B-49855, JANUARY 29, 1946, 25 COMP. GEN. 562

B-49855: Jan 29, 1946

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APPLICATION OF THE FORFEITURE IS AUTHORIZED ONLY TO THE EXTENT OF THE BALANCE OF TWO THIRDS OF THE MONTHLY PAY REMAINING AFTER DEDUCTION FOR AMOUNTS . WHERE THE MONTHLY PAY OF AN ARMY ENLISTED MAN IS INSUFFICIENT TO COVER BOTH THE DEDUCTION REQUIRED BY SECTION 106 (A) OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942. THE UNEXECUTED PORTION OF WHICH WAS REMITTED DURING THE MONTH. WHICH IS PAST DUE FROM AN ARMY ENLISTED MAN FOR PRIOR MONTHS TAKES PRECEDENCE OVER APPLICATION OF A COURT-MARTIAL FORFEITURE UPON THE REMISSION OF THE UNEXECUTED PORTION IN A SUBSEQUENT MONTH. THERE IS NO PAY AVAILABLE FOR THE FORFEITURE. IF SUCH ACCUMULATED CHARGES ARE LESS THAN SUCH ACCRUED PAY. AFTER ACCUMULATED CHARGES ARE DEDUCTED.

B-49855, JANUARY 29, 1946, 25 COMP. GEN. 562

PAY - CHECK AGES AND COURT-MARTIAL FORFEITURES - ARMY ENLISTED MEN UNDER THE ACT MAY 22, 1928, AS AMENDED, EXEMPTING ONE-THIRD OF AN ARMY ENLISTED MAN'S PAY FROM DEDUCTION FOR DEBTS "ADMINISTRATIVELY ASCERTAINED" TO BE DUE THE UNITED STATES, AND EXECUTIVE ORDER NO. 8727, MAKING A SIMILAR EXEMPTION APPLICABLE TO COURT-MARTIAL FORFEITURES, NEITHER ,ADMINISTRATIVELY ASCERTAINED" DEBTS NOR COURT-MARTIAL FORFEITURES MAY BE APPLIED AGAINST AN ENLISTED MAN'S MONTHLY PAY EITHER SEPARATELY OR IN COMBINATION SO AS TO DEPRIVE HIM OF MORE THAN TWO THIRDS OF HIS PAY FOR THAT MONTH. WHILE THE ACT OF MAY 22, 1928, AS AMENDED, DOES NOT PROHIBIT THE APPLICATION OF MORE THAN THIRDS OF AN ARMY ENLISTED MAN'S MONTHLY PAY FOR COURT-MARTIAL FORFEITURES OR FOR AMOUNTS "OTHERWISE LEGALLY AUTHORIZED TO BE WITHHELD," OR FOR BOTH, EXECUTIVE ORDER NO. 8727 AUTHORIZES THE APPLICATION OF SUCH FORFEITURES "SO AS NOT TO DEPRIVE THE ACCUSED OF MORE THAN TWO-THIRDS OF HIS PAY FOR ANY MONTH," AND, THEREFORE, WHERE THE COMPUTATION OF AN ENLISTED MAN'S PAY FOR A PARTICULAR MONTH INVOLVES AMOUNTS OF BOTH TYPES, APPLICATION OF THE FORFEITURE IS AUTHORIZED ONLY TO THE EXTENT OF THE BALANCE OF TWO THIRDS OF THE MONTHLY PAY REMAINING AFTER DEDUCTION FOR AMOUNTS ,OTHERWISE LEGALLY AUTHORIZED TO BE WITHHELD.' WHERE THE MONTHLY PAY OF AN ARMY ENLISTED MAN IS INSUFFICIENT TO COVER BOTH THE DEDUCTION REQUIRED BY SECTION 106 (A) OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, FOR FAMILY ALLOWANCE PAYMENTS AND THE AMOUNT OF A COURT-MARTIAL FORFEITURE, THE UNEXECUTED PORTION OF WHICH WAS REMITTED DURING THE MONTH, THE TOTAL MONTHLY PAY--- AS DISTINGUISHED FROM PAY ACCRUED UP TO THE DATE OF SUCH REMISSION--- FIRST SHOULD BE REDUCED BY THE AMOUNT REQUIRED BY SAID SECTION 106 (A) AND THE REMAINING BALANCE OF PAY OTHERWISE AVAILABLE FOR FORFEITURE, PURSUANT TO EXECUTIVE ORDER NO. 8727, SHOULD BE APPLIED IN SATISFACTION OF THE FORFEITURE PRORATED TO THE DATE OF REMISSION. THE FAMILY ALLOWANCE DEDUCTION REQUIRED BY SECTION 106 (A) OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, WHICH IS PAST DUE FROM AN ARMY ENLISTED MAN FOR PRIOR MONTHS TAKES PRECEDENCE OVER APPLICATION OF A COURT-MARTIAL FORFEITURE UPON THE REMISSION OF THE UNEXECUTED PORTION IN A SUBSEQUENT MONTH, AND, THEREFORE, WHERE SUCH ACCUMULATED CHARGES EQUAL OR EXCEED THE MONTHLY PAY ACCRUED PRIOR TO THE DATE OF SUCH REMISSION, THERE IS NO PAY AVAILABLE FOR THE FORFEITURE; HOWEVER, IF SUCH ACCUMULATED CHARGES ARE LESS THAN SUCH ACCRUED PAY, THE BALANCE, AFTER ACCUMULATED CHARGES ARE DEDUCTED, IS AVAILABLE FOR APPLICATION OF THE FORFEITURE PURSUANT TO EXECUTIVE ORDER NO. 8727. WHERE AN ARMY ENLISTED MAN'S PAY HAS NOT BEEN SETTLED FOR SEVERAL MONTHS, ALL ITEMS OF INDEBTEDNESS INCURRED DURING THAT PERIOD PRIOR TO REMISSION OF THE UNEXECUTED PORTION OF A COURT-MARTIAL FORFEITURE SHOULD BE CONSIDERED AS PRIOR INDEBTEDNESS (SEE PARAGRAPH 10), ARMY REGULATIONS 35- 2460) TO BE SATISFIED FROM THE PAY DUE AT THE TIME OF SUCH REMISSION BEFORE DETERMINING, PURSUANT TO THE RESTRICTIONS OF EXECUTIVE ORDER NO. 8727, THE AMOUNT OF COURT-MARTIAL FORFEITURE TO BE REGARDED AS EXECUTED PRIOR TO THE DATE OF REMISSION.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, JANUARY 29, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 14, 1945, WITH ENCLOSURES, AS FOLLOWS:

IN CONNECTION WITH THE QUESTION OF REMISSION, OF COURT-MARTIAL FORFEITURES (AW 50 ( ACT 4 JUNE 1920. 41 STAT. 797; 10 U.S.C. 1521) (, A QUESTION HAS ARISEN AS TO WHAT CONSTITUTES "PRIOR INDEBTEDNESS" WITHIN THE MEANING OF PARAGRAPH 10 D, AR 35-2460, 21 MAY 1942, IN THE COMPUTATION OF THE COURT-MARTIAL FORFEITURE COLLECTIBLE AT THE DATE OF REMISSION OF THE UNEXECUTED PORTION OF A COURT-MARTIAL SENTENCE, PARTICULARLY WITH REFERENCE TO CLASS F ALLOWANCE DEDUCTIONS.

PARAGRAPH 10 D, AR 35-2460, WHICH IS BASED ON DECISION OF THE COMPTROLLER OF THE TREASURY, 14 COMP. DEC. 490, PROVIDES THAT,"WHERE AN ENLISTED MAN IS SENTENCED TO A FORFEITURE OF PAY, ANY AUTHORIZED INDEBTEDNESS TO THE UNITED STATES CONTRACTED PRIOR TO THE DATE OF THE SENTENCE MUST BE DEDUCTED PRIOR TO THE FORFEITURE AND UNTIL SUFFICIENT PAY SHALL HAVE ACCRUED TO SATISFY SUCH PRIOR INDEBTEDNESS THERE WOULD NOTHING FOR THE FORFEITURE TO RUN AGAINST. THE REMISSION OF ALL OR A PART OF THE FORFEITURE WOULD THEREFORE BE EFFECTIVE IN ACCORDANCE WITH THE TERMS OF THE REMISSION UPON ANY PAY WHICH HAD NOT ACCRUED FOR FORFEITURE AT THE DATE OF REMISSION.'

IN THIS CONNECTION, THERE IS ENCLOSED HEREWITH A COPY OF OPINION OF THE JUDGE ADVOCATE GENERAL, SPJGA 1945/2407, DATED 5 APRIL 1945, AND, IN ACCORDANCE THEREWITH, YOUR DECISION IS REQUESTED ON THE FOLLOWING SPECIFIC QUESTIONS:

A. IS THE CLASS F ALLOWANCE DEDUCTION DUE FOR THE MONTH IN WHICH THE REMISSION TAKES EFFECT TO BE CONSIDERED AS "PRIOR INDEBTEDNESS" WITHIN THE MEANING OF PARAGRAPH 10 D, AR 35-2460, AND DEDUCTED FROM THE PAY DUE FOR THE PERIOD THAT THE FORFEITURE RUNS, IN COMPUTING THE AMOUNT OF FORFEITURE COLLECTIBLE AT DATE OF REMISSION?

B. IF CLASS F ALLOWANCE DEDUCTIONS ARE DUE FOR ONE OR MORE MONTHS PRIOR TO THE MONTH IN WHICH THE REMISSION TAKES EFFECT, IS THE TOTAL AMOUNT DUE FOR CLASS F ALLOWANCE TO BE CONSIDERED AS ,PRIOR INDEBTEDNESS," OR ONLY THE DEDUCTIONS FOR THE MONTHS PRIOR TO THE MONTH IN WHICH REMISSION TAKES EFFECT?

C. IF THE ENLISTED MAN'S PAY HAS NOT BEEN SETTLED FOR SEVERAL MONTHS, ARE ALL ITEMS OF INDEBTEDNESS INCURRED WITHIN THE PERIOD FOR WHICH PAY IS DUE TO BE CONSIDERED AS "PRIOR INDEBTEDNESS," OR ONLY THE ITEMS INCURRED IN THE MONTH IN WHICH THE REMISSION TAKES EFFECT?

THE CONCLUSIONS OF THE JUDGE ADVOCATE GENERAL RESPECTING THE ABOVE MATTERS ARE SET FORTH IN HIS MEMORANDUM DATED APRIL 5, 1945, TO THE FISCAL DIRECTOR, AS FOLLOWS:

1. IT IS MY OPINION THAT CLASS F DEDUCTIONS, WHETHER FOR THE CURRENT MONTH, OR ACCUMULATED FROM PRIOR MONTHS BECAUSE OF A LACK OF SUFFICIENT ACCRUED PAY TO DISCHARGE THEM, OR SO ACCUMULATED THROUGH INADVERTENCE, ARE DEBTS OWED TO THE UNITED STATES. HOWEVER, AS THE RIGHT TO WITHHOLD THE AMOUNT OF THE CLASS F DEDUCTION FROM THE PAY OF THE SOLDIER CONCERNED IS CONFERRED BY SUBSECTION 106 (A) OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942 (ACT 23 JAN. 1942, 56 STAT. 381, AS AMENDED BY ACT 26 OCT. 1943, 57 STAT. 578; 37 U.S.C., SUP. III, 206), AND AS THE AMOUNT REQUIRED TO BE WITHHELD IS FIXED BY THAT ACT, THE CLASS F DEDUCTION IS NOT, UNDER ANY OF THE ABOVE CIRCUMSTANCES, AN ADMINISTRATIVELY ASCERTAINED INDEBTEDNESS WITHIN THE MEANING OF THE ACT OF 22 MAY 1928 (45 STAT. 698, AS AMENDED BY ACT 26 JUNE 1934, 48 STAT. 1222; 10 U.S.C. 875A), BUT IS, ON THE OTHER HAND, AN AMOUNT "OTHERWISE LEGALLY AUTHORIZED TO BE WITHHELD" WITHIN THE MEANING OF THAT TERM AS USED IN THE SECOND PROVISO OF THE ACT OF 22 MAY 1928, SUPRA.

2. THE QUESTION OF WHAT IS A "PRIOR INDEBTEDNESS" WITHIN THE MEANING OF SUBPARAGRAPH 10D, ARMY REGULATIONS 35-2460, 21 MAY 1942, IS, IN MY OPINION, TO BE ANSWERED BY REFERENCE TO THE ORDER OF PRIORITY OF STOPPAGES ESTABLISHED BY THE WAR DEPARTMENT. BY PARAGRAPH 67, TECHNICAL MANUAL 14- 502, 1 DECEMBER 1942 ( PAY AND ALLOWANCES OF ENLISTED PERSONNEL), WHICH EXPRESSLY INCLUDES CLASS F DEDUCTIONS AS A SUBHEAD UNDER "ALLOTMENTS OF PAY WHEN ALLOTTEE HAS BEEN PAID BY THE UNITED STATES," ACCUMULATED CLASS F DEDUCTIONS FOR PRIOR MONTHS (ASSUMING THE DEPENDENT'S ALLOWANCE HAS BEEN PAID) ARE GIVEN PRIORITY OF STOPPAGE OVER COURT-MARTIAL FORFEITURES. PARAGRAPH 67 OF THE MENTIONED TECHNICAL MANUAL DOES NOT ESTABLISH A PRIORITY OF STOPPAGES IN THE CASE OF THE CLASS F DEDUCTION FOR THE MONTH IN WHICH A REMISSION OF A COURT-MARTIAL FORFEITURE IS ACCOMPLISHED, BECAUSE THE FAMILY ALLOWANCE IS NOT PAID UNTIL THE END OF THE MONTH. HOWEVER, IN SUCH CASE, AS THE LIABILITY OF THE SOLDIER TO THE GOVERNMENT FOR THE CLASS F DEDUCTION FOR A PARTICULAR MONTH IS FIXED UPON THE FIRST DAY OF THAT MONTH, THE CLASS F DEDUCTION FOR THE MONTH IN WHICH REMISSION OCCURS PROPERLY MAY BE CONSIDERED A "PRIOR INDEBTEDNESS" WITHIN THE MEANING OF SUBPARAGRAPH 10D, ARMY REGULATIONS 35-2460, SUPRA, AND COLLECTIBLE AS A " REIMBURSEMENT TO UNITED STATES" UNDER SUBPARAGRAPH 10A, ARMY REGULATIONS 35-2440, 20 MAY 1942.

3. THE QUESTIONS PROPOUNDED IN PARAGRAPH 4 OF THE FIRST ENDORSEMENT ARE PROPERLY ANSWERED, SERIATIM, AS FOLLOWS:

A. YES.

B. THE TOTAL AMOUNT DUE FOR CLASS F DEDUCTIONS, WHETHER FOR THE CURRENT MONTH OR FOR MONTHS PRIOR TO THE ONE IN WHICH REMISSION TAKES EFFECT, IS TO BE CONSIDERED AS A "PRIOR INDEBTEDNESS.'

C. AS COURT-MARTIAL FORFEITURES ARE CONSIDERED AS COLLECTED FROM DAY TO DAY AS THE PAY ACCRUES (SUBPAR. 10A, AR 35-2460, 21 MAY 1942), IT IS NECESSARY, WHERE THE ENLISTED MAN'S PAY HAS NOT BEEN SETTLED FOR SEVERAL MONTHS, DURING WHICH PERIOD HE HAS BECOME INDEBTED TO THE GOVERNMENT, TO DETERMINE THE DATE ON WHICH EACH ITEM OF INDEBTEDNESS WAS INCURRED AND THE DATE ON WHICH EACH SUCH ITEM WAS SATISFIED BY THE STOPPAGE OF PAY, IN ORDER TO DETERMINE WHETHER ANY PAY HAS ACCRUED AGAINST WHICH THE COURT- MARTIAL FORFEITURE HAS OPERATED. SUBJECT TO THIS OBSERVATION, I AM OF THE OPINION THAT ALL ITEMS OF INDEBTEDNESS INCURRED DURING THE PERIOD FOR WHICH PAY HAS NOT BEEN SETTLED SHOULD BE CONSIDERED "PRIOR INDEBTEDNESS.'

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. 875 (A), REFERRED TO IN THE MEMORANDUM OF THE JUDGE ADVOCATE GENERAL, PROVIDES:

UNDER SUCH REGULATIONS 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 COLLECT 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 ACT DOES NOT PROHIBIT TAKING MORE THAN TWO-THIRDS OF AN ENLISTED MAN'S MONTHLY PAY FOR COURT-MARTIAL FINES OR FOR AMOUNTS "OTHERWISE LEGALLY AUTHORIZED TO BE WITHHELD," OR FOR BOTH, BUT DOES PROHIBIT DEDUCTIONS IN CONJUNCTION THEREWITH OF FURTHER AMOUNTS ON ACCOUNT OF DEBTS "ADMINISTRATIVELY ASCERTAINED" TO BE DUE WHERE THE EFFECT WOULD BE TO REDUCE THE ACTUAL PAY RECEIVED BELOW ONE-THIRD. HOWEVER, WITH RESPECT TO DEDUCTION FROM THE MONTHLY PAY OF AN ENLISTED MAN FOR FORFEITURES OF PAY UNDER SENTENCES OF COURTS MARTIAL, IT WAS FURTHER PROVIDED BY EXECUTIVE ORDER NO. 8727, APRIL 1, 1941, AS FOLLOWS:

1. PARAGRAPH 104B OF THE MANUAL FOR COURTS-MARTIAL, UNITED STATES ARMY (1928), IS HEREBY AMENDED BY ADDING THERETO THE FOLLOWING SUB PARAGRAPH,*

"IN THE EXECUTION OF A SINGLE SENTENCE NOT INCLUDING DISHONORABLE DISCHARGE, AND IN THE EXECUTION OF TWO OR MORE CONCURRENT SENTENCES AGAINST THE SAME ACCUSED, NONE OF WHICH INCLUDES DISHONORABLE DISCHARGE, ANY FORFEITURE OR FORFEITURES OF PAY INCLUDED IN THE SENTENCE OR SENTENCES SHALL BE APPLIED, TOGETHER WITH OTHER AUTHORIZED STOPPAGES OR DEDUCTIONS, IF ANY, EXCEPTING SUCH AS ARE MADE AT THE REQUEST OF THE ACCUSED, SO AS NOT TO DEPRIVE THE ACCUSED OF MORE THAN TWO-THIRDS OF HIS PAY FOR ANY MONTH.'

THE NECESSARY EFFECT OF THE QUOTED EXECUTIVE ORDER IS TO PLACE THE COLLECTION OF COURT-MARTIAL FINES ON THE SAME BASIS AS THE COLLECTION OF "ADMINISTRATIVELY ASCERTAINED" DEBTS UNDER THE PROVISIONS OF THE SAID ACT OF MAY 22, 1928, AS AMENDED. THAT IS, WHILE MORE THAN TWO THIRDS OF THE PAY MAY BE WITHHELD FOR AMOUNTS "OTHERWISE LEGALLY AUTHORIZED TO BE WITHHELD," NEITHER ,ADMINISTRATIVELY ASCERTAINED" DEBTS NOR COURT-MARTIAL FORFEITURES MAY BE APPLIED AGAINST THE MONTHLY PAY EITHER SEPARATELY OR IN COMBINATION OR IN ADDITION TO "AMOUNTS OTHERWISE LEGALLY AUTHORIZED TO BE WITHHELD" SO AS TO DEPRIVE AN ENLISTED MAN OF MORE THAN TWO-THIRDS OF HIS PAY FOR ANY MONTH. CONSEQUENTLY, IN CASES WHERE THE COMPUTATION OF PAY FOR A PARTICULAR MONTH INVOLVES CONSIDERATION OF AMOUNTS "OTHERWISE LEGALLY AUTHORIZED TO BE WITHHELD" AS WELL AS AN AMOUNT FORFEITED BY SENTENCE OF COURT MARTIAL, AND ASSUMING THERE ARE NO "ADMINISTRATIVELY ASCERTAINED" DEBTS FOR CONSIDERATION, THE COLLECTION OF THE FORFEITURE IS AUTHORIZED ONLY TO THE EXTENT OF THE BALANCE OF TWO-THIRDS OF THE MONTHLY PAY REMAINING AFTER COLLECTION OF AMOUNTS "OTHERWISE LEGALLY AUTHORIZED TO BE WITHHELD.'

SECTION 106 (A) OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF JUNE 23, 1942, 56 STAT. 382, AS AMENDED BY THE ACT OF OCTOBER 26, 1943, 57 STAT. 578, PROVIDES THAT FOR ANY MONTH FOR WHICH THE FAMILY ALLOWANCE IS PAID TO THE DEPENDENT OR DEPENDENTS OF AN ENLISTED MAN, THE MONTHLY PAY OF SUCH ENLISTED MAN SHALL BE REDUCED BY, OR CHARGED WITH THE AMOUNT OF $22, AND SHALL BE REDUCED BY, OR CHARGED WITH, AN ADDITIONAL AMOUNT OF $5 IF THE DEPENDENTS TO WHOM SUCH ALLOWANCE IS PAYABLE INCLUDE MORE THAN ONE CLASS OF DEPENDENTS. THE AMOUNT TO BE WITHHELD FROM AN ENLISTED MAN'S PAY ON ACCOUNT OF PAYMENT OF THE FAMILY ALLOWANCE TO HIS DEPENDENT THUS HAVING BEEN EXPRESSLY FIXED BY STATUTE, IT IS CLEAR THAT SUCH AMOUNT IS AN AMOUNT "OTHERWISE LEGALLY AUTHORIZED TO BE WITHHELD" WITHIN THE MEANING OF SAID ACT OF MAY 22, 1928, AS AMENDED.

WHILE, AS ABOVE STATED, THE STATUTORY DEDUCTION REQUIRED ON ACCOUNT OF FAMILY ALLOWANCE PAYMENTS IS AN AMOUNT "OTHERWISE LEGALLY AUTHORIZED TO BE WITHHELD," IT DOES NOT NECESSARILY FOLLOW THAT, IN CIRCUMSTANCES SUCH AS OUTLINED IN QUESTION "A" OF THE PRESENT SUBMISSION, WHERE A COURT- MARTIAL FORFEITURE IS REMITTED ON AN INTERMEDIATE DAY OF THE MONTH, THE FAMILY ALLOWANCE DEDUCTION FOR THAT PARTICULAR MONTH MUST BE MADE FROM PAY ACCRUING FOR THE PERIOD DURING WHICH THE FORFEITURE RUNS TO THE EXTENT THAT SUCH PAY IS SUFFICIENT TO COVER THE SAID DEDUCTION. THE SAID SECTION 106 (A) OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT, AS AMENDED, SPECIFICALLY PROVIDES THAT "THE MONTHLY PAY" OF THE ENLISTED MAN SHALL BE REDUCED BY THE AMOUNTS THEREIN PRESCRIBED AND THERE IS NO INDICATION OF A LEGISLATIVE INTENT THAT SUCH DEDUCTION SHALL BE CHARGED AGAINST THE FIRST ACCRUAL OF SUFFICIENT PAY IN THE ENLISTED MAN'S ACCOUNT FOR THE PARTICULAR MONTH. ON THE CONTRARY, IN VIEW OF THE EXPRESS PROVISION IN THE SAID SECTION THAT "THE MONTHLY PAY" SHALL BE REDUCED, IT REASONABLY APPEARS THAT THE REQUIREMENTS OF THE STATUTE HAVE BEEN MET SO LONG AS THE TOTAL PAY ACCRUING FOR A PARTICULAR MONTH IS REDUCED BY THE PRESCRIBED AMOUNT.

PARAGRAPH B OF THE SAID ARMY REGULATIONS 35-2460 PROVIDES AS FOLLOWS:

EACH MONTHLY FORFEITURE WILL BE CHARGED AGAINST THE MONTHLY PAY OF THE ENLISTED MAN BEGINNING WITH THE FIRST DAY OF THE MONTH IN WHICH THE SENTENCE IS PROMULGATED, AND WILL BECOME AND REMAIN A FIXED INDEBTEDNESS TO THE UNITED STATES UNTIL SATISFIED.

IN ACCORDANCE WITH THE QUOTED PARAGRAPH OF THE SAID ARMY REGULATIONS, THE BEGINNING DATE OF THE FORFEITURE IS THE FIRST DAY OF THE MONTH IN WHICH THE SENTENCE IS PROMULGATED. HENCE, IF IT BE CONSIDERED THAT THE DEDUCTION FOR THE FAMILY ALLOWANCE FOR THE CURRENT MONTH IS TO BE MADE BEFORE ANY PAY ACCRUES TO THE ENLISTED MAN AGAINST WHICH THE COURT-MARTIAL FORFEITURE OPERATES, IT WILL BE SEEN THAT, IN CASES WHERE A COURT-MARTIAL FORFEITURE IS REMITTED AT ANY TIME DURING THE MONTH PRIOR TO THE ACCRUAL OF SUFFICIENT PAY TO COVER THE ENTIRE FAMILY ALLOWANCE DEDUCTION FOR THAT MONTH, THERE WOULD BE NO PAY WHICH MIGHT BE CONSIDERED AS FORFEITED. DOES NOT APPEAR TO HAVE BEEN THE LEGISLATIVE INTENT IN REQUIRING DEDUCTION OF THE AMOUNTS SPECIFIED FROM THE MONTHLY PAY OF AN ENLISTED MAN ON ACCOUNT OF PAYMENT OF THE FAMILY ALLOWANCE TO HIS DEPENDENTS THAT IN INSTANCES OF THE CHARACTER DESCRIBED SUCH DEDUCTION SHOULD OPERATE TO RELIEVE THE MAN OF A FORFEITURE IMPOSED BY COURT MARTIAL TO THE EXTENT OF SUCH DEDUCTION. THE MORE REASONABLE VIEW WOULD APPEAR TO BE THAT IT IS ONLY IN THOSE CASES WHERE, AFTER MAKING THE PRESCRIBED FAMILY ALLOWANCE DEDUCTION, THE BALANCE OF PAY AVAILABLE FOR COURT-MARTIAL FORFEITURE UNDER THE RESTRICTIONS OF EXECUTIVE ORDER NO. 8727 IS INSUFFICIENT TO COVER THE COURT-MARTIAL FORFEITURE APPLICABLE TO THE DATE OF REMISSION THAT THE FAMILY ALLOWANCE DEDUCTION SHOULD BE CONSIDERED AS PARTIALLY REDUCING THE AMOUNT OF THE COURT-MARTIAL FORFEITURE OTHERWISE TO BE REGARDED AS HAVING BEEN EXECUTED PRIOR TO THE DATE OF REMISSION. THEREFORE, IN SUCH CASES, THE TOTAL PAY DUE FOR THE MONTH FIRST SHOULD BE REDUCED BY THE AMOUNT REQUIRED BY SAID SECTION 106 (A) AND THE REMAINING BALANCE OF PAY OTHERWISE AVAILABLE FOR FORFEITURE SHOULD BE APPLIED IN SATISFACTION OF THE FORFEITURE PRORATED TO THE DATE OF REMISSION. ACCORDINGLY, THE SUBMITTED QUESTION "A" IS ANSWERED IN THE NEGATIVE.

WHILE, AS ABOVE STATED, THE FAMILY ALLOWANCE DEDUCTION FOR THE CURRENT MONTH IS NOT NECESSARILY FOR DEDUCTION, IN WHOLE OR IN PART, FROM THE PAY WHICH ACCRUES DURING THE PARTIAL MONTHLY PERIOD THE COURT MARTIAL FORFEITURE RUNS BEFORE REMISSION, THE SAME IS NOT TRUE WITH RESPECT TO ACCUMULATED FAMILY ALLOWANCE CHARGES FOR PRIOR MONTHS. SINCE SUCH AMOUNTS WERE NOT DEDUCTED FROM THE MONTHLY PAY OF THE ENLISTED MAN FOR THE MONTHS TO WHICH THEY PERTAINED, THE DEDUCTION REQUIRED BY THE SAID STATUTE IS PAST DUE AND PROPERLY TAKES PRECEDENCE OVER COLLECTION OF A COURT-MARTIAL FORFEITURE REMITTED IN A SUBSEQUENT MONTH. WHERE SUCH ACCUMULATED FAMILY ALLOWANCE CHARGES FOR PRIOR MONTHS EQUAL OR EXCEED THE PAY ACCRUED PRIOR TO THE DATE OF REMISSION, THERE IS NO PAY TO BE VIEWED AS HAVING BEEN AVAILABLE FOR THE EXECUTION OF THE FORFEITURE PRIOR TO REMISSION. HOWEVER, IF SUCH DEDUCTIONS PAST DUE ARE LESS THAN THE PAY ACCRUED DURING THE PERIOD FOR FORFEITURE PRIOR TO REMISSION OF THE UNEXECUTED PART OF THE SENTENCE, SUCH PAY IS CHARGEABLE FIRST WITH THE AMOUNT OF THE ACCUMULATED DEDUCTIONS AND THE BALANCE IS FOR APPLICATION TO THE FORFEITURE, IF OTHERWISE AVAILABLE THEREFOR IN ACCORDANCE WITH THE TERMS OF THE SAID EXECUTIVE ORDER 8727. OF COURSE, SHOULD THE PAY FOR THE PERIOD FROM THE DATE OF REMISSION OF THE FORFEITURE TO THE END OF THE MONTH BE INSUFFICIENT TO COVER THE FAMILY ALLOWANCE DEDUCTION FOR THAT MONTH, THE AMOUNT OTHERWISE SUBJECT TO FORFEITURE WOULD BE REDUCED BY AN AMOUNT SUFFICIENT TO COVER SUCH DEFICIT. USING THE EXAMPLE GIVEN IN THE ENCLOSURE DATED NOVEMBER 17, 1944, WITH YOUR LETTER, THAT IS, A PRIVATE, NO YEARS' SERVICE; PAY FOR THE MONTH OF AUGUST, 1944; CLASS F DEDUCTION $22; SENTENCED ON AUGUST 10, 1944, TO FORFEIT $30 OF HIS PAY PER MONTH FOR THE MONTHS; UNEXECUTED PORTION OF SENTENCE REMITTED AUGUST 19, 1944; AND ASSUMING THAT THE CLASS F DEDUCTION WAS NOT DEDUCTED FROM PAY FOR JULY, 1944, THE COMPUTATION OF PAY WOULD BE AS FOLLOWS: PAY, AUGUST 1 TO 18, 1944 ----------------------------------- - $30.00

LESS: CLASS F DEDUCTION FOR JULY 1944 ------------------- 22.00

AMOUNT OTHERWISE AVAILABLE FOR FORFEITURE --------------- 8.00 PLUS: PAY, AUGUST 19 TO 31, 1944 --------------------------- 20.00

TOTAL PAY AVAILABLE FOR "LEGALLY AUTHORIZED"

DEDUCTIONS ------------------------------- 28.00 LESS:

CLASS F DEDUCTION, AUGUST 1944 ------------------- $22.00

SOLDIERS' HOME DEDUCTION ------------------------- .10

22.10

BALANCE OF PAY TO ENLISTED MAN ------------------------- 5.90

NO AMOUNT AVAILABLE FOR FORFEITURE, SINCE BALANCE IS LESS THAN

ONE-THIRD OF PAY FOR THAT MONTH SAVED TO ENLISTED MAN UNDER EXECUTIVE

ORDER 8727.

QUESTION B IS ANSWERED ACCORDINGLY.

THE PURPORT OF QUESTION C IS NOT CLEARLY UNDERSTOOD. HOWEVER, THERE APPEARS NO REASON TO DISAGREE WITH THE STATED OBSERVATIONS AND CONCLUSIONS OF THE JUDGE ADVOCATE GENERAL, SUPRA, RESPECTING THAT QUESTION, IF SUCH CONCLUSION BE UNDERSTOOD AS MEANING THAT ALL ITEMS OF INDEBTEDNESS INCURRED PRIOR TO REMISSION DURING THE PERIOD FOR WHICH PAY HAS NOT BEEN SETTLED SHOULD BE CONSIDERED AS "PRIOR INDEBTEDNESS," IN DETERMINING THE AMOUNT OF A COURT-MARTIAL FORFEITURE TO BE REGARDED AS EXECUTED PRIOR TO THE DATE OF REMISSION. SEE PARAGRAPH 10B, ARMY REGULATIONS 35-2460.