A-21593, FEBRUARY 18, 1928, 7 COMP. GEN. 496

A-21593: Feb 18, 1928

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PAY - ABSENCE IN HANDS OF CIVIL AUTHORITIES - ARMY ENLISTED MAN WHERE AN ENLISTED MAN OF THE ARMY IN THE HANDS OF CIVIL AUTHORITIES WAS RELEASED WITHOUT TRIAL UPON HIS AGREEMENT TO MAKE REPARATION FOR THE OFFENSE FOR WHICH HE HAD BEEN COMMITTED HE IS NOT ENTITLED TO PAY FOR THE PERIOD HE WAS ABSENT IN THE HANDS OF THE CIVIL AUTHORITIES. 1928: THERE HAS BEEN RECEIVED YOUR REQUEST FOR DECISION WHETHER YOU ARE AUTHORIZED TO PAY A VOUCHER PRESENTED TO YOU AS DISBURSING OFFICER. THE PROSECUTING ATTORNEY IN THE CITY OF LEAVENWORTH ADVISES THAT THIS SOLDIER WAS ARRESTED AND CHARGED WITH FELONY. THAT HE WAS HELD IN CONFINEMENT FOR THE REASON THAT HE WAS UNABLE TO RAISE THE FUNDS TO MAKE GOOD THE CHECKS GIVEN BY HIM OR TO MAKE BOND FOR HIS RELEASE.

A-21593, FEBRUARY 18, 1928, 7 COMP. GEN. 496

PAY - ABSENCE IN HANDS OF CIVIL AUTHORITIES - ARMY ENLISTED MAN WHERE AN ENLISTED MAN OF THE ARMY IN THE HANDS OF CIVIL AUTHORITIES WAS RELEASED WITHOUT TRIAL UPON HIS AGREEMENT TO MAKE REPARATION FOR THE OFFENSE FOR WHICH HE HAD BEEN COMMITTED HE IS NOT ENTITLED TO PAY FOR THE PERIOD HE WAS ABSENT IN THE HANDS OF THE CIVIL AUTHORITIES.

COMPTROLLER GENERAL MCCARL TO MAJ. E. J. O-HARA, UNITED STATES ARMY, FEBRUARY 18, 1928:

THERE HAS BEEN RECEIVED YOUR REQUEST FOR DECISION WHETHER YOU ARE AUTHORIZED TO PAY A VOUCHER PRESENTED TO YOU AS DISBURSING OFFICER, FORT LEAVENWORTH, KANS., COVERING THE PAY OF PVT. CHESTER N. BERKELY, R-13776, MEDICAL DEPARTMENT, UNITED STATES ARMY, FOR THE PERIOD JULY 29, 1927, TO OCTOBER 17, 1927, WHILE ABSENT IN THE HANDS OF CIVIL AUTHORITIES.

IN YOUR REQUEST, YOU STATE THE CIRCUMSTANCES LEADING TO THE SOLDIER'S CONFINEMENT, AS FOLLOWS:

3. THE PROSECUTING ATTORNEY IN THE CITY OF LEAVENWORTH ADVISES THAT THIS SOLDIER WAS ARRESTED AND CHARGED WITH FELONY; THAT HE PASSED A NUMBER OF BAD CHECKS ON SEVERAL BANKS IN THE EAST IN WHICH HE HAD NO FUNDS; THAT HE WAS HELD IN CONFINEMENT FOR THE REASON THAT HE WAS UNABLE TO RAISE THE FUNDS TO MAKE GOOD THE CHECKS GIVEN BY HIM OR TO MAKE BOND FOR HIS RELEASE; THAT HE WAS GIVEN A PRELIMINARY HEARING IN THE CITY COURT ON THE CHARGE OF HAVING FELONIOUSLY CASHED THESE CHECKS; THAT HE WAS BOUND OVER TO THE DISTRICT COURT FOR TRIAL AT THE FALL TERM; THAT AN AGREEMENT WAS REACHED AT THE TRIAL WHEREBY THE SOLDIER WAS TO MAKE GOOD THE CHECKS ON WHICH HE WAS BEING PROSECUTED AND PAY THE COSTS OF THE COURT PROVIDED THE STATE AUTHORITIES AND PARTIES PROSECUTING WOULD MAKE A SETTLEMENT ON THAT BASIS; THAT ASIDE FROM THE TWO CHECKS ON WHICH HE WAS BEING PROSECUTED THERE WERE SEVERAL OTHERS GIVEN TO PARTIES IN THE CITY OF LEAVENWORTH AND KANSAS CITY, KANSAS, WHICH THE SOLDIER ALSO AGREED TO MAKE GOOD PROVIDED HE WAS RELEASED FROM CONFINEMENT AND NO FURTHER CHARGES BROUGHT AGAINST HIM.

ARMY REGULATIONS 35-2480, PARAGRAPH 11, PROVIDE:

11. DETENTION BY CIVIL AUTHORITIES FOR TRIAL.--- * * * HIS RIGHT TO PAY AND ALLOWANCES AFTER DATE OF ARREST AND TO TRAVEL PAY IS DEPENDENT UPON THE FINAL ACTION OF THE CIVIL AUTHORITIES; IF CONVICTED, HE IS NOT ENTITLED TO PAY AND ALLOWANCES AFTER DATE OF ARREST OR TO TRAVEL PAY; IF ACQUITTED, HE IS ENTITLED TO PAY AND ALLOWANCES TO DATE OF DISCHARGE AND TO TRAVEL PAY.

IN CONSTRUING A SIMILAR REGULATION, A.R. 1394, 1910, IT WAS HELD IN AN OPINION OF THE JUDGE ADVOCATE GENERAL, DATED SEPTEMBER 16, 1912, PUBLISHED IN BULLETIN 20, W.D., 1912 (SEE ALSO DIG.OP.J.A.G. 1912 1917, P. 28), THAT A SOLDIER IN THE HANDS OF CIVIL AUTHORITIES WHO IS RELEASED WITHOUT TRIAL ON ACCOUNT OF PERFORMING AN ACT WHICH MAKES REPARATION FOR THE OFFENSE IS NOT ENTITLED TO PAY DURING SUCH ABSENCE, AND THAT WHILE THE SOLDIER, NOT HAVING BEEN CONVICTED, CAME WITHIN THE STRICT LANGUAGE OF THE REGULATION, HE DID NOT COME WITHIN ITS MEANING AS, THROUGH HIS OWN FAULT, HE HAS NOT RENDERED THE SERVICE CONTEMPLATED BY HIS CONTRACT OF ENLISTMENT AND HIS ACT OF REPARATION AFTER HIS ARREST IS NOT EVIDENCE OF HIS INNOCENCE BUT RATHER AN ADMISSION OF HIS GUILT.

THIS OPINION IS BASED ON SOUND REASONING, AND THERE APPEARS NO REASON WHY IT SHOULD NOT BE FOLLOWED IN THE FUTURE AS IT HAS IN THE PAST.