A-52167, JANUARY 22, 1934, 13 COMP. GEN. 201

A-52167: Jan 22, 1934

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COLLECTION BY DISBURSING OFFICERS FROM THE CURRENT PAY OF ENLISTED MEN OF THE ARMY TO LIQUIDATE AMOUNTS ADMINISTRATIVELY ASCERTAINED TO BE DUE THE UNITED STATES IS LIMITED TO TWO-THIRDS OF THE SOLDIER'S CURRENTLY EARNED PAY. THE PERCENTAGE OF THE COLLECTIONS FROM CURRENTLY EARNED PAY IS NOT FOR ADJUSTMENT UNDER THE ACT OF MAY 22. THE SOLDIER'S CLAIM IS FOR ADJUSTMENT AND SETTLEMENT BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 236. 1934: THERE IS BEFORE THIS OFFICE THE MATTER OF STATING A SETTLEMENT OF THE CLAIM OF GORDON C. INVOLVING OFFSET OF ADMINISTRATIVELY ASCERTAINED INDEBTEDNESS TO THE UNITED STATES INCURRED WHILE CLAIMANT WAS SERVING IN THE ARMY. WAS DISCHARGED. HE WAS STILL INDEBTED TO THE UNITED STATES IN THE SUM OF $30.35.

A-52167, JANUARY 22, 1934, 13 COMP. GEN. 201

PAY - STOPPAGES - DISCHARGED ENLISTED MEN OF THE ARMY UNDER THE ACT OF MAY 22, 1928, 45 STAT. 698, COLLECTION BY DISBURSING OFFICERS FROM THE CURRENT PAY OF ENLISTED MEN OF THE ARMY TO LIQUIDATE AMOUNTS ADMINISTRATIVELY ASCERTAINED TO BE DUE THE UNITED STATES IS LIMITED TO TWO-THIRDS OF THE SOLDIER'S CURRENTLY EARNED PAY, THE UNCOLLECTED BALANCE TO BE LIKEWISE REDUCED IN SUBSEQUENT MONTHS, BUT AFTER DISCHARGE THE ACT OF 1928 HAS NO BEARING UPON THE FINAL ACCOUNT FOR STATING BETWEEN THE UNITED STATES AND THE CLAIMANT. AFTER DISCHARGE OF AN ENLISTED MAN OF THE ARMY, THE PERCENTAGE OF THE COLLECTIONS FROM CURRENTLY EARNED PAY IS NOT FOR ADJUSTMENT UNDER THE ACT OF MAY 22, 1928, 45 STAT. 698. THE SOLDIER'S CLAIM IS FOR ADJUSTMENT AND SETTLEMENT BY THE GENERAL ACCOUNTING OFFICE UNDER SECTION 236, REVISED STATUTES, AS AMENDED, SAID SECTION NOT HAVING BEEN MODIFIED BY THE ACT OF MAY 22, 1928.

DECISION BY COMPTROLLER GENERAL MCCARL, JANUARY 22, 1934:

THERE IS BEFORE THIS OFFICE THE MATTER OF STATING A SETTLEMENT OF THE CLAIM OF GORDON C. MUSE, FORMERLY PRIVATE, TROOP B, 11TH CAVALRY, INVOLVING OFFSET OF ADMINISTRATIVELY ASCERTAINED INDEBTEDNESS TO THE UNITED STATES INCURRED WHILE CLAIMANT WAS SERVING IN THE ARMY.

MUSE REENLISTED IN THE ARMY JANUARY 29, 1931, AND WAS DISCHARGED, NOT HONORABLY, APRIL 5, 1932, AT WHICH TIME, AS A RESULT OF ONE GENERAL AND TWO SUMMARY COURT-MARTIAL SENTENCES, VARIOUS ITEMS OF INDEBTEDNESS, AND CASH PAYMENTS MADE TO HIM, HE WAS STILL INDEBTED TO THE UNITED STATES IN THE SUM OF $30.35. THERE ARISES A QUESTION WHETHER AN ALLOWANCE MAY BE MADE THE CLAIMANT, NOTWITHSTANDING THE ABOVE INDEBTEDNESS AT THE TIME OF HIS DISCHARGE, BECAUSE DUE TO HIS DESERTION AND TRIAL BY GENERAL COURT MARTIAL HE WAS NOT PAID MONTHLY AND THAT PAYMENTS MADE TO HIM BY DISBURSING OFFICERS OF THE ARMY CARRYING THE ACCOUNTS FOR EACH OF THE PERIODS APRIL 1, 1931, TO JANUARY 31, 1932, AND FEBRUARY 1 TO APRIL 5, 1932, DID NOT EQUAL ONE THIRD OF THE NET PAY EARNED FOR THESE PERIODS. THE QUESTION APPARENTLY IS PREDICATED ON ALLEGED RIGHTS AND BENEFITS RESULTING FROM THE LIMITATIONS UPON COLLECTION OF INDEBTEDNESS FROM THE CURRENT MONTHLY PAY OF ENLISTED MEN OF THE ARMY UNDER THE PROVISIONS OF THE ACT OF MAY 22, 1928, 45 STAT. 698. THIS ACT PROVIDES---

THAT UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR SHALL PRESCRIBE, WHEN IT HAS BEEN ADMINISTRATIVELY ASCERTAINED THAT AN ENLISTED MAN OF THE ARMY IS INDEBTED TO THE UNITED STATES OR ANY OF ITS INSTRUMENTALITIES, THE AMOUNT OF SUCH INDEBTEDNESS MAY BE COLLECTED IN MONTHLY INSTALLMENTS BY DEDUCTION FROM HIS PAY ON CURRENT PAY ROLLS: PROVIDED, THAT THE AGGREGATE SUM OF SUCH DEDUCTIONS FOR ANY MONTH SHALL NOT EXCEED TWO THIRDS OF THE SOLDIER'S RATE OF PAY FOR THAT MONTH: AND PROVIDED FURTHER, THAT WHENEVER ANY PART OF THE PAY OF A SOLDIER FOR A CERTAIN MONTH SHALL HAVE BEEN LEGALLY FORFEITED BY SENTENCE OF COURT MARTIAL, OR OTHERWISE LEGALLY AUTHORIZED TO BE WITHHELD, THEN NO DEDUCTION UNDER THIS ACT SHALL BE SO APPLIED AS TO REDUCE THE ACTUAL PAY RECEIVED BY THE SOLDIER FOR THAT MONTH BELOW ONE THIRD OF HIS AUTHORIZED RATE OF PAY THEREFORE: AND PROVIDED FURTHER, THAT THE SECRETARY OF WAR, UNDER SUCH REGULATIONS AS HE SHALL PRESCRIBE, MAY CAUSE TO BE REMITTED AND CANCELED, UPON HONORABLE DISCHARGE OF THE ENLISTED MAN FROM THE SERVICE, ANY SUCH INDEBTEDNESS INCURRED DURING THE CURRENT ENLISTMENT AND REMAINING UNPAID AT THE TIME OF DISCHARGE; AND PROVIDED FURTHER, THAT NOTHING IN THIS ACT SHALL BE CONSTRUED TO PREVENT COLLECTIONS OF SUCH INDEBTEDNESS ON FINAL STATEMENTS FROM PAY, IN THE PROPORTIONS HEREINBEFORE INDICATED, OR FROM CLOTHING ALLOWANCE SAVINGS.

IT IS TO BE OBSERVED THAT THE ACT IS DIRECTED TOWARDS THE CURRENT MONTHLY PAY AND THE LIMITATIONS AS TO DEDUCTIONS THEREFROM TO LIQUIDATE ADMINISTRATIVELY ASCERTAINED INDEBTEDNESS AND LEGAL FORFEITURE OF COURT- MARTIAL FINES AND OTHER LEGALLY AUTHORIZED WITHHOLDINGS. THE ACT DOES NOT REQUIRE ANY CHANGE IN THE USAGE OF THE ARMY IN NOT PAYING A MAN MONTHLY WHO IS AWAITING TRIAL BY COURT MARTIAL NOR DOES IT REQUIRE MONTHLY PAYMENTS. THE OBVIOUS PURPOSE OF THE ACT IS TO SAVE TO THE SOLDIER CURRENTLY A PART OF HIS EARNED PAY IN ORDER THAT HE MIGHT PARTIALLY SATISFY HIS IMMEDIATE NEEDS, WELFARE, AND COMFORT THROUGH THE PURCHASE OF ITEMS NOT ISSUED GRATUITOUSLY INCIDENT TO HIS STATUS AS AN ENLISTED MAN, AND WHILE, UNDER THE TERMS OF THE STATUTE, ENLISTED MEN ARE ENTITLED TO RECEIVE CURRENTLY ONE THIRD OF THEIR EARNED MONTHLY PAY (UNLESS LEGALLY FORFEITED), IRRESPECTIVE OF THEIR INDEBTEDNESS, IT DOES NOT NECESSARILY FOLLOW THAT FAILURE TO SO PAY THEM CREATES A VESTED RIGHT THERETO AFTER DISCHARGE WHEN THERE EXISTS AN INDEBTEDNESS WHICH HAS NOT BEEN REMITTED AND CANCELED AS PROVIDED BY THE SAME ACT.

IN THE CONSIDERATION OF ANY RIGHTS OF AN ENLISTED MAN UNDER THE CITED STATUTE, EFFECT, IF POSSIBLE, MUST BE GIVEN TO ALL OF ITS PROVISIONS AND IN THIS CONNECTION, IT MAY BE STATED UNLESS A SOLDIER'S INDEBTEDNESS INCURRED DURING THE CURRENT ENLISTMENT AND REMAINING UNPAID AT THE TIME OF HIS DISCHARGE HAS BEEN REMITTED AND CANCELED UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF WAR IN ACCORDANCE WITH THE THIRD PROVISO OF THE ACT OF MAY 22, 1928, THAT INDEBTEDNESS NECESSARILY IS FOR OFFSET BY THIS OFFICE UNDER SECTION 236 OF THE REVISED STATUTES, AS AMENDED, THE SAME AS ANY OTHER INDEBTEDNESS SINCE THERE IS NOTHING IN THE ACT OF MAY 22, 1928, WHICH EXPRESSLY OR BY NECESSARY IMPLICATION REPEALS OR MODIFIES SAID SECTION 236. THE ACT OF 1928 HAS NO BEARING UPON THE FINAL ACCOUNT FOR STATING BETWEEN THE PARTIES WHERE THE RELATIONS BETWEEN THEM ARE AT AN END.

CONCEDEDLY, THE DISBURSING OFFICERS OF THE ARMY WHO CARRIED CLAIMANT'S PAY ACCOUNTS, MIGHT HAVE PAID HIM CURRENTLY IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF MAY 22, 1928, BUT HE HAS NOW BEEN DISCHARGED, NOT HONORABLY, AND WITH AN UNCOLLECTED DEBT DUE THE UNITED STATES, WHICH UNDER THE TERMS OF THE THIRD PROVISO OF THE 1928 ACT WAS NOT, AND COULD NOT HAVE BEEN REMITTED OR CANCELED BY THE SECRETARY OF WAR. THE AUTHORITY OF THIS OFFICE TO ADJUST AND SETTLE CLAIMS IS NOT MODIFIED BY THE ACT OF 1928, WHICH PERMITS CURRENT PAYMENTS BY DISBURSING OFFICERS IN EXCESS OF NET AMOUNT DUE. THE CLAIM IS DISALLOWED FOR THE REASON THAT THE DEBTS EXCEED THE CREDITS.