B-196173.OM, DEC 30, 1980

B-196173.OM, DEC 30, 1980

SUBJECT: HERBERT S. ESKIN - CLAIM NO. Z-2815474

CHIEF, DEBT BRANCH - CD, STEVEN G. HUNICHEN:

ACCOMPANYING THIS MEMO IS THE APPEAL BY RABBI HERBERT ESKIN OF THE DETERMINATION BY THE AIR FORCE THAT HE IS INDEBTED $1,557.50 FOR FRAUDULENT ENTRIES IN TRAVEL VOUCHERS. THE FACTS IN THIS MATTER ARE CONTAINED IN THE LETTER TO THE AIR FORCE ACCOUNTING AND FINANCE CENTER DATED NOVEMBER 3, 1977, AT TAB A.

WE HAVE REVIEWED THE MATTER AND HAVE DETERMINED THAT RABBI ESKIN IS LIABLE AND WE HAVE NO AUTHORITY TO GRANT RELIEF. HOWEVER, WE BELIEVE THAT THE APPEAL ALSO CONTAINS CERTAIN EQUITIES WHICH MERIT CONSIDERATION. ARE, THEREFORE, REFERRING THE MATTER TO YOU AS A DOUBTFUL DEBT CASE, AND ADVICE AS TO WHETHER THE DEBT SHOULD BE PURSUED.

INDORSEMENT

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (ROOM 5858)

RETURNED. IT IS OUR VIEW THAT COLLECTION ACTION NEED NOT BE PURSUED IN THIS CASE. THE RECORD SHOWS THAT ALLEGATIONS WERE MADE THAT RABBI HERBERT S. ESKIN HAD MADE FRAUDULENT ENTRIES ON TRAVEL VOUCHERS FOR TRAVEL PERFORMED BY HIM PURSUANT TO INVITATIONAL TRAVEL ORDERS ISSUED TO HIM IN CONNECTION WITH THE PERFORMANCE OF VOLUNTARY SERVICES FOR JEWISH MEMBERS OF THE AIR FORCE STATIONED AT WURTSMITH AIR FORCE BASE (AFB), MICHIGAN. SUBSEQUENTLY, AN INVESTIGATION WAS CONDUCTED RESULTING IN AN INDICTMENT AGAINST RABBI ESKIN. HOWEVER, THIS INDICTMENT WAS DISMISSED AND THE AIR FORCE HAS ATTEMPTED TO RECOUP $1,557.20 FROM HIM. THE DEBT WAS THEN REFERRED TO THIS OFFICE FOR COLLECTION.

RABBI ESKIN, A FORMER ARMY CHAPLAIN, PROVIDED GRATUITOUS SERVICES ONCE A MONTH FOR AIR FORCE MEMBERS STATIONED AT WURTSMITH AFB, A REMOTE BASE ABOUT 150 MILES NORTH OF DETROIT. IT WAS APPARENTLY THE PRACTICE OF RABBI ESKIN TO STAY IN A PRIVATE RESIDENCE WHILE FURNISHING THE SERVICES. THIS WAS NECESSITATED BY HIS STRICT RELIGIOUS BELIEF. OCCASIONALLY HE STAYED IN COMMERCIAL ESTABLISHMENTS. WHEN STAYING AT THE PRIVATE RESIDENCE HE USUALLY CONTRIBUTED SUBSTANTIAL AMOUNTS OF KOSHER FOOD AND GIFTS AS A FORM OF PAYMENT. SINCE THE VOUCHERS REQUIRED THAT THE PLACE OF LODGING BE LISTED, A FINANCE CLERK SUGGESTED THAT HE USE A NAME ON THE VOUCHER. SIGN IN FRONT OF THE RESIDENCE SAID "SUMMERSET" AND HE CHOSE THIS NAME TO USE.

DURING THE PERIOD IN QUESTION THE TRAVEL REGULATIONS WERE REVISED TO REQUIRE THAT RECEIPTS FOR LODGING BE FURNISHED BY THE TRAVELER. AS A RESULT OF ATTEMPTING TO SECURE A RECEIPT FOR LODGING FROM A COMMERCIAL ESTABLISHMENT AT WHICH HE HAD PREVIOUSLY STAYED, AN UNPLEASANT CONFRONTATION BETWEEN RABBI ESKIN AND THE OWNER OF THE MOTEL OCCURRED WHICH LED TO THE COMMENCEMENT OF THE INVESTIGATION OF THE ALLEGED FRAUDULENT ENTRIES ON THE TRAVEL VOUCHERS.

BY WAY OF BACKGROUND IT IS NOTED THAT AFTER WORLD WAR II, AND THROUGH 1976, RABBI ESKIN TRAVELED FROM HIS HOME, NEAR DETROIT, MICHIGAN, TO WURTSMITH AFB ONE WEEKEND A MONTH FOR THE PURPOSE OF PERFORMING RELIGIOUS AND COUNSELING SERVICES FOR JEWISH PERSONNEL STATIONED AT THE BASE. PRESUMABLY, THIS MAY HAVE INITIALLY CONSTITUTED PART OF RABBI ESKIN'S DUTIES AS A RESERVE OFFICER. IN ANY EVENT, IT APPEARS THAT DURING THE YEARS 1973 TO 1976 WHICH ARE INVOLVED IN THIS CASE, THAT HE HAD RETIRED FROM THE ARMY RESERVE BUT CONTINUED TO PROVIDE THE SERVICES GRATUITOUSLY AS A CIVILIAN UNDER INVITATIONAL TRAVEL ORDERS ONCE A MONTH.

THE ISSUE OF RABBI ESKIN'S LIABILITY TO REFUND THE PER DIEM PAYMENTS HE RECEIVED SIMPLY INVOLVES THE QUESTION OF WHETHER THOSE PAYMENTS WERE ERRONEOUS OR IN EXCESS OF HIS LEGAL ENTITLEMENTS. SEE 41 COMP.GEN. 285 (1961).

SECTION 5703 OF TITLE 5, U.S.C. PROVIDES THAT A GOVERNMENT EMPLOYEE SERVING WITHOUT PAY MAY BE ALLOWED TRAVEL EXPENSES WHILE AWAY FROM HIS HOME AND AT THE PLACE OF EMPLOYMENT OR SERVICE. THIS PROVISION OF LAW COVERS ALL PERSONS SERVING THE GOVERNMENT WITHOUT COMPENSATION AND AUTHORIZES PAYMENT TO THEM OF THEIR TRAVEL EXPENSES, INCLUDING A PER DIEM ALLOWANCE, WHEN THEY PERFORM TRAVEL ON GOVERNMENT BUSINESS UNDER INVITATIONAL ORDERS ISSUED BY COMPETENT AUTHORITY. SEE 48 COMP.GEN. 110 (1968); 37 COMP.GEN. 349 (1957). HENCE, SINCE IT APPEARS THAT RABBI ESKIN DID TRAVEL ON PUBLIC BUSINESS UNDER COMPETENT INVITATIONAL ORDERS TO WURTSMITH AFB ON EACH OF THE 22 OCCASIONS IN QUESTION, HE WAS LEGALLY ELIGIBLE FOR A PER DIEM TO COVER THE COSTS OF HIS LODGING, SUBSISTENCE, AND INCIDENTAL LIVING EXPENSES ON EACH TRIP.

WITH RESPECT TO THE PER DIEM PAID TO RABBI ESKIN FOR PERIODS WHEN HE STAYED AT THE "SUMMERSET MOTEL," WE HAVE IN THE PAST ALLOWED REIMBURSEMENT OF ACTUAL EXPENSES TO CIVILIAN EMPLOYEES FOR TEMPORARY QUARTERS AND SUBSISTENCE SUPPLIED BY RELATIVES, FRIENDS, ETC., WHERE THE CHARGES HAVE APPEARED REASONABLE. SEE 52 COMP.GEN. 78, 82 (1972). ALSO, WE HAVE AUTHORIZED PAYMENT OF PER DIEM ALLOWANCES AT A REASONABLE RATE IN SUCH CIRCUMSTANCES, PROVIDED IT IS KNOWN IN ADVANCE THAT THE TRAVELER WILL STAY IN NONCOMMERCIAL LODGINGS. 55 COMP.GEN. 856 (1976). THERE IS NO INDICATION THAT THE COST OF THE FOODSTUFFS AND OTHER ITEMS OF VALUE GIVEN BY RABBI ESKIN BY RELIGIOUS CUSTOM IN EXCHANGE FOR HIS KEEP AT "SUMMERSET" WAS LESS THAN THE PER DIEM HE RECEIVED. THUS, EVEN THOUGH THE VOUCHER PROCEDURES WERE IRREGULAR, WE ARE UNABLE TO CONCLUDE THAT THE AMOUNTS PAID TO RABBI ESKIN AS PER DIEM FOR HIS TRAVEL EXPENSES WERE IN EXCESS OF HIS ACTUAL COSTS. FURTHER, EVEN THOUGH THE AMOUNTS ACTUALLY PAID TO RABBI ESKIN MAY HAVE EXCEEDED THE PER DIEM THAT SHOULD HAVE BEEN ESTABLISHED UNDER THE GUIDANCE PROVIDED IN THE ABOVE-CITED DECISIONS, IT IS OUR VIEW THAT AN ATTEMPT TO ESTABLISH A PER DIEM RATE AT THIS TIME WOULD SERVE NO USEFUL PURPOSE.

WITH REGARD TO PER DIEM PAID TO RABBI ESKIN FOR THE DAYS HE INDICATED HE PURCHASED COMMERCIAL LODGINGS AT THE WILLING MOTEL IN OSCADA, MICHIGAN, THE CONFLICTING STATEMENTS BY THE OWNER AND RABBI ESKIN DO NOT PROVIDE AN ADEQUATE BASIS FOR RESOLVING THE MATTER.

HOWEVER, IT IS OUR POSITION THAT DUE TO THE OBVIOUS EQUITIES INVOLVED HERE, THE PROCEDURAL DEFICIENCIES, AND THE FACT THAT RABBI ESKIN WAS ENTITLED TO SOME TRAVEL ALLOWANCES IN CONNECTION WITH THE TRAVEL PERFORMED PURSUANT TO THE VALID INVITATIONAL TRAVEL ORDERS, A RECONSTRUCTION OF ACTUAL ENTITLEMENTS IS NOT NECESSARY AND HE MAY RETAIN THE ALLOWANCES PAID TO HIM.

IN SUMMARY, WE BELIEVE THE DISPOSITION OF THIS MATTER SHOULD BE GOVERNED BY THE RULE EXPOUSED IN AHEARN V. UNITED STATES, 151 CT.CL. 21 (1960). THAT IS, SINCE THE PEOPLE INVOLVED, RABBI ESKIN AND THE FINANCE PERSONNEL AT THE AIR BASE, WERE UNCERTAIN AT THE TIME THE PAYMENTS WERE MADE, OF THE RIGHTS AND OBLIGATIONS, THE ENDS OF JUSTICE WOULD BE BEST SERVED BY LEAVING THE PARTIES IN STATUS QUO AD LITEM.

ACCORDINGLY, COLLECTION ACTION SHOULD BE DISCONTINUED.