B-153315, MAR. 18, 1964

B-153315, MAR. 18, 1964

TO DANIEL B. MCLEOD:

REFERENCE IS MADE TO YOUR LETTERS DATED DECEMBER 11, 1962, AND DECEMBER 18, 1963, RELATIVE TO THE CLAIM OF ELBERT C. HARRISON FOR REIMBURSEMENT OF THE COST OF HIS DEPENDENTS' TRANSPORTATION FROM CERES, CALIFORNIA, TO NEW YORK, NEW YORK, INCIDENT TO HIS SERVICE IN THE U.S. ARMY, TOGETHER WITH A POWER OF ATTORNEY EXECUTED BY MR. HARRISON, AUTHORIZING YOU TO REPRESENT HIM BEFORE OUR OFFICE WITH RESPECT TO RECONSIDERATION OF HIS CLAIM WHICH WAS DISALLOWED BY SETTLEMENT OF NOVEMBER 15, 1962. WE HAVE ALSO RECEIVED YOUR LETTER OF JANUARY 29, 1964, WITH DOCUMENTS WHICH YOU BELIEVE SUBSTANTIATE HIS CLAIM.

BY ORDERS DATED OCTOBER 30, 1959, THE CLAIMANT WAS RELIEVED FROM HIS DUTY STATION AT HEADQUARTERS, PRESIDIO OF SAN FRANCISCO, CALIFORNIA, AND ORDERED TO PROCEED ON NOVEMBER 14, 1959, TO FORT DIX, NEW JERSEY, FOR FURTHER ASSIGNMENT OVERSEAS, WITH 30 DAYS' DELAY EN ROUTE CHARGEABLE AS LEAVE, PLUS 13 DAYS' TRAVEL TIME, REPORTING NOT LATER THAN DECEMBER 27, 1959.

ON THE BASIS OF HIS CERTIFICATION THAT HIS WIFE AND THREE CHILDREN HAD TRAVELED FROM THE PRESIDIO OF SAN FRANCISCO, CALIFORNIA, TO MCCURTAIN, OKLAHOMA, DURING THE PERIOD NOVEMBER 14, 1959, TO JANUARY 7, 1960, WITH THE INTENT OF ESTABLISHING A BONA FIDE RESIDENCE, HE WAS PAID THE SUM OF $410.40 AS ALLOWANCES INCIDENT TO THEIR TRAVEL BETWEEN THOSE POINTS. AUDIT EXCEPTION WAS TAKEN TO THE PAYMENT FOR THE REASON THAT THE RECORDS SHOWED THAT ONLY THE CLAIMANT'S WIFE AND ONE CHILD HAD PERFORMED THE TRAVEL TO MCCURTAIN, OKLAHOMA, AND THAT THEY RETURNED TO CERES, CALIFORNIA, AFTER A 2-WEEK STAY, INDICATING TRAVEL FOR THE PURPOSE OF VISITING RATHER THAN TO ESTABLISH A RESIDENCE. COLLECTION OF THE FULL AMOUNT WAS EFFECTED FROM THE CLAIMANT.

THE CLAIMANT'S LATER CLAIM FOR HIS DEPENDENTS' TRAVEL FROM CERES, CALIFORNIA, TO NEW YORK, NEW YORK, SEPTEMBER 17 TO 29, 1960, INCIDENT TO HIS ORDERS OF OCTOBER 30, 1959, WAS DISALLOWED BY SETTLEMENT DATED NOVEMBER 15, 1962, FOR THE REASON THAT HE HAD MADE INCORRECT STATEMENTS IN HIS ORIGINAL CLAIM AS TO THE PLACE TO WHICH HIS DEPENDENTS TRAVELED TO ESTABLISH A RESIDENCE AND BECAUSE HE CLAIMED TRAVEL ALLOWANCES FOR TWO CHILDREN WHO DID NOT PERFORM THE TRAVEL.

IN YOUR LETTER OF DECEMBER 11, 1962, REQUESTING REVIEW OF THE CLAIM, IT IS SUGGESTED THAT AT THE TIME MR. HARRISON MADE HIS ORIGINAL CLAIM HIS REPRESENTATIONS THAT HIS WIFE WOULD ESTABLISH A HOME AT MCCURTAIN, OKLAHOMA, WERE MADE IN GOOD FAITH BECAUSE SHE PROMISED HIM THAT SHE WAS GOING TO STAY THERE. IT APPEARS TO BE YOUR VIEW THAT SINCE HE DID NOT KNOWINGLY MAKE FALSE STATEMENTS OR WRONGFULLY OBTAIN PAYMENT FOR HIS DEPENDENTS' TRAVEL, HE IS ENTITLED TO PAYMENT OF HIS CLAIM FOR THEIR TRAVEL FROM CERES, CALIFORNIA, TO NEW YORK, NEW YORK.

PARAGRAPH 7000, JOINT TRAVEL REGULATIONS, PROVIDES FOR TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON PERMANENT CHANGE OF STATION, EXCEPT SUCH EXPENSE MAY NOT BE CONSIDERED AN OBLIGATION OF THE GOVERNMENT (PARAGRAPH 7000-13) FOR ANY TRAVEL OF DEPENDENTS BETWEEN POINTS OTHERWISE AUTHORIZED IN THE REGULATIONS TO A PLACE AT WHICH THEY DO NOT INTEND TO ESTABLISH A RESIDENCE, AND TRAVEL EXPENSE OF DEPENDENTS FOR PLEASURE TRIPS OR FOR PURPOSES OTHER THAN WITH THE INTENT TO CHANGE THE DEPENDENTS' RESIDENCE. ALSO THE REGULATIONS PROVIDE FOR REIMBURSEMENT FOR TRAVEL OF DEPENDENTS AFTER TRAVEL HAS BEEN COMPLETED, AND THE LAW IMPOSES A FURTHER OBLIGATION THAT CLAIMS AGAINST THE UNITED STATES BE BASED ON TRUE FACTS.

IN HIS ORIGINAL CLAIM MR. HARRISON'S CERTIFICATION WAS TO THE FACT OF ACCOMPLISHED TRAVEL BY FOUR DEPENDENTS TO A DESIGNATED PLACE FOR A SPECIFIC PURPOSE. HE CERTIFIED THAT ON NOVEMBER 14, 1959, HIS WIFE AND THREE CHILDREN DEPARTED FROM CERES, CALIFORNIA, AND TRAVELED TO MCCURTAIN, OKLAHOMA. SINCE HE WAS NOT REQUIRED TO PROCEED UNTIL THE SAME DAY, IT APPEARS THAT HE MUST HAVE KNOWN THAT TWO OF HIS CHILDREN STAYED AT CERES, CALIFORNIA. FURTHER, SINCE HE HAD 30 DAYS' DELAY CHARGEABLE AS LEAVE, AND SINCE HE AND HIS WIFE HAD REMARRIED IN SEPTEMBER 1959, IT IS REASONABLE TO ASSUME THAT THEY PERFORMED THE TRAVEL TOGETHER. IN ANY EVENT, IT IS APPARENT THAT HE CERTIFIED TO CIRCUMSTANCES AS ACTUAL ACCOMPLISHED FACT THAT HE EITHER DID NOT KNOW TO BE FACTUALLY CORRECT OR KNEW TO BE INCORRECT.

THE DOCUMENTS FURNISHED WITH YOUR LETTER OF JANUARY 29, 1964, RELATE TO THE MOVEMENT OF THE CLAIMANT'S DEPENDENTS AND HOUSEHOLD GOODS FROM MUNICH, GERMANY, TO CERES, CALIFORNIA, AND HAVE NO APPLICATION TO HIS ORIGINAL CLAIM. HOWEVER, THEY DO INDICATE THAT CERES, CALIFORNIA, RATHER THAN MCCURTAIN, OKLAHOMA, WAS REGARDED AS HIS DEPENDENTS' HOME AND, ALSO, THAT THE DEPENDENTS HAD IN SOME MANNER REACHED THE MEMBER'S OVERSEAS STATION.

IT IS INCUMBENT UPON CLAIMANTS TO FURNISH EVIDENCE SATISFACTORILY ESTABLISHING THEIR CLAIMS, AND THE CLEAR LIABILITY OF THE UNITED STATES TO PAY SUCH CLAIMS. WHERE A CLAIM IS OF DOUBTFUL VALIDITY IT IS THE PRACTICE OF THIS OFFICE TO DENY PAYMENT AND LEAVE THE CLAIMANT TO HIS REMEDY IN THE COURTS UNDER THE PRINCIPLES OF LONGWILL V. UNITED STATES, 17 CT.CL. 288, AND CHARLES V. UNITED STATES, 19 CT.CL. 619. A CLAIM IN THE FORM OF A RECLAIM FOR ANY OR ALL THE AMOUNT RECOUPED BECAUSE OF AN ERRONEOUS PAYMENT OF ANY VOUCHER ITEM OBTAINED BY MISREPRESENTATION IS VIEWED AS A MATTER WHICH SHOULD BE LEFT TO THE COURT OF CLAIMS FOR FINAL RESOLUTION EVEN THOUGH THE RECLAIM INVOLVES NO APPARENT FRAUD OR MISREPRESENTATION. COMPARE KAMEN SOAP PRODUCTS COMPANY, INC. V. UNITED STATES, 129 CT.CL. 619. SEE DECISION OF NOVEMBER 3, 1961, B-146638, 41 COMP. GEN. 285, COPY ENCLOSED.

IN THE CIRCUMSTANCES INVOLVED THE CLAIM IS TOO DOUBTFUL FOR THIS OFFICE TO AUTHORIZE ITS PAYMENT. ACCORDINGLY THE SETTLEMENT OF NOVEMBER 15, 1962, IS SUSTAINED.