B-130602, MAR. 5, 1957

B-130602: Mar 5, 1957

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TO THE SECRETARY OF THE NAVY: FURTHER REFERENCE IS MADE TO LETTER OF FEBRUARY 1. REQUESTING A DECISION ON CERTAIN QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE PROBLEM OF SETTING OFF THE AMOUNT OF A MEMBER'S GENERAL INDEBTEDNESS TO THE GOVERNMENT AGAINST HIS FINAL PAY. IT IS REPORTED THAT DEBT CHARGES HAVE BEEN RAISED AGAINST CAPTAIN JOHN R. OTHER PUBLIC PROPERTY ARE RECEIVED FOR DISTRIBUTION. OR WHOSE DUTY IT IS TO RECEIVE OR EXAMINE RETURNS OF SUCH PROPERTY. IT IS PROVIDED IN 31 U.S.C. 91 THAT THE MANNER OF MAKING PROPERTY RETURNS "OR OF ASCERTAINING LIABILITY FOR PROPERTY. IT APPEARS EQUALLY CLEAR THAT A DETERMINATION OF LOSS MADE PURSUANT TO 31 U.S.C. 89-92 AND 10 U.S.C. 1304 IS EVIDENCE OF AN INDEBTEDNESS DUE THE GOVERNMENT SUFFICIENT TO PERMIT DEDUCTION FROM THE MEMBER'S FINAL PAY.

B-130602, MAR. 5, 1957

TO THE SECRETARY OF THE NAVY:

FURTHER REFERENCE IS MADE TO LETTER OF FEBRUARY 1, 1957, FROM THE ASSISTANT SECRETARY OF THE NAVY (FINANCIAL MANAGEMENT), REQUESTING A DECISION ON CERTAIN QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE PROBLEM OF SETTING OFF THE AMOUNT OF A MEMBER'S GENERAL INDEBTEDNESS TO THE GOVERNMENT AGAINST HIS FINAL PAY.

IT IS REPORTED THAT DEBT CHARGES HAVE BEEN RAISED AGAINST CAPTAIN JOHN R. DAY, USMC, AND FIVE OTHER MARINE CORPS OFFICERS AND ENLISTED MEN REPRESENTING ADMINISTRATIVELY DETERMINED INDEBTEDNESSES SHOWN ON ARMY REPORTS OF SURVEY FOR LOSS OR DAMAGE OF ARMY PROPERTY UNDER AUTHORITY OF THE SECRETARY OF THE ARMY AS PROVIDED IN THE ACT OF MARCH 29, 1894, AS AMENDED, 31 U.S.C. 89, 90, AS FOLLOWS:

"INSTEAD OF FORWARDING TO THE GENERAL ACCOUNTING OFFICE RETURNS OF PUBLIC PROPERTY INTRUSTED TO THE POSSESSION OF OFFICERS OR AGENTS, THE QUARTERMASTER GENERAL, THE SURGEON GENERAL, THE CHIEF OF ENGINEERS, THE CHIEF OF ORDNANCE, THE CHIEF SIGNAL OFFICER, THE POSTMASTER GENERAL OF THE NAVY, THE COMMISSIONER OF INDIAN AFFAIRS, OR OTHER LIKE CHIEF OFFICERS IN ANY DEPARTMENT, BY, THROUGH, OR UNDER WHOM STORES, SUPPLIES, AND OTHER PUBLIC PROPERTY ARE RECEIVED FOR DISTRIBUTION, OR WHOSE DUTY IT IS TO RECEIVE OR EXAMINE RETURNS OF SUCH PROPERTY, SHALL CERTIFY TO THE GENERAL ACCOUNTING OFFICE, FOR DEBITING ON THE PROPER ACCOUNT, ANY CHARGE AGAINST ANY OFFICER OR AGENT INTRUSTED WITH PUBLIC PROPERTY, ARISING FROM ANY LOSS, ACCRUING BY HIS FAULT, TO THE GOVERNMENT AS TO THE PROPERTY SO INTRUSTED TO HIM.

"THE CERTIFICATE REQUIRED BY SECTION 89 OF THIS TITLE SHALL SET FORTH THE CONDITION OF SUCH OFFICER'S OR AGENT'S PROPERTY RETURNS, THAT IT INCLUDES ALL CHARGES MADE UP TO ITS DATE AND NOT PREVIOUSLY CERTIFIED, THAT HE HAS HAD A REASONABLE OPPORTUNITY TO BE HEARD AND HAS NOT BEEN RELIEVED OF RESPONSIBILITY; THE EFFECT OF SUCH CERTIFICATE, WHEN RECEIVED, SHALL BE THE SAME AS IF THE FACTS THEREIN SET FORTH HAD BEEN ASCERTAINED BY THE GENERAL ACCOUNTING OFFICE IN ACCOUNTING.'

IT IS PROVIDED IN 31 U.S.C. 91 THAT THE MANNER OF MAKING PROPERTY RETURNS "OR OF ASCERTAINING LIABILITY FOR PROPERTY, UNDER EXISTING LAWS AND REGULATIONS," SHALL NOT BE AFFECTED BY SECTIONS 89-92 EXCEPT AS PROVIDED IN SECTION 89, AND 31 U.S.C. 92 AUTHORIZES THE HEADS OF THE SEVERAL DEPARTMENTS TO MAKE AND ENFORCE REGULATIONS TO CARRY OUT THE PROVISIONS OF SECTIONS 89-91. THE ACT OF OCTOBER 30, 1941, 10 U.S.C. 1304 (PARAGRAPH 1F, ARMY REGULATIONS 35-6640) PROVIDES THAT PROPERLY DESIGNATED ARMY OFFICERS, UNDER REGULATIONS TO BE PRESCRIBED, MAY TAKE ACTION ON REPORTS OF SURVEYS AND ALL OTHER VOUCHERS PERTAINING TO THE LOSS, DAMAGE, SPOILAGE, ETC., OF PROPERTY OF THE UNITED STATES UNDER THE CONTROL OF THE WAR DEPARTMENT (DEPARTMENT OF THE ARMY) AND THAT ACTION TAKEN BY SUCH OFFICERS ON SAID SURVEYS OR VOUCHERS HOLDING "ANY PERSON OR CONCERN" PECUNIARILY LIABLE FOR THE LOSS, DAMAGE, SPOILAGE OR DESTRUCTION OF SUCH PROPERTY SHALL BE FINAL UPON APPROVAL BY PROPER ADMINISTRATIVE AUTHORITY. SEE PARAGRAPHS 2 AND 3, ARMY REGULATIONS 35 6640, FOR REGULATIONS FIXING THE POLICY WITH RESPECT TO THE PECUNIARY LIABILITY OF "MILITARY PERSONNEL" FOR LOSS, DAMAGE OR DESTRUCTION OF DEPARTMENT OF THE ARMY PROPERTY.

THERE APPEARS TO BE NO QUESTION AS TO THE LIABILITY OF A MEMBER OF THE ARMED SERVICES FOR LOSS, DAMAGE OR DESTRUCTION OF PROPERTY ENTRUSTED TO HIM, WHICH RESULTS FROM HIS FAULT OR NEGLIGENCE. IT APPEARS EQUALLY CLEAR THAT A DETERMINATION OF LOSS MADE PURSUANT TO 31 U.S.C. 89-92 AND 10 U.S.C. 1304 IS EVIDENCE OF AN INDEBTEDNESS DUE THE GOVERNMENT SUFFICIENT TO PERMIT DEDUCTION FROM THE MEMBER'S FINAL PAY. WHILE IT IS STATED IN NAVY DEPARTMENT COURT-MARTIAL ORDERS 1 1941, PAGE 154, THAT THE ACT OF MARCH 29, 1894, IS LIMITED TO OFFICERS AND AGENTS WHO ARE REQUIRED TO RENDER PROPERTY RETURNS, AND IT IS REPORTED THAT NONE OF THE MEMBERS HERE INVOLVED WERE SERVING IN A CAPACITY WHICH REQUIRED THE RENDITION OF SUCH RETURNS, THE CITED PROVISIONS OF LAW HAVE NOT BEEN SO CONSTRUED HERE. STATEMENT OF CHARGES AGAINST AN ENLISTED MAN FOR LOSS OF A PAIR OF COMBAT SHOES ISSUED FOR HIS PERSONAL USE WAS REGARDED AS ESTABLISHING HIS INDEBTEDNESS TO THE GOVERNMENT FOR THE VALUE OF SUCH SHOES IN DECISION B- 101205, JULY 30, 1951, AND A CERTIFICATION OF INDEBTEDNESS AGAINST AN ENLISTED MAN FOR DAMAGE TO A GOVERNMENT-OWNED TRUCK WAS GIVEN EFFECT IN DECISION B-123731, AUGUST 3, 1955.

WHILE PARAGRAPH 0111, NAVAL SUPPLEMENT TO THE MANUAL FOR COURTS MARTIAL (1955 ED.) CITED IN ENCLOSURE (2) WITH YOUR LETTER, WHICH PROVIDES THAT CERTAIN LOSSES TO THE GOVERNMENT RESULTING FROM DESIGNATED OFFENSES BY MEMBERS OF THE SERVICE SHALL CONSTITUTE AN INDEBTEDNESS TO THE UNITED STATES WHICH WILL BE SET OFF AGAINST FINAL PAY AND ALLOWANCES DUE THE PERSON INVOLVED DOES NOT APPEAR TO BE APPLICABLE TO SITUATIONS SUCH AS HERE INVOLVED, IT MAY NOT BE CONCLUDED THAT THE PROCEDURE OUTLINED IN PARAGRAPH 0111 IS THE EXCLUSIVE METHOD OF ESTABLISHING AN INDEBTEDNESS TO THE GOVERNMENT FOR LOSS OF PROPERTY. IT IS NOTED THAT THE DEBT CHARGE WAS RAISED AGAINST CAPTAIN DAY ON A REPORT OF SURVEY FOR GROSS NEGLIGENCE IN THE LOSS OF ARMY PROPERTY AND IT IS BELIEVED THAT THE ACTION TAKEN WAS WITHIN THE AUTHORITY VESTED BY LAW IN APPROPRIATE ARMY AUTHORITY. THE INDEBTEDNESS THUS ESTABLISHED MAY BE COLLECTED BY SET-OFF AGAINST HIS FINAL PAY ACCOUNT.