B-142106, MAR. 28, 1960

B-142106: Mar 28, 1960

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

HUZZARD: REFERENCE IS MADE TO LETTER FROM MR. THE INFERENCE BEING THAT SPECIFIC REGULATIONS OR STATUTORY AUTHORITY TO DO SO IS REQUIRED. RECORDS SHOW THAT YOU WERE HONORABLY DISCHARGED SEPTEMBER 24. YOU WERE SENTENCED TO BE DISHONORABLY DISCHARGED FROM THE SERVICE. YOU WERE SENTENCED TO FORFEIT ALL PAY AND ALLOWANCES (NOT APPLICABLE TO AMOUNTS THAT ACCRUED PRIOR TO THE DATE OF THE SENTENCE). THE UNEXECUTED PORTION OF THE SENTENCE TO CONFINEMENT WAS REMITTED EFFECTIVE MARCH 1. WAS BASED ON A STATEMENT OF YOUR ACCOUNT FOR THE PERIOD OF YOUR SERVICE FROM SEPTEMBER 25. WE HAVE HELD THAT COMBAT PAY. IS TO BE CONSIDERED AS MONTHLY COMPENSATION. IT IS NOTED THAT ARMY REGULATION 35-1820. WHEN A PERSON IS SEPARATED FROM THE GOVERNMENT SERVICE.

B-142106, MAR. 28, 1960

TO MR. CHARLES M. HUZZARD:

REFERENCE IS MADE TO LETTER FROM MR. JOSEPH G. HITSELBERGER DATED FEBRUARY 6, 1960, WRITTEN IN YOUR BEHALF, REQUESTING REVIEW OF SETTLEMENT DATED DECEMBER 4, 1959, WHICH ALLOWED YOUR CLAIM FOR COMBAT PAY DUE FOR THE PERIOD JULY 1950, THROUGH JUNE 1951, IN THE AMOUNT OF $540, INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY, BUT APPLIED THE AMOUNT DUE TO PARTIALLY LIQUIDATE YOUR INDEBTEDNESS TO THE UNITED STATES. MR. HITSELBERGER STATES THAT UNDER CHANGE 11, DATED FEBRUARY 9, 1959, ARMY REGULATIONS 37-104, SECTION 13-1A AND B, THE GOVERNMENT HAS NO AUTHORITY TO SET OFF COMBAT PAY AGAINST YOUR INDEBTEDNESS TO THE GOVERNMENT, THE INFERENCE BEING THAT SPECIFIC REGULATIONS OR STATUTORY AUTHORITY TO DO SO IS REQUIRED.

RECORDS SHOW THAT YOU WERE HONORABLY DISCHARGED SEPTEMBER 24, 1951, FROM AN ARMY ENLISTMENT ENTERED INTO ON JULY 26, 1949. YOU REENLISTED THE NEXT DAY FOR SIX YEARS AND BY GENERAL COURT-MARTIAL ORDER NO. 5 OF JANUARY 6, 1954, YOU WERE SENTENCED TO BE DISHONORABLY DISCHARGED FROM THE SERVICE. IN ADDITION TO DISHONORABLE DISCHARGE, YOU WERE SENTENCED TO FORFEIT ALL PAY AND ALLOWANCES (NOT APPLICABLE TO AMOUNTS THAT ACCRUED PRIOR TO THE DATE OF THE SENTENCE), AND TO BE CONFINED AT HARD LABOR FOR SIX MONTHS. ON FEBRUARY 15, 1954, THE UNEXECUTED PORTION OF THE SENTENCE TO CONFINEMENT WAS REMITTED EFFECTIVE MARCH 1, 1954.

THE CLAIMS DIVISION SETTLEMENT OF DECEMBER 4, 1959, WHICH APPLIED IN PARTIAL LIQUIDATION OF YOUR INDEBTEDNESS THE COMBAT PAY DUE IN THE AMOUNT OF $540, WAS BASED ON A STATEMENT OF YOUR ACCOUNT FOR THE PERIOD OF YOUR SERVICE FROM SEPTEMBER 25, 1951, THROUGH JANUARY 5, 1954, THE DAY PRECEDING YOUR COURT-MARTIAL SENTENCE TO BE DISHONORABLY DISCHARGED AND FORFEIT ALL PAY AND ALLOWANCES BECOMING DUE ON OR AFTER SUCH DATE. EXAMINATION OF YOUR PAY RECORD FOR THIS PERIOD SHOWS A DEBIT ITEM OF $224.36 AS OVERPAYMENT OF PAY AND ALLOWANCES BROUGHT FORWARD AT DISCHARGE ON SEPTEMBER 24, 1951. CREDITS ENTERED FOR THE ABOVE PERIOD TOTALED $5,336.88, INCLUDING $540 RETROACTIVE COMBAT PAY FOR THE PERIOD JULY 1950 TO JUNE 1951, AT $45 PER MONTH. TOTAL DEBITS FOR THIS PERIOD, INCLUDING OVERPAYMENT OF PAY AND ALLOWANCES BROUGHT FORWARD ON SEPTEMBER 25, 1951, AMOUNTED TO $5,353.99. HENCE, THE OFFSET OF THE AMOUNT DUE AS COMBAT PAY RESULTED IN A NET INDEBTEDNESS OF $17.11.

THE COMBAT DUTY PAY ACT OF 1952, 66 STAT. 538, PROVIDED FOR THE PAYMENT OF COMBAT PAY IN THE AMOUNT OF $45 PER MONTH FOR EACH MONTH IN WHICH THE MEMBER QUALIFIED THEREFOR. WE HAVE HELD THAT COMBAT PAY, LIKE BASIC PAY AND THE VARIOUS CLASSES OF ACTIVE DUTY PAY AUTHORIZED BY THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, IS TO BE CONSIDERED AS MONTHLY COMPENSATION. NO EXPRESS EXEMPTION OF THIS PAY FROM WITHHOLDING OR SETOFF BY THE GOVERNMENT HAS BEEN FOUND. SEE, GENERALLY, 32 COMP. GEN. 55. THIS CONNECTION, IT IS NOTED THAT ARMY REGULATION 35-1820, DATED JULY 2, 1952, THE PERTINENT REGULATION IN EFFECT AT THE TIME OF YOUR COURT-MARTIAL SENTENCE ON JANUARY 6, 1954, AND THE REGULATION WHICH PRECEDED AR 37-104, THE REGULATION CITED IN MR. HITSELBERGER'S LETTER AS APPLICABLE TO THE SITUATION, CONTAINS NO PROHIBITION AGAINST THE USE OF COMBAT PAY DUE A MEMBER TO REDUCE HIS INDEBTEDNESS TO THE UNITED STATES.

WE HELD IN 33 COMP. GEN. 443, THAT ANY PAY AND ALLOWANCE 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 AND MAY BE APPLIED AGAINST DEBTS TO THE GOVERNMENT. COMPARE 37 COMP. GEN. 353.

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 IN HIS HANDS TO THE EXTINGUISHMENT OF THE AMOUNTS DUE HIM FROM THE DEBTOR. GRATIOT V. UNITED STATES, 40 U.S. 336; MCKNIGHT V. UNITED STATES, 98 U.S. 178; 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 TO SET OFF ONE INDEBTEDNESS AGAINST THE OTHER, AND CERTIFY ONLY THE BALANCE. TAGGART V. UNITED STATES, 17 C.CLS. 322.

IN VIEW OF THE ABOVE, THE ACTION TAKEN IN OUR SETTLEMENT OF DECEMBER 4, 1959, TO SET OFF THE SUM DUE YOU AGAINST THE AMOUNT DUE THE UNITED STATES WAS PROPER AND IS SUSTAINED.