B-213977, JUN 26, 1984, OFFICE OF GENERAL COUNSEL

B-213977, JUN 26, 1984, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

MR. CLYDE E. JEFFCOAT PRINCIPAL DEPUTY COMMANDER U.S. ARMY FINANCE AND ACCOUNTING CENTER

DEAR MR. JEFFCOAT:

THIS RESPONDS TO YOUR REQUEST THAT WE RELIEVE LTC H. J. LOWE, FINANCE CORPS, SYMBOL NUMBER 5059, FINANCE AND ACCOUNTING OFFICER, U.S. ARMY AIR DEFENSE CENTER AND FORT BLISS, TEXAS, UNDER 31 U.S.C. SEC. 3527(C), FOR AN IMPROPER PAYMENT OF A $338 CHECK PAYABLE TO GARY L. KENNISON, THAT IS CHARGED TO HIS ACCOUNT. FOR THE REASONS STATED BELOW, RELIEF IS DENIED.

THE LOSS RESULTED WHEN THE PAYEE NEGOTIATED BOTH THE ORIGINAL, DATED JULY 14, 1982, AND A SUBSTITUTE CHECK, DATED AUGUST 4, 1982. BOTH CHECKS WERE IN THE SAME AMOUNT. THE SUBSTITUTE CHECK WAS ISSUED ON THE BASIS OF THE PAYEE'S ALLEGATION THAT HE HAD NOT RECEIVED THE ORIGINAL CHECK AND HIS REQUEST FOR STOP PAYMENT, DATED AUGUST 4, 1982.

THIS OFFICE HAS AUTHORITY UNDER 31 U.S.C. SEC. 3527(C) TO RELIEVE A DISBURSING OFFICER FROM LIABILITY FOR A DEFICIENCY RESULTING FROM AN IMPROPER PAYMENT UPON DETERMINING "THAT THE PAYMENT WAS NOT THE RESULT OF BAD FAITH OR LACK OF REASONABLE CARE BY THE OFFICIAL." AN IMPORTANT ELEMENT THAT WE LOOK TO TO ESTABLISH THAT AN ACCOUNTABLE OFFICER HAS EXERCISED DUE CARE IS THE APPLICABLE AGENCY REGULATIONS. 62 COMP.GEN. 91 (1982).

ARMY DISBURSING OFFICERS ARE AUTHORIZED TO ISSUE SUBSTITUTE CHECKS IF A REQUEST FOR A SUBSTITUTE CHECK IS MADE WITHIN 15 DAYS FROM THE DATE THE ORIGINAL CHECK WAS ISSUED (THERE IS A 30-DAY PERIOD FOR CHECKS MAILED OVERSEAS, TO HAWAII AND TO ALASKA THAT DOES NOT APPLY HERE). SEE AR 37-103, PARAGRAPHS 4-160 AND 4-164. WHERE THERE IS A FAILURE TO COMPLY WITH THESE PROVISIONS, WE ARE UNABLE TO CONCLUDE THAT THE REQUISITE STANDARD OF CARE HAS BEEN MET. SEE B-197324, MARCH 7, 1980.

IN THIS CASE THE SUBSTITUTE CHECK WAS REQUESTED AND ISSUED 21 CALENDAR DAYS AND 15 WORK DAYS FROM THE DATE OF THE ORIGINAL CHECK. WE BELIEVE THE NORMAL CONSTRUCTION OF THE TIME PERIOD CONTAINED IN ARMY REGULATIONS WOULD BE TO USE CALENDAR DAYS. CF. RULE 6(A), RULES OF CIVIL PROCEDURE FOR THE UNITED STATES DISTRICT COURT, 28 U.S.C., APP. AT 535 (1982). BUT SINCE THESE ARE ARMY REGULATIONS, WE ARE RELUCTANT TO REACH THIS CONCLUSION WITHOUT GIVING YOU AN OPPORTUNITY TO PRESENT THE ARMY'S VIEW OF THIS QUESTION. ACCORDINGLY, WE WILL NOT RELIEVE LTC LOWE AT THIS TIME. SHOULD YOU CONCLUDE THAT THE SUBSTITUTE CHECK IN THIS CASE WAS ISSUED IN ACCORDANCE WITH ARMY REGULATIONS, WE WILL BE HAPPY TO RECONSIDER OUR DECISION.

IT APPEARS THAT AGGRESSIVE COLLECTION ATTEMPTS ARE BEING MADE TO COLLECT THIS DEBT IN ACCORDANCE WITH THE FEDERAL CLAIMS COLLECTION ACT, AS AMENDED, 37 U.S.C. SEC. 3711 ET SEQ., AND THE PROCEDURES OUTLINED IN OUR DECISION, 62 COMP.GEN. 476 (1983). SUCH ATTEMPTS SHOULD BE CONTINUED. THE EVENT THEY ARE UNSUCCESSFUL AND RELIEF IS NOT GRANTED LATER, COLLECTION ACTION MUST BE COMPLETED AGAINST LTC LOWE. SEE B-212602, APRIL 5, 1984.