B-245773, May 14, 1992

B-245773, May 14, 1992

MILITARY PERSONNEL - Travel - Travel advances - Losses DIGEST: Officer may not be relieved of liability for advance travel funds which were taken from hotel safe deposit box in Kuwait during Iraqi invasion since such funds are in the nature of a loan rather than government funds and there is no authority for waiver. Possible other relief under 31 U.S.C. Sec. 3721 and Sec. 8138 of Pub.L. No. 102-172 is under the discretion of the Secretary of Defense or Department Head and not for review by GAO.

Lieutenant Commander Michael S. Schwartz, USN:

Lieutenant Commander (LCDR) Michael S. Schwartz, USN, has requested relief from liability for $10,881.25 in missing funds. The funds were advance travel funds given to LCDR Schwartz in connection with a temporary additional duty (TAD) assignment in Kuwait and were lost as a result of the Iraqi invasion of Kuwait.

LCDR Schwartz, while enroute to his TAD assignment in Kuwait, reported to the U.S.S. LaSalle where he received $28,020 in advance travel funds to cover his entire 179-day TAD period. He then proceeded to Kuwait on July 2, 1990 and on July 3, 1990, placed the funds in a safe deposit box at the Kuwait International Hotel. LCDR Schwartz states that he placed the money in the safe deposit box because the American Embassy stated it could not handle such a large amount and that he could not deposit it in a Kuwaiti bank without U.S. government approval. He states also that his attempt to convert the monies to travelers checks were delayed because of the paperwork that had to be completed between the Kuwaiti government and the American Embassy.

LCDR Schwartz reports that he checked on the money in the safe deposit box on a weekly basis. When Iraqi forces invaded Kuwait on August 2, 1990, LCDR Schwartz states that he had to leave the hotel without being able to remove the money from the safe deposit box. When the U.S. Deputy Chief of Mission returned to the hotel to retrieve the funds on August 8, 1990, the safe deposit box was empty. LCDR Schwartz assumes the funds were taken during the looting which occurred during the invasion.

We are unable to grant LCDR Schwartz the relief he requests.

We have consistently held that travel expense advances, given under the authority of 37 U.S.C. Sec. 404(b)(1)(A), are in the nature of a loan rather than government funds. Technical Sergeant Jimmie B. Shook, USAF, B-190125, Dec. 28, 1977. Thus, the funds which were stolen were LCDR Schwartz's, not those of the government. Amounts which are advanced and are not used for allowable expenses must be recovered. There is no authority for granting relief from this responsibility.

Regarding the question of whether there is any special authority for the waiver of debts resulting from Operation Desert Shield/Storm, section 8138 of the 1992 National Defense Appropriations Act (Pub.L. No. 102-172, Nov. 26, 1991, 105 Stat. 1150 at 1212) gave the Secretary of Defense the authority to cancel any part of an indebtedness, up to $2,500, owed to the United States by a member of a uniformed service if, as determined by the Secretary, the debt was incurred in connection with Operation Desert Shield/Storm. Our Office has no responsibility or authority under this provision.

We note that the Navy denied LCDR Schwartz' claim under 31 U.S.C. Sec. 3721, the Military Personnel and Civilian Employees' Claims Act of 1964, which permits agencies and military departments to settle claims of members for loss or damage to personal property incident to service. See Shook, B-190125, supra. Our Office has no jurisdiction to question any claim settlement under that statute. 62 Comp.Gen. 641 (1983).

The claim was denied on the ground that LCDR Schwartz failed to exercise due care in protecting the cash advanced to him. The November 25, 1991 Judge Advocate General (JAG) decision noted a 6 month appeal deadline. The December 19, 1991 request for assistance from Congressman Ronald D. Coleman was not considered by the Navy to be an appeal of the JAG decision but instead was forwarded to our Office. In our view the Navy should now determine whether the December 1991 congressional letter is for consideration as an appeal on LCDR Schwartz' behalf from the earlier decision.

Honorable Ronald D. Coleman Member, United States House of Representatives:

This is in further reference to your letter of December 19, 1991 concerning the request for relief of LCDR Michael S. Schwartz from liability for $10,881.25 in missing funds resulting from the Iraqi invasion in Kuwait.

Enclosed is our decision of today regarding LCDR Schwartz's request.

To: Director, Claims Group/GGD - Sharon S. Green

From: General Counsel - James F. Hinchman

Subject: Claim of LCDR Michael S. Schwartz-- B-245773 (Z-2867706)

We are returning your file Z-2867706 along with a copy of our decision of today.