B-133705, NOVEMBER 18, 1957, 37 COMP. GEN. 344

B-133705, NOVEMBER 18, 1957, 37 COMP. GEN. 344

MILITARY PERSONNEL - EMBEZZLEMENT OR LOSS OF FUNDS - DEBT LIQUIDATION - CURRENT PAY WITHHOLDING ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHO DO NOT PERFORM DISBURSEMENT DUTIES AND WHO ARE NOT BONDED, BUT WHO EMBEZZLE OR LOSE GOVERNMENT MONEYS ENTRUSTED TO THEM, HAVE A STATUS WHICH IS MORE THAN THAT OF AN ORDINARY DEBTOR OF THE UNITED STATES WITHIN THE MEANING OF THE DECISION IN MCCARL V. PENCE, 18 F.2D 809, IN WHICH IT WAS HELD THAT THE CURRENT PAY WITHHOLDING PROVISIONS IN SECTION 1766, REVISED STATUTES, 5 U.S.C. 82, WERE NOT APPLICABLE TO ORDINARY DEBTORS AS DISTINGUISHED FROM DISBURSING OFFICERS; AND, THEREFORE, THE FAILURE OF SUCH ENLISTED MEMBERS TO ACCOUNT FOR GOVERNMENT MONEYS MAKES THEM ACCOUNTABLE EMPLOYEES SUBJECT TO SET-OFF ACTION UNDER SECTION 1766, REVISED STATUTES, WHICH REQUIRES THE WITHHOLDING OF CURRENT PAY UNTIL THE DEBT IS DISCHARGED. MILITARY OFFICERS WHO ARE DESIGNATED AS DEPUTIES TO DISBURSING OFFICERS UNDER 31 U.S.C. 103A, WHICH SUBJECTS THEM TO THE SAME LIABILITIES AND PENALTIES AS DISBURSING OFFICERS, AND WHO LOSE OR EMBEZZLE FUNDS ENTRUSTED TO THEM BY THE DISBURSING OFFICER ARE SUBJECT TO THE CURRENT PAY WITHHOLDING PROVISIONS IN SECTION 1766, REVISED STATUTES, 5 U.S.C. 82, UNTIL THE DEBT HAS BEEN PAID. THE PROVISIONS OF 10 U.S.C. 2772, UNDER WHICH THE SECRETARY OF A MILITARY DEPARTMENT MAY AUTHORIZE INSTALLMENT LIQUIDATION OF AN INDEBTEDNESS, ARE APPLICABLE TO MILITARY AS DISTINGUISHED FROM CIVILIAN OFFICERS, AND, THEREFORE, A CIVILIAN DEPUTY DISBURSING OFFICER IN A MILITARY DEPARTMENT WHO LOSES OR EMBEZZLES FUNDS ENTRUSTED TO HIM BY THE DISBURSING OFFICER MAY NOT RECEIVE ANY PAY UNTIL THE DEBT IS LIQUIDATED. THE PROVISIONS OF 10 U.S.C. 4833 AND 9833, WHICH IMPOSE ON ARMY AND AIR FORCE ACCOUNTABLE OFFICERS AND THEIR AGENTS PECUNIARY RESPONSIBILITY FOR MONEY ENTRUSTED TO THEM, REQUIRE MORE THAN A MERE SHOWING OF MONEY RESPONSIBILITY WITHOUT A REFUND IN THE CASE OF LOSS OF FUNDS OR EMBEZZLEMENT BY THE AGENT OFFICER; HOWEVER, WITHHOLDING OF CURRENT PAY OF THE AGENT UNTIL THE DEBT IS DISCHARGED IS PROPER UNDER SECTION 1766, REVISED STATUTES, 5 U.S.C. 82.

TO THE SECRETARY OF DEFENSE, NOVEMBER 18, 1957:

THIS REFERS TO THE LETTER OF SEPTEMBER 6, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING OUR DECISION ON FOUR QUESTIONS SET FORTH IN COMMITTEE ACTION NO. 192 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

1. AN ENLISTED SERVICE MEMBER OF THE ARMED FORCES IS ENTRUSTED WITH FUNDS FOR SMALL PURCHASES, SIGNING IN CONNECTION THEREWITH AN INTERIM RECEIPT FOR CASH ( STANDARD FORM NO. 1165 PRESCRIBED BY COMPTROLLER GENERAL, U.S. MARCH 10, 1952 GENERAL REGULATIONS NO. 103) HOLDING HIMSELF ACCOUNTABLE TO THE UNITED STATES. IN THE EVENT OF LOSS OR EMBEZZLEMENT OF SUCH FUNDS BY THIS SERVICE MEMBER MAY HIS CURRENT PAY BE WITHHELD TO PROTECT THE GOVERNMENT AGAINST LOSS?

2. IF AN OFFICER DEPUTY OF A DISBURSING OFFICER LOSES OR EMBEZZLES FUNDS ENTRUSTED TO HIM BY THE DISBURSING OFFICER, MAY HIS CURRENT PAY BE WITHHELD UNDER SECTION 1866, REVISED STATUTES, PROVIDED THE REQUIREMENTS OF 10 U.S.C. 2772 ARE MET?

3. IF QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE AND HAD THE QUESTION INVOLVED A CIVILIAN DEPUTY, WOULD SUCH DEPUTY BE CONSIDERED AS AN "OFFICER" WITHIN THE MEANING OF 10 U.S.C. 2772 SO AS TO PERMIT THE SECRETARY CONCERNED TO AUTHORIZE INSTALLMENT LIQUIDATION OF THE INDEBTEDNESS ON OTHER THAN A TOTAL-LOSS-OF-PAY BASIS? (IN THIS CONNECTION, SEE 10 U.S.C. 101 (14).)

4. IF AN OFFICER LOSES OR EMBEZZLES PUBLIC FUNDS ENTRUSTED TO HIM UNDER THE AUTHORITY OF SECRETARIAL REGULATIONS ISSUED PURSUANT TO 10 U.S.C. 4833 OR 9833, MAY HIS CURRENT PAY BE WITHHELD UNDER SECTION 17 REVISED STATUTES, PROVIDED THE REQUIREMENTS OF 10 U.S.C. 2772 ARE MET?

SECTION 1766, REVISED STATUTES, 5 U.S.C. 82, PROVIDES IN PART, AS FOLLOWS:

NO MONEY SHALL BE PAID TO ANY PERSON FOR HIS COMPENSATION WHO IS IN ARREARS TO THE UNITED STATES, UNTIL HE HAS ACCOUNTED FOR AND PAID INTO THE TREASURY ALL SUMS FOR WHICH HE MAY BE LIABLE. * * *

IT IS STATED IN THE DISCUSSION SET FORTH IN COMMITTEE ACTION NO. 192 THAT THIS STATUTE GENERALLY HAS BEEN HELD TO APPLY ONLY TO PERSONS WHO, AS CONTRACTING OR DISBURSING OFFICERS, ARE ENGAGED IN THE COLLECTION AND DISBURSEMENT OF PUBLIC FUNDS AND ARE REQUIRED TO RENDER ACCOUNTS THEREFOR; AND THAT IT HAS BEEN HELD NOT TO APPLY TO ORDINARY DEBTORS OF THE UNITED STATES, CITING MCCARL V. PENCE, 18 F.2D 809; 29 COMP. GEN. 99 AND DECISIONS CITED THEREIN. REGARDING THE DECISION IN MCCARL V. PENCE, IT IS STATED THAT SUCH DECISION SUPPORTS THE VIEW THAT SECTION 1766, REVISED STATUTES, SUPPLIES AUTHORITY TO WITHHOLD A DISBURSING OFFICER'S PAY, BUT THAT SAID SECTION SUPPLIES NO AUTHORITY TO STOP THE PAY OF ARMY OFFICERS GENERALLY. FURTHER, THAT THE DECISION SPECIFICALLY HELD THAT THE ACT OF JULY 16, 1892 (10 U.S.C. 2772), WHICH MODIFIED SECTION 1766, REVISED STATUTES, OPERATED AS A FURTHER RESTRICTION TO THE EXERCISE OF THE RIGHT GIVEN UNDER SECTION 1766 TO STOP EVEN A DISBURSING OFFICER'S PAY IN THAT THE STOPPAGE OF PAY AGAINST A DISBURSING OFFICER COULD NOT BE MADE UNLESS THERE EXISTED A JUDGMENT OF A COURT AGAINST SUCH DISBURSING OFFICER FOR THE AMOUNT INVOLVED, THE INDEBTEDNESS TO THE UNITED STATES WAS ADMITTED BY THE DISBURSING OFFICER, OR UNLESS THE SECRETARY OF WAR IN HIS DISCRETION CHOSE TO ISSUE A SPECIAL ORDER DIRECTING THE WITHHOLDING OF PAY. IT IS FURTHER STATED THAT INCLUDED IN THE OPINION OF MCCARL V. PENCE IS THE DETERMINATION THAT THE WORDS "ANY PERSON" AS USED IN SECTION 1766, REVISED STATUTES, REFER TO AND MEAN A DISBURSING OFFICER, A CONTRACTOR, OR OTHER PERSON WHO HAS AN OPEN OR RUNNING ACCOUNT WITH THE GOVERNMENT.

THE QUESTION CONSIDERED IN THE CASE OF MCCARL V. PENCE, AND OTHERS CITED THEREIN WHICH CONCERNED SECTION 1766, REVISED STATUTES, WAS WHETHER CURRENT PAY OF AN OFFICER OR EMPLOYEE OF THE GOVERNMENT COULD BE WITHHELD TO LIQUIDATE AN INDEBTEDNESS FOR AN OVERPAYMENT BASED UPON A DISALLOWANCE BY THE ACCOUNTING OFFICERS OF AN ITEM IN A DISBURSING OFFICER'S ACCOUNT. SECTION 1766 WAS HELD TO BE INAPPLICABLE TO SUCH CASES. STATUTORY AUTHORITY HAS SINCE BEEN PROVIDED FOR THE WITHHOLDING OF CURRENT PAY TO LIQUIDATE ERRONEOUS PAYMENTS (68 STAT. 482, 5 U.S.C. 46B). SINCE THE DECISIONS IN MCCARL V. PENCE AND RELATED COURT CASES DID NOT INVOLVE THE WITHHOLDING OF CURRENT PAY FROM A PERSON WHO HAD BEEN ENTRUSTED WITH PUBLIC FUNDS AND WHO FAILED TO ACCOUNT THEREFOR, THEY ARE NOT VIEWED AS NECESSARILY PRECLUDING THE APPLICATION OF SECTION 1766 TO CASES SUCH AS HERE INVOLVED. OTHERWISE THERE WOULD BE NO IMMEDIATE REMEDY FOR THE RECOVERY OF A LOSS SUSTAINED BY THE GOVERNMENT BY THE DEFALCATION OF A PERSON TECHNICALLY NOT A "CONTRACTOR OR DISBURSING OFFICER" WITHIN THE MCCARL V. PENCE DECISION, BUT WHO WAS DULY ENTRUSTED WITH PUBLIC MONEY FOR WHICH HE FAILED TO ACCOUNT AND CLEARLY A "PERSON" WHO IS "IN ARREARS TO THE UNITED STATES" WITHIN THE WORDS OF SECTION 1766. SEE IN THIS CONNECTION 26 OP./ATTY./GEN. 77 AT PAGE 79 WHERE THE WORDS "ANY PERSON" AND ,OFFICER" WERE VIEWED TO BE "CONTRACTORS OR DISBURSERS, OR BOTH, OF THE PUBLIC FUNDS, OR CONTRACTORS OR OFFICERS RECEIVING ADVANCES * * *.' ITALICS SUPPLIED.) NO REASON IS APPARENT AS TO WHY THE CURRENT PAY OF A PERSON, NOT A DISBURSING OFFICER, SHOULD BE IMMUNE TO WITHHOLDING IN THE EVENT OF FAILURE TO ACCOUNT FOR PUBLIC FUNDS WITH WHICH HE HAS BEEN ENTRUSTED AND FOR WHICH HE IS REQUIRED TO ACCOUNT.

CONCERNING QUESTION NO. 1 IT IS POINTED OUT IN THE DISCUSSION AS SET FORTH IN COMMITTEE ACTION NO. 192 THAT INSTANCES ARISE IN WHICH ENLISTED MEMBERS, WHOSE PRIMARY DUTIES INVOLVE NO FIDUCIARY CAPACITY IN CONNECTION WITH PUBLIC MONEY ENTRUSTED TO THEM FOR DISBURSEMENT AND WHO ARE NOT BONDED TO SECURE THE LAWFUL DISBURSEMENT OF PUBLIC MONEY, HAVE BEEN ENTRUSTED WITH PUBLIC MONEY FOR LAWFUL PURPOSES AND UNLAWFULLY CONVERT THE SAME TO THEIR OWN USE. ALTHOUGH SUCH MEMBERS MAY BE PROSECUTED BY COURT- MARTIAL, PROSECUTION OF THE OFFENDER CANNOT ACCOMPLISH DIRECTLY THE RECOVERY OF MONEY WHICH THE GOVERNMENT HAS LOST. IT IS URGED IN THE COMMITTEE ACTION THAT THE TIME MOST PRACTICABLE AND OPPORTUNE FOR THE GOVERNMENT TO RECOVER ITS LOSS IS AS SOON AS POSSIBLE AFTER DISCOVERY OF THE OFFENSES, AND THAT THE BEST SOURCE OF RECOVERY IS THE CURRENT PAY OF THE SERVICE MEMBER. WITH RESPECT TO QUESTION NO. 1, IT IS THE VIEW OF THE COMMITTEE THAT, ASSUMING COMPLIANCE WITH THE APPLICABLE PORTIONS OF GENERAL REGULATIONS NO. 103, 24 COMP. GEN. 972, IN THE INSTANCE OF LOSS OR EMBEZZLEMENT BY AN ENLISTED MEMBER OF GOVERNMENT MONEYS ENTRUSTED TO HIM, IT WOULD SEEM THAT HIS STATUS WOULD BE MORE THAN THAT OF AN ORDINARY DEBTOR OF THE UNITED STATES; THAT UNDER THE RULE ESTABLISHED IN MCCARL V. PENCE IT WOULD SEEM THAT FROM THE TIME THE SERVICE MEMBER SIGNED THE INTERIM RECEIPT FOR CASH AND RECEIVED THE CASH ADVANCE AN OPEN ACCOUNT WOULD BE ESTABLISHED, AND THAT HIS SUBSEQUENT FAILURE TO ACCOUNT WOULD CONSTITUTE HIM AN ACCOUNTABLE PERSON SUBJECT TO SET-OFF ACTION UNDER SECTION 1766 REVISED STATUTES REQUIRING THAT HIS CURRENT PAY BE WITHHELD UNTIL SUCH TIME AS HE MIGHT ACCOUNT FOR AND DISCHARGE BY PAYMENT ALL SUMS FOR WHICH HE IS LAWFULLY LIABLE. WE CONCUR IN THIS VIEW FOR THE REASONS HEREINABOVE STATED. BY THE RECEIPT OF CASH AND THE SIGNING OF AN INTERIM RECEIPT FOR CASH, WHICH READS " RECEIVED OF IMPREST FUND CASHIER $-------- -- FOR WHICH I HOLD MYSELF ACCOUNTABLE TO THE UNITED STATES" AN ENLISTED MEMBER WOULD APPEAR TO BE, IN THE EVENT OF LOSS OR EMBEZZLEMENT OF SUCH FUNDS, A "PERSON" WHO IS "IN ARREARS TO THE UNITED TATES" AND SUBJECT TO THE PROVISIONS OF 1766, REVISED STATUTES. QUESTION NO. 1 IS THEREFORE ANSWERED IN THE AFFIRMATIVE.

QUESTION NO. 2, AS INDICATED IN THE COMMITTEE DISCUSSION THEREUNDER, RELATES TO OFFICERS DESIGNATED AS DEPUTIES TO DISBURSING OFFICERS UNDER AUTHORITY OF 31 U.S.C. 103A, WHICH PROVIDES AS FOLLOWS:

WHEN, IN THE OPINION OF THE SECRETARY OF THE ARMY, NAVY, OR AIR FORCE, THE EXIGENCIES OF THE SERVICE SO REQUIRE, DISBURSING OFFICERS OF THE ARMY, NAVY, AIR FORCE, AND MARINE CORPS MAY, WITH THE APPROVAL OF THE HEAD OF THEIR EXECUTIVE DEPARTMENT AND THE CONSENT OF THEIR SURETY OR SURETIES, IF ANY, DESIGNATE DEPUTIES FOR THE PURPOSE OF HAVING THEM MAKE DISBURSEMENTS AS THEIR AGENTS, SIGN CHECKS DRAWN AGAINST THEIR DISBURSING ACCOUNTS WITH THE TREASURER OF THE UNITED STATES, AND DISCHARGE ALL OTHER DUTIES REQUIRED ACCORDING TO LAW OR REGULATION TO BE PERFORMED BY SUCH DISBURSING OFFICERS, AND THE AGENT OFFICER SHALL BE SUBJECT, FOR HIS OFFICIAL MISCONDUCT, TO ALL LIABILITIES AND PENALTIES PRESCRIBED BY LAW IN LIKE CASES FOR THE OFFICER FOR WHOM HE ACTS AS DEPUTY: PROVIDED, THAT EVERY DEPUTY SO DESIGNATED FOR A DISBURSING OFFICER WHO IS BONDED SHALL, IF NOT ALREADY UNDER BOND, GIVE BOND AS REQUIRED BY THE HEAD OF THE DEPARTMENT CONCERNED.

THE FOLLOWING STATEMENT IS MADE IN COMMITTEE ACTION NO. 192 CONCERNING QUESTION 2:

AS INDICATED IN MCCARL V. PENCE (18 F.2D 809, 811), 23 COMP. GEN. 555, AND 29 COMP. GEN. 99, SECTION 1766, REVISED STATUTES, APPLIES ONLY TO PERSONS WHO, AS CONTRACTORS OR DISBURSING OFFICERS, HOLD IN TRUST SUMS OR BALANCES OF PUBLIC MONEY FOR WHICH THEY ARE REQUIRED TO ACCOUNT. SINCE A DEPUTY IS NEITHER A CONTRACTOR NOR A DISBURSING OFFICER, IT MIGHT BE CONTENDED THAT HIS CURRENT PAY MAY NOT BE WITHHELD, BUT THAT HIS FINAL PAY MAY BE WITHHELD. (COMPARE 33 COMP. GEN. 443.) HOWEVER, IN VIEW OF SECTION 103A OF TITLE 31, U.S. CODE, QUOTED ABOVE, SINCE A DEPUTY IS SUBJECT FOR HIS OFFICIAL MISCONDUCT TO THE SAME LIABILITIES AND PENALTIES AS A DISBURSING OFFICER, A REASONABLE PRESUMPTION IS RAISED THAT HIS PAY MAY BE WITHHELD.

FOR THE REASONS HEREINABOVE STATED WE DO NOT VIEW SECTION 1766 TO BE RESTRICTED TO "DISBURSING OFFICERS" TO THE EXCLUSION OF OTHER PERSONS ENTRUSTED WITH AND DULY AUTHORIZED TO DISBURSE PUBLIC FUNDS. ACCORDINGLY, AND IN VIEW OF THE SPECIFIC PROVISIONS OF 31 U.S.C. 103A REGARDING THE AUTHORITY AND LIABILITY OF DEPUTY DISBURSING OFFICERS, QUESTION NO. 2 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION NO. 3 CONCERNS THE PROVISIONS OF THE ACT OF JULY 16, 1892, AS AMENDED AND RESTATED, 10 U.S.C. 2772, WHICH PROVIDES AS FOLLOWS:

THE PAY OF AN OFFICER OF THE ARMY, NAVY, AIR FORCE, OR MARINE CORPS MAY BE WITHHELD, UNDER SECTION 82 OF TITLE 5, ONLY FOR AN INDEBTEDNESS TO THE UNITED STATES ADMITTED BY THE OFFICER OR SHOWN BY THE JUDGMENT OF A COURT, OR UPON A SPECIAL ORDER ISSUED IN THE DISCRETION OF THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED.

AS STATED IN COMMITTEE ACTION NO. 192, THE LITERAL TERMS OF THE ACT EXTEND TO THE PAY OF ,OFFICERS" OF THE ARMY, NAVY, AIR FORCE, AND MARINE CORPS. THE LEGISLATIVE HISTORY OF THE ACT OF JULY 10, 1952, 66 STAT. 575, 10 U.S.C. 877, WHICH AMENDED THE ACT OF JULY 16, 1892, INDICATES THAT THE WORD "OFFICERS" WAS INTENDED TO MEAN MILITARY OFFICERS. ALSO 10 U.S.C. 101 (14), DEFINES FOR THE PURPOSE OF TITLE 10, U.S.C., AN "OFFICER" AS "COMMISSIONED OR WARRANT OFFICER.' IT IS THEREFORE APPARENT THAT THE PROVISIONS OF 10 U.S.C. 2772, UNDER WHICH THE SECRETARY OF THE DEPARTMENT CONCERNED MAY IN HIS DISCRETION AUTHORIZE INSTALLMENT LIQUIDATION, DOES NOT APPLY TO A CIVILIAN DEPUTY AND THEREFORE ALL OF THE PAY OF SUCH CIVILIAN DEPUTY WOULD BE REQUIRED TO BE WITHHELD. 19 COMP. GEN. 312. QUESTION NO. 3 IS ANSWERED ACCORDINGLY.

QUESTION NO. 4 CONCERNS OFFICERS PERFORMING DISBURSING FUNCTIONS UNDER THE AUTHORITY OF 10 U.S.C. 4833, APPLICABLE TO OFFICERS OF THE ARMY, AND THE SIMILAR PROVISIONS OF 10 U.S.C. 9833 APPLICABLE TO OFFICERS OF THE AIR FORCE. 10 U.S.C. 4833 PROVIDES:

UNDER SUCH REGULATIONS AS THE SECRETARY OF THE ARMY MAY PRESCRIBE, ANY OFFICER OF THE ARMY ACCOUNTABLE FOR PUBLIC MONEY MAY ENTRUST IT TO ANOTHER OFFICER OF THE ARMY TO MAKE DISBURSEMENTS AS HIS AGENT. BOTH THE OFFICER TO WHOM MONEY IS ENTRUSTED UNDER THIS SECTION, AND THE OFFICER WHO ENTRUSTS THE MONEY TO HIM ARE PECUNIARILY RESPONSIBLE FOR THAT MONEY TO THE UNITED STATES.

" PECUNIARILY RESPONSIBLE" MEANS RESPONSIBLE AS REGARDS MONEY MATTERS. IT IS ASSUMED THAT THE CONGRESS IN IMPOSING THIS MONEY RESPONSIBILITY ON THE OFFICERS DID NOT INTEND ITS EFFECT TO BE CONFINED TO A MERE PAPER SHOWING OF MONEY RESPONSIBILITY, WITHOUT A REFUND OF THE SHORTAGE, BUT, ON THE OTHER HAND, THAT THE STATUTE WAS TO BE TAKEN WITH SERIOUSNESS AND AS MEANING WHAT IT APPARENTLY SAYS, THAT THE ACCOUNTABLE OFFICER AND HIS AGENT, OR EITHER OF THEM, ARE RESPONSIBLE IN MONEY TO THE UNITED STATES FOR ALL FUNDS ENTRUSTED TO THEM FOR WHICH THEY CANNOT OR DO NOT ACCOUNT FOR. IN VIEW OF THE RESPONSIBILITY, WE CONCLUDE THAT CURRENT PAY MAY BE WITHHELD FROM AN AGENT OFFICER UNDER AUTHORITY OF SECTION 1766, REVISED STATUTES, IN THE CIRCUMSTANCES OUTLINED IN QUESTION NO. 4.