B-39173, MAY 6, 1944, 23 COMP. GEN. 850

B-39173: May 6, 1944

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N AND X) MADE BY AN ARMY ENLISTED MAN FROM HIS PAY ARE NOT AMOUNTS "LEGALLY AUTHORIZED TO BE WITHHELD" WITHIN THE MEANING OF THE ACT OF MAY 22. - EXCEPT TO THE EXTENT THAT SUCH AMOUNT COULD HAVE BEEN SO APPLIED MONTH BY MONTH HAD IT THEN BEEN PAYABLE INSTEAD OF BEING WITHHELD FOR SUCH ALLOTMENTS. IRRESPECTIVE OF WHETHER THE DEBTOR IS STILL IN THE SERVICE OR HAS BEEN DISCHARGED. TO BE MADE FROM THE CURRENT PAY OF AN ARMY ENLISTED MAN ON ACCOUNT OF AN INDEBTEDNESS DUE THE UNITED STATES ARE NOT MANDATORY BUT PERMISSIVE. IT IS WITHIN THE DISCRETION OF THE SECRETARY OF WAR. BE REQUIRED TO DISCONTINUE SUCH ALLOTMENTS IN ORDER TO RECEIVE SOME CASH WHILE HIS INDEBTEDNESS WAS BEING RECOUPED. AS FOLLOWS: THERE IS TRANSMITTED HEREWITH MEMORANDUM OF THE JUDGE ADVOCATE GENERAL OF THE ARMY.

B-39173, MAY 6, 1944, 23 COMP. GEN. 850

PAY - ALLOTMENTS - ARMY ENLISTED MEN - ACT OF MAY 22, 1928, AS AMENDED VOLUNTARY ALLOTMENTS ( CLASSES E, B, D, N AND X) MADE BY AN ARMY ENLISTED MAN FROM HIS PAY ARE NOT AMOUNTS "LEGALLY AUTHORIZED TO BE WITHHELD" WITHIN THE MEANING OF THE ACT OF MAY 22, 1928, AS AMENDED, EXEMPTING ONE- THIRD OF AN ENLISTED MAN'S ACTUAL PAY FROM DEDUCTIONS FOR DEBTS DUE THE UNITED STATES, AND, THEREFORE, VOLUNTARY ALLOTMENTS CURRENTLY MADE FROM AN ENLISTED MAN'S PAY SHOULD BE CONSIDERED AS PART OF THE ONE-THIRD "ACTUAL PAY" NOT SUBJECT TO DEDUCTION ON ACCOUNT OF SUCH INDEBTEDNESS SO LONG AS HE REMAINS IN THE SERVICE. UNDER THE ACT OF MAY 22, 1928, AS AMENDED, EXEMPTING ONE-THIRD OF AN ARMY ENLISTED MAN'S ACTUAL PAY FROM DEDUCTION FOR DEBTS DUE THE UNITED STATES, THE UNAPPLIED AMOUNTS OF VOLUNTARY ALLOTMENTS ( CLASSES E, D, N AND X, BUT NOT CLASS B--- WAR SAVINGS BONDS) OF AN ENLISTED MAN, WITHHELD ON PAY ROLLS BUT NOT PAID TO THE ALLOTTEES, RETAIN THE CHARACTER OF PAY DUE THE ENLISTED MAN, AND, AS SUCH, MAY NOT BE APPLIED AGAINST HIS DEBTS WHILE HE REMAINS IN THE SERVICE--- INCLUDING PAYMENT ON HIS FINAL STATEMENT AT TIME OF DISCHARGE--- EXCEPT TO THE EXTENT THAT SUCH AMOUNT COULD HAVE BEEN SO APPLIED MONTH BY MONTH HAD IT THEN BEEN PAYABLE INSTEAD OF BEING WITHHELD FOR SUCH ALLOTMENTS. UNDER THE ACT OF MAY 22, 1928, AS AMENDED, EXEMPTING ONE-THIRD OF AN ARMY ENLISTED MAN'S ACTUAL PAY FROM DEDUCTIONS FOR DEBTS DUE THE UNITED STATES, DEDUCTIONS FROM AN ENLISTED MAN'S PAY FOR THE PURCHASE OF UNITED STATES WAR SAVINGS BONDS, PREVIOUSLY DEDUCTED BUT NOT APPLIED TOWARD THE PURCHASE OF SUCH BONDS, LOSE THEIR CHARACTER OF PAY AND SHOULD BE REGARDED AS AN AMOUNT IN THE HANDS OF THE GOVERNMENT PAYABLE TO THE MAN, AND, THEREFORE, THE WHOLE AMOUNT OF SUCH UNAPPLIED DEDUCTIONS MAY BE APPLIED IN SATISFACTION OF DEBTS DUE THE UNITED STATES UNDER THE GOVERNMENT'S GENERAL RIGHT OF SET-OFF, IRRESPECTIVE OF WHETHER THE DEBTOR IS STILL IN THE SERVICE OR HAS BEEN DISCHARGED. AS COLLECTIONS AUTHORIZED BY THE ACT OF MAY 22, 1928, AS AMENDED, TO BE MADE FROM THE CURRENT PAY OF AN ARMY ENLISTED MAN ON ACCOUNT OF AN INDEBTEDNESS DUE THE UNITED STATES ARE NOT MANDATORY BUT PERMISSIVE, IT IS WITHIN THE DISCRETION OF THE SECRETARY OF WAR, UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, TO EXEMPT THE AMOUNT OF CERTAIN VOLUNTARY ALLOTMENTS, SUCH AS THOSE FOR THE PAYMENT OF INSURANCE PREMIUMS, FROM DEDUCTIONS FOR DEBT, IN ADDITION TO THE ONE-THIRD PAY EXEMPTED FROM DEDUCTION BY SAID ACT, SO THAT THE ENLISTED MAN WOULD NOT, OF NECESSITY, BE REQUIRED TO DISCONTINUE SUCH ALLOTMENTS IN ORDER TO RECEIVE SOME CASH WHILE HIS INDEBTEDNESS WAS BEING RECOUPED. THE ACT OF MAY 22, 1928, AS AMENDED, EXEMPTING ONE-THIRD OF AN ARMY ENLISTED MAN'S PAY FROM DEDUCTIONS FOR DEBTS DUE THE UNITED STATES, DOES NOT PREVENT THE APPLICATION OF THE WHOLE AMOUNT OF UNPAID ALLOTMENTS OTHERWISE DUE A FORMER ENLISTED MAN AGAINST HIS INDEBTEDNESS TO THE UNITED STATES UNDER THE GOVERNMENT'S GENERAL RIGHT OF SET-OFF.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, MAY 6, 1944:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF DECEMBER 27, 1943, AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH MEMORANDUM OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, DATED NOVEMBER 26, 1943, CONTAINING SELF EXPLANATORY OPINION WITH REGARD TO ALLOTMENTS OF ENLISTED PERSONS, TOGETHER WITH PHOTOSTAT COPY OF THE MEMORANDUM OF THE ASSISTANT CHIEF OF MILITARY AFFAIRS DIVISION, OFFICE OF THE JUDGE ADVOCATE GENERAL, SETTING FORTH IN MORE DETAIL THE BASIS ON WHICH SUCH OPINION HAS BEEN GIVEN.

THESE PAPERS ARE RESPECTFULLY REFERRED WITH REQUEST FOR DECISION ON THE FOLLOWING POINTS:

A. WHETHER OR NOT CLASS E, B, D, N OR X ALLOTMENTS MAY BE CONSIDERED AS A PART OF THE ONE-THIRD "ACTUAL PAY" GUARANTEED THE ENLISTED PERSON BY THE SECOND PROVISO OF THE ACT OF MAY 22, 1928 (45 STAT. 698), AS AMENDED BY ACT OF JUNE 26, 1934 (48 STAT. 1222; 10 U.S.C. 875A).

B. WHETHER UNAPPLIED OR UNPAID AMOUNTS PERTAINING TO CLASS E, B, D, N OR X ALLOTMENTS MAY BE APPLIED TO OFFSET INDEBTEDNESS TO THE UNITED STATES AND, IF SO, TO WHAT EXTENT.

THE DIFFERENT CLASSES OF ALLOTMENTS INVOLVED ARE DESCRIBED IN THE MEMORANDUM OF THE ASSISTANT CHIEF OF MILITARY AFFAIRS DIVISION, OFFICE OF THE JUDGE ADVOCATE GENERAL, TRANSMITTED WITH YOUR LETTER, AS FOLLOWS:

CLASS E--- ALLOTMENTS, OTHER THAN CLASS X, MADE UNDER THE PROVISIONS OF ARMY REGULATIONS 35-5520, 4 MARCH 1941, AS CHANGED, (A) WHEREVER THE ALLOTTER IS SERVING, FOR THE SUPPORT OF THE ALLOTTER'S FAMILY OR DEPENDENT RELATIVES, OR FOR PAYMENT OF PREMIUMS ON COMMERCIAL LIFE INSURANCE ON THE LIFE OF THE ALLOTTER, AND

(B) WHERE THE ALLOTTER IS SERVING OR IS ABOUT TO SERVE OUTSIDE THE LIMITS OF THE UNITED STATES OR IN ALASKA, FOR THE ALLOTTER'S SAVINGS (SEE PAR. 3A, 5, 28 AND 29, ARMY REGULATIONS 35-5520, AS CHANGED, SUPRA).

CLASS X--- ALLOTMENTS, WHILE THE ALLOTTER IS ON DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, FOR THE SUPPORT OF HIS DEPENDENTS, WHERE SUCH DEPENDENTS RESIDE IN A FOREIGN COUNTRY OTHER THAN THAT WHEREIN THE ALLOTTER IS ON DUTY AND IN WHICH AN ARMY DISBURSING OFFICER IS STATIONED, WHEN PAYMENTS THEREOF ARE NOT PROHIBITED BY TREASURY DEPARTMENT REGULATIONS (SEE PAR 29, ARMY REGULATIONS 35-5520, SUPRA, AS CHANGED BY CHANGES NO. 3, 22 DECEMBER 1942).

CLASS B--- ALLOTMENTS TO PURCHASE UNITED STATES WAR SAVINGS BONDS, AS AUTHORIZED BY THE PROVISIONS OF CIRCULAR NO. 44, WAR DEPARTMENT 1943, AS CHANGED BY CIRCULARS NO. 56, 62, 78, 90, 120, 135, 152 AND 226, WAR DEPARTMENT 1943.

CLASS D--- ALLOTMENTS TO PAY PREMIUMS ON UNITED STATES GOVERNMENT LIFE INSURANCE (CONVERTED INSURANCE) (SEE PAR. 3B, AR 35-5520, SUPRA, AS CHANGED BY CHANGES NO. 1, 12 OCT. 1942; AR 600-100, 31 AUGUST 1942, AS CHANGED; CIRCULAR NO. 212, WAR DEPARTMENT 1942).

CLASS N--- ALLOTMENTS TO PAY PREMIUMS ON NATIONAL SERVICE LIFE INSURANCE (SEE PAR. 3C, AR 35-5520), SUPRA, AS CHANGED BY CHANGES NO. 1, SUPRA; CIRCULAR NO. 212, WAR DEPARTMENT 1942).

SECTION 16 OF THE ACT OF MARCH 2, 1899, 30 STAT. 981, AS AMENDED BY THE ACT OF MAY 16, 1938, 52 STAT. 354, 10 U.S.C. 894, PROVIDES IN PERTINENT PART:

THE SECRETARY OF WAR IS AUTHORIZED TO PERMIT OFFICERS, MEMBERS OF THE ARMY NURSE CORPS, CONTRACT SURGEONS, AND ENLISTED MEN OF THE ARMY, ACTIVE OR RETIRED, AND ALSO PERMANENT CIVILIAN EMPLOYEES ON DUTY IN ALASKA OR OUTSIDE OF THE CONTINENTAL LIMITS OF THE UNITED STATES, TO MAKE ALLOTMENTS FROM THEIR PAY, UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, FOR THE SUPPORT OF THEIR FAMILIES OR RELATIVES OR FOR OTHER PROPER PURPOSES WHICH IN HIS DISCRETION WARRANT SUCH ACTION. * * * SEE, ALSO, SECTION 301 OF THE WORLD WAR VETERANS' ACT, 1924, AS AMENDED, 38 U.S.C. 512, AND SECTION 602 (M) OF THE ACT OF OCTOBER 8, 1940, 54 STAT. 1011, 38 U.S.C. 802 (M), WHICH PROVIDED THAT PREMIUMS ON GOVERNMENT LIFE INSURANCE AND NATIONAL SERVICE LIFE INSURANCE MAY BE DEDUCTED FROM THE ACTIVE SERVICE PAY OF THE INSURED, AT HIS ELECTION.

THE ACT OF MAY 22, 1928, 45 STAT. 698, AS AMENDED BY THE ACT OF JUNE 26, 1934, 48 STAT. 1222, 10 U.S.C. 875A, PROVIDES:

UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR SHALL PRESCRIBE, WHEN IT HAS BEEN ADMINISTRATIVELY ASCERTAINED THAT AN ENLISTED MAN OF THE ARMY IS INDEBTED TO THE UNITED STATES OR ANY OF ITS INSTRUMENTALITIES, THE AMOUNT OF SUCH INDEBTEDNESS MAY BE COLLECTED IN MONTHLY INSTALLMENTS BY DEDUCTION FROM HIS PAY ON CURRENT PAY ROLLS: PROVIDED, THAT THE AGGREGATE SUM OF SUCH DEDUCTIONS FOR ANY MONTH SHALL NOT EXCEED TWO-THIRDS OF THE SOLDIER'S RATE OF PAY FOR THAT MONTH: AND PROVIDED FURTHER, THAT WHENEVER ANY PART OF THE PAY OF A SOLDIER FOR A CERTAIN MONTH SHALL HAVE BEEN LEGALLY FORFEITED BY SENTENCE OF COURT MARTIAL, OR OTHERWISE LEGALLY AUTHORIZED TO BE WITHHELD, THEN NO DEDUCTION UNDER THIS SECTION SHALL BE SO APPLIED AS TO REDUCE THE ACTUAL PAY RECEIVED BY THE SOLDIER FOR THAT MONTH BELOW ONE- THIRD OF HIS AUTHORIZED RATE OF PAY THEREFOR: AND PROVIDED FURTHER, THAT THE SECRETARY OF WAR MAY CAUSE TO BE REMITTED AND CANCELED ANY PART OF SUCH INDEBTEDNESS REMAINING UNPAID EITHER ON HONORABLE DISCHARGE OF THE ENLISTED MAN FROM THE SERVICE OR PRIOR THERETO WHEN IN HIS OPINION THE INTERESTS OF THE GOVERNMENT ARE BEST SERVED BY SUCH ACTION: AND PROVIDED FURTHER, THAT NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PREVENT COLLECTIONS OF SUCH INDEBTEDNESS ON FINAL STATEMENTS FROM PAY, IN THE PROPORTIONS HEREINBEFORE INDICATED, OR FROM CLOTHING ALLOWANCE SAVINGS.

THE CONCLUSIONS OF THE JUDGE ADVOCATE GENERAL RESPECTING THE MATTER ARE SET FORTH IN HIS MEMORANDUM OF NOVEMBER 26, 1943, TO THE FISCAL DIRECTOR, ARMY SERVICE FORCES, AS FOLLOWS:

A. IT IS THE OPINION OF THIS OFFICE THAT THE AMOUNTS OF CLASS E, X, B, D, AND N ALLOTMENTS, RESPECTIVELY, ARE NOT AMOUNTS "OTHERWISE LEGALLY AUTHORIZED TO BE WITHHELD" WITHIN THE MEANING OF THOSE WORDS AS USED IN THE SECOND PROVISO OF THE ACT OF 22 MAY 1928 (45 STAT. 698), AS AMENDED, AND, THEREFORE, MAY BE CONSIDERED AS PART OF THE ONE-THIRD OF "ACTUAL PAY" WHICH, UNDER THE PROVISIONS OF THE MENTIONED ACT, MAY NOT BE DEDUCTED FROM THE PAY OF AN ENLISTED PERSON AND CREDITED AGAINST HIS ADMINISTRATIVELY DETERMINED INDEBTEDNESS.

B. UPON THE ASSUMPTION THAT THE WORDS "ALLOTMENT REFUNDS," AS THOSE WORDS ARE USED IN YOUR MENTIONED MEMORANDUM, REFER TO A DEFINITE AMOUNT OF MONEY IN THE HANDS OF THE GOVERNMENT THAT HAS BEEN WITHHELD OVER A KNOWN PERIOD OF TIME FROM THE EARNED PAY OF AN ALLOTTER AND HAS BECOME AVAILABLE FOR RETURN TO THE ALLOTTER OR FOR OTHER APPROPRIATE DISPOSITION, IT IS THE OPINION OF THIS OFFICE THAT SUCH "ALLOTMENT REFUNDS" MAY BE APPLIED TO OFFSET INDEBTEDNESS TO THE UNITED STATES UNDER THE CIRCUMSTANCES AND TO THE EXTENT INDICATED BELOW:

(1) IF AN ALLOTTER HAS BEEN SEPARATED FROM THE MILITARY SERVICE, "ALLOTMENT REFUNDS," WITHOUT REGARD TO THE CLASS OF ALLOTMENT FROM WHICH DERIVED, MAY BE USED FOR THE PURPOSES OF OFFSET TO WHATEVER EXTENT MAY BE REQUIRED TO LIQUIDATE.

(2) IF AN ALLOTTER HAS NOT BEEN SEPARATED FROM THE MILITARY SERVICE -- U (A) CLASS B ,ALLOTMENT REFUNDS" MAY NOT BE USED TO ANY EXTENT WHATEVER FOR PURPOSES OF OFFSET.

(B) CLASS E, X, D, AND N "ALLOTMENT REFUNDS" MAY BE USED FOR PURPOSES OF OFFSET UNDER THE SAME CONDITIONS AND SUBJECT TO THE SAME LIMITATIONS AS ARE APPLICABLE TO DEDUCTIONS, BASED ON INDEBTEDNESS TO THE UNITED STATES, FROM PAY ON CURRENT PAY ROLLS. IN APPLYING THE FOREGOING RULE TO ANY PARTICULAR CASE, THE AMOUNT THAT MAY BE USED FOR PURPOSES OF OFFSET MUST BE DETERMINED WITH REFERENCE TO EACH PARTICULAR MONTH THE EARNED PAY OF WHICH IS CURRENTLY REPRESENTED IN THE AMOUNT AVAILABLE FOR REFUND (OR FOR OTHER APPROPRIATE DISPOSITION), AND WHEN SO DETERMINED MUST, AS TO EACH SUCH MONTH, NOT EXCEED TWO-THIRDS OF THE EARNED PAY OF SUCH MONTH, OR, IF DEDUCTIONS, BASED ON INDEBTEDNESS TO THE UNITED STATES, WERE IN FACT PREVIOUSLY MADE FROM SUCH EARNED PAY, SUCH LESSER AMOUNT AS, WHEN ADDED TO THE AMOUNT PREVIOUSLY SO DEDUCTED, WILL NOT EXCEED TWO-THIRDS OF THE MENTIONED EARNED PAY.

SUCH CONCLUSIONS ARE SUPPORTED BY THE ACCOMPANYING MEMORANDUM OF THE ASSISTANT CHIEF OF MILITARY AFFAIRS DIVISION IN WHICH THE DIFFERENT ASPECTS OF THE MATTER ARE CAREFULLY ANALYZED AND DISCUSSED AT LENGTH. WHILE, AS STATED IN THE JUDGE ADVOCATE GENERAL'S MEMORANDUM THE QUESTIONS CONSIDERED ARE NOT FREE FROM DOUBT, THERE WOULD APPEAR NO SUBSTANTIALLY COMPELLING REASONS FOR DIFFERING WITH THE ADMINISTRATIVE INTERPRETATION OF THE STATUTE AND THE CONCLUSIONS SET FORTH, EXCEPT THE CONCLUSION B (2) (A) THAT " CLASS B "ALLOTMENT REFUNDS" MAY NOT BE USED TO ANY EXTENT WHATEVER FOR PURPOSES OF OFFSET," WHICH WILL BE ADVERTED TO HEREINAFTER.

THE EVIDENT PURPOSE OF THE FIRST TWO PROVISOS OF THE ACT OF MAY 22, 1928, SUPRA, IS TO EXEMPT ONE-THIRD OF AN ENLISTED MAN'S PAY EACH MONTH FROM DEDUCTION ON ACCOUNT OF DEBTS ADMINISTRATIVELY ASCERTAINED TO BE DUE THE UNITED STATES AND TO LEAVE THE OTHER TWO-THIRDS AVAILABLE FOR THE SATISFACTION OF SUCH DEBTS ONLY TO THE EXTENT OF THE AMOUNT THEREOF REMAINING AFTER THE PRIOR DEDUCTION OF ANY COURT-MARTIAL FINES OR OTHER AMOUNTS "LEGALLY AUTHORIZED TO BE WITHHELD.' SEE DECISION OF MARCH 19, 1929, A-25204, AND DECISION OF JANUARY 22, 1934, 13 COMP. GEN. 201. DEDUCTIONS FOR SUCH DEBTS IN CONJUNCTION WITH COURT-MARTIAL FINES OR OTHER AMOUNTS LEGALLY AUTHORIZED TO BE DEDUCTED ARE NOT TO REDUCE "THE ACTUAL PAY RECEIVED BY THE SOLDIER FOR THAT MONTH" BELOW ONE-THIRD OF HIS AUTHORIZED RATE OF PAY THEREFOR. THE QUESTION IS WHETHER AMOUNTS VOLUNTARILY ALLOTTED BY A SOLDIER FROM HIS PAY ARE AMOUNTS "LEGALLY AUTHORIZED TO BE WITHHELD" OR WHETHER THEY ARE "ACTUAL PAY RECEIVED BY THE SOLDIER" WITHIN THE INTENDMENT OF THE STATUTE. IN A SENSE, AMOUNTS VOLUNTARILY ALLOTTED BY A SOLDIER ARE AMOUNTS "LEGALLY AUTHORIZED" TO BE WITHHELD FROM HIS PAY IN THAT THE LAW AUTHORIZES THE MAKING OF SUCH ALLOTMENTS. IN A MORE STRICT SENSE, HOWEVER, THE AUTHORIZATION IS BY THE SOLDIER RATHER THAN BY LAW, IN THAT HE VOLUNTARILY MAKES THE ALLOTMENT WHICH THE STATUTE MERELY PERMITS. IN A SENSE, SUCH ALLOTMENTS ARE NOT "ACTUAL PAY RECEIVED BY THE SOLDIER" FOR THAT MONTH, IN THAT HE DOES NOT PERSONALLY AND DIRECTLY RECEIVE THE AMOUNT THEREOF IN CASH. ON THE OTHER HAND, THEY ARE ACTUAL PAY RECEIVED BY HIM FOR THAT MONTH IN THAT THEY ARE ACTUAL AMOUNTS OF HIS PAY FOR THAT MONTH PAID DIRECTLY ON HIS ACCOUNT PURSUANT TO, AND IN ACCORDANCE WITH, HIS ORDER AND EXPRESS DIRECTION. THE ASSISTANT CHIEF OF MILITARY AFFAIRS DIVISION POINTS OUT THAT THE PHRASE "OR OTHERWISE LEGALLY AUTHORIZED TO BE WITHHELD" IN THE SECOND PROVISO FOLLOWS THE PHRASE "PAY * * * LEGALLY FORFEITED BY SENTENCE OF COURT- MARTIAL" AND, UNDER THE RULE OF EJUSDEM GENERIS APPLIED IN STATUTORY INTERPRETATION, IS TO BE REGARDED AS MEANING DEDUCTION OF A LIKE INVOLUNTARY CHARACTER. A CONTRARY INTERPRETATION OF THE PROVISO WOULD RESULT IN THE EXEMPTION OF THE AMOUNT OF VOLUNTARY ALLOTMENTS, IN ADDITION TO ONE-THIRD OF THE PAY, FROM DEDUCTION FOR DEBTS DUE THE GOVERNMENT. THE PRIMARY PURPOSE OF THE LEGISLATION BEING TO RECOUP SUCH DEBTS, IT IS DIFFICULT TO ASCRIBE TO THE PROVISO AN INTENT TO PERMIT THE DEFEAT OF SUCH PURPOSE AT THE ELECTION OF THE ENLISTED MAN BY MAKING VOLUNTARY ALLOTMENTS OF HIS PAY. RESOLVING THE DOUBT IN THE MATTER IN FAVOR OF THAT CONSTRUCTION WHICH BEST ACCORDS WITH THE PRIMARY PURPOSE OF THE LEGISLATION, AND AGREEING WITH THE CONCLUSION OF THE JUDGE ADVOCATE GENERAL, YOUR QUESTION ,A" IS ANSWERED IN THE AFFIRMATIVE. WHILE THE RESULT IN CERTAIN CASES MIGHT BE TO LEAVE AN ENLISTED MAN WITHOUT POCKET MONEY WHILE HIS DEBT TO THE UNITED STATES IS BEING COLLECTED, THAT COULD BE AVOIDED AT HIS ELECTION BY TEMPORARILY DISCONTINUING SOME PART OF HIS VOLUNTARY ALLOTMENTS. MOREOVER, AS THE COLLECTIONS UNDER THE STATUTE ARE NOT MANDATORY BUT PERMISSIVE, UNDER SUCH REGULATIONS, AS THE SECRETARY OF WAR MAY PRESCRIBE, IT WOULD APPEAR TO BE WITHIN YOUR ADMINISTRATIVE PROVINCE TO EXEMPT THE AMOUNT OF CERTAIN VOLUNTARY ALLOTMENTS, SUCH AS THOSE FOR THE PAYMENT OF INSURANCE PREMIUMS, FROM DEDUCTION FOR DEBT, IN ADDITION TO THE ONE-THIRD PAY, SO THAT ENLISTED MEN WOULD NOT BE UNDER ANY NECESSITY OF DISCONTINUING SUCH CHARACTER OF ALLOTMENTS IN ORDER TO RECEIVE SOME CASH WHILE THEIR INDEBTEDNESS WAS BEING RECOUPED.

WITH RESPECT TO YOUR SECOND QUESTION, THE CONCLUSIONS OF THE JUDGE ADVOCATE GENERAL ARE THAT THE AMOUNT OF ALLOTMENTS--- EXCEPT CLASS B ALLOTMENTS--- WITHHELD ON PAY ROLLS BUT NOT PAID TO THE ALLOTTEES RETAINS THE CHARACTER OF PAY DUE THE ENLISTED MAN, AND, HENCE, MAY NOT BE APPLIED ON HIS DEBTS, UNDER THE STATUTE, WHILE HE REMAINS IN THE SERVICE (PRESUMABLY INCLUDING PAYMENT AGAINST HIS FINAL STATEMENT AT TIME OF DISCHARGE, IN VIEW OF THE LAST PROVISO OF THE ACT) EXCEPT TO THE EXTENT THAT SUCH AMOUNT COULD HAVE BEEN SO APPLIED MONTH BY MONTH HAD IT THEN BEEN PAYABLE INSTEAD OF BEING WITHHELD FOR THE ALLOTMENT. THAT APPEARS TO BE IN CONSONANCE WITH THE PURPOSE AND LIMITATIONS OF THE ACT. HOWEVER, AS NOTED ABOVE, THE JUDGE ADVOCATE GENERAL MAKES AN EXCEPTION AS TO CLASS B ALLOTMENTS, THAT IS, ALLOTMENTS FOR THE PURCHASE OF UNITED STATES WAR SAVINGS BONDS, CONCLUDING THAT CLASS B "ALLOTMENT REFUNDS" MAY NOT BE USED TO ANY EXTENT WHATEVER FOR PURPOSES OF OFFSET IF THE ALLOTTER HAS NOT BEEN SEPARATED FROM THE MILITARY SERVICE. FROM THE ACCOMPANYING MEMORANDUM IT APPEARS THAT SUCH CONCLUSION WAS THOUGHT TO BE REQUIRED BY DECISIONS OF THE ACCOUNTING OFFICERS HOLDING THAT SIMILAR ALLOTMENTS FOR THE PURCHASE OF LIBERTY BONDS DURING THE FIRST WORLD WAR LOST THEIR CHARACTER OF PAY AND WERE NOT SUBJECT TO FORFEITURE BY COURT MARTIAL SENTENCE OR DESERTION. 25 COMP. DEC. 505; 1 COMP. GEN. 142. BUT IN THE FIRST OF THE CITED DECISIONS, 25 COMP. DEC. 505, IT WAS SAID:

* * * THE BALANCE OF UNPAID PAY AND ALLOWANCES ACTUALLY DUE A SOLDIER AT THE TIME OF DESERTION AND ANY SUMS OF MONEY WHICH HE MAY HAVE DEPOSITED WITH A DISBURSING OFFICER OF THE ARMY ARE FORFEITED BY THE DESERTION, BUT IN THE ABSENCE OF ANY SPECIFIC PROVISION OF LAW THAT THE DESERTION WORKS A FORFEITURE OF THE SUMS OF MONEY HE HAS IN GOOD FAITH PAID ON LIBERTY BONDS SUCH SUMS HAVE VESTED IN HIM, SUBJECT, HOWEVER, TO SET-OFF ON ACCOUNT OF ANY ACTUAL INDEBTEDNESS OF HIS TO THE UNITED STATES. * * *

IN THE SECOND DECISION CITED, 1 COMP. GEN. 142, IT WAS SAID:

THE FACT THAT THE AGREEMENTS PROVIDED THAT IN CASE OF THE MEN'SFAILURE TO COMPLETE PAYMENT ON THE BONDS THE AMOUNTS PAID THEREON OF SUCH CHECK AGE SHOULD BE CREDITED TO THEIR ACCOUNTS WAS MERELY FOR CONVENIENCE IN REFUNDING AMOUNTS DUE THE MEN IN CASE OF THEIR FAILURE TO COMPLETE THE PAYMENT AND AN ASSURANCE THAT SUCH REFUNDS WOULD BE PROMPTLY MADE WITHOUT DIFFICULTY TO THE MEN. TITLE TO THE AMOUNTS PAID ON THE BONDS BY REASON OF CHECKING THEIR ACCOUNTS PASSED TO THE MEN WHEN THE CHECK AGES WERE MADE, AND THE GOVERNMENT RETAINED POSSESSION OF SUCH AMOUNTS BY REASON OF AGREEMENTS ENTIRELY SEPARATE AND DISTINCT FROM THEIR CONTRACTS OF ENLISTMENT AS MUCH AS SO IF NO ENLISTMENT CONTRACT EXISTED AND THE MEN WERE IN NO SENSE IN THE EMPLOY OF THE GOVERNMENT.

CREDITING OF THE MEN'S ACCOUNTS WITH AMOUNTS SO PAID IN NO SENSE PLACES SUCH CREDITS IN THE STATUS OF AMOUNTS DUE AND UNPAID UNDER THE MEN'S CONTRACTS OF ENLISTMENT, AND THEREFORE, SUCH CREDITS ARE NOT SUBJECT TO FORFEITURE BY COURT-MARTIAL SENTENCE NOR BY DESERTION, AND SHOULD BE PAID REGARDLESS OF THE MEN'S SERVICE ACCOUNTS.

THUS, IT WAS EXPRESSLY HELD IN THE FIRST DECISION THAT SUCH AMOUNTS WERE SUBJECT TO SET-OFF ON ACCOUNT OF ANY ACTUAL INDEBTEDNESS TO THE UNITED STATES; AND WHILE IT WAS SAID IN THE SECOND DECISION THAT SUCH AMOUNTS SHOULD BE PAID "REGARDLESS OF THE MEN'S SERVICE ACCOUNTS," NO QUESTION OF INDEBTEDNESS WAS THERE CONSIDERED AND SUCH STATEMENT APPARENTLY HAD REFERENCE TO THE MEN'S SERVICE ACCOUNTS ONLY INSOFAR AS AFFECTED BY COURT- MARTIAL SENTENCE OR DESERTION. THAT THERE WAS NO INTENTION TO REVERSE THE PRIOR DECISION WITH RESPECT TO SET-OFF FOR INDEBTEDNESS TO THE UNITED STATES IS FURTHER SHOWN BY THE CONTINUED PRACTICE OF MAKING SUCH SET-OFFS IN THE SETTLEMENT OF CLAIMS BY THIS OFFICE.

IN FURTHER SUPPORT OF THE PROPOSITION THAT REFUNDS OF ALLOTMENTS FOR THE PURCHASE OF WAR SAVINGS BONDS MAY NOT BE APPLIED AGAINST A SOLDIER'S INDEBTEDNESS WHILE HE REMAINS IN THE SERVICE, THE SAID MEMORANDUM CITES DECISION OF MAY 8, 1942, 21 COMP. GEN. 1000. THAT DECISION CONSIDERED VARIOUS QUESTIONS RESPECTING THE SET-OFF OF AMOUNTS REPRESENTING CIVIL SERVICE RETIREMENT DEDUCTIONS AND ANNUITIES AGAINST THE INDEBTEDNESS OF CIVILIAN EMPLOYEES. IT WAS HELD, INTER ALIA, THAT THE AMOUNT OF SUCH RETIREMENT DEDUCTIONS ARE AVAILABLE FOR SET-OFF WHEN AND IF THE EMPLOYEE OR FORMER EMPLOYEE OTHERWISE BECOMES ENTITLED TO A REFUND AND ELECTS TO WITHDRAW SUCH AMOUNTS RATHER THAN TO HAVE THEM REMAIN IN THE RETIREMENT FUND FOR RETIREMENT ANNUITY PURPOSES. THAT IS, THE AMOUNT OF SUCH DEDUCTIONS ARE AVAILABLE FOR SET-OFF WHEN AND IF ALL CONDITIONS ARE MET SO THAT THEY OTHERWISE ACTUALLY WOULD BE RETURNABLE TO HIM IN CASH. THERE WOULD APPEAR TO BE NOTHING IN THAT DECISION REQUIRING A CONCLUSION THAT REFUNDS OF ALLOTMENTS MADE FOR THE PURCHASE OF WAR BONDS WOULD NOT BE AVAILABLE FOR SET-OFF AGAINST A SOLDIER'S INDEBTEDNESS TO THE GOVERNMENT.

FOLLOWING THE PRINCIPLES OF THE SAID DECISIONS THAT DEDUCTIONS FROM AN ENLISTED MAN'S PAY FOR THE PURCHASE OF GOVERNMENT BONDS LOSE THEIR CHARACTER OF PAY AND ARE HELD BY THE GOVERNMENT FOR THAT PARTICULAR PURPOSE, SO THAT THEY ARE NOT SUBJECT TO FORFEITURE BY COURT-MARTIAL OR DESERTION, THE CONCLUSION APPEARS REQUIRED THAT WHERE SUCH PURPOSE CANNOT BE FULFILLED--- BECAUSE OF THE DISCONTINUANCE OF THE ALLOTMENT BEFORE THE PURCHASE IS COMPLETED, OR FOR OTHER REASONS--- THE AMOUNT PREVIOUSLY DEDUCTED DOES NOT REPRESENT PAY OR COMPENSATION FOR UNTERMINATED SERVICES AND DOES NOT COME WITHIN THE PROVISIONS OF THE ACT OF MAY 22, 1928, SUPRA, BUT IS AN AMOUNT IN THE HANDS OF THE GOVERNMENT OTHERWISE PAYABLE TO THE INDIVIDUAL, AND, HENCE, THERE WOULD APPEAR TO BE NO RESTRICTION AGAINST APPLYING THE WHOLE AMOUNT THEREOF IN SATISFACTION OF DEBTS DUE THE UNITED STATES UNDER THE GOVERNMENT'S GENERAL RIGHT OF SET-OFF, IRRESPECTIVE OF WHETHER THE DEBTOR IS STILL IN THE SERVICE OR HAS BEEN DISCHARGED. SEE 16 COMP. GEN. 365; 19 ID. 785, AND CASES THERE CITED. CF. 16 COMP. GEN. 161; ID. 547; 17 ID. 12. THE FACT THAT A DEBTOR MAY BE IN THE SERVICE OF THE UNITED STATES DOES NOT EXEMPT HIM FROM THE GOVERNMENT'S INHERENT RIGHT OF SET-OFF AGAINST HIS DEBTS OF AMOUNTS WHICH MAY BE DUE HIM ON OTHER ACCOUNTS.

IN ANSWER TO YOUR QUESTION "B," YOU ARE ADVISED, THEREFORE, THAT THE CONCLUSIONS OF THE JUDGE ADVOCATE GENERAL APPEAR TO BE CORRECT, EXCEPT THAT THE WHOLE AMOUNT OF CLASS B ALLOTMENT REFUNDS DUE FOR THE UNCOMPLETED PURCHASE OF WAR BONDS, ETC., MAY BE APPLIED AGAINST DEBTS DUE THE UNITED STATES, ALTHOUGH THE ENLISTED MAN MAY STILL BE IN THE SERVICE WHEN SUCH ACTION IS TAKEN.