B-146597, OCTOBER 27, 1961, 41 COMP. GEN. 269

B-146597, OCTOBER 27, 1961, 41 COMP. GEN. 269

PAY - COURTS-MARTIAL SENTENCES - FORFEITURES - GOVERNMENT'S FAILURE TO MAKE DEDUCTIONS - DEBT STATUS--- PAY - COURTS-MARTIAL SENTENCES - FORFEITURES - GOVERNMENT'S FAILURE TO MAKE DEDUCTIONS - REMISSION AUTHORITY--- PAY - COURTS-MARTIAL SENTENCES - FORFEITURES - GOVERNMENT'S FAILURE TO MAKE DEDUCTIONS - COLLECTION IN VIEW OF THE DISTINCTION BETWEEN ADMINISTRATIVELY ASCERTAINED DEBTS OF ENLISTED MEMBERS OF THE UNIFORMED SERVICES AND DEBTS ARISING OUT OF COURT- MARTIAL FORFEITURE MADE IN THE DEBT COLLECTION AND REMISSION STATUTE WHICH ORIGINATED IN THE ACT OF MAY 22, 1928, AND IS NOW CODIFIED IN 10 U.S.C. 4837 (D); ID. 6161 (D) AND ID. 9837 (D), A DEBT RESULTING FROM THE FAILURE OF THE GOVERNMENT TO DEDUCT THE AMOUNT OF A COURT-MARTIAL FORFEITURE FROM AN ENLISTED MEMBER'S PAY MAY NOT BE REGARDED AS AN ADMINISTRATIVELY ASCERTAINED DEBT WITHIN THE MEANING OF THE 1928 ACT OR THE SUPERSEDING PROVISIONS IN TITLE 10 OF THE U.S. CODE; THEREFORE, COLLECTION MAY BE EFFECTED EITHER FOR FAILURE TO DEDUCT FOR THE COURT-MARTIAL FORFEITURE OR FOR AN ERRONEOUS PAYMENT OF BASIC PAY FOR THE PERIOD OF THE COURT-MARTIAL SENTENCE. THE FAILURE OF THE GOVERNMENT TO COLLECT FROM AN ENLISTED MEMBER OF THE UNIFORMED SERVICES A COURT-MARTIAL FORFEITURE DURING THE PERIOD OF THE SENTENCE DOES NOT GIVE RISE TO AN ADMINISTRATIVELY ASCERTAINED DEBT WHICH MAY BE CANCELED OR REMITTED UNDER 10 U.S.C. 4837 (D); ID. 6161 (D) AND ID. 9837 (D), EVEN THOUGH THE UNCOLLECTED FORFEITURE IS CONSIDERED AS AN ERRONEOUS PAYMENT OF BASIC PAY, SUCH DEBT REMISSION AUTHORITY IS NOT EXTENDING TO A REMISSION OF A PUNISHMENT ADJUDGED BY COURT-MARTIAL; HOWEVER, WHERE A FORFEITURE MAY NOT BE EXTENDED BEYOND THE PERIOD FIXED IN THE SENTENCE, THERE IS NO UNEXECUTED FORFEITURE WHICH MAY BE REMITTED SO THAT ALL THAT REMAINS DUE FROM THE MEMBER IS THE AMOUNT OF THE FORFEITURE THAT MUST BE TRANSFERRED FOR THE SUPPORT OF THE SOLDIERS' HOME UNDER 24 U.S.C. 44. WHILE AN UNCOLLECTED COURT-MARTIAL FORFEITURE IS NOT AN ADMINISTRATIVELY ASCERTAINED DEBT, UNDER THE MILITARY DEBT REMISSION PROVISIONS IN 10 U.S.C. 4837 (D); ID. 6161 (D); ID. 9837 (D), THE FAILURE TO REDUCE THE ENLISTED MEMBER'S PAY AS REQUIRED BY THE COURT MARTIAL SENTENCE RESULTS IN AN ERRONEOUS PAYMENT AND WHERE THE COURT MARTIAL SENTENCE IS NOT TIMELY REMITTED UNDER 10 U.S.C. 874 (A), AND THE MEMBER'S PAY ACCOUNT IS NOT TIMELY REDUCED, THE RESULTING INDEBTEDNESS MAY BE INVOLUNTARILY COLLECTED IN MONTHLY INSTALLMENTS UNDER AUTHORITY OF THE ACT OF JULY 15, 1954, 5 U.S.C. 46 (D), GOVERNING COLLECTION OF ERRONEOUS PAYMENTS FROM ENLISTED MEMBERS.

TO THE SECRETARY OF DEFENSE, OCTOBER 27, 1961:

REFERENCE IS MADE TO LETTER OF AUGUST 3, 1961, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION ON THREE QUESTIONS ARISING OUT OF FAILURE (BECAUSE OF AN ADMINISTRATIVE ERROR) TO CHARGE AGAINST AN ENLISTED MAN'S PAY ACCOUNT A COURT-MARTIAL FORFEITURE OF $60 PER MONTH FOR 6 MONTHS.

THE QUESTIONS FOR DECISION ARE SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 288 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, WHERE IT IS INDICATED THAT THE QUESTIONS INVOLVE A SITUATION IN WHICH FAILURE TO COLLECT A FORFEITURE IS DISCOVERED SUBSEQUENT TO THE FULL ACCRUAL OF THE FORFEITURE AND A CHARGE IS THEN ENTERED AGAINST THE ENLISTED MAN'S PAY ACCOUNT. NOTICE OF EXCEPTION ISSUED BY THE GENERAL ACCOUNTING OFFICE REQUESTED COLLECTION OF THE FORFEITURE RATHER THAN COLLECTION OF THE ERRONEOUS PAYMENT OF BASIC PAY.

QUESTION 1.

1. IS THE MEMBER INDEBTED TO THE GOVERNMENT FOR AN ERRONEOUS PAYMENT OF BASIC PAY FOR THE PERIOD COVERED BY THE SENTENCE IMPOSED BY THE COURT- MARTIAL, OR SHOULD THE COLLECTION BE EFFECTED FOR FAILURE TO DEDUCT FOR A COURT-MARTIAL FORFEITURE?

PARAGRAPH 126H (2) OF THE MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(2) FORFEITURE.--- A FORFEITURE IS AN APPROPRIATE PUNISHMENT FOR ALL MILITARY PERSONNEL WHATEVER THEIR RANK OR STATUS. UNLESS A TOTAL FORFEITURE IS ADJUDGED, A SENTENCE TO FORFEITURE DEPRIVES THE ACCUSED OF THE AMOUNT EXPRESSLY STATED IN THE SENTENCE * * *

IT IS STATED IN THE COMMITTEE ACTION THAT THE JUDGE ADVOCATE GENERAL OF THE ARMY HAS RENDERED AN OPINION TO THE EFFECT THAT,"IF FOR ANY REASON THE MEMBER WAS PAID THE AMOUNT EQUAL TO THE FORFEITURE OR ANY PART THEREOF DURING THE PERIOD PRESCRIBED BY THE SENTENCE, IT WOULD BE AN OVERPAYMENT TO HIM IN THAT AMOUNT" AND "THAT THE MEMBER'S REQUEST FOR REMISSION OF THE COURT-MARTIAL FORFEITURE WHICH REMAINED UNCOLLECTED SHOULD BE CONSIDERED AS A NORMAL REQUEST FOR REMISSION AND CANCELLATION OF AN INDEBTEDNESS.'

THE COMMITTEE ACTION FURTHER STATES THAT THE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY THAT, IF A DEDUCTION IS NOT EFFECTED FOR A COURT-MARTIAL FORFEITURE, THE MEMBER IS OVERPAID BASIC PAY RATHER THAN INDEBTED FOR A FAILURE TO DEDUCT FOR THE FORFEITURE APPEARS TO BE CONSISTENT WITH THE PREVIOUS DECISIONS OF THE COMPTROLLER GENERAL. IT IS STATED THAT DOUBT EXISTS DUE TO THE FACT THAT, IF THE SECRETARY CONCERNED SHOULD FAVORABLY CONSIDER A REQUEST FOR REMISSION AND CANCELLATION OF AN INDEBTEDNESS RESULTING FROM THE ADMINISTRATIVE FAILURE TO PROMPTLY COLLECT A COURT-MARTIAL FORFEITURE, IT WOULD HAVE THE EFFECT OF REDUCING OR EVEN ELIMINATING ALL OR A PART OF THE JUDICIAL PUNISHMENT ORDERED BY THE COURT. ALSO IT IS STATED THAT IN THE ARMY AND AIR FORCE THE SERVICE MEMBER CONCERNED MAY REMAIN LIABLE UNDER 24 U.S.C. 44 TO THE SOLDIERS' HOME ON ACCOUNT OF THE FORFEITURE AND, IN EFFECT, THE GOVERNMENT WOULD HAVE TO PAY THE AMOUNT OF THE FORFEITURE TO THE SOLDIERS' HOME EVEN THOUGH THE MEMBER'S INDEBTEDNESS WAS REMITTED OR CANCELED.

THE REMISSION PROVISIONS OF LAW NOW CODIFIED IN 10 U.S.C. 4837 (D), 6161, AND 9837 (D) ORIGINATED IN THE ACT OF MAY 22, 1928, 45 STAT. 699, 10 U.S.C. 875A (1952 USED.), WHICH AUTHORIZED THE SECRETARY OF WAR TO COLLECT ANY ADMINISTRATIVELY ASCERTAINED INDEBTEDNESS TO THE UNITED STATES FROM THE PAY OF AN ENLISTED MAN OF THE ARMY, PROVIDED THE COLLECTION OF SUCH INDEBTEDNESS WOULD NOT REDUCE THE PAY RECEIVED FOR ANY MONTH BY THE ENLISTED MAN TO LESS THAN ONE-THIRD OF HIS PAY EVEN WHERE PART OF HIS PAY WAS FORFEITED BY COURT-MARTIAL SENTENCE OR WAS OTHERWISE LEGALLY WITHHELD, AND UPON HONORABLE DISCHARGE FROM THE SERVICE TO REMIT AND CANCEL ANY SUCH ADMINISTRATIVELY ASCERTAINED DEBT INCURRED DURING THAT ENLISTMENT AND REMAINING UNPAID AT THE TIME OF DISCHARGE. THE 1928 ACT WAS AMENDED BY THE ACT OF JUNE 26, 1934, 48 STAT. 1222, TO AUTHORIZE THE SECRETARY TO REMIT OR CANCEL ANY PART OF AN ADMINISTRATIVELY ASCERTAINED INDEBTEDNESS OF AN ENLISTED MAN ,REMAINING UNPAID EITHER ON HONORABLE DISCHARGE * * * OR PRIOR THERETO WHEN IN HIS OPINION THE INTERESTS OF THE GOVERNMENT ARE BEST SERVED BY SUCH ACTION.'

PRIOR TO THE PROMULGATION OF THE MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, AN ACCRUED COURT-MARTIAL FORFEITURE WAS REGARDED AS AN INDEBTEDNESS TO THE UNITED STATES. SEE EXECUTIVE ORDER NO. 3864, JUNE 11, 1923; APPENDIX 9, MANUAL FOR COURTS-MARTIAL, UNITED STATES ARMY, 1928; 36 COMP. GEN. 79 AND CASES THERE CITED. IT IS NOTED THAT THE 1928 ACT REFERRED TO AN ADMINISTRATIVELY ASCERTAINED DEBT AS SOMETHING DIFFERENT FROM A DEBT ARISING OUT OF A COURT-MARTIAL FORFEITURE, SINCE THE ACT LIMITED THE TOTAL AMOUNT THAT COULD BE WITHHELD FOR ANY MONTH FROM THE SOLDIER ON ACCOUNT OF COURT-MARTIAL FORFEITURES AND ADMINISTRATIVELY ASCERTAINED DEBTS. ALSO SEE ARTICLE OF WAR 50, 10 U.S.C. 1521 (1940 USED.) AND ARTICLE 74, UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 874, CONCERNING THE REMISSION BY COMPETENT MILITARY AUTHORITY OF UNCOLLECTED FORFEITURES.

WHILE WE HAVE HELD THAT UNDER THE 1951 COURTS-MARTIAL MANUAL A COURT MARTIAL FORFEITURE CONSTITUTES A LOSS OF ENTITLEMENT TO PAY, WE DO NOT BELIEVE THAT THE AMOUNT OF THE COURT-MARTIAL FORFEITURE OR THE AMOUNT WHICH ERRONEOUSLY WAS NOT DEDUCTED FROM THE ENLISTED MEMBER'S PAY IS ADMINISTRATIVELY ASCERTAINED DEBT WITHIN THE MEANING OF THE 1928 ACT OR OF THE SUPERSEDING PROVISIONS OF TITLE 10, U.S.C. AS INDICATED ABOVE, SEPARATE PROVISION HAS BEEN MADE FOR THE REMISSION OF COURT-MARTIAL FORFEITURES BY ARTICLE OF WAR 50 AND ARTICLE 74, UNIFORM CODE OF MILITARY JUSTICE.

YOUR FIRST QUESTION IS ANSWERED BY SAYING THAT COLLECTION MAY BE EFFECTED EITHER FOR FAILURE TO DEDUCT FOR A COURT-MARTIAL FORFEITURE OR FOR AN ERRONEOUS PAYMENT OF BASIC PAY FOR THE PERIOD COVERED BY THE SENTENCE.

QUESTION 2.

2. IF IT IS DETERMINED THAT THE MEMBER'S INDEBTEDNESS IS IN THE FORM OF AN ERRONEOUS PAYMENT OF BASIC PAY FOR THE PERIOD COVERED BY THE SENTENCE, MAY THIS TYPE OF INDEBTEDNESS BE CONSIDERED FOR REMISSION AND CANCELLATION BY THE SECRETARY CONCERNED UNDER THE PROVISIONS OF 10 U.S.C. 4837 (D), 9837 (D) AND 6161?

AS INDICATED ABOVE, THE PROVISIONS OF LAW NOW CODIFIED IN TITLE 10 AS SUBSECTIONS (D) OF SECTION 4837 AND 9837 AND SECTION 6161 ORIGINATED IN THE ACT OF MAY 22, 1928, WHICH GRANTED TO THE SECRETARY OF WAR AUTHORITY TO CANCEL OR REMIT UPON HIS HONORABLE DISCHARGE FROM THE SERVICE ANY ADMINISTRATIVELY ASCERTAINED INDEBTEDNESS INCURRED DURING A MEMBER'S CURRENT ENLISTMENT AND REMAINING UNPAID AT THE TIME OF HIS DISCHARGE. HOWEVER, THE CITED STATUTES DO NOT GRANT TO THE SECRETARY CONCERNED THE AUTHORITY TO REMIT THE "PUNISHMENT" (DEPRIVING THE ACCUSED OF THE AMOUNT EXPRESSLY STATED IN THE SENTENCE) AS ADJUDGED BY THE COURT-MARTIAL, PROVISION THEREFOR HAVING BEEN MADE IN THE ARTICLES OF WAR AND THE UNIFORM CODE OF MILITARY JUSTICE. SINCE A FORFEITURE MAY NOT BE EXTENDED BEYOND THE FORFEITURE PERIOD FIXED BY THE SENTENCE, THERE WOULD APPEAR TO BE NO UNEXECUTED FORFEITURE REMAINING IN THE SITUATION HERE PRESENTED TO BE REMITTED BY ANY CONVENING AUTHORITY UNDER THE PROVISIONS OF 10 U.S.C. 874 (A). IT FOLLOWS THAT A SUM EQUAL TO THE AMOUNT COMPUTED IN THE MANNER INDICATED IN 38 COMP. GEN. 796 REMAINS DUE FROM THE ENLISTED MAN FOR THE SUPPORT OF THE SOLDIERS' HOME. SEE 24 U.S.C. 44. FOR THE REASONS STATED IN THE ANSWER TO THE FIRST QUESTION, QUESTION 2 IS ANSWERED IN THE NEGATIVE.

QUESTION 3.

3. IN THE CASE WHERE THE MEMBER DOES NOT APPLY FOR REMISSION OR CANCELLATION UNDER THE PROVISIONS CITED ABOVE, MAY THE INDEBTEDNESS BE COLLECTED IN REASONABLE MONTHLY INSTALLMENTS AS PROVIDED BY THE REGULATIONS GOVERNING THE COLLECTION OF ERRONEOUS PAYMENTS TO ENLISTED MEMBERS?

WHILE AN UNCOLLECTED COURT-MARTIAL FORFEITURE IS NOT AN ADMINISTRATIVELY ASCERTAINED DEBT WITHIN THE MEANING OF THE 1928 ACT THE CODE PROVISIONS DERIVED THEREFROM, THE FAILURE TO REDUCE THE MEMBER'S PAY AS REQUIRED BY THE COURT-MARTIAL SENTENCE DOES RESULT IN AN ERRONEOUS PAYMENT. IN OUR OPINION THE INVOLUNTARY COLLECTION OF SUCH DEBT IS AUTHORIZED BY THE ACT OF JULY 15, 1954, 68 STAT. 482, 5 U.S.C. 46D. HENCE, IN ANY CASE WHERE A COURT-MARTIAL FORFEITURE IS NOT TIMELY REMITTED UNDER 10 U.S.C. 874 (A) AND THE MEMBER'S PAY IS NOT TIMELY REDUCED, THE INDEBTEDNESS RESULTING THEREFROM MAY BE COLLECTED IN MONTHLY INSTALLMENTS AS PROVIDED FOR BY THE REGULATIONS GOVERNING THE COLLECTION OF ERRONEOUS PAYMENTS TO ENLISTED MEMBERS OF THE SERVICES.