B-113928, OCT 27, 1958

B-113928, OCT 27, 1958

PRECIS-UNAVAILABLE

MR. THOMAS F. BALEY:

YOUR LETTER DATED SEPTEMBER 9, 1958, REQUESTS INFORMATION AS TO OUR AUTHORITY TO DISALLOW YOUR CLAIM BY THE SETTLEMENT OF FEBRUARY 20, 1958, BASED UPON THE REPORT OF THE VETERANS ADMINISTRATION INSTEAD OF ON STATEMENTS MADE BY YOU IN SUPPORT OF YOUR CLAIM FOR MONIES REPRESENTING ANNUAL LEAVE, WAGES, RETIREMENT CREDIT, TRAVEL ALLOWANCE AND PERSONAL FUNDS, WHICH MONIES WERE WITHHELD BY THE VETERANS CANTEEN SERVICE FIELD OFFICE DURING THE MONTH OF JULY 1952, TO PARTIALLY EFFECT A MONETARY LOSS INCURRED BY THE GOVERNMENT.

THE VETERANS ADMINISTRATION SAYS THAT YOU TOOK OVER MANAGEMENT OF THE CANTEEN AT THE VETERANS ADMINISTRATION HOSPITAL, CASTLE POINT, NEW YORK, IN FEBRUARY 1951, AND THAT PURSUANT TO A REQUEST OF THE FIELD OFFICE ON JULY 14, 1952, AN AUDIT OF THE CANTEEN WAS MADE. AS A RESULT OF THE AUDIT IT WAS DETERMINED THAT A RETAIL MERCHANDISE SHORTAGE EXISTED OF $15,343.52 OR A COST VALUE OF $12,291.69, RESULTING FROM IRREGULAR PRACTICES USED UNDER YOUR MANAGEMENT. THE REPORT POINTS OUT THAT SUBSEQUENT TO THE AUDIT OF THE CANTEEN, A NEW YORK FIELD OFFICE SUPERVISOR MADE A COMPLETE INVESTIGATION OF THE ACCOUNTABILITY SHORTAGES AND IN VIEW OF THE MAGNITUDE OF THE SHORTAGE AND THE IRREGULARITIES REVEALED, THE FEDERAL BUREAU OF INVESTIGATION WAS ALSO REQUESTED TO INVESTIGATE THE SITUATION. BASED ON EVIDENCE WHICH WAS REVEALED BY THE FEDERAL BUREAU OF INVESTIGATION IN SEVEN INVESTIGATIVE REPORTS IN YOUR CASE YOU WERE INDICTED BY THE FEDERAL GRAND JURY OF NEW YORK ON APRIL 9, 1953. SUBSEQUENTLY, THE UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF NEW YORK ENTERED AN ORDER OF NOLLE PROSEQUI WHICH TERMINATED THE CRIMINAL ACTION INSTITUTED AGAINST YOU. THE TERMINATION OF THE CRIMINAL ACTION IN YOUR CASE HOWEVER, DOES NOT EFFECT THE CIVIL ASPECTS OF YOUR CASE. THE VETERANS ADMINISTRATION SAYS THAT AS A RESULT OF THE IRREGULAR PRACTICES DEVELOPED AT THE CANTEEN UNDER YOUR MANAGEMENT THE ADMINISTRATIVE OFFICE DETERMINED THAT YOU WERE CULPABLY NEGLIGENT IN PERFORMING YOUR DUTIES AND SET-OFF AGAINST THE SHORTAGE OF $12,291.69, MONIES DUE YOU AMOUNTING TO $2,502.51.

OUR OFFICE SETTLES CLAIMS FOR AND AGAINST THE UNITED STATES GOVERNMENT PURSUANT TO SECTION 236 OF THE REVISED STATUTES AS AMENDED BY SECTION 305 OF THE ACT OF JUNE 10, 1921, 42 STAT. 24, 31 U.S.C. 71, WHICH PROVIDES THAT:

"ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED STATES OR AGAINST IT, AND ALL ACCOUNTS WHATEVER IN WHICH THE GOVERNMENT OF THE UNITED STATES IS CONCERNED, EITHER AS DEBTOR OR CREDITOR, SHALL BE SETTLED AND ADJUSTED IN THE GENERAL ACCOUNTING OFFICE."

THE WORDS "SETTLE AND ADJUST" HAVE BEEN DEFINED GENERALLY TO MEAN "TO DETERMINE" OR "TO ASCERTAIN." SEE STATES V. PIONEERS INS. ASSOCIATION, 104 POC. 185, STATE V. MOORE, 25 L. A. A. 774; ALLEN V. PHOENIX ASSURANCE CO. 95 POC. 329. THE SUPREME COURT IN THE CASE OF ILLINOIS SURETY CO. V. PEELER, 240 U.S. 214, STATED WITH RESPECT TO THE PARTICULAR STATUTE HERE INVOLVED THAT THE AUTHORITY TO SETTLE AND ADJUST CLAIMS IS THE AUTHORITY TO "DETERMINE THE VALIDITY OF CLAIMS." THE VALIDITY OF A CLAIM OF NECESSITY IS GOVERNED BY THE RECORD OF FACTS, AS WELL AS THE APPLICABLE LAW. OUR OFFICE MUST PLACE MUCH RELIANCE UPON ADMINISTRATIVE REPORTS IN DETERMINING THE CORRECT FACTS, AND WHERE THERE IS A DISPUTE BETWEEN THE CLAIMANT AND THE ADMINISTRATIVE OFFICERS ON A QUESTION OF FACT, THE ESTABLISHED RULE OF THE ACCOUNTING OFFICERS IS TO ACCEPT AS CORRECT THE STATEMENT OF FACTS AS FURNISHED BY THE ADMINISTRATIVE OFFICERS, IN THE ABSENCE OF A CLEAR SHOWING THAT SUCH STATEMENT IS NOT CORRECT. SINCE THE PRESENT RECORD IS NOT SUCH AS TO JUSTIFY THE REJECTION OF THE FACTS AS REPORTED BY THE ADMINISTRATIVE OFFICE, NO PROPER BASIS EXISTS FOR OUR OFFICE TO AUTHORIZE THE ALLOWANCE OF YOUR CLAIM.

THEREFORE, THE SETTLEMENT OF FEBRUARY 20, 1958, IS SUSTAINED.