B-148948, AUGUST 8, 1962, 42 COMP. GEN. 83

B-148948, AUGUST 8, 1962, 42 COMP. GEN. 83

PAY - WITHHOLDING - DEBT LIQUIDATION - DISCRETIONARY AUTHORITY. PAY - WITHHOLDING - DEBT LIQUIDATION - ADMISSION OF DEBTS. PAY - WITHHOLDING - DEBT LIQUIDATION - JUDGMENT OF A COURT. PAY - WITHHOLDING - DEBT LIQUIDATION - JUDGMENT OF A COURT. PAY - WITHHOLDING - DEBT LIQUIDATION - PAY V. ALLOWANCES. PAY - WITHHOLDING - DEBT LIQUIDATION STATUS CHANGE THE DISCRETIONARY AUTHORITY VESTED IN THE SECRETARIES OF THE MILITARY DEPARTMENTS IN 10 U.S.C. 2772 TO WITHHOLD PART OF THE PAY AND ALLOWANCES OF MILITARY OFFICERS FOR DEBTS TO THE UNITED STATES FOR WHICH THEY ARE ACCOUNTABLE APPLIES ONLY WHERE THERE IS NO ADMISSION OF THE DEBT OR A JUDGMENT OF A COURT; THEREFORE, IN THE CASE OF AN ACCOUNTABLE OFFICER WHO ADMITS A DEBT OR IS SUBJECT TO A JUDGMENT OF A COURT, IT IS MANDATORY THAT THE TOTAL COMPENSATION BE WITHHELD UNTIL THE DEBT IS SATISFIED. AN ADMISSION OF INDEBTEDNESS WITHIN THE MEANING OF 10 U.S.C. 2772, FOR THE MANDATORY WITHHOLDING OF THE PAY OF A MILITARY OFFICER IN ARREARS TO THE UNITED STATES, IS A STATEMENT--- ORAL OR WRITTEN--- BY THE DEBTOR ACCOUNTABLE OFFICER ACKNOWLEDGING THE ARREARAGE IN HIS ACCOUNTS, AND IT IS SUFFICIENT IF THE OFFICER SIGNS A WRITTEN STATEMENT CONCERNING THE ARREARAGE, DULY WITNESSED OR ACKNOWLEDGED BEFORE A PERSON AUTHORIZED TO ADMINISTER OATHS OR OTHER PERSON DESIGNATED BY THE SECRETARY CONCERNED, OR OTHERWISE OF UNQUESTIONED AUTHENTICITY, BUT IF THE ADMISSION IS ORAL AND THE ACCOUNTABLE OFFICER REFUSES TO SIGN A DULY WITNESSED WRITTEN ADMISSION, THE CERTIFICATE OF A COMMISSIONED OFFICER THAT THE ACCOUNTABLE OFFICER CLEARLY AND UNEQUIVOCALLY ADMITTED THE SHORTAGE, WOULD BE SUFFICIENT; HOWEVER, IF THE ORAL ADMISSION IS NOT CLEAR AND UNEQUIVOCAL, WITHHOLDING OF HIS PAY IS NOT AUTHORIZED. THE "JUDGMENT OF A COURT" IN 10 U.S.C. 2772 TO AUTHORIZE THE WITHHOLDING OF THE PAY OF A MILITARY ACCOUNTABLE OFFICER FOR DEBTS DUE THE UNITED STATES EVIDENCED BY A JUDGMENT MEANS THE INITIAL JUDGMENT ISSUED AFTER THE OFFICER HAS HAD AN OPPORTUNITY IN COURT TO CONTEST ITS EXISTENCE AND VALIDITY, RATHER THAN A JUDGMENT UPON WHICH FINAL APPELLATE ACTION HAS BEEN COMPLETED OR THE TIME FOR APPEAL EXPIRED; THEREFORE, WITHHOLDING OF PAY TO SATISFY SUCH A JUDGMENT IS AUTHORIZED WHEN THE JUDGMENT IS FIRST ENTERED. AN ACTION OF A COURT-MARTIAL WHICH INFERS THAT A MILITARY OFFICER IS INDEBTED TO THE UNITED STATES FOR PUBLIC FUNDS FOR WHICH HE IS ACCOUNTABLE IS NOT A "JUDGMENT OF A COURT" AS USED IN 10 U.S.C. 2772 TO AUTHORIZE THE WITHHOLDING OF THE PAY OF THE OFFICER IN SATISFACTION OF THE JUDGMENT FOR THE REASON THAT THE JURISDICTION OF A COURT-MARTIAL IS LIMITED TO OFFENSES OF A CRIMINAL RATHER THAN CIVIL NATURE AND COURT MARTIALS DO NOT ENTER JUDGMENTS BUT INSTEAD MAKE FINDINGS AND IMPOSE SENTENCES. THE "COMPENSATION" OF AN OFFICER WHO IS IN ARREARS TO THE UNITED STATES WHICH IS AUTHORIZED TO BE STOPPED BY 5 U.S.C. 82 MEANS ONLY THE PAY PROPER OF THE MILITARY OFFICER AND NOT HIS RENTAL OR SUBSISTENCE ALLOWANCES, AND, THEREFORE, THE TOTAL COMPENSATION REQUIRED TO BE WITHHELD UPON SPECIAL ORDER ISSUED IN THE DISCRETION OF THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED IN 10 U.S.C. 2772 IS LIMITED TO PAY AS DISTINGUISHED FROM ALLOWANCES. UNDER 5 U.S.C. 82 WHICH STATES THAT "NO MONEY" SHALL BE PAID TO ANY PERSON FOR HIS COMPENSATION" WHO IS IN ARREARS TO THE UNITED STATES, THE COMPENSATION SUBJECT TO WITHHOLDING IS NOT LIMITED TO REMUNERATION RECEIVED AS AN INCIDENT TO THE POSITION HELD WHEN THE ARREARAGES OCCURRED, AND, THEREFORE, THE FACT THAT AN INDIVIDUAL WHO BECOMES INDEBTED WHILE SERVING AS A CIVILIAN DEPUTY TO A DISBURSING OFFICER IS LATER CALLED TO ACTIVE MILITARY DUTY AS AN OFFICER DOES NOT AFFECT APPLICATION OF THE STATUTE, AS RESTRICTED BY 10 U.S.C. 2772, BUT WHETHER THE STOPPAGE OF HIS MILITARY PAY IS TOTAL OR PARTIAL IS DEPENDENT ON WHETHER THE ARREARAGE IS ADMITTED BY THE OFFICER OR SHOWN BY A JUDGMENT OF A COURT, IN WHICH CASE IT WOULD BE TOTAL, OR IS EFFECTED BY ORDER OF THE SECRETARY CONCERNED, IN WHICH CASE IT WOULD BE TOTAL OR PARTIAL AS INDICATED IN SUCH ORDER.

TO THE SECRETARY OF DEFENSE, AUGUST 8, 1962:

REFERENCE IS MADE TO THE LETTER OF MAY 17, 1962, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING OUR DECISION ON SIX QUESTIONS SET FORTH IN COMMITTEE ACTION NO. 302 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

(1) IS IT MANDATORY UNDER 10 U.S.C. 2772 TO WITHHOLD TOTAL COMPENSATION OF AN OFFICER WHO IS A "PERSON . . . WHO IS IN ARREARS TO THE UNITED STATES" (WITHIN THE MEANING OF SAID LANGUAGE AS SET FORTH IN SECTION 1766, REVISED STATUTES, 5 U.S.C. 82) WHEN: (A) THE OFFICER HAS ADMITTED THE INDEBTEDNESS OR (B) THE INDEBTEDNESS IS SHOWN BY THE JUDGMENT OF A COURT)

(2) WHAT CONSTITUTES AN ADMISSION OF INDEBTEDNESS FOR THE PURPOSE OF 10 U.S.C. 2772)

(3) DOES THE "JUDGMENT OF A COURT" REFERRED TO IN 10 U.S.C. 2772 MEAN AN INITIAL JUDGMENT OR ONLY A JUDGMENT UPON WHICH FINAL APPELLATE ACTION HAS BEEN COMPLETED OR THE TIME FOR APPEAL HAS EXPIRED)

(4) DOES "JUDGMENT OF A COURT" REFERRED TO IN 10 U.S.C. 2772 INCLUDE A CONVICTION BY COURT MARTIAL, ASSUMING AN "INDEBTEDNESS" COULD BE INFERRED FROM THE RECORD OF THE COURT MARTIAL)

(5) IF QUESTION NUMBER (1) IS ANSWERED IN THE NEGATIVE DOES THE SECRETARY OF THE SERVICE CONCERNED HAVE DISCRETION TO PROVIDE FOR INSTALLMENT LIQUIDATION OF THE INDEBTEDNESS AND (B) TO AUTHORIZE INSTALLMENT LIQUIDATION FROM PAY OR ALLOWANCES OR BOTH)

(6)DOES A CHANGE IN THE STATUS OF THE INDEBTED PERSON SUBSEQUENT TO CREATION OF THE INDEBTEDNESS AFFECT APPLICATION OF THE STATUTES) I.E; SUPPOSE AN INDIVIDUAL BECOMES INDEBTED TO THE UNITED STATES BY VIRTUE OF SERVICE AS A CIVILIAN DEPUTY TO A DISBURSING OFFICER. DOES THE FACT THAT HE LATER IS CALLED TO ACTIVE DUTY AS AN OFFICER MODIFY, PREVENT, OR OTHERWISE AFFECT APPLICATION OF 10 U.S.C. 2772)

SECTION 1766, REVISED STATUTES, 5 U.S.C. 82, PROVIDES AS FOLLOWS:

NO MONEY SHALL BE PAID TO ANY PERSON FOR HIS COMPENSATION WHO IS IN ARREARS TO THE UNITED STATES, UNTIL HE HAS ACCOUNTED FOR AND PAID INTO THE TREASURY ALL SUMS FOR WHICH HE MAY BE LIABLE. IN ALL CASES WHERE THE PAY OR SALARY OF ANY PERSON IS WITHHELD IN PURSUANCE OF THIS SECTION, THE GENERAL ACCOUNTING OFFICE, IF REQUIRED TO DO SO BY THE PARTY, HIS AGENT OR ATTORNEY, SHALL REPORT FORTHWITH TO THE ATTORNEY GENERAL THE BALANCE DUE; AND THE ATTORNEY GENERAL SHALL, WITHIN SIXTY DAYS THEREAFTER, ORDER SUIT TO BE COMMENCED AGAINST SUCH DELINQUENT AND HIS SURETIES.

SECTION 2772, TITLE 10, U.S.C., PROVIDES AS FOLLOWS:

THE PAY OF AN OFFICER OF THE ARMY, NAVY, AIR FORCE, OR MARINE CORPS MAY BE WITHHELD, UNDER SECTION 82 OF TITLE 5, ONLY FOR AN INDEBTEDNESS TO THE UNITED STATES ADMITTED BY THE OFFICER OR SHOWN BY THE JUDGMENT OF A COURT, OR UPON A SPECIAL ORDER ISSUED IN THE DISCRETION OF THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED.

IT IS POINTED OUT IN THE DISCUSSION SET FORTH IN COMMITTEE ACTION NO. 302 THAT IN DECISION 37 COMP. GEN. 344 WE STATED THAT THE PROVISIONS OF 5 U.S.C. 82 APPLY TO ALL PERSONS TO WHOM PUBLIC FUNDS ARE DULY ENTRUSTED AND WHO FAIL TO ACCOUNT FOR SUCH MONIES SATISFACTORILY. THAT IS, THE STATUTE IS NOT LIMITED TO "CONTRACTORS OR DISBURSING OFFICERS," BUT APPLIES TO ENLISTED MEMBERS, OFFICERS, AND CIVILIAN EMPLOYEES AS WELL IF THEY HAVE BEEN DULY ENTRUSTED WITH PUBLIC FUNDS FOR WHICH THEY ARE REQUIRED TO ACCOUNT. THE DISCUSSION FURTHER POINTS OUT THAT WE ALSO STATED IN 37 COMP. GEN. 344 THAT THE PROVISIONS OF 10 U.S.C. 2772 RESTRICT THE APPLICATION OF 5 U.S.C. 82 AS TO "OFFICERS" OF THE ARMY, NAVY, AIR FORCE, AND MARINE CORPS; THAT AN "OFFICER" FOR THIS PURPOSE IS DEFINED IN 10 U.S.C. 101 (14) AND MEANS "COMMISSIONED OR WARRANT OFFICER"; THAT THE PROVISIONS OF 10 U.S.C. 2772 DO NOT RESTRICT APPLICATION OF 5 U.S.C. 82 IN THE CASE OF CIVILIAN EMPLOYEES AND ENLISTED PERSONS WHO OTHERWISE FALL WITHIN THE PROVISIONS OF 5 U.S.C. 82. IT IS FURTHER NOTED IN THE COMMITTEE ACTION (SEE 37 COMP. GEN. 344) THAT THE SECRETARY OF THE DEPARTMENT CONCERNED MAY IN HIS DISCRETION AUTHORIZE INSTALLMENT LIQUIDATION IN APPLYING 10 U.S.C. 2772 TO THE PAY OF OFFICERS WHO WOULD OTHERWISE BE SUBJECT TO TOTAL WITHHOLDING UNDER 5 U.S.C. 82.

THE COMMITTEE ACTION NOTES THAT THE LEGISLATIVE HISTORY OF THE ACT OF JULY 10, 1952, CH. 654, 66 STAT. 575, STATES THAT THAT AMENDMENT "WOULD AUTHORIZE THE SECRETARY, AT HIS DISCRETION, TO WITHHOLD PART OF THE OFFICER'S PAY AND AT THE SAME TIME ALLOW PAYMENT AS MIGHT BE REQUIRED FOR THE SUBSISTENCE AND PERSONAL WELFARE OF THE OFFICER AND HIS DEPENDENTS.' SEE PAGE 2 OF H.REPT. NO. 2180 ON H.R. 6601, 82D CONGRESS, WHICH BECAME THE 1952 ACT, AND PAGE 2 OF S.REPT. NO. 1864 ON S. 2727, 82D CONGRESS, AN IDENTICAL BILL.

SALARY PAYMENTS OF FEDERAL EMPLOYEES MAY BE WITHHELD BY WAY OFSET OFF WHEN THE DEBT DUE THE UNITED STATES IS LIQUIDATED AND UNDISPUTED (GRATIOT V. UNITED STATES, 15 PET. 336 (1841) (, CITED WITH APPROVAL IN THE CASE OF UNITED STATES V. MUNSEY TRUST CO., 332 U.S. 234, 239 (1947), IN THE FINAL SETTLEMENT OF ACCOUNTS BETWEEN AN OFFICER OR EMPLOYEE AND THE GOVERNMENT UPON HIS SEPARATION FROM THE SERVICE, 13 COMP. GEN. 201; 16 COMP. GEN. 547. IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, HOWEVER, THE CURRENT COMPENSATION (AS DISTINGUISHED FROM FINAL COMPENSATION) DUE A CIVILIAN EMPLOYEE OF THE GOVERNMENT OR THE CURRENT PAY OF A MEMBER OF THE ARMED SERVICES MAY NOT BE WITHHELD WITHOUT HIS CONSENT TO LIQUIDATE GENERAL DEBTS DUE THE UNITED STATES, 29 COMP. GEN. 99

SECTION 1766, REVISED STATUTES, 5 U.S.C. 82, WHICH PROVIDED FOR WITHHOLDING OF CURRENT PAY UNDER SPECIFIED CIRCUMSTANCES WAS LIMITED BY THE ACT OF JULY 16, 1892, 27 STAT. 177, AS AMENDED BY THE ACT OF JULY 10, 1952, 66 STAT. 575, NOW CODIFIED IN 10 U.S.C. 2772, INSOFAR AS OFFICERS OF THE ARMED SERVICES ARE CONCERNED, SO AS TO AUTHORIZE WITHHOLDING ONLY IN THOSE CASES WHERE THE INDEBTEDNESS INVOLVED IS ADMITTED BY THE OFFICER OR SHOWN BY THE JUDGMENT OF A COURT, OR UPON A SPECIAL ORDER ISSUED IN THE DISCRETION OF THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED.

IT IS OUR OPINION THAT THE TERM "DISCRETION OF THE SECRETARY" MENTIONED IN BOTH THE 1892 AND THE 1952 ACTS EXTENDS ONLY TO THOSE SITUATIONS WHERE THE SECRETARY, IN THE ABSENCE OF AN ADMISSION OF A DEBT OR A JUDGMENT OF A COURT, DETERMINES THE EXISTENCE OF A DEBT AND ORDERS A WITHHOLDING UNDER SECTION 1766, REVISED STATUTES. THUS, THE DISCRETIONARY APPLICATION OF SECTION 1766, REVISED STATUTES, AUTHORIZED IN 10 U.S.C. 2772 WOULD NOT BE AUTHORIZED WHERE THERE IS AN ADMISSION OF A DEBT OR A JUDGMENT OF A COURT IN THE CASE OF AN ACCOUNTABLE OFFICER.

QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

AN ADMISSION OF INDEBTEDNESS WITHIN THE MEANING OF THE PROVISIONS OF 10 U.S.C. 2772 IS A STATEMENT BY THE ACCOUNTABLE OFFICER ACKNOWLEDGING THE EXISTENCE OF AN ARREARAGE IN HIS ACCOUNTS AND MAY BE ORAL OR WRITTEN. THINK THAT AN ADMISSION IS SUFFICIENT IF THE ACCOUNTABLE OFFICER SIGNS A WRITTEN STATEMENT CONCERNING THE ARREARAGE THAT IS DULY WITNESSED OR ACKNOWLEDGED BEFORE A PERSON AUTHORIZED TO ADMINISTER OATHS OR OTHER PERSON DESIGNATED BY THE SECRETARY CONCERNED, OR IS OTHERWISE OF UNQUESTIONED AUTHENTICITY. WHERE THE ADMISSION IS ORAL ONLY AND THE ACCOUNTABLE OFFICER REFUSES TO SIGN A DULY WITNESSED WRITTEN ADMISSION, WE THINK THAT THE CERTIFICATE OF A COMMISSIONED OFFICER THAT THE ACCOUNTABLE OFFICER CLEARLY AND UNEQUIVOCALLY ADMITTED THE SHORTAGE WOULD BE SUFFICIENT. IF THE ORAL ADMISSION IS NOT CLEAR AND UNEQUIVOCAL, HOWEVER, THE WITHHOLDING OF HIS PAY WOULD NOT BE AUTHORIZED.

QUESTION 2 IS ANSWERED ACCORDINGLY.

THE RELIANCE UPON A JUDGMENT OF A COURT, IN SUBSTANTIATION OF AN OFFICER'S INDEBTEDNESS UNDER 10 U.S.C. 2772, IS BASED UPON THE DETERMINATION OF THE EXISTENCE AND THE AMOUNT OF THE DEBT AFTER THE OFFICER HAS HAD AN OPPORTUNITY IN COURT TO CONTEST ITS EXISTENCE AND VALIDITY. WITHHOLDING ON THIS BASIS IS AUTHORIZED WHEN THE JUDGMENT IS FIRST ENTERED.

QUESTION 3 IS ANSWERED ACCORDINGLY.

THE JURISDICTION OF COURTS-MARTIAL IS LIMITED TO OFFENSES OF A CRIMINAL NATURE. THEY DO NOT ENTER JUDGMENTS AS SUCH, BUT RATHER MAKE FINDINGS AND IMPOSE SENTENCES ON PERSONS SUBJECT TO THEIR JURISDICTION. IT IS NOT THE FUNCTION OF COURTS-MARTIAL TO MAKE FINDINGS OF A CIVIL NATURE, AND THERE IS NOTHING IN THE LANGUAGE OF 10 U.S.C. 2772, TO SUGGEST THAT THE CONGRESS INTENDED TO USE THE WORK "JUDGMENT" IN THE STATUTE IN OTHER THAN THE USUAL SENSE. ACCORDINGLY, IT IS OUR OPINION THAT NO ACTION OF A COURT-MARTIAL CONSTITUTES A "JUDGMENT" WITHIN THE MEANING OF SECTION 2772.

QUESTION 4 IS ANSWERED IN THE NEGATIVE.

QUESTION 1 HAVING BEEN ANSWERED IN THE AFFIRMATIVE, NO ANSWER IS REQUIRED TO THE FIRST PART OF QUESTION 5. RESPECTING PART (B), AS TO WHETHER THE DISCRETION OF THE SECRETARY TO AUTHORIZE INSTALLMENT LIQUIDATION OF AN INDEBTEDNESS EXTENDS TO PAY OR ALLOWANCES OR BOTH, IT HAS BEEN HELD THAT THE "COMPENSATION" OF AN OFFICER WHO IS IN ARREARS TO THE UNITED STATES, AUTHORIZED TO BE STOPPED BY REVISED STATUTE 1766, MEANS ONLY THE PAY PROPER OF AN OFFICER OF THE ARMY AND NOT HIS RENTAL OR SUBSISTENCE ALLOWANCES, 2 OP.ATTY.GEN. 420. IT WOULD THEREFORE APPEAR THAT THE TOTAL ,COMPENSATION" OF AN OFFICER WHO IS IN ARREARS TO THE UNITED STATES, AUTHORIZED TO BE STOPPED BY REVISED STATUTE 1766, MEANS ONLY THE PAY PROPER OF AN OFFICER OF THE ARMY AND NOT HIS RENTAL OR SUBSISTENCE ALLOWANCES, 2 OP.ATTY.GEN. 420. IT WOULD THEREFORE APPEAR THAT THE TOTAL OMPENSATION" OF AN OFFICER WHO IS IN ARREARS TO THE UNITED STATES, AUTHORIZED TO BE STOPPED BY REVISED STATUTE 1766, MEANS ONLY THE PAY PROPER OF AN OFFICER OF THE ARMY AND NOT HIS RENTAL OR SUBSISTENCE ALLOWANCES, 2 OP.ATTY.GEN. 420. IT WOULD THEREFORE APPEAR THAT THE TOTAL ,COMPENSATION" REFERRED TO IN QUESTION 1 WOULD BE LIMITED TO PAY AS DISTINGUISHED FROM ALLOWANCES. SECTION 1516 (1), DIG.OP. JAGA, 1912-1940, 711; 9 COMP. GEN. 272. COMPARE 29 COMP. GEN. 99; 33 COMP. GEN. 443, AND THE PROVISIONS OF 5 U.S.C. 46D AND 10 U.S.C. 4837, 9837.

THE PROVISION (5 U.S.C. 82) CLEARLY STATES THAT "NO MONEY" SHALL BE PAID TO ANY PERSON "FOR HIS COMPENSATION" WHO IS IN ARREARS TO THE UNITED STATES AND THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE LONG HELD THAT COMPENSATION SUBJECT TO WITHHOLDING UNDER THOSE PROVISIONS IS NOT LIMITED TO REMUNERATION RECEIVED AS AN INCIDENT TO THE POSITION HELD WHEN THE ARREARAGES OCCURRED. 38 COMP. GEN. 731. WHETHER THE STOPPAGE OF PAY WHILE SERVING AS AN OFFICER OF THE MILITARY SERVICE IN THE SITUATION POSED IN QUESTION 6 IS TOTAL OR PARTIAL IS DEPENDENT ENTIRELY ON WHETHER THE ARREARAGE IS ADMITTED BY THE ACCOUNTABLE OFFICER OR SHOWN BY THE JUDGMENT OF A COURT, IN WHICH CASE THE STOP PAGE NECESSARILY WOULD BE TOTAL, OR IS EFFECTED PURSUANT TO AN ORDER OF THE SECRETARY CONCERNED, IN WHICH CASE THE STOPPAGE WOULD BE TOTAL OR PARTIAL IN ACCORDANCE WITH THE ORDER ISSUED IN THE SECRETARY'S DISCRETION.