B-151168(2), MAY 18, 1972

B-151168(2): May 18, 1972

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THERE IS NO REASON WHY THE INDEBTEDNESS MAY NOT PROPERLY BE CONSIDERED FOR REMISSION OR CANCELLATION PURSUANT TO 10 U.S.C. 4837(D). 38 COMP. THE QUESTIONS AS STATED IN COMMITTEE ACTION NO. 461 ARE: "1. WILL THE COMPTROLLER GENERAL REAFFIRM THE DECISION OF 22 NOVEMBER 1971. IF IT IS POINTED OUT THAT THE TRAVEL ADVANCES IN QUESTION WERE TRANSACTIONS SOLELY BETWEEN THE FEDERAL AVIATION AGENCY (FAA) AND THE INDIVIDUALS. WE NOTED THAT A MILITARY MEMBER DETAILED TO FAA REMAINED A MEMBER OF THE ARMED FORCES SUBJECT TO RECALL BY THE MILITARY AT ANY TIME AND THAT HIS PAY AND ALLOWANCES ARE SUBJECT TO MILITARY LAWS AND REGULATIONS. THAT THE DEPARTMENT OF TRANSPORTATION WAS REQUIRED TO PAY ALL TRAVEL AND PER DIEM COSTS INCIDENT TO THE PERFORMANCE OF DEPARTMENT OF TRANSPORTATION DUTIES BY PERSONNEL DETAILED TO IT IN ACCORDANCE WITH JOINT TRAVEL REGULATIONS IN EFFECT AT THE TIME AND THAT THE TRAVEL ADVANCES ARE TO BE TREATED THE SAME AS TRAVEL ADVANCES TO A MILITARY MEMBER NOT ON DETAIL.

B-151168(2), MAY 18, 1972

SKY MARSHALS - ERRONEOUS OVERPAYMENT OF TRAVEL ALLOWANCES - PROPRIETY OF DEDUCTION FROM ACTIVE DUTY PAY - PROPRIETY OF RECISSION OR CANCELLATION OF INDEBTEDNESS CONCERNING WHETHER ERRONEOUS OVERPAYMENTS OF TRAVEL ALLOWANCES MADE BY THE FEDERAL AVIATION ADMINISTRATION TO MEMBERS OF THE ARMED SERVICES WORKING AS SKY MARSHALS MAY BE DEDUCTED FROM ACTIVE DUTY PAY AND ALLOWANCES, AND WHETHER SUCH INDEBTEDNESS MAY BE CONSIDERED FOR REMISSION UNDER 10 U.S.C. 4837. GAO HAS PREVIOUSLY HELD THAT FAA PAYMENTS TO SKY MARSHALS MAY BE CONSIDERED AS HAVING BEEN MADE FOR, AND ON BEHALF OF, THE MILITARY DEPARTMENT CONCERNED. B-151168, NOVEMBER 22, 1971. ACCORDINGLY, UNDER 5 U.S.C. 5514, SUCH OVERPAYMENTS MAY BE INVOLUNTARILY LIQUIDATED FROM ACTIVE DUTY PAY AND ALLOWANCES. HOWEVER, THERE IS NO REASON WHY THE INDEBTEDNESS MAY NOT PROPERLY BE CONSIDERED FOR REMISSION OR CANCELLATION PURSUANT TO 10 U.S.C. 4837(D). 38 COMP. GEN. 788 (1959).

TO MR. SECRETARY:

THIS REFERS TO LETTER OF FEBRUARY 4, 1972, FROM THE ASSISTANT SECRETARY OF DEFENSE, COMPTROLLER, FORWARDING A COPY OF DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 461, AND REQUESTING A DECISION WHETHER UNLIQUIDATED TRAVEL ADVANCES MADE BY THE FEDERAL AVIATION ADMINISTRATION (FAA) TO ENLISTED MEMBERS OF THE ARMED FORCES DETAILED TO FAA IN CONNECTION WITH THE SKY MARSHAL PROGRAM MAY BE INVOLUNTARILY LIQUIDATED FROM THEIR ACTIVE DUTY PAY AND ALLOWANCES. ALSO, MAY THE INDEBTEDNESSES FROM UNLIQUIDATED TRAVEL ADVANCES BE CONSIDERED FOR REMISSION UNDER 10 U.S.C. 4837, OR OTHERWISE.

THE QUESTIONS RAISED STEM FROM OUR DECISION OF NOVEMBER 22, 1971, B 151168, WHEREIN WE HELD THAT OUTSTANDING TRAVEL FUNDS ADVANCED BY FAA TO MEMBERS OF THE ARMED FORCES DETAILED AS SKY MARSHALS COULD BE RECOVERED UNDER 5 U.S.C. 5514 FROM THE RETIRED PAY OF A MILITARY MEMBER BY ADMINISTRATIVE SETOFF.

THE QUESTIONS AS STATED IN COMMITTEE ACTION NO. 461 ARE:

"1. WILL THE COMPTROLLER GENERAL REAFFIRM THE DECISION OF 22 NOVEMBER 1971, B-151168, IF IT IS POINTED OUT THAT THE TRAVEL ADVANCES IN QUESTION WERE TRANSACTIONS SOLELY BETWEEN THE FEDERAL AVIATION AGENCY (FAA) AND THE INDIVIDUALS, THE MILITARY SERVICES OF THE MEMBER IN NO WAY BEING INVOLVED?"

IN OUR DECISION OF NOVEMBER 22, 1971, WE NOTED THAT A MILITARY MEMBER DETAILED TO FAA REMAINED A MEMBER OF THE ARMED FORCES SUBJECT TO RECALL BY THE MILITARY AT ANY TIME AND THAT HIS PAY AND ALLOWANCES ARE SUBJECT TO MILITARY LAWS AND REGULATIONS. ALSO, THAT THE DEPARTMENT OF TRANSPORTATION WAS REQUIRED TO PAY ALL TRAVEL AND PER DIEM COSTS INCIDENT TO THE PERFORMANCE OF DEPARTMENT OF TRANSPORTATION DUTIES BY PERSONNEL DETAILED TO IT IN ACCORDANCE WITH JOINT TRAVEL REGULATIONS IN EFFECT AT THE TIME AND THAT THE TRAVEL ADVANCES ARE TO BE TREATED THE SAME AS TRAVEL ADVANCES TO A MILITARY MEMBER NOT ON DETAIL. IN REACHING OUR CONCLUSION THAT RECOVERY OF THE TRAVEL ADVANCES COULD BE MADE FROM RETIRED PAY, WE TOOK INTO CONSIDERATION THE FACT THAT THE TRAVEL ADVANCES WERE MADE BY FAA DIRECT TO THE MILITARY MEMBER. HOWEVER, WE CONSIDERED THESE PAYMENTS TO BE MADE FOR AND ON BEHALF OF THE MILITARY DEPARTMENT CONCERNED THE SAME AS IF THE TRAVEL ADVANCES WERE MADE TO A MILITARY MEMBER NOT ON DETAIL. SEE IN THIS CONNECTION 5 COMP. GEN. 319 (1925) ALSO INVOLVING PAYMENTS MADE DIRECT TO THE TRAVELER BY THE BORROWING AGENCY, WHEREIN IT WAS HELD THAT THE PAYMENT WAS IN EFFECT A REIMBURSEMENT OF THE APPROPRIATION OF THE DEPARTMENT UNDER WHICH THE EMPLOYEE WAS REGULARLY EMPLOYED. QUESTION NO. 1 IS THEREFORE ANSWERED IN THE AFFIRMATIVE.

"2. IF THE DECISION IS REAFFIRMED, IS IT TO BE CONSIDERED A REVERSAL OF 34 COMP. GEN. 170 (1954) AND B-127814 (29 OCTOBER 1956), AND HENCEFORTH THE FUNDAMENTAL PREREQUISITE OF BOTH INDIVIDUAL AND DEBT BEING UNDER CONTROL OF THE SAME AGENCY WILL NO LONGER BE REQUIRED?"

THE DECISION WAS NOT A REVERSAL OF 34 COMP. GEN. 170 AND B-127814, OCTOBER 29, 1956. THOSE DECISIONS WERE SPECIFICALLY DISCUSSED THEREIN, AND IT WAS CONCLUDED THAT NO REASONABLE BASIS EXISTED TO EXCLUDE FROM THE APPLICATION OF 5 U.S.C. 5514 THE INDIVIDUALS HERE INVOLVED WHO WERE DETAILED TO FAA FOR SKY MARSHAL DUTY. THE CITED DECISIONS CONCERN REGULAR EMPLOYEES OF AN AGENCY AND THEIR LIABILITIES INCURRED IN CIRCUMSTANCES ENTIRELY UNRELATED TO THEIR CURRENT EMPLOYMENT AND EMPLOYER. AS STATED IN RESPONSE TO QUESTION NO. 1, THE INDIVIDUALS HERE INVOLVED WERE CONSIDERED TO HAVE RECEIVED ERRONEOUS PAYMENTS MADE FOR AND ON BEHALF OF THE MILITARY DEPARTMENT CONCERNED THE SAME AS IF THE PAYMENTS WERE MADE TO A MILITARY MEMBER NOT ON DETAIL. QUESTION NO. 2 IS THEREFORE ANSWERED IN THE NEGATIVE.

"3. IF THE DECISION ABOVE IS REAFFIRMED, IS IT ALSO APPLICABLE TO ACTIVE DUTY PAY ENTITLEMENT?"

5 U.S.C. 5514 PROVIDES THAT WHERE THE HEAD OF THE GOVERNMENT AGENCY CONCERNED OR HIS DESIGNEE DETERMINES THAT AN EMPLOYEE OR MEMBER OF THE ARMED FORCES IS INDEBTED TO THE UNITED STATES BECAUSE OF AN ERRONEOUS PAYMENT MADE BY AN AGENCY TO OR ON BEHALF OF THE INDIVIDUAL, THE AMOUNT OF THE INDEBTEDNESS MAY BE COLLECTED BY DEDUCTION FROM THE BASIC PAY, ACTIVE DUTY PAY, SPECIAL PAY, OR INCENTIVE PAY. SEE ALSO 37 U.S.C. 1007(C). THUS, THE ACTIVE DUTY PAY OF A MILITARY MEMBER WOULD BE SUBJECT TO SETOFF TO LIQUIDATE THE ERRONEOUS PAYMENTS. YOUR THIRD QUESTION IS ANSWERED IN THE AFFIRMATIVE.

"4. IF THE DECISION IS REAFFIRMED, IS THE DEBT THE PROPER SUBJECT OF REMISSION ACTION UNDER AUTHORITY OF 10 U.S.C. 4837, 6161, AND 9837, OR OTHERWISE?"

SECTION 4837(D) OF TITLE 10, U.S.C. IS APPLICABLE TO THE ARMY AND PROVIDES:

"(D) IF HE CONSIDERS IT IN THE BEST INTEREST OF THE UNITED STATES, THE SECRETARY MAY HAVE REMITTED OR CANCELLED ANY PART OF AN ENLISTED MEMBER'S INDEBTEDNESS TO THE UNITED STATES OR ANY OF ITS INSTRUMENTALITIES REMAINING UNPAID BEFORE, OR AT THE TIME OF, THAT MEMBER'S HONORABLE DISCHARGE."

SIMILAR PROVISIONS ARE CONTAINED IN 10 U.S.C. 6161 (NAVY) AND 9837(D) (AIR FORCE).

WE SEE NO REASON WHY THE INDEBTEDNESSES HERE INVOLVED MAY NOT BE CONSIDERED FOR REMISSION OR CANCELLATION UNDER THE ABOVE AND SIMILAR PROVISIONS OF LAW. SEE 38 COMP. GEN. 788 (1959).