B-138343, NOV. 3, 1960

B-138343, NOV. 3, 1960

MR. KARL H. STELLO:

YOUR LETTER OF SEPTEMBER 19, 1960, REQUESTS RECONSIDERATION OF OUR CLAIMS DIVISION SETTLEMENT OF JULY 28, 1960, WHICH DISALLOWED YOUR CLAIM FOR BACK PAY FOR THE PERIOD JUNE 4, 1958, TO JUNE 30, 1959, AT THE RATE OF $6,885 PER ANNUM, PLUS A $395 PAY RAISE ALLEGEDLY DUE IN 1958, WITH SIX PERCENT INTEREST, WHILE SEPARATED FROM THE DEPARTMENT OF THE NAVY, ENGINEERING DIVISION, ARLINGTON COUNTY, VIRGINIA.

YOUR CLAIM WAS DISALLOWED ON THE GROUNDS THAT IT LONG HAS BEEN THE RULE OF THE GOVERNMENT ACCOUNTING OFFICERS TO REJECT OR DISALLOW ALL CLAIMS OR ACCOUNTS CONCERNING WHICH THEY HAVE REASONABLE CAUSE TO SUSPECT IRREGULARITY, THUS RESERVING THE MATTER FOR SCRUTINY IN THE COURTS WHERE THE FACTS MAY BE JUDICIALLY DETERMINED UNDER SWORN TESTIMONY AND COMPETENT EVIDENCE AND A FORFEITURE DECLARED OR OTHER APPROPRIATE ACTION TAKEN.

THE RECORD SHOWS THAT YOU WERE REMOVED FROM YOUR POSITION WITH THE DEPARTMENT OF THE NAVY ON JUNE 3, 1958. AS THE RESULT OF AN APPEAL FILED BY YOU YOU WERE RESTORED TO DUTY ON JULY 13, 1959, RETROACTIVELY, ON THE RECOMMENDATION OF THE CIVIL SERVICE COMMISSION. YOU WERE AGAIN REMOVED ON OCTOBER 23, 1959.

IN SEVERAL AFFIDAVITS YOU FAILED TO REPORT ANY OUTSIDE EARNINGS DURING THE PERIOD OF SEPARATION FROM THE DEPARTMENT OF THE NAVY AND IN ONE YOU EXPRESSLY DENIED RECEIPT OF ANY NET INCOME BECAUSE YOU WERE UNABLE TO OBTAIN EMPLOYMENT IN A GOVERNMENT AGENCY OR WITH PRIVATE BUSINESS. AFTER BEING ADVISED BY THE DEPARTMENT OF THE NAVY OF ITS KNOWLEDGE OF YOUR EARNINGS FROM EMPLOYMENT WITH THE AMERICAN RESEARCH AND MANUFACTURING CORPORATION, ROCKVILLE, MARYLAND, DURING THE PERIOD MAY 16 THROUGH NOVEMBER 21, 1958, YOU AVERRED IN A LATER AFFIDAVIT DATED OCTOBER 9, 1959, THAT YOUR EARNINGS FROM WAGES AMOUNTED TO $3,137.50. IN A MEMORANDUM DATED OCTOBER 19, 1959, TO THE SUPERVISING INSPECTOR OF NAVAL MATERIAL, YOU SAID THESE EARNINGS AMOUNTED TO $3,387.50. THE PRECISE AMOUNT OF EARNINGS THAT WOULD BE INVOLVED IN ANY ADJUSTMENT BY THE GOVERNMENT WOULD BE THAT COVERING THE PERIOD JUNE 4 THROUGH NOVEMBER 21, 1958, FOR THIS EMPLOYMENT.

FURTHER, ON JUNE 3, 1958, YOU PRESENTED TO YOUR SUPERIOR AT THE OFFICE OF THE INSPECTOR OF NAVAL MATERIAL A CLAIM FOR 88 HOURS OF SICK LEAVE TO COVER THE PERIOD MAY 19, 1958, TO JUNE 3, 1958. THE RECORD SHOWS THAT DURING THIS PERIOD YOU WERE EMPLOYED BY AND WORKING FOR THE AMERICAN RESEARCH AND MANUFACTURING CORPORATION OF ROCKVILLE, MARYLAND. FURTHERMORE BY AFFIDAVIT, ATTESTED TO BY A NOTARY PUBLIC AT ROCKVILLE, MARYLAND, ON SEPTEMBER 3, 1959, YOU REQUESTED THAT ANNUAL LEAVE USED FOR THE PERIOD MAY 19, 1958, TO JUNE 3, 1958, BE CONVERTED TO SICK LEAVE. THUS AGAIN, AND IN THIS INSTANCE UNDER OATH, YOU REQUESTED SICK LEAVE FOR THE PERIOD MAY 19, 1958, TO JUNE 3, 1958, DURING WHICH PERIOD YOU WERE EMPLOYED BY AND WORKING FOR THE AMERICAN RESEARCH AND MANUFACTURING CORPORATION.

ALSO, OUR RECORD SHOWS THAT YOU PRESENTED TO THE OFFICE OF THE INSPECTOR OF NAVAL MATERIAL, BALTIMORE, A CERTIFICATE FROM DR. GUY M. REESER, JR. OF ST. MICHAELS, MARYLAND, SHOWING THAT YOU HAD BEEN UNDER HIS CARE AND PRESUMABLY INCAPACITATED FROM PERFORMING DUTY FROM AUGUST 26, 1959, TO SEPTEMBER 11, 1959. THESE DATES WERE ENTERED ON THIS CERTIFICATE BY SOMEONE OTHER THAN DR. REESER. DR. REESER HAS ADVISED THE OFFICE OF THE INSPECTOR OF NAVAL MATERIAL, BALTIMORE, THAT YOU WERE FIRST SEEN BY HIM ON SEPTEMBER 5, 1959, AND HE HAD NO PERSONAL KNOWLEDGE OF YOUR BEHAVIOR AND WHEREABOUTS BEFORE THAT DATE.

YOU CLAIM, AS AN OFFSET AGAINST DEDUCTION OF NET EARNINGS DURING THE PERIOD OF YOUR SEPARATION, CERTAIN LOSSES, THE DETAIL OF WHICH DOES NOT APPEAR IN OUR RECORDS BUT WHICH LOSSES REPORTEDLY WERE INCURRED IN A FARMING VENTURE. THE FARMING LOSSES VARIOUSLY ARE AVERRED IN AFFIDAVITS TO BE $5,348.83 AND OVER $5,000. IN A PURPORTED COPY OF AN INCOME TAX RETURN FURNISHED AT OUR REQUEST WHICH YOU INDICATE COVERS THE PERIOD JANUARY 1, 1958, TO DECEMBER 31, 1959 (A TWO-YEAR PERIOD), A LOSS FROM FARMING IS SHOWN AS $4,427.50. WHILE YOU SAY THAT YOU ACQUIRED THE FARM IN 1955, YOU DO NOT ESTABLISH BY ACCEPTABLE EVIDENCE WHEN YOU FIRST OPERATED IT, DIRECTLY OR INDIRECTLY, AS A SOURCE OF INCOME. NEITHER, DO YOU ESTABLISH WHAT PART, IF ANY, OF THE CLAIMED LOSS OCCURRED DURING THE PERIOD OF YOUR SEPARATION FROM THE GOVERNMENT SERVICE.

WHEN THE EVIDENCE SUBMITTED BY A CLAIMANT IS SO CONTRADICTORY OR CONFLICTING THAT THE TRUE FACTS MAY NOT BE ASCERTAINED, IT LONG HAS BEEN THE RULE THAT GOVERNMENT ACCOUNTING OFFICERS SHALL REJECT OR DISALLOW ALL CLAIMS OR ACCOUNTS CONCERNING WHICH THEY HAVE REASONABLE CAUSE TO SUSPECT IRREGULARITY THUS RESERVING THE MATTER FOR SCRUTINY IN THE COURTS WHERE THE FACTS MAY BE JUDICIALLY DETERMINED UNDER SWORN TESTIMONY AND COMPETENT EVIDENCE, AND APPROPRIATE ACTION TAKEN. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288, 291.

THEREFORE, OUR SETTLEMENT OF JULY 28, 1960, DISALLOWING YOUR CLAIM IS SUSTAINED.