A-21449, FEBRUARY 24, 1928, 7 COMP. GEN. 523

A-21449: Feb 24, 1928

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GRATUITIES - DISCHARGE - NAVY ENLISTED MEN AN ENLISTED MAN OF THE NAVY WHO DESERTS AND IS APPREHENDED OR RETURNS TO NAVAL JURISDICTION AFTER THE EXPIRATION OF HIS ENLISTMENT AND IS THEREUPON DISCHARGED ON ACCOUNT OF THE DESERTION. IS NOT DISCHARGED "FOR THE GOOD OF THE SERVICE" WITHIN THE MEANING OF SECTION 10 OF THE ACT OF MARCH 4. IS NOT ENTITLED TO BE PAID WHEN SO DISCHARGED THE GRATUITY AUTHORIZED BY SAID ACT. REQUESTING DECISION OF THE FOLLOWING QUESTION: IS AN ENLISTED MAN WHO DESERTS AND IS APPREHENDED OR RETURNS TO NAVAL JURISDICTION AFTER THE DATE OF EXPIRATION OF HIS ENLISTMENT ENTITLED TO BE PAID THE GRATUITY OF $25 AUTHORIZED BY SECTION 10 OF THE ACT OF MARCH 4. AFTER HE IS DISCHARGED FOR THE GOOD OF THE SERVICE EITHER WITHOUT TRIAL OR IN ACCORDANCE WITH THE SENTENCE OF A COURT-MARTIAL?

A-21449, FEBRUARY 24, 1928, 7 COMP. GEN. 523

GRATUITIES - DISCHARGE - NAVY ENLISTED MEN AN ENLISTED MAN OF THE NAVY WHO DESERTS AND IS APPREHENDED OR RETURNS TO NAVAL JURISDICTION AFTER THE EXPIRATION OF HIS ENLISTMENT AND IS THEREUPON DISCHARGED ON ACCOUNT OF THE DESERTION, WHETHER WITHOUT TRIAL OR IN ACCORDANCE WITH SENTENCE OF A COURT-MARTIAL, IS NOT DISCHARGED "FOR THE GOOD OF THE SERVICE" WITHIN THE MEANING OF SECTION 10 OF THE ACT OF MARCH 4, 1925, 43 STAT. 1274, AND IS NOT ENTITLED TO BE PAID WHEN SO DISCHARGED THE GRATUITY AUTHORIZED BY SAID ACT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, FEBRUARY 24, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 27, 1928, REQUESTING DECISION OF THE FOLLOWING QUESTION:

IS AN ENLISTED MAN WHO DESERTS AND IS APPREHENDED OR RETURNS TO NAVAL JURISDICTION AFTER THE DATE OF EXPIRATION OF HIS ENLISTMENT ENTITLED TO BE PAID THE GRATUITY OF $25 AUTHORIZED BY SECTION 10 OF THE ACT OF MARCH 4, 1925 (43 STAT., 1274; U.S.C., TITLE 34, SECTION 197), AFTER HE IS DISCHARGED FOR THE GOOD OF THE SERVICE EITHER WITHOUT TRIAL OR IN ACCORDANCE WITH THE SENTENCE OF A COURT-MARTIAL?

THE ACT REFERRED TO UNDER THE HEAD "DISCHARGES FOR THE GOOD OF THE SERVICE," PROVIDES:

SEC. 10. THAT HEREAFTER PERSONS DISCHARGED FROM THE NAVAL SERVICE BY DISHONORABLE DISCHARGE, BAD-CONDUCT DISCHARGE, OR ANY OTHER DISCHARGE FOR THE GOOD OF THE SERVICE, MAY, UPON DISCHARGE, BE PAID A SUM NOT TO EXCEED $25: PROVIDED, THAT THE SAID SUM SHALL BE FIXED BY, AND IN THE DISCRETION OF, THE SECRETARY OF THE NAVY, AND SHALL BE PAID ONLY IN CASES WHERE THE PERSON SO DISCHARGED WOULD OTHERWISE BE WITHOUT FUNDS TO MEET HIS IMMEDIATE NEEDS: * * *

THE QUESTION AS WORDED ASSUMES THAT A DISCHARGE GIVEN AT THE TIME AND UNDER THE CIRCUMSTANCES STATED IS FOR THE GOOD OF THE SERVICE. IF THIS ASSUMPTION IS CORRECT THE QUESTION AS PRESENTED WOULD NECESSARILY BE ANSWERED IN THE AFFIRMATIVE, AS THE BENEFICIARIES OF THE ACT ARE THOSE PERSONS DISCHARGED FROM THE NAVAL SERVICE "FOR THE GOOD OF THE SERVICE.'

IT HAS BEEN HELD THAT AN ENLISTED MAN WHO VIOLATED HIS CONTRACT OF ENLISTMENT BY SEPARATING HIMSELF FROM THE SERVICE BY DESERTION AND WHO REMAINED ABSENT UNTIL AFTER THE EXPIRATION OF HIS TERM OF ENLISTMENT, BUT WHO SURRENDERED HIMSELF TO THE NAVAL AUTHORITIES, CAN BE HELD FOR TRIAL AND PUNISHMENT ONLY, AND HE IS NOT ENTITLED TO ANY PAY OF ALLOWANCES WHILE BEING RETAINED IN THE NAVY AWAITING A NOMINAL DISCHARGE THEREFROM. COMP. GEN. 874; 20 COMP. DEC. 751. IT WOULD SEEM THAT THIS RULING WOULD ALSO APPLY WHERE, INSTEAD OF SURRENDERING HIMSELF, THE DESERTER IS APPREHENDED AND DISCHARGED EITHER WITHOUT TRIAL OR IN PURSUANCE OF A SENTENCE OF A COURT-MARTIAL.

A DISCHARGE FOR THE GOOD OF THE SERVICE IMPLIES THAT THE SERVICE OR CONDUCT OF THE MAN SO DISCHARGED WAS UNSATISFACTORY, THAT BY REASON OF SUCH UNSATISFACTORY SERVICE OR CONDUCT HIS CONTINUANCE IN THE SERVICE WOULD BE DETRIMENTAL THERETO, AND THAT THEREFORE IT WAS IN THE INTEREST OF THE SERVICE TO TERMINATE HIS CONNECTION THEREWITH. THESE CONSIDERATIONS HAVE NO APPLICATION TO A DESERTER WHO REMAINS IN DESERTION UNTIL AFTER THE EXPIRATION OF HIS ENLISTMENT AND WHO UPON SURRENDER OR APPREHENSION IS DISCHARGED ON ACCOUNT OF HIS DESERTION, AS HIS CONTINUANCE IN THE SERVICE, EXCEPT FOR TRIAL AND PUNISHMENT, IS NEITHER CONTEMPLATED NOR AUTHORIZED. IF HE IS NOT RETAINED FOR PUNISHMENT, THERE IS NO ALTERNATIVE BUT TO DISCHARGE HIM, AND THE QUESTION AS TO WHETHER HIS CONTINUANCE IN THE SERVICE WOULD BE DETRIMENTAL THERETO DOES NOT ARISE.

THE VIEW THAT SECTION 10 OF THE SAID ACT OF MARCH 4, 1925, WAS NOT INTENDED TO APPLY TO THOSE DISCHARGED AFTER EXPIRATION OF ENLISTMENT UNDER THE CIRCUMSTANCES STATED WOULD SEEM TO BE CONFIRMED BY REFERENCE TO THE REPORTS OF THE COMMITTEES HAVING THE MATTER IN CHARGE. IT APPEARS THEREFROM THAT THE LEGISLATION IN QUESTION WAS RECOMMENDED BY THE THEN SECRETARY OF THE NAVY IN HIS LETTER OF OCTOBER 27, 1922, ADDRESSED TO THE CHAIRMAN, COMMITTEE ON NAVAL AFFAIRS, UNITED STATES SENATE, AS FOLLOWS:

I HAVE THE HONOR TO TRANSMIT HEREWITH A PROPOSED DRAFT OF A BILL TO PROVIDE FOR PAYMENT OF A GRATUITY UPON DISCHARGE FROM THE NAVAL SERVICE FOR THE GOOD OF THE SERVICE.

THE PURPOSE OF THIS BILL IS TO AUTHORIZE THE SECRETARY OF THE NAVY, IN HIS DISCRETION, TO GIVE TO PERSONS DISCHARGED FOR THE GOOD OF THE SERVICE RELIEF SIMILAR TO THAT PROVIDED BY SECTION 13 OF THE ACT OF FEBRUARY 16, 1909 (35 STAT. 622), FOR PERSONS OF THE NAVAL SERVICE WHEN DISCHARGED PURSUANT TO SENTENCE OF A NAVAL COURT-MARTIAL. THE RELIEF THUS PROVIDED FOR WILL BE FURNISHED ONLY IN CASES WHERE THE PERSON SO DISCHARGED WOULD OTHERWISE BE WITHOUT FUNDS TO MEET HIS IMMEDIATE NEEDS.

IT OFTEN OCCURS IN CASES OF PERSONS BEING DISCHARGED FOR THE GOOD OF THE SERVICE THAT THEY HAVE OVERDRAWN THEIR CLOTHING ACCOUNTS, OR THAT BY REASON OF CHECK AGES THEY ARE INDEBTED TO THE UNITED STATES AND ARE THUS WITHOUT FUNDS TO MEET THEIR IMMEDIATE NEEDS. IT IS DEEMED UNDESIRABLE AND CONTRARY TO GOOD DISCIPLINE TO RETAIN SUCH A PERSON IN THE NAVAL SERVICE UNTIL THERE IS DUE HIM A SUFFICIENT AMOUNT FOR IMMEDIATE NEEDS, AND, ON THE OTHER HAND, IT IS CONSIDERED A GREAT HARDSHIP ON HIS PART TO BE DISCHARGED WITHOUT THE MEANS FOR HIS IMMEDIATE SUSTENANCE AND SUPPORT.

THE INCLOSED DRAFT OF BILL HAS ACCORDINGLY BEEN PREPARED TO MEET THIS EXIGENCY. * * * SEE H.R. NO. 31, 68TH CONGRESS, 1ST SESSION; S. REPORT NO. 1072, 68TH CONGRESS, 2D SESSION.

IT THUS APPEARS THAT THE PURPOSE OF THE LEGISLATION IN QUESTION WAS TO MINIMIZE THE HARDSHIP CAUSED BY THE DISCHARGE FOR CAUSE OF A PERSON IN A PAY STATUS WHICH STATUS WOULD OTHERWISE HAVE CONTINUED, A SITUATION WHICH DOES NOT EXIST IN THE CASE OF A DESERTER DISCHARGED UNDER THE CIRCUMSTANCES STATED AFTER THE EXPIRATION OF HIS ENLISTMENT.