B-208639 L/M, OCT 5, 1982, OFFICE OF GENERAL COUNSEL

B-208639 L/M, OCT 5, 1982, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

KEVIN D. ROONEY, DEPARTMENT OF JUSTICE:

THIS RESPONDS TO YOUR REQUEST, DATED AUGUST 4, 1982, FOR RELIEF OF DRUG ENFORCEMENT ADMINISTRATION (DEA) SPECIAL AGENT/PILOT CHARLES L. MARTINEZ FROM LIABILITY FOR THE LOSS OF $802.80 IN OFFICIAL FUNDS, STOLEN FROM AGENT MARTINEZ DURING HIS KIDNAPPING AND ATTEMPTED ASSASSINATION IN SOUTH AMERICA. FOR THE REASONS HEREIN INDICATED, WE ARE UNABLE TO GRANT THE REQUESTED RELIEF.

YOUR SUBMISSION STATES THAT ON FEBRUARY 1, 1982, SPECIAL AGENT MARTINEZ DEPARTED MIAMI, FLORIDA, FOR COLOMBIA, SOUTH AMERICA, ON TEMPORARY DUTY. HE WAS GIVEN A SMALL AIRCRAFT AND AN ADVANCE OF $3,300 AND DIRECTED TO INITIATE AIR OPERATIONS IN CARTAGENA, COLOMBIA, IN SUPPORT OF DEA MARIJUANA ENFORCEMENT EFFORTS. THE PURPOSE OF THE ADVANCE WAS TO COVER HIS OPERATIONAL EXPENSES (AIRCRAFT FUEL, OIL, MAINTENANCE, ETC.) AND HIS PERSONAL SUBSISTENCE EXPENSES.

DURING THE EARLY MORNING OF FEBRUARY 10, 1982, AGENT MARTINEZ AND HIS PARTNER, SPECIAL AGENT KELLEY D. MCCULLOUGH, WERE AWAKENED BY A LOUD KNOCK ON THE DOOR OF THEIR ROOM AT THE HOTEL DON BLAS IN CARTAGENA, COLOMBIA. THEY CONFRONTED SEVERAL MEN; ONE OF WHOM CLAIMED TO BE A POLICEMAN AND SHOWED AGENT MARTINEZ A COLOMBIAN POLICE IDENTIFICATION CARD. AFTER QUESTIONING AGENTS MARTINEZ AND MCCULLOUGH AT GUNPOINT, THESE MEN SEARCHED THE HOTEL ROOM AND TOOK THE WALLET OF AGENT MARTINEZ. AT THIS POINT, THE MEN TOLD THE AGENTS THEY WISHED TO PURSUE FURTHER QUESTIONING AT THE POLICE STATION. AGENTS MARTINEZ AND MCCULLOUGH WERE DRIVEN TO A DESOLATE AREA, WHERE THEY WERE SHOT AND LEFT FOR DEAD. FORTUNATELY, BOTH SURVIVED AND WERE SUBSEQUENTLY RESCUED.

YOUR LETTER REQUESTS RELIEF FOR AGENT MARTINEZ UNDER 31 U.S.C. SEC. 3527(A) (FORMERLY SEC. 82A-1). THAT STATUTE AUTHORIZES THIS OFFICE TO GRANT RELIEF TO ACCOUNTABLE OFFICERS, UNDER SPECIFIED CIRCUMSTANCES, FOR LOST OR STOLEN GOVERNMENT FUNDS FOR WHICH THEY WERE RESPONSIBLE. HOWEVER, IN THIS INSTANCE, AGENT MARTINEZ IS NOT CONSIDERED AN ACCOUNTABLE OFFICER BECAUSE THE MONEYS HE POSSESSED WERE NOT GOVERNMENT FUNDS. THE APPLICATION (FORM 1038) FOR AN ADVANCE IS STAMPED "EMERGENCY TRAVEL ADVANCE" AND WAS SIGNED BY AGENT MARTINEZ AND AN APPROVING OFFICIAL. FURTHER, AGENT MARTINEZ SUBMITTED TRAVEL VOUCHERS (FORM 1021) WHICH OUTLINE HIS EXPENSES. THE RECORD IS CLEAR AND UNAMBIGUOUS THAT THE MONEY GIVEN TO AGENT MARTINEZ WAS A TRAVEL ADVANCE.

THIS OFFICE HAS CONSISTENTLY HELD TRAVEL ADVANCES TO BE IN THE NATURE OF LOANS TO EMPLOYEES AND NOT GOVERNMENT FUNDS. SEE, E.G., B-206245, APRIL 26, 1982; 54 COMP.GEN. 190 (1974). THUS, THE FUNDS THAT WERE STOLEN FROM AGENT MARTINEZ WERE HIS OWN AND NOT THOSE OF THE GOVERNMENT. FOR THAT REASON, WE HAVE NO BASIS UPON WHICH TO EXCUSE AGENT MARTINEZ OF HIS DEBT TO THE GOVERNMENT FOR THE UNEXPENDED AMOUNT OF THE ADVANCE.

TRAVEL ADVANCES ARE GOVERNED BY 5 U.S.C. SEC. 5705 (1976), WHICH PROVIDES THAT A SUM ADVANCED AND NOT USED FOR ALLOWABLE EXPENSES MUST BE RECOVERED FROM THE EMPLOYEE. THE STATUTE CONTAINS NO PROVISION FOR RELIEVING AN EMPLOYEE IF THE MONEY ADVANCED IS LOST OR STOLEN.

THE MILITARY AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964, 31 U.S.C. SEC. 240-243 (1976), PROVIDES FOR REIMBURSEMENT FOR PERSONAL PROPERTY, INCLUDING CASH, LOST OR STOLEN WHEN SUCH LOSS IS INCIDENT TO AN EMPLOYEE'S SERVICE, AND IS OTHERWISE DETERMINED TO BE ALLOWABLE BY THE EMPLOYING AGENCY. YOUR AGENCY MIGHT WISH TO CONSIDER A CLAIM BY MR. MARTINEZ UNDER THAT AUTHORITY FOR THE AMOUNT OF THE STOLEN TRAVEL ADVANCE.