B-104718, FEB 11, 1953
Highlights
DISBURSING OFFICER: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26. WHICH WAS RECOUPED FROM CAPTAIN WHITTEMORE TO OFFSET HIS INDEBTEDNESS TO THE UNITED STATES ARISING FROM HIS CIVILIAN EMPLOYMENT DURING THAT PERIOD IN VIOLATION OF THE ACT OF JULY 31. THE CIVILIAN EMPLOYMENT OF CAPTAIN WHITTEMORE WAS VOID AB INITIO AND NO RIGHT WHATSOEVER TO COMPENSATION AROSE THEREUNDER. THE SAID OFFICER WAS AT ALL TIMES ELIGIBLE AND ENTITLED TO RECEIVE RETIRED PAY. THE WITHHOLDING OF CAPTAIN WHITTEMORE'S RETIRED PAY WAS IMPROPER AND IS FOR REFUNDING TO HIM. THIS DATE I HAVE INSTRUCTED THE AUDIT DIVISION OF THIS OFFICE TO TAKE IMMEDIATE ACTION TO STATE AN EXCEPTION AGAINST THE PAYMENTS OF CIVILIAN COMPENSATION MADE TO CAPTAIN WHITTEMORE COVERING THE PERIOD OCTOBER 16.
B-104718, FEB 11, 1953
PRECIS-UNAVAILABLE
LIEUTENANT COLONEL JAMES H. COMINGS, DISBURSING OFFICER:
REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26, 1952, FINKF 3.4 241.18 WHITTEMORE PAUL B. 0-20648, TRANSMITTED HERE BY FIRST INDORSEMENT DATED NOVEMBER 26, 1952, FROM THE CHIEF OF FINANCE, REQUESTING ADVICE AS TO WHETHER YOU MAY MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF CAPTAIN PAUL B. WHITTEMORE, RETIRED, FOR $869.57, REPRESENTING RETIRED PAY FOR THE PERIOD OCTOBER 16, 1950, THROUGH JUNE 1, 1951, WHICH WAS RECOUPED FROM CAPTAIN WHITTEMORE TO OFFSET HIS INDEBTEDNESS TO THE UNITED STATES ARISING FROM HIS CIVILIAN EMPLOYMENT DURING THAT PERIOD IN VIOLATION OF THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62.
AS HAS BEEN POINTED OUT IN PREVIOUS CORRESPONDENCE IN CONNECTION WITH CAPTAIN WHITTEMORE'S INDEBTEDNESS (DECISIONS OF AUGUST 17, 1951, JANUARY 31, 1952, MAY 22, 1952, AND JULY 30, 1952, B-104718), THE CIVILIAN EMPLOYMENT OF CAPTAIN WHITTEMORE WAS VOID AB INITIO AND NO RIGHT WHATSOEVER TO COMPENSATION AROSE THEREUNDER. HOWEVER, THE SAID OFFICER WAS AT ALL TIMES ELIGIBLE AND ENTITLED TO RECEIVE RETIRED PAY. SINCE TO DATE NO ACTION HAS BEEN TAKEN TO DISALLOW CREDIT OR RAISE A CHARGE AGAINST THE OFFICER ACCOUNTABLE FOR THE ERRONEOUS PAYMENTS OF CIVILIAN COMPENSATION, THE WITHHOLDING OF CAPTAIN WHITTEMORE'S RETIRED PAY WAS IMPROPER AND IS FOR REFUNDING TO HIM. SEE BAKER V. MCCARL, 24 F. 2D 897; MCCARL V. PENCE, 18 F. 2D 809; AND MCCARL V. COX, 8 F. 2D 669.
HOWEVER, THIS DATE I HAVE INSTRUCTED THE AUDIT DIVISION OF THIS OFFICE TO TAKE IMMEDIATE ACTION TO STATE AN EXCEPTION AGAINST THE PAYMENTS OF CIVILIAN COMPENSATION MADE TO CAPTAIN WHITTEMORE COVERING THE PERIOD OCTOBER 16, 1950, TO JUNE 1, 1951, AND THENCEFORTH CAPTAIN WHITTEMORE'S RETIRED PAY SHOULD BE WITHHELD UNDER THE PROVISIONS OF 5 U.S.C. 460, CITED IN YOUR LETTER, UNTIL SUCH TIME AS THE ENTIRE INDEBTEDNESS SHALL HAVE BEEN LIQUIDATED, OR OTHERWISE SHALL HAVE BEEN EXTINGUISHED.
PAYMENT ON THE VOUCHER - WHICH VOUCHER IS RETURNED HEREWITH - IS AUTHORIZED IF THE AMOUNT SHOWN THEREON OTHERWISE IS CORRECT.