B-172915, SEP 27, 1971

B-172915, SEP 27, 1971

MILITARY PERSONNEL - PER DIEM - RECOUPMENT FOR FRAUD DECISION CONCERNING PER DIEM PAYMENTS MADE TO CAPTAIN RAYMOND B. ALEXANDER, SAID TO CONTAIN FRAUDULENT OR MISREPRESENTED ITEMS. CAPTAIN ALEXANDER CONTENDS THAT COLLECTION ACTION ON SUBJECT TRAVEL VOUCHER AND NINETEEN OTHERS OF THE ENTIRE AMOUNT IS ERROR AND THAT COLLECTION SHOULD NOT BE MADE AS TO ITEMS ON GIVEN VOUCHERS THAT INVOLVED NO FRAUD OR MISREPRESENTATION. TOTAL AMOUNT PAID ON EACH VOUCHER SHOULD BE RECOUPED AND ANY CLAIM BY CAPTAIN ALEXANDER TO PART OF THE AMOUNT AS LEGITIMATE SHOULD BE LEFT TO THE COURTS FOR FINAL RESOLUTION.

TO MR. SECRETARY:

BY LETTER DATED APRIL 19, 1971, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE (MANPOWER AND RESERVE AFFAIRS), WITH ENCLOSURES, DECISION IS REQUESTED ON CERTAIN QUESTIONS PERTAINING TO A PER DIEM PAYMENT MADE ON TRAVEL VOUCHER NO. T-16626, JANUARY 1970 ACCOUNTS OF CAPTAIN RAYMOND B. ALEXANDER, DISBURSING STATION SYMBOL NO. 6778, WHICH VOUCHER IS SAID TO CONTAIN FRAUDULENT OR MISREPRESENTED ITEMS. THE LETTER WAS FORWARDED HERE ON APRIL 29, 1971, BY THE DEPARTMENT OF DEFENSE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE AND THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 71-22.

THE AIR FORCE MEMBER TO WHOM THE PAYMENT WAS MADE HAD BEEN DIRECTED BY SPECIAL ORDER TA-4020, DATED DECEMBER 30, 1969, TO PROCEED AT SUCH TIMES AS NECESSARY DURING THE PERIOD JANUARY 1 TO 31, 1970, FROM OSAN AIR BASE, KOREA, TO ANY POINT WITHIN THE REPUBLIC OF KOREA ON TEMPORARY DUTY FOR SPECIFIED PURPOSES AND UPON COMPLETION OF EACH MISSION TO RETURN TO OSAN AIR BASE. UPON ACCOMPLISHMENT OF ONE PERIOD OF THE DIRECTED TRAVEL AND DUTY, THE MEMBER SUBMITTED A TRAVEL VOUCHER IN WHICH HE LISTED HIS ITINERARY AS FOLLOWS:

"15 JAN DEP 0500 OSAN AB KOREA

15 JAN ARR 0900 INCHON DEPOT KOREA

15 JAN DEP 1050

15 JAN ARR 1800 CHORWON DMZ KOREA

16 JAN DEP 0600

16 JAN ARR 1400 INCHON DEPOT KOREA

16 JAN DEP 1600

16 JAN ARR 1830 YONG DONG PO CITY KOREA

17 JAN DEP 0600

17 JAN ARR 1300 CHORWON DMZ KOREA

18 JAN DEP 0600

18 JAN ARR 1400 OSAN AB KOREA"

THE MEMBER INDICATED ON THE VOUCHER THAT THE ENTIRE TRAVEL WAS PERFORMED BY GOVERNMENT AUTOMOBILE AND THAT GOVERNMENT QUARTERS AND MESS WERE NOT UTILIZED. ON JANUARY 20, 1970, HE WAS PAID THE SUM OF $48.88 AS THE NET AMOUNT OF PER DIEM ALLOWABLE FOR THE PERIOD INVOLVED.

IN HIS LETTER THE ASSISTANT SECRETARY SAYS THAT THIS VOUCHER IS REPRESENTATIVE OF 20 TRAVEL VOUCHERS COVERING ONLY PAYMENTS OF PER DIEM TO THE MEMBER CONCERNED DURING THE PERIOD JUNE 1969 THROUGH APRIL 1970 AND THAT SUBSEQUENT INVESTIGATIVE ACTION REVEALED THAT SUCH PAYMENTS WERE OBTAINED THROUGH FRAUD OR MISREPRESENTATION. HE ALSO SAYS THAT WHILE THE ITINERARY ON THE SUBJECT VOUCHER SHOWS THE MEMBER TO BE IN YONG DONG PO CITY, KOREA, ON JANUARY 16 AND 17, 1970, AND NOT HAVING UTILIZED GOVERNMENT QUARTERS OR MESS, THE INVESTIGATION DISCLOSED THAT HE ACTUALLY WAS AT KIMPO AIR BASE, KOREA, ON THOSE DATES AND THAT HE UTILIZED GOVERNMENT QUARTERS ON JANUARY 16 AND GOVERNMENT MESS (SUPPER ON JANUARY 16 AND BREAKFAST ON JANUARY 17). IT IS FURTHER STATED THAT AS A RESULT OF THIS DISCLOSURE, COLLECTION ACTION WAS INITIATED TO RECOVER THE FULL AMOUNT PAID ON SUBJECT VOUCHER AS WELL AS THE PAYMENTS ON THE OTHER 19 RELATED VOUCHERS.

THE ASSISTANT SECRETARY SAYS THAT THE MEMBER THROUGH HIS ATTORNEY HAS PROTESTED THE COLLECTION ACTION ON THE BASIS OF OUR DECISION OF NOVEMBER 3, 1961, 41 COMP. GEN. 285, IN WHICH WE SAID THAT WHERE, IN PAST CASES, THE ENTIRE AMOUNT PAID ON A VOUCHER HAS BEEN RECOUPED BECAUSE PAYMENT OF ONE OR MORE OF ITEMS COVERED BY THE VOUCHER WAS OBTAINED BY FRAUD OR MISREPRESENTATION, THE PORTION OF THE AMOUNT PAID FOR ITEMS AS TO WHICH THERE WAS NO FRAUD OR MISREPRESENTATION MAY BE RECREDITED TO THE MEMBER'S PAY ACCOUNT IF THERE OTHERWISE IS NO QUESTION OF ENTITLEMENT. HE SAYS FURTHER THAT IT IS THE MEMBER'S CONTENTION THAT UNDER THAT DECISION HE IS ONLY REQUIRED TO REPAY THE AIR FORCE FOR THOSE MEALS AND QUARTERS FURNISHED BY THE GOVERNMENT FOR WHICH HE RECEIVED PAYMENT, AND ASKS THE FOLLOWING THREE QUESTIONS:

"A. MAY THE VOUCHER BE CONSIDERED TO COMPRISE ONLY ONE ITEM, PER DIEM, AND HENCE THERE ARE NO ITEMS THEREIN SUBJECT TO SEPARATION?

"B. MAY THE VOUCHER BE SEPARATED ACCORDING TO INDIVIDUAL DAYS WHEREBY EACH DAY COMPRISES A SEPARATE ITEM OF PER DIEM ALLOWANCE? ON THIS BASIS COLLECTION WOULD BE MADE FOR THOSE DAYS IN WHICH FRAUD OR MISREPRESENTATION IS INVOLVED AND CREDIT ALLOWED FOR THOSE DAYS FOR WHICH ENTITLEMENT WAS VALID.

"C. MAY THE MONETARY AMOUNT ON THE VOUCHER FOR EACH INDIVIDUAL DAY BE SEPARATED ACCORDING TO THE PORTION CLAIMED AND PAID FOR NONAVAILABILITY OF GOVERNMENT QUARTERS AND MEALS OR BOTH, AND THE INCIDENTAL EXPENSE ALLOWANCE, IN THAT THESE THREE ELEMENTS CONSTITUTE SEPARATE ITEMS OF THE PER DIEM ALLOWANCE? ON THIS BASIS COLLECTION WOULD BE MADE ONLY FOR THE PAYMENT MADE FOR THOSE QUARTERS AND MEALS WHICH WAS OBTAINED THROUGH FRAUD OR MISREPRESENTATION. CREDIT WOULD BE ALLOWED FOR THOSE ITEMS WHICH WERE VALID."

WE HAVE NOT BEEN FURNISHED A COPY OF THE REPORT OF THE INVESTIGATION CONDUCTED IN THE MATTER OR ANY OTHER EVIDENCE UPON WHICH THE ASSISTANT SECRETARY BASED HIS STATEMENT THAT THE PAYMENT ON VOUCHER T-16626 WAS OBTAINED THROUGH FRAUD OR MISREPRESENTATION. NEITHER HAVE WE BEEN FURNISHED ANY STATEMENT FROM THE MEMBER ABOUT THE MATTER. IN GIVING OUR ANSWERS, THEREFORE, WE ARE ASSUMING THE PROPRIETY OF THE ADMINISTRATIVE CONCLUSION THAT THERE WAS FRAUD OR MISREPRESENTATION IN THE PREPARATION OF SUCH VOUCHER.

AS TO THE FIRST QUESTION, THERE CAN BE LITTLE DOUBT THAT PER DIEM IS AN ITEM OF PAY AND ALLOWANCES WHICH MAY BE CLAIMED SEPARATELY FROM OTHER ITEMS OF PAY AND ALLOWANCES. AS SUCH, IT CONSTITUTES AN INDIVISIBLE ITEM OF PAY AND ALLOWANCES FOR THE PURPOSES OF 41 COMP. GEN. 285. THE FACT THAT THE TOTAL AMOUNT OF PER DIEM DUE ON A VOUCHER IS FOR COMPUTATION ON A DAILY BASIS DOES NOT CHANGE ITS CHARACTER AS AN ITEM OF PAY AND ALLOWANCES - MOST ITEMS OF PAY AND ALLOWANCES ARE COMPUTABLE ON A DAILY BASIS.

THE FIRST QUESTION, THEREFORE, IS ANSWERED IN THE AFFIRMATIVE AND THE SECOND AND THIRD QUESTIONS ARE ANSWERED IN THE NEGATIVE.

ACCORDINGLY, IT IS OUR VIEW THAT THE ENTIRE AMOUNT PAID ON VOUCHER T 16626 AND THE AMOUNTS PAID ON THE 19 RELATED VOUCHERS SHOULD BE RECOUPED AND ANY RECLAIM FOR ANY PART OR ALL OF THE AMOUNTS RECOUPED LEFT TO THE COURTS FOR FINAL RESOLUTION. 41 COMP. GEN. 285.