B-127814, OCT. 29, 1956

B-127814, OCT. 29, 1956

TO ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 11, 1956, CONCERNING THE INDEBTEDNESS TO THE UNITED STATES OF MRS. BERNICE E. HUNTLEY IN THE AMOUNT OF $1,070 ON ACCOUNT OF ERRONEOUS PAYMENTS OF FAMILY ALLOWANCE MADE TO HER DURING THE PERIOD JUNE 1, 1942, TO AUGUST 31, 1945, AS THE ALLEGED WIFE OF MR. HERBERT L. HUNTLEY.

YOU REFER TO OUR LETTER DATED AUGUST 7, 1956, TO YOU AND STATE THAT SUBSEQUENT TO THE DATE OF THAT LETTER MRS. HUNTLEY'S ATTORNEY INDICATED THAT THE MATTER WAS BEING RECONSIDERED BY US. YOU INDICATE THAT IF SUCH BE THE CASE, NO COLLECTION ACTION WOULD BE TAKEN BY YOUR OFFICE UNTIL A FINAL DETERMINATION OF THE INDEBTEDNESS WAS MADE. ALSO, YOU EXPRESS SOME DOUBT AS TO WHETHER YOUR AGENCY, WITHOUT THE CONSENT OF THE EMPLOYEE, PROPERLY MAY MAKE PAYROLL DEDUCTIONS UNDER THE PROVISIONS OF THE ACT OF JULY 15, 1954, 68 STAT. 482, TO SATISFY THE INDEBTEDNESS.

IN OUR LETTER OF AUGUST 7, 1956, WE ENCLOSED A COPY OF OUR DECISION OF THE SAME DATE TO MRS. HUNTLEY WHEREIN WE CONCLUDED THAT SHE WAS NOT THE "LAWFUL WIFE" OF MR. HERBERT L. HUNTLEY (WHO HAD A LIVING SPOUSE AT THAT TIME) DURING THE PERIOD SHE RECEIVED THE FAMILY ALLOWANCE PAYMENTS UNDER THE PROVISIONS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED. THEREAFTER, BY LETTER DATED SEPTEMBER 19, 1956, IN RESPONSE TO ANOTHER REQUEST FROM MRS. HUNTLEY'S ATTORNEY, WE SUSTAINED OUR PRIOR ACTION IN THE MATTER, CONCLUDING THAT THE ATTORNEY'S LETTER CONTAINED NO RELEVANT FACTS NOT PREVIOUSLY CONSIDERED AND HENCE DID NOT WARRANT ANY MODIFICATION OR RECONSIDERATION OF THE PRIOR ACTION IN THE MATTER. CONSEQUENTLY, THE ERRONEOUS PAYMENTS RECEIVED BY MRS. HUNTLEY CONSTITUTE A VALID DEBT DUE THE GOVERNMENT FOR WHICH SHE IS BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION.

IN REFERRING THE MATTER TO YOUR OFFICE FOR ASSISTANCE IN COLLECTING THE INDEBTEDNESS, WE CITED THE ACT OF JULY 15, 1954, 68 STAT. 482. SECTION 1 OF THAT ACT PROVIDES THAT WHEN IT IS DETERMINED BY THE SECRETARY EMPLOYEE OF THE UNITED STATES OR ANY MEMBER OF THE NAMED ARMED SERVICES OR THEIR RESERVE COMPONENTS IS INDEBTED TO THE UNITED STATES AS A RESULT OF ANY ERRONEOUS PAYMENT MADE BY THE DEPARTMENT OR AGENCY CONCERNED, THE AMOUNT OF THE INDEBTEDNESS MAY BE COLLECTED IN MONTHLY INSTALLMENTS, OR AT REGULAR PAY PERIOD INTERVALS, BY DEDUCTION IN REASONABLE AMOUNTS FROM BASIC COMPENSATION, BASIC PAY, ETC. WE HAVE RECOGNIZED THAT UNDER THE 1954 ACT WITHHOLDING OF CURRENT COMPENSATION WOULD NOT BE AUTHORIZED WHERE THE ERRONEOUS PAYMENT AND COMPENSATION DID NOT ARISE IN THE SAME DEPARTMENT OR AGENCY. SEE IN THIS CONNECTION 34 COMP. GEN. 170, 173. SINCE, IN THE PRESENT CASE, THE INDEBTEDNESS AROSE AS A RESULT OF ERRONEOUS PAYMENTS MADE BY THE DEPARTMENT OF THE ARMY, THE REFERENCE TO THE 1954 ACT SHOULD BE DISREGARDED. THE CORRECT SALARY OF AN EMPLOYEE STILL IN THE SERVICE MAY NOT BE WITHHELD WITHOUT HIS CONSENT TO LIQUIDATE HIS INDEBTEDNESS TO THE UNITED DECISION. HENCE, IN THE ABSENCE OF MRS. HUNTLEY'S CONSENT, THE WITHHOLDING OF HER CURRENT COMPENSATION TO LIQUIDATE THE INDEBTEDNESS IN QUESTION WOULD NOT BE PROPER. SINCE IT APPEARS THAT MRS. HUNTLEY MAY BE FINANCIALLY UNABLE TO REPAY THE FULL AMOUNT AT THIS TIME, AND IN ORDER TO AVOID FURTHER COLLECTION ACTION BY US, WE SUGGESTED TO HER IN OUR LETTER OF SEPTEMBER 19, 1956, THAT PERHAPS YOUR AGENCY WOULD GIVE HER AN OPPORTUNITY TO EXPLAIN HER FINANCIAL STATUS IN ORDER THAT A DETERMINATION MAY BE MADE AS TO WHAT COLLECTION PROCEDURE SHOULD BE ADOPTED IN HER CASE. AS STATED ABOVE, THIS IS A VALID DEBT DUE THE GOVERNMENT AND PROPER ADMINISTRATIVE EFFORTS SHOULD BE MADE TO EXPLAIN TO THE EMPLOYEE THAT THE DEBT SHOULD BE LIQUIDATED. PLEASE ADVISE US WHETHER MRS. HUNTLEY CONSENTS TO THE WITHHOLDING OF A PART OF HER CURRENT COMPENSATION TO BE APPLIED TO REDUCE THE INDEBTEDNESS. ALSO, APPROPRIATE NOTATIONS SHOULD BE MADE IN THE RECORDS SO THAT CONSIDERATION MAY BE GIVEN TO RECOVERY OF THE AMOUNTS FROM FINAL SALARY WHICH MAY BECOME DUE THE EMPLOYEE. SEE 32 COMP. GEN. 499, 502.