B-151168, NOV 22, 1971, 51 COMP GEN 303

B-151168, NOV 22, 1971, 51 COMP GEN 303

DETAILS - MILITARY PERSONNEL - CIVILIAN DUTY - TRAVEL FUNDS ADVANCED RECOVERY THE UNACCOUNTED TRAVEL FUNDS ADVANCED BY THE FEDERAL AVIATION ADMINISTRATION TO MEMBERS OF THE ARMED FORCES DETAILED TO THE DEPARTMENT OF TRANSPORTATION AS "SKY MARSHALS" TO PREVENT AIR PIRACY, AND WHO SUBSEQUENTLY RETIRED, MAY BE RECOVERED FROM THE RETIRED PAY OF THE MEMBERS INDEBTED FOR THE OUTSTANDING TRAVEL FUNDS ADVANCED, PURSUANT TO 5 U.S.C. 5514, NOTWITHSTANDING THE DEBT AROSE IN OTHER THAN A MILITARY DEPARTMENT, AS A DETAILED MEMBER REMAINS A MEMBER OF THE ARMED FORCES SUBJECT TO RECALL TO DUTY, AND SINCE HIS PARAMOUNT OBLIGATION IS TO THE MILITARY, HIS PAY AND ALLOWANCES ARE SUBJECT TO MILITARY LAWS AND REGULATIONS, AND THE INDEBTNESS OF EACH INDIVIDUAL SHOULD BE REFERRED TO THE APPROPRIATE MILITARY DEPARTMENT FOR COLLECTION.

TO THE DIRECTOR, OFFICE OF MANAGEMENT SYSTEMS, FEDERAL AVIATION ADMINISTRATION, NOVEMBER 22, 1971:

REFERENCE IS MADE TO LETTER DATED JULY 23, 1971, REFERENCE MS-400, FROM THE ACTING DIRECTOR OF MANAGEMENT SYSTEMS, MS-1, REQUESTING ADVICE AS TO WHETHER OUTSTANDING TRAVEL FUNDS ADVANCED BY THE FEDERAL AVIATION ADMINISTRATION (FAA) TO MEMBERS OF THE ARMED FORCES AS HEREINAFTER INDICATED CAN BE RECOVERED FROM THE RETIRED PAY OF A MEMBER BY ADMINISTRATIVE SETOFF WITHOUT HIS CONSENT.

ON OCTOBER 1, 1970, AN AGREEMENT WAS ENTERED INTO BETWEEN THE DEPARTMENT OF TRANSPORTATION AND THE DEPARTMENT OF DEFENSE WHICH GOVERNED THE PARTICIPATION OF MILITARY PERSONNEL DETAILED TO THE DEPARTMENT OF TRANSPORTATION AS "SKY MARSHALS" IN CARRYING OUT THE FUNCTIONS ASSIGNED TO THE SECRETARY OF TRANSPORTATION AND THE SECRETARY OF DEFENSE BY THE PRESIDENT'S STATEMENT OF SEPTEMBER 11, 1970, RELATING TO AIR PIRACY. UNDER THIS AGREEMENT THE DEPARTMENT OF TRANSPORTATION WAS REQUIRED TO PAY ALL TRAVEL AND PER DIEM COSTS INCIDENT TO THE PERFORMANCE OF DEPARTMENT OF TRANSPORTATION DUTIES BY PERSONNEL DETAILED TO IT IN ACCORDANCE WITH THE JOINT TRAVEL REGULATIONS IN EFFECT AT THE TIME.

THE CIRCUMSTANCES GIVING RISE TO THE MATTER IN QUESTION ARE REPORTED AS FOLLOWS:

TO ASSURE THAT THE SKY MARSHALS HAD ADEQUATE TRAVEL FUNDS THEY WERE ADVANCED, BY THE FEDERAL AVIATION ADMINISTRATION, THE SUM OF $500 UPON COMPLETION OF THE BASIC SKY MARSHAL TRAINING PROGRAM. AT THE END OF EACH 30-DAY PERIOD, TRAVEL VOUCHERS WERE SUBMITTED BY THE SKY MARSHALS TO FAA. HOWEVER, DUE TO THE PRESS OF OTHER WORK, THE TRAVEL VOUCHERS WERE NOT TIMELY COMPUTED TO ASCERTAIN ENTITLEMENT TO TRAVEL ALLOWANCES, AND TO ASSURE THAT ADEQUATE FUNDS WERE AVAILABLE, THE SKY MARSHALS CONTINUED TO RECEIVE TRAVEL ADVANCES IN THE AMOUNT OF $500 AT 15-DAY INTERVALS. CONSEQUENTLY, WHEN THE SKY MARSHALS WERE PHASED OUT OF THE PROGRAM AND THEIR FINAL TRAVEL VOUCHERS WERE COMPUTED AND THE AMOUNTS DUE WERE APPLIED AGAINST TRAVEL ADVANCES RECEIVED, MOST OF THE SKY MARSHALS OWED THE FAA AMOUNTS RANGING FROM A FEW HUNDRED TO SEVERAL THOUSAND DOLLARS. THE FAA IS NOW IN THE PROCESS OF COLLECTING FROM THE SKY MARSHALS AMOUNTS OF OUTSTANDING TRAVEL ADVANCES. IN SOME CASES WE (FAA) FIND THAT THE MEMBER HAS RETIRED FROM THE ARMED FORCES. ***

IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, THE GENERAL RULE IS THAT THE CURRENT PAY (INCLUDING RETIRED PAY) OF A MEMBER OF THE ARMED SERVICES MAY NOT BE WITHHELD WITHOUT HIS CONSENT TO LIQUIDATE GENERAL DEBTS DUE THE UNITED STATES. 37 COMP. GEN. 353, 354 (1957); B-167880, JANUARY 28, 1970.

THE ACT OF JULY 15, 1954, CHAPTER 509, 68 STAT. 482, NOW 5 U.S.C. 5514, PROVIDES IN PERTINENT PART THAT WHEN IT IS DETERMINED BY THE HEAD OF THE AGENCY CONCERNED OR HIS DESIGNEE THAT A MEMBER OF THE ARMED FORCES IS INDEBTED TO THE UNITED STATES BECAUSE OF AN ERRONEOUS PAYMENT MADE BY THE AGENCY TO OR ON BEHALF OF THE INDIVIDUAL, THE AMOUNT OF THE INDEBTEDNESS MAY BE DEDUCTED FROM RETIRED PAY. THE STATUTE FURTHER STATES THAT IF THE INDIVIDUAL RETIRES BEFORE THE COMPLETE AMOUNT OF THE INDEBTEDNESS IS COLLECTED, DEDUCTION SHALL BE MADE FROM LATER PAYMENTS OF ANY NATURE DUE THE INDIVIDUAL FROM THE AGENCY CONCERNED. WE HAVE HELD THAT NO WITHHOLDINGS ARE AUTHORIZED WHERE THE ERRONEOUS PAYMENT DID NOT ARISE IN THE SAME DEPARTMENT OR AGENCY. 34 COMP. GEN. 170, 173 (1954).

THIS RULE AGAINST THE SETOFF OF CURRENT PAY FOR RECOVERY OF ERRONEOUS PAYMENTS MADE BY ANOTHER AGENCY IS APPLICABLE WHERE THE PAYEE WAS A REGULAR EMPLOYEE OF ONE GOVERNMENT AGENCY AND RECEIVED AN ERRONEOUS PAYMENT BY THAT ESTABLISHMENT PRIOR TO THE TIME HE WAS EMPLOYED BY ANOTHER GOVERNMENT AGENCY. SEE B-127814, OCTOBER 29, 1956.

THUS, IT IS CLEAR THAT DEDUCTIONS ARE AUTHORIZED FROM THE CURRENT PAY OF AN EMPLOYEE OF FAA WHO IS INDEBTED FOR ERRONEOUS PAYMENTS MADE TO HIM BY THAT AGENCY. SIMILARLY, DEDUCTIONS FROM THE CURRENT PAY ARE AUTHORIZED UNDER THE STATUTE IN THE CASE OF A MEMBER OF THE ARMED FORCES WHO IS INDEBTED FOR ERRONEOUS PAYMENTS BY THE MILITARY DEPARTMENT CONCERNED. THE SITUATION HERE DOES NOT CLEARLY FALL WITHIN EITHER CATEGORY. WE FIND NO REASONABLE BASIS, HOWEVER, FOR AN INTERPRETATION WHICH WOULD TAKE THE INDIVIDUALS CONCERNED OUTSIDE THE SCOPE OF THE STATUTE. THE CONTROLLING FACTOR AS WE SEE IT IS THAT THE MILITARY MEMBER DETAILED TO FAA REMAINS A MEMBER OF THE ARMED FORCES AND IS SUBJECT TO RECALL AT ANY TIME WHEN THE MILITARY DETERMINES SUCH ACTION TO BE IN THE BEST INTEREST OF THE MILITARY DEPARTMENT CONCERNED. THE MEMBER'S PARAMOUNT OBLIGATION IS TO THE MILITARY AND HIS PAY AND ALLOWANCES ARE SUBJECT TO MILITARY LAWS AND REGULATIONS. IN THE CIRCUMSTANCES WE HOLD THAT THE TRAVEL ADVANCES HERE IN QUESTION ARE TO BE TREATED THE SAME AS TRAVEL ADVANCES TO A MILITARY MEMBER NOT ON DETAIL. IT FOLLOWS THAT RECOVERY OF THE TRAVEL ADVANCES FROM THE RETIRED PAY OF THE MEMBERS IS AUTHORIZED UNDER 5 U.S.C. 5514. SUGGEST YOU REFER THE INDEBTEDNESS OF EACH INDIVIDUAL TO THE APPROPRIATE MILITARY DEPARTMENT WITH A COPY OF THIS DECISION.