A-27469, JUNE 8, 1929, 8 COMP. GEN. 635

A-27469: Jun 8, 1929

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PAY - ABSENCE IN HANDS OF CIVIL AUTHORITIES - ARMY ENLISTED MAN WHEN THE TRIAL OF AN ENLISTED MAN OF THE ARMY CHARGED WITH TRANSPORTING AND POSSESSION OF INTOXICATING LIQUORS RESULTS IN A "HUNG JURY" AND HE IS RELEASED UPON MOTION OF THE PROSECUTING ATTORNEY TO DISMISS THE CHARGE. IT IS NOT ESTABLISHED THAT HIS ABSENCE FROM DUTY BY REASON OF ARREST. TRIAL WAS DUE TO HIS OWN MISCONDUCT. PAY FOR THE PERIOD SO ABSENT FROM DUTY IS AUTHORIZED. 1929: THERE HAS BEEN RECEIVED YOUR REQUEST FOR DECISION WHETHER YOU ARE AUTHORIZED TO PAY A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF CHARLES W. IN VIEW OF NOTATION APPEARING THEREON THAT THE SOLDIER WAS ABSENT IN HANDS OF CIVIL AUTHORITIES. HIS RIGHT TO PAY AND ALLOWANCES AFTER DATE OF ARREST AND TO TRAVEL PAY IS DEPENDENT UPON THE FINAL ACTION OF THE CIVIL AUTHORITIES.

A-27469, JUNE 8, 1929, 8 COMP. GEN. 635

PAY - ABSENCE IN HANDS OF CIVIL AUTHORITIES - ARMY ENLISTED MAN WHEN THE TRIAL OF AN ENLISTED MAN OF THE ARMY CHARGED WITH TRANSPORTING AND POSSESSION OF INTOXICATING LIQUORS RESULTS IN A "HUNG JURY" AND HE IS RELEASED UPON MOTION OF THE PROSECUTING ATTORNEY TO DISMISS THE CHARGE, IT IS NOT ESTABLISHED THAT HIS ABSENCE FROM DUTY BY REASON OF ARREST, DETENTION, AND TRIAL WAS DUE TO HIS OWN MISCONDUCT, AND PAY FOR THE PERIOD SO ABSENT FROM DUTY IS AUTHORIZED.

COMPTROLLER GENERAL MCCARL TO MAJ. E. J. O-HARA, UNITED STATES ARMY, JUNE 8, 1929:

THERE HAS BEEN RECEIVED YOUR REQUEST FOR DECISION WHETHER YOU ARE AUTHORIZED TO PAY A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF CHARLES W. PAGE, R-1377945, PRIVATE, SPEC. 6TH CL., 2ND D.B. GUARD CO., COVERING PAY FROM FEBRUARY 7, 1929, TO APRIL 11, 1929, IN VIEW OF NOTATION APPEARING THEREON THAT THE SOLDIER WAS ABSENT IN HANDS OF CIVIL AUTHORITIES, OLATHE, KANS., FROM FEBRUARY 7, 1929, TO APRIL 12, 1929; TRIED FOR TRANSPORTING AND POSSESSION OF INTOXICATING LIQUORS, MARCH 7, 1929. RESULT,"NO DECISION.'

ARMY REGULATIONS 35-2480, PARAGRAPH 11 (A), PROVIDES:

A. A SOLDIER DISCHARGED WHILE IN THE HANDS OF THE CIVIL AUTHORITIES AWAITING TRIAL SHOULD BE PAID ONLY TO INCLUDE THE DATE OF HIS ARREST AND SHOULD NOT BE PAID TRAVEL PAY. 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. SEE 9 COMP. DEC. 249.

IN CASES WHERE THE SOLDIER HAS NOT BEEN CONVICTED ON THE CHARGE BROUGHT BY THE CIVIL AUTHORITIES BUT IS RELEASED WITHOUT TRIAL ON ACCOUNT OF PERFORMING AN ACT WHICH MAKES REPARATION FOR THE OFFENSE, IT HAS BEEN HELD THAT HE WAS NOT ENTITLED TO PAY DURING THE PERIOD HE WAS IN THE HANDS OF THE CIVIL AUTHORITIES, AS IT WAS BY REASON OF HIS OWN FAULT THAT HE HAD NOT RENDERED THE SERVICE CONTEMPLATED BY HIS CONTRACT OF ENLISTMENT. COMP. GEN. 496.

AN AFFIDAVIT OF HOWARD E. PAYNE, COUNTY ATTORNEY, JOHNSON COUNTY, OLATHE, KANS., DATED MAY 14, 1929, IS AS FOLLOWS:

IN REPLY TO YOUR LETTER OF THE 13TH, PLEASE BE ADVISED THAT CHARLES W. PAGE WAS ARRESTED ON THE CHARGE OF TRANSPORTING AND POSSESSION OF INTOXICATING LIQUORS. HE WAS CONFINED IN THE COUNTY JAIL OF JOHNSON COUNTY, KANSAS, FOR 29 DAYS AWAITING TRIAL. HIS TRIAL WAS ON THE 7TH DAY OF MARCH, WHICH RESULTED IN A "HUNG JURY.' HE WAS RELEASED UPON A MOTION OF THE COUNTY ATTORNEY TO DISMISS SAID CHARGE ON THE 12TH DAY OF APRIL, 1929. THIS MAKES A TOTAL OF 67 DAYS THAT HE WAS CONFINED IN THE COUNTY JAIL.

IN VIEW OF THE DISAGREEMENT OF THE JURY AS TO THE GUILT OF THE SOLDIER AND THE FURTHER FACT OF DISMISSAL OF THE CHARGE BY THE PROSECUTING ATTORNEY, IT IS NOT ESTABLISHED THAT HIS ABSENCE FROM DUTY BY REASON OF HIS ARREST, CONFINEMENT, AND TRIAL WAS DUE TO HIS OWN MISCONDUCT.

YOU ARE AUTHORIZED TO PAY THE VOUCHER IF THE SOLDIER IS OTHERWISE ENTITLED TO THE PAYMENT.