A-13327, A-24863, NOVEMBER 8, 1928, 8 COMP. GEN. 245

A-13327,A-24863: Nov 8, 1928

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PAY - STOPPAGES - DISHONORABLY DISCHARGED ENLISTED MAN OF THE ARMY THE FACT THAT THE REPORT OF A BOARD OF OFFICERS FINDING AN ENLISTED MAN OF THE ARMY INDEBTED TO THE COMPANY FUND WAS NOT APPROVED UNTIL A FEW DAYS AFTER HE WAS SENTENCED BY A GENERAL COURT-MARTIAL TO BE DISHONORABLY DISCHARGED AND TO FORFEIT ALL PAY AND ALLOWANCES DUE AND TO BECOME DUE. IS IMMATERIAL AS AFFECTING THE QUESTION WHETHER SUCH INDEBTEDNESS MAY BE ENTERED AS AN AUTHORIZED STOPPAGE ON THE PAY ROLL AND DEDUCTED AT THE TIME OF THE ADJUSTMENT OF HIS ACCOUNT. HAS BEEN SUBMITTED TO THE UNDERSIGNED FOR PAYMENT AND DECISION IS REQUESTED AS TO WHETHER OR NOT PAYMENT IS AUTHORIZED IN ACCORDANCE WITH THE REMARKS APPEARING ON THE PAY ROLL.

A-13327, A-24863, NOVEMBER 8, 1928, 8 COMP. GEN. 245

PAY - STOPPAGES - DISHONORABLY DISCHARGED ENLISTED MAN OF THE ARMY THE FACT THAT THE REPORT OF A BOARD OF OFFICERS FINDING AN ENLISTED MAN OF THE ARMY INDEBTED TO THE COMPANY FUND WAS NOT APPROVED UNTIL A FEW DAYS AFTER HE WAS SENTENCED BY A GENERAL COURT-MARTIAL TO BE DISHONORABLY DISCHARGED AND TO FORFEIT ALL PAY AND ALLOWANCES DUE AND TO BECOME DUE, IS IMMATERIAL AS AFFECTING THE QUESTION WHETHER SUCH INDEBTEDNESS MAY BE ENTERED AS AN AUTHORIZED STOPPAGE ON THE PAY ROLL AND DEDUCTED AT THE TIME OF THE ADJUSTMENT OF HIS ACCOUNT.

COMPTROLLER GENERAL MCCARL TO CAPT. A. C. HARDEN, UNITED STATES ARMY, NOVEMBER 8, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 5, 1928 (FORWARDED BY CHIEF OF FINANCE, OCTOBER 16, 1928), AS FOLLOWS:

THE ATTACHED SUPPLEMENTAL PAY ROLL COVERING THE DISHONORABLE DISCHARGE OF PRIVATE RICARDO CASTUERA, SERIAL NO. R-310,756, FORMERLY SERGEANT, BATTERY "C.' 92ND COAST ARTILLERY (PS), HAS BEEN SUBMITTED TO THE UNDERSIGNED FOR PAYMENT AND DECISION IS REQUESTED AS TO WHETHER OR NOT PAYMENT IS AUTHORIZED IN ACCORDANCE WITH THE REMARKS APPEARING ON THE PAY ROLL. THE DOUBT IN THIS CASE ARISES IN CONNECTION WITH THE PROPOSED PAYMENT OF $207.48, OR A PART THEREOF, TO THE BATTERY FUND, BATTERY "C.' 92ND C.A. (PS), PURSUANT TO THE FINDINGS OF A BOARD OF OFFICERS AND APPROVED BY THE COMMANDING GENERAL, THIS STATION, AND ALSO APPROVED BY HEADQUARTERS PHILIPPINE DEPARTMENT. A COPY OF SAID BOARD PROCEEDINGS IS INCLOSED HEREWITH.

THERE IS ALSO INCLOSED HEREWITH A COPY OF GENERAL COURT-MARTIAL ORDERS NO. 13, HEADQUARTERS PHILIPPINE DEPARTMENT, DATED AUGUST 7, 1928, APPROVING THE CONVICTION AND DISHONORABLE DISCHARGE OF THEN SERGEANT CASTUERA FOR A VIOLATION OF THE 93RD ARTICLE OF WAR. THE SENTENCE WAS ADJUDGED JULY 16, 1928, AND CARRIES A FORFEITURE OF ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE.

SINCE THE APPROVAL OF THE FINDINGS OF THE BOARD OF OFFICERS IS SHOWN AS JULY 28, 1928, AND THE COURTS-MARTIAL SENTENCE WAS ADJUDGED JULY 16, 1928, THE DISBURSING OFFICER HAS REFUSED TO EFFECT PAYMENT UNTIL IT IS AUTHORITATIVELY DETERMINED WHETHER OR NOT THE FINDINGS OF THE BOARD OF OFFICERS CAN BE MADE RETROACTIVE, AND WHETHER OR NOT SAID FINDINGS HAVE ANY LEGAL EFFECT ON A MATTER WHICH HAS BEEN ADJUDGED BY AN AGENCY ACTING WITHIN ITS JURISDICTION.

THE UNDERSIGNED IS THE ACCOUNTABLE DISBURSING OFFICER AT THIS STATION.

THE REMARKS APPEARING ON THE PAY ROLL REFERRED TO ARE AS FOLLOWS:

PRIVATE SERIAL NUMBER OVER YRS. SERV.

CASTUERA, RICARDO R310756 12 EG DEC 1/27. DISHON DISCH AT FT MILLS, PI, AUG. 15/28. SENTD TO BE RD TO PVT FR SGT. DISHON DISCH FORF ALL PAY AND ALWS DUE OR TO BECOME DUE AND CONFMT AT HARD LABOR FOR 5 YRS. GCMO 13, HQ PD, MANILA, PI, AUG 7/28. DUE US AT DATE OF DISCH FOR: ENGR PROP $2.31; C AND E $4.80; BTRY FUND, C, 92D CA, (PA), FT MILLS, PI APPVD REPORT OF BOARD, OF OFFI DATED JUL 28/28 $207.48; BTRY FUND BTRY C, 92D CA (PS), FT MILLS, P.I. 25 CENTS. DUE SOL FOR CLO NOT DRAWN IN KIND $95.13. LAST PD TO INCLD MAY 31/28 BY CAPTAIN A. C. HARDEN, FD.

SECTION 4818, REVISED STATUTES, PROVIDES:

FOR THE SUPPORT OF THE SOLDIERS' HOME THE FOLLOWING FUNDS ARE SET APART, AND ARE HEREBY APPROPRIATED: ALL STOPPAGES OR FINES ADJUDGED AGAINST SOLDIERS BY SENTENCE OF COURTS-MARTIAL, OVER AND ABOVE ANY AMOUNT THAT MAY BE DUE FOR THE REIMBURSEMENT OF GOVERNMENT, OR OF INDIVIDUALS ALL FORFEITURES ON ACCOUNT OF DESERTION; * * *

PARAGRAPH 5D (3), A.R. 345-155, AS AMENDED BY CHANGES NO. 2, JULY 2, 1927, PROVIDES:

IN ALL CASES OF DESERTION, OF SENTENCE TO BE DISHONORABLY DISCHARGED, OR WHEN A SOLDIER IS DISCHARGED OR DROPPED FROM THE RECORDS BY REASON OF FRAUDULENT ENLISTMENT, EXCEPT WHEN DEPOSITS ARE DUE (SEE PAR. 2, AR 345- 475, THE SOLDIER'S ACCOUNT WILL BE STATED IN FULL ON A SUPPLEMENTAL PAY ROLL SHOWING RANK OR GRADE, DATE TO WHICH LAST PAID, AND BY WHOM. ALL STOPPAGES AND CHARGES (SPECIAL CARE BEING TAKEN TO NOTE ALL DUES TO POST EXCHANGES, COMPANY FUND, ETC.) AND CREDITS FOR DEPOSITS, ETC., AND THE BALANCE DUE THE UNITED STATES OR DUE THE SOLDIER ON ACCOUNT OF CLOTHING AND, WHEN THE CHANGE OF STATUS INDICATED ABOVE OCCURS WITHIN THE FIRST SIX MONTHS OF ENLISTMENT, THE MONEY VALUE OF CLOTHING DRAWN SINCE ENLISTMENT MUST ALSO BE STATED, SHOWING THE AMOUNT CHARGEABLE TO THE INITIAL ALLOWANCE AND THAT CHARGEABLE TO THE MAINTENANCE ALLOWANCE; ALSO DATES AND PLACES WILL BE GIVEN, AND THE NUMBER, DATE, AND SOURCE OF ORDER OR OTHER AUTHORITY. THE SUPPLEMENTAL PAY ROLL WILL BE SUBMITTED IMMEDIATELY TO THE DISBURSING OFFICER WHO REGULARLY PAYS THE TROOPS AT THE STATION INVOLVED, FOR ACTION IN ACCORDANCE WITH PARAGRAPH 17, AR 35-2480. * * *

AR 35-2480, APRIL 15, 1926, PROVIDES:

17. ACCOUNTS OF SOLDIERS DISHONORABLY DISCHARGED, ETC.--- A. ON THE ACCOUNTS OF SOLDIERS STATED ON PAY ROLLS UNDER PARAGRAPH 5D (3), AR 345- 155 (EXCEPT IN CASE OF DISCHARGE FOR FRAUDULENT ENLISTMENT), THE FINANCE OFFICER WILL CALCULATE THE ACCOUNT, MAKE AN EXPENDITURE OF THE TOTAL AMOUNT DUE, AND, EXCEPT AS PROVIDED IN PARAGRAPH 19, TAKE UP AN EQUAL AMOUNT IN COLLECTIONS FOR DISTRIBUTION IN ACCORDANCE WITH PARAGRAPH 2, AR 35-2440.

18. ACCOUNTS OF DESERTERS.--- * * *

19. AMOUNTS DUE GOVERNMENT INSTRUMENTALITIES.--- EXCEPT IN THE CASE OF DISCHARGE ON ACCOUNT OF FRAUDULENT ENLISTMENT, AMOUNTS DUE A POST EXCHANGE, COMPANY FUND, OR OTHER GOVERNMENT INSTRUMENTALITIES WILL BE PAID AS PROVIDED IN PARAGRAPHS 13 TO 17, AR 35-3440.

PARAGRAPH 2, AR 35-2440, PROVIDES:

2. PRECEDENCE OF STOPPAGES.--- AUTHORIZED STOPPAGES SHOULD BE ENTERED ON THE PAY ROLLS AND DEDUCTED AT TIME OF ADJUSTMENT OF THE ACCOUNTS OF THE ENLISTED MEN, AS FOLLOWS (SEE 25 COMP. DEC. 369):

A. REIMBURSEMENTS TO THE UNITED STATES.

B. REIMBURSEMENTS TO INDIVIDUALS AND AGENCIES.

C. FORFEITURES FOR DESERTIONS AND AGENCIES.

IN THIS CONNECTION SEE ALSO DECISION OF SEPTEMBER 18, 1928, A-19379, 8 COMP. GEN. 130.

IT WILL BE NOTED THAT THE PROVISIONS OF AR 35-2480, APRIL 15, 1926, QUOTED ABOVE, AUTHORIZE FINANCE OFFICERS TO PAY THE STOPPAGES DUE GOVERNMENT INSTRUMENTALITIES IN THE CASES DESCRIBED IN PARAGRAPH 5D (3), AR 345-155. PRIOR TO THE PROMULGATION OF THIS REGULATION IT WAS THE PRACTICE TO PAY THE STOPPAGES IN SUCH CASES DUE GOVERNMENT INSTRUMENTALITIES BY SETTLEMENTS MADE BY THIS OFFICE ON THEIR CLAIMS THEREFOR. THE NEW PROCEDURE AS TO METHOD OF PAYMENT HAS BEEN CONSIDERED BY THIS OFFICE AND NO OBJECTIONS WILL BE MADE THERETO. 8 COMP. GEN. 130. FINANCE OFFICERS, HOWEVER, IN THE AUDIT OF THEIR ACCOUNTS, WILL BE HELD RESPONSIBLE FOR ANY OVERPAYMENTS MADE BY THEM IN SUCH CASES AS IN OTHER CASES.

IT HAS BEEN UNIFORMLY HELD IN THE CASE OF FORFEITURES BY GENERAL COURT- MARTIAL SENTENCES OF ALL PAY AND ALLOWANCES DUE A SOLDIER THAT THE AMOUNT OF PAY AND ALLOWANCES FORFEITED IS WHAT REMAINS DUE THE SOLDIER AFTER ALL PROPER INDEBTEDNESS BY HIM TO THE UNITED STATES AND GOVERNMENT INSTRUMENTALITIES HAS BEEN SATISFIED. THE ADJUSTMENT OF THE ACCOUNT CAN BE MADE AT ANY TIME SUBSEQUENT TO PROMULGATION OF THE SENTENCE AND THE FACT THAT IN THE CASE PRESENTED THE REPORT OF THE BOARD OF OFFICERS FINDING THE SOLDIER INDEBTED TO THE BATTERY FUND WAS NOT APPROVED UNTIL AFTER THE GENERAL COURT-MARTIAL SENTENCE WAS ADJUDGED WOULD SEEM TO BE IMMATERIAL.

IN THIS CASE, HOWEVER, THE SENTENCE OF THE COURT-MARTIAL WAS NOT EFFECTIVE UNTIL THE DATE OF ITS APPROVAL AND PROMULGATION ON AUGUST 7, 1928, WHICH WAS AFTER THE DATE OF THE APPROVAL OF THE REPORT OF THE BOARD OF OFFICERS.

ON THE PAY ROLL SUBMITTED IT IS NOT SHOWN HOW MUCH IS DUE THE SOLDIER TO THE DATE OF HIS DISCHARGE. APPARENTLY THERE IS NOT A SUFFICIENT AMOUNT DUE TO PAY THE AUTHORIZED STOPPAGES IN FULL. HOWEVER, THERE APPEARS NO REASON WHY AFTER DEDUCTING FROM THE AMOUNT PROPERLY DUE THE SOLDIER THE AMOUNT DUE THE UNITED STATES THE REMAINDER MAY NOT BE APPLIED FOR THE PAYMENT OF THE AMOUNT DUE THE BATTERY FUND.