A-27997, SEPTEMBER 12, 1929, 9 COMP. GEN. 114

A-27997: Sep 12, 1929

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PAY - ENLISTMENTS - ABSENCE IN CUSTODY OF CIVIL AUTHORITIES WHERE AN ENLISTED MAN OF THE NAVY IS WITHDRAWN FROM SERVICE AND IN THE CUSTODY OF THE CIVIL AUTHORITIES FOR AN OFFENSE ALLEGED TO HAVE BEEN COMMITTED BEFORE HIS ENLISTMENT HE IS NOT ENTITLED TO PAY OR ALLOWANCE FOR THE PERIOD OF SUCH ABSENCE IRRESPECTIVE OF HIS ACQUITTAL OR THE DISMISSAL OF THE CHARGE AGAINST HIM. THE RULE IS OTHERWISE WHERE THE OFFENSE CHARGED BY THE CIVIL AUTHORITIES IS ALLEGED TO HAVE BEEN COMMITTED DURING HIS ENLISTMENT. THE RIGHT TO PAY UNDER A CONTRACT OF ENLISTMENT IS IN SOME SITUATIONS FOR DETERMINATION UNDER THE WELL-SETTLED PRINCIPLES WHICH REGULATE CONTRACTS GENERALLY. AN ENLISTMENT IS NOT TERMINATED BEFORE EXPIRATION OF THE TERM MERELY BECAUSE OF ABSENCE IN THE CUSTODY OF THE CIVIL AUTHORITIES.

A-27997, SEPTEMBER 12, 1929, 9 COMP. GEN. 114

PAY - ENLISTMENTS - ABSENCE IN CUSTODY OF CIVIL AUTHORITIES WHERE AN ENLISTED MAN OF THE NAVY IS WITHDRAWN FROM SERVICE AND IN THE CUSTODY OF THE CIVIL AUTHORITIES FOR AN OFFENSE ALLEGED TO HAVE BEEN COMMITTED BEFORE HIS ENLISTMENT HE IS NOT ENTITLED TO PAY OR ALLOWANCE FOR THE PERIOD OF SUCH ABSENCE IRRESPECTIVE OF HIS ACQUITTAL OR THE DISMISSAL OF THE CHARGE AGAINST HIM; NOR IN SUCH CIRCUMSTANCES MAY THE PERIOD OF SUCH ABSENCE BE COUNTED FOR LONGEVITY INCREASE OF PAY OR ENLISTMENT ALLOWANCE ON HONORABLE DISCHARGE AND REENLISTMENT WITHIN THREE MONTHS. THE RULE IS OTHERWISE WHERE THE OFFENSE CHARGED BY THE CIVIL AUTHORITIES IS ALLEGED TO HAVE BEEN COMMITTED DURING HIS ENLISTMENT. THE RIGHT TO PAY UNDER A CONTRACT OF ENLISTMENT IS IN SOME SITUATIONS FOR DETERMINATION UNDER THE WELL-SETTLED PRINCIPLES WHICH REGULATE CONTRACTS GENERALLY. AN ENLISTMENT IS NOT TERMINATED BEFORE EXPIRATION OF THE TERM MERELY BECAUSE OF ABSENCE IN THE CUSTODY OF THE CIVIL AUTHORITIES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, SEPTEMBER 12, 1929:

THERE HAS BEEN RECEIVED YOUR SIXTH INDORSEMENT OF JULY 13, 1929, RESPECTING THE CASE OF PVT. JAMES LOVING WHITE, UNITED STATES MARINE CORPS. IT APPEARS WHITE WAS ACCEPTED FOR ENLISTMENT AT KANSAS CITY, MO., APRIL 14, 1927, WAS ENLISTED IN THE MARINE CORPS AT THE MARINE BARRACKS, PARRIS ISLAND, S.C., APRIL 20, 1927; THAT ON APRIL 22, 1927, TELEGRAPHIC INFORMATION WAS RECEIVED FROM THE SHERIFF OF WASHITA COUNTY, OKLA., THAT HE HELD A WARRANT FOR THE ARREST OF WHITE FOR THE CRIME OF PERJURY COMMITTED MARCH 11, 1927, AND REQUESTED INFORMATION WHETHER WHITE WOULD BE TURNED OVER TO HIM; AND THAT AFTER CORRESPONDENCE WITH THE SHERIFF (WHO SIGNED AN AGREEMENT TO RETURN WHITE TO THE CUSTODY OF THE MARINE CORPS AT THE PLACE AT WHICH HE WAS RECEIVED SHOULD HE BE ACQUITTED, OR IF CONVICTED AFTER SATISFYING THE SENTENCE OF THE COURT, OR UPON OTHER DISPOSITION OF HIS CASE IF THE NAVAL AUTHORITIES SHOULD THEN DESIRE HIS RETURN), WHITE WAS TURNED OVER TO HIM JUNE 17, 1927. IT IS STATED THAT AFTER REACHING OKLAHOMA WHITE WAS ADMITTED TO BAIL IN THE SUM OF $2,500; THAT THE CASE AGAINST HIM WAS DISMISSED OCTOBER 9, 1928, BY REASON OF INSUFFICIENT EVIDENCE; AND THAT THE OKLAHOMA AUTHORITIES RETURNED WHITE TO PARRIS ISLAND JUNE 14, 1929. IN VIEW OF THE AGREEMENT SIGNED BY THE SHERIFF OF WASHITA COUNTY, OKLA., THE NAVY DEPARTMENT HAS DETERMINED THAT WHITE IS BLAMELESS FOR FAILURE TO RETURN AFTER THE DISMISSAL OF THE CRIMINAL ACTION AGAINST HIM OCTOBER 9, 1928, UNTIL HE WAS RETURNED BY THE AUTHORITIES OF OKLAHOMA PURSUANT TO THE SHERIFF'S AGREEMENT TO THAT EFFECT. YOU SUGGEST THAT DURING THE ENTIRE PERIOD OF HIS ABSENCE FROM JUNE 17, 1927, TO JUNE 14, 1929, THE ENLISTMENT CONTRACT OF WHITE WAS IN FULL EFFECT AND THAT HE RETAINED HIS STATUS AS A PRIVATE IN THE MARINE CORPS UNDER HIS CONTRACT OF ENLISTMENT, BUT STATE THAT NO PAY WAS PAID TO HIM PENDING THE OUTCOME OF HIS TRIAL BY THE CIVIL AUTHORITIES. ON THIS STATE OF FACTS YOU SUBMIT THE FOLLOWING QUESTIONS:

(A) IS WHITE ENTITLED TO PAY FOR THE PERIOD OF HIS ABSENCE IN THE CUSTODY OF THE CIVIL AUTHORITIES FROM JUNE 17, 1927, TO JUNE 14, 1929?

(B) IS WHITE ENTITLED TO COUNT THE PERIOD OF HIS ABSENCE FROM JUNE 17, 1927, TO JUNE 14, 1929, FOR LONGEVITY PAY PURPOSES IN THE EVENT OF REENLISTMENT AT THE EXPIRATION OF HIS CURRENT TERM OF ENLISTMENT?

(C) WILL WHITE BE REQUIRED TO MAKE GOOD THE TIME FROM JUNE 17, 1927, TO JUNE 14, 1929, BEFORE HIS CURRENT ENLISTMENT IN THE U.S. MARINE CORPS CAN BE REGARDED AS COMPLETE FOR THE PURPOSE OF DETERMINING HIS RIGHT TO ENLISTMENT ALLOWANCE IN THE EVENT HE IS REENLISTED AT EXPIRATION OF HIS PRESENT TERM OF ENLISTMENT?

YOU REFER IN THIS CONNECTION TO DECISION OF JULY 2, 1929, A-25225, WHERE AN ENLISTED MAN OF THE ARMY WAS ARRESTED BY THE CIVIL AUTHORITIES FOR AN OFFENSE ALLEGED TO HAVE BEEN COMMITTED DURING HIS SERVICE AS AN ENLISTED MAN AND AFTER BEING HELD BY SUCH AUTHORITIES FOR SOME TIME WAS RELEASED WITHOUT TRIAL AND RETURNED TO HIS STATION, AND IT WAS HELD THAT HE WAS ENTITLED TO PAY DURING THE PERIOD OF DETENTION, THERE HAVING BEEN NO CONVICTION BY THE CIVIL AUTHORITIES NOR REPARATION BY HIM TO AVOID TRIAL. THIS HOLDING WAS BUT AN APPLICATION OF THE RULE LONG FOLLOWED IN THE ACCOUNTING OFFICES. SEE VOLUME 1, DIGEST, SECOND COMPTROLLER'S DECISIONS, EDITION OF 1865, PARAGRAPH 891, WHERE IT WAS HELD:

A SOLDIER UNDER ARREST BY THE CIVIL AUTHORITY ON A CRIMINAL CHARGE, WILL BE ENTITLED TO HIS PAY FOR THE TIME HE WAS IN CUSTODY, PROVIDED HE IS TRIED AND ACQUITTED, OR DISCHARGED WITHOUT TRIAL.--- CASE OF DENNIS CLARY, JANUARY, 8, 1844.

AND PARAGRAPH 911, WHERE IT WAS HELD:

WHEN A SOLDIER IS CONVICTED BY THE CIVIL AUTHORITY OF A CRIME, AND IS THEREBY WITHDRAWN FROM THE SERVICE OF THE UNITED STATES THROUGH HIS OWN FAULT, ALL PAY, ETC., DUE AT THE TIME OF HIS CONVICTION IS FORFEITED. * *

WHETHER, HOWEVER, THE RULE IS APPLICABLE TO THE FACTS OF THIS CASE IS NOT SO CLEAR, AS THE RULE SEEMS TO HAVE BEEN FORMULATED PRIMARILY WITH RESPECT TO OFFENSES OR ALLEGED OFFENSES COMMITTED DURING THE MAN'S MILITARY SERVICE; AND THE REASON FOR THE RULE IS NOT SO CLEAR WHERE A MAN IS WITHDRAWN FROM THE MILITARY SERVICE ALMOST AT THE INSTANT OF ITS COMMENCEMENT TO ANSWER CRIMINAL CHARGES PENDING AGAINST HIM AT THE TIME OF HIS ENLISTMENT OR LODGED AGAINST HIM SOON AFTER HIS ENLISTMENT FOR AN OFFENSE ALLEGED TO HAVE BEEN COMMITTED IMMEDIATELY PRIOR TO HIS ACCEPTANCE FOR ENLISTMENT. IN THIS CASE THE OFFENSE IS ALLEGED TO HAVE BEEN COMMITTED MARCH 11, 1927. THE MAN TENDERED HIMSELF FOR ENLISTMENT SHORTLY THEREAFTER AND WAS ACCEPTED FOR ENLISTMENT ON APRIL 14, 1927, OR 34 DAYS AFTER THE COMMISSION OF THE ALLEGED OFFENSE. WITHIN TWO DAYS AFTER HIS ACTUAL ENLISTMENT HIS SURRENDER WAS ASKED, HE WAS WITHDRAWN FROM MILITARY SERVICE AND IMPRISONED, SOME TWO MONTHS LATER HE WAS TURNED OVER TO THE CIVIL AUTHORITIES, THOSE AUTHORITIES ADMITTED HIM TO BAIL, ENABLING HIM TO RESUME HIS CIVIL OCCUPATION, AND HE REMAINED ABSENT FROM MILITARY SERVICE TWO YEARS LACKING TWO DAYS. DURING THIS ENTIRE PERIOD NO SERVICE WAS RENDERED TO THE UNITED STATES; AND IT WOULD REQUIRE A MOST DEFINITE, CLEAR, AND WELL-ESTABLISHED RULE OF LAW TO JUSTIFY PAYMENT OF PAY FOR A PERIOD OF TWO YEARS IN SUCH CIRCUMSTANCES.

THAT PERSONS SUSPECTED OF CRIMINALITY NORMALLY ARE NOT ENLISTED APPEARS FROM THE MARINE CORPS MANUAL, PARAGRAPH 2-52 (14) (23), WHICH PROVIDES:

(14) WHEN THE OFFICER OR NONCOMMISSIONED OFFICER IN CHARGE OF THE STATION HAS REASON TO BELIEVE THAT THE MAN IS "WANTED" BY THE CIVIL OR MILITARY AUTHORITIES SUCH INQUIRY WILL BE MADE AS THE CIRCUMSTANCES OF THE CASE MAY APPEAR TO WARRANT.

(23) RECRUITING OFFICERS WILL PERSONALLY QUESTION EVERY APPLICANT AS TO WHETHER HE HAS EVER BEEN CONVICTED OF A CRIME BY ANY CIVIL COURT, OR WHETHER OR NOT HE HAS EVER COMMITTED AN ACT SUCH AS WOULD RENDER HIM LIABLE TO CRIMINAL PROSECUTION IN SUCH A COURT. IF HE ADMITS SUCH CONVICTIONS OR THE COMMISSION OF SUCH ACT, HE MUST BE REJECTED.

OBVIOUSLY THE RULE TO WHICH YOU REFER WAS NOT FORMULATED FOR THE BENEFIT OF PERSONS WHO SEEK REFUGE FROM PROSECUTION FOR CRIMINAL OFFENSES BY ENLISTING IN THE MILITARY SERVICE.

THERE IS NO DOUBT THAT THE CONTRACT OF ENLISTMENT WAS NOT AFFECTED OR DISTURBED BY WHITE'S ABSENCE, IN RE GRIMLEY, 137 U.S. 147, 151, WHERE THE SUPREME COURT REMARKED:

* * * ENLISTMENT IS A CONTRACT; BUT IT IS ONE OF THOSE CONTRACTS WHICH CHANGES THE STATUS; AND, WHERE THAT IS CHANGED, NO BREACH OF THE CONTRACT DESTROYS THE NEW STATUS OR RELIEVES FROM THE OBLIGATIONS WHICH ITS EXISTENCE IMPOSES. * * *

IN 6 OP.ATTY.GEN. 187, 190, IT WAS SAID:

ENLISTMENTS INTO THE ARMY, MADE UNDER THE INDUCEMENTS HELD OUT BY THE LAWS OF THE UNITED STATES, ARE CONTRACTS; AND, ALTHOUGH THE GOVERNMENT BE A PARTY, STILL THE CONTRACTS "OUGHT TO BE CONSTRUED ACCORDING TO THOSE WELL-ESTABLISHED PRINCIPLES WHICH REGULATE CONTRACTS GENERALLY.' (HUIDEKOPER'S LESSEE V. DOUGLASS, III CRANCH, P. 70.

BOTH IN THE CASE CITED BY THE ATTORNEY GENERAL AND IN THE MATTER BEING CONSIDERED BY HIM THE APPLICATION OF THE "WELL-ESTABLISHED PRINCIPLES WHICH REGULATE CONTRACTS GENERALLY" WAS FOR THE BENEFIT OF CLAIMANTS AGAINST THE GOVERNMENT, BUT NEITHER OF THE CASES SUGGESTS THAT IT IS ONLY IN SUCH CASES THE PRINCIPLES OF CONTRACTS GENERALLY ARE TO APPLY TO THE CONTRACTS OF THE GOVERNMENT. IN UNITED STATES V. LANDERS, 92 U.S. 77, 79, THE SUPREME COURT REFERS TO THE CONTRACT OF ENLISTMENT AS REQUIRING FAITHFUL SERVICE, STATED THAT THE CONTRACT WAS AN ENTIRETY AND IF SERVICE FOR ANY PORTION OF THE TIME IS CRIMINALLY OMITTED, THE PAY AND ALLOWANCES FOR FAITHFUL SERVICE ARE NOT EARNED, THUS INDICATING THAT MORE WAS NECESSARY TO GIVE A RIGHT TO PAY AND ALLOWANCES THAN THE STATUS AND THE STATUTORY PROVISIONS FOR PAY AND ALLOWANCES; AND THE COURT IN THE GRIMLEY CASE, PAGE 150, REFERRED TO THE ENLISTMENT CONTRACT IN THE FOLLOWING LANGUAGE:

* * * THIS CASE INVOLVES A MATTER OF CONTRACTUAL RELATION BETWEEN THE PARTIES; AND THE LAW OF CONTRACTS, AS APPLICABLE THERETO, IS WORTHY OF NOTICE. * * *

THE CITATIONS SEEM APPROPRIATE AS INDICATING THAT WHILE THE CONTRACT OF ENLISTMENT CHANGES THE STATUS, AND A BREACH OF THE CONTRACT DOES NOT DESTROY THE STATUS, YET THERE MAY BE ELEMENTS OF THE LAW OF CONTRACTS APPLICABLE TO THE RIGHT TO PAY. WHILE, OF COURSE, THERE WAS NO "CRIMINAL" OMISSION OF SERVICE HERE IN THE SENSE USED BY THE SUPREME COURT IN THE LANDERS CASE, IT IS NOT BELIEVED THAT IT IS ONLY IN CASES OF A "CRIMINAL" OMISSION OF SERVICE THAT PAY MAY NOT BE EARNED. THE CONGRESS HAS INDICATED SOME SITUATIONS WHERE PAY MAY NOT BE EARNED NOTWITHSTANDING THE EXISTENCE OF THE MILITARY STATUS AND AMENABILITY TO MILITARY AUTHORITY, FOR EXAMPLE, THE ACT OF APRIL 27, 1914, 38 STAT. 353, AND THE ACT OF AUGUST 29, 1916, 39 STAT. 580, BOTH MODIFIED BY THE ACT OF MAY 17, 1926, 44 STAT. 557, AND IT SEEMS CLEAR THAT A STATUTE DENYING PAY IN A PARTICULAR SITUATION IS NOT NECESSARY TO DETERMINE WHETHER PAY HAS BEEN EARNED UNDER THE CONTRACT OF ENLISTMENT AS THE DENIAL OF PAY BY REASON OF "CRIMINAL" OMISSION TO RENDER FAITHFUL SERVICE IS REACHED BY JUDICIAL DECISION UNDER THE LAW OF CONTRACTS. SO, ALSO, IS THE ESTABLISHED PROCEDURE THAT A DESERTION WORKS A FORFEITURE OF ACCRUED AND UNPAID PAY AND ALLOWANCES, SEE THE LANDERS CASE, AND THIS IS BUT AN APPLICATION TO THE SITUATION OF THE LAW OF CONTRACTS IN RESPECT TO DAMAGES FOR A BREACH, AS NO STATUTE PROVIDES FOR SUCH A FORFEITURE, ALTHOUGH STATUTES DO RECOGNIZE THAT SUCH IS THE RESULT, AS FOR EXAMPLE, SECTION 4818, REVISED STATUTES, WHICH PROVIDES THAT "ALL FORFEITURES ON ACCOUNT OF DESERTION" SHALL BE SET ASIDE FOR THE SUPPORT OF THE SOLDIERS' HOME. TO THE SAME EFFECT IS THE ACT OF JUNE 7, 1900, 31 STAT. 697, PROVIDING THAT ALL FORFEITURES ON ACCOUNT OF DESERTION SHALL BE PASSED TO THE CREDIT OF THE NAVAL HOSPITAL FUND. SO, ALSO, SECTION 5 OF THE ACT OF MARCH 2, 1889, 25 STAT. 870, AUTHORIZES PAYMENT OF PAY AND BOUNTY DUE THE SOLDIERS THEREIN CONSIDERED WHEN THE CHARGE OF DESERTION SHALL HAVE BEEN REMOVED AS THEREIN PROVIDED FOR. THE ACT OF FEBRUARY 9, 1889, 25 STAT. 657, PROVIDING FOR SAVINGS DEPOSITS BY ENLISTED MEN OF THE NAVY AND THE ACT OF JUNE 12, 1906, 34 STAT. 246, PROVIDING FOR DEPOSITS BY ENLISTED MEN OF THE ARMY, CONTAIN AN ABSOLUTE FORFEITURE OF SUCH SAVINGS DEPOSITS BY DESERTION.

I THEREFORE CONCLUDE THAT NOTWITHSTANDING THERE IS A CONTRACT WHICH CHANGES THE STATUS; THAT THE OMISSION OF SERVICE UNDER THE CONTRACT DOES NOT TERMINATE THE STATUS; AND THAT ALTHOUGH PAY AND ALLOWANCES ACCRUING TO ONE IN SUCH A SERVICE ARE FIXED BY STATUTE, NEVERTHELESS THE COURTS AND THE CONGRESS HAVE RECOGNIZED THAT IN SOME SITUATIONS THE RIGHT TO PAY UNDER THE CONTRACT OF ENLISTMENT IS FOR DETERMINATION UNDER THE WELL- SETTLED PRINCIPLES WHICH REGULATE CONTRACTS GENERALLY. THE CONTRACT IS FOR SERVICE IN A MILITARY CAPACITY. THE CONSIDERATION MOVING TO THE GOVERNMENT IS THE SERVICE, AND THE CONSIDERATION MOVING TO THE MAN IS THE PAY AND ALLOWANCES PROVIDED BY LAW. WHERE BY REASON OF THE ENVIRONMENT, CIRCUMSTANCES, OR SITUATION OF THE MAN BEFORE HIS APPLICATION AND ACCEPTANCE FOR ENLISTMENT, HE HAS COME UNDER SUSPICION OF THE COMMISSION OF A CRIME, HOWEVER, INNOCENTLY, AND AFTER HE HAS BEEN ENLISTED HE IS WITHDRAWN FROM SERVICE, AND BECAUSE OF THE COMITY EXISTING BETWEEN THE MILITARY SERVICES AND THE CIVIL AUTHORITIES IS DELIVERED TO THE CIVIL AUTHORITIES FOR TRIAL, SO FAR AS THE GOVERNMENT IS CONCERNED THERE HAS BEEN A FAILURE OF CONSIDERATION MOVING TO THE GOVERNMENT, WHICH MUST, IN EQUITY AND GOOD CONSCIENCE, BAR ANY CLAIM AGAINST THE GOVERNMENT FOR THE PAYMENT OF THE PAY AND ALLOWANCES DURING THE PERIOD THE AGREED SERVICES ARE NOT RENDERED, AND THIS WITHOUT REFERENCE TO THE OUTCOME OF THE TRIAL BY THE CIVIL AUTHORITIES OR THE RELEASE OF THE MAN WITHOUT TRIAL, AND ALSO WITHOUT OTHERWISE NECESSARILY AFFECTING THE CONTRACT OF ENLISTMENT.

YOUR QUESTION (A) IS ACCORDINGLY ANSWERED THAT WHITE IS NOT ENTITLED TO PAY FOR THE PERIOD OF HIS ABSENCE IN THE CUSTODY OF THE CIVIL AUTHORITIES FROM JUNE 17, 1927, TO JUNE 14, 1929.

QUESTION (B) IS ANSWERED BY SAYING THAT LONGEVITY IS PAYABLE FOR EACH FOUR YEARS OF SERVICE, THERE WAS NO SERVICE RENDERED BY WHITE BETWEEN JUNE 17, 1927, AND JUNE 14, 1929, AND, ACCORDINGLY, THAT PERIOD MAY NOT BE COUNTED FOR LONGEVITY INCREASE OF PAY.

QUESTION (C) MAY NOT BE ANSWERED IN THE FORM IN WHICH IT IS PHRASED. WHETHER WHITE SHOULD BE REQUIRED OR MAY BE PERMITTED TO MAKE GOOD THE TIME LOST IS NOT A MATTER FOR DETERMINATION BY THE GENERAL ACCOUNTING OFFICE. REENLISTMENT ALLOWANCE IS PAYABLE ON THE BASIS OF THE NUMBER OF COMPLETE YEARS SERVED IN THE ENLISTMENT PERIOD FROM WHICH LAST DISCHARGED; DURING THE PERIOD FROM JUNE 17, 1927, TO JUNE 14, 1929, NO SERVICE IN THE MARINE CORPS WAS RENDERED BY WHITE AND THAT PERIOD MAY NOT BE COUNTED AS SERVICE FOR THE PURPOSE OF REENLISTMENT ALLOWANCES. IF WHITE SHOULD SERVE FOR AN EQUIVALENT PERIOD AFTER THE DATE HIS PRESENT ENLISTMENT IS DUE TO EXPIRE AND THE TOTAL OF HIS SERVICE AUTHORIZED TO BE COUNTED IS EQUAL TO FOUR FULL YEARS, ON HIS HONORABLE DISCHARGE AND REENLISTMENT WITHIN THREE MONTHS HE WOULD BE ENTITLED TO ENLISTMENT ALLOWANCE BASED UPON FOUR YEARS OF SERVICE.