A-26018, APRIL 17, 1929, 8 COMP. GEN. 549

A-26018: Apr 17, 1929

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1929: THERE IS FOR CONSIDERATION THE CLAIM OF ERNEST LEE WHITLEY. THAT HE WAS TRIED BY A GENERAL COURT (C.G. 4621. SENTENCE WERE APPROVED BY THE DEPARTMENT ON NOVEMBER 2. THAT HE WAS DISHONORABLY DISCHARGED NOVEMBER 26. WAS NOT PAID TO HIM AT TIME OF FINAL PAYMENT ON DISCHARGE. 1928: (1) IF AN ENLISTED PERSON IN DESERTION SURRENDERS HIMSELF OR IS DELIVERED HE SHALL BE TAKEN UP FOR PAY FROM THE DATE OF HIS RETURN OR DELIVERY ON A VESSEL OR AT A STATION. WITH NOTATION IN THE "REMARKS" COLUMN SHOWING THE PAY ROLL ON WHICH THE AMOUNT WAS RETAINED AT TIME OF DESERTION. IT WAS STATED IN 8 COMP. AS FOLLOWS: THERE IS NO STATUTE WHICH PROVIDES THAT THE PAY AND ALLOWANCES OF A SOLDIER SHALL BE FORFEITED BY DESERTION.

A-26018, APRIL 17, 1929, 8 COMP. GEN. 549

PAY AND ALLOWANCES - DESERTION - COAST GUARD ENLISTED MEN AN ENLISTED MAN OF THE COAST GUARD WHO DESERTS THE SERVICE BREACHES HIS CONTRACT OF ENLISTMENT FOR FAITHFUL SERVICE AND THEREBY FORFEITS ALL PAY AND ALLOWANCES DUE AND UNPAID HIM ON DATE OF DESERTION.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 17, 1929:

THERE IS FOR CONSIDERATION THE CLAIM OF ERNEST LEE WHITLEY, SEAMAN, FIRST CLASS, UNITED STATES COAST GUARD, FOR $45, REPRESENTING PAY WHICH HAD ACCRUED TO HIM FROM JUNE 1 TO 25, 1928, INCLUSIVE, BUT RETAINED BECAUSE OF HIS DESERTION JUNE 26, 1928, AND NOT PAID TO HIM UPON FINAL PAYMENT ON DISCHARGE.

THE RECORD IN THE CASE SHOWS THAT WHITLEY ENTERED INTO A SPECIAL TEMPORARY ENLISTMENT IN THE UNITED STATES COAST GUARD ON AUGUST 18, 1925, FOR A PERIOD OF THREE YEARS; THAT HE WAS TRIED BY A GENERAL COURT (C.G. 4621, PROCEEDINGS OF OCTOBER 16, 1928), AND FOUND GUILTY OF DESERTION JUNE 26, 1928, AND OF CONTINUANCE THEREIN UNTIL 11.55 P.M. SEPTEMBER 29, 1928, AND SENTENCED TO BE DISHONORABLY DISCHARGED FROM THE UNITED STATES COAST GUARD, WHICH PROCEEDINGS, FINDINGS, AND SENTENCE WERE APPROVED BY THE DEPARTMENT ON NOVEMBER 2, 1928, AND SENTENCE DIRECTED TO BE CARRIED INTO EFFECT; THAT HE WAS DISHONORABLY DISCHARGED NOVEMBER 26, 1928; THAT, AS SHOWN BY THE TRANSCRIPT OF HIS PAY, THE SUM OF $45 WHICH HAD ACCRUED TO HIM FROM JUNE 1 TO 25, 1928, INCLUSIVE, JUST PRIOR TO HIS DESERTION, WAS NOT PAID TO HIM AT TIME OF FINAL PAYMENT ON DISCHARGE.

THE ACT OF JANUARY 28, 1915 (38 STAT. 800), ESTABLISHING THE COAST GUARD IN LIEU OF THE REVENUE CUTTER SERVICE AND THE LIFE SAVING SERVICE, PROVIDES THAT IT SHALL CONSTITUTE A PART OF THE MILITARY FORCES OF THE UNITED STATES AND SHALL OPERATE UNDER THE TREASURY DEPARTMENT IN TIME OF PEACE.

THE PAY AND SUPPLY INSTRUCTIONS, UNITED STATES COAST GUARD, 1926, PROVIDE AS FOLLOWS:

ARTICLE 41, PAGE 11, AS AMENDED BY AMENDMENT NO. 3, NOVEMBER 9, 1926:

THE NAMES OF * * * DESERTERS SHALL BE BORNE BELOW THE NAMES OF ALL OTHER PERSONS ON THE PAY ROLL OF THE UNIT FOR THE MONTH DURING WHICH THE * * * DESERTIONS OCCURRED, AND THE CREDITS, ADJUSTMENTS, AND DEBITS SHALL BE DISTRIBUTED IN THE PROPER COLUMNS. * * * BALANCES OF PAY IN THE CASES OF DESERTERS SHALL BE PLACED IN THE "RETAINED" COLUMN, WITH NOTATIONS PLACED IN THE ,REMARKS" COLUMN SHOWING THE AMOUNTS RETAINED AND THE DATES OF DESERTIONS.

ARTICLE 44, PAGE 11, AS AMENDED BY AMENDMENT NO. 15, APRIL 13, 1928:

(1) IF AN ENLISTED PERSON IN DESERTION SURRENDERS HIMSELF OR IS DELIVERED HE SHALL BE TAKEN UP FOR PAY FROM THE DATE OF HIS RETURN OR DELIVERY ON A VESSEL OR AT A STATION, AND THE PAY RETAINED ON DATE OF DESERTION BROUGHT FORWARD TO THE "RETAINED" COLUMN OF THE PAY ROLL FOR THAT MONTH, WITH EXPLANATORY NOTATION IN THE "REMARKS" COLUMN, BUT NO PAYMENT SHALL BE MADE TO HIM UNTIL FINAL ACTION HAS BEEN TAKEN IN HIS CASE.

(3) PAY THAT ACCRUED TO A DESERTER PRIOR TO THE DATE OF HIS DESERTION SHALL, UPON HIS RETURN OR DELIVERY FROM DESERTION, BE PLACED IN THE "BALANCE FORWARDED FROM LAST ROLL" AND "RETAINED" COLUMNS, WITH NOTATION IN THE "REMARKS" COLUMN SHOWING THE PAY ROLL ON WHICH THE AMOUNT WAS RETAINED AT TIME OF DESERTION. IT SHALL THEN BE CARRIED FORWARD IN THE "BALANCE FORWARDED FROM LAST ROLL" AND "RETAINED" COLUMNS UNTIL FINAL ACTION HAS BEEN TAKEN BY THE DEPARTMENT. AT THAT TIME CLAIM FOR SUCH RETAINED PAY SHALL BE MADE ON VOUCHER FORWARDED TO HEADQUARTERS FOR SETTLEMENT. THE PAY ROLL SHALL SHOW ENTRIES SIMILAR TO THOSE SPECIFIED IN ARTICLES 24 (3) AND 39 (2). (THIS PARAGRAPH ADDED BY AMENDMENT NO. 6, MARCH 7, 1927.)

IT WAS STATED IN 8 COMP. GEN. 234, AS FOLLOWS:

THERE IS NO STATUTE WHICH PROVIDES THAT THE PAY AND ALLOWANCES OF A SOLDIER SHALL BE FORFEITED BY DESERTION, BUT THE WELL-ESTABLISHED RULE, AUTHORIZED BY THE USAGE OF THE SERVICE, WINTHROP'S MILITARY LAWS AND PRECEDENTS, PAGE 427, IS THAT ALL PAY AND ALLOWANCES DUE AT DATE OF DESERTION ARE FORFEITED. IN THIS CONNECTION THE FOLLOWING IS QUOTED FROM THE DECISION OF ASSISTANT COMPTROLLER MITCHELL OF DECEMBER 22, 1903 (10 COMP. DEC. 490):

"THERE IS NO EXPRESS STATUTE UPON THE SUBJECT, NOR IS THERE NEED OF ANY. ON GENERAL PRINCIPLES A PERSON WHO ENGAGES FOR A DEFINITE TIME FORFEITS HIS WAGES FOR THE PERIOD HE HAS SERVED IF HE FAILS TO FULFILL HIS CONTRACT. (MS. DEC. SECOND COMP., VOL 20, 37.)

ENLISTMENT, WHILE IT CHANGES THE STATUS OF THE CIVILIAN TO THAT OF A SOLDIER, NEVERTHELESS IS A CONTRACT, UNITED STATES V. GRIMLEY (137 U.S. 150), * * *.

IT WAS HELD IN UNITED STATES V. LANDERS, 92 U.S. 77, 79, THAT:

* * * FORFEITURE OF PAY AND ALLOWANCES UP TO THE TIME OF DESERTION FOLLOWS FROM THE CONDITIONS OF THE CONTRACT OF ENLISTMENT, WHICH IS FOR FAITHFUL SERVICE. THE CONTRACT IS AN ENTIRETY; AND, IF SERVICE FOR ANY PORTION OF THE TIME IS CRIMINALLY OMITTED, THE PAY AND ALLOWANCES FOR FAITHFUL SERVICE ARE NOT EARNED. AND, FOR THE PURPOSE OF DETERMINING THE RIGHTS OF THE SOLDIER TO RECEIVE PAY AND AND ALLOWANCES FOR PAST SERVICES, THE FACT OF DESERTION NEED NOT BE ESTABLISHED BY THE FINDINGS OF A COURT- MARTIAL; IT IS SUFFICIENT TO JUSTIFY A WITHHOLDING OF THE MONEYS THAT THE FACT APPEARS UPON THE MUSTER-ROLLS OF THIS COMPANY. * * *

THIS WELL RECOGNIZED AND LONG ESTABLISHED PRINCIPLE OF FORFEITURE OF PAY DUE AN ENLISTED MAN AT DATE OF DESERTION, APPLIED IN THE ARMY, NAVY, AND MARINE CORPS, APPEARS TO HAVE BEEN EQUALLY RECOGNIZED AND FOLLOWED IN THE REVENUE CUTTER SERVICE, WHICH WAS MERGED INTO THE COAST GUARD BY THE ACT OF JANUARY 28, 1915. IT WAS HELD IN 39 MS. COMP. DEC. 722:

IT IS PROVIDED BY PAR. 671, REGULATIONS OF 1894 (U.S. REVENUE CUTTER SERVICE), THAT:

"ALL DESERTERS FROM THE REVENUE CUTTER SERVICE SHALL FORFEIT ALL PAY DUE THEM AT THE TIME OF DESERTION.'

THE AMOUNT FORFEITED MUST NECESSARILY BE THE PAY WHICH HAS BEEN UNPAID, THE PAY WHICH WOULD HAVE BEEN PAID THE DESERTER IF HE HAD NOT DESERTED.

THE REGULATIONS FOR THE REVENUE CUTTER SERVICE OF THE UNITED STATES, 1907, ARTICLE 586, PAGE 120, PROVIDED THAT "A DESERTER FROM THE REVENUE CUTTER SERVICE SHALL FORFEIT ALL PAY DUE HIM AT THE TIME OF DESERTION * *

IT DOES NOT APPEAR THAT THERE IS SUCH A PROVISION IN THE CASE OF THE COAST GUARD; HOWEVER, AS STATED IN UNITED STATES V. LANDERS, THE FORFEITURE FOLLOWS FROM THE CONDITIONS OF THE MAN'S CONTRACT OF ENLISTMENT.

SECTION 4522, REVISED STATUTES, AS AMENDED (SEE U.S.C. TITLE 46, SEC. 576), PROVIDES THAT ANY SEAMAN WHO DESERTS "SHALL FORFEIT ALL OF HIS WAGES OR EMOLUMENTS WHICH HE HAS THEN EARNED.' WHETHER, THEREFORE, THE COAST GUARD IS TREATED AS A PART OF THE MILITARY FORCE OR AS COMING UNDER THE LAWS APPLICABLE TO THE CREWS OF MERCHANT VESSELS, A DESERTER FORFEITS HIS ACCRUED PAY AND ALLOWANCES OR WAGES.

THE FACTS IN THE INSTANT CASE SHOW THAT WHITLEY DESERTED, WAS FOUND GUILTY OF DESERTION BY A GENERAL COURT AND DISHONORABLY DISCHARGED PURSUANT TO APPROVED SENTENCE, BECAUSE OF SAID DESERTION. BY HIS DESERTION HE BREACHED HIS CONTRACT OF ENLISTMENT FOR FAITHFUL SERVICE AND THEREBY FORFEITED ALL PAY DUE AND UNPAID HIM ON DATE OF DESERTION. THE CLAIM WILL BE DISALLOWED.