B-59883, DEC 12, 1946

B-59883: Dec 12, 1946

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AS FOLLOWS: "THERE IS TRANSMITTED HEREWITH A LETTER FROM JUAN BELAN. "THE STATUTORY AUTHORITY FOR CHECKING THE PAY OF AN INDIVIDUAL IN THE FEDERAL SERVICE IS SET FORTH IN THE ACT OF MAY 26. WHENEVER UPON THE STATEMENT OF THE ACCOUNT OF ANY DISBURSING OFFICER OF THE UNITED STATES IN THE GENERAL ACCOUNTING OFFICE CREDIT SHALL HAVE BEEN DISALLOWED FOR ANY PAYMENT TO ANY PERSON IN THE EXECUTIVE BRANCH OF THE GOVERNMENT. OR INDEPENDENT ESTABLISHMENT (INCLUDING CORPORATIONS) UNDER WHICH SUCH PAYEE IS ENTITLED TO RECEIVE COMPENSATION: PROVIDED. "BECAUSE THE RESPONSIBILITY OF BELAN IS NOT CLEAR AND AS THE GENERAL ACCOUNTING OFFICE HAS NOT DISALLOWED CREDIT IN THE ACCOUNT OF THE DISBURSING OFFICER WHO MADE THE PAYMENTS IN QUESTION.

B-59883, DEC 12, 1946

PRECIS-UNAVAILABLE

THE HONORABLE, THE SECRETARY OF THE NAVY:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 2, 1946, WITH ENCLOSURES, AS FOLLOWS:

"THERE IS TRANSMITTED HEREWITH A LETTER FROM JUAN BELAN, OSLC, 497 94 26, U.S. NAVY, DATED APRIL 29, 1946, WITH ENCLOSURES THEREIN LISTED AND ENDORSEMENTS THERETO, REQUESTING THAT A CHECK AGE AGAINST HIS ACCOUNT IN THE AMOUNT OF $1,638.00 BE REMOVED.

"THE STATUTORY AUTHORITY FOR CHECKING THE PAY OF AN INDIVIDUAL IN THE FEDERAL SERVICE IS SET FORTH IN THE ACT OF MAY 26, 1936 (49 STAT. 1374; 5 U.S.C. 46B), WHICH PROVIDES:

"'AFTER MAY 26, 1936, WHENEVER UPON THE STATEMENT OF THE ACCOUNT OF ANY DISBURSING OFFICER OF THE UNITED STATES IN THE GENERAL ACCOUNTING OFFICE CREDIT SHALL HAVE BEEN DISALLOWED FOR ANY PAYMENT TO ANY PERSON IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, OTHERWISE ENTITLED TO COMPENSATION FROM THE UNITED STATES OR FROM ANY AGENCY OR INSTRUMENTALITY THEREOF, SUCH COMPENSATION OF THE PAYEE MAY BE WITHHELD UNTIL FULL REIMBURSEMENT HAS BEEN ACCOMPLISHED UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE HEAD OF THE DEPARTMENT, BRANCH, OR INDEPENDENT ESTABLISHMENT (INCLUDING CORPORATIONS) UNDER WHICH SUCH PAYEE IS ENTITLED TO RECEIVE COMPENSATION: PROVIDED, THAT NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED TO REPEAL OR IN ANY WAY MODIFY LAWS EXISTING ON MAY 26, 1936, RELATING TO THE COLLECTION OF THE INDEBTEDNESS OF ACCOUNTABLE OR DISBURSING OFFICERS.'

"BECAUSE THE RESPONSIBILITY OF BELAN IS NOT CLEAR AND AS THE GENERAL ACCOUNTING OFFICE HAS NOT DISALLOWED CREDIT IN THE ACCOUNT OF THE DISBURSING OFFICER WHO MADE THE PAYMENTS IN QUESTION, THE DISBURSING OFFICER WHO IS NOW CARRYING HIS ACCOUNTS HAS BEEN INSTRUCTED TO PAY BELAN HIS FULL PAY AND ALLOWANCES UNLESS HE VOLUNTARILY CONSENTS TO A WITHHOLDING OF ALL OR ANY PORTION THEREOF PENDING YOUR DECISION IN THIS CASE.

"BELAN'S LETTER AND THE RELATED CORRESPONDENCE ARE FORWARDED TO YOU FOR YOUR DETERMINATION, FROM ALL THE FACTS SET FORTH THEREIN, AS TO WHICH DISBURSING OFFICER IS RESPONSIBLE FOR THE OVERPAYMENT, THE RESPONSIBILITY OF BELAN, IF ANY, AND SUCH OTHER ACTION AS MAY BE APPROPRIATE FOR YOU TO TAKE IN THE CIRCUMSTANCES."

IT APPEARS THAT WHILE SERVING ON BOARD THE U.S.S. MCCOOK, JUAN BELAN, OFFICER'S STEWARD, FIRST CLASS, 497 94 26, UNITED STATES NAVY, REGISTERED FOR AN INDEFINITE PERIOD AN ALLOTMENT OF $126 PER MONTH IN FAVOR OF HIS WIFE, JUDY BELAN, FIRST PAYMENT TO BE MADE IN JANUARY, 1944, AND IN DECEMBER, 1944, HE REQUESTED DISCONTINUANCE OF THIS ALLOTMENT EFFECTIVE AFTER PAYMENT FOR THAT MONTH, REGISTERING IN LIEU THEREOF AN ALLOTMENT OF $40 PER MONTH, WITH FIRST PAYMENT TO BE MADE IN JANUARY, 1945, TO THE SAME ALLOTTEE. THE ENLISTED MAN'S PAY RECORD COVERING THE SIX MONTHS' PERIOD JULY 1 TO DECEMBER 31, 1944, CONTAINS AN ENTRY ATTESTED BY THE DISBURSING OFFICER, LIEUTENANT (JG) B. M. PLASTER, SC, USNR, DENOTING THAT THE ALLOTMENT OF $126 PER MONTH WAS STOPPED AFTER PAYMENT FOR DECEMBER, 1944, AND IN ACCORDANCE THEREWITH NO DEDUCTIONS WERE MADE FROM THE ENLISTED MAN'S PAY ON ACCOUNT OF SUCH ALLOTMENT SUBSEQUENT TO DECEMBER, 1944. HOWEVER, IT APPEARS THAT THE ALLOTMENT OFFICE WAS NOT NOTIFIED OF SUCH ACTION AND PAYMENT OF THE $126 ALLOTMENT, IN ADDITION TO THE $40 ALLOTMENT, WAS CONTINUED TO BE MADE THROUGH JANUARY, 1946, TO THE ALLOTTEE, MR. BELAN'S WIFE.

IN HIS LETTER OF APRIL 29, 1946, CONTAINED IN THE FILE, THE ENLISTED MAN STATES THAT HE HAS NOT LIVED WITH HIS WIFE SINCE DECEMBER, 1943, AND EVIDENCE IS SUBMITTED INDICATING THAT UPON THE BASIS OF A COMPLAINT FILED BY HER, AN INTERLOCUTORY JUDGMENT OF DIVORCE WAS ENTERED BY THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF LOS ANGELES, ON MAY 14, 1945. HE DISCLAIMS ANY KNOWLEDGE OF THE FACT THAT HIS WIFE CONTINUED TO RECEIVE PAYMENTS OF $126 PER MONTH AFTER HE TOOK THE REQUIRED ACTION TO STOP SUCH PAYMENTS IN DECEMBER, 1944.

ADMINISTRATIVE REGULATIONS WITH RESPECT TO REGISTERING AND STOPPING ALLOTMENTS PROVIDE, IN PERTINENT PART, AS FOLLOWS:

ARTICLE 1805, NAVY REGULATIONS:

"(1)(A) EACH PERSON ON THE ACTIVE LIST OF THE NAVY, MARINE CORPS, AND NAVY NURSE CORPS (FEMALE), EACH PERSON ON THE RETIRED LIST OF THE NAVY, MARINE CORPS, AND NAVY NURSE CORPS (FEMALE) WHEN ON ACTIVE DUTY, AND EACH MEMBER OF THE NAVAL AND MARINE CORPS RESERVE ORDERED TO ACTIVE DUTY OR TO TRAINING DUTY FOR A PERIOD LONGER THAN 3 MONTHS, SHALL BE ALLOWED TO ALLOT SUCH PORTION OF HIS PAY AS HE MAY DESIRE FOR THE SUPPORT OF HIS FAMILY OR OTHER RELATIVES, FOR HIS OWN SAVINGS, OR FOR OTHER SIMILAR PROPER PURPOSES. ***

"(4) THE OFFICER OF THE SUPPLY CORPS OR DISBURSING OFFICER OF THE MARINE CORPS WHO REGISTERS (OR RECEIPTS A TRANSFER FOR) AN ALLOTMENT WILL BE HELD LIABLE FOR AMOUNTS PAID BY THE NAVY ALLOTMENT OFFICER (OR THE PAYMASTER OF THE MARINE CORPS IN THE CASE OF MARINE ALLOTMENTS) FOR THE PERIOD FOR WHICH REGISTERED IN THE ABSENCE OF ACKNOWLEDGMENT OF RECEIPT BY THE LATTER OF A NOTICE TO STOP PAYMENT. BUT THIS SHALL NOT RELIEVE THE OFFICER PAYING THE ALLOTMENT FROM RESPONSIBILITY FOR LOSSES RESULTING FROM OVERPAYMENTS DUE TO WANT OF DILIGENCE ON HIS PART OF FROM LACK OF COOPERATION IN EFFECTING THE PROPER CHECK AGE AGAINST THE GRANTOR'S ACCOUNT."

ARTICLE 2170-10, BUREAU OF SUPPLIES AND ACCOUNTS MANUAL, CHANGE 38, MAY 1, 1944:

"(E) UPON REQUEST OF GRANTOR.--

"(1) ALLOTMENTS MAY BE STOPPED AT ANY TIME AT THE REQUEST OF THE GRANTOR. SUCH REQUEST WILL BE MADE ON REQUEST TO REGISTER OR STOP ALLOTMENT (S. AND A. FORM 327). WHEN THE DISBURSING OFFICER REQUESTS THE STOPPAGE OF AN ALLOTMENT AT THE REQUEST OF THE GRANTOR, HE WILL SET THE MONTH OF LAST PAYMENT AS MANY MONTHS IN ADVANCE AS PROBABLY WILL BE REQUIRED FOR THE REQUEST FOR STOPPAGE OF ALLOTMENT TO REACH THE BUREAU OF SUPPLIES AND ACCOUNTS, FIELD BRANCH (ALLOTMENT DIVISION); CHARGES WILL CONTINUE TO BE MADE IN THE USUAL MANNER TO INCLUDE THE MONTH OF LAST PAYMENT REQUESTED. ***

"(2) WHEN ALLOTMENTS ARE DISCONTINUED FOR THE PURPOSE OF REGISTERING A NEW ALLOTMENT TO THE SAME PAYEE, DISCONTINUANCE WILL BE FORWARDED UNDER THE SAME COVER AS THE NEW ALLOTMENT. IF THE GRANTOR DESIRES THAT THERE BE NO BREAK IN THE CONTINUITY OF PAYMENTS, THE MONTH OF FIRST PAYMENT OF THE NEW ALLOTMENT WILL BE THE MONTH IMMEDIATELY FOLLOWING THE MONTH OF LAST PAYMENT OF THE OLD ALLOTMENT.

"(F) RESPONSIBILITY FOR DISCONTINUANCE.--

"WHEN AN OFFICER WHOSE DUTY IT IS TO DO SO FAILS TO REQUEST DISCONTINUANCE OF AN ALLOTMENT AND SUCH FAILURE RESULTS IN AN OVERPAYMENT, THE OFFICER IS LIABLE FOR SUCH OVERPAYMENT. ***

"(H) REQUESTS FOR STOPPAGE.--

"(1) BY MAIL.--

"(A) REQUESTS FOR STOPPAGE OF ALLOTMENT (S. AND A. FORM 12) IN TRIPLICATE WITH THE ORIGINAL SIGNED BY THE DISBURSING OFFICER, OR COMMANDING OFFICER IF THERE IS NO DISBURSING OFFICER, WILL BE FORWARDED DIRECT TO THE BUREAU OF SUPPLIES AND ACCOUNTS, FIELD BRANCH (ALLOTMENT DIVISION), A SEPARATE FORM FOR EACH ALLOTMENT. AN ACKNOWLEDGED COPY OF THE REQUEST FOR STOPPAGE WILL BE RETURNED TO THE ORIGINATING OFFICER. IF THE STOPPAGE IS NOT ACCOMPLISHED BY THE ALLOTMENT DIVISION WITHIN A REASONABLE TIME, THE MATTER WILL BE FOLLOWED UP; FAILURE TO DO SO WILL MAKE THE OFFICER LIABLE FOR ANY OVERPAYMENT."

SINCE, AS HEREINBEFORE NOTED, THE DISBURSING OFFICER WHO ACTUALLY MADE THE ALLOTMENT PAYMENTS IN QUESTION WAS NOT NOTIFIED THAT THE ALLOTMENT HAD BEEN STOPPED AND AS HE APPARENTLY WAS NOT OTHERWISE IN POSSESSION OF ANY FACTS WHICH WOULD HAVE PUT HIM ON NOTICE THAT SUCH PAYMENTS WERE IMPROPER, THERE WOULD APPEAR TO BE NO PROPER BASIS UPON WHICH HE COULD BE HELD TO BE LIABLE THEREFOR. HOWEVER, LIEUTENANT (JG) PLASTER IS LIABLE FOR THE ERRONEOUS PAYMENTS THUS MADE BY REASON OF HIS FAILURE TO COMPLY WITH THE REGULATIONS REGARDING THE STOPPAGE OF ALLOTMENTS AND, ACCORDINGLY, THE AMOUNT INVOLVED SHOULD BE CHARGED AGAINST HIM IN THE SETTLEMENT OF HIS ACCOUNTS. SEE 4 COMP.GEN. 874 AND 15 COMP.DEC. 306. ALSO, A CHARGE WILL BE RAISED AGAINST THE RECIPIENT OF THE ERRONEOUS PAYMENTS, MARJORIE J. (JUDY) BELAN.

FROM THE FACTS PRESENTED IT APPEARS THAT THE ENLISTED MAN WAS WITHOUT FAULT IN THE MATTER, AND APPARENTLY HE RECEIVED NO BENEFIT FROM THE PAYMENTS IN QUESTION. HENCE, WHILE THE PROPRIETY OF CHECKING HIS PAY ACCOUNTS WITHOUT HIS CONSENT FOR THE AMOUNT THEREOF AS AUTHORIZED BY THE ACT OF MAY 26, 1936, 49 STAT. 1374, QUOTED IN YOUR LETTER, PRIMARILY IS FOR ADMINISTRATIVE DETERMINATION, IT WOULD APPEAR THAT IN THE INSTANT CASE SUCH ACTION WOULD NOT BE APPROPRIATE. SEE, GENERALLY, 7 COMP.GEN. 64; 14 ID. 464; 15 ID. 342.