to be the right but the duty of the accounting officers and the heads of the executive departments to make such regulations and take such action in superintending the disbursement of appropriations under their jurisdiction that not only would overpayments not be made, but when, or if, made to persons in the Government service, that the resulting indebtedness to the United States would be speedily satisfied out of subsequently accruing and lawful credits, the matter involving as it did merely the adjustment of debit and credit items in an open account. See in this connection Gratiot v. United States, 15 Peters 336, 10 L. Ed. 759; McElrath v. United States, 102 U. S. 426, 26 L. Ed. 189; United States v. Burchard, 125 U. S. 176, 31 L. Ed. 664; Wisconsin Central R. Co. v. United States, 164 U. S. 190, 211, 41 L. Ed. 399, 14 Ct. Cls. 114; Bonnafon v. United States, id. 484; Taggart v. United States, 17 id. 322; 33 id. 476, 480; Schooner Henry, et al. v. United States, 35 Ct. Cls. 393; 17 Op. Atty. Gen. 30; id. 425; Howland's Dig. Op. J. A. G. of the Army, Pay, and Allowances, III B 5-B 7-B 7a.

The utmost good faith not only in their dealings with the Government but in their dealings with private individuals has always been exacted of military officers on grounds of public policy. It has been held the failure of a first lieutenant, Coast Artillery Corps, United States Army, to disclose the fact that he was a provisional lieutenant was a material fact which it was his duty to reveal and his failure to do so was a breach of duty and was constructive if not actual fraud. Dig. Op. J. A. G. of the Army February 6, 1920, p. 23. In the recent case of Porter v. Beha, Superintendent of Insurance, et al, District Court for the Northern District of New York, May 25, 1925, 8 Fed. Rep. (2nd) 65, 74, it was said:

Bad faith does not necessarily involve fraudulent motives or moral turpitude. Even if the actual good faith is not questioned, if the facts known should lead to inquiry and by inquiry discovery of the real situation, a person in a commercial sense acts in bad faith and the law will withhold from him the protection which it would otherwise extend.

In the Bureau of Supplies and Accounts Memorandum No. 2828414, for February, 1926, there is published a letter from the Secretary of the Navy dated January 28, 1926, addressed to an officer of the Navy against whom an order for checkage had issued of $273.14 to satisfy a disallowance raised by this office in the settlement of a disbursing account. The officer against whom the request for checkage had issued protested "the disbursements complained of were made [to him] in good faith" and under the decision of the Court of Appeals of the District of Columbia in the case of McCarl, et al. v. Cox, 8 Fed. Rep. (2d) 669, could not be recovered from him except through court action. The Secretary of the Navy, without in any manner questioning the correctness of the court's view, disposed of

this protest in the following peremptory manner, under his broad authority as head of the Navy Department:

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3. * * * it is manifest that, even accepting the statement that the disbursements were made in good faith, nevertheless you are not entitled by law to the services rendered, payment for which has been disallowed * by the General Accounting Office in the settlement of accounts, and said action has been affirmed by the Comptroller General.

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4. The department can not sanction any attitude on the part of officers to avoid their clear legal liabilities, and, therefore, is of the opinion that you should immediately refund the amounts paid by the Government for services rendered you on transportation requests, which were not authorized by law. Inform the department of the action taken by you in this case.

Although it has never been regarded as proper to stop the pay of an officer to satisfy purely private debts arising from matters not involved in his official relationship with the Government, nevertheless there are countless examples, both in the Army and in the Navy, where officers have been suspended from promotion, dismissed from the service, or otherwise disciplined for failure to discharge private debts, the view being, as stated by Mr. Justice Nott in the case of Fletcher v. United States (1891), 26 Ct. Cls. 541, 563 (reversed on another ground, United States v. Fletcher (1893) 148 U. S. 84, 37 L. Ed. 378) that:

* * * In military life there is a higher code, termed honor, which holds its society to stricter accountability, and it is not desirable that the standard of the Army shall come down to the requirements of a criminal code.

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See also in this connection section 161 of the Revised Statutes; article 22, Articles for the Government of the United States Navy; and the numerous Navy cases annotated in "Laws Relating to the Navy, 1921," under section 1456 of the Revised Statutes, pp. 622–629; the ninety-fifth and ninety-sixth articles of war; 18 Op. Atty. Gen. (1885) 113, 114; Swain v. United States (1893), 28 Ct. Cls. 173, affirmed (1897) 165 U. S. 553, 41 L. Ed. 823; and the precedents cited on page 715, Winthrop's Military Law and Precedents, as follows:

G. C. M. O. 87 of 1866; do., 22, 46 of 1872; do., 10 of 1873; do., 25 50, 68, of 1874; G. O. 55, Dept. of Washington, 1863; do., 110, id., 1864; do., 1, Dept. of Va. & No. Ca., 1864 (cases of nonpayment of sums borrowed from or otherwise due to enlisted men); G. C. M. O. 68 of 1874 (case of nonpayment of a loan from another officer); G. C. M. O. 17 of 1871; do., 68 of 1874; do., 25 of 1875; do., 100 of 1876 (nonpayments of debts due to post traders); also G. C. M. O. 3, 55, 64, of 1869; do., 15 of 1870; do., 22 of 1872; do., 32 of 1874; do., 100 of 1876; do., 46 of 1877; do., 44, 70, of 1881; do., 31 of 1887; do., 3, 85 of 1891; do., 28 of 1892; do., 106 of 1893; G. O. 53 of 1894; G. O. 150, Navy Dept., 1870; G. C. M. O. 36, id., 1881; do., 24, id., 1886.

And see English precedents of convictions under a corresponding article for dishonorable disregard of indebtedness to military persons or civilians, in James, pp. 205, 223, 303, 510, 528, 614, 622, 696; also Hough (P.), 234–5.

In these cases, in general, the debt was contracted under false representations or the failure to pay characterized by deceit, evasion, false promises, denial of indebtedness, &c., and the neglect to discharge the obligation, at least in part, was continued for an unconscionable period. Some such culpable and dishonorable circumstances should characterize the transaction to make it a

proper basis for a military charge. A mere failure to settle a private debt (which may be more the result of misfortune than of fault), can not of course properly become the subject of trial and punishment at military law. (See G. C. M. O. 69, Dept. of the East, 1881.) A test of the amenability of the party to charges will be the effect of his conduct upon the reputation of the service. If it be such as to compromise not only the officer personally but also the honor or credit of the military profession-if, in the words of Gen. McDowell, in G. C. M. O., 113, Dept. of the East, 1870, it "brings the service into disrepute by lowering the faith of the country in the integrity and fidelity to their obligations, of the commissioned officers of the Army -an offense within the present article will in general properly be held to have been committed. And see further on this subject, G. C. M. O. 49, Dept. of the East, 1872; Digest, 63. In G. C. M. O. 70 of 1881, a conviction of the offence under consideration was disapproved on the ground that there was no fraud in the officer's conduct.

"

In February, 1872, the following was published as a circular to the Army, by the order of the Secretary of War: "The War Department is frequently annoyed by requests of creditors to compel payment of their just dues by officers of the Army. There may be a few instances where delay in making payment is unavoidable. But in a large number of cases an evident disposition appears to evade payment altogether. It is not the province of the Secretary of War to adjudge such claims, nor is it within his power to stop the debtor's pay, and thus compel him to satisfy the claim. But such complaints, coming so frequently from creditors, civil and military, betray a fact greatly to be deplored, that the high standard of honor in such matters, which in former years caused the uniform to be respected and trusted without question, has become impaired. While, therefore, those concerned should relieve the Department from the mortification of such appeals, and the Army from the odium which must attach to the necessity for making them, the Secretary now distinctly declares his intention to bring to trial by court-martial, under the 61st article of war, any officer, who, after due notice, shall fail to quiet such claims against him; and there are not wanting on record instances where commissions have been lost for this offence."

It appears, therefore, that although an administrative officer may not have authority to arbitrarily order a stoppage of an officer's compensation to satisfy an indebtedness due from him to the United States by reason of an overpayment made to him by a disbursing officer, nevertheless the precedents are clear there is ample authority reposed in the President and the heads of the executive departments to require an officer to discharge such an indebtedness as expeditiously as his circumstances will permit or to discipline him for his failure to do so.

Answering your first question specifically you are advised the procedure of this office in settling the accounts of and collecting final balances from disbursing officers who have made improper payments to brother officers, which the latter refuse to refund, must be the same as the procedure employed in settling and collecting final balances embracing other types of improper payments.

The answer to your second question as to whether this office "will request the proper authorities to institute suit in the name of the United States against the debtor officer who received the benefit of the improper payment" and the reasons for the position this office must take in the matter are set out in considerable detail in a letter addressed to the Attorney General October 4, 1921, 2 MS. Comp.

Gen. 137, and in two letters addressed to your predecessor in office September 25, 1923 (A. D. 7901), 25 MS. Comp. Gen. 758, and September 25, 1925 (A-8908), 49 id. 1002; it seems appropriate, therefore, to conclude by quoting the following pertinent portions therefrom:

[Excerpt letter to the Attorney General, October 4, 1921]

I may say that the action of the accounting office in suspending or disallowing items in a disbursing account is communicated to the disbursing officer and the administrative department to which the disbursement relates, and it is primarily for that department and its disbursing officer to proceed to remove the objection to the payment. If it involves obtaining a repayment of moneys paid, it is properly for that administrative office or the disbursing officer to obtain it if possible from the payee and not for the accounting office to do so. Such efforts are generally made by the disbursing officers, and due time is allowed by the accounting office for that purpose before proceeding to take action. The law has heretofore limited the right to request revision of a disbursing account to the disbursing officer and the department whose appropriations are concerned. Frequently the replies to suspensions or disallowances embody the answer of the payees to the demands of the disbursing officer. It has accordingly been the practice of the accounting office, and it is believed to be the proper course, to deal primarily with the disbursing officer and the surety, but where other payments to the same payee are in process, when the information is presented to the accounting office, stoppages are made against such payee for account of the amount in question in a disbursing account. The disbursing officer can not properly require the accounting office to proceed to recover for him such payments as were improperly made, and such a procedure would probably lessen the care now exercised in making payments. The efforts of the disbursing officer to obtain payment from the payee, as well as the efforts of this office to obtain payment from the disbursing officer and the surety, presumably have been exhausted before the matter is transmitted to the Solicitor of the Treasury with request to bring suit.

[Excerpt letters to the Secretary of War, Sept. 25, 1823; Sept. 25, 1925]

The statement that "it is essentially unjust to proceed against the disbursing officer in such cases without first exhausting all remedies against the recipients of such payments is particularly interesting. As you doubtless know it has long been the rule that a disbursing officer--both for his own protection and for the protection of the United States should not attempt to settle and pay doubtful claims but should refer them to the accounting officers of the United States for settlement. The least that he should do is to avail himself of the procedure established by section 8 of the act of July 31, 1894, 28 Stat. 208, and obtain an authoritative decision in advance of payment. Captain neither referred these claims to this office for settlement nor obtained decisions of this office in advance of payment, and I can not agree that it is unjust to him or to any disbursing officer similarly circumstanced to proceed to enforce payment under their official bonds. On the contrary, disregard of the procedure in the payment of claims involving doubtful questions of law and fact and unlawful payments made in consequence thereof is unjust to the United States and involves the Government in needless litigation and losses.

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This office will, of course, be pleased to cooperate with the * department in recovering any erroneous payments made by its disbursing officers and is pleased to have the * * department cooperate with it by requiring its disbursing officers to observe sound accounting and disbursing principles, thereby reducing such erroneous payments to a minimum, it being understood by all concerned that this office can not relieve disbursing officers of responsibility for erroneous payments, but must continue the age-old practice of ultimately holding the disbursing officer and his surety responsible therefor.

(A-18349)

ESTATES OF DECEDENTS-ASSETS-ACCRUED PENSION

A check covering the accrued pension of a deceased pensioner, issued in favor of the widow who had died before the issuance thereof, does not become an asset of the estate of the widow, but the amount thereof is for disposition under the provisions of the act of March 2, 1895, 28 Stat. 964, relating to accrued pension.

Decision by Comptroller General McCarl, July 27, 1927:

There is before this office for consideration the claim of O. D. Drebing, administrator of the estate of Eliza Wirtel, sometimes called Elizabeth Wirthel, for the amount of pension check No. 16295-BB, dated November 4, 1926, for $58.40, payable to the said Elizabeth Wirthel, now deceased, covering the amount of accrued pension due in the case of John Wirthel, deceased husband of the said Elizabeth Wirthel.

It appears that at the date of John Wirthel's death, March 14, 1892, he left a claim pending for pension under the act of June 27, 1890; that the claim was allowed in October, 1926, at the rate of $12 per month, from October 19, 1891, to March 14, 1892; and that the check here in question, covering the amount of the accrued pension, was issued November 4, 1926, payable to Elizabeth Wirthel, who had died on September 25, 1926.

The act of March 2, 1895, 28 Stat. 964, provides:

That from and after the twenty-eighth day of September, eighteen hundred and ninety-two, the accrued pension to the date of the death of any pensioner, or of any person entitled to a pension having an application therefor pending, and whether a certificate therefor shall issue prior or subsequent to the death of such person, shall in the case of a person pensioned, or applying for pension, on account of his disabilities or service, be paid, first, to his widow; second, if there is no widow, to his child or children under the age of sixteen years at his death; third, in case of a widow, to her minor children under the age of sixteen years at her death. Such accrued pension shall not be considered a part of the assets of the estate of such deceased person, nor be liable for the payment of the debts of said estate in any case whatsoever, but shall inure to the sole and exclusive benefit of the widow or children. And if no widow or child survive such pensioner, and in the case of his last surviving child who was such minor at his death, and in case of a dependent mother, father, sister, or brother, no payment whatsoever of their accrued pension shall be made or allowed except so much as may be necessary to reimburse the person who bore the expense of their last sickness and burial, if they did not leave sufficient assets to meet such expense. And the mailing of a pension check, drawn by a pension agent in payment of a pension due, to the address of a pensioner, shall constitute payment in the event of the death of a pensioner subsequent to the execution of the voucher therefor. And all prior laws relating to the payment of accrued pension are hereby repealed.

Section 3 of the act of August 17, 1912, 37 Stat. 312, provides:

That not later than January first, nineteen hundred and thirteen, pensions shall be paid by checks drawn, under the direction of the Secretary of the Interior, in such form as to protect the United States against loss, without separate vouchers or receipts, and payable by the proper assistant treasurer or designated depositary, except in the case of any pensioner in which the law authorizes the pension to be paid to some person other than the pensioner, or in which the Secretary of the Interior may consider a voucher necessary for