A-78521, AUGUST 20, 1936, 16 COMP. GEN. 161

A-78521: Aug 20, 1936

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IT IS REPORTED BY THE UNITED STATES CIVIL SERVICE COMMISSION THAT THERE IS TO THE CREDIT OF THE CLAIMANT ON ACCOUNT OF RETIREMENT DEDUCTIONS MADE UNDER THE PROVISIONS OF THE ACTS OF JULY 3. IS CORROBORATED BY A REPORT FROM THE WAR DEPARTMENT AND FROM THE RECORDS OF THIS OFFICE. IT WAS HELD. AS FOLLOWS: THE QUESTION WHETHER A PERSON IN THE MILITARY SERVICE MAY IN THE ABSENCE OF A STATUTE BE EMPLOYED IN ANOTHER CAPACITY UNDER THE GOVERNMENT AND BE PAID THEREFOR IS NOT A NEW ONE. SO FAR AS AN ENLISTED MAN IS CONCERNED. UNTIL HIS ENLISTMENT IS TERMINATED. THE SAME CONCLUSION WAS REACHED IN DECISION OF JULY 7. IT WAS HELD (QUOTING FROM THE SYLLABUS): THE ACCOUNTING OFFICERS OF THE UNITED STATES HAVE THE INHERENT RIGHT.

A-78521, AUGUST 20, 1936, 16 COMP. GEN. 161

SET-OFF - RETIREMENT DEDUCTIONS - DUAL COMPENSATION INDEBTEDNESS TO THE UNITED STATES PURSUANT TO THE GOVERNMENT'S INHERENT RIGHT OF SET-OFF THE AMOUNT DEDUCTED FROM THE COMPENSATION OF A FORMER UNITED STATES PENITENTIARY GUARD AND CREDITED TO HIM IN THE CIVIL SERVICE RETIREMENT FUND MAY BE APPLIED AGAINST HIS INDEBTEDNESS TO THE UNITED STATES ARISING FROM THE RECEIPT OF COMPENSATION AS A CIVILIAN GUARD WHILE EN ENLISTED MAN OF THE ARMY, THE RULE STATED IN THE COURT CASES OF MCCARL, COMPTROLLER GENERAL, ET AL. V. COX, AND MCCARL, COMPTROLLER GENERAL, ET AL. V. PENCE, CITED BY THE DEBTOR AS PRECLUDING SUCH SET-OFF, HAVING REFERENCE TO THE STOPPAGE OF CURRENT PAY OF ARMY AND NAVY OFFICERS, NOT BEING FOR APPLICATION IN SUCH A CASE, AND ALSO HAVING BEEN MATERIALLY AFFECTED BY THE RECENT ACTS OF FEBRUARY 24, 1931, 46 STAT. 1415, AND MAY 26, 1936, 49 STAT. 1374.

DECISION BY ACTING COMPTROLLER GENERAL ELLIOTT, AUGUST 20, 1936:

THERE HAS BEEN PRESENTED TO THIS OFFICE FOR CONSIDERATION THE QUESTION OF WHETHER THE AMOUNT TO THE CREDIT OF MATHER H. PEAVY IN THE CIVIL SERVICE RETIREMENT FUND--- REPRESENTING RETIREMENT DEDUCTIONS FROM HIS SALARY AS FORMER GUARD, UNITED STATES PENITENTIARY, ATLANTA, GA.--- MAY BE APPLIED AGAINST HIS INDEBTEDNESS TO THE UNITED STATES ARISING FROM UNLAWFUL PAYMENTS RECEIVED IN CONTRAVENTION OF THE DUAL COMPENSATION STATUTES.

IT IS REPORTED BY THE UNITED STATES CIVIL SERVICE COMMISSION THAT THERE IS TO THE CREDIT OF THE CLAIMANT ON ACCOUNT OF RETIREMENT DEDUCTIONS MADE UNDER THE PROVISIONS OF THE ACTS OF JULY 3, 1926, 44 STAT. 904, AND MAY 29, 1930, 46 STAT. 468, THE SUM OF $286.14, AND THAT CLAIMANT ACCEPTED APPOINTMENT AS GUARD ON MAY 22, 1930, PRIOR TO HIS DISCHARGE AS AN ENLISTED MAN FROM THE UNITED STATES ARMY ON AUGUST 9, 1930. THIS DUAL EMPLOYMENT AS AN ENLISTED MAN OF THE ARMY AND AS A CIVILIAN GUARD DURING THE PERIOD MAY 22 TO AUGUST 9, 1930, IS CORROBORATED BY A REPORT FROM THE WAR DEPARTMENT AND FROM THE RECORDS OF THIS OFFICE, THE LATTER SHOWING NET PAYMENTS OF $351.26 COMPENSATION AS GUARD DURING SAID PERIOD AT THE RATE OF $1,680 PER ANNUM, LESS RETIREMENT DEDUCTIONS.

IN DECISION OF JULY 21, 1923, 3 COMP. GEN. 40, IT WAS HELD, AT PAGE 41, AS FOLLOWS:

THE QUESTION WHETHER A PERSON IN THE MILITARY SERVICE MAY IN THE ABSENCE OF A STATUTE BE EMPLOYED IN ANOTHER CAPACITY UNDER THE GOVERNMENT AND BE PAID THEREFOR IS NOT A NEW ONE. SO FAR AS AN ENLISTED MAN IS CONCERNED, AND UNTIL HIS ENLISTMENT IS TERMINATED, HE MAY BE PAID ONLY THE PAY AND ALLOWANCES THAT ACCRUE TO HIM UNDER THE LAWS AND REGULATIONS APPLICABLE TO HIS ENLISTED STATUS. 15 OP.ATTY.GEN. 362; 18 COMP. DEC. 224. SEE ALSO FOR A CASE SOMEWHAT SIMILAR TO THE PRESENT ONE, 22 COMP. DEC. 259. AND SEE ALSO 26 COMP. DEC. 568; 25 ID. 666.

THE SAME CONCLUSION WAS REACHED IN DECISION OF JULY 7, 1930, A 32387, AND IN DECISION OF SEPTEMBER 25, 1933, A-51041. COMPARE, ALSO, WOODWELL V. UNITED STATES, 214 U.S. 82.

THE CIVIL SERVICE COMMISSION ADVISED CLAIMANT THAT, IN VIEW OF THE RULE AS ESTABLISHED BY ABOVE-CITED DECISIONS AND THE RULE APPLIED IN 1 COMP. GEN. 605, IT PROPOSED TO APPLY THE AMOUNT STANDING TO HIS CREDIT IN THE RETIREMENT FUND AGAINST HIS INDEBTEDNESS TO THE GOVERNMENT ARISING BY REASON OF HIS RECEIPT OF COMPENSATION AS A CIVILIAN GUARD PRIOR TO THE TERMINATION OF HIS MILITARY SERVICE, FROM WHICH PROPOSED ACTION CLAIMANT, THROUGH HIS ATTORNEYS, FILED WITH THE CIVIL SERVICE COMMISSION AN "APPEAL" AND THE COMMISSIONER HAS REFERRED THE MATTER FOR CONSIDERATION. IN 1 COMP. GEN. 605, IT WAS HELD (QUOTING FROM THE SYLLABUS):

THE ACCOUNTING OFFICERS OF THE UNITED STATES HAVE THE INHERENT RIGHT, INDEPENDENTLY OF THE ACT OF MARCH 3, 1875, 18 STAT. 481, TO SET OFF, IN A PROPER CASE, AN AMOUNT DUE FROM A CLAIMANT TO THE UNITED STATES AGAINST AN AMOUNT OTHERWISE DUE TO SAID CLAIMANT.

IT IS NOT DENIED IN THE "APPEAL" THAT THE PAYMENTS OF COMPENSATION AS CIVILIAN GUARD WERE UNLAWFULLY MADE DURING THE PERIOD OF MILITARY SERVICE, NOR THAT THE CLAIMANT IS INDEBTED TO THE GOVERNMENT IN THE AMOUNT OF SUCH UNLAWFUL PAYMENTS, BUT IT IS CONTENDED THEREIN THAT THERE IS NO AUTHORITY IN THE UNITED STATES CIVIL SERVICE COMMISSION OR IN THIS OFFICE, TO APPLY THE AMOUNT IN THE RETIREMENT FUND TO THE CREDIT OF THE CLAIMANT AGAINST HIS INDEBTEDNESS TO THE UNITED STATES, BASING SUCH CONTENTION ON THE CASES OF MCCARL, COMPTROLLER GENERAL, ET AL. V. COX, 8 F./2D) 669, CERTIORARI DENIED BY THE UNITED STATES SUPREME COURT, MARCH 15, 1926, 270 U.S. 652, AND MCCARL, COMPTROLLER GENERAL, ET AL. V. PENCE, 18 F./2D) 809, RENDERED SUBSEQUENT TO THE DECISION OF THIS OFFICE REPORTED IN 1 COMP. GEN. 605, SUPRA.

IN CONSIDERING THE EFFECT OF THE COX AND PENCE CASES UPON A DISBURSING OFFICER'S RESPONSIBILITY IT WAS STATED IN 7 COMP. GEN. 64, AT PAGE 66, THAT:

IT IS RECOGNIZED, OF COURSE, THAT THE RECENT COURT DECISIONS BEGINNING WITH DILLON V. GROSS, 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 * * *.

THE CASES RELIED UPON BY THE ATTORNEY FOR CLAIMANT RELATE TO THE WITHHOLDING OF PAY OF ARMY AND NAVY OFFICERS STILL IN THE SERVICE AND HAVE NO APPLICATION WHATEVER IN THE INSTANT CASE INVOLVING THE WITHHOLDING OF AN AMOUNT IN THE RETIREMENT FUND TO THE CREDIT OF A PERSON NO LONGER IN THE SERVICE.

IN THE DECISION OF THE COURT OF CLAIMS, DATED JANUARY 6, 1936, CASE OF JOHN F. L. O-LEARY V. THE UNITED STATES, NO. 41921, RENDERED SUBSEQUENT TO THE DECISIONS RELIED UPON BY THE ATTORNEY IN THIS CASE, THE COURT ALLOWED THE COUNTERCLAIM OF THE UNITED STATES OF THE AMOUNT OF AN UNPAID FINE AGAINST THE PLAINTIFF'S CLAIM FOR REFUND OF RETIREMENT DEDUCTIONS. THAT IS TO SAY, THE COURT OF CLAIMS APPLIED THE GENERAL RULE OF SET-OFF STATED IN 1 COMP. GEN. 605, AND SUBSEQUENT DECISIONS OF THIS OFFICE IN CASES INVOLVING THE WITHHOLDING OF RETIREMENT DEDUCTIONS FOR APPLICATION AGAINST THE INDEBTEDNESS OF THE CLAIMANTS TO THE GOVERNMENT. WHILE NOT SPECIFICALLY APPLICABLE IN THE INSTANT MATTER, THERE ARE PARTICULARLY FOR NOTING THE RECENT ACTS OF FEBRUARY 24, 1931, 46 STAT. 1415, AND MAY 26, 1936, 49 STAT. 1374, WHICH AFFECT MATERIALLY THE HOLDING OF THE COURTS IN THE COX AND PENCE CASES.

IT MUST BE CONCLUDED IN THIS CASE, THEREFORE, THAT THE TOTAL AMOUNT OF $286.14 TO THE CREDIT OF CLAIMANT IN THE RETIREMENT FUND IS AVAILABLE FOR APPLICATION IN REDUCTION OF CLAIMANT'S INDEBTEDNESS TO THE UNITED STATES, ARISING BY REASON OF UNLAWFUL PAYMENTS OF COMPENSATION AS A GUARD, IN THE TOTAL AMOUNT OF $351.26.

ACCORDINGLY, THE ENTIRE AMOUNT TO THE CREDIT OF CLAIMANT IN THE RETIREMENT FUND, REPORTED TO BE $286.14, WILL BE PAID TO THE TREASURER OF THE UNITED STATES AND APPLIED IN REDUCTION OF THE FORMER EMPLOYEE'S INDEBTEDNESS TO THE UNITED STATES, LEAVING A BALANCE OF $65.12 DUE FROM CLAIMANT TO THE UNITED STATES WITH RESPECT TO WHICH THE USUAL COLLECTION PROCEEDINGS WILL BE INSTITUTED.