B-117636, APRIL 12, 1954, 33 COMP. GEN. 443

B-117636, APRIL 12, 1954, 33 COMP. GEN. 443

SET-OFF - PAY OR COMPENSATION DUE MILITARY OR CIVILIAN PERSONNEL - INDEBTEDNESS TO UNITED STATES - FINAL PAY DEFINED ANY PAY AND ALLOWANCES OTHERWISE DUE AND UNPAID OR UNRESERVED, WHEN A PERSON IS SEPARATED FROM THE GOVERNMENT SERVICE--- EITHER MILITARY OR CIVILIAN--- MAY BE REGARDED AS PART OF THE FINAL PAY WHICH MAY BE APPLIED AGAINST DEBTS TO THE GOVERNMENT. SEE 29 COMP. GEN. 99; CF. 29 COMP. GEN. 93. WHEN A MEMBER OF THE NAVAL SERVICE HAS BEEN DULY CONVICTED UNDER LAWFULLY PRESCRIBED COURT-MARTIAL PROCEEDINGS OF EMBEZZLEMENT, THEFT, FORGERY, FRAUD, OR OTHER UNLAWFUL ACT, WHICH HAS RESULTED IN A LOSS TO THE GOVERNMENT FOR WHICH HE IS INDEBTED TO THE UNITED STATES, THE PAYMENT TO SUCH A MEMBER, NOTWITHSTANDING HIS DEBT, OF ACCRUED PAY AND ALLOWANCES ACCUMULATED AS OF THE DATE OF SEPARATION FROM THE NAVAL SERVICE BY REASON OF CURRENT PAYMENTS HAVING BEEN SUSPENDED, IS NOT REQUIRED.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE NAVY, APRIL 12, 1954:

REFERENCE IS MADE TO LETTER DATED NOVEMBER 3, 1953, FROM THE ASSISTANT SECRETARY OF THE NAVY FOR AIR, REQUESTING DECISION AS TO WHAT PAY AND ALLOWANCES ARE TO BE CONSIDERED AS CONSTITUTING FINAL SALARY AGAINST WHICH INVOLUNTARY DEDUCTIONS MAY BE MADE TO LIQUIDATE LOSSES SUSTAINED BY THE GOVERNMENT.

IT IS STATED THAT IN CONNECTION WITH THE PROPOSED PROMULGATION OF REVISED REGULATIONS COVERING THE LIQUIDATION OF LOSSES SUSTAINED BY THE GOVERNMENT FROM THE PAY OF MEMBERS OF THE NAVAL SERVICE WHO HAVE BEEN CONVICTED BY COURT-MARTIAL OF EMBEZZLEMENT, THEFT, FORGERY, AND SIMILAR OFFENSES, THE QUESTION HAS ARISEN AS TO WHAT CONSTITUTES FINAL SALARY WITHIN THE MEANING OF 29 COMP. GEN. 99 AND SIMILAR DECISIONS, AGAINST WHICH INVOLUNTARY DEDUCTIONS PROPERLY MAY BE MADE. THE FOLLOWING CLASSES OF CASES ARE INVOLVED:

(A) AN ENLISTED MAN IS SENTENCED TO DISHONORABLE OR BAD CONDUCT DISCHARGE AND CONFINEMENT, WITH TOTAL FORFEITURE OF PAY AND ALLOWANCES EFFECTIVE ON THE DATE OF APPROVAL OF THE SENTENCE BY THE CONVENING AUTHORITY.

(B) AN ENLISTED MAN IS SENTENCED TO DISHONORABLE OR BAD CONDUCT DISCHARGE ONLY, WHICH MAY NOT BE EXECUTED UNDER ARTICLE 71, UNIFORM CODE OF MILITARY JUSTICE, UNTIL COMPLETION OF REVIEW BY A BOARD OF REVIEW AND THE COURT OF MILITARY APPEALS.

(C) AN ENLISTED MAN IS SENTENCED TO BAD CONDUCT DISCHARGE AND CONFINEMENT AT HARD LABOR FOR A SPECIFIED NUMBER OF MONTHS, WITH LOSS ONLY OF A PART OF PAY AND ALLOWANCES FOR A SPECIFIED NUMBER OF MONTHS.

(D) AN OFFICER IS SENTENCED TO DISMISSAL FROM THE SERVICE ONLY, WHICH MAY NOT BE EXECUTED UNDER ARTICLE 71, UCMJ, UNTIL APPROVED BY THE SECRETARY OF THE NAVY OR THE UNDER SECRETARY OR AN ASSISTANT SECRETARY.

(E) AN OFFICER IS SENTENCED TO BE DISMISSED, TO FORFEIT ALL PAY AND ALLOWANCES, AND TO BE CONFINED FOR A SPECIFIED NUMBER OF MONTHS.

SECTION 10112, NAVAL SUPPLEMENT TO THE MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, PROVIDES AS FOLLOWS:

10112. ADJUSTMENTS INVOLVING CONVICTED NON-ACCOUNTABLE PERSONS.--- WHEN THE UNITED STATES HAS SUFFERED LOSS OF MONEY OR PROPERTY THROUGH EMBEZZLEMENT, THEFT, FORGERY, OR OTHER CAUSES FOR WHICH PERSONS, OTHER THAN ACCOUNTABLE OFFICERS AS DEFINED IN ARTICLE 1901 NAVY REGULATIONS, HAVE BEEN TRIED AND CONVICTED BY GENERAL COURT-MARTIAL UNDER ARTICLES 108, 121, OR 132 OF THE CODE, THE AMOUNT OF SUCH LOSS CONSTITUTES AN INDEBTEDNESS TO THE UNITED STATES WHICH WILL BE LIQUIDATED FROM ACCRUED PAY AND ALLOWANCES BEFORE ANY PAYMENTS MAY BE MADE. IT IS THE PREROGATIVE OF THE CONVENING AUTHORITY OF THE GENERAL COURT-MARTIAL TO DETERMINE THE AMOUNT OF THE LOSS AND TO ADVISE THE DISBURSING OFFICER OF THE AMOUNT TO BE DEDUCTED FROM ACCRUED PAY AND ALLOWANCES.

PARAGRAPH 1044650 OF THE NAVY COMPTROLLER MANUAL PROVIDES THAT:

IN ACCORDANCE WITH ART. 1924, N.R., REGULAR PAYMENTS WILL BE MADE TO OFFICERS SEMIMONTHLY ON THE FIRST AND THE SIXTEENTH OF THE MONTH WITH PAY BEING COMPUTED THROUGH THE LAST DAY OF THE PREVIOUS MONTH AND THE FIFTEENTH OF THE CURRENT MONTH, RESPECTIVELY. REGULAR PAYMENTS TO ENLISTED MEMBERS WILL BE MADE ON THE FIFTH AND THE TWENTIETH OF EACH MONTH WITH PAY ALSO BEING COMPUTED THROUGH THE LAST DAY OF THE PREVIOUS MONTH AND THE FIFTEENTH OF THE CURRENT MONTH, RESPECTIVELY.

PARAGRAPH 1044650 FURTHER PROVIDES THAT, IF IT IS NOT PRACTICABLE TO PAY ON SUCH DATES,"OFFICERS AND ENLISTED MEMBERS WILL BE PAID AT SUCH OTHER TIMES AS MAY BE DIRECTED BY THE COMMANDING FICER.' THE REGULATION ALSO PROVIDES THAT " IF PRACTICABLE, ALL NAVY PERSONNEL WILL BE PAID IN FULL ON 30 JUNE AND 31 DECEMBER SO THAT UNPAID AMOUNTS WILL NOT BE CARRIED FORWARD TO THE NEW MILITARY PAY RECORD ( DD FORM 113) OPENED FOR THE SUBSEQUENT PAY RECORD PERIOD.' WHERE SUCH REGULAR PAYMENTS HAVE NOT BEEN MADE, WHETHER BECAUSE IMPRACTICABLE, OR DUE TO OTHER REASONS, THE ACCRUED AND UNPAID AMOUNT IS CARRIED FORWARD AND REMAINS TO THE CREDIT OF THE INDIVIDUAL CONCERNED.

IT IS UNDERSTOOD THAT IN ACCORDANCE WITH SECTION 10112 OF THE SUPPLEMENT TO THE MANUAL FOR COURTS-MARTIAL THE PAYMENT OF CURRENTLY ACCRUING PAY AND ALLOWANCES OF NAVAL PERSONNEL CONVICTED OF EMBEZZLEMENT, ETC., IS SUSPENDED UNTIL THE DATE THE INDIVIDUAL CONCERNED IS SEPARATED FROM THE NAVAL SERVICE BY DISHONORABLE OR BAD CONDUCT DISCHARGE UNDER SENTENCE OF COURT-MARTIAL, IN THE CASE OF ENLISTED PERSONNEL, OR THE DATE OF DISMISSAL FROM THE NAVAL SERVICE PURSUANT TO SENTENCE OF COURT-MARTIAL IN THE CASE OF OFFICER PERSONNEL.

IN DECISION OF AUGUST 30, 1949, 29 COMP. GEN. 99, IT WAS HELD THAT IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY (COMPARE THE PROVISIONS OF SECTION 1766, REVISED STATUTES, 5 U.S.C. 82, AS AMENDED BY THE ACT OF JULY 10, 1952, 66 STAT. 575, AND THE ACT OF MAY 26, 1936, 49 STAT. 1374, 5 U.S.C. 46B), NO PROPER BASIS WOULD BE PRESENTED TO SET OFF GENERAL DEBTS DUE THE UNITED STATES BY ITS EMPLOYEES, WITHOUT THEIR CONSENT, AGAINST THEIR CURRENT SALARY PAYMENTS DUE FOR THEIR SERVICES. HOWEVER, IT WAS SPECIFICALLY POINTED OUT IN SAID DECISION THAT "THE PROHIBITION AGAINST SUCH SET-OFF ACTION CONSISTENTLY HAS BEEN HELD NOT TO APPLY TO FINAL SALARY PAYMENTS IN THE EVENT THE EMPLOYEES ARE SEPARATED FROM THE FEDERAL SERVICE.' ALSO, SEE DECISION OF THE COURT OF CLAIMS, O-LEARY V. UNITED STATES, 82 C.1CLS. 305, WHERE THE COURT ALLOWED THE COUNTERCLAIM OF THE UNITED STATES OF THE AMOUNT OF AN UNPAID FINE AGAINST THE PLAINTIFF'S CLAIM FOR PAYMENT OF FINAL SALARY AND FOR REFUND OF RETIREMENT DEDUCTIONS.

IN ANY CASE WHERE A MEMBER OF THE NAVAL SERVICE HAS BEEN DULY CONVICTED UNDER LAWFULLY PRESCRIBED COURT-MARTIAL PROCEEDINGS OF EMBEZZLEMENT, THEFT, FORGERY, FRAUD, OR OTHER UNLAWFUL ACT, WHICH HAS RESULTED IN A LOSS TO THE GOVERNMENT FOR WHICH HE IS INDEBTED TO THE UNITED STATES, THE PAYMENT TO SUCH A MEMBER, NOTWITHSTANDING HIS DEBT, OF ACCRUED PAY AND ALLOWANCES ACCUMULATED AS OF THE DATE OF HIS SEPARATION FROM THE NAVAL SERVICE BY REASON OF CURRENT PAYMENTS HAVING BEEN SUSPENDED, WOULD NOT APPEAR TO BE REQUIRED. UNDER SUCH CIRCUMSTANCES IT IS AT LEAST DOUBTFUL THAT A CIVIL SUIT FOR PAYMENT PROPERLY COULD BE MAINTAINED WITHOUT OFFSET OF THE AMOUNT OF THE INDEBTEDNESS. NOR IS IT CLEAR THAT THE TOTAL AMOUNT DUE AND UNPAID EITHER MILITARY OR CIVILIAN PERSONNEL AS OF THE DATE OF THEIR ACTUAL SEPARATION FROM THE SERVICE, THOUGH IT MAY INCLUDE AMOUNTS WHICH MIGHT PREVIOUSLY HAVE BEEN PAID AS CURRENT PAY OR SALARY, MAY NOT PROPERLY BE APPLIED AGAINST ANY AMOUNT DUE THE GOVERNMENT.

IN THE ABSENCE OF ANY CLEAR RULE TO THE CONTRARY, IT IS CONCLUDED, THEREFORE, THAT ANY PAY AND ALLOWANCES OTHERWISE DUE AND UNPAID, OR UNRESERVED ( CF. 29 COMP. GEN. 93), WHEN A PERSON IS SEPARATED FROM THE GOVERNMENT SERVICE, MAY BE REGARDED AS A PART OF THE FINAL PAY WHICH MAY BE APPLIED AGAINST HIS DEBTS TO THE GOVERNMENT UNDER THE RULE STATED IN 29 COMP. GEN. 99 AND SIMILAR DECISIONS.