B-163159, JANUARY 24, 1968, 47 COMP. GEN. 400

B-163159: Jan 24, 1968

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COMPENSATION - WITHHOLDING - COMMISSION OF CRIMINAL OFFENSES THE RETAINER PAY OF A FLEET RESERVIST ARRESTED AND INDICATED FOR MAIL THEFT WHILE EMPLOYED AS A CAREER SUBSTITUTE POSTAL CARRIER IS NOT SUBJECT TO ADMINISTRATIVE SET-OFF UNDER 5 U.S.C. 5511. THE GENERAL RULE BEING THAT RETIRED OR RETAINER PAY IS NOT SUBJECT TO ADMINISTRATIVE SET-OFF WITHOUT THE DEBTOR'S CONSENT AND. SECTION 5511 IS APPLICABLE ONLY TO THE FINAL PAY DUE THE FORMER MEMBER IN HIS CIVILIAN POSITION. 1968: FURTHER REFERENCE IS MADE TO LETTER DATED DECEMBER 21. IT IS REPORTED THAT AFTER A MEMBER OF THE UNIFORMED SERVICES HAD BEEN TRANSFERRED TO THE FLEET RESERVE AND BECAME ENTITLED TO RECEIVE RETAINER PAY HE WAS APPOINTED IN THE POSTAL SERVICE AS A CAREER SUBSTITUTE CARRIER.

B-163159, JANUARY 24, 1968, 47 COMP. GEN. 400

COMPENSATION - WITHHOLDING - COMMISSION OF CRIMINAL OFFENSES THE RETAINER PAY OF A FLEET RESERVIST ARRESTED AND INDICATED FOR MAIL THEFT WHILE EMPLOYED AS A CAREER SUBSTITUTE POSTAL CARRIER IS NOT SUBJECT TO ADMINISTRATIVE SET-OFF UNDER 5 U.S.C. 5511, WHICH AUTHORIZES THE INVOLUNTARY WITHHOLDING OF A CIVILIAN EMPLOYEE'S SALARY UPON REMOVAL FOR CAUSE, THE GENERAL RULE BEING THAT RETIRED OR RETAINER PAY IS NOT SUBJECT TO ADMINISTRATIVE SET-OFF WITHOUT THE DEBTOR'S CONSENT AND, THEREFORE, SECTION 5511 IS APPLICABLE ONLY TO THE FINAL PAY DUE THE FORMER MEMBER IN HIS CIVILIAN POSITION.

TO THE SECRETARY OF THE NAVY, JANUARY 24, 1968:

FURTHER REFERENCE IS MADE TO LETTER DATED DECEMBER 21, 1967, FROM THE ASSISTANT SECRETARY OF THE NAVY (FINANCIAL MANAGEMENT) REQUESTING A DECISION ON THE QUESTION WHETHER UNRECOVERED GOVERNMENT LOSSES CHARGEABLE TO A CAREER SUBSTITUTE CARRIER IN THE POSTAL SERVICE MAY BE INVOLUNTARILY COLLECTED FROM HIS RETAINER PAY ACCOUNT. THE REQUEST HAS BEEN ASSIGNED NO. SS-N-975 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS REPORTED THAT AFTER A MEMBER OF THE UNIFORMED SERVICES HAD BEEN TRANSFERRED TO THE FLEET RESERVE AND BECAME ENTITLED TO RECEIVE RETAINER PAY HE WAS APPOINTED IN THE POSTAL SERVICE AS A CAREER SUBSTITUTE CARRIER; THAT WHILE SO EMPLOYED HE WAS ARRESTED AND INDICTED FOR MAIL THEFT; THAT POSTAL INSPECTORS CONCLUDED THAT HE WAS RESPONSIBLE FOR MANY GOVERNMENT LOSSES IN CONNECTION WITH THE DISAPPEARANCE OF SMALL INSURED PARCELS CONTAINING VALUABLE COINS BELIEVED TO HAVE BEEN TAKEN BY HIM; THAT THE POST OFFICE DEPARTMENT HAS ADVISED THAT GOVERNMENT LOSSES IN THE AMOUNT OF $9,561.29 ARE CHARGEABLE TO HIM, OF WHICH AMOUNT $2,620.90 IS UNRECOVERED; AND THAT THE U.S. NAVY FINANCE CENTER, CLEVELAND, OHIO, HAS BEEN REQUESTED BY THE POST OFFICE DEPARTMENT TO COLLECT THE LATTER AMOUNT FROM HIS RETAINER PAY ACCOUNT UNDER THE AUTHORITY OF 5 U.S.C. 5511.

IT IS STATED THAT IT IS THE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY THAT THE CITED SECTION RELATES TO THE ACCRUED CIVILIAN SALARY OF A CIVIL EMPLOYEE WHO IS REMOVED FROM HIS CIVILIAN OFFICE FOR CAUSE AND THAT IT DOES NOT AFFORD ANY AUTHORITY FOR AN INVOLUNTARY WITHHOLDING FROM THE MILITARY RETIRED OR RETAINER PAY OF A MEMBER.

TITLE 5, SECTION 5511, U.S. CODE, PROVIDES AS FOLLOWS:

(A) EXCEPT AS PROVIDED BY SUBSECTION (B) OF THIS SECTION, THE EARNED PAY OF AN EMPLOYEE REMOVED FOR CAUSE MAY NOT BE WITHHELD OR CONFISCATED.

(B) IF AN EMPLOYEE INDEBTED TO THE UNITED STATES IS REMOVED FOR CAUSE, THE PAY ACCRUING TO THE EMPLOYEE SHALL BE APPLIED IN WHOLE OR IN PART TO THE SATISFACTION OF ANY CLAIM OR INDEBTEDNESS DUE THE UNITED STATES.

THE SOURCE STATUTE OF THAT SECTION (ACT OF FEBRUARY 24, 1931, CH. 287, 46 STAT. 1415), WAS ENACTED TO OVERCOME CERTAIN DECISIONS OF THE COMPTROLLER GENERAL HOLDING THAT BECAUSE OF A VIOLATION OF THE OATH OF OFFICE NO PAY ACCRUED BETWEEN THE DATE OF LAST PAYMENT AND REMOVAL WHERE CIVIL EMPLOYEES WERE REMOVED FOR SUCH CAUSES AS THIEVING AND EMBEZZLING. THE OBVIOUS PURPOSE OF THE PROVISO IN THE 1931 ACT, NOW SUBSECTION 5511 (B), WAS TO PRESERVE THE COMMON LAW RIGHT OF SET-OFF WHICH MIGHT OTHERWISE BE CONSTRUED TO HAVE BEEN FORFEITED BY THE FIRST PART OF THE STATUTE.

SECTION 7 (A) OF THE CODIFICATION ACT OF SEPTEMBER 6, 1966, PUBLIC LAW 89 -554, 80 STAT. 631, PROVIDES THAT IT WAS THE LEGISLATIVE PURPOSE IN ENACTING SECTIONS 1-6 OF THE ACT--- SECTION 5511 IS INCLUDED THEREIN--- TO RESTATE, WITHOUT SUBSTANTIVE CHANGE, THE LAWS REPLACED BY THOSE SECTIONS ON THE EFFECTIVE DATE OF THE ACT. THERE IS NOTHING IN THE LEGISLATIVE HISTORY RELATING TO SECTION 5511 WHICH INDICATES ANY INTENTION OTHER THAN THAT STATED IN SECTION 7 (A), THE MINOR CHANGES IN WORDING HAVING BEEN MADE TO CONFORM WITH THE DEFINITIONS APPLICABLE AND THE STYLE OF THE REVISED TITLE 5. SEE HISTORICAL AND REVISION NOTES TO SECTION 5511 CONTAINED IN SUPP. II, U.S. CODE, 1964 ED.

AS A GENERAL RULE, RETIRED OR RETAINER PAY IS NOT SUBJECT TO ADMINISTRATIVE SET-OFF WITHOUT THE DEBTOR'S CONSENT. SEE BAKER V MCCARL, 24 F.2D 897 (1928). WHERE CONGRESS HAS INTENDED THAT CURRENT PAY BE SUBJECT TO INVOLUNTARY WITHHOLDING BY THE GOVERNMENT IN PAYMENT OF AN INDEBTEDNESS, IT HAS PROVIDED SPECIFIC STATUTORY AUTHORITY FOR THAT PURPOSE. SEE 5 U.S.C. 5512, 5513 AND 5514, NONE OF WHICH SECTIONS ARE APPLICABLE TO THE INVOLVED CASE.

IT IS OUR VIEW THAT 5 U.S.C. 5511 IS APPLICABLE ONLY TO THE FINAL PAY DUE THE FORMER MEMBER IN HIS CIVILIAN POSITION. ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, WE FIND NO LEGAL BASIS FOR WITHHOLDING THE RETAINER PAY AS REQUESTED BY THE POST OFFICE DEPARTMENT.