B-199155 L/M, JUL 24, 1980

B-199155 L/M, JUL 24, 1980

PRECIS-UNAVAILABLE

HAROLD RUNNELS, HOUSE OF REPRESENTATIVES:

THIS IS IN RESPONSE TO YOUR LETTER OF JUNE 3, 1980, FORWARDING A LETTER DATED APRIL 24, 1980, FROM CAPTAIN JOSEPH C. MARATTA, JR., USAF, RETIRED, AND A LETTER DATED MAY 27, 1980, FROM LIEUTENANT COLONEL THOMAS W. WOOD, USAF, OFFICE OF LEGISLATIVE LIAISON, REQUESTING OUR ASSISTANCE IN ARRANGING PAYMENT OF CAPTAIN MARATTA'S READJUSTMENT PAY ON AN INSTALLMENT BASIS PURSUANT TO 4 C.F.R. SEC. 102.8 (CURRENTLY SUBSECTION 102.9). SINCE 10 U.S.C. SEC. 687(F) MAKES IT CLEAR THAT AN AMOUNT EQUAL TO 75 PERCENT OF CAPTAIN MARATTA'S READJUSTMENT PAY SHALL BE "DEDUCTED IMMEDIATELY" FROM HIS RETIRED PAY, AND SINCE SUCH READJUSTMENT PAY IS NOT A "CLAIM" TO WHICH 4 C.F.R. SEC. 102.8 IS APPLICABLE, OUR OFFICE IS WITHOUT AUTHORITY TO ARRANGE FOR PAYMENT ON AN INSTALLMENT BASIS.

CAPTAIN MARATTA RECEIVED READJUSTMENT PAY IN THE AMOUNT OF $15,000 UNDER 10 U.S.C. SEC. 687(A) WHICH PROVIDES IN PERTINENT PART:

"*** A MEMBER OF A RESERVE COMPONENT OR A MEMBER OF THE ARMY OR THE AIR FORCE WITHOUT COMPONENT WHO IS RELEASED FROM ACTIVE DUTY INVOLUNTARILY *** AND WHO HAS COMPLETED, IMMEDIATELY BEFORE HIS RELEASE, AT LEAST FIVE YEARS OF CONTINUOUS ACTIVE DUTY, IS ENTITLED TO A READJUSTMENT PAYMENT ***."

ALTHOUGH THE FULL FACTS ARE NOT CONTAINED IN THE MATERIALS FURNISHED IT IS CLEAR THAT AFTER BEING SEPARATED AS A COMMISSIONED OFFICER CAPTAIN MARATTA ENLISTED IN THE AIR FORCE AND SERVED ENOUGH TIME TO QUALIFY FOR RETIREMENT. AT THE TIME OF HIS RETIREMENT, CAPTAIN MARATTA WAS INFORMED BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER THAT HIS RETIRED PAY WAS BEING WITHHELD PENDING RECOUPMENT OF $11,250, WHICH IS 75 PERCENT OF THE $15,000 READJUSTMENT PAY HE RECEIVED. THIS ACTION WAS TAKEN PURSUANT TO 10 U.S.C. SEC. 687(F) WHICH PROVIDES:

"IF A MEMBER WHO RECEIVED A READJUSTMENT PAYMENT UNDER THIS SECTION AFTER JUNE 28, 1962, QUALIFIES FOR RETIRED PAY UNDER ANY PROVISION OF THIS TITLE OR TITLE 14 THAT AUTHORIZES HIS RETIREMENT UPON COMPLETION OF TWENTY YEARS OF ACTIVE SERVICE, AN AMOUNT EQUAL TO 75 PERCENT OF THAT PAYMENT, WITHOUT INTEREST, SHALL BE DEDUCTED IMMEDIATELY FROM HIS RETIRED PAY."

AT CURRENT RETIRED PAY LEVELS CAPTAIN MARATTA'S RETIRED PAY WILL BE WITHHELD IN FULL THROUGH DECEMBER 31, 1980, WITH A PARTIAL DEDUCTION IN JANUARY 1981. THEREAFTER, HE WILL RECEIVE HIS RETIRED PAY IN FULL.

THE STATUTE ON ITS FACE MAKES IT CLEAR THAT READJUSTMENT PAY IS TO BE RECOUPED IMMEDIATELY. WE HAVE PREVIOUSLY HELD THAT A MEMBER IS NOT ENTITLED TO RETIRED PAY PRIOR TO RECOUPMENT OF 75 PERCENT OF THE READJUSTMENT PAY PAID TO HIM. SEE 43 COMP.GEN. 402, 406 (1963) WHERE WE SAID:

"THUS IT SEEMS CLEAR THAT THE CONGRESS INTENDED THAT THE READJUSTMENT PAYMENT SHOULD BE DEDUCTED IMMEDIATELY WHEN A MEMBER BECOMES ENTITLED TO MONTHLY PAYMENTS OF RETIREMENT BENEFITS BASED ON THE ACTIVE SERVICE FOR WHICH THE MEMBER RECEIVES THAT PAYMENT. THERE IS NO EVIDENCE IN THE LEGISLATIVE HISTORY OR IN THE STATUTE INDICATING THAT RECOUPMENT OF THE READJUSTMENT PAYMENT SHOULD BE DEFERRED IN ANY CASE WHERE THE MEMBER BECOMES ENTITLED TO ANY MONTHLY RETIREMENT BENEFITS ON ACCOUNT OF HIS MILITARY SERVICE."

SEE ALSO 46 COMP.GEN. 684 (1967) AND 46 COMP.GEN. 107 (1966). A MEMBER WOULD BE ENTITLED TO THE IMMEDIATE RECEIPT OF RETIRED PAY UPON RETIREMENT ONLY IF HE HAD PREVIOUSLY REFUNDED THE ENTIRE AMOUNT OF HIS READJUSTMENT PAY. 43 COMP.GEN. 311 (1963).

YOU REFERENCE 4 C.F.R. SEC. 102.8 AS AUTHORIZING PARTIAL INSTALLMENT PAYMENTS. THAT SECTION PROVIDES IN PART:

"CLAIMS *** SHOULD BE COLLECTED IN FULL IN ONE LUMP SUM WHENEVER THIS IS POSSIBLE. HOWEVER, IF THE DEBTOR IS FINANCIALLY UNABLE TO PAY THE INDEBTEDNESS IN ONE LUMP SUM, PAYMENT MAY BE ACCEPTED IN REGULAR INSTALLMENTS. ***"

HOWEVER, THIS REGULATION IS INAPPLICABLE TO THE RECOUPMENT OF READJUSTMENT PAY. SECTION 102.8 WAS PROMULGATED PURSUANT TO 31 U.S.C. SEC. 952 WHICH INVOLVES THE COLLECTION AND COMPROMISE OF CLAIMS OF THE UNITED STATES. THE RECOUPMENT OF READJUSTMENT IS NOT THE COLLECTION OF A CLAIM. IN ACCORDANCE WITH 10 U.S.C. SEC. 687(F), 75 PERCENT OF READJUSTMENT PAY MUST BE DEDUCTED IMMEDIATELY FROM RETIRED PAY. THERE IS NO DEBT DUE THE UNITED STATES AND THE AMOUNT IN QUESTION CANNOT BE DEDUCTED FROM ANY OTHER SOURCE OF FUNDS. IN ESSENCE, ONCE CAPTAIN MARATTA RETIRES HIS READJUSTMENT PAY SUBSTITUTES FOR HIS RETIRED PAY UNTIL 75 PERCENT OF THE AMOUNT HE RECEIVED IS RECOUPED (READJUSTMENT PAY IS IN LIEU OF RETIRED PAY) SO THAT HE WILL NOT BE PAID TWICE FOR THE SAME CAUSE.

WE ARE, THEREFORE, UNABLE TO ARRANGE RECOUPMENT OF CAPTAIN MARATTA'S READJUSTMENT PAY ON AN INSTALLMENT BASIS. IT IS UNFORTUNATE THAT CAPTAIN MARATTA FINDS HIMSELF IN DIFFICULT CIRCUMSTANCES; HOWEVER, THE APPLICABLE PROVISIONS OF LAW PREVENT US FROM GRANTING THE RELIEF REQUESTED.