFAEL ON ABOUT JANUARY 6, 1962, AND THAT AFTER RECEIVING YOUR ORDERS YOU WENT TO TEMPLE TO PICK THEM UP EN ROUTE TO YOUR NEW STATION. THUS, IT IS EVIDENT THAT THESE DEPENDENTS DID NOT TRAVEL FROM SAN RAFAEL TO SPRING LAKE DURING THE PERIOD SHOWN ON THE VOUCHER AND THE PAYMENT FOR THEIR TRAVEL FROM SAN RAFAEL WAS MADE ON THE BASIS OF SUCH MISREPRESENTATIONS. WHILE YOU NOW CLAIM REIMBURSEMENT FOR THE TRAVEL OF THESE DEPENDENTS FROM TEMPLE, IT IS OUR OPINION THAT, IN VIEW OF THE PRIOR ERRONEOUS PAYMENT MADE ON THE MISSTATEMENT OF FACTS, THE MATTER ADMITS OF SUCH DOUBT THAT WE MUST LEAVE IT TO THE COURT OF CLAIMS FOR RESOLUTION, WHICH COURT HAS BEEN SPECIFICALLY AUTHORIZED BY CONGRESS TO FIND A CLAIM FRAUDULENT AND RENDER JUDGMENT OF FORFEITURE. SEE 41 COMP. GEN. 285. ACCORDINGLY, OUR DECISION OF JANUARY 21, 1965, TO YOU IS AFFIRMED.

REGARDING YOUR STATEMENT THAT YOU REFUNDED $595.05 RATHER THAN $498.15 AS INDICATED IN OUR DECISION OF JANUARY 21, 1965, YOU ARE ADVISED THAT THE ORIGINAL CLAIM VOUCHER REFLECTS A PAYMENT OF $595.05 ($498.15 AS REIMBURSEMENT FOR DEPENDENTS' TRAVEL AND $96.90 AS DISLOCATION ALLOWANCE), BUT THE AUDIT EXCEPTION WAS STATED ONLY FOR $498.15, THE DISLOCATION ALLOWANCE PAYMENT NOT BEING QUESTIONED. ALSO, IT WAS REPORTED BY THE LOCAL FINANCE AND ACCOUNTING OFFICE THAT THE AMOUNT OF $498.15 WAS COLLECTED FROM YOU. IF, AS ASSERTED, THE AMOUNT OF $595.05 WAS COLLECTED FROM YOU, WE WILL CONSIDER THIS ASPECT OF YOUR CLAIM UPON RECEIPT OF EVIDENCE ESTABLISHING THE FACT THAT SUCH AMOUNT WAS COLLECTED FROM YOU.