B-168579, FEB. 17, 1970

B-168579: Feb 17, 1970

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OVERPAYMENTS DECISION TO SECRETARY OF THE ARMY CONCERNING COLLECTION OF OVERPAYMENTS OF RETIRED PAY RESULTING FROM ADMINISTRATIVE ERROR WHERE PRIVATE RELIEF BILLS HAVE BEEN INTRODUCED. SECRETARY: FURTHER REFERENCE IS MADE TO LETTER OF DECEMBER 2. WHERE PRIVATE RELIEF BILLS HAVE BEEN INTRODUCED AND ARE PENDING BEFORE THE CONGRESS OF THE UNITED STATES. THE REQUEST WAS ASSIGNED SUBMISSION NO. REPAYMENT IS ESTABLISHED BY MONTHLY INSTALLMENTS FROM RETIRED PAY. IT IS STATED THAT PRIVATE RELIEF BILLS ARE THEN INTRODUCED ON BEHALF OF THE RETIRED MEMBER FOR RELIEF OF LIABILITY FOR REPAYMENT. IF THE BILL IS NOT ENACTED INTO LAW. A NEW BILL IS INTRODUCED IN THE NEXT CONGRESS. THE STATED POLICY OF THE DEPARTMENT OF THE ARMY IS NOT TO SUSPEND OR TERMINATE COLLECTION ACTION FROM RETIRED PAY UNTIL THE BILL IS PASSED INTO LAW IN VIEW OF THE REQUIREMENTS CONTAINED IN THE CODE OF FEDERAL REGULATIONS.

B-168579, FEB. 17, 1970

MILITARY--RETIRED PAY--OVERPAYMENTS DECISION TO SECRETARY OF THE ARMY CONCERNING COLLECTION OF OVERPAYMENTS OF RETIRED PAY RESULTING FROM ADMINISTRATIVE ERROR WHERE PRIVATE RELIEF BILLS HAVE BEEN INTRODUCED. SUSPENSION OF COLLECTION ACTION IN "ALL CASES" WHERE A PRIVATE RELIEF BILL HAS BEEN INTRODUCED TO RELIEVE A MEMBER OF THE UNIFORMED SERVICES FOR REFUND OF AN OVERPAYMENT OF RETIRED PAY DUE TO ADMINISTRATIVE ERROR WOULD NOT BE IN THE BEST INTEREST OF THE GOVERNMENT. WHERE A PRIVATE RELIEF BILL HAS NOT BEEN ACTED ON IN A PARTICULAR CONGRESS, THE REINTRODUCTION OF THE BILL IN THE SUCCEEDING CONGRESS SHOULD NOT IN ITSELF FORM A BASIS OF CONTINUING SUSPENSION OF COLLECTION ACTION.

TO MR. SECRETARY:

FURTHER REFERENCE IS MADE TO LETTER OF DECEMBER 2, 1969, FROM THE DEPUTY ASSISTANT SECRETARY, MANPOWER AND RESERVE AFFAIRS, REQUESTING A DECISION ON SEVERAL QUESTIONS CONCERNING COLLECTION ACTION ON INDEBTEDNESS OF RETIRED MEMBERS ARISING FROM OVERPAYMENTS OF RETIRED PAY RESULTING FROM ADMINISTRATIVE ERROR, WHERE PRIVATE RELIEF BILLS HAVE BEEN INTRODUCED AND ARE PENDING BEFORE THE CONGRESS OF THE UNITED STATES. THE REQUEST WAS ASSIGNED SUBMISSION NO. SS-A-1049 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE DEPUTY ASSISTANT SECRETARY STATES THAT GENERALLY OVERPAYMENTS OF RETIRED PAY INVOLVE SUBSTANTIAL AMOUNTS AND THAT UNDER 5 U.S.C. 5514, REPAYMENT IS ESTABLISHED BY MONTHLY INSTALLMENTS FROM RETIRED PAY. IT IS STATED THAT PRIVATE RELIEF BILLS ARE THEN INTRODUCED ON BEHALF OF THE RETIRED MEMBER FOR RELIEF OF LIABILITY FOR REPAYMENT. IN SOME CASES, IF THE BILL IS NOT ENACTED INTO LAW, A NEW BILL IS INTRODUCED IN THE NEXT CONGRESS.

THE STATED POLICY OF THE DEPARTMENT OF THE ARMY IS NOT TO SUSPEND OR TERMINATE COLLECTION ACTION FROM RETIRED PAY UNTIL THE BILL IS PASSED INTO LAW IN VIEW OF THE REQUIREMENTS CONTAINED IN THE CODE OF FEDERAL REGULATIONS, 4 CFR 102.3, RELATIVE TO DEDUCTION FROM CURRENT PAY. THE LETTER REFERS TO THE ACTION TAKEN BY US IN B-161309, JUNE 13, 1967, AND B- 161734, JULY 7, 1967, AND FEBRUARY 9, 1968, WHEREIN WE ADVISED THE FINANCE CENTER, U.S. ARMY, IN RESPONSE TO A REQUEST FROM THAT CENTER, THAT WE WOULD HAVE NO OBJECTION TO SUSPENDING COLLECTION ACTION IN THOSE CASES-- WHICH INVOLVED OVERPAYMENTS OF RETIRED PAY- UNTIL THE CLOSE OF THE THEN CURRENT SESSION OF THE CONGRESS.

AS POINTED OUT IN THE LETTER, 4 CFR 102.3 REQUIRES ADMINISTRATIVE COLLECTION BY OFFSET FROM PERSONS RECEIVING PAY OR COMPENSATION FROM THE FEDERAL GOVERNMENT. SECTION 104.2 OF THE SAME REGULATION PERMITS THE TEMPORARY SUSPENSION OF COLLECTION ACTION IF THE DEBTOR IS MISSING OR IF HE OWNS NO SUBSTANTIAL EQUITY IN REALTY AND IS UNABLE TO MAKE PAYMENTS OR EFFECT A COMPROMISE THEREOF AT THE TIME BUT HIS FUTURE PROSPECTS JUSTIFY RETENTION OF THE CLAIM FOR PERIODIC REVIEW.

THE DEPUTY ASSISTANT SECRETARY STATES THAT IN THE ABSENCE OF SPECIFIC STANDARDS TO COVER THESE TYPES OF CASES, WHERE MEANS OF COLLECTION IS AVAILABLE THROUGH DEDUCTIONS FROM RETIRED PAY, THE FOLLOWING QUESTIONS ARE PRESENTED:

"A. MAY THE SUSPENSION OF COLLECTION FROM RETIRED PAY BE TAKEN ADMINISTRATIVELY IN ALL CASES UPON PROPER NOTIFICATION THAT A RELIEF BILL HAS IN FACT BEEN INTRODUCED ON BEHALF OF A MEMBER?

"B. IF NOT, SHOULD PERMISSION TO SUSPEND COLLECTION BE REQUESTED THROUGH THE GENERAL ACCOUNTING OFFICE ON AN INDIVIDUAL CASE BASIS?

"C. IF NOT ACTED UPON IN ONE CONGRESS, SHOULD COLLECTION BE SUSPENDED EACH TIME A RELIEF BILL IS INTRODUCED, UNTIL ENACTED INTO LAW?"

THE CITED AND RELATED REGULATIONS CONTAINED IN CHAPTER II, TITLE 4, CODE OF FEDERAL REGULATIONS, WHICH IMPLEMENT THE AUTHORITY CONTAINED IN 31 U.S.C. 952 (SUPP. IV), AS ENACTED BY THE FEDERAL CLAIMS COLLECTION ACT OF 1966, 80 STAT. 308, PROVIDE STANDARDS FOR THE ADMINISTRATIVE AGENCIES OF THE GOVERNMENT IN THE COLLECTION OF CLAIMS, THE COMPROMISE OF SUCH CLAIMS WHEN APPROPRIATE UNDER THE PRESCRIBED STANDARDS, AND THE SUSPENSION OR TERMINATION OF COLLECTION ACTION UNDER THE CONDITIONS STATED THEREIN. THE FEDERAL CLAIMS COLLECTION ACT OF 1966 PLACES THE RESPONSIBILITY IN THE ADMINISTRATIVE AGENCIES FOR COLLECTING DEBTS DETERMINED TO BE DUE THE UNITED STATES WHICH ARISE AS A RESULT OF THEIR ACTIVITIES. SEE SECTION 54.1, CHAPTER 8, TITLE 4, GENERAL ACCOUNTING OFFICE POLICY AND PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES. HENCE, JURISDICTION OVERAN INDEBTEDNESS NOT REFERRED HERE FOR COLLECTION RESTS PRIMARILY WITH THE DEPARTMENT OF THE ARMY.

IT HAS BEEN THE POLICY OF THIS OFFICE GENERALLY TO SUSPEND COLLECTION ACTION ON DEBTS DUE THE GOVERNMENT UPON THE REQUEST OF A MEMBER OF CONGRESS PENDING THE EARLY INTRODUCTION OF PRIVATE RELIEF LEGISLATION AND ITS CONSIDERATION DURING THE CURRENT SESSION OF THE CONGRESS. HOWEVER, IF THE BILL IS NOT PASSED DURING THAT CONGRESS, WE ARE REQUIRED, IN ORDER TO PROTECT THE INTEREST OF THE GOVERNMENT, TO RESUME COLLECTION PROCEEDINGS.

WITH RESPECT TO QUESTION A, IN THE ABSENCE OF A SPECIFIC REQUEST FROM THE SPONSOR OF THE PRIVATE RELIEF BILL OR AN APPROPRIATE CONGRESSIONAL COMMITTEE AND AN ADMINISTRATIVE DETERMINATION THAT THE CIRCUMSTANCES JUSTIFY THE SUSPENSION OF COLLECTION, WE DO NOT BELIEVE THAT IT WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT FOR THE ADMINISTRATIVE AGENCY TO SUSPEND COLLECTION ACTION IN "ALL CASES" WHERE A RELIEF BILL HAS BEEN INTRODUCED.

IN THE LIGHT OF THE ANSWER TO QUESTION A AND SINCE JURISDICTION OVER AN INDEBTEDNESS RESTS PRIMARILY WITH THE AGENCY CONCERNED, QUESTION B IS ANSWERED IN THE NEGATIVE.

WHERE NO ACTION HAS BEEN TAKEN BY THE CONGRESS IN THE CURRENT SESSION ON A PARTICULAR RELIEF BILL, THE REPEATED INTRODUCTION OF THE SAME BILL IN FUTURE CONGRESSES SHOULD NOT IN ITSELF FORM A BASIS FOR CONTINUING SUSPENSION OF COLLECTION, SINCE THE INTEREST OF THE GOVERNMENT REQUIRES THAT THE RIGHT OF ACTION AGAINST DISBURSING OFFICERS AND THEIR SURETIES NOT BE LOST BY INACTION. SEE 31 U.S.C. 82I. QUESTION C IS ANSWERED IN THE NEGATIVE.