B-206540.OM, JUN 25, 1982

B-206540.OM, JUN 25, 1982

SUBJECT: PETTY OFFICER JOHN LOUIS LEZON, USN - B-206540-O.M.

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858):

YOUR CLAIM FILE Z-2831187, INCLUDING THE APPEAL FROM YOUR SETTLEMENT OF AUGUST 28, 1981, WHICH DENIED PETTY OFFICER JOHN LOUIS LEZON'S CLAIM FOR SUBSISTENCE EXPENSES DURING PERFORMANCE OF TEMPORARY DUTY BECAUSE OF ALLEGED FRAUDULENT STATEMENTS, IS RETURNED SO THAT THE SUBSISTENCE EXPENSES MAY BE ALLOWED IN THE AMOUNT FOUND DUE. BASED ON ADDITIONAL INFORMATION FURNISHED BY CLAIMANT IN HIS APPEAL, WE FIND THAT THE STATEMENTS MADE ON CLAIMANT'S VOUCHER WERE SUBSTANTIALLY CORRECT WHEN FILED. EVEN THOUGH SUBSEQUENT EVENTS CALLED FOR A MODIFICATION OF THE ORIGINAL STATEMENTS, THOSE STATEMENTS, UNMODIFIED, HAVE NOT BEEN SHOWN BY THE RECORD TO BE FRAUDULENT.

PETTY OFFICER LEZON WAS ORDERED TO TEMPORARY DUTY FOR TRAINING IN LOS ANGELES, CALIFORNIA, IN A HIGH-COST GEOGRAPHICAL AREA AND AUTHORIZED REIMBURSEMENT FOR HIS ACTUAL EXPENSES. SINCE HE KNEW THAT THE TRAINING WAS TO TAKE ABOUT 48 DAYS, HE ARRANGED TO RENT AN APARTMENT AT THE TEMPORARY DUTY SITE. HE WAS CHARGED SEPARATELY FOR APARTMENT RENT, ELECTRICITY, TELEPHONE, AND TOWELS, LINENS, AND MAID SERVICE. HE KEPT AN ACCOUNT OF EACH OF THOSE CHARGES, ESTIMATING THE FINAL UTILITY, SERVICE, AND TELEPHONE BILLS WHEN HE CHECKED OUT OF THE APARTMENT AT THE END OF HIS TRAINING. HE OBTAINED A RECEIPT FROM THE ACTING APARTMENT MANAGER FOR LODGINGS BASED ON THOSE TOTAL CHARGES. THE RECEIPT STATED $1,410, BASED ON CLAIMANT'S ESTIMATE OF $1,411.19. ALL THE CHARGES WERE PROPER FOR REIMBURSEMENT AS LODGINGS EXPENSES. 1 JOINT TRAVEL REGULATIONS PARA. M4007-4. THE CLAIMANT CERTIFIED ON THE EXPENSE VOUCHER THAT THE $1,410 RECEIPT FOR HIS TOTAL LODGINGS EXPENSE REPRESENTED ACTUAL AND NECESSARY EXPENSES INCURRED IN THE PERFORMANCE OF OFFICIAL TRAVEL FOR WHICH HE HAD NOT BEEN REIMBURSED.

THE VOUCHER EXAMINING SECTION AT NORFOLK, VIRGINIA, ASKED THE NAVAL INVESTIGATIVE SERVICE TO CONDUCT AN INVESTIGATION INTO THE LODGINGS RECEIPT BECAUSE IT SEEMED TOO HIGH. BASED ON CERTAIN IRREGULARITIES DISCOVERED IN THE INVESTIGATION, THE DISBURSING OFFICER RECOVERED THE $1,410 LODGINGS EXPENSES, AS WELL AS THE RELATED MEAL EXPENSES FOR THE SAME PERIOD OF TIME FROM THE CLAIMANT. CLAIMANT RECLAIMS THE MEAL EXPENSES AND A REDUCED TOTAL LODGINGS AMOUNT - $1,167.99.

THE IRREGULARITIES DISCLOSED IN THE INVESTIGATION WERE: (1) SOME ESTIMATED EXPENSES WERE USED AS THE BASIS OF THE LODGINGS RECEIPT; (2) SECURITY DEPOSITS TOTALING $252 WHICH WERE INCLUDED IN THE LODGINGS RECEIPT HAD BEEN RETURNED TO MR. LEZON BY THE APARTMENT MANAGEMENT AFTER HE HAD SUBMITTED HIS VOUCHER; (3) SOME PERSONAL LONG-DISTANCE PHONE CALLS WERE INCLUDED IN THE LODGINGS RECEIPT. THE DISBURSING OFFICER, IN THE ONLY REPORT IN THE RECORD DESCRIBING THE REASONS FOR RECOVERY OF CLAIMANT'S ACTUAL EXPENSES, STATED: "IN ACCORDANCE WITH VARIOUS NAVAL INVESTIGATIVE SERVICE REPORTS CLAIM WAS MADE BY MEMBER BASED ON INCORRECT RECEIPTS AND STATEMENTS WHICH WERE NOT FACTUAL. THEREFORE, THE AMOUNT PAID FOR ACTUAL EXPENSES IS DISALLOWED."

ALTHOUGH IT IS WELL ESTABLISHED THAT A FRAUDULENT STATEMENT ABOUT LODGINGS SUBMITTED ON A TRAVEL VOUCHER FURNISHES THE BASIS TO DISALLOW NOT ONLY THE LODGINGS CLAIM BUT THE RELATED FOOD AND MISCELLANEOUS EXPENSE CLAIM FOR THE SAME DAY (MATTER OF FRAUD, 59 COMP.GEN. 99 (1979)), THERE MUST BE AN ACTUAL FRAUDULENT STATEMENT. THE DISBURSING OFFICER DOES NOT DESCRIBE THE CLAIM AS FRAUDULENT BUT AS BASED ON "INCORRECT RECEIPTS" AND "STATEMENTS WHICH WERE NOT FACTUAL." A COLLECTION ACTION IS NOT DEFECTIVE JUST BECAUSE THE TERM "FRAUD" IS NOT USED SOMEWHERE IN THE DOCUMENTATION; HOWEVER, IN THIS CASE WE DO NOT FIND THAT THE IRREGULARITIES AMOUNT TO FRAUD. WE HAVE HELD THAT A STATEMENT WHICH IS NOT FACTUAL BUT IS INTENTIONALLY MADE AND USED AS THE BASIS FOR PAYMENT OF A CLAIM MAY NOT REQUIRE A FINDING OF FRAUD. SEE B-164433-O.M., JULY 26, 1968; B-173318- O.M., JULY 28, 1971.

THE RECEIPTS CLAIMANT USED WERE NOT ACTUAL RECEIPTS FOR MONEY PAID BUT THEY WERE VERY NEARLY CORRECT. SOME PERSONAL LONG-DISTANCE TELEPHONE CALLS WERE INCLUDED, BUT THIS APPEARS TO HAVE BEEN INADVERTENT. POSSIBLY, THE DISBURSING OFFICER CONSIDERED THAT ANY USE OF ESTIMATED EXPENSES, TOGETHER WITH THE FACT AN AMENDMENT TO HIS TRAVEL VOUCHER REFLECTING THE RETURNED SECURITY DEPOSITS AND FINAL UTILITY BILLS WAS NOT FILED, WAS FRAUDULENT. IN ANY EVENT, THE ISSUE FOR CONSIDERATION IS WHETHER ANY OF THESE FACTUAL OCCURRENCES, CONSIDERED INDIVIDUALLY OR AS A TOTALITY, WITHOUT MORE, AMOUNT TO FRAUD.

ALTHOUGH IT IS THE RESPONSIBILITY OF THE MEMBER TO FILE CLAIMS CORRECTLY, WE HAVE RECOGNIZED THAT NOT EVERY MISTAKE ON A VOUCHER IS TO BE CONSTRUED AS AN INTENT TO DEFRAUD THE GOVERNMENT REQUIRING RECOUPMENT OR DENIAL OF THE CLAIM. 57 COMP.GEN. 664, 668 (1978). DENIAL OF A CLAIM ON THE BASIS OF SUSPICION OF FRAUD MUST BE SUPPORTED BY " *** EVIDENCE SUFFICIENT TO OVERCOME THE EXISTING PRESUMPTION IN FAVOR OF HONESTY AND FAIR DEALING. *** IF, IN ANY CASE, THE CIRCUMSTANCES ARE AS CONSISTENT WITH HONESTY AND GOOD FAITH AS WITH DISHONESTY, THE INFERENCE OF HONESTY IS REQUIRED TO BE DRAWN." 57 COMP.GEN. 664, 668 (1978).

A DIRECTION ON CLAIMANT'S TRAVEL ORDER REQUIRED HIM TO SETTLE HIS TRAVEL EXPENSES WITHIN 15 DAYS AFTER COMPLETION OF TRAVEL. IN ORDER TO COMPLY WITH THE REQUIREMENT HE APPARENTLY USED ESTIMATES TO ACCOUNT IN FULL FOR EXPENSES THAT HAD BEEN INCURRED BUT WERE NOT YET BILLED. THE CLAIMANT ADMITTED THAT HE KNEW PERSONAL LONG-DISTANCE TELEPHONE CALLS COULD NOT BE LEGITIMATELY CLAIMED BUT STATED THAT ANY INCLUSION WAS INADVERTENT. ONLY $14.86 OF $56.96 OF CHARGES FOR CALLS WAS INCLUDED. AFTER THE COST OF THE TELEPHONE CALLS WERE DEDUCTED FROM THE CLAIM, AND AFTER ADJUSTMENTS WERE MADE FOR THE FINAL UTILITY BILLS, CLAIMANT DETERMINED THAT HIS ACTUAL ALLOWABLE LODGINGS EXPENSES AT THE TIME HE SUBMITTED HIS VOUCHER WOULD HAVE BEEN $1,419.99 - $9.99 MORE THAN THE ESTIMATED $1,410 RECEIPT. ALTHOUGH WE FIND BELOW THAT $22.02 OF THESE ACTUAL EXPENSES ARE NOT ALLOWABLE, WE FIND THAT THE INITIAL SUBMISSION OF CLAIMANT'S TRAVEL VOUCHER SUBSTANTIALLY CORRECTLY REPRESENTED CLAIMANT'S LODGINGS EXPENSE AT THAT TIME. SINCE WE FIND NO INTENT TO COLLECT FROM THE GOVERNMENT A SUM IN EXCESS OF THAT LEGALLY DUE, THE INITIAL SUBMISSION WAS NOT FRAUDULENT.

WHEN CLAIMANT RECEIVED THE SECURITY DEPOSITS AND FINAL BILLS DIFFERING FROM HIS ESTIMATES AFTER HE HAD SUBMITTED HIS VOUCHER, HE BECAME OBLIGATED TO SUBMIT AN AMENDED VOUCHER. HE EXPLAINED TO THE INVESTIGATOR:

"I DID NOT SUBMIT ANY AMENDMENT TO MY TRAVEL CLAIM WHICH HAD ALREADY BEEN SUBMITTED AND SETTLED. THERE IS A TEN DAY CLEARING PERIOD FOR CHECKS PUT INTO A BANK ACCOUNT AND I INTENDED TO HAVE THE CHECKS CLEAR THE BANKING SYSTEM AND THEN TAKE THE MONEY OVER TO THE DISBURSING OFFICE. HOWEVER, I BEGAN TO EXPERIENCE SEVERE MARTIAL PROBLEMS WHEN I RETURNED FROM TAD AND THAT COUPLED WITH PROBLEMS AT WORK CAUSED ME TO FORGET TO RETURN THE MONEY TO THE NAVY. *** IT WAS NOT MY INTENT TO DEFRAUD THE GOVERNMENT."

SINCE THE RECORD CONTAINS NOTHING TO REBUT PETTY OFFICER LEZON'S EXPLANATION OF HIS FAILURE TO SUBMIT AN AMENDMENT, WE FIND THAT THE EXISTING PRESUMPTION IN FAVOR OF HONESTY AND FAIR DEALING HAS NOT BEEN OVERCOME. IN VIEW OF ALL THE CIRCUMSTANCES, WE CONCLUDE THAT THE EVIDENCE IS INSUFFICIENT TO WARRANT SUSPICION OF FRAUD OR IRREGULARITY WHICH WOULD SUPPORT THE DENIAL OF THE MEMBER'S RECLAIM. SEE MATTER OF WELSH, B-200976-O.M., MARCH 18, 1981, AND CASES CITED THEREIN.

PETTY OFFICER LEZON RECLAIMS HIS ACTUAL LODGING EXPENSES (THE SECURITY DEPOSITS AND PERSONAL LONG-DISTANCE TELEPHONE CALLS HAVE NOW BEEN DELETED), WHICH ARE SHOWN TO BE $1,167.99. PART OF THESE ACTUAL EXPENSES WERE TELEPHONE INSTALLATION CHARGES, WHICH CANNOT BE REIMBURSED AS PART OF LODGING EXPENSES. SEE 56 COMP.GEN. 40 (1976). THERE ARE ALSO OTHER COMPUTATIONAL ERROS REGARDING THE TELEPHONE EXPENSES. WE FIND THAT $22.02 OF CLAIMED TELEPHONE EXPENSES MUST BE DISALLOWED FROM CLAIMANT'S ACTUAL LODGINGS EXPENSES. $1,145.97 LODGINGS EXPENSES MAY BE ALLOWED, IN ADDITION TO THE MEAL EXPENSES, SUBJECT TO ADJUSTMENTS FOR THE AMOUNT ACTUALLY COLLECTED FROM CLAIMANT BY THE NAVY.