B-134171, JULY 23, 1958, 38 COMP. GEN. 56

B-134171, JULY 23, 1958, 38 COMP. GEN. 56

CLAIMS - AIDING OR ASSISTING IN PROSECUTION - CRIMINAL LAW VIOLATION - NOTIFICATION OF ENTITLEMENT - CIVILIAN EMPLOYEES ON MILITARY LEAVE WHETHER ACTION BY ADMINISTRATIVE AGENCIES TO NOTIFY FORMER EMPLOYEES WHO ENTERED THE MILITARY SERVICE AS MEMBERS OF RESERVE COMPONENTS OF THEIR ENTITLEMENT TO PAYMENT FOR MILITARY LEAVE IN ACCORDANCE WITH DECISION OF THE COMPTROLLER GENERAL OF MARCH 19, 1958, 37 COMP. GEN. 608, WOULD CONSTITUTE A VIOLATION OF 18 U.S.C. 283, WHICH PRESCRIBES CRIMINAL PENALTIES FOR GOVERNMENT OFFICERS AND EMPLOYEES WHO AID OR ASSIST IN THE PROSECUTION OF CLAIMS AGAINST THE UNITED STATES, IS A MATTER FOR THE DEPARTMENT OF JUSTICE AND THE COURTS AND NOT FOR THE GENERAL ACCOUNTING OFFICE. ADMINISTRATIVE ACTION TO NOTIFY FORMER EMPLOYEES WHO ENTERED THE MILITARY SERVICE AS MEMBERS OF RESERVE COMPONENTS OF THEIR ENTITLEMENT TO PAYMENT FOR MILITARY LEAVE IN ACCORDANCE WITH DECISION OF THE COMPTROLLER GENERAL OF MARCH 19, 1958, 37 COMP. GEN. 608, IS NOT OBJECTIONABLE; HOWEVER, LEAVE PAYMENTS MAY ONLY BE MADE ON THE BASIS OF WRITTEN INSTRUCTIONS OR REQUESTS SUBMITTED BY THE INDIVIDUALS CONCERNED.

TO THE SECRETARY OF COMMERCE, JULY 23, 1958:

ON JUNE 11, 1958, THE ASSISTANT SECRETARY REQUESTED OUR DECISION CONCERNING THE APPLICATION OF THE PROVISIONS OF 18 U.S.C. 283, TO CERTAIN PROPOSALS TO ADVISE FORMER EMPLOYEES WHO ENTERED MILITARY SERVICE AS A MEMBER OF A RESERVE COMPONENT RELATIVE TO RETROACTIVE PAYMENT FOR MILITARY LEAVE, BASED ON OUR DECISION OF MARCH 19, 1958 (B 134171, 37 COMP. GEN. 608).

SPECIFICALLY, THE ASSISTANT SECRETARY REFERS TO FORMER EMPLOYEES WHO RESIGNED FROM THEIR CIVILIAN POSITIONS AFTER RETURN FROM MILITARY DUTY OR WHO INDICATED, AFTER BEING SEPARATED FROM MILITARY DUTY, THAT THEY DID NOT DESIRE TO RETURN TO CIVILIAN EMPLOYMENT. HE ASKS WHETHER WE COULD CONSIDER THE FOLLOWING ACTIONS AS ACTIONS WHICH MAY BE TAKEN IN THE NORMAL COURSE OF OFFICIAL DUTIES OF OFFICERS AND EMPLOYEES OF THE DEPARTMENT WITHOUT CONTRAVENING 18 U.S.C. 283, WHICH PRESCRIBES CRIMINAL PENALTIES FOR OFFICERS AND EMPLOYEES WHO AID OR ASSIST IN THE PROSECUTION OF CLAIMS AGAINST THE UNITED STATES.

1. A NOTICE TO THE INDIVIDUAL OF THE RULING IN YOUR DECISION OF MARCH 19, 1958, WITH INFORMATION THAT THE RECORDS OF THE DEPARTMENT SHOW THAT HE IS ELIGIBLE FOR PAYMENT FOR MILITARY LEAVE.

2. FURNISHING INFORMATION BY LETTER CONCERNING YOUR RULING IN THE DECISION OF MARCH 19, 1958, WITHOUT INDICATING THAT THE INDIVIDUAL IS OR IS NOT ELIGIBLE FOR PAYMENT FOR MILITARY LEAVE.

3. FURNISHING THE INDIVIDUAL A COPY OF AN OFFICIAL EMPLOYEE PUBLICATION WHICH, IN ACCORDANCE WITH THE POLICY OF ADVISING EMPLOYEES OF RIGHTS AND BENEFITS TO WHICH THEY ARE ENTITLED, CONTAINS A REFERENCE TO THE COVERAGE OF THE DECISION OF MARCH 19, 1958.

IT IS NOT WITHIN THE JURISDICTION OF OUR OFFICE TO DETERMINE AUTHORITATIVELY WHAT DOES OR DOES NOT CONSTITUTE A VIOLATION OF THE CITED CRIMINAL STATUTE. (SEE 20 COMP. GEN. 488.) ITS ENFORCEMENT IS PRIMARILY A FUNCTION OF THE DEPARTMENT OF JUSTICE AND THE COURTS.

OTHERWISE, OUR OFFICE HAS NO OBJECTION TO THE PROPOSED ACTIONS TO ADVISE FORMER EMPLOYEES OF THEIR RIGHTS CONCERNING THE RETROACTIVE COMPENSATION FOR MILITARY LEAVE. IT MAY BE STATED, HOWEVER, IN LINE WITH THE DECISION OF OUR OFFICE IN 24 COMP. GEN. 9, CITED IN THE ASSISTANT SECRETARY'S LETTER, THAT WE ARE NOT AWARE OF ANY REQUIREMENT ON THE PART OF AN ADMINISTRATIVE OFFICE TO INITIATE PAYMENTS TO FORMER EMPLOYEES WHOSE CONNECTION WITH THE DEPARTMENT HAS BEEN SEVERED AND WHOSE RECORDS ARE NO LONGER OPEN, OR TO ENCOURAGE THE FILING OF CLAIMS BY THOSE EMPLOYEES.

THE ASSISTANT SECRETARY ALSO RECOMMENDED IN HIS LETTER THAT EMPLOYEES SEPARATED FOR MILITARY SERVICE BE CONSIDERED AS REMAINING "ON THE ROLLS" OF THE DEPARTMENT WHILE ABSENT ON MILITARY DUTY. WE UNDERSTAND THAT THE PURPOSE OF THE RECOMMENDATION IS TO ELIMINATE THE NECESSITY OF REQUIRING CLAIMS FROM FORMER EMPLOYEES WHO ARE STILL IN MILITARY SERVICE. THE ASSISTANT SECRETARY APPEARS TO PRESUME THAT IF THESE FORMER EMPLOYEES, ALTHOUGH TECHNICALLY SEPARATED FROM THE DEPARTMENTAL ROLLS, MAY STILL BE CONSIDERED AS "EMPLOYEES" AND STILL "ON THE ROLLS," DIRECT PAYMENTS FOR MILITARY LEAVE MAY BE MADE TO THEM WITHOUT VIOLATING THE RULE OF OUR OFFICE REQUIRING SIGNED CLAIMS BEFORE PAYMENT MAY BE MADE TO INDIVIDUALS NOT NOW IN THE SERVICE OF THE DEPARTMENT. (23 COMP. GEN. 721.)

THE RULE LONG FOLLOWED BY OUR OFFICE REQUIRING CLAIMS OVER THE SIGNATURE OF THE CLAIMANT, AS IT RELATES TO COMPENSATION PAYMENTS TO FORMER EMPLOYEES, SUCH AS HERE INVOLVED--- SEE OUR MANUAL 4 GAO 2020.10 -- IS NOT BASED ON THE MERE TECHNICALITY THAT THE INDIVIDUAL IS NO LONGER ON THE ROLLS. IN 24 COMP. GEN. 9 WE SAID:

THE RULE THUS ESTABLISHED THAT ALL CLAIMS MUST BE PRESENTED OVER THE SIGNATURE OF THE CLAIMANT IS A SALUTARY ONE, AS OTHERWISE THERE WOULD BE NO ASSURANCE THAT THE CLAIMANT IS STILL ALIVE, THAT THE RECORD ADDRESS IS STILL THE PROPER ADDRESS, THAT THE CLAIMANT HIMSELF MAY NOT HAVE WAIVED OR FORFEITED HIS RIGHT TO THE AMOUNT INVOLVED, OR THAT THE CHECK IN PAYMENT OF THE CLAIM WOULD REACH THE CLAIMANT HIMSELF. * * * YOUR PROPOSAL TO INITIATE AND PAY CLAIMS OTHERWISE DUE FORMER EMPLOYEES WHO NO LONGER ARE IN THE EMPLOY OF YOUR ADMINISTRATION, WITHOUT THE SIGNATURE OF THE CLAIMANT, MAY NOT BE ACQUIESCED IN BY THIS OFFICE. COMPARE 4 COMP. DEC. 332; 4 COMP. GEN. 56; 7 ID 751; 21 ID 871; 23 ID 398, AND 721.

AS AN EXCEPTION TO THE RULE, RETROACTIVE PAYMENT HAS BEEN PERMITTED DIRECTLY TO FORMER EMPLOYEES WITHOUT A CLAIM HAVING BEEN FILED IN CERTAIN CASES INVOLVING RETROACTIVE RIGHTS EXPRESSLY GRANTED BY STATUTE. 31 COMP. GEN. 166, 173, 36 ID. 459.

WE DO NOT HERE DECIDE ON THE MERITS OF THE GENERAL PROPOSITION RECOMMENDED BY THE ASSISTANT SECRETARY THAT FORMER EMPLOYEES BE CONSIDERED AS STILL "ON THE ROLLS," NOTWITHSTANDING THEIR FACTUAL STATUS AS "SEPARATED," FOR THE REASON THAT THIS TECHNICALITY WOULD NOT BY ITSELF ACCOMPLISH THE PURPOSE SOUGHT. CONCERNING THE RETROACTIVE MILITARY LEAVE CLAIMS, HOWEVER, WE THINK THE PUBLIC INTEREST WILL BE BETTER SERVED BY THE DEPARTMENT ADOPTING THE SAME PROCEDURES PROPOSED ABOVE FOR NOTIFYING OTHER FORMER EMPLOYEES AND MAKING PAYMENT OF THE RETROACTIVE AMOUNTS FOR MILITARY LEAVE TO THOSE EMPLOYEES STILL IN THE MILITARY SERVICE, IRRESPECTIVE OF WHETHER "SEPARATED" OR ,FURLOUGHED" AT THE TIME OF ENTERING ON MILITARY DUTY, ONLY ON THE BASIS OF WRITTEN INSTRUCTIONS OR REQUESTS SUBMITTED BY THE INDIVIDUALS CONCERNED.