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B-175113, DEC 5, 1972, 52 COMP GEN 317

B-175113 Dec 05, 1972
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IS PURSUANT TO 37 U.S.C. 204(A) AND 101(18). 1972: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 19. YOUR LETTER WAS FORWARDED TO THIS OFFICE BY LETTER DATED JANUARY 26. WAS CONVICTED OF SEVERAL CIVIL OFFENSES IN NORTH CAROLINA AND WAS DULY SENTENCED TO A TERM OF 12 MONTHS IN THE ROBESON COUNTY JAIL BEGINNING ON OR ABOUT AUGUST 10. THAT IS DESIGNED TO PERMIT PRISONERS TO BE GAINFULLY EMPLOYED DURING CIVIL CONFINEMENT FOR THE PURPOSE OF SUPPORTING THEIR DEPENDENTS AND TO ASSIST IN THEIR OWN REHABILITATION. AGREED TO ACCEPT HIM UNDER THE PROGRAM WHEREBY HE WAS TO BE RELEASED FROM JAIL EACH MORNING TO REPORT FOR DUTY AT THE START OF THE UNIT'S WORKDAY AND RETURNED TO JAIL EACH EVENING.

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B-175113, DEC 5, 1972, 52 COMP GEN 317

PAY - ACTIVE DUTY - WHILE UNDER CIVIL ARREST A MEMBER OF THE UNIFORMED SERVICES UNDER A SENTENCE OF CONFINEMENT BY CIVIL AUTHORITIES WHO WHILE PAROLED TO THE CUSTODY OF MILITARY AUTHORITIES ON A DAILY BASIS PERFORMED DUTIES WITH HIS UNIT IN ACCORDANCE WITH THE COURT'S WORK RELEASE RECOMMENDATION, SATISFACTORILY SERVING IN THE CAPACITY OF A NONCOMMISSIONED OFFICER SQUADRON LEADER, A POSITION COMMENSURATE WITH HIS GRADE, MILITARY SPECIALTY, AND LENGTH OF SERVICE, IS PURSUANT TO 37 U.S.C. 204(A) AND 101(18), WHICH GOVERN ENTITLEMENT TO BASIC PAY, ELIGIBLE TO RECEIVE PAY AND ALLOWANCES COMMENSURATE WITH HIS GRADE AND SPECIALTY FOR EACH DAY OF FULL-TIME DUTY PERFORMED WHILE PAROLED TO THE MILITARY AUTHORITIES.

TO LIEUTENANT COLONEL W. J. DUFFY, DEPARTMENT OF THE ARMY, DECEMBER 5, 1972:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 19, 1971, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN FAVOR OF A STAFF SERGEANT IN THE GROSS AMOUNT OF $228.60, REPRESENTING PAY AND ALLOWANCES FOR THE PERIOD OCTOBER 18 THROUGH 31, 1971, IN THE CIRCUMSTANCES DESCRIBED. YOUR LETTER WAS FORWARDED TO THIS OFFICE BY LETTER DATED JANUARY 26, 1972, FROM THE OFFICE OF THE COMPTROLLER OF THE ARMY (DACA-FIS-PP), AND HAS BEEN ASSIGNED CONTROL NO. DO-A-1142 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE FILE SHOWS THAT THE SERGEANT, A MEMBER OF COMPANY B, 3RD BATTALION, 325TH INFANTRY, 82ND AIRBORNE DIVISION, FORT BRAGG, NORTH CAROLINA, WAS CONVICTED OF SEVERAL CIVIL OFFENSES IN NORTH CAROLINA AND WAS DULY SENTENCED TO A TERM OF 12 MONTHS IN THE ROBESON COUNTY JAIL BEGINNING ON OR ABOUT AUGUST 10, 1971. THE JUDGMENT AND COMMITMENT PAPERS SHOW THAT CONCURRENT WITH THAT SENTENCE THE COURT RECOMMENDED THAT THE MEMBER BE PERMITTED TO PERFORM WORK UNDER THE NORTH CAROLINA STATE DEPARTMENT OF CORRECTION WORK RELEASE PROGRAM, A PROGRAM, WE UNDERSTAND, THAT IS DESIGNED TO PERMIT PRISONERS TO BE GAINFULLY EMPLOYED DURING CIVIL CONFINEMENT FOR THE PURPOSE OF SUPPORTING THEIR DEPENDENTS AND TO ASSIST IN THEIR OWN REHABILITATION.

ACCORDING TO THE MATERIAL IN THE FILE, THE 82ND AIRBORNE DIVISION, THROUGH THE SERGEANT'S UNIT, AGREED TO ACCEPT HIM UNDER THE PROGRAM WHEREBY HE WAS TO BE RELEASED FROM JAIL EACH MORNING TO REPORT FOR DUTY AT THE START OF THE UNIT'S WORKDAY AND RETURNED TO JAIL EACH EVENING. UNDERSTAND THAT THE MEMBER REPORTED FOR DUTY WITH HIS UNIT EACH MORNING AT 5:45 A.M., AND THAT AT THE END OF THE NORMAL WORKDAY, 4:30 P.M., THE MEMBER WAS RETURNED TO THE ROBESON COUNTY JAIL WHERE HE WAS CONFINED UNTIL THE FOLLOWING MORNING. THE SERGEANT BEGAN SUCH WORK ON OCTOBER 18, 1971; HOWEVER, WE UNDERSTAND THAT DESPITE HIS PRESENCE WITH HIS UNIT, THE UNIT'S MORNING REPORT CARRIED HIM AS "CONFINED, CIVIL AUTHORITIES" FOR THE ENTIRE PERIOD THAT HE WAS EMPLOYED UNDER THE WORK RELEASE PROGRAM.

BASED ON THE ABOVE, YOU ASK THE FOLLOWING QUESTIONS:

A. IS THE MEMBER ENTITLED TO FULL PAY AND ALLOWANCES, IF OTHERWISE ENTITLED?

B. IF A ABOVE IS NEGATIVE, IS MEMBER CONSIDERED IN THE HANDS OF CIVIL AUTHORITIES FOR PAY PURPOSES?

C. IF B ABOVE IS NEGATIVE, IS MEMBER IN AN ORDINARY LEAVE STATUS UNTIL ACCRUED LEAVE EXPIRES AND IS THEN ENTERED INTO AN EXCESS LEAVE STATUS?

D. IF C ABOVE IS NEGATIVE, WHAT IS THE MEMBER'S STATUS AND ENTITLEMENTS IN VIEW OF THE FACT THAT HE IS PRESENT FOR DUTY DURING NORMAL WORKING HOURS?

SECTION 204(A) OF TITLE 37, U.S. CODE, PROVIDES IN PART THAT A MEMBER OF A UNIFORMED SERVICE WHO IS SERVING ON ACTIVE DUTY IS ENTITLED TO THE BASIC PAY OF THE PAY GRADE TO WHICH ASSIGNED OR DISTRIBUTED, IN ACCORDANCE WITH HIS YEARS OF SERVICE COMPUTED UNDER SECTION 205 OF THE SAME TITLE. SECTION 101(18) OF TITLE 37, U.S. CODE, DEFINES ACTIVE DUTY TO MEAN FULL- TIME DUTY IN THE ACTIVE SERVICE OF A UNIFORMED SERVICE, AND INCLUDES DUTY ON AN ACTIVE LIST, ETC.

IN 36 COMP. GEN. 173(1956), WE CONSIDERED SEVERAL QUESTIONS PRESENTED IN A COMMITTEE ACTION BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE CONCERNING A SITUATION WHERE A MEMBER OF A UNIFORMED SERVICE (1) IS ARRESTED BY CIVIL AUTHORITIES IN A FOREIGN COUNTRY FOR A CIVIL OFFENSE, (2) THEN RELEASED TO THE CUSTODY OF UNITED STATES MILITARY AUTHORITIES PENDING TRIAL, (3) CONFINED BY SUCH MILITARY AUTHORITIES PENDING RELEASE FOR TRIAL, AND (4) TRIED AND CONVICTED BY THE CIVIL AUTHORITIES FOR SUCH OFFENSE. WE EXPRESSED THE OPINION THAT SUCH A MEMBER WAS TO BE REGARDED AS BEING CONSTRUCTIVELY ABSENT DURING SUCH PERIODS OF CONFINEMENT AND THEREBY PRECLUDED FROM RECEIVING PAY AND ALLOWANCES DURING SUCH ABSENCE UNLESS THE ABSENCE WAS EXCUSED AS UNAVOIDABLE.

IN DECISION B-132595, AUGUST 26, 1957, INVOLVING AN AIR FORCE ENLISTED MAN CHARGED WITH, AND CONVICTED OF, A CIVIL OFFENSE BY JAPANESE CIVIL AUTHORITIES, BUT RELEASED TO UNITED STATES MILITARY AUTHORITIES FOR CERTAIN PERIODS PENDING TRIAL AND LATER, WHILE HIS CONVICTION WAS BEING APPEALED, WE CONCLUDED THAT THE MEMBER WAS ENTITLED TO PAY AND ALLOWANCES FOR EACH DAY WHERE HE WAS NEITHER HELD IN "CONFINEMENT" FOR CIVIL AUTHORITIES NOR IN A SITUATION WHERE HE WAS CONSIDERED TO BE ABSENT FROM DUTY WITHOUT LEAVE OR WHERE SUCH ABSENCE WAS NOT EXCUSED AS BEING UNAVOIDABLE.

IN REACHING THAT CONCLUSION WE SAID THAT,

WHILE A MEMBER OF THE UNIFORMED SERVICES WHO IS RESTRICTED TO HIS BASE, IN A SENSE, IS BEING CONFINED BY MILITARY AUTHORITIES, THE TERM "CONFINEMENT" WAS USED IN THE DECISION OF AUGUST 28, 1956(36 COMP. GEN. 173), AS HAVING REFERENCE GENERALLY TO PERIODS OF ACTUAL INCARCERATION. THE TERM AS THERE USED DOES NOT INCLUDE PERIODS WHEN THE MEMBER IS IN A DUTY STATUS WHILE AWAITING CIVIL TRIAL EVEN THOUGH HIS AREA OF MOVEMENT IS RESTRICTED DURING SUCH PERIODS.

IN 45 COMP. GEN. 766(1966), WE HELD THAT THE RIGHT TO PAY AND ALLOWANCES BY A MEMBER OF THE UNIFORMED SERVICES WHILE BEING HELD BY MILITARY AUTHORITIES ON BEHALF OF FOREIGN CIVIL AUTHORITIES IS NOT TO BE DETERMINED ON THE BASIS OF CUSTODY ALONE. THE CRITERION EXPRESSED IN THAT CASE WAS WHETHER THERE IS A LOSS TO THE GOVERNMENT OF THE MEMBER'S SERVICES AND IF THERE IS SUCH A LOSS TO THE GOVERNMENT WHETHER IT WAS THE DIRECT RESULT OF HIS COMMITTING THE CIVIL OFFENSE OR WHETHER IT MAY BE CONSIDERED THAT HIS CONFINEMENT OR ANY PART THEREOF WAS EFFECTED SOLELY IN CONNECTION WITH COURT-MARTIAL PROCEEDINGS.

DECISION B-169366, APRIL 8, 1970, INVOLVED AN ARMY ENLISTED MAN WHO WAS CHARGED, CONVICTED AND SENTENCED TO A PERIOD OF CONFINEMENT FOR A CIVIL OFFENSE BY SPANISH CIVIL AUTHORITIES, WAS RELEASED TO UNITED STATES NAVAL AUTHORITIES IN SPAIN PENDING APPEAL AND PERFORMED MILITARY DUTIES AT A NAVAL STATION. WE HELD THAT EXCEPT FOR ANY PERIODS OF ACTUAL CONFINEMENT BY MILITARY AUTHORITIES, THE MEMBER MIGHT BE ALLOWED PAY AND ALLOWANCES FOR ANY PERIODS DURING WHICH HE RENDERED MILITARY DUTIES APPROPRIATE TO HIS GRADE AND MILITARY SPECIALTY AS DISTINGUISHED FROM THOSE DUTIES NORMALLY REQUIRED OF MILITARY PRISONERS. CF. 51 COMP. GEN. 380(1971).

IN THE PRESENT CASE, WHILE THE MEMBER WAS UNDER A SENTENCE OF CONFINEMENT BY CIVIL AUTHORITIES, HE WAS PAROLED TO THE CUSTODY OF MILITARY AUTHORITIES ON A DAILY BASIS. IT IS OUR UNDERSTANDING THAT WHILE IN MILITARY CUSTODY HE PERFORMED DUTIES WITH HIS UNIT, SERVING IN THE CAPACITY OF A NON-COMMISSIONED OFFICER SQUADRON LEADER, A POSITION COMMENSURATE WITH HIS GRADE, MILITARY SPECIALTY AND LENGTH OF SERVICE AND THAT SUCH DUTY WAS SATISFACTORILY PERFORMED. THEREFORE, BASED ON OUR UNDERSTANDING OF THE FACTS AS INDICATED ABOVE, QUESTION A IS ANSWERED BY SAYING THAT THE MEMBER IS ENTITLED TO RECEIVE PAY AND ALLOWANCES FOR EACH DAY OF FULL-TIME DUTY COMMENSURATE WITH HIS GRADE AND SPECIALTY PERFORMED BY HIM DURING THE PERIOD IN QUESTION. HENCE, QUESTIONS B, C, AND D APPARENTLY REQUIRE NO ANSWER.

ACCORDINGLY, THE VOUCHER SUBMITTED WITH YOUR REQUEST IS RETURNED HEREWITH FOR PAYMENT ON THE BASIS OF THE DAYS OF ACTUAL DUTY INVOLVED, IF OTHERWISE CORRECT.

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