B-173233, OCT 22, 1971, 51 COMP GEN 226

B-173233, OCT 22, 1971, 51 COMP GEN 226

PAY - WITHHOLDING - DEBT LIQUIDATION - PROPERTY LOSSES - MEMBER ON DETAIL ALTHOUGH THE INVOLUNTARY COLLECTION FROM THE CURRENT PAY OF OFFICERS AND ENLISTED MEN OF A MILITARY DEPARTMENT WHO WHILE ASSIGNED TO A DEPARTMENT OF DEFENSE AGENCY ARE HELD PECUNIARILY LIABLE FOR THE LOSS, DAMAGE, OR DESTRUCTION OF GOVERNMENT PROPERTY, EVEN THOUGH NOT ACCOUNTABLE FOR THE PROPERTY, IS NOT AUTHORIZED ABSENT SPECIFIC STATUTORY AUTHORITY FOR SETOFF SINCE THE PROPERTY WAS NOT UNDER THE CONTROL OF THE SERVICE HAVING JURISDICTION OF THE MEMBER CHARGED, PURSUANT TO 37 U.S.C. 1007(C) AND 1007(E), ONLY PERTAINING TO ENLISTED MEMBERS OF THE ARMY AND AIR FORCE, THE SECRETARY CONCERNED MAY PROMULGATE REGULATIONS TO PROVIDE FOR THE DETERMINATION OF A MEMBER'S LIABILITY, RELYING ON THE REPORTING OF THE INSTRUMENTALITY WHOSE PROPERTY IS INVOLVED, AND FOR THE INVOLUNTARY COLLECTION OF THE INDEBTEDNESS FROM THE CURRENT PAY OF THE MEMBER, OR MAY CANCEL AN INDEBTEDNESS PURSUANT TO 10 U.S.C. 4837(D) AND 9837(D).

TO THE SECRETARY OF DEFENSE, OCTOBER 22, 1971:

FURTHER REFERENCE IS MADE TO A LETTER DATED JUNE 9, 1971, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION ON SEVERAL QUESTIONS RELATING TO INVOLUNTARY COLLECTION FROM THE CURRENT PAY OF SERVICE MEMBERS (OFFICERS OR ENLISTED) OF A MILITARY DEPARTMENT WHO ARE ASSIGNED FOR DUTY TO A DEPARTMENT OF DEFENSE AGENCY AND ARE NOT ACCOUNTABLE FOR PROPERTY, BUT WHO HAVE BEEN HELD TO BE PECUNIARILY LIABLE FOR LOSS, DAMAGE OR DESTRUCTION OF GOVERNMENT PROPERTY PURSUANT TO A REPORT OF SURVEY APPROVED BY THE HEAD OF A DEPARTMENT OF DEFENSE AGENCY. A COPY OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 453, PRESENTING AND DISCUSSING THE SEVERAL QUESTIONS WAS ATTACHED.

THE QUESTIONS ARE AS FOLLOWS:

1. WHEN A MEMBER OF THE AIR FORCE, WHO IS ASSIGNED TO DUTY WITH THE DEFENSE INTELLIGENCE AGENCY AND WHO IS NOT ACCOUNTABLE FOR PROPERTY, HAS BEEN HELD PECUNARILY LIABLE FOR LOSS, DAMAGE OR DESTRUCTION OF GOVERNMENT PROPERTY, PURSUANT TO A REPORT OF SURVEY INITIATED, PROCESSED AND APPROVED BY THE DIRECTOR, DEFENSE INTELLIGENCE AGENCY, MAY THE SECRETARY OF THE AIR FORCE, WHEN REQUESTED, ADMINISTRATIVELY EFFECT INVOLUNTARY COLLECTION OF THE INDEBTEDNESS FROM THE CURRENT PAY OF THE INDIVIDUAL SO HELD PECUNIARILY LIABLE:

A. IF HE IS AN OFFICER?

B. IF HE IS AN ENLISTED MEMBER?

2. IF QUESTION 1A IS ANSWERED IN THE AFFIRMATIVE, WOULD THE APPROPRIATE SECRETARY OF THE MILITARY DEPARTMENT RETAINING PAYMENT JURISDICTION OVER THE MEMBER HAVE THE SAME AUTHORITY, IF THE INDIVIDUAL HELD PECUNIARILY LIABLE BY THE DEFENSE INTELLIGENCE AGENCY REPORT OF SURVEY AND WHO IS NOT ACCOUNTABLE FOR PROPERTY, IS:

A. AN OFFICER OF THE ARMY?

B. AN OFFICER OF THE NAVY OR MARINE CORPS?

3. IF QUESTION 1B IS ANSWERED IN THE AFFIRMATIVE, WOULD THE APPROPRIATE SECRETARY OF THE MILITARY DEPARTMENT RETAINING PAYMENT JURISDICTION OVER THE MEMBER HAVE THE SAME AUTHORITY, IF THE INDIVIDUAL HELD PECUNIARILY LIABLE BY THE DEFENSE INTELLIGENCE AGENCY REPORT OF SURVEY AND WHO IS NOT ACCOUNTABLE FOR PROPERTY, IS:

A. AN ENLISTED MEMBER OF THE ARMY?

B. AN ENLISTED MEMBER OF THE NAVY OR MARINE CORPS?

IT IS STATED IN THE COMMITTEE ACTION THAT TABLE 7-7-3 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, CAPTIONED "INDEBTEDNESS DUE TO LOSS OR DAMAGE TO PUBLIC PROPERTY OR SUPPLIES," APPEARS TO PROVIDE, IN RULE 7, AUTHORITY FOR THE INVOLUNTARY COLLECTION FROM CURRENT PAY OF A NONACCOUNTABLE AIR FORCE ENLISTED MEMBER BY THE SECRETARY OF THE AIR FORCE WHERE SUCH MEMBER IS DETERMINED TO BE PECUNIARILY LIABLE BY AN ARMY REPORT OF SURVEY AND VICE VERSA.

THE COMMITTEE ACTION INDICATES THAT SUCH CONCLUSION APPEARS TO BE SUPPORTED BY THE ARMY AND AIR FORCE RECIPROCAL AGREEMENT (AR 735-11, PARA 12-8 AND AFM 177-111, PARA 10420E), IN WHICH EACH SERVICE HAS AGREED TO RECOGNIZE THE LIABILITY FOR THE PECUNIARY CHARGES AGAINST ONE OF ITS OWN MEMBERS ESTABLISHED BY A REPORT OF SURVEY OF THE OTHER SERVICE AND WHEN REQUESTED WILL TAKE ACTION TO EFFECT COLLECTION, EVEN THOUGH NEITHER REGULATION SPECIFICALLY PROVIDES FOR CROSS SERVICE INVOLUNTARY COLLECTION ACTION. HOWEVER, THE COMMITTEE ACTION REFERS TO AN OPINION RENDERED BY THE JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE ARMY, DATED MARCH 13, 1957 (JAGA 1956/8800), WHEREIN IT WAS CONCLUDED THAT NO AUTHORITY EXISTS FOR EITHER SERVICE TO INVOLUNTARILY STOP THE "CURRENT PAY" OF ONE OF ITS MEMBERS TO SATISFY AN INDEBTEDNESS RAISED BY A FINDING OF PECUNIARY LIABILITY BY THE OTHER SERVICE.

WHILE THE DISCUSSION STATES THAT SUCH PROPOSITION IS NOT FREE FROM DOUBT, IT IS STATED FURTHER THAT THE ONLY RESTRICTION WHICH APPEARS IN TABLE 7-7- 3 OF THE DODPM AGAINST INVOLUNTARY STOPPAGE OF CURRENT PAY FOR A DEBT ESTABLISHED BY ADMINISTRATIVE DETERMINATION, INCLUDING A REPORT OF SURVEY BY ANOTHER SERVICE OR AGENCY, APPEARS AS A NOTE TO RULE 3. THAT NOTE STATES,

INVOLUNTARY STOPPAGE OF PAY IS NOT AUTHORIZED FOR A DEBT ESTABLISHED BY AN ADMINISTRATIVE DETERMINATION, INCLUDING REPORT OF SURVEY, OF ANOTHER SERVICE OR AGENCY. NO AUTHORITY EXISTS FOR ONE SERVICE TO INVOLUNTARILY STOP CURRENT PAY OF ONE OF ITS OWN MEMBERS TO SATISFY A DEBT RAISED BY FINDING OF PECUNIARY LIABILITY BY THE OTHER SERVICE OR AGENCY.

IN SMITH V. JACKSON, 241 F. 747 (1917), AFFIRMED BY THE SUPREME COURT, 246 U.S. 388 (1918), IT WAS HELD THAT THE CURRENT COMPENSATION OF AN OFFICER OR EMPLOYEE OF THE UNITED STATES MAY NOT BE WITHHELD UNDER THE GOVERNMENT'S GENERAL RIGHT OF SETOFF OF DEBTS DUE THE UNITED STATES FROM THE DEBTOR. WE HAVE THEREFORE HELD THAT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, NO AUTHORITY EXISTS TO SET OFF GENERAL DEBTS DUE THE UNITED STATES BY ITS EMPLOYEES OUT OF THEIR CURRENT SALARIES WITHOUT THEIR CONSENT. SEE 29 COMP. GEN. 90 (1949); 37 COMP. GEN. 353 (1957); AND 42 COMP. GEN. 83 (1962).

TABLE 7-7-3 OF THE DODPM SETS FORTH RULES UNDER WHICH COLLECTION MAY BE MADE AGAINST MILITARY PERSONNEL FOR INDEBTEDNESS DUE TO LOSS OR DAMAGE TO PUBLIC PROPERTY OR SUPPLIES. RULES 1 AND 2 APPLY TO ACCOUNTABLE OFFICERS; RULES 3 THROUGH 7 APPLY TO ALL OFFICERS AND ENLISTED PERSONNEL IN CIRCUMSTANCES WHEN THEY ARE NOT ACCOUNTABLE OFFICERS. OF THE LATTER GROUP, ONLY RULES 3 AND 7, WHICH INVOLVE ARMY AND AIR FORCE PERSONNEL, PERMIT THE INVOLUNTARY COLLECTION FROM A MEMBER'S CURRENT PAY UNDER THE CIRCUMSTANCES THEREIN SET FORTH. RULES 4 THROUGH 6, ON THE OTHER HAND, PERMIT COLLECTION FROM A MEMBER'S CURRENT PAY ONLY WITH THE MEMBER'S CONSENT.

EACH OF THESE RULES MUST BE READ IN CONNECTION WITH THE STATUTORY AUTHORITY FROM WHICH IT WAS DERIVED AS WELL AS THE GENERAL LIMITATION IMPOSED BY SMITH V. JACKSON, SUPRA. RULE 3, BASED UPON 37 U.S.C. 1007(E), PERMITS INVOLUNTARY CHECK AGE FROM THE CURRENT PAY OF BOTH OFFICERS AND ENLISTED PERSONNEL OF THE ARMY AND AIR FORCE FOR DAMAGE OR COST OF REPAIRS TO ARMS OR EQUIPMENT UNDER THE CIRCUMSTANCES THEREIN SET FORTH AND, AS SUCH, CONSTITUTES AN EXCEPTION TO THE GENERAL RULE. THE NOTE TO RULE 3 APPEARS TO HAVE BEEN ADDED AS A RESULT OF THE ABOVE MENTIONED OPINION (JAGA 1956/8800) AND, AS SUCH, APPEARS TO REPRESENT BUT A CLARIFICATION OF THE PERMITTED BOUNDS OF THAT CHECK AGE UNDER RULE 3. IN VIEW OF THE LONG STANDING INTERPRETATION GIVEN TO SMITH V. JACKSON, BY THE COURTS AND THIS OFFICE, WE AGREE WITH THAT OPINION UNDER CURRENT REGULATIONS. WHERE CONGRESS HAS INTENDED THAT CURRENT PAY BE SUBJECT TO INVOLUNTARY WITHHOLDING BY THE GOVERNMENT, IT HAS PROVIDED SPECIFIC STATUTORY AUTHORITY FOR THAT PURPOSE.

IN THIS REGARD IT IS NOTED THAT PROVISION IS MADE IN 10 U.S.C. 4835 AND 10 U.S.C. 9835 AND ARMY AND AIR FORCE REGULATIONS ISSUED PURSUANT THERETO (AR 735-11 AND AFM 177-111) FOR HOLDING A PERSON LIABLE FOR LOSS, DAMAGE, OR DESTRUCTION OF GOVERNMENT PROPERTY PURSUANT TO REPORTS OF SURVEY MADE THEREUNDER. AUTHORITY TO HOLD A PERSON SO LIABLE, HOWEVER, IS LIMITED BY THOSE PROVISIONS OF LAW TO PROPERTY OF LAW TO PROPERTY OF THE UNITED STATES "UNDER THE CONTROL" OF THE DEPARTMENT OF THE ARMY AND AIR FORCE RESPECTIVELY. ACCORDINGLY, NEITHER PROVISIONS OF LAW NOR THE REGULATIONS ISSUED PURSUANT THERETO PROVIDE ANY AUTHORITY FOR THE INVOLUNTARY COLLECTION FROM MEMBERS OF THE ARMY OR AIR FORCE ON THE BASIS OF A REPORT OF SURVEY OF LOST, DAMAGED, OR DESTROYED PROPERTY THAT IS NOT UNDER THE CONTROL OF THE SERVICE OF WHICH THE INDIVIDUAL IS A MEMBER. AS POINTED OUT ABOVE, 37 U.S.C. 1007(E) HAS BEEN GIVEN A SIMILAR APPLICATION.

RULE 7 OF TABLE 7-7-3 OF THE DODPM, WHICH PROVIDES FOR INVOLUNTARY COLLECTION FROM THE CURRENT PAY OF ARMY AND AIR FORCE ENLISTED PERSONNEL FOR LOSS OR DAMAGE TO GOVERNMENT PROPERTY THAT IS NOT WITHIN THE SCOPE OF RULE 3, IS DERIVED FROM THE ACT OF MAY 22, 1928, CH. 676, 45 STAT. 698, AND ITS ANTECEDENT LAWS, SECTION 1303, REVISED STATUTES, AND ARTICLE OF WAR 83, ACT OF JUNE 4, 1920, 41 STAT. 804. THE PERTINENT PROVISIONS OF THAT ACT AS PRESENTLY CODIFIED IN 37 U.S.C. 1007(C) READ AS FOLLOWS:

(C) UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, AN AMOUNT THAT AN ENLISTED MEMBER OF THE ARMY OR THE AIR FORCE IS ADMINISTRATIVELY DETERMINED TO OWE THE UNITED STATES OR ANY OF ITS INSTRUMENTALITIES MAY BE DEDUCTED FROM HIS PAY IN MONTHLY INSTALLMENTS. ***

THE LEGISLATIVE HISTORY OF THE 1928 ACT SHOWS THAT, WHILE THE RIGHT OF THE GOVERNMENT TO PROCEED AGAINST THE PAY OF AN ARMY ENLISTED MEMBER ON AN INVOLUNTARY BASIS WAS ESTABLISHED BY STATUTE, THERE APPEARS TO BE NOTHING IN THAT HISTORY OR IN SUBSEQUENT LEGISLATION INDICATING THAT THE SECRETARY OF THE ARMY OR THE SECRETARY OF THE AIR FORCE IS PERMITTED TO INVOLUNTARILY STOP THE CURRENT PAY OF ONE OF THEIR RESPECTIVE ENLISTED MEMBERS BASED SOLELY UPON A REPORT OF SURVEY ISSUED BY ANOTHER SERVICE.

IT IS OUR VIEW THEREFORE THAT UNDER EXISTING REGULATIONS THE SAME CONCLUSION MUST BE REACHED IN CASES WHERE THE ONLY ACTION IS THE REPORT OF SURVEY AND IT EMANATES FROM ANY OTHER AGENCY OF THE FEDERAL GOVERNMENT. ACCORDINGLY, QUESTIONS 1A AND 1B ARE ANSWERED IN THE NEGATIVE AND THE OTHER QUESTIONS REQUIRE NO ANSWER.

IT IS TO BE OBSERVED, HOWEVER, THAT SUBSECTIONS 1007(C) AND 1007(E) OF TITLE 37 PROVIDE GENERALLY THAT DEDUCTIONS MAY BE MADE FROM THE CURRENT PAY OF MEMBERS OF THE ARMY OR OF THE AIR FORCE UNDER CERTAIN CIRCUMSTANCES. SUBSECTION 1007(C) RELATES TO DEBTS OWED TO THE UNITED STATES OR ANY OF ITS INSTRUMENTALITIES BY ENLISTED MEMBERS, BASED UPON ADMINISTRATIVE DETERMINATIONS MADE PURSUANT TO REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED. SUBSECTION 1007(E) RELATES TO THE DAMAGE OR COST OF REPAIRS TO ARMS OR EQUIPMENT DUE TO ABUSE OR NEGLIGENCE OF ALL MEMBERS WHO HAD THE CARE OR USE OF THE PROPERTY.

THE TERM "INSTRUMENTALITIES" AS USED IN SUBSECTION 1007(C) HAS BEEN INTERPRETED AS MEANING ONLY THOSE INSTRUMENTALITIES OF THE UNITED STATES WHICH ARE DEPENDENT UPON APPROPRIATED FUNDS UNDER THE CONTROL OF THE SECRETARIES OF THE ARMY AND THE AIR FORCE (DIG. OP. JAG, 1912-40, SECTION 1521(4)), AND, AS INDICATED ABOVE, NEITHER THAT SUBSECTION NOR SUBSECTION 1007(E) HAS BEEN VIEWED AS AUTHORIZING COLLECTION ACTION WHERE ANOTHER SERVICE WAS INVOLVED. THE UNIFICATION, SUBSEQUENT TO THAT OPINION AND EARLY DECISIONS OF THIS OFFICE, OF THE MILITARY DEPARTMENTS UNDER THE DIRECTION, AUTHORITY AND CONTROL OF THE SECRETARY OF DEFENSE PURSUANT TO THE NATIONAL SECURITY ACT OF 1947, PUBLIC LAW 253, CH. 343, 61 STAT. 495, AS AMENDED, 50 U.S.C. 401, HOWEVER, APPEARS TO SUPPORT THE CONCLUSION THAT THE INSTRUMENTALITIES REFERRED TO IN 37 U.S.C. 1007(C) PROPERLY MAY BE VIEWED AS INCLUDING ALL AGENCIES UNDER THE DIRECTION AND CONTROL OF THE SECRETARY OF DEFENSE WHICH ARE SUPPORTED BY APPROPRIATED FUNDS. THE BROAD LANGUAGE OF SUBSECTION 1007(E) SUPPORTS A SIMILAR CONCLUSION IN THE CASE OF THAT SUBSECTION.

WHILE REGULATIONS HAVE NOT BEEN PROMULGATED BY THE SECRETARY OF THE ARMY OR THE SECRETARY OF THE AIR FORCE TO APPLY 37 U.S.C. 1007(C) AND 37 U.S.C. 1007(E) IN SUCH MANNER, THERE WOULD APPEAR TO BE NO LEGAL PROHIBITION AGAINST THEIR DOING SO TO PROVIDE FOR AN INDEPENDENT ADMINISTRATIVE DETERMINATION BY THEM OF WHETHER AN ENLISTED MEMBER OF THEIR RESPECTIVE SERVICES PERFORMING A TOUR OF DUTY WITH ANOTHER AGENCY OF THE DEPARTMENT OF DEFENSE WILL BE HELD LIABLE FOR SUCH LOSS, DAMAGE OR DESTRUCTION OF GOVERNMENT PROPERTY OF THAT AGENCY OR UNDER HIS CARE OR USE, THUS PERMITTING INVOLUNTARY COLLECTION OF ANY SUCH ADMINISTRATIVELY DETERMINED INDEBTEDNESS FROM THE MEMBER'S CURRENT PAY. AS TO THIS CONCLUSION, WHILE THE STATUTES DO NOT PRESCRIBE ANY PARTICULAR PROCEDURE FOR THE ADMINISTRATIVE DETERMINATION OF INDEBTEDNESS, THEY DO REQUIRE, IN OUR OPINION, THAT SUCH DETERMINATION BE MADE BY THE SECRETARY OF THE SERVICE OF WHICH THE INDIVIDUAL CONCERNED IS A MEMBER, OR HIS DESIGNEE.

WE SEE NOTHING, HOWEVER, THAT WOULD PRECLUDE, AS A PRACTICAL MATTER OF ADMINISTRATIVE PROCEDURE IN MAKING SUCH DETERMINATION OF INDEBTEDNESS, THE RELIANCE BY THE RESPECTIVE SECRETARIES OR THEIR DESIGNEES) ON THE REPORT OF THE INSTRUMENTALITY (DEFENSE INTELLIGENCE AGENCY REPORT OF A BOARD OF SURVEY, FOR EXAMPLE), THAT INVESTIGATES THE FACTS AND CIRCUMSTANCES AND MAKES FINDINGS AND RECOMMENDATIONS, EVEN THOUGH SUCH FINDINGS AND RECOMMENDATIONS MAY BE ADVISORY ONLY. SEE MORGAN V. UNITED STATES, 298 U.S. 468, 481 (1936); EAGLES V. SAMUELS, 329 U.S. 304, 315, 316 (1946); NLRB V. DUVAL JEWELRY CO., 357 U.S. 1 (1957).

OF COURSE THE PROVISIONS OF 37 U.S.C. 1007(C) AND 37 U.S.C. 1007(E) APPLY ONLY TO MEMBERS OF THE ARMY AND AIR FORCE, AND NOT TO MEMBERS OF THE OTHER ARMED SERVICES AND THIS EXPRESSION OF OUR VIEWS PERTAINS ONLY TO ARMY AND AIR FORCE MEMBERS.

IT FOLLOWS THAT IF REGULATIONS OF THE ARMY AND AIR FORCE ARE AMENDED TO AUTHORIZE AN ADMINISTRATIVE DETERMINATION OF INDEBTEDNESS UNDER 37 U.S.C. 1007(C) OR 37 U.S.C. 1007(E) IN THE MANNER DISCUSSED ABOVE, THE SECRETARY CONCERNED WOULD ALSO BE AUTHORIZED TO REMIT OR CANCEL SUCH AN INDEBTEDNESS OF AN ENLISTED MAN, UNDER THE PROVISIONS OF 10 U.S.C. 4837(D) AND 9837(D).