B-131943, JULY 23, 1957, 37 COMP. GEN. 45

B-131943: Jul 23, 1957

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WHEREBY THE ARMY AIR FORCES WERE TRANSFERRED TO THE NEWLY ESTABLISHED UNITED STATES AIR FORCE. MAY REMIT OR CANCEL DEBTS OF FORMER ARMY AIR FORCE ENLISTED MEMBERS WHO WERE TRANSFERRED TO THE AIR FORCE AND WHO INCURRED DEBTS IN THE ARMY PRIOR TO TRANSFER. 1957: FURTHER REFERENCE IS MADE TO LETTER OF MAY 21. THE QUESTIONS PRESENTED ARE SET FORTH IN COMMITTEE ACTION NO. 183 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE. IF THE ANSWER TO THE ABOVE GENERAL QUESTION IS IN THE NEGATIVE. 21 OCTOBER 1948) BE VIEWED AS TRANSFERRING THE AUTHORITY OF THE SECRETARY OF THE ARMY TO THE SECRETARY OF THE AIR FORCE TO REMIT SUCH INDEBTEDNESS OF AN ENLISTED MEMBER OF THE ARMY AIR FORCES WHO WAS TRANSFERRED TO THE AIR FORCE PURSUANT TO SUCH AUTHORITY AND WHO HAD INCURRED SUCH INDEBTEDNESS IN THE ARMY PRIOR TO SUCH TRANSFER?

B-131943, JULY 23, 1957, 37 COMP. GEN. 45

MILITARY PERSONNEL - DEBTS - REMISSION OR LIQUIDATION - AIR FORCE ENLISTED MEMBERS - DEBTS IN OTHER ENLISTED SERVICES ALTHOUGH THE AUTHORITY FOR THE REMISSION OR CANCELLATION OF ADMINISTRATIVELY ASCERTAINED DEBTS OF ENLISTED MEMBERS OF THE AIR FORCE VESTED IN THE SECRETARY OF THE AIR FORCE BY 10 U.S.C. 9837 DOES NOT PERMIT THE REMISSION OR CANCELLATION OF DEBTS OF PRESENT ENLISTED MEMBERS OF THE AIR FORCE, WHERE THE DEBTS AROSE DURING PREVIOUS ENLISTMENTS IN THE ARMY, THE SECRETARY OF THE AIR FORCE, BY VIRTUE OF THE TRANSFER OF AUTHORITY FROM THE SECRETARY OF THE ARMY PURSUANT TO 5 U.S.C. 171-1, WHEREBY THE ARMY AIR FORCES WERE TRANSFERRED TO THE NEWLY ESTABLISHED UNITED STATES AIR FORCE, MAY REMIT OR CANCEL DEBTS OF FORMER ARMY AIR FORCE ENLISTED MEMBERS WHO WERE TRANSFERRED TO THE AIR FORCE AND WHO INCURRED DEBTS IN THE ARMY PRIOR TO TRANSFER.

TO THE SECRETARY OF DEFENSE, JULY 23, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF MAY 21, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING A DECISION ON CERTAIN QUESTIONS CONCERNING THE REMISSION OF AN ADMINISTRATIVELY ASCERTAINED INDEBTEDNESS BY THE SECRETARY OF THE AIR FORCE UNDER THE PROVISIONS OF 10 U.S.C. 9837.

THE QUESTIONS PRESENTED ARE SET FORTH IN COMMITTEE ACTION NO. 183 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

1. UNDER THE PROVISIONS OF 10 U.S.C. 9837 MAY THE SECRETARY OF THE AIR FORCE REMIT AND ,ADMINISTRATIVELY ASCERTAINED" INDEBTEDNESS OF A PRESENT ENLISTED MEMBER OF THE AIR FORCE WHOSE INDEBTEDNESS AROSE DURING A PREVIOUS ENLISTMENT IN THE ARMY?

2. IF THE ANSWER TO THE ABOVE GENERAL QUESTION IS IN THE NEGATIVE, MAY THE PROVISIONS OF THE NATIONAL SECURITY ACT OF 1947, APPROVED 26 JULY 1947, AND JOINT TRANSFER ORDER 25, PARA ( FFF) ( JAAF BUL 41, 21 OCTOBER 1948) BE VIEWED AS TRANSFERRING THE AUTHORITY OF THE SECRETARY OF THE ARMY TO THE SECRETARY OF THE AIR FORCE TO REMIT SUCH INDEBTEDNESS OF AN ENLISTED MEMBER OF THE ARMY AIR FORCES WHO WAS TRANSFERRED TO THE AIR FORCE PURSUANT TO SUCH AUTHORITY AND WHO HAD INCURRED SUCH INDEBTEDNESS IN THE ARMY PRIOR TO SUCH TRANSFER?

THE AUTHORITY GRANTED TO THE SECRETARY OF THE AIR FORCE TO REMIT OR CANCEL AN ADMINISTRATIVELY DETERMINED INDEBTEDNESS OF AN ENLISTED MEMBER IS NOW INCORPORATED IN 10 U.S.C. 9837, 70A STAT. 594, APPROVED AUGUST 10, 1956, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(B) UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF THE AIR FORCE, ANY AMOUNT THAT AN ENLISTED MEMBER IS ADMINISTRATIVELY DETERMINED TO OWE THE UNITED STATES OR ANY OF ITS INSTRUMENTALITIES MAY BE DEDUCTED FROM HIS PAY IN MONTHLY INSTALLMENTS.

(D) IF HE CONSIDERS IT IN THE BEST INTEREST OF THE UNITED STATES, THE SECRETARY MAY HAVE REMITTED OR CANCELED ANY PART OF AN ENLISTED MEMBER'S INDEBTEDNESS TO THE UNITED STATES OR ANY OF ITS INSTRUMENTALITIES REMAINING UNPAID BEFORE, OR AT THE TIME OF, THAT MEMBER'S HONORABLE DISCHARGE.

PRIOR TO THE ACT OF AUGUST 10, 1956, SIMILAR STATUTORY AUTHORITY WAS GRANTED TO THE SECRETARY OF THE ARMY PURSUANT TO THE ACT OF MAY 22, 1928, 45 STAT. 698, AS AMENDED BY THE ACT OF JUNE 26, 1934, 48 STAT. 1222, 10 U.S.C. 875A. SUCH AUTHORITY WAS EXTENDED AND MADE APPLICABLE TO THE SECRETARY OF THE AIR FORCE UNDER THE PROVISIONS OF SECTION 305 OF THE NATIONAL SECURITY ACT OF 1947, AS AMENDED, 61 STAT. 508, 5 U.S.C. 171-1. THE AUTHORITY GRANTED TO THE SECRETARY OF THE ARMY HAS NOW BEEN INCORPORATED IN 10 U.S.C. 4837.

WHILE THE CURRENT STATUTE (10 U.S.C. 9837), AUTHORIZING THE SECRETARY OF THE AIR FORCE TO HAVE REMITTED OR CANCELED ANY PART OF AN ENLISTED MAN'S INDEBTEDNESS TO THE UNITED STATES OR ANY OF ITS INSTRUMENTALITIES IS WRITTEN IN BROAD LANGUAGE, IT SEEMS TO PRESUPPOSE THAT REMISSION AND CANCELLATION WOULD BE ACCOMPLISHED ONLY IN THOSE CASES WHERE THE SECRETARY OF THE AIR FORCE HAD JURISDICTION OVER THE DEBT. THE STATUTE CONTAINS NO SUGGESTION OF A PROCEDURE UNDER WHICH THE SECRETARY OF THE AIR FORCE COULD CANCEL OR REMIT A DEBT NOT WITHIN HIS JURISDICTION NOR DOES IT APPEAR THAT HE COULD REQUIRE SOME OTHER GOVERNMENT OFFICIAL IN WHOSE AGENCY THE DEBT AROSE TO CANCEL OR REMIT THE DEBT. FOR EXAMPLE, WE DOUBT THAT THE LAW AUTHORIZES THE SECRETARY OF THE AIR FORCE TO HAVE CANCELED OR REMITTED A DEBT ARISING IN THE BUREAU OF INTERNAL REVENUE AND REPRESENTING AN AMOUNT DUE THE UNITED STATES BECAUSE AN AIRMAN FAILED TO PAY THE PROPER AMOUNT OF INCOME TAX. HENCE, IT IS OUR VIEW (AND APPARENTLY THE VIEW EXPRESSED BY THE MILITARY PAY AND ALLOWANCE COMMITTEE AS SET FORTH IN THE DISCUSSION IN COMMITTEE ACTION NO. 183) THAT UNDER THE PROVISIONS OF 10 U.S.C. 9837, THE SECRETARY OF THE AIR FORCE MAY NOT REMIT OR CANCEL AN INDEBTEDNESS OF A PRESENT ENLISTED MEMBER OF THE AIR FORCE IF THAT INDEBTEDNESS AROSE DURING A PREVIOUS ENLISTMENT IN THE ARMY. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE.

UNDER THE PROVISIONS OF SECTION 208 (C) AND (D) OF THE NATIONAL SECURITY ACT OF 1947, AS AMENDED, 5 U.S.C. 626C (C) AND (D), INSOFAR AS HERE APPLICABLE, ALL ENLISTED MEN ENLISTED IN THE AIR CORPS, UNITED STATES ARMY, OR THE ARMY AIR FORCE WERE TRANSFERRED IN BRANCH TO THE UNITED STATES AIR FORCE, AND ALL RECORDS, ETC., WERE PLACED UNDER THE JURISDICTION OF THE CHIEF OF STAFF, UNITED STATES AIR FORCE. SECTION 305 OF THE ACT, 5 U.S.C. 171-1, STATES THAT ALL LAWS, ORDERS, REGULATIONS, AND OTHER ACTIONS APPLICABLE WITH RESPECT TO ANY FUNCTIONS, ACTIVITIES, PERSONNEL, PROPERTY, RECORDS, OR OTHER THINGS TRANSFERRED UNDER SECTIONS 626-626D OF THIS TITLE OR WITH RESPECT TO ANY OFFICER, DEPARTMENT, OR AGENCY, FROM WHICH SUCH TRANSFER IS MADE, SHALL, EXCEPT TO THE EXTENT RESCINDED, MODIFIED, SUPERSEDED, TERMINATED, OR MADE INAPPLICABLE BY OR UNDER AUTHORITY OF LAW, HAVE THE SAME EFFECT AS IF SUCH TRANSFER HAD NOT BEEN MADE; BUT, AFTER ANY SUCH TRANSFER ANY SUCH LAW, ETC., SHALL BE DEEMED TO HAVE VESTED SUCH FUNCTION IN OR RELATE TO THE OFFICER, DEPARTMENT, OR AGENCY, TO WHICH THE TRANSFER WAS MADE. THUS, THE AUTHORITY WHICH HAD BEEN VESTED IN THE SECRETARY OF THE ARMY WITH RESPECT TO THE APPLICABLE LAWS, ETC., UPON TRANSFER, VESTED IN THE SECRETARY OF THE AIR FORCE UNDER THE PROVISIONS OF SECTION 305. IN VIEW OF SUCH EXPRESS STATUTORY AUTHORITY, IT REASONABLY MAY BE CONCLUDED THAT THE SECRETARY OF THE AIR FORCE MAY REMIT AN ADMINISTRATIVELY ASCERTAINED INDEBTEDNESS OF AN ENLISTED MEMBER OF THE ARMY AIR FORCE WHO WAS TRANSFERRED TO THE AIR FORCE PURSUANT TO SUCH AUTHORITY AND WHO HAD INCURRED SUCH INDEBTEDNESS IN THE ARMY PRIOR TO SUCH TRANSFER. QUESTION 2 IS ANSWERED ACCORDINGLY.