of administratively ascertained debts in addition to forfeitures 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 withheld." 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 courtmartial 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. If 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). In 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.

[B-129169]

Civilian Personnel-Restoration to Duty Following Security Suspension and Removals-Nonveterans-Leave Credit Decisions holding that back pay rights of employees who are restored to duty as result of the decision in Cole v. Young, 351 U.S. 536, following removal or suspension from nonsensitive positions for national security reasons are for determination under section 6(b) of the act of August 24, 1912, as amended by the act of June 10, 1948, 5 U.S.C. 652(b), rather than under the act of August 26, 1950, 5 U.S.C. 22-1, so that back pay and annual and sick leave credit for the period of removal or suspension were denied to employees who were not in the classified service or who did not have veterans preference will no longer be followed in view of the ruling of the Court of Claims in Leiner v. United States, No. 576-57, that a nonveteran was entitled to back pay under the 1950 act without regard to whether he was in the classified civil service. 36 Comp. Gen. 225; 37 id. 506, overruled.

Although the back pay formulas for employees restored to duty following unjustified suspensions or terminations are the same under section 6(b) of the act of August 24, 1912, as amended by the act of June 10, 1948, 5 U.S.C. 652 (b), and under the security suspension act of August 26, 1950, 5 U.S.C. 22-1, annual and sick leave, up to the statutory ceilings for periods of suspension or termination, may be credited only under the 1950 act; hence, for employees who are restored to duty as a result of the Cole v. Young decision, the departments may grant annual and sick leave credit.

To the Postmaster General, July 22, 1959:

We advised you in our decision of September 20, 1956, published at 36 Comp. Gen. 225, that the back pay rights of employees restored to duty as a result of the decision of the United States Supreme Court in Cole v. Young, 351 U.S. 536, following their suspension or removal for national security reasons purportedly under authority of the act of August 26, 1950, 64 Stat. 476, 5 U.S.C. 22-1, and Executive Order No. 10450, were for determination under section 6(b) of the act of August 24, 1912, as amended by the act of June 10, 1948, 62 Stat. 355, 5 U.S.C. 652(b)(1), rather than under the 1950 statute. See, also, 37 Comp. Gen. 506. The effect of those decisions was to deny back pay in the cases of employees who were not in the classified service or who did not have veterans preference, as well as to eliminate credit

for annual and sick leave which would have accrued but for the suspension or removal (31 Comp. Gen. 58; 35 id. 121, 123).

Our reason for holding as we did was that if, as held in Cole v. Young, the summary suspension and removal procedures of the 1950 act did not apply to the type of employment involved (nonsensitive), neither did the back pay provisions of such act. However, on October 8, 1958, the United States Court of Claims held in the case of Fred Leiner v. United States, C. Cls. No. 576-57, contrary to our decision, that the plaintiff, a nonveteran, was entitled to recover back pay under the 1950 act without regard to whether he was in the "classified civil service." The Government's motion for a rehearing was denied on February 11, 1959. The Department of Justice has advised us that no further action will be taken on the question of legal liability.

In view of the outcome of the judicial proceedings just mentioned, we shall no longer insist upon the position we took in the decisions in 36 Comp. Gen. 225 and 37 id. 506.

So far as concerns the one claim pending here on request for reconsideration of the disallowed portion (the major portion previously having been allowed), the correspondence of record indicates the disposition of your Department to award back pay for the period of suspension and termination to the date of receipt of the letter offering reinstatement; and we shall proceed to settle the claim on that basis. As distinguished from section 6(b) of the act of August 24, 1912, as amended, supra, the 1950 act permits the crediting of annual and sick leave, up to statutory ceilings, for periods of suspension or termination for which back pay is allowable. 31 Comp. Gen. 58 and 35 id. 121, supra; 38 id. 249. Consequently, your Department may credit annual and sick leave to the affected employees in conformity with those decisions.

Since the back pay formulas under the 1912 act, as amended, and the 1950 act are in substance the same, no adjustment of compensation will be required in those cases in which back pay has already been allowed under the 1912 act, as amended.

[B-139835]

Expert Witnesses-Courts-Martial-Services Prior to the Trial-Per Diem Fee

A psychiatrist employed as an expert witness incident to a general court-martial who prior to the trial interviews the family and friends of the accused, consults with counsel, reviews the clinical, pretrial and military records to appraise the mental condition of the accused may have such services regarded as incident to and preparatory for testimony as an expert witness and within the meaning of the employment contract which provides fees at $100 per diem while performing in a professional capacity and as a witness; and the psychiatrist is entitled to