A-15682, SEPTEMBER 29, 1926, 6 COMP. GEN. 221

A-15682: Sep 29, 1926

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COURTS-MARTIAL - FORFEITURE OF NAVY PAY A SUMMARY COURT-MARTIAL SENTENCE IMPOSING A FORFEITURE OF PAY UPON AN ENLISTED MAN OF THE NAVY OPERATES UPON THE PAY EARNED DURING THE ENLISTMENT AND IF AN EXTENSION OF AN ENLISTMENT BECOMES EFFECTIVE WITHIN THE PERIOD OF SAID COURT-MARTIAL FORFEITURE THE SENTENCE IS NOT THEREBY REMITTED. WHEREIN WAS DISALLOWED HIS CLAIM FOR THE SUM OF DEDUCTIONS MADE IN HIS PAY ACCOUNT FOR THE PERIOD SUBSEQUENT TO OCTOBER 27. HE WAS TRIED BY SUMMARY COURT-MARTIAL 30 SEPTEMBER. THAT PART OF THE SENTENCE WHICH RELATES TO SOLITARY CONFINEMENT IS REMITTED ON CONDITION THAT HE MAINTAIN A RECORD SATISFACTORY TO HIS COMMANDING OFFICER DURING A PERIOD OF SIX (6) MONTHS. I WAS CHECKED ON S.C.M.

A-15682, SEPTEMBER 29, 1926, 6 COMP. GEN. 221

COURTS-MARTIAL - FORFEITURE OF NAVY PAY A SUMMARY COURT-MARTIAL SENTENCE IMPOSING A FORFEITURE OF PAY UPON AN ENLISTED MAN OF THE NAVY OPERATES UPON THE PAY EARNED DURING THE ENLISTMENT AND IF AN EXTENSION OF AN ENLISTMENT BECOMES EFFECTIVE WITHIN THE PERIOD OF SAID COURT-MARTIAL FORFEITURE THE SENTENCE IS NOT THEREBY REMITTED.

DECISION BY COMPTROLLER GENERAL MCCARL, SEPTEMBER 29, 1926:

MICHAEL MEDGIE, FIREMAN, SECOND CLASS, UNITED STATES NAVY, APPLIED AUGUST 28, 1926, FOR REVIEW OF SETTLEMENT NO. 0119370, DATED APRIL 19, 1926, WHEREIN WAS DISALLOWED HIS CLAIM FOR THE SUM OF DEDUCTIONS MADE IN HIS PAY ACCOUNT FOR THE PERIOD SUBSEQUENT TO OCTOBER 27, 1925, PURSUANT TO SENTENCE OF A SUMMARY COURT-MARTIAL APPROVED OCTOBER 1, 1925.

UNDER DATE OF DECEMBER 21, 1925, THE CHIEF OF THE BUREAU OF NAVIGATION REPORTED CONCERNING MEDGIE AS FOLLOWS:

CHART

ENLISTED DISCHARGED

DATE SHIP DATE SHIP MEDAL

5 JAN. 1920 N.R.S., SCRANTON, PA.; 27 OCT. 1921 OHIO --- -----

R.S., PHILA., PA. 28 OCT. 1921 OHIO ------------- -- ------------- ------

EXTENDED ENLISTMENT FOR THE PERIOD OF TWO (2) YEARS FROM THE DATE OF ITS EXPIRATION ON 27 OCT. 1925, NAMELY, UNTIL 27 OCT. 1927.

REC. BARRACKS

HAMPTON RDS., VA---

THE ABOVE-MENTIONED MAN RECEIVED AN HONORABLE DISCHARGE 27 OCTOBER, 1921.

HE WAS TRIED BY SUMMARY COURT-MARTIAL 30 SEPTEMBER, 1925, AND SENTENCED TO SOLITARY CONFINEMENT ON BREAD AND WATER FOR 30 DAYS, WITH FULL RATIONS EVERY 3RD DAY, AND TO LOSE $29.70 PER MONTH OF HIS PAY FOR A PERIOD OF SIX (6) MONTHS, TOTAL LOSS OF PAY AMOUNTING TO $178.20 APPROVED BY COMMANDING OFFICER 10-1-25, BUT THAT PART OF THE SENTENCE WHICH RELATES TO SOLITARY CONFINEMENT IS REMITTED ON CONDITION THAT HE MAINTAIN A RECORD SATISFACTORY TO HIS COMMANDING OFFICER DURING A PERIOD OF SIX (6) MONTHS, OTHERWISE THE ORIGINAL SENTENCE TO BE CARRIED OUT. APP. BY I.S. IN C. AS MITIGATED 10-1-25.

WITH RESPECT TO HIS CLAIM MEDGIE STATES:

ON OCTOBER 1, 1925, I RECEIVED A S.C.M. TO LOSE PAY AMOUNTING TO $178.20; MY ENLISTMENT EXPIRED OCTOBER 27, 1925; I WAS CHECKED ON S.C.M. OCT. 1, 1925, TO 27 OCTOBER, 1925 AMOUNTING TO $26.73; I AM NOW BEING CHECKED THE BALANCE OF THE S.C.M. (151.47) AFTER MY AGREEMENT TO EXTEND MY ENLISTMENT

IT APPEARS THAT I HAVE A CASE SIMILAR TO THE CASE CITED IN COURT MARTIAL ORDER NO. 2, DATED 28 FEBRUARY, 1925, UNDER HEADING "SENTENCE: MITIGATION OF ON ACCOUNT OF EXPIRATION OF ENLISTMENT.' IT WILL BE NOTED THAT THE EXECUTION OF MY SENTENCE TOOK EFFECT ON THE DATE OF APPROVAL OF THE IMMEDIATE SUPERIOR IN COMMAND, WHICH WAS 1 OCTOBER, 1925, AND THE SENTENCE, AS APPROVED * * * EXTENDED BEYOND THE EXPIRATION OF MY ENLISTMENT.

I THEREFORE RESPECTFULLY REQUEST A DECISION TO DETERMINE WHETHER OR NOT I AM ENTITLED TO THE PAY, AMOUNTING TO $148.50, WHICH WAS CHECKED AGAINST MY ACCOUNT AFTER MY ENLISTMENT (IN WHICH I WAS TRIED BY SUMMARY COURT- MARTIAL) HAD EXPIRED.

IT APPEARS FROM AN EXAMINATION OF CLAIMANT'S PAY ACCOUNT THAT UNDER SENTENCE OF A DECK COURT-MARTIAL APPROVED JUNE 11, 1923, A FORFEITURE WAS IMPOSED OF $36 IN PAY, REMITTED SUBJECT TO THE CONDITIONS SPECIFIED IN ARTICLE 1877 N.R. 1920, AND THAT UNDER SENTENCE OF A SUMMARY COURT-MARTIAL APPROVED SEPTEMBER 12, 1925, A FORFEITURE OF PAY AT $29 PER MONTH, FOR TWO MONTHS, WAS IMPOSED, TOTAL $58, OF WHICH BUT $45.44 WAS DEDUCTED PRIOR TO THE DATE UPON WHICH HIS EXTENSION OF ENLISTMENT BECAME EFFECTIVE, THE BALANCE, $12.56, HAVING BEEN DEDUCTED FROM PAY WHICH ACCRUED UNDER THE EXTENSION, AS HAS ALSO THE ENTIRE FORFEITURE IMPOSED BY THE SUMMARY COURT- MARTIAL SENTENCE APPROVED OCTOBER 1, 1925.

THE PERTINENT PORTION OF THE CASE CITED BY CLAIMANT FROM NAVY COURT MARTIAL ORDER NO. 2-1925 IS TO THE EFFECT THAT WHERE BY COURT-MARTIAL SENTENCE A FORFEITURE OF PAY IS IMPOSED TO BE DEDUCTED AT A CERTAIN RATE PER MONTH OVER A SPECIFIED PERIOD OF TIME WHICH EXTENDS BEYOND THE CURRENT PERIOD OF ENLISTMENT SO MUCH OF THE SENTENCE AS INVOLVES LOSS OF PAY AFTER THE ENLISTMENT EXPIRED AND THE ACCUSED DISCHARGED CAN NOT BE EXECUTED,"AS HE THEREAFTER DRAWS NO PAY.' TO THE SAME EFFECT ARE TAYLOR'S CASE, 69 MS. COMP. DEC. 109, APRIL 6, 1914; FITTRER'S CASE, 73 ID. 1636, JUNE 30, 1915; AND THAYER'S CASE, 4 COMP. GEN. 842.

HOWEVER, THOSE CASES DEALT WITH A DIFFERENT STATE OF FACTS THAN CLAIMANT'S RECORD PRESENTS, FOR IN EACH THE CONTRACT OF ENLISTMENT CURRENT ON DATE COURT-MARTIAL SENTENCE WAS APPROVED WAS TERMINATED BY DISCHARGE, WHEREAS THE CLAIMANT'S CONTRACT OF ENLISTMENT WAS,"BY HIS VOLUNTARY WRITTEN AGREEMENT," EXTENDED FOR TWO YEARS FROM THE DATE IT WOULD HAVE OTHERWISE EXPIRED UNDER THE ACT OF AUGUST 22, 1912, 37 STAT. 331, WHICH ACT AUTHORIZES SUCH EXTENSIONS UNDER "REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY WITH THE APPROVAL OF THE PRESIDENT * * * FOR A PERIOD OF EITHER ONE, TWO, THREE, OR FOUR FULL YEARS FROM THE DATE OF EXPIRATION OF THE THEN EXISTING FOUR-YEAR TERM OF ENLISTMENT.'

IT HAS BEEN HELD THAT WHEN AN ENLISTED MAN AGREES TO EXTEND HIS "THEN EXISTING" TERM OF ENLISTMENT HE AGREES TO POSTPONE HIS RIGHT TO DISCHARGE UNTIL EXPIRATION OF THE PERIOD OF EXTENSION; THAT SUCH AN AGREEMENT IS NOT A CONTRACT FOR A NEW ENLISTMENT BUT FOR THE EXTENSION OR PROLONGATION OF THE CURRENT OR THEN EXISTING CONTRACT OF ENLISTMENT AND CONSTITUTES A PART THEREOF. 19 COMP. DEC. 384; ID. 819; 20 ID. 699; ID. 805; 26 ID. 138; ALSO, THAT FORFEITURE OF PAY IMPOSED BY A SUMMARY COURT-MARTIAL OPERATES ON PAY THEREAFTER BECOMING DUE UNDER THE CURRENT ENLISTMENT CONTRACT OR PRIOR TO DISCHARGE THEREFROM. TAYLOR'S CASE, 69 MS. COMP. DEC. 109, 110.