B-150909, MAR. 18, 1963

B-150909, MAR. 18, 1963

TO MR. EDUARDO A. MIGUELINO:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4, 1963, REQUESTING REVIEW OF OUR SETTLEMENT DATED OCTOBER 25, 1962, WHICH DISALLOWED YOUR CLAIM FOR ARREARS OF PAY FOR PERIODS OF UNAUTHORIZED ABSENCE INCIDENT TO YOUR ENLISTMENT IN THE UNITED STATES NAVY.

THE RECORDS SHOW THAT YOU ENLISTED IN THE NAVY ON OCTOBER 30, 1945. THE PERIOD OF YOUR ENLISTMENT WAS FOR FOUR YEARS, OR UNTIL OCTOBER 29, 1949. IT IS REPORTED BY THE DEPARTMENT OF THE NAVY THAT YOU DESERTED ON AUGUST 24, 1949, AND THAT THERE IS NO INDICATION IN THE RECORDS THAT YOU WERE RESTORED TO A DUTY STATUS AFTER THE EXPIRATION OF THE PERIOD OF YOUR ENLISTMENT ON OCTOBER 29, 1949. IN YOUR PRESENT LETTER YOU SAY THAT YOU WERE NEVER TRIED BY COURT-MARTIAL FOR YOUR UNAUTHORIZED ABSENCE AND EXPRESS THE OPINION THAT, SINCE THERE WAS NO "OFFICIAL DECISION" AND INSTEAD THE NAVY AUTHORITIES USED THEIR OWN PERSONAL OPINION IN EVALUATING THE FACTS, YOU ARE ENTITLED TO BE PAID FOR THE PERIODS OF YOUR UNAUTHORIZED ABSENCE.

THE CHARGE OF DESERTION BEFORE A COURT-MARTIAL IS PRIMARILY OF A CRIMINAL NATURE. A CLAIM FOR PAY, HOWEVER, IS OF A CIVIL NATURE AND WHILE THE CIRCUMSTANCES SURROUNDING YOUR UNAUTHORIZED ABSENCE APPARENTLY WERE SUCH THAT YOU WERE NOT PUNISHED BY COURT-MARTIAL FOR CRIMINAL RESPONSIBILITY, THAT FACT DOES NOT IN ANY WAY CHANGE THE FACT THAT YOU WERE LISTED AS A DESERTER ON THE OFFICIAL RECORDS AND WERE ABSENT WITHOUT LEAVE.

THE CONTRACT OF ENLISTMENT IS AN ENTIRETY AND IF SERVICE FOR ANY PORTION OF THE TIME IS OMITTED WITHOUT AUTHORITY, THE PAY OR ALLOWANCES FOR THAT PERIOD ARE NOT EARNED. CF. UNITED STATES V. LANDERS, 92 U.S. 77, 79. SINCE YOU WERE ABSENT WITHOUT LEAVE DURING THE PERIODS COVERED BY YOUR CLAIM, AND SINCE YOU WERE NOT RESTORED TO DUTY AFTER THE NORMAL DATE OF THE EXPIRATION OF YOUR ENLISTMENT ON OCTOBER 29, 1949, DURING THE PERIOD YOU WERE IN NAVAL CUSTODY FROM JULY 27 TO AUGUST 23, 1953, YOU ARE NOT LEGALLY ENTITLED TO ANY PAY FOR SUCH PERIODS AND THERE IS NO BASIS FOR THE ALLOWANCE OF YOUR CLAIM. YOUR ABSENCE WITHOUT LEAVE COULD NOT OPERATE TO EXTEND THE PERIOD OF YOUR ENLISTMENT AND EVEN IF YOU WERE OTHERWISE ENTITLED TO PAY SUBSEQUENT TO THE DATE OF YOUR DESERTION, YOUR PAY RIGHTS UNDER YOUR ENLISTMENT CONTRACT ENDED IN ANY EVENT ON OCTOBER 29, 1949, UNLESS YOU WERE RESTORED TO DUTY THEREAFTER.