B-139055, MAY 26, 1959, 38 COMP. GEN. 788

B-139055, MAY 26, 1959, 38 COMP. GEN. 788

MILITARY PERSONNEL - DEBT LIQUIDATION - INVOLUNTARY PAY WITHHOLDING - FINES - DEBT REMISSION A COURT-MARTIAL FINE, LIKE ANY GENERAL INDEBTEDNESS TO THE UNITED STATES, MAY NOT BE COLLECTED BY INVOLUNTARILY WITHHOLDING THE CURRENT PAY DUE AN ARMY OFFICER IN THE ABSENCE OF STATUTORY AUTHORITY FOR WITHHOLDING OF CURRENT PAY AND COMPENSATION--- AS DISTINGUISHED FROM FINAL PAY--- FROM MILITARY AND CIVILIAN PERSONNEL WITHOUT THEIR CONSENT. THE AUTHORITY OF THE SECRETARY OF THE ARMY TO REMIT OR CANCEL DEBTS OF ENLISTED MEMBERS, CONTAINED IN 10 U.S.C. 4837, IS NOT SUBJECT TO ANY RESTRICTIONS CONCERNING THE ORIGIN OF THE DEBT BUT MERELY REQUIRES THAT THE DEBTOR BE AN ENLISTED MAN AND THAT THE DEPARTMENT OF THE ARMY HAVE JURISDICTION OVER THE DEBT; THEREFORE, A DEBT OF AN ENLISTED MEMBER OF THE ARMY, WHICH AROSE WHILE HE WAS AN ARMY OFFICER, MAY BE REMITTED OR CANCELED.

TO THE SECRETARY OF DEFENSE, MAY 26, 1959:

BY LETTER DATED MARCH 14, 1959, THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTS OUR DECISION ON TWO QUESTIONS CONTAINED IN AN ENCLOSED COPY OF COMMITTEE ACTION NO. 239 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE. THE QUESTIONS ARE AS FOLLOWS:

1. CAN INVOLUNTARY COLLECTION OF A FINE BE EFFECTED BY THE STOPPAGE OR INVOLUNTARY WITHHOLDING OF CURRENT PAY DUE AN OFFICER?

2. CAN AN INDEBTEDNESS OF AN ENLISTED MAN, INCURRED WHILE HE WAS AN OFFICER, BE REMITTED BY THE SECRETARY OF THE ARMY?

A FINE IS DEFINED IN PARAGRAPH 126H (3) OF THE MANUAL FOR COURTS MARTIAL, UNITED STATES, 1951, AS BEING IN THE NATURE OF A JUDGMENT WHICH MAKES THE ACCUSED "PECUNIARILY LIABLE IN GENERAL TO THE UNITED STATES" FOR THE AMOUNT OF MONEY SPECIFIED IN THE SENTENCE.

THE QUESTION WHETHER THE CURRENT COMPENSATION OR PAY (AS DISTINGUISHED FROM THE FINAL COMPENSATION OR PAY) DUE A CIVILIAN EMPLOYEE OF THE GOVERNMENT OR A MEMBER OF THE ARMED FORCES MAY, IN THE ABSENCE OF STATUTORY AUTHORITY, BE WITHHELD WITHOUT HIS CONSENT TO LIQUIDATE A GENERAL INDEBTEDNESS DUE THE UNITED STATES IS NOT A NEW ONE. IN THIS CONNECTION, AS POINTED OUT IN THE COMMITTEE ACTION, IT HAS BEEN CONSISTENTLY HELD THAT, UNTIL HIS ACTIVE GOVERNMENT SERVICE HAS TERMINATED, COMPENSATION OR PAY MAY NOT BE WITHHELD WITHOUT HIS CONSENT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY FOR SUCH ACTION. 29 COMP. GEN. 99; 33 ID. 443.

NEITHER THE ACT OF MAY 26, 1936, AS AMENDED, 5 U.S.C. 46B, THE ACT OF JULY 15, 1954, 68 STAT. 482, NOR ANY OTHER STATUTE AUTHORIZES THE INVOLUNTARY STOPPAGE OR WITHHOLDING OF THE CURRENT PAY DUE AN ARMY OFFICER TO SATISFY HIS GENERAL INDEBTEDNESS TO THE UNITED STATES, OR, IN PARTICULAR, A COURT-MARTIAL FINE. QUESTION 1 IS ANSWERED IN THE NEGATIVE. A SIMILAR CONCLUSION WAS REACHED BY THE JUDGE ADVOCATE GENERAL OF THE ARMY; SEE 3 DIG. OPS; PAY AND ALLOWANCES, SECTION 101.1

THE AUTHORITY GRANTED THE SECRETARY OF THE ARMY TO REMIT OR CANCEL AN ADMINISTRATIVELY DETERMINED INDEBTEDNESS OF AN ENLISTED MEMBER OF THE ARMY IS INCORPORATED IN 10 U.S.C. 4837, 70A STAT. 273, 274, APPROVED AUGUST 10, 1956, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(B)UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF THE ARMY, 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. HOWEVER, AFTER THE DEDUCTION OF PAY FORFEITED BY THE SENTENCE OF A COURT-MARTIAL, IF ANY, OR OTHERWISE AUTHORIZED BY LAW TO BE WITHHELD, THE DEDUCTIONS AUTHORIZED BY THIS SECTION MAY NOT REDUCE THE PAY ACTUALLY RECEIVED FOR ANY MONTH TO LESS THAN ONE-THIRD OF HIS BASIC PAY FOR THAT MONTH.

(D) IF HE CONSIDERS IT IN THE BEST INTEREST OF THE UNITED STATES, THE SECRETARY MAY HAVE REMITTED OR CANCELLED 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. ( ITALICS SUPPLIED.)

THE AUTHORITY IN SUBSECTION 4837 (D), PERMITTING THE SECRETARY OF THE ARMY TO 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, THE MEMBER'S HONORABLE DISCHARGE, IS STATED IN BROAD LANGUAGE AND IMPOSES NO RESTRICTION AS TO THE ORIGIN OF THE INDEBTEDNESS. ALL THAT THE STATUTE APPARENTLY REQUIRES BEFORE REMISSION ACTION MAY BE TAKEN IS AN INDEBTEDNESS TO THE UNITED STATES AND A CURRENT STATUS FOR THE DEBTOR AS AN ENLISTED MAN, AND THAT THE DEPARTMENT OF THE ARMY HAS JURISDICTION OVER THE DEBT. HOWEVER, IT IS OUR VIEW THAT UNDER THE PROVISIONS OF 10 U.S.C. 4837, THE SECRETARY OF THE ARMY MAY NOT REMIT OR CANCEL AN INDEBTEDNESS OF A PRESENT ENLISTED MEMBER OF THE ARMY IF THE INDEBTEDNESS INVOLVED AROSE DURING A PERIOD OF SERVICE IN A DIFFERENT BRANCH OF THE ARMED FORCES THAN THE DEPARTMENT OF THE ARMY. CF. 37 COMP. GEN. 45. ACCORDINGLY, QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE, SUBJECT TO THE CONDITION THAT THE DEPARTMENT OF THE ARMY HAS JURISDICTION OVER THE DEBT.