A-41464, APRIL 5, 1932, 11 COMP. GEN. 377

A-41464: Apr 5, 1932

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WAS TRIED BY GENERAL COURT-MARTIAL FOR DESERTION. IS NOT ENTITLED EITHER TO ENLISTMENT OR TRAVEL ALLOWANCE BY REASON OF SUCH EXTENSION OF ENLISTMENT. IS ENTITLED TO THE PAY OF HIS RATING HELD AT THE TIME FROM DATE OF SURRENDER TO THE NAVAL AUTHORITIES TO DATE OF APPROVAL OF SENTENCE. WHO IS NOW SERVING A SENTENCE IMPOSED BY A GENERAL COURT-MARTIAL AT THE UNITED STATES NAVAL PRISON. FROM THE PAPERS SUBMITTED IT APPEARS THAT HOBSON WAS ACCEPTED FOR ENLISTMENT IN THE NAVY. HE WAS TRANSFERRED TO PARRIS ISLAND. WHERE HE WAS TRIED BY GENERAL COURT-MARTIAL. WAS DESIGNATED AS THE PLACE FOR THE EXECUTION OF SO MUCH OF THE SENTENCE AS RELATES TO CONFINEMENT. REFERENCE IS ALSO MADE TO THE HOLDING IN COURT MARTIAL ORDER NO. 2 OF FEBRUARY.

A-41464, APRIL 5, 1932, 11 COMP. GEN. 377

PAY AND ALLOWANCES - DESERTION - NAVY ENLISTED MAN AN ENLISTED MAN OF THE NAVY, WHO, WHILE SERVING IN A 4-YEAR ENLISTMENT, EXECUTED AN AGREEMENT TO EXTEND HIS ENLISTMENT FOR A PERIOD OF TWO YEARS FROM THE DATE OF EXPIRATION THEREOF, AND WHO, PRIOR TO THE EXPIRATION OF HIS ORIGINAL ENLISTMENT, DESERTED, AND REMAINED IN DESERTION UNTIL ABOUT ONE MONTH AFTER THE EXTENSION BECAME EFFECTIVE WHEN HE SURRENDERED, WAS TRIED BY GENERAL COURT-MARTIAL FOR DESERTION, FOUND GUILTY, AND SENTENCES AS APPROVED TO BE REDUCED IN RATING, TO BE IMPRISONED FOR A TERM OF MONTHS WITH LOSS OF PAY DURING CONFINEMENT, THEN TO BE DISHONORABLY DISCHARGED, IS NOT ENTITLED EITHER TO ENLISTMENT OR TRAVEL ALLOWANCE BY REASON OF SUCH EXTENSION OF ENLISTMENT, BUT IS ENTITLED TO THE PAY OF HIS RATING HELD AT THE TIME FROM DATE OF SURRENDER TO THE NAVAL AUTHORITIES TO DATE OF APPROVAL OF SENTENCE.

COMPTROLLER GENERAL MCCARL TO LIEUT. CHARLES D. KIRK, UNITED STATES NAVY, APRIL 5, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 19, 1932, REQUESTING DECISION OF CERTAIN QUESTIONS ARISING IN THE CASE OF FRED HOBSON, APPRENTICE SEAMAN, UNITED STATES NAVY, WHO IS NOW SERVING A SENTENCE IMPOSED BY A GENERAL COURT-MARTIAL AT THE UNITED STATES NAVAL PRISON, PARRIS ISLAND, S.C.

FROM THE PAPERS SUBMITTED IT APPEARS THAT HOBSON WAS ACCEPTED FOR ENLISTMENT IN THE NAVY, AND ENLISTED AT THE NAVAL TRAINING STATION, GREAT LAKES, ILL., NOVEMBER 25, 1927, FOR A PERIOD OF FOUR YEARS; THAT ON MAY 22, 1930, WHILE SERVING ON BOARD THE U.S.S. HANNIBAL, WITH HOME YARD AT PHILADELPHIA, HE EXECUTED AN AGREEMENT TO EXTEND HIS SAID ENLISTMENT FOR A PERIOD OF TWO YEARS FROM THE DATE OF EXPIRATION THEREOF; THAT ON SEPTEMBER 18, 1930, WHILE SERVING ON THE UNITED STATES RECEIVING SHIP AT SAN FRANCISCO, CALIF., IN THE RATING OF SHIP'S COOK, THIRD CLASS, HE DESERTED AND REMAINED IN DESERTION UNTIL HE SURRENDERED HIMSELF AT THE UNITED STATES NAVAL TRAINING STATION, GREAT LAKES, ILL., ON DECEMBER 22, 1931; THAT ON JANUARY 5, 1932, HE WAS TRANSFERRED TO PARRIS ISLAND, S.C., WHERE HE WAS TRIED BY GENERAL COURT-MARTIAL, FOUND GUILTY OF DESERTION, AND SENTENCED, AS APPROVED JANUARY 27, 1932, TO BE REDUCED TO THE RATING OF APPRENTICE SEAMAN, TO BE CONFINED FOR A PERIOD OF 17 MONTHS, THEN TO BE DISHONORABLY DISCHARGED FROM THE UNITED STATES NAVAL SERVICE AND TO SUFFER ALL THE OTHER ACCESSORIES OF SAID SENTENCE, AS PRESCRIBED BY NAVAL COURTS AND BOARDS, SECTION 883; AND THAT THE NAVAL PRISON, PARRIS ISLAND, C., WAS DESIGNATED AS THE PLACE FOR THE EXECUTION OF SO MUCH OF THE SENTENCE AS RELATES TO CONFINEMENT. REFERENCE IS ALSO MADE TO THE HOLDING IN COURT MARTIAL ORDER NO. 2 OF FEBRUARY, 1928, THAT:

AN AGREEMENT TO EXTEND AN ENLISTMENT, UNLESS CANCELED PRIOR TO EFFECTIVE DATE THEREOF AS PROVIDED IN ARTICLE D-1006 (3), BUREAU OF NAVIGATION MANUAL, WOULD BE EFFECTIVE IN A CASE WHERE AN ENLISTED MAN IS AWAITING ACTION OF A GENERAL COURT-MARTIAL OR IN A STATUS OF DESERTION AT THE TIME SUCH EXTENSION OF ENLISTMENT BECOMES OPERATIVE.

IT IS STATED THAT IN THIS CASE THE AGREEMENT TO EXTEND THE ENLISTMENT WAS NOT CANCELED PRIOR TO ITS EFFECTIVE DATE. YOU REQUEST DECISION (1) AS TO WHETHER HOBSON IS ENTITLED TO BE CREDITED WITH ENLISTMENT AND TRAVEL ALLOWANCE BY REASON OF HIS EXTENSION OF ENLISTMENT,WHICH BECAME EFFECTIVE WHILE HE WAS IN DESERTION, AND (2) AS HIS ENLISTMENT AS EXTENDED WILL NOT EXPIRE UNTIL NOVEMBER 24, 1933, WHETHER HE IS ENTITLED TO BE CREDITED THE PAY OF SHIP'S COOK, THIRD CLASS, FROM THE DATE OF HIS RETURN FROM DESERTION TO THE DATE OF THE APPROVAL OF THE COURT-MARTIAL SENTENCE.

IN 9 COMP. GEN. 385, IN THE CASE OF AN ENLISTED MAN OF THE MARINE CORPS WHO WAS ABSENT OVER LEAVE IN THE HANDS OF THE CIVIL AUTHORITIES SERVING A SENTENCE UPON CONVICTION OF A CRIMINAL OFFENSE WHEN HIS ENLISTMENT FOR FOUR YEARS, WHICH HAD BEEN EXTENDED TWO YEARS, EXPIRED, AND WHO, UPON RELEASE BY THE CIVIL AUTHORITIES RETURNED TO HIS STATION, WAS TRIED BY A SUMMARY COURT-MARTIAL FOR THE ABSENCE OVER LEAVE, FOUND GUILTY, AND SENTENCED AS APPROVED TO LOSE $7 PER MONTH FOR SIX MONTHS, THEN TO BE DISCHARGED WITH A BAD CONDUCT DISCHARGE, WHICH DISCHARGE WAS REMITTED SUBJECT TO GOOD CONDUCT FOR SIX MONTHS, IT WAS HELD THAT AS THE MAN AT THE TIME HIS ORIGINAL ENLISTMENT EXPIRED WAS NOT ENTITLED TO BE HONORABLY DISCHARGED HE WAS NOT ENTITLED TO THE ENLISTMENT ALLOWANCE UNDER SECTION 9 OF THE ACT OF JUNE 10, 1922, 42 STAT. 629, AND THAT UNDER THE FACTS HE WAS ENTITLED TO TRAVEL ALLOWANCE UNDER THE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1021.

THE ENLISTMENT ALLOWANCE AUTHORIZED FOR ENLISTED MEN OF THE NAVY BY SECTION 10 OF THE ACT OF JUNE 10, 1922, IS LIKEWISE PAYABLE ONLY TO THOSE "HONORABLY DISCHARGED," OR IN THE CASE OF THOSE WHO EXTEND THEIR ENLISTMENTS, TO THOSE WHO UPON EXPIRATION OF THEIR ORIGINAL ENLISTMENTS WOULD OTHERWISE BE ENTITLED TO BE HONORABLY DISCHARGED, IT IS APPARENT THAT HOBSON WAS NOT OTHERWISE ENTITLED TO BE HONORABLY DISCHARGED UPON THE EXPIRATION OF HIS ENLISTMENT WHICH HAD BEEN EXTENDED, AND IS THEREFORE NOT ENTITLED TO THE ENLISTMENT ALLOWANCE.

THE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1021, PROVIDES:

HEREAFTER AN ENLISTED MAN DISCHARGED FROM THE ARMY, NAVY, OR MARINE CORPS, EXCEPT BY WAY OF PUNISHMENT FOR AN OFFENSE, SHALL RECEIVE 5 CENTS PER MILE FOR THE DISTANCE FROM THE PLACE OF HIS DISCHARGE TO THE PLACE OF HIS ACCEPTANCE FOR ENLISTMENT, ENROLLMENT, OR MUSTER INTO THE SERVICE: * *

IN THE CASE OF EXTENSION OF ENLISTMENT THE RIGHT TO BE DISCHARGED BY REASON OF EXPIRATION OF ENLISTMENT BUT FOR THE EXTENSION IS SUBSTITUTED FOR THE REQUIREMENT OF ACTUAL DISCHARGE BY REASON OF EXPIRATION OF ENLISTMENT IN THE CASE WHERE THERE HAS BEEN NO EXTENSION. IN THE PRESENT CASE HOBSON WAS ABSENT IN DESERTION WHEN HIS ORIGINAL ENLISTMENT EXPIRED, AND WHEN SUBSEQUENTLY HE CAME UNDER NAVAL CONTROL AND JURISDICTION HE WAS TRIED ON THE CHARGE OF DESERTION, CONVICTED, AND SENTENCED AS STATED ABOVE. UNDER SUCH CIRCUMSTANCES HE WAS NOT ENTITLED TO BE DISCHARGED ON EXPIRATION OF ENLISTMENT BUT FOR THE EXTENSION, AND IS THEREFORE NOT ENTITLED TO TRAVEL ALLOWANCE.

IT HAS BEEN UNIFORMLY HELD THAT AN ENLISTED MAN WHILE UNDER THE JURISDICTION OF THE NAVY DURING THE PERIOD OF HIS ENLISTMENT IS ENTITLED TO RECEIVE ALL PAY ACCRUING FROM DATE OF APPREHENSION OR SURRENDER TO THE NAVAL AUTHORITIES NOT FORFEITED BY THE SENTENCE OF A COURT-MARTIAL. SEE 20 COMP. DEC. 1019, 1021. YOU ARE THEREFORE ADVISED THAT HOBSON IS ENTITLED TO BE CREDITED WITH THE PAY OF THE RATING HELD BY HIM AT THE TIME, SHIP'S COOK, THIRD CLASS, FROM THE DATE OF HIS SURRENDER TO THE NAVAL AUTHORITIES DECEMBER 22, 1931, TO JANUARY 26, 1932.