A-13198, JULY 27, 1927, 7 COMP. GEN. 64

A-13198: Jul 27, 1927

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DISBURSING OFFICERS - RESPONSIBILITY THE RESPONSIBILITY OF A PUBLIC DISBURSING OFFICER IS NOT DEPENDENT UPON HIS ABILITY. THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE WITHOUT AUTHORITY. THE HEAD OF AN EXECUTIVE DEPARTMENT OR ESTABLISHMENT HAS AMPLE AUTHORITY TO REQUIRE THE OFFICERS AND EMPLOYEES IN HIS DEPARTMENT OR ESTABLISHMENT TO SATISFY THEIR INDEBTEDNESS TO THE UNITED STATES ARISING FROM OVERPAYMENTS FOUND BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO HAVE BEEN MADE TO THEM BY DISBURSING OFFICERS. THIS AUTHORITY IS IN NO MANNER VITIATED BY RECENT COURT RULINGS DENYING THE RIGHT OF ARBITRARILY STOPPING AN OFFICER'S COMPENSATION. 1927: THERE WAS RECEIVED JUNE 23. IT HAS BEEN FOUND NECESSARY TO SUSPEND THE COLLECTION OF QUITE A LARGE NUMBER OF THE CURRENT STOPPAGES HERETOFORE RAISED BY THE WAR DEPARTMENT AGAINST THE PAY OF CERTAIN OFFICERS OF THE ARMY ON ACCOUNT OF DEBTS WHICH THE WAR DEPARTMENT HAD DETERMINED WERE OWING BY THESE OFFICERS TO THE UNITED STATES. * * * IN MANY CASES THE STOPPAGE.

A-13198, JULY 27, 1927, 7 COMP. GEN. 64

DISBURSING OFFICERS - RESPONSIBILITY THE RESPONSIBILITY OF A PUBLIC DISBURSING OFFICER IS NOT DEPENDENT UPON HIS ABILITY, OR LACK OF ABILITY, TO RECOUP AN IMPROPER PAYMENT MADE TO A PAYEE. THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE WITHOUT AUTHORITY, GENERALLY, TO RELIEVE A DISBURSING OFFICER FROM LIABILITY FOR AN OVERPAYMENT MADE TO AN OFFICER OF THE GOVERNMENT WHO REFUSES, VOLUNTARILY, TO REFUND THE AMOUNT OF SUCH OVERPAYMENT. THE HEAD OF AN EXECUTIVE DEPARTMENT OR ESTABLISHMENT HAS AMPLE AUTHORITY TO REQUIRE THE OFFICERS AND EMPLOYEES IN HIS DEPARTMENT OR ESTABLISHMENT TO SATISFY THEIR INDEBTEDNESS TO THE UNITED STATES ARISING FROM OVERPAYMENTS FOUND BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO HAVE BEEN MADE TO THEM BY DISBURSING OFFICERS, AND THIS AUTHORITY IS IN NO MANNER VITIATED BY RECENT COURT RULINGS DENYING THE RIGHT OF ARBITRARILY STOPPING AN OFFICER'S COMPENSATION, WITHOUT HIS CONSENT, TO SATISFY SUCH INDEBTEDNESS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, JULY 27, 1927:

THERE WAS RECEIVED JUNE 23, 1927, YOUR COMMUNICATION AS FOLLOWS:

AS A RESULT OF THE DECISION OF THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA OF APRIL 4, 1927, IN THE CASE (NO. 4503) OF MCCARL, ET AL. V. PENCE, IT HAS BEEN FOUND NECESSARY TO SUSPEND THE COLLECTION OF QUITE A LARGE NUMBER OF THE CURRENT STOPPAGES HERETOFORE RAISED BY THE WAR DEPARTMENT AGAINST THE PAY OF CERTAIN OFFICERS OF THE ARMY ON ACCOUNT OF DEBTS WHICH THE WAR DEPARTMENT HAD DETERMINED WERE OWING BY THESE OFFICERS TO THE UNITED STATES. * * * IN MANY CASES THE STOPPAGE, COLLECTION OF WHICH THE WAR DEPARTMENT HAS THUS BEEN FORCED TO SUSPEND, WAS SET UP AS A RESULT OF A DISALLOWANCE RAISED BY THE GENERAL ACCOUNTING OFFICE IN THE ACCOUNTS OF VARIOUS DISBURSING OFFICERS OF THE ARMY * * *.

THE WAR DEPARTMENT VIEWS WITH CONCERN THE SITUATION RESULTING * * * AND INTENDS TO CALL UPON ALL THE OFFICERS, IN WHOSE CASES IT HAS BEEN FORCED TO SUSPEND THE COLLECTION OF STOPPAGES, VOLUNTARILY TO REFUND THE SUMS HELD TO BE DUE THE UNITED STATES FROM THEM. * * * IT IS REQUESTED THAT I BE ADVISED WHETHER, IN THE EVENT THAT ANY OFFICER, IN WHOSE CASE STOPPAGE AGAINST PAY HERETOFORE HAS BEEN RAISED BY THE WAR DEPARTMENT ON ACCOUNT OF A DISALLOWANCE MADE IN A DISBURSING OFFICER'S ACCOUNT, SHALL REFUSE VOLUNTARILY TO CONTINUE REFUNDMENT IN SATISFACTION OF THE DISALLOWANCE, YOUR OFFICE UPON BEING ADVISED OF SUCH FACT WILL (1) RELIEVE THE DISBURSING OFFICER CONCERNED OF FURTHER FINANCIAL ACCOUNTABILITY OR AT LEAST SUSPEND ACTION LOOKING TO COLLECTION FROM HIM, AND (2) REQUEST THE PROPER AUTHORITIES TO INSTITUTE SUIT IN THE NAME OF THE UNITED STATES AGAINST THE DEBTOR OFFICER WHO RECEIVED THE BENEFIT OF THE IMPROPER PAYMENT.

THE RESPONSIBILITY OF A DISBURSING OFFICER FOR PAYMENTS MADE BY HIM IS NOT DEPENDENT UPON HIS ABILITY OR LACK OF ABILITY TO RECOUP AN IMPROPER PAYMENT FROM A PAYEE. THIS IS FIRMLY ESTABLISHED GOVERNMENT RIGHT AND PROCEDURE AND REQUIRES NO CITATION OF AUTHORITIES. THE DISBURSING OFFICER'S RESPONSIBILITY FOR THE PUBLIC FUNDS INTRUSTED TO HIM IS PERSONAL AND ABSOLUTE AND HE IS ENTITLED TO RELIEF FROM RESPONSIBILITY ONLY BY PROPERLY ACCOUNTING FOR THE FUNDS ADVANCED TO HIM AND THE QUESTION AS TO THE SUFFICIENCY OF THE ACCOUNTING IS FOR DETERMINATION IN THE GENERAL ACCOUNTING OFFICE. WATKINS V. UNITED STATES, 9 WALL. 759, 19 L.ED. 820; SOULE V. UNITED STATES, 100 U.S. 8, 25 L.ED. 536; 1 MS. COMP. GEN. 401; 67 ID. 1184.

MERE GOOD FAITH IN MAKING AN IMPROPER PAYMENT DOES NOT EXCUSE IT. CHIPPEWA BRIDGE CO. V. DURAND, 122 WIS. 85, 99 N.W. 603, 106 A.S.R. 931. ACCORDING TO THE WEIGHT OF AUTHORITY A PUBLIC OFFICER IS AN INSURER OF THE PUBLIC FUNDS IN HIS POSSESSION AND THEREFORE IS LIABLE FOR LOSSES WHICH OCCUR WITHOUT HIS FAULT, HIS LIABILITY BEING ABSOLUTE. YAWGER V. AMERICAN SURETY CO., 212 N.Y. 292, 106 N.E. 64, L.R.A. 1915, D. 481; CAMERON V. HICKS, 65 W.VA. 484, 64 S.E. 932, 17 ANN.CAS. 926; UNITED STATES V. PRESCOTT, 3 HOW. 578, 11 L.ED. 734; SKELTON V. STATE, 53 IND. 331, 21 AM.REP. 197; TILLINGHAST V. MERRILL, 151 N.Y. 135, 34 L.R.A. 678; 6 COMP. GEN. 404.

A RECOGNITION OF THIS ABSOLUTE LIABILITY OF THE DISBURSING OFFICERS BY ADMINISTRATIVE OFFICERS GENERALLY, WHEN CLAIMS OF DOUBTFUL VALIDITY ARE PRESENTED, WHICH PROPERLY ARE FOR DIRECT SETTLEMENT IN THIS OFFICE OR FOR SUBMISSION UNDER SECTION 8 OF THE DOCKERY ACT, 28 STAT. 208, FOR AN ADVANCE DECISION, WOULD RESULT IN AN IMMENSE SAVING TO THE GOVERNMENT AND WOULD OBVIATE THE OCCASIONS GIVING RISE TO THE SITUATION DESCRIBED IN YOUR COMMUNICATION AND THE FREQUENT REQUESTS MADE UPON CONGRESS BY THE EXECUTIVE DEPARTMENTS FOR RELIEF LEGISLATION; THERE BEING FOR CONSIDERATION IN THIS CONNECTION THE REQUIREMENTS OF SECTION 1 OF THE ACT OF APRIL 20, 1874, 18 STAT. 33, WHICH PROVIDES:

THAT IT SHALL BE THE DUTY OF THE SECRETARY OF WAR TO CAUSE FREQUENT INQUIRIES TO BE MADE AS TO THE NECESSITY, ECONOMY, AND PROPRIETY OF ALL DISBURSEMENTS MADE BY THE DISBURSING OFFICERS OF THE ARMY, AND AS TO THEIR STRICT CONFORMITY TO THE LAW APPROPRIATING THE MONEY; ALSO TO ASCERTAIN WHETHER THE DISBURSING OFFICERS OF THE ARMY COMPLY WITH THE LAW IN KEEPING THEIR ACCOUNTS AND MAKING THEIR DEPOSITS; SUCH INQUIRIES TO BE MADE BY OFFICERS OF THE INSPECTION DEPARTMENT OF THE ARMY, OR OTHERS DETAILED FOR THAT PURPOSE: PROVIDED, THAT NO OFFICER SO DETAILED SHALL BE IN ANY WAY CONNECTED WITH THE DEPARTMENT OR CORPS MAKING THE DISBURSEMENT.

ALTHOUGH THE EFFECT OF THE PENCE DECISION IS NOT CONFINED TO OVERPAYMENTS MADE TO OFFICERS ON ACCOUNT OF DEPENDENCY ALLOWANCES IT SEEMS PROBABLE THAT TYPE OF OVERPAYMENT HAS BEEN MADE MOST OFTEN BY DISBURSING OFFICERS, AND IS REPRESENTATIVE OF THE BULK OF ITEMS RECENTLY DISALLOWED IN DISBURSING ACCOUNTS FOR WHICH STOPPAGES HAVE BEEN DIRECTED; THIS, NOTWITHSTANDING THE RELIEF AFFORDED DISBURSING OFFICERS FOR SUCH OVERPAYMENTS MADE PRIOR TO JULY 1, 1923, UNDER THE PROVISIONS OF THE ACT OF MAY 26, 1926, 44 STATE. 654. IT IS NOT CLEAR UPON WHAT BASIS THE WAR DEPARTMENT INFERS FURTHER RELIEF FOR SUCH OVERPAYMENTS COULD LEGALLY BE ACCORDED DISBURSING OFFICERS BY THIS OFFICE OR WHY THE LIABILITY OF A DISBURSING OFFICER FOR OVERPAYMENTS MADE TO FELLOW OFFICERS IS REGARDED TO BE LESS ABSOLUTE THAN FOR OVERPAYMENTS MADE TO PRIVATE PERSONS OR CORPORATIONS.

IT IS RECOGNIZED, OF COURSE, THAT THE RECENT COURT DECISIONS BEGINNING WITH DILLON V. GROOS, 299 FED.REP. 243, AND INCLUDING THE RECENT DECISION IN THE PENCE CASE, APPLYING A PRINCIPLE ESTABLISHED BY THE UNITED STATES SUPREME COURT IN THE CASE OF SMITH V. JACKSON (1918), 246 U.S. 388, 62 L.ED. 788, HAVE DECLARED UNAUTHORIZED THE STOPPAGE OF AN OFFICER'S PAY FOR THE PURPOSE OF RECOVERING AN OVERPAYMENT PREVIOUSLY MADE TO HIM AND THAT THERE HAS THUS BECOME ABORTIVE A METHOD OF PROTECTING DISBURSING OFFICERS AND THE FISCAL INTERESTS OF THE GOVERNMENT WHICH HAD BEEN IN VOGUE AND THE CORRECTNESS OF WHICH HAD PREVIOUSLY BEEN UNQUESTIONED FOR MORE THAN 100 YEARS. IRRESPECTIVE OF THE CONSTRUCTION PLACED UPON THE PROVISIONS OF SECTION 1766 OF THE REVISED STATUTES IT HAD NEVER BEEN SUPPOSED THERETOFORE THE SOVEREIGN UNITED STATES WAS WITHOUT THAT COMMON LAW RIGHT ENJOYED BY EVERY PRIVATE CREDITOR OR EMPLOYER TO APPLY THE MONEYS OF ITS DEBTOR OR EMPLOYEE IN ITS HANDS TO THE EXTINGUISHMENT OF CLAIMS DUE IT FROM SUCH DEBTOR OR EMPLOYEE. IN FACT, IT WAS NOT ONLY REGARDED TO BE THE RIGHT BUT THE DUTY OF THE ACCOUNTING OFFICERS AND THE HEADS OF THE EXECUTIVE DEPARTMENTS TO MAKE SUCH REGULATIONS AND TAKE SUCH ACTION IN SUPERINTENDING THE DISBURSEMENT OF APPROPRIATIONS UNDER THEIR JURISDICTION THAT NOT ONLY WOULD OVERPAYMENTS NOT BE MADE, BUT WHEN, OR IF, MADE TO PERSONS IN THE GOVERNMENT SERVICE, THAT THE RESULTING INDEBTEDNESS TO THE UNITED STATES WOULD BE SPEEDILY SATISFIED OUT OF SUBSEQUENTLY ACCRUING AND LAWFUL CREDITS, THE MATTER INVOLVING AS IT DID MERELY THE ADJUSTMENT OF DEBIT AND CREDIT ITEMS IN AN OPEN ACCOUNT. SEE IN THIS CONNECTION GRATIOT V. UNITED STATES, 15 PETERS 336, 10 L.ED. 759; MCELRATH V. UNITED STATES, 102 U.S. 426, 26 L.ED. 189; UNITED STATES V. BURCHARD, 125 U.S. 176, 31 L.ED. 664; WISCONSIN CENTRAL R.CO. V. UNITED STATES, 164 U.S. 190, 211, 41 L.ED. 399, 14 CT.CLS. 114; BONNAFON V. UNITED STATES, ID. 484; TAGGART V. UNITED STATES, 17 ID. 322; 33 ID. 476, 480; SCHOONER HENRY, ET AL. V. UNITED STATES, 35 CT.CLS. 393; 17 OP.ATTY.GEN. 30; ID. 425; HOWLAND'S DIG.OP.J.A.G. OF THE ARMY, PAY, AND ALLOWANCES, III B5-B7-B7A.

THE UTMOST GOOD FAITH NOT ONLY IN THEIR DEALINGS WITH THE GOVERNMENT BUT IN THEIR DEALINGS WITH PRIVATE INDIVIDUALS HAS ALWAYS BEEN EXACTED OF MILITARY OFFICERS ON GROUNDS OF PUBLIC POLICY. IT HAS BEEN HELD THE FAILURE OF A FIRST LIEUTENANT, COAST ARTILLERY CORPS, UNITED STATES ARMY, TO DISCLOSE THE FACT THAT HE WAS A PROVISIONAL LIEUTENANT WAS A MATERIAL FACT WHICH IT WAS HIS DUTY TO REVEAL AND HIS FAILURE TO DO SO WAS A BREACH OF DUTY AND WAS CONSTRUCTIVE IF NOT ACTUAL FRAUD. DIG.OP.J.A.G. OF THE ARMY FEBRUARY 6, 1920, P. 23. IN THE RECENT CASE OF PORTER V. BEHA, SUPERINTENDENT OF INSURANCE, ET AL., DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK, MAY 25, 1925, 8 FED.REP. (2D) 65, 74, IT WAS SAID:

BAD FAITH * * * DOES NOT NECESSARILY INVOLVE FRAUDULENT MOTIVES OR MORAL TURPITUDE. EVEN IF THE ACTUAL GOOD FAITH IS NOT QUESTIONED, IF THE FACTS KNOWN SHOULD LEAD TO INQUIRY AND BY INQUIRY DISCOVERY OF THE REAL SITUATION, A PERSON IN A COMMERCIAL SENSE ACTS IN BAD FAITH AND THE LAW WILL WITHHOLD FROM HIM THE PROTECTION WHICH IT WOULD OTHERWISE EXTEND.

IN THE BUREAU OF SUPPLIES AND ACCOUNTS MEMORANDUM NO. 282-8414, FOR FEBRUARY, 1926, THERE IS PUBLISHED A LETTER FROM THE SECRETARY OF THE NAVY DATED JANUARY 28, 1926, ADDRESSED TO AN OFFICER OF THE NAVY AGAINST WHOM AN ORDER FOR CHECK AGE HAD ISSUED OF $273.14 TO SATISFY A DISALLOWANCE RAISED BY THIS OFFICE IN THE SETTLEMENT OF A DISBURSING ACCOUNT. THE OFFICER AGAINST WHOM THE REQUEST FOR CHECK AGE HAD ISSUED PROTESTED "THE DISBURSEMENTS COMPLAINED OF WERE MADE (TO HIM) IN GOOD FAITH" AND UNDER THE DECISION OF THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA IN THE CASE OF MCCARL, ET AL. V. COX, 8 FED.REP. (2D) 669, COULD NOT BE RECOVERED FROM HIM EXCEPT THROUGH COURT ACTION. THE SECRETARY OF THE NAVY, WITHOUT IN ANY MANNER QUESTIONING THE CORRECTNESS OF THE COURT'S VIEW, DISPOSED OF THIS PROTEST IN THE FOLLOWING PEREMPTORY MANNER, UNDER HIS BROAD AUTHORITY AS HEAD OF THE NAVY DEPARTMENT:

3. * * * IT IS MANIFEST THAT, EVEN ACCEPTING THE STATEMENT THAT THE DISBURSEMENTS WERE MADE IN GOOD FAITH, NEVERTHELESS YOU ARE NOT ENTITLED BY LAW TO THE SERVICES RENDERED, PAYMENT FOR WHICH HAS BEEN DISALLOWED * * * BY THE GENERAL ACCOUNTING OFFICE IN THE SETTLEMENT OF ACCOUNTS, AND SAID ACTION HAS BEEN AFFIRMED BY THE COMPTROLLER GENERAL. * * *

4. THE DEPARTMENT CAN NOT SANCTION ANY ATTITUDE ON THE PART OF OFFICERS TO AVOID THEIR CLEAR LEGAL LIABILITIES, AND, THEREFORE, IS OF THE OPINION THAT YOU SHOULD IMMEDIATELY REFUND THE AMOUNTS PAID BY THE GOVERNMENT FOR SERVICES RENDERED YOU ON TRANSPORTATION REQUESTS, WHICH WERE NOT AUTHORIZED BY LAW. INFORM THE DEPARTMENT OF THE ACTION TAKEN BY YOU IN THIS CASE.

ALTHOUGH IT HAS NEVER BEEN REGARDED AS PROPER TO STOP THE PAY OF AN OFFICER TO SATISFY PURELY PRIVATE DEBTS ARISING FROM MATTERS NOT INVOLVED IN HIS OFFICIAL RELATIONSHIP WITH THE GOVERNMENT, NEVERTHELESS THERE ARE COUNTLESS EXAMPLES, BOTH IN THE ARMY AND IN THE NAVY, WHERE OFFICERS HAVE BEEN SUSPENDED FROM PROMOTION, DISMISSED FROM THE SERVICE, OR OTHERWISE DISCIPLINED FOR FAILURE TO DISCHARGE PRIVATE DEBTS, THE VIEW BEING, AS STATED BY MR. JUSTICE NOTT IN THE CASE OF FLETCHER V. UNITED STATES (1891), 26 CT.CLS. 541, 563 (REVERSED ON ANOTHER GROUND, UNITED STATES V. FLETCHER (1893) 148 U.S. 84, 37 L.ED. 378) THAT:

* * * IN MILITARY LIFE THERE IS A HIGHER CODE, TERMED HONOR, WHICH HOLDS ITS SOCIETY TO STRICTER ACCOUNTABILITY, AND IT IS NOT DESIRABLE THAT THE STANDARD OF THE ARMY SHALL COME DOWN TO THE REQUIREMENTS OF A CRIMINAL CODE. * * *

SEE ALSO IN THIS CONNECTION SECTION 161 OF THE REVISED STATUTES; ARTICLE 22, ARTICLES FOR THE GOVERNMENT OF THE UNITED STATES NAVY; AND THE NUMEROUS NAVY CASES ANNOTATED IN "LAWS RELATING TO THE NAVY, 1921," UNDER SECTION 1456 OF THE REVISED STATUTES, PP. 622-629; THE NINETY-FIFTH AND NINETY-SIXTH ARTICLES OF WAR; 18 OP.ATTY.GEN. (1885) 113, 114; SWAIN V. UNITED STATES (1893), 28 CT.CLS. 173, AFFIRMED (1897) 165 U.S. 553, 41 L.ED. 823; AND THE PRECEDENTS CITED ON PAGE 715, WINTHROP'S MILITARY LAW AND PRECEDENTS, AS FOLLOWS:

G.C.M.O. 87 OF 1866; DO., 22, 46 OF 1872; DO., 10 OF 1873; DO 25 50, 68, OF 1874; G.O. 55, DEPT, OF WASHINGTON, 1863; DO., 110, ID., 1864; DO., 1, DEPT. OF VA. AND NO.CA., 1864 (CASES OF NONPAYMENT OF SUMS BORROWED FROM OR OTHERWISE DUE TO ENLISTED MEN); G.C.M.O. 68 OF 1874 (CASE OF NONPAYMENT OF A LOAN FROM ANOTHER OFFICER); G.C.M.O. 17 OF 1871; DO., 68 OF 1874; DO., 25 OF 1875; DO., 100 OF 1876 (NONPAYMENTS OF DEBTS DUE TO POST TRADERS); ALSO G.C.M.O. 3, 55, 64, OF 1869; ., 15 OF 1870; DO., 22 OF 1872; DO., 32 OF 1874; DO., 100 OF 1876; DO., 46 OF 1877; DO., 44, 70, OF 1881; DO., 31 OF 1887; DO., 3, 85, OF 1891; DO., 28 OF 1892; DO., 106 OF 1893; G.O. 53 OF 894; G.O. 150, NAVY DEPT., 1870; G.C.M.O. 36, ID., 1881; DO., 24 ID., 1886.

AND SEE ENGLISH PRECEDENTS OF CONVICTIONS UNDER A CORRESPONDING ARTICLE FOR DISHONORABLE DISREGARD OF INDEBTEDNESS TO MILITARY PERSONS OR CIVILIANS, IN JAMES, PP. 205, 223, 303, 510, 528, 614, 622, 696; ALSO HOUGH (P.), 234-5.

IN THESE CASES, IN GENERAL, THE DEBT WAS CONTRACTED UNDER FALSE REPRESENTATIONS OR THE FAILURE TO PAY CHARACTERIZED BY DECEIT, EVASION, FALSE PROMISES, DENIAL OF INDEBTEDNESS, ETC., AND THE NEGLECT TO DISCHARGE THE OBLIGATION, AT LEAST IN PART, WAS CONTINUED FOR AN UNCONSCIONABLE PERIOD. SOME SUCH CULPABLE AND DISHONORABLE CIRCUMSTANCES SHOULD CHARACTERIZE THE TRANSACTION TO MAKE IT A PROPER BASIS FOR A MILITARY CHARGE. A MERE FAILURE TO SETTLE A PRIVATE DEBT (WHICH MAY BE MORE THE RESULT OF MISFORTUNE THAN OF FAULT), CAN NOT OF COURSE PROPERLY BECOME THE SUBJECT OF TRIAL AND PUNISHMENT AT MILITARY LAW. (SEE G.C.M.O. 69, DEPT. OF THE EAST, 1881.) A TEST OF THE AMENABILITY OF THE PARTY TO CHARGES WILL BE THE EFFECT OF HIS CONDUCT UPON THE REPUTATION OF THE SERVICE. IT BE SUCH AS TO COMPROMISE NOT ONLY THE OFFICER PERSONALLY BUT ALSO THE HONOR OR CREDIT OF THE MILITARY PROFESSION--- IF, IN THE WORDS OF GEN. MCDOWELL, IN G.C.M.O., 113, DEPT. OF THE EAST, 1873, IT "BRINGS THE SERVICE INTO DISREPUTE BY LOWERING THE FAITH OF THE COUNTRY IN THE INTEGRITY AND FIDELITY TO THEIR OBLIGATIONS, OF THE COMMISSIONED OFFICERS OF THE ARMY"--- AN OFFENSE WITHIN THE PRESENT ARTICLE WILL IN GENERAL PROPERLY BE HELD TO HAVE BEEN COMMITTED. AND SEE FURTHER ON THIS SUBJECT, G.C.M.O. 49, DEPT. OF THE EAST, 1872; DIGEST, 63. IN G.C.M.O. 70 OF 1881, A CONVICTION OF THE OFFENCE UNDER CONSIDERATION WAS DISAPPROVED ON THE GROUND THAT THERE WAS NO FRAUD IN THE OFFICER'S CONDUCT.

IN FEBRUARY, 1872, THE FOLLOWING WAS PUBLISHED AS A CIRCULAR TO THE ARMY, BY THE ORDER OF THE SECRETARY OF WAR: "THE WAR DEPARTMENT IS FREQUENTLY ANNOYED BY REQUESTS OF CREDITORS TO COMPEL PAYMENT OF THEIR JUST DUES BY OFFICERS OF THE ARMY. THERE MAY BE A FEW INSTANCES WHERE DELAY IN MAKING PAYMENT IS UNAVOIDABLE. BUT IN A LARGE NUMBER OF CASES AN EVIDENT DISPOSITION APPEARS TO EVADE PAYMENT ALTOGETHER. IT IS NOT THE PROVINCE OF THE SECRETARY OF WAR TO ADJUDGE SUCH CLAIMS, NOR IS IT WITHIN HIS POWER TO STOP THE DEBTOR'S PAY, AND THUS COMPEL HIM TO SATISFY THE CLAIM. BUT SUCH COMPLAINTS, COMING SO FREQUENTLY FROM CREDITORS, CIVIL AND MILITARY, BETRAY A FACT GREATLY TO BE DEPLORED, THAT THE HIGH STANDARD OF HONOR IN SUCH MATTERS, WHICH IN FORMER YEARS CAUSED THE UNIFORM TO BE RESPECTED AND TRUSTED WITHOUT QUESTION, HAS BECOME IMPAIRED. WHILE, THEREFORE, THOSE CONCERNED SHOULD RELIEVE THE DEPARTMENT FROM THE MORTIFICATION OF SUCH APPEALS, AND THE ARMY FROM THE ODIUM WHICH MUST ATTACH TO THE NECESSITY FOR MAKING THEM, THE SECRETARY NOW DISTINCTLY DECLARES HIS INTENTION TO BRING TO TRIAL BY COURT-MARTIAL, UNDER THE 61ST ARTICLE OF WAR, ANY OFFICER, WHO, AFTER DUE NOTICE, SHALL FAIL TO QUIET SUCH CLAIMS AGAINST HIM; AND THERE ARE NOT WANTING ON RECORD INSTANCES WHERE COMMISSIONS HAVE BEEN LOST FOR THIS OFFENCE.'

IT APPEARS, THEREFORE, THAT ALTHOUGH AN ADMINISTRATIVE OFFICER MAY NOT HAVE AUTHORITY TO ARBITRARILY ORDER A STOPPAGE OF AN OFFICER'S COMPENSATION TO SATISFY AN INDEBTEDNESS DUE FROM HIM TO THE UNITED STATES BY REASON OF AN OVERPAYMENT MADE TO HIM BY A DISBURSING OFFICER, NEVERTHELESS THE PRECEDENTS ARE CLEAR THERE IS AMPLE AUTHORITY REPOSED IN THE PRESIDENT AND THE HEADS OF THE EXECUTIVE DEPARTMENTS TO REQUIRE AN OFFICER TO DISCHARGE SUCH AN INDEBTEDNESS AS EXPEDITIOUSLY AS HIS CIRCUMSTANCES WILL PERMIT OR TO DISCIPLINE HIM FOR HIS FAILURE TO DO SO.

ANSWERING YOUR FIRST QUESTION SPECIFICALLY YOU ARE ADVISED THE PROCEDURE OF THIS OFFICE IN SETTLING THE ACCOUNTS OF AND COLLECTING FINAL BALANCES FROM DISBURSING OFFICERS WHO HAVE MADE IMPROPER PAYMENTS TO BROTHER OFFICERS, WHICH THE LATTER REFUSE TO REFUND, MUST BE THE SAME AS THE PROCEDURE EMPLOYED IN SETTLING AND COLLECTING FINAL BALANCES EMBRACING OTHER TYPES OF IMPROPER PAYMENTS.

THE ANSWER TO YOUR SECOND QUESTION AS TO WHETHER THIS OFFICE "WILL REQUEST THE PROPER AUTHORITIES TO INSTITUTE SUIT IN THE NAME OF THE UNITED STATES AGAINST THE DEBTOR OFFICER WHO RECEIVED THE BENEFIT OF THE IMPROPER PAYMENT" AND THE REASONS FOR THE POSITION THIS OFFICE MUST TAKE IN THE MATTER ARE SET OUT IN CONSIDERABLE DETAIL IN A LETTER ADDRESSED TO THE ATTORNEY GENERAL OCTOBER 4, 1921, 2 MS. COMP. GEN. 137, AND IN TWO LETTERS ADDRESSED TO YOUR PREDECESSOR IN OFFICE SEPTEMBER 25, 1923 (A.D. 7901), 25 MS. COMP. GEN. 758, AND SEPTEMBER 25, 1925 (A-8908), 49 ID. 1002; IT SEEMS APPROPRIATE, THEREFORE, TO CONCLUDE BY QUOTING THE FOLLOWING PERTINENT PORTIONS THEREFROM:

(EXCERPT LETTER TO THE ATTORNEY GENERAL, OCTOBER 4, 1921)

I MAY SAY THAT THE ACTION OF THE ACCOUNTING OFFICE IN SUSPENDING OR DISALLOWING ITEMS IN A DISBURSING ACCOUNT IS COMMUNICATED TO THE DISBURSING OFFICER AND THE ADMINISTRATIVE DEPARTMENT TO WHICH THE DISBURSEMENT RELATES, AND IT IS PRIMARILY FOR THAT DEPARTMENT AND ITS DISBURSING OFFICER TO PROCEED TO REMOVE THE OBJECTION TO THE PAYMENT. IT INVOLVES OBTAINING A REPAYMENT OF MONEYS PAID, IT IS PROPERLY FOR THAT ADMINISTRATIVE OFFICE OR THE DISBURSING OFFICER TO OBTAIN IT IF POSSIBLE FROM THE PAYEE AND NOT FOR THE ACCOUNTING OFFICE TO DO SO. SUCH EFFORTS ARE GENERALLY MADE BY THE DISBURSING OFFICERS, AND DUE TIME IS ALLOWED BY THE ACCOUNTING OFFICE FOR THAT PURPOSE BEFORE PROCEEDING TO TAKE ACTION. THE LAW HAS HERETOFORE LIMITED THE RIGHT TO REQUEST REVISION OF A DISBURSING ACCOUNT TO THE DISBURSING OFFICER AND THE DEPARTMENT WHOSE APPROPRIATIONS ARE CONCERNED. FREQUENTLY THE REPLIES TO SUSPENSIONS OR DISALLOWANCES EMBODY THE ANSWER OF THE PAYEES TO THE DEMANDS OF THE DISBURSING OFFICER. IT HAS ACCORDINGLY BEEN THE PRACTICE OF THE ACCOUNTING OFFICE, AND IT IS BELIEVED TO BE THE PROPER COURSE, TO DEAL PRIMARILY WITH THE DISBURSING OFFICER AND THE SURETY, BUT WHERE OTHER PAYMENTS TO THE SAME PAYEE ARE IN PROCESS, WHEN THE INFORMATION IS PRESENTED TO THE ACCOUNTING OFFICE, STOPPAGES ARE MADE AGAINST SUCH PAYEE FOR ACCOUNT OF THE AMOUNT IN QUESTION IN A DISBURSING ACCOUNT. THE DISBURSING OFFICER CAN NOT PROPERLY REQUIRE THE ACCOUNTING OFFICE TO PROCEED TO RECOVER FOR HIM SUCH PAYMENTS AS WERE IMPROPERLY MADE, AND SUCH A PROCEDURE WOULD PROBABLY LESSEN THE CARE NOW EXERCISED IN MAKING PAYMENTS. THE EFFORTS OF THE DISBURSING OFFICER TO OBTAIN PAYMENT FROM THE PAYEE, AS WELL AS THE EFFORTS OF THIS OFFICE TO OBTAIN PAYMENT FROM THE DISBURSING OFFICER AND THE SURETY, PRESUMABLY HAVE BEEN EXHAUSTED BEFORE THE MATTER IS TRANSMITTED TO THE SOLICITOR OF THE TREASURY WITH REQUEST TO BRING SUIT.

(EXCERPT LETTERS TO THE SECRETARY OF WAR, SEPT. 25, 1923;

SEPT. 25, 1925)

THE STATEMENT THAT "IT IS ESSENTIALLY UNJUST TO PROCEED AGAINST THE DISBURSING OFFICER IN SUCH CASES WITHOUT FIRST EXHAUSTING ALL REMEDIES AGAINST THE RECIPIENTS" OF SUCH PAYMENTS IS PARTICULARLY INTERESTING. YOU DOUBTLESS KNOW IT HAS LONG BEEN THE RULE THAT A DISBURSING OFFICER--- BOTH FOR HIS OWN PROTECTION AND FOR THE PROTECTION OF THE UNITED STATES--- SHOULD NOT ATTEMPT TO SETTLE AND PAY DOUBTFUL CLAIMS BUT SHOULD REFER THEM TO THE ACCOUNTING OFFICERS OF THE UNITED STATES FOR SETTLEMENT. THE LEAST THAT HE SHOULD DO IS TO AVAIL HIMSELF OF THE PROCEDURE ESTABLISHED BY SECTION 8 OF THE ACT OF JULY 31, 1894, 28 STAT. 208, AND OBTAIN AN AUTHORITATIVE DECISION IN ADVANCE OF PAYMENT. CAPTAIN ----- NEITHER REFERRED THESE CLAIMS TO THIS OFFICE FOR SETTLEMENT NOR OBTAINED DECISIONS OF THIS OFFICE IN ADVANCE OF PAYMENT, AND I CAN NOT AGREE THAT IT IS UNJUST TO HIM OR TO ANY DISBURSING OFFICER SIMILARLY CIRCUMSTANCED TO PROCEED TO ENFORCE PAYMENT UNDER THEIR OFFICIAL BONDS. ON THE CONTRARY, DISREGARD OF THE PROCEDURE IN THE PAYMENT OF CLAIMS INVOLVING DOUBTFUL QUESTIONS OF LAW AND FACT AND UNLAWFUL PAYMENTS MADE IN CONSEQUENCE THEREOF IS UNJUST TO THE UNITED STATES AND INVOLVES THE GOVERNMENT IN NEEDLESS LITIGATION AND LOSSES.

THIS OFFICE WILL, OF COURSE, BE PLEASED TO COOPERATE WITH THE * * * DEPARTMENT IN RECOVERING ANY ERRONEOUS PAYMENTS MADE BY ITS DISBURSING OFFICERS AND IS PLEASED TO HAVE THE * * * DEPARTMENT COOPERATE WITH IT BY REQUIRING ITS DISBURSING OFFICERS TO OBSERVE SOUND ACCOUNTING AND DISBURSING PRINCIPLES, THEREBY REDUCING SUCH ERRONEOUS PAYMENTS TO A MINIMUM, IT BEING UNDERSTOOD BY ALL CONCERNED THAT THIS OFFICE CAN NOT RELIEVE DISBURSING OFFICERS OF RESPONSIBILITY FOR ERRONEOUS PAYMENTS, BUT MUST CONTINUE THE AGE-OLD PRACTICE OF ULTIMATELY HOLDING THE DISBURSING OFFICER AND HIS SURETY RESPONSIBLE THEREFOR.