A-61166, APRIL 12, 1935, 14 COMP. GEN. 762

A-61166: Apr 12, 1935

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PAY - LONGEVITY - ENLISTED MEN - NAVY AN ENLISTED MAN OF THE NAVY IS ENTITLED TO CREDIT FOR SERVICE FOR TIME SPENT UNDER ARREST AWAITING TRIAL AND TIME SPENT IN CONFINEMENT AFTER TRIAL AND PRIOR TO DATE OF EXPIRATION OF THE MAN'S ENLISTMENT UNDER SENTENCE OF COURT MARTIAL IN CASES WHERE THE COURT MARTIAL IS SUBSEQUENTLY SET ASIDE BY THE SECRETARY OF THE NAVY. OR TIME SPENT IN CONFINEMENT AFTER TRIAL UNDER SENTENCE OF COURT MARTIAL IN CASES WHERE THE COURT MARTIAL IS SUBSEQUENTLY SET ASIDE BY THE SECRETARY OF THE NAVY.'. IT WAS SAID: * * * WHEN THE SECRETARY OF THE NAVY SETS ASIDE THE SENTENCE OF A NAVAL COURT MARTIAL THE OFFICER OR ENLISTED MAN. INSOFAR AS PAY IS CONCERNED. TO THE CONDITION HE WOULD HAVE BEEN IN HAD THERE BEEN NO SENTENCE OF HIM BY A COURT MARTIAL.

A-61166, APRIL 12, 1935, 14 COMP. GEN. 762

PAY - LONGEVITY - ENLISTED MEN - NAVY AN ENLISTED MAN OF THE NAVY IS ENTITLED TO CREDIT FOR SERVICE FOR TIME SPENT UNDER ARREST AWAITING TRIAL AND TIME SPENT IN CONFINEMENT AFTER TRIAL AND PRIOR TO DATE OF EXPIRATION OF THE MAN'S ENLISTMENT UNDER SENTENCE OF COURT MARTIAL IN CASES WHERE THE COURT MARTIAL IS SUBSEQUENTLY SET ASIDE BY THE SECRETARY OF THE NAVY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, APRIL 12, 1935:

THERE HAS BEEN RECEIVED YOUR FIRST ENDORSEMENT MARCH 29, 1935, OF REQUEST OF THE PAYMASTER GENERAL, UNITED STATES NAVY, SUBMITTING FOR CONSIDERATION PROPOSED CHANGE IN PAY BILL INSTRUCTIONS, AS FOLLOWS:

ADD THE FOLLOWING TO THE NOTE IN PARAGRAPH B-3 (E) AND PARAGRAPH B 5 (B), APPENDIX A, BUREAU OF S AND A MANUAL.

"NONPERFORMANCE OF DUTY BECAUSE IMPRISONED DOES NOT INCLUDE TIME SPENT UNDER ARREST AWAITING TRIAL, OR TIME SPENT IN CONFINEMENT AFTER TRIAL UNDER SENTENCE OF COURT MARTIAL IN CASES WHERE THE COURT MARTIAL IS SUBSEQUENTLY SET ASIDE BY THE SECRETARY OF THE NAVY.'

PARAGRAPH B-3 (E) AND PARAGRAPH B-5 (B) OF THE PAY BILL INSTRUCTIONS PROVIDE WITH RESPECT TO TIME WHICH MAY BE INCLUDED IN COMPUTING LONGEVITY INCREASES IN PAY AND FOR ENLISTMENT ALLOWANCES, THAT SUCH SERVICE SHALL NOT INCLUDE PERIODS OF "NONPERFORMANCE OF DUTY BECAUSE IMPRISONED BOTH WHILE IN ARREST RESULTING IN COURT-MARTIAL SENTENCE AND WHILE SERVING SAID SENTENCE.'

IN 4 COMP. GEN. 1021, IT WAS SAID:

* * * WHEN THE SECRETARY OF THE NAVY SETS ASIDE THE SENTENCE OF A NAVAL COURT MARTIAL THE OFFICER OR ENLISTED MAN, INSOFAR AS PAY IS CONCERNED, SHALL BE RESTORED, AS NEARLY AS MAY BE, TO THE CONDITION HE WOULD HAVE BEEN IN HAD THERE BEEN NO SENTENCE OF HIM BY A COURT MARTIAL.

CONSISTENT WITH THE FOREGOING RULE AN ENLISTED MAN'S SERVICE STATUS IS NOT AFFECTED BY A SENTENCE SET ASIDE BY THE SECRETARY OF THE NAVY. THE RULE, HOWEVER, DOES NOT APPLY SO AS TO EXTEND THE MAN'S NAVAL STATUS BEYOND THE DATE OF EXPIRATION OF HIS ENLISTMENT. SHOULD SUCH SENTENCE BE SET ASIDE WHEN THE MAN IS IMPRISONED AFTER DATE HIS ENLISTMENT IS DUE TO EXPIRE, THE SETTING ASIDE OF THE SENTENCE WILL NOT GIVE HIM A SERVICE STATUS SUBSEQUENT TO DATE OF EXPIRATION OF ENLISTMENT, SINCE HE WAS NOT HELD FOR SERVICE AFTER SUCH DATE. DECISION A-22565, MAY 19, 1928. ACCORDINGLY, TO BE CONSISTENT WITH THE LAW, THE PROPOSED AMENDMENT SHOULD BE MODIFIED TO READ AS FOLLOWS:

NONPERFORMANCE OF DUTY BECAUSE IMPRISONED DOES NOT INCLUDE THE TIME SPENT UNDER ARREST AWAITING TRIAL OR TIME SPENT IN CONFINEMENT AFTER TRIAL AND PRIOR TO DATE OF EXPIRATION OF THE MAN'S ENLISTMENT UNDER SENTENCE OF COURT MARTIAL IN CASES WHERE THE COURT MARTIAL IS SUBSEQUENTLY SET ASIDE BY THE SECRETARY OF THE NAVY.

IF SO MODIFIED, THERE IS PERCEIVED NO REASON WHY THE PROPOSED CHANGE SHOULD NOT BE PROMULGATED.