B-140923, DECEMBER 3, 1959, 39 COMP. GEN. 415

B-140923: Dec 3, 1959

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1959: REFERENCE IS MADE TO LETTER OF OCTOBER 2. WHEREIN DECISION WAS REQUESTED ON TWO QUESTIONS READING AS FOLLOWS: 1. THE DEPUTY ASSISTANT SECRETARY OF DEFENSE SUBMITTED AN ADDITIONAL REQUEST FOR DECISION ON A QUESTION AS TO "WHETHER THE PROVISIONS OF * * * LAW QUOTED IN COMMITTEE ACTION NO. 252 ARE ALSO APPLICABLE IN THOSE INSTANCES WHERE THE MEMBER IS DISCHARGED OR TRANSFERRED TO RESERVE.'. IT IS ASSUMED THAT THIS QUESTION RELATES TO REMISSION OF AN INDEBTEDNESS SUBSEQUENT TO DISCHARGE OR TRANSFER TO A RESERVE COMPONENT. THERE IS NO PRECEDENT WHICH WOULD ALLOW THE REMISSION OR CANCELLATION OF AN ENLISTED MEMBER'S INDEBTEDNESS SUBSEQUENT TO THE DATE OF HIS RETIREMENT. A RETIRED MEMBER IS NOT DISCHARGED BUT IS STILL A MEMBER AND IT WOULD APPEAR THAT HE SHOULD BE ENABLED TO REQUEST A REMISSION OR CANCELLATION OF AN INDEBTEDNESS THAT ACCRUED WHILE HE WAS A MEMBER ON THE ACTIVE LIST.

B-140923, DECEMBER 3, 1959, 39 COMP. GEN. 415

MILITARY PERSONNEL - DEBTS - REMISSION - DISCHARGE AS DISTINGUISHED FROM RETIREMENT THE TERM "DISCHARGE" IN 10 U.S.C. 4837 (D) AND 9837 (D), WHICH AUTHORIZES THE REMISSION OR CANCELLATION OF ENLISTED MEMBER'S DEBTS REMAINING UNPAID AT TIME OF DISCHARGE, REFERS TO THE ACTUAL TERMINATION OF A STATUS ON THE ACTIVE LIST AND NOT TO ANY FORMAL DOCUMENT RECEIVED BY A MEMBER UPON RELEASE FROM ACTIVE DUTY SO AS TO BRING MEMBERS NO LONGER PERFORMING ACTIVE SERVICE WITHIN THE PURVIEW OF THE LAW; THEREFORE, DEBTS OF ENLISTED MEMBERS WHICH ACCRUED DURING ACTIVE DUTY OR SUBSEQUENT TO RETIREMENT MAY NOT BE REMITTED OR CANCELED UNDER 10 U.S.C. 4837 (D) AND 9837 (D) AFTER THE ENLISTED MEMBER HAS BEEN RETIRED OR TRANSFERRED TO THE RESERVES.

TO THE SECRETARY OF DEFENSE, DECEMBER 3, 1959:

REFERENCE IS MADE TO LETTER OF OCTOBER 2, 1959, FROM THE DEPUTY ASSISTANT SECRETARY OF DEFENSE, ENCLOSING COMMITTEE ACTION NO. 252 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE OF THE DEPARTMENT OF DEFENSE, WHEREIN DECISION WAS REQUESTED ON TWO QUESTIONS READING AS FOLLOWS:

1. MAY THE INDEBTEDNESS OF AN ENLISTED MEMBER OF THE ARMY OR AIR FORCE THAT ACCRUED WHILE ON ACTIVE DUTY BE REMITTED OR CANCELLED SUBSEQUENT TO THE MEMBER'S RETIREMENT?

2. WOULD THE ANSWER BE THE SAME CONCERNING AN INDEBTEDNESS WHICH ACCRUED SUBSEQUENT TO RETIREMENT?

BY LETTER OF OCTOBER 19, 1959, THE DEPUTY ASSISTANT SECRETARY OF DEFENSE SUBMITTED AN ADDITIONAL REQUEST FOR DECISION ON A QUESTION AS TO "WHETHER THE PROVISIONS OF * * * LAW QUOTED IN COMMITTEE ACTION NO. 252 ARE ALSO APPLICABLE IN THOSE INSTANCES WHERE THE MEMBER IS DISCHARGED OR TRANSFERRED TO RESERVE.' IT IS ASSUMED THAT THIS QUESTION RELATES TO REMISSION OF AN INDEBTEDNESS SUBSEQUENT TO DISCHARGE OR TRANSFER TO A RESERVE COMPONENT.

IN THE COMMITTEE ACTION THE MILITARY PAY AND ALLOWANCE COMMITTEE DISCUSSED THE PROBLEMS INVOLVED AS FOLLOWS:

TITLE 10 U.S.C. 4837 (D) AND 9837 (D), PROVIDES FOR THE REMISSION OR CANCELLATION OF AN INDEBTEDNESS WHICH REMAINS UNLIQUIDATED EITHER ON OR PRIOR TO HONORABLE DISCHARGE WHEN IT HAS BEEN DETERMINED BY THE SECRETARY CONCERNED TO BE IN THE BEST INTEREST OF THE GOVERNMENT. HOWEVER, THERE IS NO PRECEDENT WHICH WOULD ALLOW THE REMISSION OR CANCELLATION OF AN ENLISTED MEMBER'S INDEBTEDNESS SUBSEQUENT TO THE DATE OF HIS RETIREMENT. IN THE BROAD SENSE OF THE TERM, A RETIRED MEMBER IS NOT DISCHARGED BUT IS STILL A MEMBER AND IT WOULD APPEAR THAT HE SHOULD BE ENABLED TO REQUEST A REMISSION OR CANCELLATION OF AN INDEBTEDNESS THAT ACCRUED WHILE HE WAS A MEMBER ON THE ACTIVE LIST, WHICH DUE TO CIRCUMSTANCES WAS NOT DISCOVERED OR SETTLED PRIOR TO ACTUAL RETIREMENT.

CONVERSELY, PUBLIC LAW 497, 83D CONGRESS, APPROVED 15 JULY 1954, AUTHORIZES THE WITHHOLDING OF PAY TO SATISFY ANY INDEBTEDNESS RESULTING FROM ERRONEOUS PAYMENTS MADE TO A DEBTOR WHILE HE WAS A MEMBER EITHER ON THE ACTIVE OR RETIRED LIST OR A MEMBER OF A RESERVE COMPONENT. THEREFORE, DUE TO THE ABSENCE OF PROVISIONS WHICH WOULD AUTHORIZE THE REMISSION OR CANCELLATION OF AN INDEBTEDNESS PERTAINING TO A RETIRED MEMBER IN 10 U.S.C. 4837 (D) AND 9837 (D) OR ANY OTHER LAW, IT APPEARS THAT IT WAS NOT INTENDED FOR THIS RIGHT TO BE EXTENDED TO INCLUDE PERSONNEL ON THE RETIRED LIST, WHICH WOULD INDICATE THAT A RETIRED MEMBER SHOULD NOT BE PLACED IN THE SAME CATEGORY AS A MEMBER ON THE ACTIVE LIST SO AS TO ENTITLE HIM TO THE PRIVILEGE OF REQUESTING REMISSION OR CANCELLATION OF AN INDEBTEDNESS. IF THIS IS THE CASE, THEN A MEMBER RETIRED SHOULD BE CONSIDERED AS HAVING BEEN DISCHARGED AND ANY INDEBTEDNESS DUE TO ERRONEOUS PAYMENTS UNLIQUIDATED AT RETIREMENT, OR FOUND DUE THE UNITED STATES SUBSEQUENT THERETO, SHOULD BE COLLECTED UNDER THE PROVISIONS OF PUBLIC LAW 497, 83D CONGRESS.

THE REMISSION AND CANCELLATION OF DEBTS DUE THE UNITED STATES BY ARMY ENLISTED MEN UPON HONORABLE DISCHARGE WAS FIRST AUTHORIZED BY THE THIRD PROVISO OF THE ACT OF MAY 22, 1928, 45 STAT. 698, 10 U.S.C. 875A. THAT STATUTE WAS ENACTED TO PROVIDE EXPRESS AUTHORITY FOR (1) MAKING DEDUCTIONS FROM THE PAY OF ARMY ENLISTED MEN TO COLLECT THEIR DEBTS, GENERALLY, DUE THE UNITED STATES ARISING INCIDENT TO THEIR MILITARY SERVICE, (2) LIMITING THE AGGREGATE OF PAY DEDUCTIONS FOR ANY MONTH SO AS TO INSURE THAT THE ACTUAL PAY OF THE SOLDIER FOR THAT MONTH WOULD NOT BE REDUCED BELOW ONE- THIRD OF HIS AUTHORIZED RATE OF PAY THEREFOR, AND (3) AUTHORIZING THE REMISSION OR CANCELLATION OF A SOLDIER'S INDEBTEDNESS INCURRED DURING CURRENT ENLISTMENT AND REMAINING UNPAID AT THE TIME OF DISCHARGE FROM THE SERVICE. THE 1928 ACT WAS AMENDED BY THE ACT OF JUNE 26, 1934, 48 STAT. 1222, NON CODIFIED IN 10 U.S.C. 4837 ( ARMY), AND 10 U.S.C. 9837 ( AIR FORCE), SO AS TO PERMIT DEBT REMISSION OR CANCELLATION EITHER AT THE TIME OF DISCHARGE OR PRIOR THERETO.

SECTION 8437 (D) OF TITLE 10, U.S.C. (SEE ALSO SECTION 9837 (D) (, READS AS FOLLOWS:

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.

THE LEGISLATIVE HISTORY SURROUNDING THE ENACTMENT OF THE ACT OF MAY 22, 1928, AND THE ACT OF JUNE 26, 1934, SUPPORTS THE CONCLUSION THAT THE TWO ACTS WERE ENACTED TO RELIEVE ENLISTED MEN WHILE ON ACTIVE DUTY OF THE BURDEN OF REPAYING LARGE SUMS OF MONEY IN SATISFACTION OF DEBTS, THEREBY BOOSTING THE MORALE OF INDEBTED ENLISTED MEN, STOPPING DESERTIONS, AND ENCOURAGING REENLISTMENTS OF THOSE MEN RELIEVED. SEE PAGE 2 OF REPORT NO. 1550, HOUSE OF REPRESENTATIVES, AND OF SENATE REPORT NO. 385, 70TH CONGRESS, ST SESSION, TO ACCOMPANY S. 1829 (THE BILL WHICH ULTIMATELY BECAME THE ACT OF MAY 22, 1928) WHEREIN MR. HANFORD MACNIDER, ACTING SECRETARY OF WAR, IN A LETTER TO THE CHAIRMAN, COMMITTEE ON MILITARY AFFAIRS, STATED:

THE PRESENT LAW IS MANDATORY ON THE WAR DEPARTMENT TO COLLECT, THROUGH STOPPAGE OF PAY OR OTHERWISE, THE INDEBTEDNESS TO THE GOVERNMENT OF OFFICERS OR ENLISTED MEN FOR LOST OR DAMAGED MILITARY PROPERTY. THE PROPOSED LAW WILL LIMIT THE WAR DEPARTMENT IN THE AMOUNT OF AN ENLISTED MAN'S PAY THAT MAY BE DEDUCTED TO MAKE GOOD HIS INDEBTEDNESS TO THE GOVERNMENT.

THE PROPOSED LEGISLATION SHOULD BE ENACTED INTO LAW FOR THE FOLLOWING REASONS:

TO DEPRIVE AN ENLISTED MAN OF HIS ENTIRE PAY CAUSES UNDUE HARDSHIP TO HIM AND IS DETRIMENTAL TO THE BEST INTERESTS OF THE SERVICE. A SOLDIER MUST RECEIVE AT LEAST ENOUGH PAY TO PROVIDE ABSOLUTE NECESSITIES AS A PREREQUISITE TO RENDERING SATISFACTORY SERVICE. TO DEPRIVE HIM OF THIS FOR ANY LENGTH OF TIME WILL DISCOURAGE HIM AND TEND TO CAUSE HIM TO RESORT TO ACTS CONTRARY TO MILITARY DISCIPLINE IN ORDER TO RELIEVE HIS SITUATION. MANY MEN WOULD DESERT UNDER SUCH CIRCUMSTANCES.

SEE ALSO, PAGE 1 OF SENATE REPORT NO. 334 AND PAGE 2 OF REPORT NO. 1890, HOUSE OF REPRESENTATIVES, 73D CONGRESS, 2D SESSION, TO ACCOMPANY S. 2043 (WHICH ULTIMATELY BECAME THE ACT OF JUNE 26, 1934, AMENDING THE 1928 ACT SO AS TO PERMIT DEBT REMISSION OR CANCELLATION EITHER AT THE TIME OF DISCHARGE OR PRIOR THERETO) WHEREIN MR. HARRY H. WOODRING, ACTING SECRETARY OF WAR, IN A LETTER TO THE CHAIRMAN, SENATE COMMITTEE ON MILITARY AFFAIRS, DESCRIBED THE PURPOSE OF THE PROPOSED LEGISLATION AS FOLLOWS:

FROM TIME TO TIME PECUNIARY LIABILITY IS ASSESSED AGAINST SOLDIERS UNDER THE EIGHTY-THIRD ARTICLE OF WAR AND SECTION 1303, REVISED STATUTES. * * * THE AMOUNTS RANGE UP TO $10,000 AND IN A GREAT MANY CASES ARE, THEREFORE, ENTIRELY BEYOND THE PAYING CAPACITY OF THE SOLDIER. BY THE ACT OF MAY 22, 1928 (45 STAT. 698), THE SECRETARY OF WAR IS PROHIBITED FROM STOPPING THE PAY OF AN ENLISTED MAN IN EXCESS OF TWO-THIRDS OF HIS PAY AND IS FURTHER AUTHORIZED TO REMIT AND CANCEL ANY INDEBTEDNESS REMAINING ON THE SOLDIER'S HONORABLE DISCHARGE. IT WILL BE NOTED THAT NO POWER TO REMIT OR CANCEL SUCH INDEBTEDNESS IS AUTHORIZED TO BE EXERCISED EXCEPT UPON HONORABLE DISCHARGE. IN THE MEANTIME THE EXISTING INDEBTEDNESS IS FOR COLLECTION IN THE USUAL MODE.

IT IS NOT BELIEVED THE ABOVE STATUTES, WHEN ENACTED, ENVISAGED A SITUATION SUCH AS EXISTS AT PRESENT WHERE SOLDIERS, WHOSE PAY IS $21 PER MONTH ARE OFTEN PLACED IN THE POSITION, THROUGH AN ACT OF SIMPLE NEGLIGENCE OR CARELESSNESS, OF INCURRING AN INDEBTEDNESS AMOUNTING TO THOUSANDS OF DOLLARS BECAUSE OF DAMAGE DONE TO AN EXPENSIVE PIECE OF EQUIPMENT SUCH AS AN AIRPLANE OR MOTOR VEHICLE. * * *

THE OPERATION OF THE ACT OF MAY 22, 1928, SUPRA, ALSO RESULTS IN A CERTAIN INEQUITY IN THAT OF TWO SOLDIERS BOTH LIABLE FOR AN EQUALLY LARGE LOSS, THE SOLDIER WITH BUT A FEW MONTHS TO SERVE PAYS BUT A SMALL PART OF HIS INDEBTEDNESS WHILE THE OTHER, AS A RESULT OF A RECENT ENLISTMENT WILL BE CALLED UPON TO PAY A MUCH LARGER SUM, PROVIDED HE DOES NOT DESERT AS A RESULT OF THE STOPPAGE.

THE SITUATION APPEARS TO REQUIRE REMEDIAL ACTION. IN THE GENERAL CASE IT IS BELIEVED THAT A SOLDIER SHOULD NOT SUFFER A STOPPAGE OF HIS PAY FOR PROPERTY LOSS OR DAMAGE IN EXCESS OF TWO-THIRDS OF HIS PAY FOR A PERIOD OF 6 MONTHS. ANY STOPPAGE BEYOND SUCH A PERIOD APPEARS OBVIOUSLY IMPRACTICABLE OF ENFORCEMENT AS IT WILL RESULT IN SUCH A LOSS OF MORALE AS TO RENDER THE SOLDIER VALUELESS OR HE WILL DESERT TO ESCAPE AN UNBEARABLE SITUATION FROM WHICH THERE IS NO OTHER RELIEF.

IT IS APPARENT, IN THE LIGHT OF THE ABOVE-QUOTED LETTERS WRITTEN BY OFFICIALS OF THE WAR DEPARTMENT, WHICH SPONSORED THE LEGISLATION IN QUESTION, THAT THE PRIMARY PURPOSE OF THE ACT OF MAY 22, 1928 (INCLUDING THE REMISSION AND CANCELLATION AUTHORITY) AND THE ACT OF JUNE 26, 1934, WAS TO ALLEVIATE A SERIOUS MORALE PROBLEM OF INDEBTED ENLISTED MEN ON ACTIVE DUTY. SECTIONS 4837 (D) AND 9837 (D) OF TITLE 10, U.S. CODE, SPEAKING IN TERMS OF REMITTING AND CANCELING DEBTS "REMAINING UNPAID BEFORE, OR AT THE TIME OF, THAT MEMBER'S HONORABLE DISCHARGE.' ( ITALICS SUPPLIED.) WHILE IT IS TRUE THAT IN THE BROAD SENSE A RETIRED MEMBER IS NOT DISCHARGED BUT IS STILL A MEMBER, IT IS ALSO TRUE THAT HE IS NO LONGER PERFORMING ACTIVE SERVICE AND, THEREFORE, SHOULD NOT BE CONSIDERED TO BE IN THE SAME CATEGORY OF INDEBTED MEMBERS FOR WHOSE BENEFIT THE STATUTES IN QUESTION WERE ENACTED. CONSIDERING THE PURPOSE OF 4 PROVISIONS CONTAINED IN 10 U.S.C. 4837 (D) AND 9837 (D), IT DOES NOT APPEAR THAT CONGRESS INTENDED TO PLACE A HIGHLY RESTRICTED AND TECHNICAL MEANING ON THE TERM "DISCHARGE.'

IT IS CONCLUDED, THEREFORE, THAT FOR THE PURPOSE OF SECTIONS 4837 (D) AND 9837 (D) THE TERM ,DISCHARGE" CANNOT BE TAKEN TO HAVE REFERENCE TO A FORMAL DOCUMENT RECEIVED BY A MEMBER UPON RELEASE FROM ACTIVE SERVICE, BUT MUST BE HELD TO HAVE REFERENCE TO THE ACTUAL TERMINATION OF A STATUS ON THE ACTIVE LIST.

IN VIEW OF THE FOREGOING CONSIDERATIONS, THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE. THOSE SAME CONSIDERATIONS SUPPORT THE CONCLUSION THAT AN INDEBTEDNESS WHICH HAS ACCRUED SUBSEQUENT TO RETIREMENT CANNOT BE REMITTED OR CANCELED UNDER THE AUTHORITY OF SECTION 4837 (D) OR 9837 (D) AND, ALSO, THAT MEMBERS WHO ARE DISCHARGED OR TRANSFERRED TO THE RESERVES ARE, FOR THE PURPOSES OF THOSE SECTIONS, IN NO BETTER POSITION THAN A RETIRED MEMBER.