B-112515, APR 30, 1953

B-112515, APR 30, 1953

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO LETTER OF JANUARY 13, 1953, FROM THE DIRECTOR OF CIVILIAN PERSONNEL OF YOUR DEPARTMENT REQUESTING THE REMOVAL OF AN EXCEPTION TAKEN BY THIS OFFICE TO A PAYMENT OF $543.01 MADE TO MRS. HELEN H. GROSS, A CIVILIAN EMPLOYEE OF THE AIR FORCE IN GERMANY, ON D.O. VOUCHER NO. 2111, MARCH 1952 ACCOUNTS OF E.A. BEHRENS, FOR PER DIEM ALLOWANCE.

IT APPEARS THAT, ON NOVEMBER 24, 1951, MRS. GROSS WAS ADMINISTRATIVELY AUTHORIZED TO TRAVEL ON TEMPORARY DUTY FROM WIESBADEN, GERMANY, TO WARM SPRINGS, GEORGIA, FOR A PERIOD OF APPROXIMATELY 60 DAYS FOR THE PURPOSE OF PARTICIPATING IN THE NATIONAL FOUNDATION OF INFANTILE PARALYSIS MARCH OF DIMES PROGRAM WITH HER SON, LARRY GROSS, AND RETURN TO WIESBADEN. THE ORDER AUTHORIZED SUCH TRAVEL BY U.S. MILITARY AIRCRAFT AND/OR RAIL TRANSPORTATION AND AUTHORIZED A PER DIEM ALLOWANCE OF $9 A DAY. EXCEPTION WAS TAKEN TO THE VOUCHER BECAUSE IT APPEARED THAT THE TRAVEL WAS NOT IN CONNECTION WITH OFFICIAL BUSINESS OF THE AIR FORCE, NOR WAS IT FOR THE PURPOSES REQUIRED FOR ATTENDANCE AT MEETINGS OF TECHNICAL, SCIENTIFIC, PROFESSIONAL, OR OTHER SIMILAR ORGANIZATIONS WITHIN THE MEANING OF SECTION 606 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952, 65 STAT. 445.

IN HIS LETTER OF JANUARY 13, THE DIRECTOR URGES THAT THE EXCEPTION BE REMOVED. AS A BASIS FOR SUCH ACTION, HE POINTS OUT THAT, WHILE THE GROSS FAMILY WAS LOCATED AT BOLLING AIR FORCE BASE - WHERE THE FATHER WAS THEN IN THE MILITARY SERVICE PRIOR TO ASSIGNMENT TO GERMANY - THEIR SON, BILLY GROSS, WAS SELECTED AS THE "POSTER BOY" FOR THE 1952 POLIO FUND CAMPAIGN POSTERS AND THAT REQUEST FOR HIS PARTICIPATION IN THE CAMPAIGN WAS MADE BY THE POLIO FOUNDATION AND CONCURRED IN BY PROMINENT PERSONS INTERESTED IN THE POLIO FUND CAMPAIGN. IT FURTHER APPEARS FROM THE DIRECTOR'S LETTER THAT HEADQUARTERS OF THE AIR FORCE APPROVED THE TEMPORARY DUTY ASSIGNMENT AND PAYMENT OF PER DIEM TO MRS. GROSS FOR THE PURPOSE OF ACCOMPANYING HER SON IN TRAVEL IN CONNECTION WITH THE CAMPAIGN. THE VOUCHER INDICATES THAT THE TRAVEL IN THIS COUNTRY WAS TO A NUMBER OF POINTS THROUGHOUT THE COUNTRY. IT IS STATED IN THE DIRECTOR'S LETTER THAT THE TRAVEL WAS BY GOVERNMENT TRANSPORTATION.

IT IS FURTHER STATED IN THE DIRECTOR'S LETTER THAT, IN VIEW OF THE AGE OF THE BOY, HIS PHYSICAL CONDITION AND THE CIRCUMSTANCES INVOLVED, HEADQUARTERS OF THE AIR FORCE MADE A DETERMINATION THAT THE TEMPORARY DUTY ASSIGNMENT AND AUTHORIZATION OF PER DIEM FOR MRS. GROSS WAS JUSTIFIED IN THE PUBLIC INTEREST AND IN THAT CERTAIN BENEFITS WOULD ACCRUE TO THE GOVERNMENT. SUCH BENEFITS AND ADVANTAGES ARE STATED TO INCLUDE THE PUBLIC RELATIONS ASPECT WITH REGARD TO THE CAMPAIGN; CURATIVE AND MEDICAL BENEFITS WHILE AT WARM SPRINGS ACCRUING TO THE SON WHO IS OTHERWISE ENTITLED TO MEDICAL FACILITIES OF THE AIR FORCE AS A DEPENDENT OF A SERVICE MEMBER; AND THE MORALE, HUMANITARIAN AND EMPLOYEE RELATIONS ASPECTS OF GOOD MANAGEMENT WITH REGARD TO THE MOTHER AS AN EMPLOYEE OF THE AIR FORCE ASSIGNED TO OVERSEA POST OF DUTY. IT IS FURTHER SUGGESTED IN THE LETTER THAT BECAUSE OF THE APPROVAL ON THE BASIS STATED OF THE TEMPORARY DUTY ASSIGNMENT, A GROSS INJUSTICE WILL BE DONE MRS. GROSS IF ANY COLLECTION ACTION BE TAKEN AND THAT SUCH ACTION WILL RESULT IN VERY UNFAVORABLE PUBLICITY AND PUBLIC REACTION.

WHILE THE PURPOSE OF THE BOY'S TRAVEL IN CONNECTION WITH THE POLIO FUND CAMPAIGN MAY HAVE BEEN A WORTHY ONE, AND WHILE IT MAY HAVE BEEN NECESSARY THAT HIS MOTHER ACCOMPANY HIM IN SUCH TRAVEL, THE FACT REMAINS, HOWEVER, THAT THIS OFFICE MUST IN THE PERFORMANCE OF ITS DUTY AND OBLIGATION AS PRESCRIBED BY LAW LOOK TO THE VALIDITY OF THE EXPENDITURE UNDER THE LAW.

SECTION 3678, REVISED STATUTES (31 U.S.C. 628), PROVIDES THAT EXCEPT AS OTHERWISE PROVIDED BY LAW, SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE, AND FOR NO OTHERS. THUS, IT IS APPARENT THAT THE NECESSITY OR DESIRABILITY FOR AN EXPENDITURE DOES NOT MAKE AN APPROPRIATION AVAILABLE FOR SUCH EXPENDITURE IF IT IS NOT OTHERWISE AVAILABLE THEREFOR. THE APPROPRIATION UNDER WHICH THE PER DIEM WAS PAID TO MRS. GROSS WAS THE AIR FORCE APPROPRIATION FOR MAINTENANCE AND OPERATION, 1952, 65 STAT. 442, WHICH PROVIDES IN PART "FOR EXPENSES NECESSARY FOR THE MAINTENANCE, OPERATION, AND ADMINISTRATION OF THE ACTIVITIES OF THE AIR FORCE, ***". WHILE THAT LANGUAGE IS IN BROAD GENERAL TERMS, IT RELATES TO OFFICIAL ACTIVITIES OF THE AIR FORCE. CONTAINS NO SPECIFIC PROVISION FOR AN EXPENDITURE SUCH AS HERE INVOLVED, AND IT IS NOT APPARENT HOW PER DIEM PAID IN CONNECTION WITH THE POLIO FUND CAMPAIGN CAN REASONABLY BE REGARDED AS ONE FOR THE MAINTENANCE, OPERATION OR ADMINISTRATION OF THE AIR FORCE. THE REASONS ASSIGNED IN THE DIRECTOR'S LETTER AS A BASIS FOR JUSTIFYING THE EXPENDITURE ARE NOT SUCH AS TO JUSTIFY THE VIEW THAT THE EXPENDITURE IS WITHIN THE TERMS OF THE APPROPRIATION.

WITH REFERENCE TO THE SUGGESTION IN THE DIRECTOR'S LETTER THAT FAILURE TO APPROVE THE EXPENDITURE MAY RESULT IN UNFAVORABLE PUBLICITY AND PUBLIC REACTION, IT SHOULD BE REALIZED THAT THE AIR FORCE ITSELF WAS RESPONSIBLE FOR THE EXPENDITURE AND THAT HAD THE DEPARTMENT ELECTED TO PRESENT THE MATTER TO THIS OFFICE FOR DECISION IN ADVANCE (SEE 31 U.S.C. 74), THE QUESTION WOULD THEN HAVE BEEN GIVEN CONSIDERATION AND ANY UNCERTAINTY WITH RESPECT TO IT WOULD THEREBY HAVE BEEN AVOIDED. HOWEVER, IN ANY EVENT, THIS OFFICE MAY NOT, IN THE PROPER DISCHARGE OF ITS DUTY AND RESPONSIBILITY UNDER THE LAW, VALIDATE AN UNAUTHORIZED EXPENDITURE OF PUBLIC FUNDS.

IN VIEW OF THE FOREGOING, THE CONCLUSION IS COMPELLED THAT THE APPROPRIATION INVOLVED WAS NOT AVAILABLE FOR THE EXPENDITURE IN QUESTION. ACCORDINGLY, THE EXCEPTION MUST BE AND IS SUSTAINED.

IT SHOULD BE FURTHER POINTED OUT THAT THE DIRECTOR'S LETTER APPEARS TO BE INTENDED - AND IT IS SO UNDERSTOOD - AS A REQUEST FOR REVIEW AND NOT MERELY A REPLY TO THE EXCEPTION. THE PROCEDURE FOR OBTAINING REVIEW OF EXCEPTIONS TO OR DISALLOWANCES OF EXPENDITURES IS GENERALLY BY REQUEST OF THE HEAD OF THE DEPARTMENT OR AGENCY OR BY THE CERTIFYING OFFICER OR THE DISBURSING OFFICER INVOLVED, OR IN THE CASE OF THE LATTER, THE CUSTODIAN OF THE RETAINED RECORDS. THE DIRECTOR'S LETTER DOES NOT MEET THAT REQUIREMENT AND WHILE IT WILL IN THIS INSTANCE BE CONSIDERED AS A REQUEST FOR REVIEW, FUTURE CASES INVOLVING SUCH REQUESTS WILL BE RETURNED WITHOUT ACTION HERE UNLESS SUBMITTED BY PROPER PARTIES.