B-170400, SEP. 21, 1970

B-170400, SEP. 21, 1970

DEBT COLLECTION - GOVERNMENT PROPERTY - POST EXCHANGE MONIES - EMPLOYEE LIABILITY ACTION TO BE TAKEN IN CONNECTION WITH DEBT AGAINST FORMER DEFENSE SUPPLY AGENCY EMPLOYEE FOR VALUE OF A GOVERNMENT REVOLVER AND FOR INSURANCE COMPANY'S LOSS AS RESULT OF ROBBERY OF MONIES BELONGING TO OFFICER'S MESS AND POST RESTAURANT. FORMER GOVERNMENT EMPLOYEE, WHO WAS SEPARATED FOR CAUSE, PRIOR TO CONVICTION FOR INVOLVEMENT IN A ROBBERY THAT INCLUDED A GOVERNMENT COLT REVOLVER, MONIES FROM AN OFFICER'S OPEN MESS AND POST RESTAURANT, WITH THE LATTER TWO BEING REPAID BY THE INSURANCE COMPANY MAY ONLY HAVE DEDUCTED FROM HIS UNPAID COMPENSATION THE COST OF THE GOVERNMENT PROPERTY. SINCE THERE IS NO EXISTING AUTHORITY BINDING THE GOVERNMENT TO BE AN AGENT OR TRUSTEE TO COLLECT INDEBTEDNESS OWED CONTRACTURAL NONAPPROPRIATED FUND ACTIVITIES OF THE ARMED FORCES OR PRIVATE DEBT, NEITHER THE UNPAID COMPENSATION OR AMOUNT CREDITED TO FORMER EMPLOYEE'S RETIREMENT FUND MAY BE APPLIED TOWARD THE INSURANCE CLAIM.

TO MR. B. B. WRIGHT:

REFERENCE IS MADE TO YOUR LETTER OF JULY 7, 1970, WITH ENCLOSURES, REFERENCE DPSC-ZA, FORWARDED HERE BY DEFENSE SUPPLY AGENCY, HEADQUARTERS, ON JULY 16, 1970, DSAH-(FF, FOR AN ADVANCE DECISION AS TO WHETHER PAYMENT MAY BE AUTHORIZED OF CERTAIN CLAIMS AGAINST MONEYS DUE MR. WILLIAM HILDRETH, A FORMER EMPLOYEE OF THE DEFENSE SUPPLY AGENCY.

THE INFORMATION FURNISHED SHOWS THAT ON MARCH 6, 1969, PERSONNEL OF THE DEFENSE PERSONNEL SUPPORT CENTER (DPSC) AT PHILADELPHIA, PENNSYLVANIA, WERE ROBBED WHILE EN ROUTE TO A BANK. MR. HILDRETH, A CIVILIAN EMPLOYEE OF DPSC, WAS CONVICTED OF HIS INVOLVEMENT IN THE ROBBERY AFTER HAVING BEEN SEPARATED FROM GOVERNMENT SERVICE FOR CAUSE. DURING THE ROBBERY THERE WAS TAKEN ONE REVOLVER COLT CALIBER 38 VALUED AT $40 BELONGING TO THE UNITED STATES GOVERNMENT; $52.53 BELONGING TO THE OFFICERS OPEN MESS; AND $1,892.95 CASH AND $5,806.31 IN CHECKS BELONGING TO THE DPSC POST RESTAURANT. PAYMENT WAS STOPPED ON ALL OF THE CHECKS AT A COST IN BANK CHARGES OF $27. THE TRANSAMERICAN INSURANCE COMPANY REIMBURSED THE DPSC POST RESTAURANT THE AMOUNT OF ITS LOSS TOTALING $1,919.95--$1,892.95 CASH AND $27 BANK CHARGES--FOR WHICH THE RESTAURANT MAKES NO FURTHER CLAIM.

UPON NOTIFICATION OF MR. HILDRETH'S INVOLVEMENT AND ARREST, THE CIVILIAN PERSONNEL OFFICER DIRECTED THAT ALL PAYMENTS TO MR. HILDRETH BE STOPPED AND THAT A CLAIM BE PLACED AGAINST HIS RETIREMENT FUND. THERE WAS $1,028.13 DUE MR. HILDRETH FOR UNPAID SALARY AND TERMINAL LEAVE AND $2,853.69 TO HIS CREDIT IN THE CIVIL SERVICE RETIREMENT FUND.

YOU REQUEST A DECISION ON THE FOLLOWING:

1. MAY PAYMENT OF THE CLAIM FOR $40 BE MADE TO DPSC APPROPRIATED FUND FOR THE LOSS OF THE GUN?

2. MAY PAYMENT OF THE CLAIM FOR $52.53 BE MADE TO THE NONAPPROPRIATED FUND DPSC OFFICERS CLUB (OFFICERS OPEN MESS)?

3. MAY THE BALANCE OF MR. HILDRETH'S UNPAID COMPENSATION BE RELEASED AND THE CLAIM AGAINST HIS RETIREMENT FUND CREDIT BE REMOVED?

4. IF THE ANSWER TO QUESTION 3 IS NEGATIVE, WOULD THE CIVIL SERVICE RETIREMENT FUND BE REQUIRED TO MAKE IMMEDIATE PAYMENT ON THE INSURANCE COMPANY'S CLAIM FOR THE AMOUNT OF THE FUNDS IN EXCESS OF HIS UNPAID COMPENSATION DUE WITHOUT APPLICATION FOR WITHDRAWAL BY MR. HILDRETH?

SECTION 5511 OF TITLE 5, U.S.C. PROVIDES AS FOLLOWS:

"(A) EXCEPT AS PROVIDED BY SUBSECTION (B) OF THIS SECTION, THE EARNED PAY OF AN EMPLOYEE REMOVED FOR CAUSE MAY NOT BE WITHHELD OR CONFISCATED.

"(B) IF AN EMPLOYEE INDEBTED TO THE UNITED STATES IS REMOVED FOR CAUSE, THE PAY ACCRUING TO THE EMPLOYEE SHALL BE APPLIED IN WHOLE OR IN PART TO THE SATISFACTION OF ANY CLAIM OR INDEBTEDNESS DUE THE UNITED STATES."

THE RECORD SHOWS THAT MR. HILDRETH ON JANUARY 23, 1970, PLEADED GUILTY TO THE OFFENSE OF THEFT OF GOVERNMENT PROPERTY. HE WAS REMOVED FOR CAUSE PRIOR TO HIS CONVICTION BECAUSE OF THE CIRCUMSTANCES OF HIS CONVICTION. THEREFORE, SINCE THE SUM OF $40 (VALUE OF THE GUN STOLEN) REPRESENTS AN OBLIGATION DUE THE UNITED STATES BY AN EMPLOYEE REMOVED FOR CAUSE, IT IS REQUIRED TO BE WITHHELD FROM UNPAID COMPENSATION DUE. IN THE ABSENCE OF SOME PROVISION OF LAW PROVIDING OTHERWISE THE AMOUNT COLLECTED SHOULD BE DEPOSITED FOR CREDIT TO THE MISCELLANEOUS RECEIPTS ACCOUNT OF THE TREASURY.

THE OFFICERS CLUB (OFFICERS OPEN MESS) IS A NONAPPROPRIATED FUND ACTIVITY OF THE GOVERNMENT. SEE BLEUER V UNITED STATES, 117 F. SUPP. 509 (1950). IN THE CASE OF G. L. CHRISTIAN AND ASSOCIATES V UNITED STATES, 312 F. 2D 418 (1963), THE COURT OF CLAIMS HELD THAT CONTRACTS OF CONVENTIONAL NONAPPROPRIATED FUND ACTIVITIES OF ARMED FORCES SUCH AS POST EXCHANGES, SHIPS' STORES, AND OFFICERS CLUBS DO NOT BIND APPROPRIATED FUNDS, DO NOT CREATE A UNITED STATES DEBT, AND MAY NOT BE VINDICATED IN THE UNITED STATES COURT OF CLAIMS, EVEN THOUGH MADE BY GOVERNMENT OFFICERS. CITED IN THIS CONNECTION WERE BORDEN V UNITED STATES, 126 CT. CL. 902 (1953); PULASKI CAB CO. V UNITED STATES, 141 CT. CL. 160 (1958); AND STANDARD OIL COMPANY OF CALIFORNIA V JOHNSON, 316 U.S. 481 (1942). IN 9 COMP. GEN. 411 (1930), IT WAS STATED IN THE SYLLABUS THAT:

"SINCE THE DEBT OF A CIVILIAN EMPLOYEE OF THE WAR DEPARTMENT TO A POST EXCHANGE OR A POST RESTAURANT IS NOT A DEBT DUE THE UNITED STATES THERE IS NO AUTHORITY TO OFFSET AGAINST THE AMOUNT DUE SUCH EMPLOYEE AS REFUND OF RETIREMENT DEDUCTIONS AT THE TERMINATION OF HIS SERVICE THE AMOUNT OF HIS INDEBTEDNESS TO A POST EXCHANGE OR A POST RESTAURANT." SEE ALSO 9 COMP. GEN. 353 (1930); 11 ID. 161 (1931); AND 31 ID. 363 (1952).

THUS, THERE IS NO AUTHORITY TO DEDUCT FROM THE UNPAID COMPENSATION DUE MR. HILDRETH AN AMOUNT TO SATISFY AN INDEBTEDNESS OWED A NONAPPROPRIATED FUND ACTIVITY SUCH AS THE OFFICERS CLUB IN THIS CASE.

IN TAGGART V UNITED STATES, 17 CT. CL. 322 (1881), THE COURT HELD THAT NO PUBLIC OFFICER COULD MAKE THE GOVERNMENT EITHER AGENT OR TRUSTEE FOR THE COLLECTION OF PRIVATE DEBTS. NEITHER THE UNPAID COMPENSATION DUE MR. HILDRETH NOR THE AMOUNT TO HIS CREDIT IN THE CIVIL SERVICE RETIREMENT FUND MAY BE APPLIED TOWARD PAYMENT OF A CLAIM BY THE INSURANCE COMPANY.

THE BALANCE OF MR. HILDRETH'S UNPAID COMPENSATION SHOULD BE RELEASED AND THE CLAIM AGAINST HIS RETIREMENT FUND DEPOSIT REMOVED.

THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY.