A-2798, NOVEMBER 13, 1924, 4 COMP. GEN. 442

A-2798: Nov 13, 1924

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NAVY PAY - VOID SUMMARY COURT-MARTIAL SENTENCES A SENTENCE BY A SUMMARY COURT-MARTIAL WHICH DIRECTED THE FORFEITURE OF PAY OF AN ENLISTED MAN OF THE NAVY FOR AN ALLEGED OFFENSE WHICH WAS NOT COGNIZABLE BY A NAVAL COURT-MARTIAL WAS VOID. THE ENLISTED MAN IS ENTITLED TO A REFUND OF ANY SUMS DEDUCTED FROM HIS PAY BY REASON OF SUCH VOID SENTENCE. THE CHECK AGE WAS MADE IN AUGUST. WAS FURTHER INFORMED THAT IN ORDER TO TAKE THE COURSE OF INSTRUCTIONS IN THE TORPEDOMANS' SCHOOL IT WOULD BE NECESSARY FOR HIM. IT IS APPARENT THAT THE ALLEGED OFFENSE FOR WHICH HE WAS TRIED AND CONVICTED AMOUNTED TO A BREACH OF CONTRACT ONLY. UPON REVIEW THE SETTLEMENT IS REVERSED AND $120 IS CERTIFIED DUE CLAIMANT.

A-2798, NOVEMBER 13, 1924, 4 COMP. GEN. 442

NAVY PAY - VOID SUMMARY COURT-MARTIAL SENTENCES A SENTENCE BY A SUMMARY COURT-MARTIAL WHICH DIRECTED THE FORFEITURE OF PAY OF AN ENLISTED MAN OF THE NAVY FOR AN ALLEGED OFFENSE WHICH WAS NOT COGNIZABLE BY A NAVAL COURT-MARTIAL WAS VOID, AND THE ENLISTED MAN IS ENTITLED TO A REFUND OF ANY SUMS DEDUCTED FROM HIS PAY BY REASON OF SUCH VOID SENTENCE.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 13, 1924:

LEO JOSEPH LABELLE REQUESTED REVIEW OF SETTLEMENT NO. M-17366, DATED DECEMBER 12, 1923, DISALLOWING HIS CLAIM FOR REFUND OF $120, CHECKED AGAINST HIS ACCOUNT PURSUANT TO SUMMARY COURT-MARTIAL SENTENCE APPROVED AUGUST 11, 1921. THE CHECK AGE WAS MADE IN AUGUST, 1921, RECREDITED TO HIS ACCOUNT IN JANUARY, 1922, AND AGAIN CHECKED IN OCTOBER, 1922.

IT APPEARS THAT THE SPECIFICATIONS IN THE COURT-MARTIAL ALLEGED THAT THE ACCUSED:

* * * HAVING BEEN ORDERED TO THE PACIFIC COAST TORPEDO STATION, KEYPORT, WASHINGTON, FOR A COURSE OF INSTRUCTIONS IN THE TORPEDOMANS' SCHOOL, DID, ON OR ABOUT JULY 10, 1921, AFTER HAVING BEEN INFORMED BY THE INSPECTOR OF ORDNANCE IN CHARGE THAT HE, THE SAID LEO JOSEPH LABELLE, GUNNER'S MATE SECOND CLASS, U.S. NAVY, HAD INSUFFICIENT TIME TO SERVE TO BE ALLOWED TO TAKE THE COURSE OF INSTRUCTIONS IN THE TORPEDOMANS' SCHOOL, AND HE, THE SAID LEO JOSEPH LABELLE, GUNNER'S MATE SECOND CLASS, U.S. NAVY, WAS FURTHER INFORMED THAT IN ORDER TO TAKE THE COURSE OF INSTRUCTIONS IN THE TORPEDOMANS' SCHOOL IT WOULD BE NECESSARY FOR HIM, THE SAID LEO JOSEPH LABELLE, GUNNER'S MATE SECOND CLASS, U.S. NAVY, TO EITHER EXTEND HIS ENLISTMENT OR SIGN AN AGREEMENT TO REENLIST UPON THE EXPIRATION OF HIS CURRENT ENLISTMENT, WHEREUPON HE, THE SAID LEO JOSEPH LABELLE, GUNNER'S MATE SECOND CLASS, U.S. NAVY, DID AGREE TO SIGN AN AGREEMENT TO REENLIST, AND THAT ON AUGUST 10, 1921, THE SAID LEO JOSEPH LABELLE, GUNNER'S MATE SECOND CLASS, U.S. NAVY, UPON WHICH BEING CALLED BEFORE THE INSPECTOR OF ORDNANCE IN CHARGE TO SIGN THE ABOVE REFERRED TO AGREEMENT TO REENLIST, DID THEN AND THERE REFUSE TO SIGN SAID AGREEMENT.

THE JUDGE ADVOCATE GENERAL IN LETTER TO THE COMMANDING OFFICER, U.S.S. TEXAS, DATED JANUARY 18, 1922, EXPRESSED THE OPINION THAT THE FACTS ALLEGED IN THE SPECIFICATIONS FAILED TO CONSTITUTE AN OFFENSE COGNIZABLE BY NAVAL COURT-MARTIAL, AND ALSO INFORMED THE COMMANDING OFFICER THAT THE SECRETARY OF THE NAVY DIRECTED THAT THE PROCEEDINGS, FINDING, AND SENTENCE IN THE CASE BE SET ASIDE, AND THAT HIS RECORD BE CORRECTED ACCORDINGLY.

IT IS APPARENT THAT THE ALLEGED OFFENSE FOR WHICH HE WAS TRIED AND CONVICTED AMOUNTED TO A BREACH OF CONTRACT ONLY, AND DID NOT CONSTITUTE AN OFFENSE COGNIZABLE BY A NAVAL COURT-MARTIAL, AND THEREFORE HE FORFEITED NO PAY BY REASON OF SAID SENTENCE. 2 COMP. GEN. 445.

UPON REVIEW THE SETTLEMENT IS REVERSED AND $120 IS CERTIFIED DUE CLAIMANT.