A-38734, OCTOBER 27, 1931, 11 COMP. GEN. 161

A-38734: Oct 27, 1931

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RETIRED - STOPPAGE - DEBTS OF RETIRED EMERGENCY OFFICERS TO POST EXCHANGE THE ADMINISTRATOR OF VETERANS' AFFAIRS IS NOT AUTHORIZED TO WITHHOLD RETIRED PAY OTHERWISE DUE AN OFFICER ON THE SEPARATE EMERGENCY OFFICERS' RETIRED LIST OF THE ARMY TO SATISFY A DEBT FOUND IN THE WAR DEPARTMENT TO BE OWING FROM SUCH RETIRED OFFICER TO AN ARMY POST EXCHANGE. FOR A DECISION WHETHER YOU ARE AUTHORIZED TO WITHHOLD RETIRED PAY OTHERWISE DUE LIEUT. FOR ITEMS WHICH IT IS UNDERSTOOD HE PURCHASED IN LOCAL STORES ON THE CREDIT OF THE POST EXCHANGE AND FOR WHICH HE HAS NOT MADE PAYMENT. 75 (E) DEFINE A POST EXCHANGE AS A "VOLUNTARY UNINCORPORATED COOPERATIVE ASSOCIATION OF ARMY ORGANIZATIONS WHOSE RIGHTS AND LIABILITIES ARE MEASURED BY THE LAW OF PARTNERSHIP.'.

A-38734, OCTOBER 27, 1931, 11 COMP. GEN. 161

PAY, RETIRED - STOPPAGE - DEBTS OF RETIRED EMERGENCY OFFICERS TO POST EXCHANGE THE ADMINISTRATOR OF VETERANS' AFFAIRS IS NOT AUTHORIZED TO WITHHOLD RETIRED PAY OTHERWISE DUE AN OFFICER ON THE SEPARATE EMERGENCY OFFICERS' RETIRED LIST OF THE ARMY TO SATISFY A DEBT FOUND IN THE WAR DEPARTMENT TO BE OWING FROM SUCH RETIRED OFFICER TO AN ARMY POST EXCHANGE.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, OCTOBER 27, 1931:

THERE HAS BEEN RECEIVED YOUR REQUEST DATED OCTOBER 19, 1931, FOR A DECISION WHETHER YOU ARE AUTHORIZED TO WITHHOLD RETIRED PAY OTHERWISE DUE LIEUT. JAMES H. HENNELLY, AN OFFICER ON THE SEPARATE EMERGENCY OFFICERS' RETIRED LIST OF THE ARMY, TO SATISFY AN INDEBTEDNESS OF $546.84 WHICH THE WAR DEPARTMENT HAS FOUND TO BE DUE FROM HIM TO THE POST EXCHANGE, HEADQUARTERS COMPANY, WASHINGTON, D.C., FOR ITEMS WHICH IT IS UNDERSTOOD HE PURCHASED IN LOCAL STORES ON THE CREDIT OF THE POST EXCHANGE AND FOR WHICH HE HAS NOT MADE PAYMENT.

ARMY REGULATIONS 210-65, 75 (E) DEFINE A POST EXCHANGE AS A "VOLUNTARY UNINCORPORATED COOPERATIVE ASSOCIATION OF ARMY ORGANIZATIONS WHOSE RIGHTS AND LIABILITIES ARE MEASURED BY THE LAW OF PARTNERSHIP.'

IN KENNY V. UNITED STATES (1926), 62 CT.CLS. 328, 337, THE UNITED STATES COURT OF CLAIMS HELD THAT MONEY WHICH WAS THE PROPERTY OF AN ARMY POST EXCHANGE WAS NOT PROPERTY OF THE GOVERNMENT. THAT COURT HAS HELD, ALSO, IN THE CASE OF TAGGART V. UNITED STATES, 17 CT.CLS. 322, THAT NO PUBLIC OFFICER CAN MAKE THE GOVERNMENT EITHER AGENT OR TRUSTEE FOR THE COLLECTION OF PRIVATE DEBTS.

THE ACT OF MAY 24, 1928, 45 STAT. 735, ESTABLISHING THE EMERGENCY OFFICERS' RETIRED LISTS, PROVIDES THAT THE RETIREMENT PAY GRANTED THEREUNDER "IS IN LIEU OF ALL DISABILITY COMPENSATION BENEFITS" GRANTED TO OTHER VETERANS UNDER THE WORLD WAR VETERANS' ACT, WHICH COMPENSATION SECTION 22 OF THE ACT OF JUNE 7, 1924, 43 STAT. 613, PROVIDES "SHALL NOT BE SUBJECT TO THE CLAIMS OF CREDITORS OF ANY PERSON TO WHOM AN AWARD IS MADE.'

IT WOULD SEEM, THEREFORE, THAT THE RETIRED PAY OTHERWISE DUE AN OFFICER ON THE SEPARATE EMERGENCY OFFICERS' RETIRED LIST OF THE ARMY IS NOT AUTHORIZED TO BE WITHHELD UNDER YOUR DIRECTION, AND APPLIED TO SATISFY THE INDEBTEDNESS WHICH HAS BEEN REPORTED TO BE DUE AN ARMY POST EXCHANGE, A PRIVATE CREDITOR OF THE OFFICER.