government "except as may be contributed out of the treasury of any State, county or municipality." Granting that the strict construction required of a criminal statute would bring cases like the present one within the language of the exception, insofar as criminal prosecution might be involved, it does not follow that such exception had the effect of authorizing the retention of additional compensation from such sources contrary to generally recognized principles of existing law. The relationship between the government and its officers, agents, and employees is, in many respects, not materially different from that found in private enterprise, and government personnel are subject to the application of the rules governing the compensation of officers, agents, and employees generally in the absence of statutory provision to the contrary (see 65 CJ 1278). In the usual employer-employee relationship it is well established that earnings of an employee in excess of his regular compensation gained in the course of, or in connection with, his services belong to the employer. (See Van Moy v. Willis, 14 S2d 185; Connelly v. Special Road and Bridge District, 126 So 794; 13 ALR 907; 71 ALR 933; 56 CJS, Master and Servant, sec 71; 3 CJS, Agency, sec 165; Village of Brookfield v. Pentis, 101 F2d 516; Hulgan v. Gledhill et al, 61 SE2d 473; Halliday et al v. Norfolk and Western Railway Co. et al, 62 NE2d 716; MS Comp Gen B-25239, 21 Comp Gen 1065, 28 May 1942, 1 Bull. JAG 55; 27 Comp Gen 479; MS Comp Gen B-87300, 29 Comp Gen 163, 6 October 1949, 8 Bull. JAG 206.) B-113776, 32 Comp Gen 454. 16 April 1953.

The additional pay to which medical and dental officers are entitled under the terms of sec 203 of the Career Compensation Act of 1949 (PL 351, 81st Cong) is predicated upon "act of duty" and not "performance" of duty as is the case with respect to incentive pay. Accordingly, commissioned officers in the Medical and Dental Corps of, or designated as medical or dental officers in, the Air Force, are entitled to the additional $100 monthly during time spent at home awaiting completion of retirement board proceedings, since during such time they are on active duty. Op JAGAF 1953/13. 2 April 1953.

§ 89. Enlistment Allowance; Re-enlistment Bonus

§ 89.3. Persons entitled to.

An enlisted man was placed on a temporary disability retired list on 30 April 1951. A physical examination disclosed that he was fit for active duty and his name was removed from the temporary disability retired list on 30 April 1953. On the same day he was discharged from the Army. On 15 May 1953 he re-enlisted in the Regular Army. Held: The enlisted man would not be entitled to a re-enlistment bonus for the enlistment beginning on 15 May 1953 inasmuch as he had not served on active duty within three months of his re-enlistment so as to meet the requirements of sec 207 of the Career Compensation Act of 1949 (63 Stats 811, ML 1949, App C), as amended (37 USC 238). An individual who is placed on the temporary disability retired list is thereby released

from active duty and is not on active duty during the period he remains in temporary disability retired status. (Citing 31 Comp Gen 213; JAGA 1953/2709, 27 Mar 1953; JAGA 1952/8218, 15 Dec 1952; JAGA 1951/3808, 11 Jun 1951; JAGA 1951/2127, 28 Mar 1951.) JAGA 1953/4658. 28 April 1953.

Discharge and re-enlistment on same date as not affecting entitlement to reenlistment bonus, see JAGA 1953/1362, EM § 33.1.

§ 93. Mustering-Out Payments

§ 93.7. Discharge or release to accept employment.

Release of an officer to inactive duty upon his request to straighten out particular hardships arising from his domestic situation due to the adoption of his wife's younger brother, the pregnancy and illness of his wife, and the necessity of maintaining his wife's brother in a rooming and boarding house apart from the rest of the family, was not a release "to accept employment" within the meaning of sec 501(a) of the Mustering-out Payment Act of 1952, Title IV, Pl 550, 16 July 1952. While there is no doubt that, in order to straighten out the officer's domestic situation, he would undoubtedly seek employment, it appears that the element of employment is subsidiary to the primary element of hardship incident to his domestic situation. Op CCCG 1952-6. 31 October 1952.

§ 93.21. Naval aviation cadets.

The term "service" within the meaning of sec 505(b) of the Act of 16 July 1952, which provides $300.00 mustering-out pay for persons who, having performed active service for 60 days or more, have served outside the continental limits of the United States or in Alaska, has a connotation of duty or assignment. It would appear to limit entitlement to those members who are assigned a duty, the performance of which requires the member to go beyond the continental limits of the United States. The mere physical presence as a passenger in travel by vessel or aircraft beyond the threemile limit is not sufficient to meet the requirement. It must be coupled with a duty assignment or service at such location. The regulations governing entitlements provide that service in the air regardless of time is qualifying service under the terms of the Act and there is no requirement that such service be performed on land or on a vessel. Furthermore, the fact that a flight is for training purposes does not appear significant. Accordingly, an aviation cadet, if entitled in all other respects, would be entitled to receive the $300.00 mustering-out pay by virtue of having been on a training carrier in a duty status as an observer in the Gulf of Mexico outside the continental limits of the United States regardless of the duration of such service. Also, an aviation cadet would be entitled to receive the $300.00 mustering-out pay by virtue of having piloted or ridden as a student in an aircraft over the Gulf of Mexico outside the continental limits of the United States during the time he was undergoing flight training. Op JAGN 1953/176.

5 November 1953.

§ 93.39. Substitution of general discharge for previous dishonorable or bad conduct discharge.

An enlisted man, serving under a valid enlistment, was sentenced by general court-martial in 1944 to a dishonorable discharge, total forfeiture, and confinement at hard labor for three years (reduced to two years by the convening authority). Under sec 12 of the Act of 5 May 1950, The Judge Advocate General substituted a general discharge for the dishonorable discharge but took no action on any other part of the sentence. Upon completion of confinement, the enlisted man was given a railroad ticket to his home, a donation of $10.00 to pay expenses, and civilian clothing. Held that:

by the substitution of the general discharge for the original dishonorable discharge, the former service member became separated from active service under honorable conditions and is therefore entitled to mustering-out payments under the Mustering-OutPayments Act of 1944, 38 USC 691a.

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inasmuch as he was given a general discharge he must be credited with having served honorably within the meaning of AFR 30-9, 31 Jan 50, par 12, so as to be entitled to the World War II Honorable Service Lapel Button.

inasmuch as the total forfeiture of all pay and allowances was not disturbed by the action of The Judge Advocate General, no entitlement to travel pay upon release from confinement could have accrued to the service member under the circumstances. Op JAGAF 1953/36. 23 September 1953.

§ 93.51. Persons entitled to payment on decease of member.

The subject member was retired by reason of physical disability and subsequently died. After his death, his father submitted a claim for mustering-out pay under the provisions of Public Law 550, 82nd Congress, Title 5, § 504 (66 Stat 690). The claim was processed in the Bureau of Naval Personnel and prepared for payment. However, through an administrative oversight, the appropriate signature authorizing the payment was omitted. The claim was inadvertently returned to the claimant in lieu of having the signature of the authorizing official affixed thereon and being forwarded to the paying activity. Before corrective action could be taken in the Bureau of Naval Personnel to initiate payment to the subject member's father, it was learned that he had died leaving no other eligible beneficiary to receive the mustering-out pay as beneficiaries are listed in the cited statute. Held: Under the provisions of the cited statute, payment of mustering-out pay to the brothers and sisters of the deceased service member or to the executor of the estate is precluded. The cited statute specifically provides that no payment shall be made to any person other than a surviving spouse, or if there is no surviving spouse, children, or if there is no surviving spouse or child, surviving parents. Op JAGN 1953/174. 22 October 1953.

IV. STOPPAGES AND DEDUCTIONS

§ 101.1. Generally.

§ 101. In General

The question arose as to whether a fine adjudged by a courtmartial or other military tribunal may be effected by the stoppage or withholding of the current pay due an officer or civilian employee of the United States, in the absence of voluntary stoppage by the person involved. The settled doctrine of the courts is that no portion of the salary of an officer or employee of the United States may be withheld upon an administrative determination of indebtedness to the United States unless there is statutory authority therefor (Smith v. Jackson, 241 F 747, 757-759 (5th Cir 1917), affd 246 US 388, 62 L ed 788, 38 S Ct 353 (1918); Dillon v. Groos, 299 F 851 (ND Fla 1924); Howe v. Elliott, 300 F 243 (SD Fla 1924); Mare v. Alexander, 2 F2d 895 (Mass 1924); McCarl, et al. v. Wylly, 5 F2d 964 (1st Cir 1925); McCarl, et al. v. Cox, 8 F2d 669 (App DC 1925); McCarl, et al. v. Pence, 18 F2d 809 (App DC 1927); Baker v. McCarl, et al. 24 F2d 897 (App DC 1928); Hurley v. Shanley, 60 F2d 335 (App DC 1932)). While this doctrine initially was formulated in cases of administrative determinations of indebtedness to the government and was based on the premise that a man should have his day in court before his salary should be withheld, it was subsequently extended to cover indebtedness to the government which was reduced to judgment. There is no statute which clearly authorizes the stoppage or withholding of pay to satisfy the general indebtedness created by a court-martial fine (but see Act of 22 May 1928, 45 Stat 698, as amended, 10 USC 875a, ML 1949, sec 1521). As a fine is generally held to create a general indebtedness to the government (36 CJS 787), and is generally considered to be similar to the judgment of a civil court (Frabizzio v. State, 5 Terry 395, 59 A2d 452), a fine may not be collected by the involuntary stoppage or withholding of current pay. (See SPJGW 1945/7550. 9 Aug 1945.) Since the above rule has not been held applicable to the final settlement of accounts between an officer or employee and the government upon the former's separation from the service (SPJGW 1945/ 7550, 9 Aug 1945; MS Comp Gen A-95605, 27 June 1938; 13 Comp Gen 201; 16 Comp Gen 547), authority exists for the withholding of the final pay due an individual to satisfy an indebtedness owed to the United States. Thus, the final pay due such an individual may be withheld for the purpose of collecting a fine adjudged by a court-martial or other military tribunal. JAGA 1953/1669. 5 Feb 1953.

An order signed by the Secretary of the Treasury withholding all pay and allowances except the basic allowance for subsistence of a certain Coast Guard pay clerk until the total amount in arrears to the United States had been repaid is legally correct and in conformity with the authority conferred by PL 498 and RS 1766 (5 USC 82). The term "pay" authorized to be withheld under PL 498, is to be construed as the pay or compensation mandatorily required to be withheld under 5 USC 82. PL 498 was intended to vest discretion in the Sec

retary concerned to determine what portion of an officer's total compensation would be withheld to liquidate an indebtedness. Under the statute the appropriate Secretary could withhold all, none, or a part of an officer's total compensation. Moreover, there is no indication in the language of PL 498 or its legislative history that Congress intended to limit this discretion to basic pay only. (Citing In re Billings, 23 Ct Cl 166; In re Smith, 24 Ct Cl 209; 19 Comp Dec 497; 22 Comp Dec 542; 1 Comp Gen 673; 9 Comp Gen 272; 14 Comp Gen 166, 17 Comp Gen 128, 19 Comp Gen 312; House Report 2180, 82d Cong, 2nd Sess, USC, Congressional and Administrative News, p 3631.) Op CCCG 1953/13. 21 August 1953.

By reason of forfeitures adjudged by a court-martial, arrears in his disbursing officer accounts and arrears in commissary accounts, a Coast Guard officer was indebted to the United States. The Secretary of the Treasury authorized withholding of his pay until the total amount had been paid. The amounts withheld, together with payments made by the surety under his official bond, have now discharged the officer's debt to the United States. Held: When the indebtedness of the officer to the United States is liquidated the authority to withhold pay is terminated and there is no authority to continue withholding pay on the basis of an indebtedness owing from the officer to his surety. (Citing PL 498, approved 10 Jul 1952; Kenny v. U. S., 62 Ct Cls 328; Hedrick v. U. S., 16 Ct Cls 88; 7 Comp Gen 335.)

Held also: Any sums of money now in the possession of the United States, withheld from the pay of the officer in excess of such officer's indebtedness to the United States should be delivered to the officer and not to the surety, excluding any payments made by the surety after such indebtedness was liquidated. No further demand upon the surety should be made since the indebtedness has been liquidated. Any further payments tendered by the surety should be declined and any payments actually made by the surety which might be or might have been accepted by the government after liquidation of the indebtedness should be returned to the surety. (Citing 32 Comp Gen 101; B-113784, 3 Dig Ops No. 1, CIV PERS § 13.19, 8 May 1953, Law Bulletin 210, p 14 and other cases.) Op CCCG 1954/3. 15 January 1954.

Collection of indebtedness incurred during previous enlistment for uncollected forfeiture of pay, see JAGA 1953/7287, SENT & PUN § 33.5.

§ 101.5. Overpayment of allotments.

A serviceman initiated a Class Q allotment in favor of his wife to become effective 1 November 1950, but discontinued the allotment prior to its effective date. The Allotment Division, Army Finance Center, inquired as to the reason for discontinuance and was informed that a divorce was pending. On 8 February 1951, his wife applied for and received a Class Q allotment. The divorce became final on 22 March 1951, but the Allotment Division received no notice of the divorce until November 1951 and made allotment