B-141005, NOV. 2, 1959

B-141005: Nov 2, 1959

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WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $331.48 WHICH WAS WITHHELD FROM YOUR PAY AT THE TIME OF YOUR RELEASE FROM ACTIVE DUTY WITH THE UNITED STATES AIR FORCE ON OCTOBER 21. WHICH WAS ASSIGNED AS YOUR QUARTERS WHILE YOU WERE STATIONED AT THE AIR BASE. THAT IN ANY SUCH CASE WHERE A PERSON OR CONCERN IS HELD PECUNIARILY LIABLE. THE RECORD SHOWS THAT YOU WERE HELD TO BE RESPONSIBLE FOR THE FIRE AS A RESULT OF YOUR NEGLIGENCE. PECUNIARILY LIABLE FOR THE DAMAGE TO GOVERNMENT REAL PROPERTY IN THE AMOUNT OF $331.48 BY A BOARD OF OFFICERS WHICH WAS CONVENED BY PROPER AUTHORITY. THE ACTION OF THE BOARD WAS APPROVED BY AUTHORITY OF THE SECRETARY OF THE AIR FORCE ON APRIL 9. SUCH FINDINGS OF NEGLIGENCE AND LIABILITY FOR THE RESULTING DAMAGE ARE FINAL AND.

B-141005, NOV. 2, 1959

TO MR. RICHARD M. RITTER:

YOUR LETTER OF SEPTEMBER 28, 1959, IN EFFECT, REQUESTS RECONSIDERATION OF OUR SETTLEMENT DATED SEPTEMBER 22, 1959, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $331.48 WHICH WAS WITHHELD FROM YOUR PAY AT THE TIME OF YOUR RELEASE FROM ACTIVE DUTY WITH THE UNITED STATES AIR FORCE ON OCTOBER 21, 1958. THE AMOUNT REPRESENTS RECOVERY BY THE AIR FORCE FOR DAMAGES TO GOVERNMENT REAL PROPERTY AS A RESULT OF A FIRE WHICH OCCURRED ON JANUARY 9, 1956, IN ROOM 35, BUILDING 451, RANDOLPH AIR FORCE BASE, RANDOLPH FIELD, TEXAS, WHICH WAS ASSIGNED AS YOUR QUARTERS WHILE YOU WERE STATIONED AT THE AIR BASE.

THE ACT OF OCTOBER 11, 1951, 65 STAT. 387, REPEALED BY SECTION 53B OF THE ACT OF AUGUST 10, 1956, 70A STAT. 641, 682 (NOW CODIFIED IN 10 U.S.C. 9835), PROVIDED:

"THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARY OF THE AIR FORCE, DESIGNATED OFFICERS MAY TAKE ACTION UPON REPORTS OF SURVEY AND ALL OTHER VOUCHERS PERTAINING TO THE LOSS, DAMAGE, SPOILAGE, UNSERVICEABILITY, UNSUITABILITY, OR DESTRUCTION OF PROPERTY OF THE UNITED STATES UNDER THE CONTROL OF THE DEPARTMENT OF THE AIR FORCE, AND THE ACTION TAKEN BY ANY SUCH OFFICER ON THOSE SURVEYS OR VOUCHERS SHALL BE FINAL: PROVIDED, THAT IN ANY SUCH CASE WHERE A PERSON OR CONCERN IS HELD PECUNIARILY LIABLE, THE FINDINGS SHALL NOT BE FINAL UNTIL APPROVED BY THE SECRETARY OF THE AIR FORCE OR BY SUCH OFFICERS AS THE SECRETARY MAY DESIGNATE.'

THE RECORD SHOWS THAT YOU WERE HELD TO BE RESPONSIBLE FOR THE FIRE AS A RESULT OF YOUR NEGLIGENCE, AND PECUNIARILY LIABLE FOR THE DAMAGE TO GOVERNMENT REAL PROPERTY IN THE AMOUNT OF $331.48 BY A BOARD OF OFFICERS WHICH WAS CONVENED BY PROPER AUTHORITY. THE ACTION OF THE BOARD WAS APPROVED BY AUTHORITY OF THE SECRETARY OF THE AIR FORCE ON APRIL 9, 1956. IN ACCORDANCE WITH THE ABOVE-QUOTED STATUTE, SUCH FINDINGS OF NEGLIGENCE AND LIABILITY FOR THE RESULTING DAMAGE ARE FINAL AND, THEREFORE, NOT SUBJECT TO REVIEW BY OUR OFFICE.

THE RECORD DISCLOSES THAT YOU DID NOT ELECT TO MAKE VOLUNTARY RESTITUTION OF YOUR INDEBTEDNESS OF $331.48, AND THERE WAS NO PROPER BASIS TO SET OFF SUCH AN INDEBTEDNESS AGAINST YOUR CURRENT PAY WITHOUT YOUR CONSENT. HOWEVER, UPON YOUR RELEASE FROM ACTIVE DUTY ON OCTOBER 21, 1958, THE INDEBTEDNESS WAS COLLECTED ADMINISTRATIVELY BY SETOFF AGAINST YOUR FINAL PAY. SUCH ACTION WAS IN ACCORDANCE WITH THE DECISION OF THE COMPTROLLER GENERAL REPORTED AT 33 COMP. GEN. 443, IN WHICH IT WAS HELD THAT ANY PAY AND ALLOWANCES OTHERWISE DUE AND UNPAID, OR UNRESERVED, WHEN A PERSON IS SEPARATED FROM THE GOVERNMENT SERVICE--- EITHER MILITARY OR CIVILIAN--- MAY BE REGARDED AS PART OF THE FINAL PAY WHICH MAY BE APPLIED AGAINST HIS DEBTS TO THE GOVERNMENT.

THE RIGHT OF SETOFF HAS BEEN HELD TO BE INHERENT IN THE UNITED STATES AND TO BE GROUNDED IN THE COMMON-LAW RIGHT OF EVERY CREDITOR TO APPLY THE MONEYS OF HIS DEBTOR. GRATIOT V. UNITED STATES, 40 U.S. 336; MCKNIGHT V. UNITED STATES, 98 U.S. 179; BARRY V. UNITED STATES, 229 U.S. 47. THUS, WHERE A PERSON IS BOTH DEBTOR AND CREDITOR TO THE GOVERNMENT IN ANY FORM, THE ACCOUNTING OFFICERS ARE REQUIRED BY LAW TO CONSIDER BOTH THE DEBITS AND CREDITS AND SET OFF ONE INDEBTEDNESS AGAINST THE OTHER, AND CERTIFY ONLY THE BALANCE. TAGGART V. UNITED STATES, 17 C.CLS. 322.

THEREFORE, SINCE WE MAY NOT REVIEW THE FINDINGS OF THE BOARD AS APPROVED BY AUTHORITY OF THE SECRETARY OF THE AIR FORCE, AND SINCE ADMINISTRATIVE COLLECTION OF THE INDEBTEDNESS BY SETOFF AGAINST YOUR FINAL PAY WAS PROPER, THE SETTLEMENT OF SEPTEMBER 22, 1959, IS SUSTAINED.

REGARDING YOUR REQUEST THAT THE ENCLOSURES WHICH ACCOMPANIED YOUR LETTER OF FEBRUARY 25, 1959, BE RETURNED, YOU ARE ADVISED THAT ALL PAPERS FILED IN CONNECTION WITH A CLAIM AGAINST THE UNITED STATES AND CONSIDERED IN CONNECTION THEREWITH BECOME A PART OF THE OFFICIAL FILES OF OUR OFFICE AND MAY NOT BE RETURNED TO THE CLAIMANT.