B-117232, MARCH 25, 1955, 34 COMP. GEN. 470

B-117232, MARCH 25, 1955, 34 COMP. GEN. 470

DISBURSING OFFICERS - LIABILITY - SUSPENSION OF COLLECTION ACTION PENDING LEGISLATIVE RELIEF THE DEFERMENT OF ACTION ON AN EXCEPTION TAKEN IN A DISBURSING OFFICER'S ACCOUNT TO AN OVERPAYMENT TO A NAVAL RESERVE OFFICER, OR THE DELAY IN THE ISSUANCE OF NOTICES OF EXCEPTIONS IN SIMILAR CASES PENDING LEGISLATIVE RELIEF, COULD LESSEN POSSIBILITY OF COLLECTION, RESULT IN RELIEVING DISBURSING OFFICER'S SURETY OF LIABILITY AND BAR FURTHER AUDIT ACTION, SO THAT AN ADMINISTRATIVE REQUEST FOR SUCH ABATEMENT MAY NOT BE GRANTED.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE NAVY, MARCH 25, 1955:

REFERENCE IS MADE TO LETTER OF FEBRUARY 8, 1955, FROM THE ASSISTANT SECRETARY OF THE NAVY ( FINANCIAL MANAGEMENT) REQUESTING THAT WE HOLD IN ABEYANCE AN EXCEPTION TAKEN BY US WITH RESPECT TO THE PAY CREDITED TO LIEUTENANT ROBERT P. PUNDERSON, UNITED STATES NAVAL RESERVE, FOR THE PERIOD MAY 1 TO AUGUST 21, 1952, AND THAT THE ISSUANCE OF FURTHER EXCEPTIONS IN SIMILAR CASES BE DELAYED UNTIL THE NAVY HAD OPPORTUNITY TO SEEK LEGISLATIVE RELIEF IN THE MATTER. THE EXCEPTION IN LIEUTENANT PUNDERSON'S CASE WAS TAKEN ON THE GROUND THAT HIS TEMPORARY PROMOTION ON AUGUST 22, 1952, WHILE HE WAS ON ACTIVE DUTY, COULD HAVE NO RETROACTIVE EFFECT FOR PAY PURPOSES.

IT IS STATED IN THE LETTER OF FEBRUARY 8, 1955, THAT 2,801 NAVAL RESERVE OFFICERS RECEIVED TEMPORARY PROMOTIONS IN THE SAME MANNER AS LIEUTENANT PUNDERSON AND THAT ONLY 404 OF THOSE OFFICERS NOW ARE ON ACTIVE DUTY. IS ALSO STATED THAT THE OFFICERS AFFECTED WERE, IN MOST CASES, INVOLUNTARILY RECALLED TO ACTIVE DUTY TO MEET THE NEEDS OF THE SERVICE INCIDENT TO OPERATIONS IN KOREA. IT IS FURTHER STATED THAT TO REQUIRE THESE OFFICERS TO REFUND THE OVERPAYMENTS INVOLVED--- WHICH WERE MADE BY DISBURSING OFFICERS IN ACCORDANCE WITH ADMINISTRATIVE REGULATIONS OF THE DEPARTMENT OF THE NAVY AND WERE ACCEPTED IN GOOD FAITH BY THE OFFICERS CONCERNED--- WOULD, IN MANY CASES, INVOLVE FINANCIAL HARDSHIP AND WOULD HAVE A DELETERIOUS EFFECT UPON THE PROGRAM OF THE NAVY TO ENCOURAGE ACTIVE PARTICIPATION IN THE NAVAL RESERVE PROGRAM.

FINALLY, IT IS STATED THAT THE DEPARTMENT OF THE NAVY IS DRAFTING FOR SUBMISSION TO CONGRESS PROPOSED LEGISLATION WHICH WOULD RELIEVE SUCH OFFICERS FROM LIABILITY TO REFUND THE RETROACTIVE PAYMENTS.

FOR US TO HOLD IN ABEYANCE ANY FURTHER ACTION ON LIEUTENANT PUNDERSON'S CASE COULD INVOLVE ITS OMISSION FROM THE NEXT PERIODIC CERTIFICATE OF SETTLEMENT OF THE DISBURSING OFFICER'S ACCOUNT. THAT COULD LESSEN THE POSSIBILITY OF THE COLLECTION OF THE OVERPAYMENT BY THE DISBURSING OFFICER AND MIGHT RESULT IN RELIEVING THE DISBURSING OFFICER'S SURETY OF ANY LIABILITY FOR SUCH OVERPAYMENT.

THE OVERPAYMENT IN LIEUTENANT PUNDERSON'S CASE RELATED TO THE PERIOD MAY 1 TO AUGUST 21, 1952. WITH RESPECT TO SIMILAR CASES, FAILURE TO ISSUE EXCEPTIONS AS THE OVERPAYMENTS ARE DISCOVERED HERE PROBABLY WOULD RESULT IN THE BARRING OF ANY FUTURE AUDIT ACTION RESPECTING SUCH OVERPAYMENTS. SEE THE ACT OF MAY 19, 1947, 61 STAT. 101, 31 U.S.C. 82I, WHICH PROVIDES THAT THE ACCOUNTS OF DISBURSING OFFICERS SHALL BE SETTLED WITHIN THREE YEARS AFTER THE DATE OF THEIR RECEIPT BY THE GENERAL ACCOUNTING OFFICE. SEE, ALSO, 19 COMP. GEN. 306 AND 28 COMP. GEN. 17 RESPECTING THE PRIMARY RESPONSIBILITY FOR ERRONEOUS PAYMENTS MADE BY A DISBURSING OFFICER AND THE EFFECT OF HIS ABILITY OR INABILITY TO RECOUP AN IMPROPER PAYMENT FROM THE PAYEE.

ACCORDINGLY, WE MAY NOT ACCEDE TO THE ASSISTANT SECRETARY'S REQUEST THAT THE EXCEPTION IN THE CASE OF LIEUTENANT PUNDERSON BE HELD IN ABEYANCE AND THAT THE ISSUANCE OF NOTICES OF EXCEPTION IN SIMILAR CASES BE DELAYED. HOWEVER, AS YOU MAY KNOW, THE STATING OF EXCEPTIONS DOES NOT NECESSARILY MEAN THAT WE WILL PRESS COLLECTION ACTION AGAINST THE DISBURSING OFFICERS INVOLVED, PRIOR TO THE END OF THE PRESENT SESSION OF CONGRESS, EXCEPT TO THE EXTENT NECESSARY TO AVOID SUBSTANTIAL PREJUDICE TO THE RIGHTS AND INTERESTS OF THE GOVERNMENT UNDER THE LAW. ALSO, AS YOU KNOW, THE MATTER OF RECOVERING THE AMOUNTS OF THE OVERPAYMENTS BY COLLECTING FROM THE PAYEES IS LARGELY A MATTER FOR THE DISBURSING OFFICERS TO DECIDE, SINCE THEY ARE THE ONES PRIMARILY LIABLE FOR THE OVERPAYMENTS.