A-29150, JANUARY 8, 1930, 9 COMP. GEN. 272

A-29150: Jan 8, 1930

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ALLEGED TO HAVE BEEN TRANSFERRED BY HIM TO LIEUTENANTM. HE IS AT PRESENT UNDER ARREST AWAITING TRAIL BY GENERAL COURT-MARTIAL FOR THE ALLEGED SHORTAGE IN HIS ACCOUNTS. 3. IS WITHHOLDING ALL PAY AND ALLOWANCES WHICH MAY BECOME DUE LIEUTENANT THOMAS. ON THE ABOVE STATEMENT OF FACTS THE QUESTION IS NOW PRESENTED AS TO WHETHER OR NOT. REVISED STATUTES RENTAL AND SUBSISTENCE ALLOWANCES ARE INCLUDED WITHIN THE TERM "COMPENSATION" AS CONTAINED IN SAID SECTION. WHICH PROVIDES: "NO MONEY SHALL BE PAID TO ANY PERSON FOR HIS COMPENSATION WHO IS IN ARREARS TO THE UNITED STATES. IN ALL CASES WHERE THE PAY OR SALARY OF ANY PERSON IS WITHHELD IN PURSUANCE OF THIS SECTION. THERE IS NO QUESTION THAT SALARY IS COMPENSATION AND THAT SECTION 1766.

A-29150, JANUARY 8, 1930, 9 COMP. GEN. 272

DISBURSING OFFICERS - NAVY - DEFALCATIONS - WITHHOLDING PAY AND ALLOWANCES A DISBURSING OFFICER OF THE NAVY WHO HAS ADMITTED CASH DEFALCATIONS IN HIS OFFICIAL ACCOUNT WITH THE UNITED STATES IN AN AMOUNT APPROXIMATELY $7,000 IN EXCESS OF THE AMOUNT OF HIS SURETY BOND MAY NOT BE PAID RENTAL OR SUBSISTENCE ALLOWANCES, OR ANY ITEM ON ACCOUNT OF PAY AN EMOLUMENTS AS AN OFFICER OF THE NAVY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JANUARY 8, 1930:

THERE HAS BEEN RECEIVED THE LETTER ADDRESSED TO YOU NOVEMBER 26, 1929, BY LIEUT. COMMANDER R. W. SWEARINGEN (S.C.), UNITED STATES NAVY, AND THE THIRD INDORSEMENT THEREON AS FOLLOWS:

1. RESPECTFULLY FORWARDED TO THE COMPTROLLER GENERAL OF THE UNITED STATES.

2. AN INVESTIGATION CONDUCTED BY THE NAVY DEPARTMENT SHOWS THAT LIEUTENANT JAMES M. THOMAS, SUPPLY CORPS, U.S. NAVY, FAILED TO ACCOUNT FOR $22,000 IN CASH, ALLEGED TO HAVE BEEN TRANSFERRED BY HIM TO LIEUTENANTM. T. BETTON, SUPPLY CORPS, U.S. NAVY, UPON HIS BEING RELIEVED AS DISBURSING OFFICER OF DESTROYER DIVISION TWENTY-SEVEN. LIEUTENANT THOMAS, SUPPLY CORPS, HAS ADMITTED RESPONSIBILITY FOR THIS SHORTAGE TO AN OFFICER OF THE SUPPLY CORPS NOW ON DUTY IN THE BUREAU OF SUPPLIES AND ACCOUNTS. HE IS AT PRESENT UNDER ARREST AWAITING TRAIL BY GENERAL COURT-MARTIAL FOR THE ALLEGED SHORTAGE IN HIS ACCOUNTS.

3. THE NAVY DEPARTMENT, ON NOVEMBER 22, 1929, ADDRESSED A LETTER TO LIEUTENANT COMMANDER RALPH W. SWEARINGEN, SUPPLY CORPS, U.S. NAVY, THE DISBURSING OFFICER CARRYING THE ACCOUNTS OF LIEUTENANT THOMAS, SUPPLY CORPS, DIRECTING IN COMPLIANCE WITH THE PROVISIONS OF SECTION 1766, REVISED STATUTES (U.S.C., TITLE 5 SEC. 82), WITH RESPECT TO THE ALLEGED SHORTAGE OF $22,000, AND THAT REPORT BE MADE TO THE NAVY DEPARTMENT OF THE ACTION TAKEN. THE BASIC LETTER SHOWS THAT LIEUTENANT COMMANDER SWEARINGEN, SUPPLY CORPS, IS WITHHOLDING ALL PAY AND ALLOWANCES WHICH MAY BECOME DUE LIEUTENANT THOMAS, SUPPLY CORPS.

4. ON THE ABOVE STATEMENT OF FACTS THE QUESTION IS NOW PRESENTED AS TO WHETHER OR NOT, UNDER THE PROVISIONS OF SECTION 1766, REVISED STATUTES RENTAL AND SUBSISTENCE ALLOWANCES ARE INCLUDED WITHIN THE TERM "COMPENSATION" AS CONTAINED IN SAID SECTION, WHICH PROVIDES:

"NO MONEY SHALL BE PAID TO ANY PERSON FOR HIS COMPENSATION WHO IS IN ARREARS TO THE UNITED STATES, UNTIL HE HAS ACCOUNTED FOR AND PAID INTO THE TREASURY ALL SUMS FOR WHICH HE MAY BE LIABLE. IN ALL CASES WHERE THE PAY OR SALARY OF ANY PERSON IS WITHHELD IN PURSUANCE OF THIS SECTION, THE GENERAL ACCOUNTING OFFICE, IF REQUIRED TO DO SO BY THE PARTY, HIS AGENT OR ATTORNEY, SHALL REPORT FORTHWITH TO THE SOLICITOR OF THE TREASURY THE BALANCE DUE; AND THE SOLICITOR SHALL, WITHIN SIXTY DAYS THEREAFTER, ORDER SUIT TO BE COMMENCED AGAINST SUCH DELINQUENT AND HIS SURETIES.'

THERE IS NO QUESTION THAT SALARY IS COMPENSATION AND THAT SECTION 1766, REVISED STATUTES, IS FULL AUTHORITY FOR WITHHOLDING PAYMENT OF SALARY TO A DEFAULTING ACCOUNTABLE OFFICER. IF OTHER PAYMENTS TO SUCH AN OFFICER ACCRUING BY REASON OF HIS OFFICE, SUCH AS RENTAL AND SUBSISTENCE ALLOWANCE, MAY NOT BE CLASSED AS COMPENSATION WITHIN THE MEANING OF SEC. 1766, REVISED STATUTES, THE WITHHOLDING OF THE PAYMENT THEREOF TO HIM BECAUSE OF BEING A DEFAULTING OFFICER MUST FOLLOW UNDER THE GENERAL RIGHT OF A DEBTOR TO WITHHOLD PAYMENT WHERE THE CREDITOR IS INDEBTED ON OTHER ACCOUNTS. WISCONSIN CENTRAL RAILROAD V. UNITED STATES, 164, U.S. 210., BARRY V. UNITED STATES, 229 U.S. 47. AGAIN, A DEFAULTING OFFICER OF THE UNITED STATES HAS VIOLATED HIS OATH OF OFFICE AND STANDS IN NO POSITION UNDER SUCH A FRAUDULENT STATUS TO CLAIM A PAYMENT FROM THE UNITED STATES OR ANY ACCOUNT RELATING TO HIS OFFICE. SEE PAN-AMERICAN CO. V. UNITED STATES, 273 U.S. 476. UNLESS THERE IS A PLAIN MANDATE OF LAW REQUIRING PAYMENTS TO BE MADE TO LIEUTENANT THOMAS UNDER SUCH CONDITIONS, ANY SUM WHICH MAY BECOME DUE HIM ON ANY ACCOUNT SHOULD BE WITHHELD. SEE, ALSO, ON THE GENERAL QUESTION 17 OP.ATTY.GEN. 425; SHERBURNE'S CASE, 16 CT.CLS. 491; AND GRATIOT V. UNITED STATES, 15 PETERS 336, 369, WHERE MR. JUSTICE STORY, DELIVERING THE OPINION OF THE UNITED STATES SUPREME COURT UPON THE RELATION OF GENERAL GRATIOT TO THE UNITED STATES AS AN ACCOUNTABLE OFFICER, STATED THE MEANING OF "COMPENSATION" IN NO UNCERTAIN OR EQUIVOCAL TERMS, IN SO FAR AS ITS USE IN SECTION 1766 OF THE REVISED STATUTES IS CONCERNED, AS FOLLOWS:

THERE IS ANOTHER INSTRUCTION ASKED UNDER THIS EXCEPTION, IN A COMPLICATED FORM, BUT WHICH MAINLY TURNS UPON THE CONSIDERATION WHETHER THE TREASURY DEPARTMENT HAD A RIGHT TO DEDUCT THE PAY AND EMOLUMENTS OF THE DEFENDANT, AS A GENERAL OF THE ARMY, AND WHILE HE WAS CHIEF ENGINEER BY SETTING THEM OFF AGAINST THE BALANCE REPORTED AGAINST HIM, ON ACCOUNT OF HIS SUPERINTENDENCY AT FORTS MONROE AND CALHOUN. IN OUR JUDGMENT, THE POINT INVOLVES NO SERIOUS DIFFICULTY. THE UNITED STATES POSSESS THE GENERAL RIGHT TO APPLY ALL SUMS DUE FOR SUCH PAY AND EMOLUMENTS TO THE EXTINGUISHMENT OF ANY BALANCES DUE TO THEM BY THE DEFENDANT, ON ANY OTHER ACCOUNT, WHETHER OWED BY HIM AS A PRIVATE INDIVIDUAL OR AS CHIEF ENGINEER.

IT MAY BE SAID AS ALSO FOR CONSIDERATION IN THIS CONNECTION THAT UNDER THE ACT OF JUNE 10, 1922, 42 STAT. 625, SUBSISTENCE ALLOWANCES ARE MORE IN THE NATURE OF COMPENSATION THAN OF REIMBURSEMENT AND THAT THE RENTAL ALLOWANCE UNDER THE AMENDMENT CONTAINED IN THE ACT OF MAY 31, 1924, 43 STAT. 250, IS CONSIDERABLY MORE IN THE NATURE OF COMPENSATION THAN WAS COMMUTATION OF QUARTERS UNDER PRIOR LAWS.

WHILE THE PAY (BASIC AND FOR LENGTH OF SERVICE), RENTAL ALLOWANCE AND SUBSISTENCE ALLOWANCE FOR OFFICERS OF THE NAVY ARE AND FOR MANY YEARS HAVE BEEN APPROPRIATED FOR UNDER "PAY, ETC., " IT IS NOT UNDERSTOOD THAT THERE IS ANY SPECIFIC REQUIREMENT OF LAW MAKING IT INCUMBENT THAT NAVY OFFICERS BE PAID THEIR SALARIES OR EMOLUMENTS AT ANY PARTICULAR TIME OR TIMES DURING THE FISCAL YEAR, THE LEGAL RIGHT APPARENTLY BEING LIMITED TO HAVE PAID TO THEM OUT OF THE FISCAL YEAR'S APPROPRIATION THE AMOUNT THERETO AUTHORIZED BY THE CONGRESS AND, LEAVING OUT OF CONSIDERATION SECTION 1766 OF THE REVISED STATUTES, IN THE CIRCUMSTANCES APPEARING IN THIS CASE OF LIEUTENANT THOMAS, IT WOULD SEEM SOUND ADMINISTRATIVE DISCRETION REQUIRES A WITHHOLDING OF ACCRUED ITEMS AT LEAST UNTIL THE CLOSE OF THE FISCAL YEAR, IN WHICH CONNECTION SEE THE PROVISIONS OF SEC. 89 OF THE CRIMINAL CODE (SECTION 5490, REVISED STATUTES, ACT MARCH 4, 1909, 35 STAT. 1105., SEC. 175, TITLE 18, U.S. CODE) AS FOLLOWS:

EVERY OFFICER OR OTHER PERSON CHARGED BY ANY ACT OF CONGRESS WITH THE SAFEKEEPING OF THE PUBLIC MONEYS, WHO SHALL LOAN, USE, OR CONVERT TO HIS OWN USE, OR SHALL DEPOSIT IN ANY BANK OR EXCHANGE FOR OTHER FUNDS, EXCEPT AS SPECIALLY ALLOWED BY LAW, ANY PORTION OF THE PUBLIC MONEYS INTRUSTED TO HIM FOR SAFEKEEPING, SHALL BE GUILTY OF EMBEZZLEMENT OF THE MONEY SO LOANED, USED, CONVERTED, DEPOSITED, OR EXCHANGED, AND SHALL BE FINED IN A SUM EQUAL TO THE AMOUNT OF MONEY SO EMBEZZLED AND IMPRISONED NOT MORE THAN 10 YEARS.

THE CONCLUSION IS NECESSARY IN PROTECTION OF THE INTERESTS OF THE UNITED STATES THAT LIEUTENANT THOMAS' RIGHT TO RECEIVE PAYMENT OF RENTAL AND SUBSISTENCE ALLOWANCES IS UNAUTHORIZED AT THIS TIME. SEE, IN THIS CONNECTION, AS TO THE DUTIES OF THE GOVERNMENT ACCOUNTING OFFICERS WITH RESPECT TO PAYMENTS OF DOUBTFUL CLAIMS, LONGWILL V. UNITED STATES, 17 CT.CLS. 291; CHARLES V. UNITED STATES, 19 CT.CLS. 316, 319; AND EX PARTE ROCK, 171 FED.REP. 240, 241-242; AND, ON THE GENERAL QUESTION 17 OP.ATTY.GEN. 425. ..END :