A-4118, JULY 18, 1924, 4 COMP. GEN. 71

A-4118: Jul 18, 1924

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IS AN "ALLOWANCE" WITHIN THE MEANING OF A COURT-MARTIAL SENTENCE FORFEITING ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE. IF UNPAID IS FORFEITED BY SUCH SENTENCE. WHEREIN WAS DISALLOWED HIS CLAIM FOR THE REENLISTMENT BONUS OF THREE MONTHS' PAY UPON REENLISTMENT IN THE ARMY OCTOBER 8. WHEN HE WAS HONORABLY DISCHARGED. WAS HONORABLY DISCHARGED FOR THE CONVENIENCE OF THE GOVERNMENT MARCH 23. FURTHER APPEARS THAT CLAIMANT WAS TRIED BY GENERAL COURT MARTIAL FOR VIOLATION OF THE NINETY-FOURTH ARTICLE OF WAR AND SENTENCED BY ORDER NO. 468. THE UNEXECUTED PORTION OF THE SENTENCE WAS REMITTED AND CLAIMANT HONORABLY RESTORED TO DUTY MARCH 23. THE CLAIM FOR REENLISTMENT BONUS WAS DISALLOWED FOR THE REASON THAT IS WAS FORFEITED BY THE COURT-MARTIAL SENTENCE.

A-4118, JULY 18, 1924, 4 COMP. GEN. 71

HONORABLE DISCHARGE GRATUITY - FORFEITURE BY COURT-MARTIAL SENTENCE THE HONORABLE DISCHARGE GRATUITY WHICH ACCRUED UNDER THE ACT OF MAY 11, 1908, 35 STAT. 110, TO A SOLDIER UPON REENLISTMENT, IS AN "ALLOWANCE" WITHIN THE MEANING OF A COURT-MARTIAL SENTENCE FORFEITING ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE, AND IF UNPAID IS FORFEITED BY SUCH SENTENCE.

DECISION BY ACTING COMPTROLLER GENERAL GINN, JULY 18, 1924:

HARRY L. INGRAM HAS REQUESTED REVIEW OF SETTLEMENT NO. W-895135, DATED MAY 21, 1923, WHEREIN WAS DISALLOWED HIS CLAIM FOR THE REENLISTMENT BONUS OF THREE MONTHS' PAY UPON REENLISTMENT IN THE ARMY OCTOBER 8, 1919.

IT APPEARS THAT THE CLAIMANT ENTERED THE MILITARY SERVICE ON SEPTEMBER 30, 1915, AS A PRIVATE, TROOP F, NINTH CAVALRY, AND SERVED CONTINUOUSLY AS A PRIVATE UNTIL OCTOBER 7, 1919, WHEN HE WAS HONORABLY DISCHARGED. REENLISTED ON OCTOBER 8, 1919, FOR THREE YEARS, AND WAS HONORABLY DISCHARGED FOR THE CONVENIENCE OF THE GOVERNMENT MARCH 23, 1922. FURTHER APPEARS THAT CLAIMANT WAS TRIED BY GENERAL COURT MARTIAL FOR VIOLATION OF THE NINETY-FOURTH ARTICLE OF WAR AND SENTENCED BY ORDER NO. 468, HEADQUARTERS SOUTHERN DEPARTMENT, DATED JUNE 7, 1920, TO SERVE ONE YEAR IN THE UNITED STATES DISCIPLINARY BARRACKS, FORT LEAVENWORTH, KANS., AND TO FORFEIT ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE WHILE UNDER CONFINEMENT. THE UNEXECUTED PORTION OF THE SENTENCE WAS REMITTED AND CLAIMANT HONORABLY RESTORED TO DUTY MARCH 23, 1921. THE CLAIM FOR REENLISTMENT BONUS WAS DISALLOWED FOR THE REASON THAT IS WAS FORFEITED BY THE COURT-MARTIAL SENTENCE.

THE ACT OF MAY 11, 1908, 35 STAT. 110, PROVIDES:

THAT HEREAFTER ANY PRIVATE SOLDIER, MUSICIAN OR TRUMPETER HONORABLY DISCHARGED AT THE TERMINATION OF HIS FIRST ENLISTMENT PERIOD WHO REENLISTS WITHIN THREE MONTHS OF THE DATE OF SAID DISCHARGE SHALL, UPON SUCH REENLISTMENT, RECEIVE AN AMOUNT EQUAL TO THREE MONTHS' PAY AT THE RATE HE WAS RECEIVING AT THE TIME OF HIS DISCHARGE.

THE ENLISTMENT PERIOD OF ACTIVE SERVICE WAS FOUR YEARS UNDER THE ACT OF AUGUST 24, 1912, 37 STAT. 590, WHICH WAS IN FORCE AT THE TIME OF CLAIMANT'S ORIGINAL ENLISTMENT. BY SECTION 7 OF THE ACT OF MAY 18, 1917, 40 STAT. 81, ALL ENLISTMENTS IN THE ARMY WERE CONTINUED IN FORCE DURING THE EMERGENCY. CLAIMANT PASSED INTO HIS SECOND ENLISTMENT PERIOD SEPTEMBER 30, 1919, BEING THE NEXT DAY AFTER HE COMPLETED HIS FIRST ENLISTMENT PERIOD OF FOUR YEARS, AND UPON REENLISTMENT OF OCTOBER 8, 1919, HE WAS IMMEDIATELY ENTITLED TO THE REENLISTMENT BONUS IN AN AMOUNT EQUAL TO THREE MONTHS' PAY OF THE GRADE OF PRIVATE HELD BY HIM ON SEPTEMBER 29, 1919, 26 COMP. DEC. 715; 27 ID. 40. THE PAYMENT OF SUCH BONUS WAS NOT MADE TO CLAIMANT PRIOR TO THE TIME THAT HE WAS SENTENCED TO FORFEIT "ALL PAY AND ALLOWANCES" DUE OR TO BECOME DUE. IT IS FOR DETERMINATION WHETHER THE REENLISTMENT BONUS WAS WITHIN THE TERM "PAY AND ALLOWANCES" AND FORFEITED BY THE COURT MARTIAL SENTENCE. A COURT-MARTIAL SENTENCE IS PENAL AND MUST BE STRICTLY CONSTRUED; ONLY SUCH EMOLUMENTS AS ARE WITHIN THE DESCRIPTIVE TERM "PAY AND ALLOWANCES" ARE FORFEITED IN THIS CASE. COMP. DEC. 439; 22 ID. 470.

THE CASE OF LANDERS V. UNITED STATES, 92 U.S. 77, WAS A CLAIM FOR PAY AND BOUNTY BETWEEN SENTENCE TO FORFEIT ALL PAY AND ALLOWANCES AND A SUBSEQUENT HONORABLE DISCHARGE. THE CLAIMANT HAD RECOVERED JUDGMENT IN THE COURT OF CLAIMS AND THE UNITED STATES PROSECUTED THE APPEAL. IN THE OPINION OF THE SUPREME COURT IT IS SAID:

THE BOUNTY WHICH THE PETITIONER CLAIMED WAS INCLUDED IN THE ALLOWANCES FORFEITED. UNDER THE TERM "ALLOWANCES," EVERYTHING WAS EMBRACED WHICH COULD BE RECOVERED FROM THE GOVERNMENT BY THE SOLDIER IN CONSIDERATION OF HIS ENLISTMENT AND SERVICES, EXCEPT THE STIPULATED MONTHLY COMPENSATION DESIGNATED AS PAY. THIS IS SUBSTANTIALLY THE CONCLUSION REACHED BY THE LATE ATTORNEY GENERAL, MR. HOAR, AFTER FULL CONSIDERATION OF THE STATUTES BEARING UPON THE QUESTION (OPINIONS OF ATTORNEYS GENERAL, VOL. XIII, PP. 198, 199); AND SUCH, WE ARE INFORMED, HAS BEEN THE UNIFORM RULING OF THE WAR DEPARTMENT.

WHETHER, THEREFORE, THE AMOUNT PAYABLE UNDER THE ACT OF MAY 11, 1908, BE TERMED A BOUNTY FOR ENLISTING OR A GRATUITY, IT WAS ONE OF THE ITEMS "WHICH COULD BE RECOVERED FROM THE GOVERNMENT BY THE SOLDIER IN CONSIDERATION OF HIS ENLISTMENT AND SERVICE," AND IS INCLUDED IN THE TERM ALLOWANCES UNDER THE LANDERS DECISION, AND WAS FORFEITED BY THE COURT- MARTIAL SENTENCE FORFEITING ALL PAY AND ALLOWANCES DUE AT DATE OF PROMULGATION OF SENTENCE. 3 COMP. DEC. 676.