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WHEN THE MEMBER IS NOT SENTENCED TO A DISHONORABLE OR BAD CONDUCT DISCHARGE. IN WHICH EVENT THAT PAY WILL BE REDUCED BY THE AMOUNT OF THE MEMBER'S CONTRIBUTION TO THE CLASS Q ALLOTMENT AND THE AMOUNT FORFEITED MAY NOT EXCEED TWO- THIRDS OF THE REDUCED AMOUNT. THE PROVISION IN 10 U.S.C. 4837 (B) RESERVING TO ENLISTED MEMBERS ONE- THIRD OF THEIR MONTHLY PAY WHICH IS IMMUNE FROM STOPPAGE FOR ADMINISTRATIVELY DETERMINED DEBTS DOES NOT LIMIT THE AMOUNT OF A COURT MARTIAL FORFEITURE THAT MAY BE ADJUDGED OR COLLECTED. WHICH PERMITS INVOLUNTARY COLLECTION OF ADMINISTRATIVELY DETERMINED DEBTS FROM ENLISTED MEMBERS OF THE UNIFORMED SERVICES TO THE EXTENT THAT ONE-THIRD OF THE TOTAL MONTHLY PAY IS RESERVED TO THE MEMBERS.

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B-138882, JULY 21, 1959, 39 COMP. GEN. 46

MILITARY PERSONNEL - PAY - WITHHOLDING - DEBT LIQUIDATION - COURT MARTIAL FINES - ADMINISTRATIVE DEBTS THE MAXIMUM AMOUNT OF MONTHLY BASIC PAY OF ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHICH MAY BE FORFEITED BY A GENERAL OR SPECIAL COURTS- MARTIAL, WHEN THE MEMBER IS NOT SENTENCED TO A DISHONORABLE OR BAD CONDUCT DISCHARGE, IN TWO-THIRDS OF THE MEMBER'S BASIC PAY, PLUS SEA OR FOREIGN DUTY PAY, UNLESS THE MEMBER HAS IN EFFECT A CLASS Q ALLOTMENT, IN WHICH EVENT THAT PAY WILL BE REDUCED BY THE AMOUNT OF THE MEMBER'S CONTRIBUTION TO THE CLASS Q ALLOTMENT AND THE AMOUNT FORFEITED MAY NOT EXCEED TWO- THIRDS OF THE REDUCED AMOUNT. THE PROVISION IN 10 U.S.C. 4837 (B) RESERVING TO ENLISTED MEMBERS ONE- THIRD OF THEIR MONTHLY PAY WHICH IS IMMUNE FROM STOPPAGE FOR ADMINISTRATIVELY DETERMINED DEBTS DOES NOT LIMIT THE AMOUNT OF A COURT MARTIAL FORFEITURE THAT MAY BE ADJUDGED OR COLLECTED, BUT ONLY PREVENTS DEDUCTIONS FROM PAY FOR DEBTS ADMINISTRATIVELY DETERMINED TO BE DUE THE UNITED STATES, IN ADDITION TO COURT-MARTIAL FORFEITURES AND AMOUNTS OTHERWISE AUTHORIZED BY LAW TO BE WITHHELD, WHICH WOULD REDUCE THE MEMBER'S PAY ACTUALLY RECEIVED FOR ANY MONTH TO LESS THAN ONE-THIRD. COURT-MARTIAL FORFEITURES AND STATUTORY DEDUCTIONS FOR INCOME TAX, F.I.C.A. WITHHOLDINGS, UNITED STATES SOLDIERS' HOME DEDUCTIONS, AND CONTRIBUTION TO CLASS Q ALLOTMENT CONSTITUTE ITEMS FOR DEDUCTION FROM TWO- THIRDS OF THE TOTAL MONTHLY PAY OF ENLISTED MEMBERS OF THE UNIFORMED SERVICES BEFORE COLLECTION OF AN ADMINISTRATIVELY DETERMINED DEBT. UNDER 10 U.S.C. 4837 (B), WHICH PERMITS INVOLUNTARY COLLECTION OF ADMINISTRATIVELY DETERMINED DEBTS FROM ENLISTED MEMBERS OF THE UNIFORMED SERVICES TO THE EXTENT THAT ONE-THIRD OF THE TOTAL MONTHLY PAY IS RESERVED TO THE MEMBERS, AND UNDER THE ACT OF JULY 15, 1954, 5 U.S.C. 46D, WHICH PERMITS DEDUCTIONS FROM BASIC, SPECIAL AND INCENTIVE PAY IN EXCESS OF TWO- THIRDS OF THE MEMBER'S PAY IN ORDER TO EFFECT COLLECTION OF ERRONEOUS PAYMENTS WITHIN THE PERIOD OR ANTICIPATED PERIOD OF SERVICE, THE GOVERNMENT HAS TWO REMEDIES FOR COLLECTION OF DEBTS AND ANY INCONSISTENCIES MAY BE OBVIATED BY VIEWING THE 1954 ACT AS GOVERNING COLLECTION OF ERRONEOUS PAYMENTS UNLESS AFFIRMATIVE ADMINISTRATIVE ACTION IS TAKEN TO EFFECT COLLECTION UNDER 10 U.S.C. 4837 (B) IN WHICH EVENT THE MEMBER IS ENTITLED TO RECEIVE ONE-THIRD OF THE TOTAL PAY. IN THE LIQUIDATION OF DEBTS OF ENLISTED MEMBERS OF THE UNIFORMED SERVICES RESULTING FROM ERRONEOUS PAYMENT, AND IN THE ABSENCE OF AN ADMINISTRATIVE ELECTION TO EFFECT COLLECTION UNDER 10 U.S.C. 4837 (B), ONE-THIRD OF THE MEMBER'S SPECIAL PAY, INCENTIVE PAY, AND PROFICIENCY PAY--- WHICH IS A SPECIAL PAY UNDER THE ACT OF JULY 15, 1954, 5 U.S.C. 46D--- SHOULD BE PAID TO HIM UNLESS A GREATER DEDUCTION IS NECESSARY TO EFFECT COLLECTION WITHIN THE ANTICIPATED PERIOD OF ACTIVE SERVICE. IN THE LIQUIDATION OF DEBTS OF ENLISTED MEMBERS OF THE UNIFORMED SERVICES RESULTING FROM OTHER THAN AN ERRONEOUS PAYMENT--- AN ADMINISTRATIVELY DETERMINED DEBT--- UNDER 10 U.S.C. 4837 (B), COLLECTION MAY ONLY BE MADE FROM AMOUNTS IN EXCESS OF ONE-THIRD OF THE MEMBER'S TOTAL PAY.

TO THE SECRETARY OF DEFENSE, JULY 21, 1959:

BY LETTER DATED FEBRUARY 24, 1959, THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTED OUR DECISION ON FOUR QUESTIONS CONTAINED IN THE ENCLOSED COPY OF COMMITTEE ACTION NO. 235 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

QUESTION 1 IS AS FOLLOWS:

WHAT IS THE MAXIMUM AMOUNT OF MONTHLY BASIC PAY OF AN ENLISTED MEMBER THAT MAY BE FORFEITED BY A GENERAL OR SPECIAL COURT-MARTIAL, WHEN THE ACCUSED IS NOT SENTENCED TO A DISHONORABLE OR BAD CONDUCT DISCHARGE, I.E., MUST ONE-THIRD OF SUCH PAY BE ACTUALLY RESERVED AND PAID TO THE ENLISTED MEMBER OR IS TWO-THIRDS OF HIS GROSS MONTHLY BASIC PAY SUBJECT TO FORFEITURE?

THE STATUTORY JURISDICTION OF GENERAL AND SPECIAL COURTS-MARTIAL IS CONTAINED IN ARTICLES 18 AND 19 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 818, 819, 70A STAT. 43. ARTICLE 19 PROVIDES THAT SPECIAL COURTS -MARTIAL MAY (UNDER SUCH LIMITATIONS AS THE PRESIDENT MAY PRESCRIBE) ADJUDGE ANY PUNISHMENT NOT FORBIDDEN BY CHAPTER 47, TITLE 10, U.S.C. (THE UNIFORM CODE OF MILITARY JUSTICE, 70A STAT. 36-78), EXCEPT, AMONG OTHER PENALTIES,"FORFEITURE OF PAY EXCEEDING TWO-THIRDS PAY PER MONTH, OR FORFEITURE OF PAY FOR MORE THAN SIX MONTHS.' ARTICLE 56, 10 U.S.C. 856, PROVIDES THAT THE PUNISHMENT WHICH A COURT-MARTIAL MAY DIRECT FOR AN OFFENSE MAY NOT EXCEED SUCH LIMITS AS THE PRESIDENT MAY PRESCRIBE FOR THE OFFENSE.

PARAGRAPH 126H (2) OF THE MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, PRESCRIBED BY THE PRESIDENT, PROVIDES THAT WHILE A GENERAL COURT MARTIAL IS NOT LIMITED BY STATUTE AS TO THE AMOUNT OF FORFEITURES IT MAY ADJUDGE, IN THE CASE OF AN ENLISTED MEMBER IT MAY NOT ADJUDGE A FORFEITURE OF MORE THAN TWO-THIRDS PAY PER MONTH FOR SIX MONTHS "UNLESS IT ALSO SENTENCES THE ACCUSED TO DISHONORABLE OR BAD CONDUCT DISCHARGE," AND THAT IN COMPUTING THE MAXIMUM FORFEITURE IN DOLLARS AND CENTS "THE BASIC PAY" OF THE ENLISTED MEMBER "PLUS SEA OR FOREIGN DUTY PAY * * * WILL BE TAKEN AS THE BASIS.' IT IS THERE STATED THAT THE TERM "BASIC PAY" COMPREHENDS NO ELEMENT OF PAY OTHER THAN BASIC PAY OF THE GRADE OR CLASS WITHIN GRADE AS FIXED BY STATUTE AND DOES NOT INCLUDE SPECIAL PAY OR INCENTIVE PAY, ETC. PARAGRAPH 126H (2) FURTHER PROVIDES THAT "UNLESS DISHONORABLE OR BAD CONDUCT DISCHARGE IS ADJUDGED, THE MONTHLY CONTRIBUTION OF AN ENLISTED PERSON TO FAMILY ALLOWANCE OR TO BASIC ALLOWANCE FOR QUARTERS WILL BE DEDUCTED PRIOR TO COMPUTING THE NEXT AMOUNT OF PAY SUBJECT TO FORFEITURE.'

QUESTION 1 IS ANSWERED BY SAYING THAT TWO-THIRDS OF THE ENLISTED MEMBER'S BASIC PAY PLUS SEA OR FOREIGN DUTY PAY IS SUBJECT TO FORFEITURE UNLESS THE MEMBER HAS IN EFFECT A CLASS Q ALLOTMENT, IN WHICH EVENT THAT PAY WILL BE REDUCED BY THE AMOUNT OF HIS STATUTORY CONTRIBUTION TO THE CLASS Q ALLOTMENT, AND THE AMOUNT FORFEITED MAY NOT EXCEED TWO-THIRDS OF SUCH REDUCED AMOUNT.

PARAGRAPH 126H OF THE UNITED STATES ARMY 1956 CUMULATIVE POCKET PART TO THE MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, CONTAINS A TABLE SETTING FORTH THE MAXIMUM FORFEITURE OF PAY THAT MAY BE ADJUDGED BY COURT- MARTIAL AGAINST ENLISTED MEMBERS WHO ARE NOT SENTENCED TO PUNITIVE DISCHARGE. IT IS REPORTED THAT THE PRINCIPLE USED BY THE DEPARTMENT OF THE ARMY IS THAT A MEMBER IS SUBJECT TO FORFEIT "TWO THIRDS OF HIS ENTIRE BASIC PAY," UNLESS HE HAS A CLASS Q ALLOTMENT IN EFFECT, IN WHICH CASE THE AMOUNT THE MEMBER CONTRIBUTES TO SAID ALLOTMENT IS DEDUCTED FROM HIS BASIC PAY AND THE TWO-THIRDS RULE IS APPLIED TO THE DIFFERENCE. IN THE DISCUSSION IN COMMITTEE ACTION NO. 235, IT IS STATED THAT QUESTION ARISES AS TO WHETHER THE ADMINISTRATIVE PROCEDURE AS HEREINBEFORE INDICATED IS LEGALLY CORRECT IN THE LIGHT OF THE PROVISIONS OF THE ACT OF MAY 22, 1928, 45 STAT. 698, AS NOW CODIFIED IN 10 U.S.C. 4837.

SECTION 4837 (B), TITLE 10, U.S.C., AS ENACTED AUGUST 10, 1956, PROVIDED AS FOLLOWS:

UNDER REGULATIONS TO BE PRESCRIBED BY THE SECRETARY OF THE ARMY, ANY AMOUNT THAT AN ENLISTED MEMBER IS ADMINISTRATIVELY DETERMINED TO OWE THE UNITED STATES OR ANY OF ITS INSTRUMENTALITIES MAY BE DEDUCTED FROM HIS PAY IN MONTHLY INSTALLMENTS. HOWEVER, AFTER THE DEDUCTION OF PAY FORFEITED BY THE SENTENCE OF A COURT-MARTIAL, IF ANY, OR OTHERWISE AUTHORIZED BY LAW TO BE WITHHELD, THE DEDUCTIONS AUTHORIZED BY THIS SECTION MAY NOT REDUCE THE PAY ACTUALLY RECEIVED FOR ANY MONTH TO LESS THAN ONE-THIRD OF HIS BASIC PAY FOR THAT MONTH.

THE WORD "BASIC" WAS DELETED BY SECTION 33 (A) (27) (A) OF THE ACT OF SEPTEMBER 2, 1958, PUBLIC LAW 85-861, 72 STAT. 1566, 10 U.S.C. 4837 (A), EFFECTIVE AUGUST 10, 1956. SEE SECTION 33 (G) OF THAT ACT, 72 STAT. 1568.

THE PURPOSE OF 10 U.S.C. 4837 (B), AS EVIDENCED BY ITS LANGUAGE AND THE LEGISLATIVE HISTORY OF THE 1928 ACT, FROM WHICH IT WAS DERIVED, IS TO LIMIT THE AMOUNT OF DEDUCTIONS THAT MAY BE MADE FROM AN ENLISTED MEMBER'S PAY FOR DEBTS "ADMINISTRATIVELY DETERMINED" TO BE DUE THE UNITED STATES OR ANY OF ITS INSTRUMENTALITIES, ITS OBJECT BEING TO LEAVE TO THE MEMBER A PORTION OF HIS PAY EACH MONTH IMMUNE FROM STOPPAGE FOR ADMINISTRATIVELY DETERMINED DEBTS. IT WAS NOT THE PURPOSE OF THE ACT TO IMPOSE ANY LIMITATION ON THE AMOUNT OF A COURT-MARTIAL FORFEITURE THAT MAY BE ADJUDGED OR COLLECTED, BUT ONLY TO LIMIT THE AMOUNT OF ADMINISTRATIVELY ASCERTAINED DEBTS IN ADDITION TO FORFEITURE AND AMOUNTS OTHERWISE AUTHORIZED TO BE WITHHELD THAT COULD BE INVOLUNTARILY COLLECTED FROM THE ENLISTED MEMBER'S PAY. TO MAKE THIS CLEAR, THE SECOND SENTENCE OF 10 U.S.C. 4837 (B) LIMITS THE DEDUCTIONS "AUTHORIZED BY THIS SECTION" FOR ADMINISTRATIVELY DETERMINED DEBTS WHERE THERE ARE ALSO COURTS-MARTIAL FORFEITURES AND/OR AMOUNTS OTHERWISE AUTHORIZED BY LAW TO BE WITHHELD. GENERALLY, ITS PURPOSE IS TO SECURE TO THE MEMBER AT LEAST "ONE-THIRD OF HIS PAY FOR THAT MONTH" IF NOT FORFEITED BY A COURT-MARTIAL SENTENCE "OR OTHERWISE AUTHORIZED BY LAW TO BE THHELD.' IN OTHER WORDS, THE SECTION GOES NO FURTHER THAN TO PREVENT DEDUCTIONS FOR DEBTS ADMINISTRATIVELY DETERMINED UNDER "THIS SECTION" IN ADDITION TO COURTS-MARTIAL FORFEITURES AND AMOUNTS OTHERWISE AUTHORIZED BY LAW TO BE WITHHELD, THE EFFECT OF WHICH WOULD BE TO REDUCE THE MEMBER'S PAY "ACTUALLY RECEIVED FOR ANY MONTH TO LESS THAN ONE-THIRD OF HIS PAY FOR THAT MONTH.' CF. A-25204, MARCH 19, 1929, AND 13 COMP. GEN. 201.

QUESTION 2 IS AS FOLLOWS:

WHAT IS THE MINIMUM AMOUNT OF BASIC PAY THAT MUST BE PAID EACH MONTH TO AN ENLISTED MEMBER UNDER 10 U.S.C. 4837 DURING THE PERIOD WHEN---

A. HE IS REQUIRED TO FORFEIT LESS THAN TWO-THIRDS OF HIS BASIC PAY BY A COURT-MARTIAL AND HE IS ALSO INDEBTED (OTHER THAN AN ERRONEOUS PAYMENT) TO THE U.S. GOVERNMENT IN AN AMOUNT, WHEN ADDED TO THE FORFEITURE, IN EXCESS OF TWO-THIRDS OF HIS BASIC PAY; OR

B. HE IS INDEBTED (OTHER THAN AN ERRONEOUS PAYMENT) TO THE U.S. GOVERNMENT IN AN AMOUNT IN EXCESS OF TWO-THIRDS OF HIS BASIC PAY?

IN OTHER WORDS, ARE COURT-MARTIAL FORFEITURES AND STATUTORY DEDUCTIONS, SUCH AS INCOME TAX AND FICA WITHHOLDING-S, U.S. SOLDIERS' HOME DEDUCTIONS, AND ENLISTED MEMBER'S CONTRIBUTION TO CLASS Q ALLOTMENT, CONSIDERED A PART OF THE TWO-THIRDS PAY OR THE ONE-THIRD PORTION RESERVED FOR THE ENLISTED MEMBER, OR SHOULD ALL OF SUCH DEDUCTIONS AND FORFEITURES, OR ANY ONE THEREOF, BE DEDUCTED FROM THE ENLISTED MEMBER'S MONTHLY BASIC PAY BEFORE DETERMINING ONE-THIRD PORTION RESERVED FOR THE MEMBER?

THE PROVISIONS OF 10 U.S.C. 4837 (B) PLACE NO LIMIT ON THE AMOUNTS THAT MAY BE DEDUCTED FROM THE PAY OF AN ENLISTED MAN EXCEPT WHERE IT IS ADMINISTRATIVELY DETERMINED THAT HE IS INDEBTED TO THE GOVERNMENT. THERE IS NO ADMINISTRATIVELY DETERMINED INDEBTEDNESS TO THE GOVERNMENT, HIS WHOLE PAY MAY BE DEDUCTED. IF THERE IS AN ADMINISTRATIVELY DETERMINED INDEBTEDNESS, NO LIMITATION IS PLACED ON THE AMOUNTS WHICH MAY BE DEDUCTED FOR ITEMS OTHER THAN AN ADMINISTRATIVELY DETERMINED DEBT; IN THAT SITUATION, HOWEVER, THE AMOUNT THAT MAY BE DEDUCTED ON ACCOUNT OF THAT DEBT IS LIMITED TO THE DIFFERENCE BETWEEN TWO-THIRDS OF HIS TOTAL PAY AND THE TOTAL OF ALL ITEMS AUTHORIZED BY LAW TO BE WITHHELD (EXCLUSIVE OF ADMINISTRATIVELY DETERMINED DEBTS) PLUS COURT MARTIAL FORFEITURES, WHICH WE HELD IN 36 COMP. GEN. 79 NOW TAKE PRECEDENCE OVER ALL OTHER ITEMS OF INDEBTEDNESS. SEE 25 COMP. GEN. 562, 565. IN OTHER WORDS, WHILE MORE THAN TWO-THIRDS OF A MEMBER'S PAY MAY BE DEDUCTED IF THE DEDUCTIONS INVOLVED ARE OTHERWISE AUTHORIZED AND DIRECTED BY LAW TO BE WITHHELD, AN INDEBTEDNESS "ADMINISTRATIVELY DETERMINED" MAY NOT BE APPLIED AGAINST THE MONTHLY PAY OF AN ENLISTED MEMBER, EITHER SEPARATELY OR IN COMBINATION WITH COURT-MARTIAL FORFEITURES AND/OR AMOUNTS OTHERWISE AUTHORIZED BY LAW TO BE WITHHELD, SO AS TO REDUCE THE PAY ACTUALLY RECEIVED BY A MEMBER FOR ANY MONTH "TO LESS THAN ONE-THIRD OF HIS PAY FOR THAT MONTH.' CF. 23 COMP. GEN. 850; 25 COMP. GEN. 562.

SECTION 4837 (B) DOES NOT REQUIRE THAT AN ENLISTED MEMBER BE PAID AT LEAST ONE-THIRD OF HIS PAY OR ANY OTHER MINIMUM AMOUNT. IF THERE IS AN ADMINISTRATIVELY DETERMINED INDEBTEDNESS, HOWEVER, THE STATUTE PERMITS INVOLUNTARY COLLECTION OF ONLY SO MUCH OF THAT DEBT AS WILL PERMIT THE MEMBER TO RECEIVE AT LEAST ONE-THIRD OF HIS PAY. IN THAT SITUATION NONE OF THE ITEMS ENUMERATED IN YOUR QUESTION ARE CONSIDERED PART OF THE ONE- THIRD PORTION OF PAY RESERVED FOR THE ENLISTED MEMBER, WHICH AMOUNTS TO ONE-THIRD OF HIS TOTAL PAY WITHOUT REDUCTION ON ACCOUNT OF ANY OF THE ENUMERATED ITEMS. ALL OF THOSE ITEMS CONSTITUTE ITEMS WHICH ARE FOR DEDUCTION FROM TWO-THIRDS OF THE MEMBER'S TOTAL PAY BEFORE COLLECTION OF AN ADMINISTRATIVELY DETERMINED DEBT. QUESTION 2 IS ANSWERED ACCORDINGLY.

QUESTION 3 IS AS FOLLOWS:

WHAT IS THE MINIMUM AMOUNT OF BASIC PAY THAT MUST BE PAID UNDER THE CONDITIONS SET FORTH IN QUESTION 2 ABOVE, EXCEPT THE INDEBTEDNESS RESULTED FROM AN ERRONEOUS PAYMENT?

AS INDICATED ABOVE, SECTION 4837 (B) PERMITS INVOLUNTARY COLLECTION OF ONLY SO MUCH OF AN ADMINISTRATIVELY DETERMINED DEBT AS WILL PERMIT THE MEMBER TO RECEIVE ONE-THIRD OF HIS TOTAL PAY; THE STATUTE NO LONGER RESERVES TO THE MEMBER ONLY ONE-THIRD OF HIS BASIC PAY. THE ACT OF JULY 15, 1954, 68 STAT. 482, 5 U.S.C. 46D, PERMITS INVOLUNTARY COLLECTION FROM THE PAY OF MILITARY PERSONNEL OF ERRONEOUS PAYMENTS MADE BY THE DEPARTMENT CONCERNED "ONLY FROM * * * BASIC PAY, SPECIAL PAY, AND INCENTIVE PAY.' THAT ACT PROVIDES THAT---

* * * COLLECTION SHALL BE EFFECTED OVER A PERIOD NOT GREATER THAN THE ANTICIPATED PERIOD OF ACTIVE DUTY * * *. THE AMOUNT DEDUCTED FOR ANY PERIOD SHALL NOT EXCEED AN AMOUNT EQUAL TO TWO-THIRDS OF THE PAY FROM WHICH THE DEDUCTION IS MADE, UNLESS THE DEDUCTION OF A GREATER AMOUNT IS NECESSARY TO EFFECT COLLECTION WITHIN THE PERIOD OR ANTICIPATED PERIOD OF ACTIVE DUTY * * *

IN 34 COMP. GEN. 164, 166, THERE WAS CONSIDERED THE QUESTION WHETHER THE TOTAL OF ALL BASIC PAY, SPECIAL PAY, AND INCENTIVE PAY, COULD BE WITHHELD WHERE TWO-THIRDS OF THE MEMBER'S PAY FOR HIS ANTICIPATED PERIOD OF ACTIVE DUTY IS NOT SUFFICIENT TO PERMIT FULL COLLECTION OF THE DEBT. THAT QUESTION WAS ANSWERED IN THE AFFIRMATIVE. HOWEVER, IN 34 COMP. GEN. 504, 509, IT WAS CONCLUDED THAT WHILE THE ENTIRE AMOUNT OF BASIC PAY, INCENTIVE PAY, ETC., MAY BE WITHHELD IF NECESSARY TO LIQUIDATE A MEMBER'S INDEBTEDNESS FOR AN ERRONEOUS PAYMENT, IT WAS NOT THOUGHT THAT CONGRESS INTENDED THAT IN THIS CONNECTION A CONDITION OF SERVITUDE SHOULD BE IMPOSED ON MEMBERS OF THE MILITARY SERVICE. THEREFORE, IT WAS HELD THAT THERE "IT IS LEFT TO ADMINISTRATIVE DISCRETION TO DECIDE WHETHER AND TO WHAT EXTENT AN AMOUNT IN EXCESS OF TWO-THIRDS OF SUCH PAY SHOULD BE WITHHELD" IN EACH CASE UNDER THE 1954 ACT.

SECTION 4 OF THE 1954 ACT, 5 U.S.C. 46 (D) NOTE, PROVIDES:

NOTHING CONTAINED IN THIS ACT SHALL BE CONSTRUED AS REPEALING, AMENDING, OR MODIFYING IN ANY WAY THE PROVISIONS OF THE ACT OF MAY 22, 1928 (CH. 676, 45 STAT. 698).

IN 34 COMP. GEN. 504, AS MODIFIED BY 35 COMP. GEN. 421, WE HELD THAT A DEBT ARISING FROM AN ERRONEOUS PAYMENT MAY BE AN ADMINISTRATIVELY DETERMINED DEBT WITHIN THE MEANING OF THE 1928 ACT AND, THEREFORE, IN VIEW OF THE ABOVE-QUOTED PROVISION OF THE 1954 ACT, MAY CONTINUE TO BE REMITTED UNDER THE 1928 ACT (10 U.S.C. 4837 (D) ). THE STATEMENT IN 34 COMP. GEN. 164, AT 166, AS AMPLIFIED IN 34 COMP. GEN. 504, 506, THAT "THE WITHHOLDING TAX AND ALLOTMENTS IN SUPPORT OF BASIC ALLOWANCE FOR QUARTERS SHOULD FIRST BE DEDUCTED BEFORE COMPUTATION OF THE TWO-THIRDS OF PAY THAT MAY BE WITHHELD TO LIQUIDATE INDEBTEDNESS UNDER THE 1954 ACT" HAS NO APPLICATION TO THE PROVISIONS OF 10 U.S.C. 4837 (B). UNDER THE PROVISIONS OF THAT SECTION THE MEMBER WHOSE ADMINISTRATIVELY DETERMINED DEBTS, IF DEDUCTED FROM HIS TOTAL PAY, WOULD RAISE THE CHARGES AGAINST SUCH PAY TO MORE THAN TWO-THIRDS OF THAT PAY IS NEVERTHELESS ENTITLED TO RECEIVE ONE-THIRD OF HIS TOTAL PAY.

EACH OF THE ACTS (1928 AND 1954) PROVIDE A REMEDY TO THE GOVERNMENT TO COLLECT DEBTS ARISING OUT OF ERRONEOUS PAYMENTS TO ENLISTED MEMBERS OF THE ARMY. THE APPARENT INCONSISTENT PROVISIONS OF THE TWO ACTS MAY BE OBVIATED IN PRACTICAL APPLICATION BY VIEWING THE 1954 ACT AS GOVERNING THE COLLECTION OF AN ERRONEOUS PAYMENT UNLESS ACTION IS TAKEN ADMINISTRATIVELY TO ELECT TO RECOVER THE DEBT UNDER THE PROVISIONS OF SECTION 4837 (B). THE ABSENCE OF SUCH AFFIRMATIVE ELECTION TO COLLECT THE DEBT UNDER THAT SECTION, THE 1954 ACT APPLIES AND THE RULE IN 34 COMP. GEN. 164, 166, GOVERNS. IF AFFIRMATIVE ADMINISTRATIVE ELECTION IS MADE TO COLLECT THE DEBT UNDER SECTION 4837 (B), THE MEMBER IS ENTITLED TO RECEIVE ONE-THIRD OF HIS TOTAL PAY. QUESTION 3 IS ANSWERED ACCORDINGLY. QUESTION 4 READS AS FOLLOWS: IN THE LIQUIDATION OF AN INDEBTEDNESS RESULTING FROM (A) AN ERRONEOUS PAYMENT OR (B) OTHER THAN AN ERRONEOUS PAYMENT, SHOULD ONE-THIRD OF THE MEMBER'S SPECIAL PAY, INCENTIVE PAY, OR PROFICIENCY PAY BE RESERVED FOR HIM, IF OTHERWISE ENTITLED THERETO, OR SHOULD ALL OF SUCH PAYS OR ANY ONE THEREOF BE USED TO SATISFY THE INDEBTEDNESS IN EITHER CASE?

WITH RESPECT TO "/A) AN ERRONEOUS PAYMENT," IN THE ABSENCE OF AN ADMINISTRATIVE ELECTION TO COLLECT THE INDEBTEDNESS UNDER SECTION 4837 (B), ONE-THIRD OF THE MEMBER'S SPECIAL PAY, INCENTIVE PAY, AND PROFICIENCY PAY SHOULD BE PAID TO HIM UNLESS THE DEDUCTION OF MORE THAN TWO-THIRDS OF SUCH AMOUNT IS NECESSARY TO EFFECT COLLECTION WITHIN THE PERIOD OF ANTICIPATED ACTIVE DUTY. SEE 34 COMP. GEN. 164 AND 34 COMP. GEN. 504, QUESTION 7. IT MAY BE NOTED THAT IN 38 COMP. GEN. 487 WE HELD THAT PROFICIENCY PAY IS A SPECIAL OR INCENTIVE PAY WITHIN THE MEANING OF 10 U.S.C. 101 (27). WE REGARD IT IS A SPECIAL OR INCENTIVE PAY WITHIN THE MEANING OF THE 1954 ACT. WITH RESPECT TO "/B) OTHER THAN AN ERRONEOUS PAYMENT"--- AN ADMINISTRATIVELY DETERMINED DEBT--- THE 1958 AMENDMENT DELETING THE WORD "BASIC" FROM SECTION 4837 (B) HAD THE EFFECT OF PERMITTING THE COLLECTION OF ADMINISTRATIVELY DETERMINED DEBTS ONLY FROM AMOUNTS IN EXCESS OF ONE-THIRD OF HIS TOTAL PAY. SEE THE ANSWERS TO QUESTIONS 1 AND 2 ABOVE.

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