A-30916, APRIL 9, 1930, 9 COMP. GEN. 441

A-30916: Apr 9, 1930

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AS FOLLOWS: I HAVE THE HONOR TO REQUEST YOUR DECISION IN THE CASE OF MASTON EMORY AVERA. THE FACTS OF WHICH ARE AS FOLLOWS: MASTON EMORY AVERA ENLISTED IN THE MILITARY SERVICE ON APRIL 2. WAS HONORABLY DISCHARGED JULY 29. HE WAS WOUNDED IN THE BATTLE OF SOISSONS. HE WAS GIVEN AN AWARD OF DISABILITY COMPENSATION EFFECTIVE FROM DATE OF DISCHARGE. WHEN HE WAS DISCHARGED ON A SURGEON'S CERTIFICATE OF DISABILITY. COMPENSATION FOR THIS PERIOD WAS EXCLUDED UNDER THE TERMS OF AN AMENDED AWARD APPROVED MAY 2. HE WAS NOTIFIED BY LETTER THAT HE WAS NOT ENTITLED TO COMPENSATION DURING THE PERIOD OF REENLISTMENT. PAYMENTS WERE DISCONTINUED BECAUSE OF HIS FAILURE TO COOPERATE AND REPORT FOR PHYSICAL EXAMINATION.

A-30916, APRIL 9, 1930, 9 COMP. GEN. 441

VETERANS' BUREAU - DISABILITY COMPENSATION - DESERTERS BASED ON SERVICE IN THE ARMY, NAVY, OR MARINE CORPS, PAYMENTS OF WAR RISK DISABILITY COMPENSATION AWARDED ON PRIOR WORLD WAR SERVICE FROM WHICH HONORABLY DISCHARGED, MAY BE RESUMED, TO AN UNAPPREHENDED DESERTER FROM A SUBSEQUENT PEACE-TIME ENLISTMENT, AT THE EXPIRATION OF THE FULL PERIOD OF THE ENLISTMENT FROM WHICH THE MAN DESERTED.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, APRIL 9, 1930:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF MARCH 7, 1930, AS FOLLOWS:

I HAVE THE HONOR TO REQUEST YOUR DECISION IN THE CASE OF MASTON EMORY AVERA, C-275029, THE FACTS OF WHICH ARE AS FOLLOWS:

MASTON EMORY AVERA ENLISTED IN THE MILITARY SERVICE ON APRIL 2, 1917,AND WAS HONORABLY DISCHARGED JULY 29, 1919. ON JULY 21, 1918, HE WAS WOUNDED IN THE BATTLE OF SOISSONS.

ON AUGUST 11, 1919, HE FILED A FORMAL CLAIM FOR COMPENSATION AS RESULT OF WHICH ON SEPTEMBER 5, 1919, HE WAS GIVEN AN AWARD OF DISABILITY COMPENSATION EFFECTIVE FROM DATE OF DISCHARGE. ON APRIL 28, 1920, HE REENLISTED AND SERVED THROUGH DECEMBER 23, 1920, WHEN HE WAS DISCHARGED ON A SURGEON'S CERTIFICATE OF DISABILITY. THE REPORT FROM THE ADJUTANT GENERAL WITH REFERENCE THERETO READS AS FOLLOWS:

"DISCHARGED BECAUSE OF 1. G.S.W. LEFT FOREARM, FCC BOTH BONES AND INJURY MEDIAN NERVE. JULY 21, 1918. SOISSONS. WRIST, ELBOW, AND ROTATION OF FOREARM NORMAL. UNION AND POSITION GOOD. HEALED. HAND, THUMB, 1ST AND MIDDLE FINGERS LIMITED TO 50 PERCENT OF MOTION. IN LINE OF DUTY. DISABLED: FIFTEEN (15) PERCENT.'

COMPENSATION FOR THIS PERIOD WAS EXCLUDED UNDER THE TERMS OF AN AMENDED AWARD APPROVED MAY 2, 1921. HE WAS NOTIFIED BY LETTER THAT HE WAS NOT ENTITLED TO COMPENSATION DURING THE PERIOD OF REENLISTMENT. ON JANUARY 31, 1923, PAYMENTS WERE DISCONTINUED BECAUSE OF HIS FAILURE TO COOPERATE AND REPORT FOR PHYSICAL EXAMINATION. ON JULY 28, 1925, HE REPORTED REQUESTING THAT HIS CLAIM BE REOPENED AND THAT HE BE ALLOWED RETROACTIVE COMPENSATION FROM JANUARY 31, 1923. UPON REEXAMINATION AND THE CONSIDERATION OF EVIDENCE SUBMITTED, THE AWARD WAS REOPENED AND COMPENSATION PAID FROM THE TIME OF DISCONTINUANCE, FEBRUARY 1, 1923.

IN DECEMBER, 1928, THE ADJUTANT GENERAL'S OFFICE REPORTED THAT THE CLAIMANT HAD REENLISTED ON MAY 29, 1922; DESERTED ON NOVEMBER 27, 1922, AND WAS STILL CARRIED AS A DESERTER AT LARGE. THE AWARD WAS THEREUPON DISCONTINUED EFFECTIVE AS OF MAY 28, 1922, RESULTING IN AN OVERPAYMENT OF $3,163.41. THE COMMITTEE ON RECOVERIES, UNDER THE AUTHORITY CONFERRED BY SECTION 28 OF THE WORLD WAR VETERAN'S ACT, AS AMENDED, HAD CONSIDERED THIS ERRONEOUS PAYMENT AND HELD THAT THE CLAIMANT WAS NOT WITHOUT FAULT AND THEREFORE NOT ENTITLED TO RELIEF. RECENTLY CONGRESSMAN WILLIAM C. LANKFORD HAS QUESTIONED THE LEGALITY OF THE ACTION OF THE BUREAU IN DENYING THE CLAIMANT COMPENSATION OVER THE PERIOD DURING WHICH HE WAS IN DESERTION FROM THE LAST ENLISTMENT. IN ACCORDANCE WITH THE REQUEST OF THE CONGRESSMAN, THERE IS TRANSMITTED HEREWITH FOR YOUR CONSIDERATION A LETTER CONTAINING THE ARGUMENTS ADVANCED BY HIM IN OPPOSITION TO THE RULING.

IN THIS CONNECTION ATTENTION IS INVITED TO THE DECISION OF YOUR OFFICE DATED FEBRUARY 2, 1924, AS FOLLOWS:

"FURTHERMORE, SECTION 312 OF THE WAR RISK INSURANCE ACT PROVIDES THAT COMPENSATION SHALL NOT BE PAID WHILE THE PERSON IS IN RECEIPT OF SERVICE PAY. THE EVIDENT PURPOSE AND EFFECT OF THIS AND OTHER PROVISIONS OF THE WAR RISK INSURANCE ACT WOULD SEEM TO BE THAT COMPENSATION IS NOT PAYABLE TO ANY PERSON WHILE STILL OBLIGATED UNDER AN ENLISTMENT FOR ACTIVE SERVICE. IT CAN NOT BE ASSUMED THAT THE LAW WAS INTENDED TO PERMIT A PERSON OBLIGATED FOR ACTIVE SERVICE TO BECOME ENTITLED TO COMPENSATION BY VOLUNTARILY AND WRONGFULLY PLACING HIMSELF IN A NONPAY STATUS; FOR INSTANCE, BY ABSENCE WITHOUT LEAVE OR DESERTION. AN UNAPPREHENDED DESERTER IS NOT RELEASED FROM HIS OBLIGATION FOR ACTIVE SERVICE, AND A SUBSEQUENT ENLISTMENT AND HONORABLE DISCHARGE CAN NOT IPSO FACTO OPERATE TO REMOVE THE CHARGE OF DESERTION FROM THE FORMER ENLISTMENT NOR RELIEVE THE DESERTER FROM THE OBLIGATION THEREUNDER.'

THE PRACTICE OF THE BUREAU AT THE PRESENT TIME IN CASES WHICH RESEMBLE THIS IS TO HOLD THAT COMPENSATION MAY BE PAID FROM AND AFTER THE DATE THE MAN IS ISSUED A DESERTER'S RELEASE FROM THE ARMY. IN THIS CASE, HOWEVER, THE CLAIMANT HAS NEVER SECURED SUCH A RELEASE AND THE CONGRESSMAN STATES THAT HE BELIEVES SUCH A STEP IS NOT NECESSARY AND FEELS THAT THE PAYMENT OF COMPENSATION IN A CASE LIKE THIS SHOULD NOT BE CONTINGENT ON THE QUESTION OF DISCHARGE.

THE 39TH ARTICLE OF WAR FIXED A PERIOD OF LIMITATION OF THREE YEARS FROM TIME OF DESERTION DURING TIME OF PEACE, AFTER THE EXPIRATION OF WHICH THE DESERTER CAN NOT BE MADE AMENABLE TO MILITARY LAW. ANY PERIOD OF ABSENCE FROM THE JURISDICTION OF THE UNITED STATES OR ANY PERIOD DURING WHICH BY REASON OF SOME MANIFEST IMPEDIMENT THE ACCUSED IS NOT AMENABLE TO MILITARY JUSTICE MUST BE EXCLUDED IN COMPUTING THE THREE-YEAR PERIOD. THE THREE- YEAR PERIOD OF LIMITATION EXPIRED IN THIS CASE ON NOVEMBER 27, 1925, UNLESS THERE WAS A PERIOD OF TIME AFTER HIS DESERTION AND PRIOR TO NOVEMBER 27, 1925, WHEN HE WAS ABSENT FROM THE JURISDICTION OF THE UNITED STATES OR OTHERWISE MANIFESTLY NOT AMENABLE TO MILITARY LAW. YOUR DECISION IS THEREFORE REQUESTED AS TO WHETHER OR NOT, IN THE EVENT THIS MAN FURNISHES EVIDENCE SHOWING THAT HE WAS NOT ABSENT FROM THE JURISDICTION OF THE UNITED STATES OR OTHERWISE MANIFESTLY NOT AMENABLE TO MILITARY LAW, HE WAS RELEASED FROM ALL OBLIGATION TO SERVE IN THE MILITARY FORCES ON NOVEMBER 27, 1925, AND ENTITLED TO COMPENSATION FOR PERIODS SUBSEQUENT TO THAT DATE.

IN CONNECTION WITH THIS QUESTION YOU ARE ADVISED THAT THERE IS ALSO PENDING IN THE BUREAU FOR DECISION THE CASE OF HENRY C. PERRINE WHO DURING A PERIOD OF SERVICE IN THE WORLD WAR WHICH TERMINATED HONORABLY ON MARCH 7, 1919, INCURRED DISABILITIES OF COMPENSABLE DEGREE. BY REASON OF HIS STATUS OF A DESERTER AT LARGE FROM THE MARINE CORPS UNDER AN ENLISTMENT BEGINNING MARCH 3, 1920, FROM WHICH HE DESERTED SEPTEMBER 2, 1920, HE IS NOT BEING PAID COMPENSATION. IN THIS CASE THE MARINE CORPS HAS ADVISED THAT THE CLAIMANT'S STATUS IS THAT OF A DESERTER AT LARGE WHOSE TRIAL FOR DESERTION IS NOT PRACTICABLE BY REASON OF THE STATUTE OF LIMITATIONS. THE MARINE HEADQUARTERS RECENTLY ADVISED OVER THE TELEPHONE THAT THERE WAS NO SUCH THING AS A DESERTER'S RELEASE IN THE MARINE CORPS.

AT THE REQUEST OF CAPTAIN THOMAS KIRBY, DISABLED AMERICAN VETERANS, THERE IS INCLOSED COPY OF A LETTER ADDRESSED TO THE BUREAU ON NOVEMBER 1, 1929, IN CONNECTION WITH THIS CLAIM.

YOUR EARLY ADVICES WILL BE APPRECIATED.

UNDER THE PROVISIONS OF SECTION 29 OF THE WAR RISK INSURANCE ACT, AS AMENDED MARCH 4, 1923, 42 STAT. 1521, IT WAS HELD, IN DECISION OF FEBRUARY 2, 1924, 3 COMP. GEN. 465, THAT DESERTION BARRED ALL RIGHT TO DISABILITY COMPENSATION ON ACCOUNT OF SERVICE IN THE ENLISTMENT FROM WHICH DESERTED OR IN ANY OTHER ENLISTMENT PRIOR OR SUBSEQUENT THERETO. SEE, ALSO, FOR COMPARISON 4 COMP. GEN. 171 AND 5 ID. 857, IN THE LATTER OF WHICH, PAGE 859, ARE CITED THE STATUTES FROM WHICH MAY BE TRACED THE CHANGES IN SECTION 29 OF THE WAR RISK INSURANCE ACT AND SECTION 23 OF THE WORLD WAR VETERANS' ACT, HAVING TO DO WITH FORFEITURE OF COMPENSATION FOR CERTAIN OFFENSES INCLUDING DESERTION. THE LATTER SECTION, AS AMENDED BY THE ACT OF MARCH 4, 1925, 43 STAT. 1303, WHICH IS THE EXISTING LAW,ADDED THE FOLLOWING PROVISO, WHICH, BY THE TERMS OF THE ACT, WAS MADE RETROACTIVELY EFFECTIVE FROM APRIL 6, 1917:

* * * PROVIDED FURTHER, THAT DISCHARGE OR DISMISSAL OR FINDING OF GUILT FOR ANY OF THE OFFENSES SPECIFIED IN THIS SECTION SHALL NOT EFFECT THE PAYMENT OF COMPENSATION OR MAINTENANCE AND SUPPORT ALLOWANCES FOR DISABILITIES INCURRED IN OR AGGRAVATED BY SERVICE IN ANY PRIOR OR SUBSEQUENT ENLISTMENT. * * *.

UNDER THE PLAIN TERMS OF THIS PROVISO THE ACT OF THE DESERTION ITSELF OF AVERA FROM THE ARMY AND PERRINE FROM THE MARINE CORPS, BOTH OF WHICH WERE PEACE-TIME DESERTIONS (7 COMP. GEN. 108), MAY NOT BE HELD TO EFFECT PAYMENTS OF DISABILITY COMPENSATION AWARDED FOR DISABILITY INCURRED IN OR AGGRAVATED BY A PRIOR WORLD WAR ENLISTMENT FROM WHICH HONORABLY DISCHARGED.

THE QUESTION FOR DETERMINATION, THEREFORE, IN EACH CASE, IS WHETHER IT IS PROPER AND LEGAL TO RESUME PAYMENTS OF DISABILITY COMPENSATION TO BENEFICIARIES CARRIED ON THE ROLLS OF THE ARMY AND MARINE CORPS AS UNAPPREHENDED DESERTERS, FROM ENLISTMENTS OTHER THAN THAT TO WHICH THE COMPENSATION RELATES, AND IF SO, THE EFFECTIVE DATE OF SUCH RESUMPTION OF PAYMENTS.

THE ONLY PORTION OF THE STATUTE CONTROLLING OR HAVING A DIRECT BEARING ON THE MATTER IS THE FOLLOWING PROVISO IN SECTION 212 OF THE WORLD WAR VETERANS' ACT, AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 798:

* * * AND PROVIDED FURTHER, THAT COMPENSATION UNDER THIS TITLE SHALL NOT BE PAID WHILE THE PERSON IS IN RECEIPT OF ACTIVE SERVICE OR RETIREMENT PAY, THIS PROVISO TO BE EFFECTIVE AS OF APRIL 6, 1917. * * *.

AS CONTENDED BY CONGRESSMAN LANKFORD, THIS PROVISO WAS ENACTED PRIMARILY TO PROHIBIT A VETERAN FROM ACTUALLY RECEIVING ACTIVE SERVICE OR RETIREMENT PAY AND DISABILITY COMPENSATION OVER THE SAME PERIOD OF TIME. IT IS NOT LIKELY THAT THE PROVISO WAS ENACTED WITH PARTICULAR REFERENCE TO THE STATUS OF UNAPPREHENDED DESERTERS. BUT IT HAS BECOME NECESSARY TO APPLY THE PROVISO TO THE STATUS OF UNAPPREHENDED DESERTERS BOTH IN THE ARMY AND THE MARINE CORPS, AND, IN DOING SO, THERE MUST BE CONSIDERED THE PURPOSE AND INTENT OF THE PROVISO, AS WELL AS THE LAWS, DECISIONS, AND MATTERS OF PUBLIC POLICY APPLICABLE TO DESERTERS. OF COURSE, THE UNAPPREHENDED DESERTER IS NOT ENTITLED TO, AND DOES NOT RECEIVE, ACTIVE SERVICE PAY WHILE IN DESERTION OR WHILE ABSENT WITHOUT AUTHORITY, BUT IT IS MOST UNREASONABLE TO CONCLUDE THAT THAT FACT ALONE WOULD BE SUFFICIENT TO ENTITLE THE DESERTER TO DISABILITY COMPENSATION FROM THE DATE HE DESERTED. THAT IS TO SAY, THERE WOULD APPEAR TO BE NO SOUND BASIS FOR HOLDING THAT A VETERAN LEGALLY IN A STATUS UNDER WHICH HE WAS NOT ENTITLED TO DISABILITY COMPENSATION COULD, BY HIS WRONGFUL ACT OF DESERTION, RESTORE HIMSELF TO A STATUS UNDER WHICH HE WOULD BE ENTITLED TO SUCH COMPENSATION.

REFERENCE IS MADE TO DECISION OF FEBRUARY 2, 1924, 3 COMP. GEN. 465, 467, FROM WHICH YOU QUOTE. WHILE THAT DECISION HAS, IN PART, BEEN RENDERED INOPERATIVE BY THE AMENDMENT TO SECTION 29 OF THE WORLD WAR VETERANS' ACT, ABOVE QUOTED, SO FAR AS THE DECISION APPLIED SECTION 312 OF THE FORMER WAR RISK INSURANCE ACT, THE REASONING THEREIN MAY BE APPLIED IN THE INSTANT MATTER. DESERTION DOES NOT TERMINATE THE RELATIONSHIP BETWEEN THE ENLISTED MAN AND THE UNITED STATES, BUT THERE REMAINS AN OBLIGATION TO SERVE. IN THE CASE OF RE GRIMLEY, 137 U.S. 147, 151, THE SUPREME COURT STATED:

BUT IN THIS TRANSACTION SOMETHING MORE IS INVOLVED THAN THE MAKING OF A CONTRACT, WHOSE BREACH EXPOSES TO AN ACTION FOR DAMAGES. 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 OTHER WORDS, IT IS A GENERAL RULE ACCOMPANYING A CHANGE OF STATUS, THAT WHEN ONCE ACCOMPLISHED IT IS NOT DESTROYED BY THE MERE MISCONDUCT OF ONE OF THE PARTIES, AND THE GUILTY PARTY CAN NOT PLEAD HIS OWN WRONG AS WORKING A TERMINATION AND DESTRUCTION THEREOF. * * *.

IN ADDITION, IT MAY BE STATED THAT IT WOULD BE AGAINST PUBLIC POLICY AS TENDING TO ENCOURAGE, OR PLACE A PREMIUM ON, DESERTION OF A DISABLED VETERAN WERE PERMITTED, BY AN ACT OF DESERTION, TO ACQUIRE A RIGHT TO AGAIN RECEIVE PAYMENT OF DISABILITY COMPENSATION--- POSSIBLY, IN SOME CASES, IN AMOUNTS LARGER THAN HIS ACTIVE SERVICE PAY. IT WOULD BE ONE TAKING ADVANTAGE OF HIS OWN WRONG. WHILE, AS PREVIOUSLY STATED AND AS CONTENDED BY CONGRESSMAN LANKFORD, NEITHER THE ACT OF DESERTION FROM A SUBSEQUENT ENLISTMENT, NOR A DISCHARGE OR OTHER PUNISHMENT AS A RESULT THEREOF, MAY BE CONSIDERED AS PRECLUDING PAYMENTS OF DISABILITY COMPENSATION BASED ON PRIOR HONORABLE SERVICE DURING THE WORLD WAR, THE CONSIDERATIONS ABOVE STATED IMPEL THE CONCLUSION THAT THE RESUMPTION OF PAYMENTS OF DISABILITY COMPENSATION TO UNAPPREHENDED DESERTERS FROM EITHER THE ARMY OR THE NAVY MAY NOT BE MADE EFFECTIVE FROM THE DATE OF DESERTION, BUT ONLY FROM AND AFTER THE LAST DATE THE VETERAN COULD HAVE RECEIVED ACTIVE SERVICE PAY UNDER THE ENLISTMENT FROM WHICH HE DESERTED.

IN THE ARMY A DESERTER MAY BE BROUGHT UNDER MILITARY CONTROL AND MADE TO SERVE OUT THE TIME LOST IN DESERTION, EVEN AFTER THE TERMINATION OF THE ENLISTMENT PERIOD. SEE THE ACT OF APRIL 27, 1914, 38 STAT. 353, AND THE ONE HUNDRED AND SEVENTH ARTICLE OF WAR, ACT OF JUNE 4, 1920, 41 STAT. 809. FOR THE PURPOSE OF THIS DECISION IT IS UNNECESSARY TO DECIDE WHETHER SUCH AUTHORITY TO THUS APPREHEND A DESERTER AND MAKE HIM SERVE TERMINATES OR DOES NOT TERMINATE WITH THE EXPIRATION OF THE THREE YEAR PERIOD BEYOND WHICH A DESERTER FROM THE ARMY IN TIME OF PEACE MAY NOT BE TRIED AND PUNISHED. THIRTY-NINTH ARTICLE OF WAR, 41 STAT. 794. SEE IN THIS CONNECTION 15 OP.ATTY.GEN. 152, 162; 16 ID. 171, ID. 396; 20 COMP. DEC. 751, 756, 9 COMP. GEN. 223, ID. 114, 117. IN ANY EVENT, THE TIME REQUIRED TO BE SERVED IN THE ARMY, IF AND WHEN APPREHENDED, WOULD NOT EXCEED A PERIOD EQUAL TO THE REMAINDER OF THE ENLISTMENT AFTER THE DATE OF DESERTION WHICH WOULD BE THE MAXIMUM PERIOD DURING WHICH THE DESERTER COULD HAVE RECEIVED ACTIVE SERVICE PAY UNDER THE ENLISTMENT IF HE HAD NOT DESERTED OR HAD BEEN, IN DUE TIME, APPREHENDED AND RESTORED TO DUTY. THE NAVY AND MARINE CORPS THERE IS NO LAW OR REGULATION WHICH REQUIRES AN ENLISTED MAN OF THE NAVY OR MARINE CORPS TO MAKE GOOD ANY TIME LOST BY DESERTION. SEE 20 COMP. DEC. 751, 756, ABOVE CITED, WHICH WAS CITED AND FOLLOWED IN 3 COMP. GEN. 874, AND 7 ID. 523. THE ACT OF AUGUST 29, 1916, 39 STAT. 580, AS AMENDED BY THE ACT OF JULY 1, 1918, 40 STAT. 717, AUTHORIZES AND REQUIRES EXTENSIONS OF ENLISTMENT IN THE NAVY AND MARINE CORPS FOR ABSENCES DUE TO MISCONDUCT, BUT THE DECISIONS NOW HOLD THAT ABSENCES IN DESERTION AND OTHER UNAUTHORIZED ABSENCES ARE NOT DUE TO MISCONDUCT AND DO NOT AUTOMATICALLY EXTEND THE PERIOD OF ENLISTMENT. COMP. GEN. 1026; 5 ID. 189, 192. THEREFORE, IN THE NAVY AND MARINE CORPS ACTIVE SERVICE PAY COULD HAVE BEEN RECEIVED BY THE DESERTER ONLY FOR A PERIOD EQUAL TO THE REMAINDER OF THE ENLISTMENT AFTER THE DESERTION.

SINCE THE ONLY LEGAL BASIS FOR DENYING DISABILITY COMPENSATION TO THE UNAPPREHENDED DESERTERS IN EITHER THE ARMY OR THE MARINE CORPS IS THE STATUTORY INHIBITION AGAINST RECEIPT OF THE SAME WHILE IN RECEIPT OF ACTIVE SERVICE PAY, ALSO, AND SINCE THE DESERTERS WOULD NOT UNDER ANY CIRCUMSTANCES, EITHER IN THE ARMY OR THE MARINE CORPS, BE ENTITLED TO ACTIVE SERVICE PAY UNDER THE ENLISTMENT EXCEPT FOR A PERIOD EQUAL TO THE REMAINDER OF HIS TERM OF ENLISTMENT, IT MAY BE CONCLUDED THAN WHEN THE DISABILITY COMPENSATION HAS BEEN WITHHELD FOR A PERIOD EQUAL TO THE REMAINDER OF THE TERM OF ENLISTMENT, AFTER DESERTION, THERE IS THEREAFTER NO LEGAL BASIS FOR A FURTHER WITHHOLDING. IN OTHER WORDS, THE RIGHT TO DISABILITY COMPENSATION MUST BE REGARDED AS THE SAME AS THOUGH THERE HAD BEEN NO DESERTION AND THE MAN HAD SERVED OUT THE FULL PERIOD OF HIS ENLISTMENT.

YOU ARE ADVISED, THEREFORE, THAT THE RULE MAY BE APPLIED WHEN CONSIDERING SERVICE IN THE ARMY, NAVY, OR MARINE CORPS, THAT PAYMENTS OF WAR RISK DISABILITY COMPENSATION AWARDED ON THE BASIS OF PRIOR WORLD WAR SERVICE FROM WHICH HONORABLY DISCHARGED, MAY BE RESUMED, TO AN UNAPPREHENDED DESERTER FROM A SUBSEQUENT PEACE-TIME ENLISTMENT, AT THE EXPIRATION OF THE FULL PERIOD OF THE ENLISTMENT FROM WHICH THE MAN DESERTED.

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