A-41035, MARCH 11, 1932, 11 COMP. GEN. 342

A-41035: Mar 11, 1932

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IS IN CONFINEMENT AWAITING TRIAL ON A CHARGE OF DESERTION. WAS NOT BEING HELD BEYOND THE TERM OF HIS ENLISTMENT FOR THE CONVENIENCE OF THE GOVERNMENT. IS NOT ENTITLED TO PAY AND ALLOWANCES. TRANSMITTING A SUPPLEMENTAL PAY ROLL ON WHICH IS BORNE THE NAME OF PRIVATE JOHNNIE RICE. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO CREDIT PAY THEREON AFTER EXPIRATION OF HIS ENLISTMENT WHILE AWAITING TRIAL ON A CHARGE OF DESERTION WHICH RESULTED IN HIS BEING FOUND GUILTY OF THE OFFENSE. THE FACTS NOTED ON THE VOUCHER ARE AS FOLLOWS: ENLISTED DECEMBER 29. UNDER THE TERMS OF THE SENTENCE ALL PAY DUE OR TO BECOME DUE IS FORFEITED. IT IS UNDERSTOOD YOUR INQUIRY IS WITH RESPECT TO SETTING UP A CREDIT FOR APPLICATION AGAINST AUTHORIZED STOPPAGES.

A-41035, MARCH 11, 1932, 11 COMP. GEN. 342

PAY-ARMY-ENLISTED MAN AWAITING TRIAL AFTER EXPIRATION OF TERM OF ENLISTMENT AN ENLISTED MAN OF THE ARMY WHO, AT THE TIME OF EXPIRATION OF HIS ENLISTMENT PERIOD, IS IN CONFINEMENT AWAITING TRIAL ON A CHARGE OF DESERTION, WHERE SUCH TRIAL RESULTED IN CONVICTION, WAS NOT BEING HELD BEYOND THE TERM OF HIS ENLISTMENT FOR THE CONVENIENCE OF THE GOVERNMENT, AND IS NOT ENTITLED TO PAY AND ALLOWANCES, AS FOR ACTUAL MILITARY SERVICE.

COMPTROLLER GENERAL MCCARL TO MAJ. E. C. MORTON, UNITED STATES ARMY, MARCH 11, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 12, 1932, TRANSMITTING A SUPPLEMENTAL PAY ROLL ON WHICH IS BORNE THE NAME OF PRIVATE JOHNNIE RICE, A.S. 6541067, 20TH PHOTO SECTION, AIR CORPS, AND REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO CREDIT PAY THEREON AFTER EXPIRATION OF HIS ENLISTMENT WHILE AWAITING TRIAL ON A CHARGE OF DESERTION WHICH RESULTED IN HIS BEING FOUND GUILTY OF THE OFFENSE.

THE FACTS NOTED ON THE VOUCHER ARE AS FOLLOWS:

ENLISTED DECEMBER 29, 1928, FOR THREE YEARS. NO TIME LOST PRIOR TO DATE OF DESERTION. DESERTED AT BROOKS FIELD, TEXAS, JULY 22, 1929. ACCOUNTS AT DESERTION PAID ON VOU NO. 2806, OCT. 1929, ACCTS OF MAJ. C. NEWTON, JR., F.D. ITEMS UNSATISFIED: DUE FUND, 20TH PHOTO SECTION, A.C., BROOKS FIELD, TEXAS, $15.27. DUE US CLOTHING, 1930, $5.98.

SURRENDERED AT FT. OMAHA, NEBR., DEC. 18, 1931. CONVICTED OF DESERTION AND SENTENCED TO DD SUSP. FORF ALL PAY AND ALLOWANCES, AND TO CONF 6 MOS, GCMO NO. 6, HQ. 7TH CORPS AREA, DATED JANUARY 13, 1932. NORMAL DATE OF E.T.S.: DECEMBER 28, 1931. TOTAL CLOTHING DRAWN SINCE DATE OF RET TO MIL CONTROL $13.10. DUE US $12.66 CLOTHING OVDRN AT DATE OF NORMAL EXPIRATION OF SERVICE, DEC. 28, 1931.

UNDER THE TERMS OF THE SENTENCE ALL PAY DUE OR TO BECOME DUE IS FORFEITED, AND PAY FOR TTHE PERIOD STATED COULD IN NO CIRCUMSTANCES, ON THE PRESENT RECORD, BE PAID TO THE MAN. IT IS UNDERSTOOD YOUR INQUIRY IS WITH RESPECT TO SETTING UP A CREDIT FOR APPLICATION AGAINST AUTHORIZED STOPPAGES.

ORIGINAL ENLISTMENTS IN THE REGULAR ARMY ARE, UNDER SECTION 27 OF THE NATIONAL DEFENSE ACT AS AMENDED BY THE ACT OF JUNE 4, 1920, 41 STAT. 775, FOR A PERIOD OF ONE OR THREE YEARS AT THE OPTION OF THE SOLDIER. ARMY REGULATIONS 615-360, PARAGRAPH 2, PROVIDE THAT AN ENLISTED MAN WILL BE DISCHARGED ON THE DATE UPON WHICH HE SHALL HAVE COMPLETED HIS TERM OF SERVICE, SUBJECT TO THE PROVISIONS OF THE ONE HUNDRED AND SEVENTH ARTICLE OF WAR, EXCEPT WHEN AWAITING TRIAL OR RESULT OF TRIAL, OR WHEN RETAINED IN THE SERVICE UNDER AUTHORITY OF THE SECRETARY OF WAR.

THE ONE HUNDRED AND SEVENTH ARTICLE OF WAR, 41 STAT. 809, PROVIDES:

SOLDIERS TO MAKE GOOD TIME LOST.--- EVERY SOLDIER WHO IN AN EXISTING OR SUBSEQUENT ENLISTMENT DESERTS THE SERVICE OF THE UNITED STATES OR WITHOUT PROPER AUTHORITY ABSENTS HIMSELF FROM HIS ORGANIZATION, STATION, OR DUTY FOR MORE THAN ONE DAY, OR WHO IS CONFINED FOR MORE THAN ONE DAY UNDER SENTENCE, OR WHILE AWAITING TRIAL AND DISPOSITION OF HIS CASE, IF THE TRIAL RESULTS IN CONVICTION, OR THROUGH THE INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUOR, OR THROUGH DISEASE OR INJURY THE RESULT OF HIS OWN MISCONDUCT, RENDERS HIMSELF UNABLE FOR MORE THAN ONE DAY TO PERFORM DUTY, SHALL BE LIABLE TO SERVE, AFTER HIS RETURN TO A FULL DUTY STATUS, FOR SUCH PERIOD AS SHALL, WITH THE TIME HE MAY HAVE SERVED PRIOR TO SUCH DESERTION, UNAUTHORIZED ABSENCE, CONFINEMENT, OR INABILITY TO PERFORM DUTY, AMOUNT TO THE FULL TERM OF THAT PART OF HIS ENLISTMENT PERIOD WHICH HE IS REQUIRED TO SERVE WITH HIS ORGANIZATION BEFORE BEING FURLOUGHED TO THE ARMY RESERVE.

THE REGULAR ARMY RESERVE WAS ABOLISHED BY SECTION 30 OF THE ACT OF JUNE 4, 1920, 41 STAT. 775.

ARMY REGULATIONS 615-360, PARAGRAPHS 2-D AND 5-C, PRESCRIBE THAT---

D. IF AWAITING TRIAL OR RESULT OF TRIAL BY COURT-MARTIAL.--- SHOULD AN ENLISTED MAN ON THE DATE ON WHICH HE WOULD OTHERWISE BE DISCHARGED BE AWAITING TRIAL, OR RESULT OF TRIAL, BY COURT-MARTIAL, HE WILL NOT BE DISCHARGED UNTIL ANNOUNCEMENT OF SENTENCE OR RECEIPT OF AN ORDER PUBLISHING THE CASE OR OTHERWISE DISPOSING OF IT. FOR THE EFFECTIVE DATE OF DISCHARGE SEE PARAGRAPH 5C.

C. WHEN RETAINED IN SERVICE AWAITING TRIAL OR RESULT OF TRIAL.--- WHEN AN ENLISTED MAN IS RETAINED IN SERVICE AS PRESCRIBED IN PARAGRAPH 2D, THE EFFECTIVE DATE OF HIS DISCHARGE DEPENDS UPON THE RESULT OF HIS TRIAL, OR THE DISPOSITION MADE OF THE CASE, E.G., AN ENLISTED MAN WHO HAS PREVIOUSLY LOST NO TIME WHICH HE IS REQUIRED TO MAKE GOOD UNDER THE 107TH ARTICLE OF WAR IS CONFINED AWAITING TRIAL 30 DAYS PREVIOUS TO THE DATE ON WHICH HE WOULD OTHERWISE HAVE BEEN DISCHARGED, AND THE RESULT OF HIS TRIAL IS NOT ANNOUNCED UNTIL 10 DAYS SUBSEQUENT TO THAT DATE; THEN---

(1) IF CONVICTED.--- THE EFFECTIVE DATE OF HIS DISCHARGE WILL BE 30 DAYS AFTER THE EXPIRATION OF HIS TERM OF CONFINEMENT.

(2) IF ACQUITTED.--- THE EFFECTIVE DATE OF HIS DISCHARGE WILL BE THE DATE OF ANNOUNCEMENT OF ACQUITTAL, AND HE WILL BE REGARDED AS HAVING BEEN RETAINED IN SERVICE 10 DAYS FOR THE CONVENIENCE OF THE GOVERNMENT.

ENLISTMENT IS A CONTRACT BETWEEN THE SOLDIER AND THE GOVERNMENT. IT IS FOR A DEFINITE PERIOD OF MILITARY SERVICE, AND THE SOLDIER'S RIGHT TO PAY IS GOVERNED THEREBY. IF SERVICE HAS BEEN HONEST AND FAITHFUL THE SOLDIER IS ENTITLED TO A DISCHARGE UPON THE EXPIRATION OF THIS TERM OF SERVICE AS FIXED BY HIS CONTRACT.

THE ONE HUNDRED AND SEVENTH ARTICLE OF WAR IS HEADED "SOLDIER TO MAKE GOOD TIME LOST," AND, AFTER SETTING OUT THE CHARACTER OF ABSENCES DURING HIS ENLISTMENT REQUIRED TO BE MADE GOOD, PROVIDES THAT HE "SHALL BE LIABLE TO SERVE, AFTER HIS RETURN TO FULL-DUTY STATUS.'

THE FACTS SHOW THAT RICE ENLISTED DECEMBER 29, 1928, FOR THREE YEARS. THE DEFINITE PERIOD OF TIME FOR WHICH HE AGREED TO SERVE TERMINATED DECEMBER 28, 1931. THE OBLIGATION OF THE GOVERNMENT WAS TO GIVE HIM PAY AND ALLOWANCES FOR THIS DEFINITE PERIOD WHERE THEY WERE OTHERWISE NOT FORFEITED. AFTER THE EXPIRATION OF HIS ENLISTMENT HE IS ENTITLED UNDER THE LAWS AND REGULATIONS TO PAY AND ALLOWANCES ONLY IF HELD BEYOND THE ENLISTMENT PERIOD FOR THE CONVENIENCE OF THE GOVERNMENT, OR FOR THE PURPOSE OF MAKING GOOD TIME LOST "AFTER HIS RETURN TO FULL-DUTY STATUS.' ON DECEMBER 28, 1931, THE DATE OF EXPIRATION OF HIS ENLISTMENT, HE WAS IN CONFINEMENT AWAITING TRIAL, WHICH RESULTED IN HIS CONVICTION, AS ANNOUNCED BY COURT-MARTIAL SENTENCE APPROVED JANUARY 13, 1932. THIS TIME BETWEEN DATE OF EXPIRATION OF ENLISTMENT AND JANUARY 13, 1932, WAS NOT ,SERVICE" FOR MAKING GOOD TIME LOST, AS HE HAD NOT RETURNED "TO FULL-DUTY STATUS.' SEE 9 COMP. GEN. 323. ACCORDINGLY, YOU ARE ADVISED THAT YOU ARE NOT AUTHORIZED TO CREDIT ON THE ROLL RETURNED PAY AND ALLOWANCES FOR THE PERIOD FROM DECEMBER 29, 1931, TO JANUARY 13, 1932.