B-134030, NOVEMBER 21, 1957, 37 COMP. GEN. 353

B-134030: Nov 21, 1957

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IS TO NOTE THE DEBT IN THE MEMBER'S SERVICE RECORD SO THAT SETOFF MAY BE MADE FROM THE FINAL PAY DUE ON SEPARATION FROM THE SERVICE. WE HAVE RAISED A DEBT CHARGE OF $223.26 AGAINST SERGEANT GUERRERO BASED ON AN ADMINISTRATIVELY DETERMINED INDEBTEDNESS SHOWN ON AN ARMY REPORT OF SURVEY FOR LOSS OR DAMAGE TO GOVERNMENT PROPERTY AND CERTIFIED TO US AS PROVIDED IN THE ACT OF MARCH 29. IT WAS SUGGESTED IN THIS LETTER THAT THE DEBT BE NOTED IN THE ENLISTED MAN'S SERVICE RECORD AND APPROPRIATE ACTION BE TAKEN TO COLLECT FROM THE FINAL PAY DUE HIM IN CASE COLLECTION WAS NOT MADE PRIOR TO HIS SEPARATION FROM THE SERVICE. IS EVIDENCE OF A GENERAL INDEBTEDNESS DUE THE GOVERNMENT SUFFICIENT TO PER DEDUCTION FROM THE MEMBER'S FINAL PAY AND THAT SUCH INDEBTEDNESSES MAY BE COLLECTED ADMINISTRATIVELY BY SETOFF AGAINST THE FINAL PAY.

B-134030, NOVEMBER 21, 1957, 37 COMP. GEN. 353

MILITARY PERSONNEL - PAY - WITHHOLDING - DEBT LIQUIDATION - FINAL V. CURRENT PAY IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY FOR WITHHOLDING CURRENT PAY OF MEMBERS OF THE UNIFORMED SERVICES TO LIQUIDATE GENERAL DEBTS DUE THE UNITED STATES, THE ONLY ACTION WHICH MAY BE TAKEN WITH RESPECT TO AN INDEBTEDNESS RESULTING FROM LOSS OR DAMAGE TO GOVERNMENT PROPERTY, UNDER 31 U.S.C. 89, 90, BY A MARINE CORPS ENLISTED MAN, WHO DISPUTES THE DEBT AND DECLINES TO MAKE ARRANGEMENTS FOR DEBT LIQUIDATION, IS TO NOTE THE DEBT IN THE MEMBER'S SERVICE RECORD SO THAT SETOFF MAY BE MADE FROM THE FINAL PAY DUE ON SEPARATION FROM THE SERVICE.

TO CAPTAIN J. W. COTTON, DEPARTMENT OF THE NAVY, NOVEMBER 21, 1957:

BY LETTER DATED OCTOBER 4, 1957, JAG:1342.1:SH 108287, THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED YOUR LETTER OF JUNE 17, 1957, AND ENCLOSURES, REQUESTING DECISION AS TO WHETHER LUIS M. GUERRERO, SERGEANT, 1411368, U.S. MARINE CORPS, MAY BE PAID SUCH CURRENT PAY AND ALLOWANCES AS MAY BE DUE HIM WITHOUT REGARD TO HIS INDEBTEDNESS TO THE UNITED STATES.

WE HAVE RAISED A DEBT CHARGE OF $223.26 AGAINST SERGEANT GUERRERO BASED ON AN ADMINISTRATIVELY DETERMINED INDEBTEDNESS SHOWN ON AN ARMY REPORT OF SURVEY FOR LOSS OR DAMAGE TO GOVERNMENT PROPERTY AND CERTIFIED TO US AS PROVIDED IN THE ACT OF MARCH 29, 1894, AS AMENDED, 31 U.S.C. 89, 90. LETTER DATED OCTOBER 3, 1956, OUR CLAIMS DIVISION ADVISED THE SECRETARY OF THE NAVY OF THIS INDEBTEDNESS AND REQUESTED HIS ASSISTANCE IN COLLECTING THE INDEBTEDNESS. IT WAS SUGGESTED IN THIS LETTER THAT THE DEBT BE NOTED IN THE ENLISTED MAN'S SERVICE RECORD AND APPROPRIATE ACTION BE TAKEN TO COLLECT FROM THE FINAL PAY DUE HIM IN CASE COLLECTION WAS NOT MADE PRIOR TO HIS SEPARATION FROM THE SERVICE.

WE HELD IN DECISION OF MARCH 5, 1957, B-130602, THAT A DETERMINATION OF LOSS MADE PURSUANT TO THE ACT OF MARCH 29, 1894, AS AMENDED, IS EVIDENCE OF A GENERAL INDEBTEDNESS DUE THE GOVERNMENT SUFFICIENT TO PER DEDUCTION FROM THE MEMBER'S FINAL PAY AND THAT SUCH INDEBTEDNESSES MAY BE COLLECTED ADMINISTRATIVELY BY SETOFF AGAINST THE FINAL PAY. AS TO WHAT CONSTITUTES FINAL PAY, SEE 29 COMP. GEN. 93 AND 33 COMP. GEN. 443. IT CONSISTENTLY HAS BEEN HELD, HOWEVER, THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, NO JUSTIFICATION EXISTS TO SET OFF GENERAL DEBTS DUE THE UNITED STATES BY ITS EMPLOYEES WITHOUT THEIR CONSENT AGAINST CURRENT SALARY PAYMENTS DUE THE EMPLOYEES FOR THEIR SERVICES, EVEN THOUGH THE DEBTS BE LIQUIDATED AND UNDISPUTED. 29 COMP. GEN. 99.

THE ENCLOSURES TO YOUR LETTER SHOW THAT SERGEANT GUERRERO'S INDEBTEDNESS HAS NOT BEEN ESTABLISHED BY A COURT-MARTIAL, HE DISPUTES THE INDEBTEDNESS, AND YOU SAY THAT HE HAS DECLINED TO MAKE ARRANGEMENTS TO LIQUIDATE THE DEBT. IN SUCH CIRCUMSTANCES AND AS THERE APPEARS TO BE NO SPECIFIC STATUTORY AUTHORITY WHICH PERMITS THE WITHHOLDING OF CURRENT PAY TO LIQUIDATE A GENERAL INDEBTEDNESS OF A MEMBER OF THE MARINE CORPS, YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE.