A-23282, JUNE 26, 1928, 7 COMP. GEN. 812

A-23282: Jun 26, 1928

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HE IS CHARGEABLE WITH ALL EXPENSES INCURRED BY THE UNITED STATES TO SECURE HIS RETURN. ANY EXPENSES AUTHORIZED TO BE PAID FROM APPROPRIATED FUNDS INCURRED IN CONNECTION WITH SECURING HIS RETURN TO THE CUSTODY OF THE NAVAL AUTHORITIES ARE NOT CHARGEABLE TO THE MAN. WAS EXAMINED BY A BOARD OF MEDICAL SURVEY AT THE NAVAL HOSPITAL. THE LATTER BOARD OF MEDICAL SURVEY FOUND THAT WHITLEY WAS SUFFERING FROM DEMENTIA PRECOX. WHITLEY WAS TRANSFERRED TO AND RECEIVED AT THE NAVAL HOSPITAL. SINCE TWO BOARDS OF MEDICAL SURVEY HAD ALREADY DETERMINED THAT THIS MAN'S CONDITION WAS DUE TO DEMENTIA PRECOX. CONSIDERED THAT THIS WAS A PROPER CASE IN WHICH A REWARD SHOULD BE OFFERED FOR WHITLEY'S APPREHENSION AND RETURN TO NAVAL JURISDICTION DUE TO THE FACT THAT BECAUSE OF HIS MENTAL CONDITION HE PROBABLY WOULD BE A MENACE WHILE AT LARGE.

A-23282, JUNE 26, 1928, 7 COMP. GEN. 812

PAY - WITHHOLDING - NAVY ENLISTED MAN WHERE AN ENLISTED MAN OF THE NAVY HAS MADE NECESSARY EXPENSES TO SECURE HIS RETURN TO HIS DUTY STATION, HE IS CHARGEABLE WITH ALL EXPENSES INCURRED BY THE UNITED STATES TO SECURE HIS RETURN, INCLUDING PAYMENT OF REWARD, EXPENSES OF TRANSPORTATION, AND SUBSISTENCE, ETC. WHERE AN ENLISTED MAN OF THE NAVY HAS BEEN FOUND BY A MEDICAL BOARD OR BOARDS OR BY OTHER COMPETENT AUTHORITY TO BE SUFFERING FROM A MENTAL DERANGEMENT RENDERING HIM NOT RESPONSIBLE FOR HIS ACTS AND PENDING ACTION ON HIS CASE HE LEAVES THE CUSTODY OF THE NAVAL AUTHORITIES, ANY EXPENSES AUTHORIZED TO BE PAID FROM APPROPRIATED FUNDS INCURRED IN CONNECTION WITH SECURING HIS RETURN TO THE CUSTODY OF THE NAVAL AUTHORITIES ARE NOT CHARGEABLE TO THE MAN.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JUNE 26, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 8, 1928, READING AS FOLLOWS:

UNDER DATE OF SEPTEMBER 28, 1927, JAMES NELSON WHITLEY, SEAMAN, FIRST CLASS, U.S. NAVY, WAS EXAMINED BY A BOARD OF MEDICAL SURVEY AT THE NAVAL HOSPITAL, NORFOLK, VA., WHICH FOUND HIM TO BE SUFFERING FROM DEMENTIA PRECOX AND RECOMMENDED HIS TRANSFER TO THE NAVAL HOSPITAL, WASHINGTON, D.C., FOR FURTHER OBSERVATION AND TREATMENT. ON OCTOBER 28, 1927, WHITLEY ABSENTED HIMSELF FROM THE NAVAL HOSPITAL, WASHINGTON, D.C., AND REMAINED SO ABSENT UNTIL HE SURRENDERED HIMSELF AT THE NAVY YARD, PORTSMOUTH, N.H., ON APRIL 21, 1928. BECAUSE OF HIS PREVIOUS MENTAL CONDITION, THE BUREAU OF NAVIGATION, NAVY DEPARTMENT, DIRECTED HIS TRANSFER TO THE NAVAL HOSPITAL, CHELSEA, ASS., AND THAT HE BE AGAIN EXAMINED BY A BOARD OF MEDICAL SURVEY. ON MAY 4, 1928, THE LATTER BOARD OF MEDICAL SURVEY FOUND THAT WHITLEY WAS SUFFERING FROM DEMENTIA PRECOX, ORIGIN IN THE LINE OF DUTY, AND RECOMMENDED HIS TRANSFER TO THE NAVAL HOSPITAL, WASHINGTON, D.C., FOR TREATMENT AND FINAL DISPOSITION OF HIS CASE.

PURSUANT TO THE RECOMMENDATION OF THE BOARD OF MEDICAL SURVEY, WHITLEY WAS TRANSFERRED TO AND RECEIVED AT THE NAVAL HOSPITAL, WASHINGTON, D.C., ON MAY 19, 1928, AND AT ABOUT 8:20 A.M. ON THE SAME DATE, WHILE WAITING IN THE WARD OFFICE OF THE SAID HOSPITAL FOR NECESSARY RECORDS TO BE ACCOMPLISHED, HE ABSENTED HIMSELF WITHOUT LEAVE FROM PROPER AUTHORITY.

SINCE TWO BOARDS OF MEDICAL SURVEY HAD ALREADY DETERMINED THAT THIS MAN'S CONDITION WAS DUE TO DEMENTIA PRECOX, THE BUREAU OF NAVIGATION, NAVY DEPARTMENT, CONSIDERED THAT THIS WAS A PROPER CASE IN WHICH A REWARD SHOULD BE OFFERED FOR WHITLEY'S APPREHENSION AND RETURN TO NAVAL JURISDICTION DUE TO THE FACT THAT BECAUSE OF HIS MENTAL CONDITION HE PROBABLY WOULD BE A MENACE WHILE AT LARGE. SUCH A REWARD WAS OFFERED UNDER DATE OF MAY 19, 1928, BUT TO DATE WHITLEY HAS NOT BEEN RETURNED TO NAVAL JURISDICTION.

IN CONNECTION WITH THE ABOVE THE QUESTION HAS ARISEN IN THE NAVY DEPARTMENT AS TO WHETHER OR NOT, IN THE EVENT WHITLEY IS DELIVERED BY BY THE CIVIL AUTHORITIES AND A REWARD AS OFFERED IS CLAIMED, IT WILL BE PROPER TO CHARGE THE REWARD AGAINST THE APPROPRIATION "PAY, SUBSISTENCE,AND TRANSPORTATION" OF NAVAL PERSONNEL, OR WHETHER IT SHOULD BE CHARGED AGAINST THE ACCOUNTS OF WHITLEY.

IN THIS CONNECTION ATTENTION IS INVITED TO YOUR DECISION OF JANUARY 19, 1924 (REVIEW NO. 5841; S. AND A. MEMO., PAGE 8068), WHEREIN IT WAS HELD, QUOTING THE SYLLABUS, THAT---

"AN INSANE SOLDIER WHO ABSENTS HIMSELF FROM MILITARY CUSTODY AND CONTROL WITHOUT AUTHORITY IS NOT CRIMINALLY RESPONSIBLE FOR HIS ACTS AND MAY NOT BE CHARGED WITH ABSENCE WITHOUT LEAVE SO AS TO FORFEIT HIS PAY.'

IT WOULD APPEAR FROM THIS DECISION THAT IF ABSENCE WITHOUT LEAVE UNDER THE CIRCUMSTANCES STATED RESULTS IN NO FORFEITURE OF PAY IN THE CASE OF AN INSANE ENLISTED MAN, THE AMOUNT OF THE REWARD TO BE PAID FOR THE APPREHENSION AND RETURN TO NAVAL JURISDICTION OF SUCH MAN IS NOT A PROPER CHARGE AGAINST HIS PAY ACCOUNTS, BUT SHOULD BE BORNE BY THE APPROPRIATION "PAY, SUBSISTENCE, AND TRANSPORTATION.'

YOUR DECISION IS RESPECTFULLY REQUESTED UPON THE QUESTION HEREIN PRESENTED.

THE DECISION OF JUNE 19, 1924, 3 COMP. GEN. 434, CITED BY YOU AS HOLDING THAT AN INSANE SOLDIER WHO ABSENTS HIMSELF FROM MILITARY CUSTODY AND CONTROL WITHOUT AUTHORITY IS NOT CRIMINALLY RESPONSIBLE FOR HIS ACTS AND MAY NOT BE CHARGED WITH ABSENCE WITHOUT LEAVE SO AS TO FORFEIT HIS PAY, WAS ADDED TO BY DECISION OF MARCH 12, 1925, 4 COMP. GEN. 750, HOLDING THAT WHERE ABSENT WITHOUT PROPER AUTHORITY, WHETHER UNDER CONDITIONS OF RESPONSIBILITY OR NONRESPONSIBILITY, THE LAW DOES NOT AUTHORIZE PAY AND, THEREFORE, PAY DOES NOT ACCRUE FOR SUCH PERIOD. THERE CAN BE NO FORFEITURE OF PAY THAT DOES NOT ACCRUE.

THE FINDINGS OF THE MEDICAL BOARD IN THIS CASE THAT WHITLEY WAS SUFFERING FROM DEMENTIA PRAECOX MAY NEGATIVE HIS INTENT TO DESERT THE NAVAL SERVICE AND ABSOLVE HIM FROM PUNISHMENT AS A DESERTER ON THE GROUND THAT HE IS NOT CRIMINALLY RESPONSIBLE FOR THUS ABSENTING HIMSELF FROM NAVAL CONTROL AND DUTY, BUT SUCH LACK OF CRIMINAL RESPONSIBILITY DOES NOT DETERMINE HIS RIGHT TO PAY DURING THE PERIOD OF ABSENCE. UNDER HIS CONTRACT OF ENLISTMENT, A MAN'S RIGHT TO PAY IS CONTINGENT UPON THE PERFORMANCE OF SERVICE. THE FACT OF CRIMINAL RESPONSIBILITY FOR FAILURE TO RENDER SERVICE MAY AFFECT A MAN'S RIGHT TO PAY EARNED BUT NOT RECEIVED PRIOR TO BEING SO ABSENT WITHOUT PERMISSION, BUT RIGHT TO PAY DURING SUCH ABSENCE DOES NOT ACCRUE BECAUSE, BY BEING ABSENT WITHOUT PROPER AUTHORITY, HE FAILED TO RENDER SERVICE DURING SUCH PERIOD.

WHEN A REWARD IS OFFERED AND ACCEPTED FOR DELIVERY OF A MAN DECLARED TO BE A DESERTER INTO THE HANDS OF NAVAL AUTHORITIES AT A DESIGNATED PLACE, THE GOVERNMENT IS OBLIGATED TO PAY THE REWARD WITHOUT REGARD TO WHETHER THE AMOUNT THEREOF MAY BE COLLECTED FROM THE DESERTER. 48 MS. COMP. GEN. 136; 5 ID. 1. THE REASON FOR CHECKING THE MAN'S ACCOUNT WITH THE REWARD IS THAT SUCH EXPENSE IS CAUSED BY HIS OWN FAULT. ARTICLE 1697, NAVY REGULATIONS, PROVIDES FOR CHECK AGE OF THE REWARD AGAINST THE MAN'S ACCOUNT WITHOUT ATTACHING ANY CONDITION THERETO, AND ARTICLE 1699 STATES THAT SUCH CHECK AGE IS NOT A PART OF THE PUNISHMENT TO WHICH HE IS LIABLE BY REASON OF SUCH ABSENCE. THE QUESTION OF SUCH CHECK AGE IS A MATTER DISTINCT FROM THE MAN'S CRIMINAL RESPONSIBILITY AND, AS PROVIDED BY REGULATIONS, IS NOT CONTINGENT ON WHETHER THE MAN MAY BE PUNISHED FOR SO ABSENTING HIMSELF FROM NAVAL AUTHORITY.

IN ALL CASES WHERE A MAN, BY HIS UNAUTHORIZED ACT, HAS MADE NECESSARY EXPENDITURES BY THE UNITED STATES FOR HIS APPREHENSION OR TRANSPORTATION, SUCH EXPENDITURES ARE PROPERLY CHARGEABLE TO HIM WHETHER OR NOT HE IS FOUND GUILTY OF A CRIMINAL OFFENSE. BUT SUCH A RULE AND THE CITED REGULATIONS HAVE NO APPLICATION TO THE CASE OF AN ENLISTED MAN WHO HAS BEEN FOUND BY A MEDICAL BOARD OR BOARDS TO BE SUFFERING FROM A MENTAL DISEASE RENDERING HIM NOT RESPONSIBLE FOR HIS ACTS. WHERE THE FACT OF THE MENTAL DERANGEMENT AND IRRESPONSIBILITY IS ESTABLISHED BY COMPETENT EVIDENCE AND BY PROPER AUTHORITY HIS RETURN IS UNDERTAKEN, THE MAN SHOULD NOT BE CHARGED WITH THE COST OF HIS RETURN TO THE NAVAL AUTHORITIES FOR CONFINEMENT, PROPER TREATMENT, AND FINAL ACTION ON HIS CASE, THE EXPENDITURES BEING MORE ACCURATELY DESCRIBED AS FOR HIS PROPER CARE AND TREATMENT AND THE COSTS ARE PROPERLY CHARGEABLE UNDER THE AVAILABLE APPROPRIATIONS AUTHORIZING SUCH EXPENDITURES.