B-144187, DEC. 21, 1960

B-144187: Dec 21, 1960

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W. GRUMMERT: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 14. FOR WHICH YOU WERE HELD RESPONSIBLE. WHILE THE PROPERTY WAS IN YOUR POSSESSION DURING YOUR SERVICE IN THE UNITED STATES ARMY. THE ACTION OF THE DEPARTMENT OF THE ARMY WHICH RESULTED IN THE DETERMINATION THAT YOU WERE LIABLE FOR THE DAMAGE INVOLVED WAS TAKEN UNDER AUTHORITY OF THE ACT OF OCTOBER 30. OR DESTRUCTION OF OR DAMAGE TO PROPERTY OF THE UNITED STATES UNDER THE CONTROL OF THE DEPARTMENT OF THE ARMY. "/B) ACTION TAKEN UNDER SUBSECTION (A) IS FINAL. OR DAMAGE IS NOT FINAL UNTIL APPROVED BY THE SECRETARY OR AN OFFICER OF THE DEPARTMENT DESIGNATED BY HIM.'. YOU WERE HELD RESPONSIBLE. YOU WERE DETERMINED TO BE PECUNIARILY LIABLE IN THE AMOUNT OF $1.

B-144187, DEC. 21, 1960

TO MR. ALLEN E. W. GRUMMERT:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 14, 1960, RELATIVE TO AN INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $1,205.09, REPRESENTING THE DAMAGE TO GOVERNMENT PROPERTY, FOR WHICH YOU WERE HELD RESPONSIBLE, WHILE THE PROPERTY WAS IN YOUR POSSESSION DURING YOUR SERVICE IN THE UNITED STATES ARMY.

THE ACTION OF THE DEPARTMENT OF THE ARMY WHICH RESULTED IN THE DETERMINATION THAT YOU WERE LIABLE FOR THE DAMAGE INVOLVED WAS TAKEN UNDER AUTHORITY OF THE ACT OF OCTOBER 30, 1941, 55 STAT. 758, AS AMENDED, REPEALED AND REPLACED BY SECTION 53B OF THE ACT OF AUGUST 10, 1956, 70A STAT. 641, 671 (NOW CODIFIED IN 10 U.S.C. 4835), WHICH PROVIDES AS FOLLOWS:

"4835 REPORTS OF SURVEY.

"/A)UNDER SUCH REGULATIONS AS THE SECRETARY OF THE ARMY MAY PRESCRIBE, ANY OFFICER OF THE ARMY DESIGNATED BY HIM MAY ACT UPON REPORTS OF SURVEYS AND VOUCHERS PERTAINING TO THE LOSS, SPOILAGE, UNSERVICEABILITY, UNSUITABILITY, OR DESTRUCTION OF OR DAMAGE TO PROPERTY OF THE UNITED STATES UNDER THE CONTROL OF THE DEPARTMENT OF THE ARMY.

"/B) ACTION TAKEN UNDER SUBSECTION (A) IS FINAL, EXCEPT THAT ACTION HOLDING A PERSON PECUNIARILY LIABLE FOR LOSS, SPOILAGE, DESTRUCTION, OR DAMAGE IS NOT FINAL UNTIL APPROVED BY THE SECRETARY OR AN OFFICER OF THE DEPARTMENT DESIGNATED BY HIM.'

BY REPORT OF SURVEY DATED FEBRUARY 3, 1958, YOU WERE HELD RESPONSIBLE, AS A RESULT OF YOUR NEGLIGENCE, FOR THE DAMAGE TO A 30 KW, 400 CYCLE GENERATOR, SUSTAINED WHEN IT SLID OFF A TRUCK DRIVEN BY YOU, AND YOU WERE DETERMINED TO BE PECUNIARILY LIABLE IN THE AMOUNT OF $1,205.09. THE ACTION WAS APPROVED BY AUTHORITY OF THE SECRETARY OF THE ARMY ON MARCH 7, 1958. UNDER THE QUOTED PROVISIONS OF LAW, SUCH FINDINGS OF NEGLIGENCE AND PECUNIARY LIABILITY ARE FINAL AND, THEREFORE, NOT SUBJECT TO REVIEW BY OUR OFFICE.

THE RECORD DISCLOSES THAT UPON SEPARATION FROM THE SERVICE FINAL PAY DUE YOU, IN THE AMOUNT OF $335.22, WAS SET OFF AGAINST THIS INDEBTEDNESS, LEAVING A BALANCE OF $869.87 DUE THE UNITED STATES. THAT ACTION WAS TAKEN IN ACCORDANCE WITH THE LONG ESTABLISHED RULE THAT WHILE IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THERE IS NO PROPER BASIS TO SET OFF GENERAL DEBTS DUE THE UNITED STATES BY ITS EMPLOYEES AGAINST THEIR CURRENT PAY, WITHOUT THEIR CONSENT, THE PROHIBITION AGAINST SUCH SET OFF DOES NOT APPLY TO FINAL SALARY PAYMENTS IN THE EVENT THE DEBTORS ARE SEPARATED FROM THE FEDERAL SERVICE. SEE 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 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 MONIES OF THE 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. 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 CT.CL. 322.

WE HAVE NO ALTERNATIVE BUT TO ACCEPT THE DETERMINATION OF THE SURVEY OFFICER AS APPROVED BY AUTHORITY OF THE SECRETARY OF THE ARMY AND WE HAVE NO POWER TO RELIEVE YOU OF YOUR LIABILITY OR TO WAIVE COLLECTION OF THE AMOUNT CERTIFIED AS DUE THE UNITED STATES. ACCORDINGLY, IT IS AGAIN REQUESTED THAT THE BALANCE DUE BE PROMPTLY REMITTED. IF YOU ARE UNABLE TO PAY THE AMOUNT IN FULL WITHOUT HARDSHIP, YOU SHOULD SUBMIT AN INITIAL PAYMENT TOGETHER WITH A DEFINITE PLAN FOR PAYMENT OF THE BALANCE IN MONTHLY INSTALLMENTS WHICH SHOULD BE IN SUFFICIENT AMOUNT TO LIQUIDATE YOUR INDEBTEDNESS WITHIN A REASONABLE LENGTH OF TIME. PAYMENT SHOULD BE MADE BY BANK DRAFT, CHECK, OR MONEY ORDER MADE PAYABLE TO THE "U.S. GENERAL ACCOUNTING OFFICE" AND FORWARDED TO THE CLAIMS DIVISION, UNITED STATES GENERAL ACCOUNTING OFFICER, P.O. BOX 2610, WASHINGTON, D.C., REFERRING TO CLAIM NO. Z1-944-782.

ANY APPEAL YOU MAY WISH TO MAKE FROM THE ADMINISTRATIVE DETERMINATION OF YOUR PECUNIARY RESPONSIBILITY SHOULD BE ADDRESSED TO THE SECRETARY OF THE ARMY. SEE DEPARTMENT OF THE ARMY REGULATIONS 735-11, PROPERTY ACCOUNTABILITY, ACCOUNTING FOR LOST, DAMAGED, AND DESTROYED PROPERTY.