B-111364, JAN 23, 1953

B-111364, JAN 23, 1953

PRECIS-UNAVAILABLE

JOHN S. TAYLOR, JR., USAF., TRANSPORTATION DIVISION:

REFERENCE IS MADE TO YOUR LETTERS OF JULY 15, AUGUST 22, AND DECEMBER 11, 1952, RELATIVE TO THE SETTLEMENT OF THE CLAIMS DIVISION OF THIS OFFICE DATED MAY 21, 1952, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF EXPENSE OF TRAVEL PERFORMED BY YOU AND YOUR WIFE FROM WASHINGTON, D. C., TO PARIS, FRANCE, FOLLOWING YOUR RESIGNATION FROM THE REGULAR ARMY IN APRIL 1951.

IT APPEARS THAT YOU ACCEPTED A COMMISSION IN THE REGULAR ARMY AT PARIS, FRANCE, ON AUGUST 12, 1946, WHILE YOU WERE EMPLOYED IN THAT CITY BY TRANS WORLD AIRLINES, AND THAT YOUR RESIGNATION FROM THE SERVICE WAS ACCEPTED BY PARAGRAPH 33, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 74, APRIL 13, 1951, EFFECTIVE AS OF APRIL 18, 1951. SUCH ORDERS DIRECTED YOU TO PROCEED, AT THE PROPER TIME, TO YOUR HOME AT PITTSBURGH, PENNSYLVANIA. THE RECORD SHOWS THAT YOU WERE PAID MILEAGE COMPUTED AT THE RATE OF 6 CENTS PER MILE ON THE DISTANCE FROM WASHINGTON TO PITTSBURGH, AND THAT A SIMILAR PAYMENT WAS MADE TO YOU ON VOUCHER NO. 31306, APRIL 1951 ACCOUNTS OF JAMES H. COMINGS, FOR TRAVEL STATED TO HAVE BEEN PERFORMED BY YOUR WIFE ON APRIL 15, 1951, TO PITTSBURGH THE PLACE STATED IN FORM 107, ATTACHED THERETO, AS YOUR "HOME". WHILE A STATEMENT ON THE REVERSE SIDE OF SUCH VOUCHER IS TO THE EFFECT THAT PARIS, FRANCE, WAS YOUR HOME OF RECORD AT THE TIME OF ENTRY ON ACTIVE DUTY, PAYMENT OF MILEAGE FOR YOU AND FOR TRAVEL OF YOUR DEPENDENT WAS MADE ON THE BASIS THAT PITTSBURGH WAS YOUR HOME. YOU NOW STATE THAT YOU REQUESTED PAYMENT OF MILEAGE TO PARIS AT THE TIME OF YOUR SEPARATION, BUT THAT YOUR REQUEST WAS REFUSED, AND THAT YOU ACCEPTED PAYMENT ON THE BASIS SHOWN ABOVE, NOT FOR THE PURPOSE OF MAKING AN ELECTION UNDER APPLICABLE REGULATIONS, BUT ONLY TO TAKE WHAT WAS OFFERED AT THAT TIME, AND THAT YOU INTENDED TO FILE CLAIM WITH THIS OFFICE FOR THE BALANCE BELIEVED TO BE DUE.

THE REGULATIONS MAKE NO PROVISION FOR PAYMENT OF MILEAGE INCIDENT TO SEPARATION FROM THE SERVICE IN THE ABSENCE OF AN ELECTION BY THE MEMBER AS TO THE POINT TO BE USED IN COMPUTING THE AMOUNT DUE AND, HENCE, NOTWITHSTANDING YOUR STATEMENTS AS TO YOUR INTENTION TO ACCEPT MILEAGE ON THE BASIS OF THE DISTANCE FROM WASHINGTON TO PITTSBURGH AND CLAIM AN ADDITIONAL SUM AT A LATER DATE, THE ACTUAL PAYMENT AND ACCEPTANCE OF MILEAGE ON THE BASIS OF THE DISTANCE TO PITTSBURGH IS STRONG EVIDENCE THAT PITTSBURGH WAS ELECTED AT THE TIME OF YOUR SEPARATION. IN ADDITION TO THAT EVIDENCE THERE IS FURTHER EVIDENCE THAT PITTSBURGH WAS ELECTED BY YOU. YOU SUBMITTED A VOUCHER FOR TRANSPORTATION OF YOUR DEPENDENT BASED UPON TRAVEL STATED TO HAVE BEEN PERFORMED FROM WASHINGTON, D. C., TO PITTSBURGH ON APRIL 15, 1951.

MOREOVER, EVEN THOUGH IT WERE ESTABLISHED THAT YOU ELECTED TRAVEL EXPENSES TO PARIS THERE WOULD REMAIN TOO MUCH DOUBT FOR THIS OFFICE TO ALLOW ANY PART OF YOUR CLAIM ON THE RECORD PRESENTED. PAYMENT ON THE VOUCHER SIGNED BY YOU FOR TRAVEL OF YOUR DEPENDENT WAS AUTHORIZED ONLY ON THE BASIS THAT TRAVEL TO PITTSBURGH WAS ACTUALLY PERFORMED BY YOUR DEPENDENT AND THE AMOUNT OF $17.76 WAS PAID TO YOU ON THE BASIS OF YOUR STATEMENT THAT YOUR DEPENDENT ACTUALLY PERFORMED SUCH TRAVEL ON APRIL 15, 1951. HOWEVER, NOTWITHSTANDING SUCH STATEMENT MADE AT THAT TIME, YOU STATED IN YOUR LETTER OF JULY 15, 1952, THAT:

"*** ACTUAL TRAVEL WAS NEVER CONTEMPLATED OR PERFORMED BY US TO PITTSBURGH, PENNSYLVANIA UNDER DEPARTMENT OF ARMY, SPECIAL ORDER #74, PARAGRAPH 33 DATED 13 APRIL 1951 AND THE FACT THAT MOST OF OUR BAGGAGE AND PERSONAL EFFECTS ARE STILL STORED AT WARRENTON, VIRGINIA AND THAT WE SUBSEQUENTLY CAME TO PARIS, FRANCE INDICATES THAT AT NO TIME DID WE CONTEMPLATE RETURNING TO PITTSBURGH, PENNSYLVANIA AS 'HOME'. ACTUALLY, WE HAVE NOT VISITED AT PITTSBURGH SINCE 1949."

THAT STATEMENT, AS WELL AS OTHER STATEMENTS MADE BY YOU, WHEN CONSIDERED WITH YOUR STATEMENT THAT YOUR DEPENDENT ACTUALLY TRAVELED TO PITTSBURGH ON APRIL 15, 1951, GIVES RISE TO THE CONCLUSION THAT IN MAKING CLAIM FOR TRAVEL BENEFITS INCIDENT TO YOUR SEPARATION FROM THE SERVICE, YOU HAVE MADE A STATEMENT OR STATEMENTS WHICH APPEAR TO BE FALSE. IN OTHER WORDS, THE STATEMENT MADE IN CONNECTION WITH PAYMENTS RECEIVED AT THE TIME OF YOUR SEPARATION FROM THE SERVICE APPEARS CLEARLY INCONSISTENT WITH YOUR LETTER OF JULY 15, 1952. IN VIEW OF SUCH CONFLICTING STATEMENTS, THE PAYMENT MADE TO YOU ON THE BASIS OF YOUR STATEMENT THAT YOUR DEPENDENT TRAVELED TO PITTSBURGH ON APRIL 15, 1951, MUST BE CONSIDERED TO HAVE BEEN UNAUTHORIZED AND THE AMOUNT OF $17.76 SHOULD BE REFUNDED TO THIS OFFICE. ALSO, IN VIEW OF SUCH STATEMENTS, THERE ARISES THE QUESTION AS TO WHETHER YOUR ENTIRE CLAIM FOR TRAVEL AND TRANSPORTATION BENEFITS INCIDENT TO YOUR SEPARATION FROM THE SERVICE IS FORFEITED UNDER THE PROVISIONS OF THE ACT OF JUNE 25, 1948, 62 STAT. 978, 28 U.S.C. 2514, WHICH PROVIDES AS FOLLOWS:

"A CLAIM AGAINST THE UNITED STATES SHALL BE FORFEITED TO THE UNITED STATES BY ANY PERSON WHO CORRUPTLY PRACTICES OR ATTEMPTS TO PRACTICE ANY FRAUD AGAINST THE UNITED STATES IN THE PROOF, STATEMENT, ESTABLISHMENT, OR ALLOWANCE THEREOF.

"IN SUCH CASES THE COURT OF CLAIMS SHALL SPECIFICALLY FIND SUCH FRAUD OR ATTEMPT AND RENDER JUDGMENT OF FORFEITURE."

UNDER SUCH CIRCUMSTANCES WHERE THERE IS SUBSTANTIAL DOUBT AS TO THE PROPRIETY OF ALLOWING A CLAIM, INCLUDING SITUATIONS WHERE FRAUD MAY BE INVOLVED, IT IS THE DUTY OF THE ACCOUNTING OFFICERS TO DENY PAYMENT AND LEAVE THE CLAIMANT TO SUCH REMEDY AS HE MAY HAVE AVAILABLE TO HIM IN THE UNITED STATES COURT OF CLAIMS. SEE CHARLES V. UNITED STATES, 19 C. CLS. 316, 319; LONGWILL V. UNITED STATES, 17 C. CLS. 288, 2919

ACCORDINGLY, ON THE PRESENT RECORD NO FURTHER ACTION WILL BE TAKEN WITH RESPECT TO YOUR CLAIM BY THIS OFFICE.