A-96480, SEPTEMBER 23, 1938, 18 COMP. GEN. 253

A-96480: Sep 23, 1938

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TRANSPORTATION - DAMAGE IN TRANSIT - SET-OFF OF FORMER EMPLOYEE'S RETIREMENT FUND CREDIT FOR BENEFIT OF CARRIER'S ACCOUNT WHERE PROPERTY PURCHASED UNDER GOVERNMENT CONTRACT IS DAMAGED IN TRANSIT UNDER CONDITIONS MAKING THE CARRIER LIABLE AND THE GOVERNMENT HAS BEEN MADE WHOLE BY REDUCTION OF THE CARRIER'S BILL TO THE EXTENT OF THE DAMAGE. THERE IS NO AUTHORITY TO WITHHOLD ANY AMOUNT IN THE RETIREMENT FUND TO THE CREDIT OF A FORMER GOVERNMENT EMPLOYEE FOR PAYMENT OF THE CARRIER'S CLAIM FOR REFUND OF THE AMOUNT PREVIOUSLY DEDUCTED. IS AS FOLLOWS: THIS OFFICE IS IN RECEIPT OF AN APPLICATION FOR REFUND OF RETIREMENT DEDUCTIONS IN THE CASE OF ANDREW B. ON WHICH THE TOTAL AMOUNT DUE IS $2. WHICH THAT DEPARTMENT WOULD LIKE TO HAVE DEDUCTED FROM THE AMOUNT DUE AS REFUND.

A-96480, SEPTEMBER 23, 1938, 18 COMP. GEN. 253

TRANSPORTATION - DAMAGE IN TRANSIT - SET-OFF OF FORMER EMPLOYEE'S RETIREMENT FUND CREDIT FOR BENEFIT OF CARRIER'S ACCOUNT WHERE PROPERTY PURCHASED UNDER GOVERNMENT CONTRACT IS DAMAGED IN TRANSIT UNDER CONDITIONS MAKING THE CARRIER LIABLE AND THE GOVERNMENT HAS BEEN MADE WHOLE BY REDUCTION OF THE CARRIER'S BILL TO THE EXTENT OF THE DAMAGE, ETC., INVOLVED, THERE IS NO AUTHORITY TO WITHHOLD ANY AMOUNT IN THE RETIREMENT FUND TO THE CREDIT OF A FORMER GOVERNMENT EMPLOYEE FOR PAYMENT OF THE CARRIER'S CLAIM FOR REFUND OF THE AMOUNT PREVIOUSLY DEDUCTED, NOTWITHSTANDING THE EMPLOYEE'S FAILURE TO FOLLOW ADMINISTRATIVE INSTRUCTIONS RELATIVE TO THE DISPOSITON OF THE DAMAGED FURNITURE AND THE DAMAGE TO THE CARRIER ON THAT ACCOUNT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, SEPTEMBER 23, 1938:

YOUR LETTER OF OCTOBER 23, 1937 (FILE SRR:GK:SGR-407042), IS AS FOLLOWS:

THIS OFFICE IS IN RECEIPT OF AN APPLICATION FOR REFUND OF RETIREMENT DEDUCTIONS IN THE CASE OF ANDREW B. CHALMERS, FORMER SUPPLY OFFICER, VETERANS ADMINISTRATION FACILITY, DWIGHT, ILLINOIS, ON WHICH THE TOTAL AMOUNT DUE IS $2,157.47.

A LETTER HAS BEEN RECEIVED FROM THE VETERANS ADMINISTRATION IN REFERENCE TO HIS INDEBTEDNESS TO THAT ORGANIZATION IN THE AMOUNT OF $34.20, DUE TO A REJECTED SHIPMENT, WHICH THAT DEPARTMENT WOULD LIKE TO HAVE DEDUCTED FROM THE AMOUNT DUE AS REFUND.

MR. CHALMERS HAS BEEN FULLY ADVISED OF THE CLAIM FILED AGAINST HIM AND UNDER DATE OF OCTOBER 13, 1937, OBJECTED TO THE PROPOSED SET-OFF OF $34.20 AS A SETTLEMENT OF HIS INDEBTEDNESS TO THE GOVERNMENT.

ALL CORRESPONDENCE PERTAINING TO THIS CLAIM IS FORWARDED HEREWITH FOR VERIFICATION AND ISSUANCE OF APPROPRIATE INSTRUCTIONS.

IT WILL BE APPRECIATED IF YOU WILL RETURN THE INCLOSED CORRESPONDENCE WITH YOUR REPLY, WHICH THIS OFFICE WOULD LIKE TO HAVE IN DUPLICATE.

THE REQUEST OF THE VETERANS' ADMINISTRATION THAT $34.20 BE WITHHELD FROM THE AMOUNT TO THE CREDIT OF MR. CHALMERS IN THE RETIREMENT FUND IS TO REIMBURSE THE GOVERNMENT FOR LOSSES ALLEGED TO HAVE RESULTED FROM HIS FAILURE TO FOLLOW INSTRUCTIONS RELATIVE TO THE DISPOSITION OF DAMAGED FURNITURE RECEIVED BY THE VETERANS' ADMINISTRATION UNDER CONTRACT NO. NOS- 35555, DATED APRIL 9, 1934.

PURSUANT TO ORDERS NO. 4-VA-15844, DATED, RESPECTIVELY, MAY 17, 1934, JANUARY 15 AND 18, 1935, UNDER THE ABOVE CITED CONTRACT, THERE WAS SHIPPED FROM THE JAMESTOWN ROYAL UPHOLSTERY CORPORATION, JAMESTOWN, N.Y., TO THE DWIGHT FACILITY, ON GOVERNMENT BILLS OF LADING NOS. VA 150173 AND VA- 161760, AMONG OTHER ARTICLES OF FURNITURE, ONE FRIEZE WALNUT CHAIR OF THE VALUE OF $32.65. UPON INSPECTION IT WAS FOUND THAT THE CHAIR WAS DAMAGED AND INSTRUCTIONS WERE REQUESTED FROM THE CHIEF, PROCUREMENT DIVISION, VETERANS' ADMINISTRATION IN WASHINGTON, AS TO ITS DISPOSITION. INASMUCH AS THE DAMAGE WAS CONCEALED, IT WAS DETERMINED THAT THE LAST CARRIER, THE ALTON RAILROAD, WAS LIABLE AND INSTRUCTIONS ISSUED FOR THE RETURN OF THE CHAIR TO THE CARRIER.

IN THE INTERIM A REPLACEMENT CHAIR WAS ORDERED FROM THE CONTRACTOR BY THE PROCUREMENT DIVISION ON MAY 17, 1935, AND WAS SHIPPED TO THE DWIGHT FACILITY ON GOVERNMENT BILL OF LADING NO. VA-181610. FREIGHT CHARGES ON REPLACEMENT CHAIR OF $1.55, INCLUDED IN THE ALTON RAILROAD BILL NO. 75244 IN THE AMOUNT OF $12.35, WERE PAID ON VOUCHER NO. 670562, DATED NOVEMBER 11, 1935. THE CONTRACTOR WAS PAID FOR BOTH THE DAMAGED AND THE REPLACED CHAIRS ON VOUCHERS NO. 1011615, FEBRUARY 13, 1935, AND NO. 527059, OCTOBER 15, 1935, RESPECTIVELY. THE ALTON RAILROAD BILL NO. 45237 IN THE AMOUNT OF $629.71, COVERING THE ORIGINAL SHIPMENT WAS PAID ON VOUCHER NO. 64195, DATED JULY 15, 1936, AND AMONG OTHER ITEMS THERE WAS DEDUCTED THEREFROM, IN ADDITION TO THE VALUE OF THE DAMAGED CHAIR, THE AMOUNT OF $1.55 FREIGHT PAID ON THE REPLACEMENT CHAIR.

IT APPEARS THAT THE CLAIMANT TRANSMITTED THE ABOVE MENTIONED INSTRUCTION OF THE CHIEF, PROCUREMENT DIVISION, RELATIVE TO THE DISPOSITION OF THE DAMAGED CHAIR TO THE STOREKEEPER OF THE FACILITY, BUT UPON BEING REQUESTED BY THE LATTER TO FURNISH THE NAME OF THE CARRIER INVOLVED, APPARENTLY FURNISHED THE NAME OF THE CONTRACTOR.

THE CHAIR WAS RETURNED TO THE CONTRACTOR AND WAS REPAIRED AT A COST OF $6.40 FOR WHICH AMOUNT IT HELD THE RAILROAD LIABLE. REQUEST FOR INSTRUCTIONS BY THE CONTRACTOR AS TO THE DISPOSITION OF THE REPAIRED CHAIR WAS APPARENTLY IGNORED BY THE VETERANS' ADMINISTRATION, AND AS FAR AS THE GOVERNMENT RECORDS SHOW, THE CONTRACTOR SHOULD STILL BE IN POSSESSION OF THE REPAIRED CHAIR. HOWEVER, BY LETTER DATED APRIL 30, 1938, CONTRACTOR REPORTS IT WAS UNABLE TO LOCATE THE CHAIR OR FURNISH THE DESTINATION TO WHICH IT WAS SHIPPED.

THE PRESENT STATUS OF THE MATTER COULD BE SUMMARIZED AS FOLLOWS:

THE CONTRACTOR HAS BEEN PAID $65.30 BY THE GOVERNMENT, REPRESENTING THE PRICE OF THE DAMAGED CHAIR AND THE REPLACEMENT CHAIR. IT IS OR SHOULD BE IN POSSESSION OF THE DAMAGED CHAIR WHICH IT REPAIRED AT A COST OF $6.40, FOR WHICH AMOUNT IT HAS A CLAIM AGAINST THE CARRIER. THIS CLAIM THE CONTRACTOR IS NOW WILLING TO WAIVE.

THE GOVERNMENT IS IN POSSESSION OF THE REPLACEMENT CHAIR AND HAS DEDUCTED $34.20, REPRESENTING THE PRICE OF THE DAMAGED CHAIR AND THE FREIGHT ON THE REPLACEMENT CHAIR, FROM THE ACCOUNT OF THE CARRIER. IT IS NOW PROPOSED TO WITHHOLD A LIKE AMOUNT FROM THE AMOUNT TO THE CREDIT OF THE CLAIMANT IN THE RETIREMENT FUND.

THE CARRIER, BY BILL NO. 45237-A, NOW RECLAIMS $34.20, AND THE CLAIM IS APPROVED IN FULL BY THE VETERANS' ADMINISTRATION.

THERE IS NOW NO LOSS TO THE GOVERNMENT AND THE WITHHOLDING FROM CHALMERS' ACCOUNT COULD ONLY BE ON THE THEORY THAT SAID AMOUNT WOULD BE USED TO PAY THE CARRIER'S CLAIM. THIS OFFICE CANNOT AGREE TO SUCH VIEW OF THE MATTER. CHALMERS' RESPONSIBILITY IN THE MATTER IS CLEARLY NOT AS GREAT AS EITHER THAT OF THE CONTRACTOR OR OF THE CARRIER. THE CARRIER CAUSED THE DAMAGE AND THE CONTRACTOR APPARENTLY RECEIVED AND HAS NOT RETURNED THE REPLACEMENT CHAIR. THE CLAIM OF THE CARRIER, IF ANY, IS AGAINST THE CONTRACTOR AND ACCORDINGLY ITS CLAIM AGAINST THE GOVERNMENT WILL BE DISALLOWED. THERE IS NO AUTHORITY TO WITHHOLD ANY AMOUNT IN THE RETIREMENT FUND EXCEPT TO MAKE GOOD LOSSES SUSTAINED BY THE UNITED STATES, AND IN THE PRESENT CASE SINCE THERE IS NO RIGHT OF SUBROGATION IN THE CARRIER, AND NO LOSS HAS RESULTED TO THE GOVERNMENT BY REASON OF THE TRANSACTION, THE REQUEST OF THE VETERANS' ADMINISTRATION THAT $34.20 BE WITHHELD FROM THE AMOUNT TO THE CREDIT TO CHALMERS IN THE RETIREMENT FUND IS DENIED, AND CHALMERS' CLAIM FOR REFUND OF THE AMOUNT TO HIS CREDIT IN THE RETIREMENT FUND MAY BE SETTLED WITHOUT REGARD TO THE CLAIM OF THE VETERANS' ADMINISTRATION, WHICH HAS BEEN FURNISHED A COPY OF THIS DECISION.

THE CORRESPONDENCE TRANSMITTED WITH YOUR LETTER, TOGETHER WITH AN EXTRA COPY OF THIS DECISION, IS TRANSMITTED AS REQUESTED.