A-15290, MARCH 7, 1928, 7 COMP. GEN. 548

A-15290, MARCH 7, 1928, 7 COMP. GEN. 548

DISBURSING OFFICERS - REFUND OF DISALLOWANCES - MISCELLANEOUS RECEIPTS - SAVINGS DEPOSITS - MARINE CORPS ENLISTED MEN WHERE AN AMOUNT HAS BEEN DEPOSITED BY OR ON BEHALF OF A DISBURSING OFFICER TO REMOVE A DISALLOWANCE IN HIS ACCOUNT THE DISBURSING OFFICER, OR ANYONE ON HIS BEHALF, OR ON THE GROUND THAT THE CLAIMANT FURNISHED THE MONEY FOR THE DEPOSIT, IS ESTOPPED FROM THEREAFTER QUESTIONING THE CORRECTNESS OF THE DISALLOWANCE IN THE FORM OF A CLAIM FOR REFUND OF THE AMOUNT DEPOSITED. AMOUNTS REFUNDED BY OR ON BEHALF OF A DISBURSING OFFICER TO COVER DISALLOWANCES OF PAYMENTS MADE, WHERE THE PAYEE WAS INDEBTED FOR CLOTHING, AND DEPOSITED IN THE TREASURY TO THE CREDIT OF ,MISCELLANEOUS RECEIPTS," MAY NOT BE REFUNDED. THE VALUE OF CLOTHING ISSUED AN ENLISTED MAN OF THE MARINE CORPS IN EXCESS OF THE AUTHORIZED ALLOWANCE IS PROPER FOR SET OFF AGAINST THE SAVINGS DEPOSITS OF THE ENLISTED MAN ON DISCHARGE.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 7, 1928:

THERE HAS BEEN RECEIVED THE FOLLOWING CLAIM FROM CHIEF PAY CLERK DAVID H. MCKEE, UNITED STATES MARINE CORPS:

WHILE SERVING AS DEPUTY AT MARINE BARRACKS, BREMERTON, WASHINGTON, FOR THE ASSISTANT PAYMASTER, UNITED STATES MARINE CORPS, (THEN CAPTAIN HUGH SHIPPEY), SAN FRANCISCO, CALIF., THE UNDERSIGNED IN COMPUTING THE FINAL SETTLEMENT OF ACCOUNT IN THE CASE OF IRA L. BARBER, PRIVATE, U.S.M.C., CREDITED AND PAID DEPOSITS AND INTEREST AMOUNTING TO $20.92, DISREGARDING AN ITEM OF $22.14 DUE THE UNITED STATES FOR EXCESS CLOTHING.

THE AMOUNT IN QUESTION WAS DISALLOWED IN THE ACCOUNT OF CAPTAIN HUGH SHIPPEY, A.P.M., U.S.M.C., CERTIFICATE NO. M-8871-N, ITEM 29, AND THE DISALLOWANCE LATER SUSTAINED BY THE COMPTROLLER GENERAL IN HIS DECISION OF SEPTEMBER 21, 1926, VOL. 6, P. 197. HAVING PREPARED THE FINAL SETTLEMENT IN THIS CASE, AND CAPTAIN SHIPPEY HAVING RESIGNED FROM THE SERVICE, IN ORDER TO REMOVE THIS DISALLOWANCE THE UNDERSIGNED REMITTED TO THE ASSISTANT PAYMASTER, U.S.M.C., SAN FRANCISCO, CALIF. (COPY OF LETTER ATTACHED), ON OCTOBER 7, 1926, THE SUM IN QUESTION, BY CHECK NO. 84477, DATED OCTOBER 6, 1926, DRAWN BY CAPTAIN L. L. DYE, ASSISTANT PAYMASTER, U.S.M.C. (SYMBOL NO. 53037), ON THE TREASURER OF THE UNITED STATES, IN FAVOR OF D. H. MCKEE, CHIEF PAY CLERK, ENDORSED BY HIM PAYABLE TO THE ASSISTANT PAYMASTER, SAN FRANCISCO, CALIF., AND THE AMOUNT TAKEN UP BY THAT OFFICER (LT. COL. R. B. PUTNAM, A.P.M., U.S.M.C.) IN HIS ACCOUNT (ABSTRACT OF COLLECTIONS) FOR OCTOBER, 1926.

NOTWITHSTANDING ADVERSE DECISION OF THE COMPTROLLER GENERAL IN THIS CASE, THE UNDERSIGNED CONTENDS THAT THE ITEM IN QUESTION WAS NOT A PROPER CHARGE AGAINST DEPOSITS AND INTERESTS, AND ACCORDINGLY MAKES CLAIM FOR AMOUNT STATED ($20.92).

THIS VIEW OF THE OFFICER WHO WAS REQUIRED TO MAKE GOOD THE DISALLOWANCE OF THE PAYMENT IN THE DISBURSING OFFICER'S ACCOUNT, AS CONTRARY TO DECISIONS IN EFFECT FOR OVER 17 YEARS, AND THE DISALLOWANCE SUSTAINED AFTER REVIEW AND FULL CONSIDERATION, SEEMS TO BE THAT THE LONG STANDING AND HERETOFORE FOLLOWED DECISION IS INCORRECT, AND ON THAT PREMISE REFUND SHOULD BE MADE FOR THE AMOUNT DEPOSITED TO REMOVE THE DISALLOWANCE IN THE DISBURSING ACCOUNTS, AND LONG SINCE COVERED INTO THE TREASURY OF THE UNITED STATES. THE QUESTION INVOLVED MUST BE CONSIDERED AS RES ADJUDICATA AND CLAIM IS NOT NOW ENTITLED TO CONSIDERATION. DEPOSIT WAS MADE IN THE NAME OF CAPTAIN SHIPPEY; IT WAS MADE TO REMOVE A DISALLOWANCE IN HIS ACCOUNTS, AND THAT DEPOSIT PRECLUDES CAPTAIN SHIPPEY, OR ANYONE IN HIS BEHALF OR IN HIS NAME, OR ON THE GROUND THAT THEY FURNISHED THE MONEY, FROM DISPUTING THE CORRECTNESS OF THE SETTLEMENT. FURTHERMORE, ASSUMING THE CORRECTNESS OF THE CLAIMANT'S VIEW AS TO THE DISALLOWANCE, THE MONEY HAVING BEEN COVERED INTO THE TREASURY OF THE UNITED STATES TO THE CREDIT OF "MISCELLANEOUS RECEIPTS," IT MAY NOT BE WITHDRAWN FROM THE GENERAL FUND OF THE TREASURY WITHOUT AN APPROPRIATION THEREOF BY CONGRESS, AND NO APPROPRIATION HAS BEEN MADE TO REFUND THIS PAYMENT. THE CLAIM PRESENTED BEING THEREFORE ENTIRELY WITHOUT BASIS IN LAW, IT IS DISALLOWED ACCORDINGLY.

HOWEVER, IT MAY BE SAID THE RULE WITH RESPECT TO THE LIABILITY OF DEPOSITS OF ENLISTED MEN FOR DEBTS DUE THE UNITED STATES, WHILE FIRST ANNOUNCED IN THE DECISION, 16 COMP. DEC. 566, SEEMS TO HAVE BEEN THE RULE FOLLOWED FROM THE DATE OF THE PASSING OF THE ACT OF MAY 15, 1872, 17 STAT. 117, UNDER THE GENERAL RULE AS TO OFFSETS AND WITHOUT SPECIFIC DECISION BY THE ACCOUNTING OFFICERS. THE PRINCIPLE IS NOW WELL SETTLED AND MAY NOT BE DEPARTED FROM.