B-127765, B-130036, MAY 28, 1959, 38 COMP. GEN. 796

B-127765, B-130036, MAY 28, 1959, 38 COMP. GEN. 796

MILITARY PERSONNEL - PAY FORFEITURE - COURTS-MARTIAL SENTENCE - TRANSFER TO SOLDIERS' HOME THE AUTHORITY FOR THE TRANSFER OF AMOUNTS REPRESENTING FORFEITURES OF PAY AND ALLOWANCES OR FINES IMPOSED BY COURTS-MARTIAL SENTENCES AGAINST MEMBERS OF THE UNIFORMED SERVICES TO THE SOLDIERS' HOME PURSUANT TO 24 U.S.C. 44 REQUIRES THE TRANSFER OF ONLY SUCH AMOUNT WHICH IS IN EXCESS OF THE DEBTS OWED TO THE GOVERNMENT BY THE MEMBER.

TO THE SECRETARY OF DEFENSE, MAY 28, 1959:

IT RECENTLY HAS BEEN BROUGHT TO OUR ATTENTION THAT FOLLOWING OUR DECISION OF AUGUST 3, 1956, 36 COMP. GEN. 79, PARAGRAPH 40801 OF AIR FORCE MANUAL 173-20, RELATING TO PRECEDENCE OF DEDUCTIONS AND STOPPAGES, WAS CHANGED TO PROVIDE THAT FORFEITURES TAKE PRECEDENCE OVER ALL ITEMS OF INDEBTEDNESS, AND THAT PURSUANT TO THAT REGULATION FINANCE OFFICERS OF THE AIR FORCE ARE CURRENTLY CREDITING THE TOTAL AMOUNT FORFEITED BY COURT-MARTIAL ACTION TO THE SOLDIERS' HOME PERMANENT FUND EVEN THOUGH THE MEMBER IS OTHERWISE INDEBTED TO THE GOVERNMENT. IT ALSO APPEARS THAT THE SAME PROCEDURE IS BEING USED BY FINANCE OFFICERS OF THE DEPARTMENT OF THE ARMY.

IN OUR DECISION 36 COMP. GEN. 79, IT WAS STATED, AT PAGE 81, THAT--

* * * CONSIDERING THE QUOTED PROVISIONS CONCERNING FINES AND FORFEITURES AND THE FACT THAT PARTIAL FORFEITURES ARE NOT LIMITED EXCEPT BY THE TWO- THIRDS RULE AND BY THE PROVISIONS FOR SUCH STATUTORY DEDUCTIONS, THE CONCLUSION APPEARS REQUIRED THAT A FORFEITURE OF PAY ADJUDGED UNDER THE MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, IS TO BE REGARDED AS A LOSS OF ENTITLEMENT TO PAY IN THE AMOUNT OF THE FORFEITURE. IT FOLLOWS THAT COURT-MARTIAL FORFEITURES, WHETHER TOTAL OR PARTIAL, NOW TAKE PRECEDENCE OVER ITEMS OF INDEBTEDNESS. * * *

FORFEITURES TAKE PRECEDENCE OVER ITEMS OF INDEBTEDNESS IN THE SENSE THAT THE MEMBER'S ENTITLEMENT TO PAY IS REDUCED BY THE AMOUNT OF THE FORFEITURE. AT THAT TIME, HOWEVER, THERE WAS NOT CONSIDERED THE QUESTION AS TO THE DISPOSITION, IF ANY IS NECESSARY, OF THE AMOUNTS WITHHELD AS FORFEITURES.

WHILE THE 1951 MANUAL CHANGED THE EFFECT OF COURT-MARTIAL FORFEITURES ON A MEMBER'S PAY AND ALLOWANCE ACCOUNT AS BETWEEN THE MEMBER AND THE GOVERNMENT, THERE WAS NO CORRESPONDING CHANGE WITH REGARD TO THE AMOUNT OF FORFEITURES TO BE TRANSFERRED TO THE SOLDIERS' HOME PERMANENT FUND.

THE AUTHORITY FOR TRANSFERRING TO THE SOLDIERS' HOME PERMANENT FUND AMOUNTS COVERED BY COURT-MARTIAL SENTENCES OF FORFEITURE OF PAY AND ALLOWANCES IS CONTAINED IN SECTION 4818 OF THE REVISED STATUTES, 24 U.S.C. 44, AND IS LIMITED TO FORFEITURES "OVER AND ABOVE ANY AMOUNT THAT MAY BE DUE FOR THE REIMBURSEMENT OF GOVERNMENT.' THAT PROVISION OF LAW REQUIRES TRANSFER FOR THE BENEFIT OF THE SOLDIERS' HOME OF ONLY THAT PART OF FORFEITED PAY AND ALLOWANCES WHICH IS IN EXCESS OF THE DEBTS OWED THE GOVERNMENT BY SUCH INDIVIDUAL.

HENCE, THE AMOUNT TO BE TRANSFERRED TO THE SOLDIERS' HOME PERMANENT FUND IS TO BE DETERMINED IN THE SAME MANNER IN WHICH IT WAS DETERMINED PRIOR TO THE PROMULGATION OF THE 1951 MANUAL AND OUR DECISION OF AUGUST 3, 1956, 36 COMP. GEN. 79, NOTWITHSTANDING THE FACT THAT THE AMOUNT TRANSFERRED MAY NOT BE THE SAME AS THE AMOUNT OF THE FORFEITURE. FOR EXAMPLE, IF THE TOTAL STATUTORY PAY AND ALLOWANCES BEFORE FORFEITURES AMOUNTS TO $1,300, CHARGES (WHICH WOULD NOT INCLUDE FORFEITURES) TOTAL $1,200 AND FORFEITURES ARE IN THE AMOUNT OF $500, AS BETWEEN THE GOVERNMENT AND THE SERVICE MEMBER, THE MEMBER WOULD BE INDEBTED IN THE AMOUNT OF $400 ($1,300 LESS $500 IN FORFEITURES LESS $1,200 INDEBTEDNESS TO THE GOVERNMENT), BUT ONLY $100 SHOULD BE TRANSFERRED TO THE SOLDIERS' HOME PERMANENT FUND ($1,300 STATUTORY PAY AND ALLOWANCES LESS CHARGES TOTALING $1,200).

ACCORDINGLY, ACTION SHOULD BE TAKEN TO TRANSFER TO THE SOLDIERS' HOME PERMANENT FUND ONLY THE AMOUNT OF FORFEITURES OF PAY AND ALLOWANCE COMPUTED IN ACCORDANCE WITH THE ABOVE.