B-121540, JANUARY 26, 1956, 35 COMP. GEN. 421

B-121540, JANUARY 26, 1956, 35 COMP. GEN. 421

DEBT COLLECTION - ERRONEOUS PAYMENTS TO MILITARY PERSONNEL - ACT OF JULY 15, 1954 THE ACT OF MAY 22, 1928, WHICH AUTHORIZES THE REMISSION OF DEBTS ARISING FROM THE RECEIPT OF ERRONEOUS PAYMENTS BY ENLISTED MEMBERS OF THE ARMY AND THE AIR FORCE, WAS NOT SUPERSEDED OR ENDED BY THE ACT OF JULY 15, 1954, WHICH INCLUDES A SIMILAR REMISSION PROVISION, AND, THEREFORE, ERRONEOUS PAYMENT DEBTS OF ENLISTED MEMBERS OF THE ARMY AND AIR FORCE MAY CONTINUE TO BE REMITTED UNDER THE 1928 ACT. 34 COMP. GEN. 504, MODIFIED IN PART.

TO THE SECRETARY OF DEFENSE, JANUARY 26, 1956:

REFERENCE IS MADE TO LETTER OF AUGUST 1, 1955, FROM THE ASSISTANT SECRETARY OF DEFENSE, TRANSMITTING PAY AND ALLOWANCE COMMITTEE ACTION 121 AND REQUESTING RECONSIDERATION OF THAT PART OF OUR DECISION OF APRIL 8, 1955, 34 COMP. GEN. 504, WHICH HELD, IN ANSWERING THE THIRD QUESTION THERE PRESENTED, THAT THE PROVISION IN THE ACT OF MAY 22, 1928, AS AMENDED, 10 U.S.C. 875A, UNDER WHICH THE SECRETARY OF THE ARMY AND THE SECRETARY OF THE AIR FORCE ARE AUTHORIZED TO REMIT ADMINISTRATIVELY ASCERTAINED DEBTS OF ENLISTED MEN, HAD IN EFFECT BEEN SUSPENDED BY THE ACT OF JULY 15, 1954, 68 STAT. 482, 5 U.S.C. 46D, INSOFAR AS DEBTS ARISING FROM ERRONEOUS PAYMENTS, COLLECTIBLE UNDER THE LATTER ACT, ARE CONCERNED.

AS A BASIS FOR MODIFICATION OF THE DECISION IN THAT RESPECT, IT IS URGED THAT THE REMISSION OF DEBTS AUTHORIZED BY THE 1928 ACT, AS AMENDED, HAS HERETOFORE BEEN CONSIDERED AS INCLUDING DEBTS ARISING FROM ERRONEOUS PAYMENTS AND THAT TO EXCLUDE SUCH DEBTS FROM THE REMISSION PROVISION IS TO WORK A MODIFICATION OF THE 1928 ACT CONTRARY TO THE PURPOSE AND EFFECT OF SECTION 4 OF THE 1954 ACT, WHICH PROVIDES THAT NOTHING CONTAINED IN THE LATTER ACT SHALL BE CONSTRUED AS REPEALING, AMENDING, OR MODIFYING IN ANY WAY THE PROVISIONS OF THE 1928 ACT.

IN ARRIVING AT THE ANSWER TO QUESTION 3 IN THE DECISION OF APRIL 8, 1955, WE REFERRED TO THE INCONSISTENCIES BETWEEN THE 1928 ACT AND SOME OF THE PROVISIONS OF THE ACT OF JULY 15, 1954, ADVERTING IN THAT CONNECTION TO THE ANSWER TO QUESTION 4 IN THE PRIOR DECISION OF OCTOBER 11, 1954, 34 COMP. GEN. 164, WHERE AN ENDEAVOR WAS MADE TO GIVE REASONABLE AND PROPER EFFECT TO THE PROVISIONS OF BOTH STATUTES BY EXCLUDING FROM APPLICATION OF THE PROVISIONS OF THE 1928 ACT ONLY THOSE DEBTS OF ENLISTED PERSONS OF THE ARMY AND AIR FORCE WHICH RESULTED FROM ERRONEOUS PAYMENTS AND WHICH WERE COVERED BY INCONSISTENT PROVISIONS IN THE 1954 ACT. THIS WAS BASED PRIMARILY ON THE REQUIREMENT IN SECTION 2 OF THE 1954 ACT FOR THE PROMULGATION OF REGULATIONS BY THE HEADS OF THE RESPECTIVE DEPARTMENTS, TO BE APPROVED BY THE DIRECTOR OF THE BUDGET, THOSE OF THE ARMY, NAVY, AND AIR FORCE TO BE UNIFORM SO FAR AS PRACTICABLE, WHICH CONTEMPLATED GENERALLY, OF COURSE, THAT THE PROVISIONS FOR COLLECTING OVERPAYMENTS FROM MILITARY PERSONNEL WOULD HAVE UNIFORM APPLICATION THROUGHOUT THE THREE SERVICES. IN THE LATER DECISION OF APRIL 8, 1955, THAT PRINCIPLE OF UNIFORMITY RESPECTING THE COLLECTION OF DEBTS RESULTING FROM OVERPAYMENTS WAS VIEWED AS EXTENDING LIKEWISE TO THE REMISSION OF SUCH DEBTS UNDER THE AUTHORITY OF THE 1928 ACT.

A MORE DEFINITE VIEW OF THE LEGAL EFFECT OF THE PROHIBITION IN SECTION 4 OF THE 1954 ACT AGAINST MODIFYING THE 1928 ACT, COUPLED WITH THE OBSERVATION THAT THE AUTHORITY IN THE 1928 ACT TO REMIT SUCH DEBTS MAY WELL BE TREATED AS EXTRANEOUS TO THE MATTERS TO BE COVERED BY THE REGULATIONS CONTEMPLATED BY SECTION 2 OF THE 1954 ACT, HAS LED US TO THE OPINION, HOWEVER, THAT THERE IS NOT SUCH AN INCOMPATIBILITY BETWEEN THE 1928 ACT AND THE 1954 ACT ON THE POINT HERE INVOLVED AS TO REQUIRE THE CONCLUSION THAT THE 1928 ACT WAS SUPERSEDED OR SUSPENDED BY THE 1954 ACT WITH RESPECT TO REMISSION OF DEBTS ARISING OUT OF ERRONEOUS PAYMENTS RECEIVED BY ENLISTED MEMBERS OF THE ARMY AND AIR FORCE. THE ANSWER TO THE THIRD QUESTION IN THE DECISION OF APRIL 8, 1955, 34 COMP. GEN. 504, IS MODIFIED ACCORDINGLY AND THE SPECIFIC QUESTION THERE PRESENTED IS NOW ANSWERED IN THE AFFIRMATIVE.