B-148033, MAR. 7, 1962

B-148033, MAR. 7, 1962

TO REAR ADMIRAL ROBERT D. POWERS, JR., USN:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 28, 1961, JAG:131:5:WEN:AJN/SER: COPY HEREWITH, REFERRING TO OUR LETTER OF AUGUST 15, 1961 (DW-Z-2107221-LMS-5), TO THE SECRETARY OF THE NAVY, CONCERNING THE INDEBTEDNESS OF THOMAS A. MCLUCKIE, RM-2, SERVICE NO. 514 03 20.

IT WAS EXPLAINED IN THE LETTER OF AUGUST 15, 1961, THAT THE INDEBTEDNESS AROSE BECAUSE OF THE FACT THAT THOMAS A. MCLUCKIE, ON OCTOBER 3, 1959, WHILE OPERATING A NAVY PICK-UP TRUCK, NEGLIGENTLY DROVE INTO THE REAR END OF AN AIR FORCE STATION WAGON, CAUSING DAMAGE THERETO IN THE AMOUNT OF $598.12. IT WAS REQUESTED, SINCE THE DEBTOR IS NOW SERVING IN THE NAVY, THAT COLLECTION ACTIONS BE TAKEN BY USE OF ALL ADMINISTRATIVE MEANS CONSISTENT WITH THE PROVISIONS OF 4 GAO 5000. IT WAS FURTHER REQUESTED THAT IF MCLUCKIE SHOULD BE SEPARATED FROM THE SERVICE PRIOR TO LIQUIDATION OF THE DEBT, UNPAID AMOUNTS DUE HIM AT THE TIME OF SUCH SEPARATION BE APPLIED TO THE DEBT AND A STOPPAGE PLACED AGAINST HIS RETIREMENT ACCOUNT, IF NECESSARY.

YOU SAY THAT IN OUR LETTER OF AUGUST 15, 1961, IT IS NOT STATED BY WHOM OR PURSUANT TO WHAT PROVISION OF LAW IT HAS BEEN DETERMINED THAT MCLUCKIE IS LIABLE AND YOU POINT OUT THAT IT IS INDICATED THAT THE DAMAGED AIR FORCE VEHICLE HAD NOT BEEN ASSIGNED TO ENTRUSTED TO HIM. YOU ALSO SAY, CITING OUR DECISION OF NOVEMBER 21, 1957, B-134030, 37 COMP. GEN. 353, THAT IT HAS BEEN HELD CONSISTENTLY THAT THERE IS NO LEGAL AUTHORITY FOR THE INVOLUNTARY CHECK AGE OF THE CURRENT PAY OF NAVAL PERSONNEL FOR LOSS OF OR DAMAGE TO GOVERNMENT PROPERTY THROUGH NEGLIGENCE OR WILLFUL CONDUCT. YOU SAY FURTHER THAT IN THE CITED DECISION IT WAS INDICATED THAT AN ADMINISTRATIVELY DETERMINED INDEBTEDNESS INVOLVING LOSS OF OR DAMAGE TO ARMY PROPERTY BY NAVAL PERSONNEL, AS SHOWN ON AN ARMY REPORT OF SURVEY AND AS CERTIFIED TO THE GENERAL ACCOUNTING OFFICE AS PROVIDED IN 31 U.S.C. 89 AND 90, MIGHT SERVE AS A BASIS FOR COLLECTION FROM THE MEMBER'S FINAL PAY AS DISTINGUISHED FROM CURRENT PAY. YOU SAY THAT IT APPEARS, HOWEVER, THAT 31 U.S.C 89 AND 90 RELATE ONLY TO REPORTING CHARGES OF LIABILITY ON THE PART OF AN INDIVIDUAL, ON ACCOUNT OF LOSS TO THE GOVERNMENT, INVOLVING PROPERTY ENTRUSTED TO THE PERSON CHARGED. YOU EXPRESS THE OPINION THAT, SINCE IN THIS CASE THE AIR FORCE VEHICLE APPARENTLY HAD NOT BEEN ENTRUSTED TO MCLUCKIE, IT DOES NOT APPEAR THAT 31 U.S.C. 89 AND 90 WOULD PROVIDE ANY LEGAL AUTHORITY FOR ACTION AGAINST HIM. IN CONCLUSION, YOU SAY THAT THE JUDGE ADVOCATE GENERAL IS NOT AWARE OF ANY LEGAL AUTHORITY WHICH WILL PERMIT THE NAVY TO PROCEED IN THE MANNER REQUESTED IN OUR LETTER OF AUGUST 15, 1961, AND THAT OUR VIEWS WITH RESPECT TO THE MATTER ARE REQUESTED.

A REPORT OF SURVEY WAS APPROVED BY AUTHORITY OF THE SECRETARY OF THE AIR FORCE ON NOVEMBER 13, 1959 TO HOLD THOMAS A. MCLUCKIE, RM-3, 514 03 20, PECUNIARILY LIABLE IN THE AMOUNT OF $598.12 ON ACCOUNT OF DAMAGES TO THE AIR FORCE STATION WAGON IN QUESTION AND IT APPEARS THAT SUCH ACTION WAS TAKEN UNDER THE PROVISIONS OF 10 U.S.C. 9835, WHICH READ AS FOLLOWS:

"/A) UNDER SUCH REGULATIONS AS THE SECRETARY OF THE AIR FORCE MAY PRESCRIBE, ANY OFFICER OF THE AIR FORCE 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 AIR FORCE.

"/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 AIR FORCE DESIGNATED BY HIM.'

WITH REFERENCE TO YOUR REQUEST FOR INFORMATION AS TO ANY LEGAL AUTHORITY WHICH WILL PERMIT THE NAVY TO PROCEED IN THE MANNER REQUESTED IN OUR LETTER OF AUGUST 15, 1961, YOU ARE ADVISED THAT THE RIGHT OF SETOFF HAS BEEN HELD TO BE INHERENT IN THE UNITED STATES GOVERNMENT 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. GRATIOR V. UNITED STATES, 40 U.S. 336, 370; MCKNIGHT V. UNITED STATES, 98 U.S. 179, 186; AND BARRY V. UNITED STATES, 229 U.S. 47, 53. THUS, WHERE A PERSON IS BOTH DEBTOR AND CREDITOR OF THE UNITED STATES, THE ACCOUNTING OFFICERS OF THE GOVERNMENT, IN SETTLING ACCOUNTS, NOT ONLY HAVE THE POWER, BUT ARE REQUIRED IN THE PROPER DISCHARGE OF THEIR DUTIES, TO SET OFF THE ONE INDEBTEDNESS AGAINST THE OTHER, AND TO ALLOW AND CERTIFY FOR PAYMENT ONLY THE BALANCE FOUND DUE ON ONE SIDE OR THE OTHER. TAGGART V. UNITED STATES, 17 CT.CL. 322, 327. SEE, ALSO, 18 COMP. GEN. 799, THE STATUTES THERE CITED, AND OUR DECISION OF SEPTEMBER 5, 1961,B-146224, 41 COMP. GEN. 178.

AS INDICATED ABOVE, IT IS OUR VIEW THAT THE DETERMINATION OF DAMAGE TO PROPERTY OF THE UNITED STATES MADE BY AUTHORITY OF THE SECRETARY OF THE AIR FORCE WAS MADE PURSUANT TO THE PROVISIONS OF 10 U.S.C. 9835. CONSIDERING THE BROAD TERMS OF THAT SECTION AND THE INTERPRETATION AND APPLICATION GIVEN IT BY THE AIR FORCE, WE DO NOT PROPOSE TO QUESTION THE VALIDITY OF SUCH ADMINISTRATIVE ACTION IN THE ABSENCE OF A COURT DECISION GIVING THE LAW A MORE RESTRICTIVE APPLICATION. HENCE, THE DETERMINATION MADE IN THIS CASE MUST BE CONSIDERED TO BE EVIDENCE OF A GENERAL INDEBTEDNESS TO THE UNITED STATES AND SUFFICIENT TO PERMIT DEDUCTION FROM THE MEMBER'S FINAL PAY. SUCH INDEBTEDNESS MAY BE COLLECTED ADMINISTRATIVELY BY SETOFF AGAINST THAT PAY. ACCORDINGLY, WE APPRECIATE FURTHER CONSIDERATION OF THE MATTER BY YOUR DEPARTMENT WITH A VIEW TO THE COLLECTION OF THE AMOUNT OF THE INDEBTEDNESS FROM THE ENLISTED MAN'S FINAL PAY IN CASE COLLECTION IS NOT MADE PRIOR TO HIS SEPARATION FROM THE SERVICE.

IN CONNECTION WITH THIS MATTER, YOU ARE ADVISED THAT THE REQUEST THAT A STOPPAGE BE PLACED AGAINST MCLUCKIE'S RETIREMENT ACCOUNT, IF NECESSARY, WAS INADVERTENTLY INCLUDED IN OUR LETTER OF AUGUST 15, 1961. SEE 30 COMP. GEN. 255 AND COMPARE 34 COMP. GEN. 504 AND 38 COMP. GEN. 731.