"(e) That Captain Wright never turned any money over to the civilian clerk, Barricklow, without being told, in each specified instance, to do so by Lt. I. D. Van Meter.

"That it was the general practice of Lieutenant Kuhn to turn money over to the civilian clerk, Barricklow, only when the quartermaster, Lieutenant Van Meter, was absent from the office, that this practice was in accordance with the general instructions of Lieutenant Van Meter to Lieutenant Kuhn and that when, in accordance with these instructions, Lieutenant Kuhn did turn money over to Barricklow, he (Lieutenant Kuhn) later advised Lieutenant Van Meter accordingly.

"That it was the general practice of Lieutenant Sullivan either to secure the personal approval of Lt. I. D. Van Meter before turning money over to Barricklow or later to check with Lieutenant Van Meter personally any such payments to Mr. Barricklow or to do both.

" That the preponderence of evidence is that Captain Wright, Lieutenant Kuhn, and Lieutenant Sullivan, in turning funds for payment of civilian employees over to the quartermaster, Lt. I. D. Van Meter, another commissioned officer, or in turning such funds over to Mr. Barricklow under the conditions set forth above, did adopt reasonable and proper measures to insure the delivery of the funds involved to the persons to whom payable.

"(g) That Lt. I. D. Van Meter repeatedly brought the clerk, Barricklow, with him to the finance office to receive these funds; that he repeatedly notified the finance officer that he (Lieutenant Van Meter) was sending the clerk, Barricklow, to receive such funds; that he invariably approved the action of the finance officers in turning over such funds to Mr. Barricklow when later informed that such action had been taken; that he advised the finance officers, from time to time, that the clerk, Barricklow, was authorized by him to receive such funds. "(h) That reports having been made to Lt. I. D. Van Meter from time to time as to the unreliability or dishonesty of the clerk, Barricklow, he took no corrective action but continued, for a period of more than a year, to utilize Mr. Barricklow as set forth in (g) above, and that he sought to prevent the fact that he had received such reports from being brought, later, to the attention of the inspector. "(i) That the losses of the funds herein referred to were due primarilo to either the culpability or the gross negligence of the quartermaster, Lt. I. D. Van Meter, that this officer is both morally and legally responsible for these losses; and that he, primarily, should be held pecuniarily responsible therefor."

6. The records strongly indicate that Lt. I. D. Van Meter was so lax and negligent in conducting and directing the affairs of his office pertaining to money matters, including those affecting pay-roll disbursements, that it became easily possible for a faithless employee to carry on fraudulent practices without much danger of immediate detection. While it appears, therefore, that Lt. I. D. Van Meter cannot excape a high degree of blame for the losses that resulted from payments of the fraudulent pay rolls by the three agent officers, nevertheless the responsibility of the latter officers in connection with their duties as class B agent officers must be measured and determined, not solely in relation to Lieutenant Van Meter's part in the matter, but if they are to avoid primary responsibility it must appear that the losses are not traceable to their own failure in the first instance to observe the limiting laws and regulations governing the duties of class B agent officers. These laws and regulations will now be examined.

7. Agent finance officers are authorized by a provision in the National Defense Act, as amended (41 Stat. 776), reading as follows:

"Under such regulations as may be prescribed by the Secretary of War, officers of the Finance Department, accountable for public moneys, may entrust moneys to other officers for the purpose of having them make disbursements as their agents, and the officer to whom the moneys are entrusted, as well as the officer who entrusts the money to him, shall be held pecuniarily responsible therefor to the United States."

Regulations prescribed pursuant to this statute, and contained in Army Regulations 35-320 of 1922, provide that officers to whom public moneys are, by accountable officers, entrusted for disbursement, are known as agent officers; that they are divided into two classes, A and B; that class A agent officers are officers, other than duly appointed finance officers, who are detailed by local commanding officers as agent officers for the purpose of making specified payments, and that class B agent officers are "officers who are detailed as finance officers of posts, camps, stations, or other commands, either by the War Department or by local commanding officers, who are directed by the Chief of Finance to perform their duties as agent officers, instead of as accountable officers." regulation, in paragraph 1, announced that the term "pecuniarily responsible,"

The

as used in the statute, "will in its application to agent officers, include responsibility for all erroneous payments * * "" Paragraph 2 provides in part: "When it is impracticable for the accountable disbursing officer to make payments to troops and others in person without undue delay, agent officers will be detailed as provided in paragraph 3, to make such payments, or such part of such payments, as it may be deemed desirable to have them make." [Italics supplied.] 8. This office finds nothing in either the law or the regulations from which any justifiable inference may be drawn that an agent officer, acting upon his own initiative and responsibility, is now, or has been, authorized to deliver money to another officer or other person to be disbursed by the latter. Paragraph 3 c, A. R. 35-5, directs that the Chief of Finance will define the technical duties of finance and disbursing officers with respect to their work and the methods to be pursued by them. Nothing has been found in finance circulars issued by the Chief of Finance to warrant the agent officers in this case in assuming that they were authorized to entrust public funds to third persons for disbursement.

9. The provisions of paragraph 5, A. R. 35-120, referred to by the Inspector General, applies to all disbursing officers, including accountable and agent officers. It is not, in my opinion, to be construed as impliedly authorizing a disbursing officer to turn money over to a third person to disburse for him, as was done in this case. Obviously if an agent officer may do this, he would be defeating the primary purpose of the law providing for agent officers to make disbursements for accountable finance officers. He would be creating without authority a subagent to perform a duty involving a high degree of trust and responsibility which he is specially designated under the law to perform, and for the proper performance of which the law holds him and the accountable officer both pecuniarily responsible.

10. The agent officers have referred, as some justification for their practice of turning money over to the quartermaster's representatives for disbursement, to the fact that it was the practice at that post for the post commander to authorize the agent officers to turn money over to the various troop commanders for payment of the troops each month. It is not contended by them that the post commander authorized similar procedure for the payment of the quartermaster employees. Whether the procedure with reference to the payment of the troops was regular or irregular, it is clear that the agent officers had no color of authority to adopt a similar procedure with reference to the civilian quartermaster employees. In a case considered by this office March 8, 1919 (Dig. Ops. J. A. G., 1919, p. 143), it was shown that an agent disbursing officer turned over to a company commander a sum of money for the payment of the enlisted men of his command, and that the latter absconded with a part of the money. This office held:

The

"The responsibility of the disbursing officer and his agent is absolute. mere fact that they exercised due care or all reasonable care in making their disbursements, does not relieve them from responsibility for wrongful disbursement The act * * or loss. * specifically provides that officers of the Army accountable for public moneys may entrust such moneys to other officers for the purpose of making disbursements as their agents, and the officers to whom the moneys are entrusted, as well as the officers who entrust such moneys to them shall be held pecuniarily responsible therefor to the United States. Under this plain statutory provision Lt. John Doe is responsible for the wrong dealing of Lt. Richard Roe. Congress alone can relieve the responsible officers from liability."

11. It is not disputed that the greater part of the illegal payments in the present case were made on pay rolls containing the names of fictitious payees. At least so far as the fictitious payees are concerned, these vouchers were spurious, and the agent officers cannot escape responsibility for the illegal payments. Paragraph 5 b, A. R. 35-120, announces a well-settled rule in the language that "disbursing officers are liable on their official bonds for the amounts of all payments made by them on spurious vouchers." This rule is firmly settled. In Digest of Opinions (J. A. G., 1912, p. 890), it is stated in the following language:

"A disbursing officer of the Army who has paid out public moneys upon vouchers which prove to have been false or forged is personally responsible to the United States for the amount of the loss; and it is the usage of the Government to hold such an officer so responsible, however innocent of criminality he may be; the fact that he has acted in good faith not affecting his legal liability. Such an officer, further, is not entitled to call upon the Government to prosecute a civil suit against the party chargeable with the fraud, but may himself initiate such a suit if he

desires to do so for his own indemnity (R. 16, 635, October 25, 1865; 28, 20, July 29, 1868; 42, August 7, 1868; 32, 423, March 22, 1872)." (See also 23 Comp. Dec., p. 319.)

12. For the reasons stated it is the view of this office that Captain Wright, Lieutenant Kuhn, and Lieutenant Sullivan are and should be held pecuniarily responsible for the illegal payments.

For the Judge Advocate General:

A true copy:

ALLEN W. GULLION, Lieutenant Colonel, J. A. G. D., Chief, Military Affairs Section.

E. SULLIVAN, Colonel, Air Corps.

COMPLETE LIST of Duty Details of E. Sullivan, Colonel, Air Corps (Then 1ST LT. SULLIVAN) DURING TOUR OF DUTY AT KELLY FIELD, TEXAS FROM JUNE 1927 TO MARCH 1930

Abbreviations: SO-Special Orders; par.-paragraph; Hq. The ACAFS & 10th Sch. Gp., KFT-Headquarters, The Air Corps Advanced Flying School and Tenth School Group, Kelly Field, Texas SO 139, par. 7, War Department, Washington, D. C., June 14, 1927:

"7. First Lieutenant Edwin Sullivan, Air Corps, is relieved from assignment and duty at Fort Crockett, Texas, and will proceed to Kelly Field, Texas, and report in person to the commandant, the Air Corps Advanced Flying School, for duty. The travel directed is necessary in the military service. FD 35 P. 5040 A 2-7."

SO 146, par. 15, Hq. The ACAFS & 10 Sch. Gp., KFT, June 28, 1927: "15. First Lieutenant Edwin Sullivan, Air Corps, having reported at this station June 25, 1927, in compliance with paragraph 7, Special Orders No. 139, War Department, Washington, D. C., June 14, 1927, is assigned to the 41st School Squadron, Air Corps, effective June 25, 1927, and is detailed as the Provost Marshal, Police, Prison, School, Intelligence, Athletic, and Recreation Officer, and is designated as custodian of the chaplains' fund, and will report to the Adjutant for further instructions, vice, First Lieutenant Francis P. Booker, Air Corps, relieved."

Assigned as Pilot with 41st School Squadron in July 1927.

SO 177, par. 5 and par. 6, Hq. The ACAFS & 10th Sch: Gp., KFT, August 4, 1927: "5. First Lieutenant Frederick A. Johnson, Air Corps, is detailed as the Provost Marshal, Police, Prison, School, Intelligence, Athletic, and Recreation Officer, and is designated custodian of the chaplains' fund, vice First Lieutenant Edwin Sullivan, Air Corps, relieved.

"6. First Lieutenant Edwin Sullivan, Air Corps, is detailed as Agent Finance Officer of this Command, vice, Captain William B. Wright, Jr., Air Corps,

relieved."

SO 180, par. 6, Hq. The ACAFS & 10th Sch. Gp., KFT, August 8, 1927: "6. First Lieutenant Edwin Sullivan, Air Corps, is detailed as Commanding Officer of the Flying Cadet Detachment, vice, Captain B. Wright, Jr., Air Corps, relieved."

SO 185, par. 5, Hq. The ACAFS & 10th Sch. Gp., KFT, August 13, 1927: "5. First Lieutenant Edwin Sullivan, Air Corps, is attached to the Detachment Finance Department, vice, Captain William B. Wright, Jr., Air Corps, relieved from attachment."

SO 192, par. 3, Hg. The ACAFS & 10th Sch. Gp., KFT, August 23, 1927:

"3. A Special Court Martial is appointed to meet at this station at 10:00 A. M. Wednesday, August 24, 1927, or as soon thereafter as practicable for the trial of such persons as may properly be brought before it:

"All unarraigned cases referred for trial to the Trial Judge Advocate of the Special Court Martial appointed by paragraph 11, Special Orders No. 135, this headquarters, June 15, 1927, will be turned over by him to the Trial Judge Advocate of this court for trial."

SO 214, par. 2, Hq. The ACAFS & 10th Sch, Gp., KFT, September 19, 1927: "2. First Lieutenant Edwin Sullivan, Air Corps, is relieved from further assignment and duty with the 41st School Squadron, Air Corps, and is assigned to the 42nd School Squadron, Air Corps, and will remain on his present Special Duty.'

SO 220, par. 11, Hq. The ACAFS & 10th Sch. Gp., KFT, September 26, 1927: "11. The following-named officers are detailed to take inventory and audit the accounts of the Post Exchange for the month of September 1927, at the Post Exchange at 8:00 A. M. Thursday, September 29, 1927:

SO 270, par. 4, Hq. The ACAFS & 10th Sch. Gp., KFT, November 26, 1927: "4. The following-named officers are detailed to take inventory and audit the accounts of the Post Exchange, The Air Corps Advanced Flying School, for the month of November 1927, at the Post Exchange, at 8:00 A. M. Tuesday, November 29, 1927:

SO 44, par. 1, Hq. The ACAFS & 10th Sch. Gp., KFT, February 24, 1928: "1. The following- amed officers are detailed to take inventory and audit the accounts of the Post Exchange, The Air Corps Advanced Flying School, for the month of February 1928, at the Post Exchange, at 8:30 A. M., Tuesday, February 28, 1928:

SO 73, par. 9, Hq. The ACAFS & 10th Sch. Gp., KFT, Mar 30, 1928:

"9. First Lieutenant Arthur Thomas, Air Corps, in addition to his other duties, is detailed as Commanding Officer of the Flying Cadet Detachment, The Air Corps Advanced Flying School, effective April 1, 1928, vice First Lieutenant Edwin Sullivan, Air Corps, relieved."

SO 82, par. 7, Hq. Eighth Corps Area, Fort Sam Houston, Texas, April 9, 1928:

"7. A general court martial is appointed to meet at Kelly Field, Texas, Eighth Corps Area, at ten o'clock A. M., Tuesday, April 10, 1928, or as soon thereafter as practicable for the trial of such persons as may be brought before it:

DETAIL FOR THE COURT

"First Lieut. Edwin Sullivan, Air Corps.

SO 88, par. 12, Hq. The ACAFS & 10th Sch. Gp., KFT, April 17, 1928: "12. First Lieutenant Edwin Sullivan, Air Corps, in addition to his other duties, is detailed Athletic Officer, E. & R. Officer, and Supply Officer, Tenth School Group, A. C., effective May 1, 1928, vice First Lieutenant Frederick A. Johnson, Air Corps, relieved."

SO 91, par. 5, Hq. The ACAFS & 10th Sch. Gp., KFT, April 20, 1928:

"5. The following-named commissioned officers are relieved further assignment from organizations indicated, and are assigned to organizations indicated after their respective names:

The above-named officers will remain on their present Special Duty."

Relieved from assignment to 41st School Squadron and assigned to 48th School Squadron per SO 98, par. 1, Hq. The ACAFS & 10th Sch. GP., KFT, April 28, 1928.

Special Operations Orders No. 113, Hq. The ACAFS & 10th Sch. Gp., Kelly Field, Texas, Office of the Operations Officer, June 5, 1928:

"1. Under authority contained in Army Regulations 35-4890, and Letter War Department, Office of the Chief of Air Corps, Washington, May 28, 1928, Subject: Orders, to the Commanding General, Air Corps Training Center, Duncan Field, San Antonio, Texas; the following named officers, Air Corps, will proceed by rail, June 6, 1928, from Kelly Field, San Antonio, Texas, to Buffalo, New York, for the purpose of securing and ferrying three A-3 Attack Airplanes, numbers, 27-312, 27-313, and 27-314, to be delivered under Supplemental Contract W 535 AC 637, from the plant of the Curtis Aeroplane & Motor Co., Inc., Buffalo, New York, ready for delivery about June 6, via the best available air route, to Kelly Field, Texas:

*

"Sullivan, Edwin, 1st Lieut. A. C.

SO 131, par. 3, Hq. The ACAFS & 10th Sch. Gp., KFT, June 7, 1928:

"3. First Lieutenant Dale V. Gaffney, Air Corps, in addition to his other duties, is detailed as Supply Officer, Temth School Group, Air Corps, Athletic Officer and E. & R. Officer, The Air Corps Advanced Flying School, during the temporary absence of First Lieutenant Edwin Sullivan, Air Corps."

SO 138, par. 8, Hq. The ACAFS & 10th Sch. Gp., KFT, June 15, 1928:

"8. Under the provisions of paragraph 1-c-4-b, Army Regulations 345-415, a Board of Officers consisting of.: