A-68416, JANUARY 21, 1936, 15 COMP. GEN. 646

A-68416: Jan 21, 1936

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IS NOT APPLICABLE IN THE CASE OF A SOLDIER WHOSE SENTENCE TO DISHONORABLE DISCHARGE. IS SUSPENDED BY THE REVIEWING AUTHORITY AND WHO IS RESTORED TO DUTY WITH HIS ORGANIZATION. THE SUSPENSION HAVING BEEN SIMULTANEOUS WITH THE APPROVAL OF THE SENTENCE HE IS ALSO ENTITLED TO THE PAY ACCRUED TO DATE OF SUSPENSION. 1936: THERE HAS BEEN RECEIVED YOUR REQUEST FOR DECISION WHETHER YOU ARE AUTHORIZED TO PAY A SUPPLEMENTARY PAY ROLL TRANSMITTED THEREWITH FOR $116.27. THE SOLDIER WAS SENTENCED "TO BE DISHONORABLY DISCHARGED THE SERVICE. IT IS PROVIDED BY PARAGRAPH 12. AN ORDER SUSPENDING A SENTENCE OF FORFEITURE OR DETENTION OF PAY IS EFFECTIVE TO RELIEVE THE SOLDIER OF SUCH FORFEITURE OR DETENTION FROM AND INCLUDING THE DATE OF THE ORDER.

A-68416, JANUARY 21, 1936, 15 COMP. GEN. 646

PAY - COURTS MARTIAL - SUSPENSION OF SENTENCE THE ACT OF MARCH 4, 1915, 38 STAT. 1065, PROVIDING THAT PAY AND ALLOWANCES SHALL NOT ACCRUE TO A SOLDIER UNDER SENTENCE OF DISHONORABLE DISCHARGE DURING SUCH PERIOD AS THE EXECUTION OF THE SENTENCE OF DISCHARGE MAY BE LEGALLY SUSPENDED, IS NOT APPLICABLE IN THE CASE OF A SOLDIER WHOSE SENTENCE TO DISHONORABLE DISCHARGE, FORFEITURE OF ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE, TC., IS SUSPENDED BY THE REVIEWING AUTHORITY AND WHO IS RESTORED TO DUTY WITH HIS ORGANIZATION. THE SUSPENSION HAVING BEEN SIMULTANEOUS WITH THE APPROVAL OF THE SENTENCE HE IS ALSO ENTITLED TO THE PAY ACCRUED TO DATE OF SUSPENSION.

COMPTROLLER GENERAL MCCARL TO MAJ. E. M. FOSTER, UNITED STATES ARMY, JANUARY 21, 1936:

THERE HAS BEEN RECEIVED YOUR REQUEST FOR DECISION WHETHER YOU ARE AUTHORIZED TO PAY A SUPPLEMENTARY PAY ROLL TRANSMITTED THEREWITH FOR $116.27, COVERING PAY OF PVT. JOHN C. AKERS, A.S. 6323001, BATTERY A, SEVENTY-FIRST COAST ARTILLERY, FORT MONROE, VA., FOR THE PERIOD MAY 1, 1935, TO AUGUST 31, 1935.

IT APPEARS THAT UNDER THE PROVISIONS OF GENERAL COURT MARTIAL ORDER NO. 50, DATED HEADQUARTERS THIRD CORPS AREA, BALTIMORE, MD., AUGUST 10, 1935, THE SOLDIER WAS SENTENCED "TO BE DISHONORABLY DISCHARGED THE SERVICE, TO FORFEIT ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE AND TO BE CONFINED AT HARD LABOR AT SUCH PLACE AS REVIEWING AUTHORITY MAY DIRECT, FOR 1 YEAR.' THE REVIEWING AUTHORITY APPROVED THE SENTENCE BUT IN SO APPROVING THE SENTENCE DIRECTED THAT THE EXECUTION THEREOF BE SUSPENDED.

IT IS PROVIDED BY PARAGRAPH 12, ARMY REGULATIONS 35-2460, THAT---

SUSPENSION OF FORFEITURE OR DETENTION.--- A. AN ORDER SUSPENDING A SENTENCE OF FORFEITURE OR DETENTION OF PAY IS EFFECTIVE TO RELIEVE THE SOLDIER OF SUCH FORFEITURE OR DETENTION FROM AND INCLUDING THE DATE OF THE ORDER, EXCEPT THAT, WHEN THE SUSPENSION IS SIMULTANEOUS WITH THE APPROVAL OF THE SENTENCE AND A PART OF THE ACTION THEREON, THE PRINCIPLE OF PARAGRAPH 5B WILL GOVERN.

B. THE VACATION OF AN ORDER OF SUSPENSION IS EFFECTIVE TO REVIVE THE FORFEITURE OR DETENTION FROM AND INCLUDING THE DATE OF SUCH VACATION.

IN THIS CASE THE SUSPENSION IS SIMULTANEOUS WITH THE APPROVAL OF THE SENTENCE. PARAGRAPH 5B PROVIDES---

WHERE THE MITIGATION IS SIMULTANEOUS WITH THE APPROVAL OF THE SENTENCE AND A PART OF THE ACTION THEREON IT IS EFFECTIVE AT THE SAME TIME AS THE APPROVAL OF THE SENTENCE AND IT WILL OPERATE ON UNPAID PAY WHICH OTHERWISE WOULD BE FORFEITED BY THE APPROVAL OF THE SENTENCE. HOWEVER, WHERE THE SENTENCE OPERATES ON PAY ACCRUED AND UNPAID, IF THE MITIGATION OR REMISSION IS BY A SEPARATE AND DISTINCT ACTION, EVEN ON THE SAME DAY ON WHICH THE SENTENCE WAS APPROVED, THE MITIGATION OR REMISSION WILL NOT OPERATE TO RESTORE THE PAY FORFEITED BY THE APPROVAL OF THE SENTENCE. MS. COMP. GEN., JANUARY 4, 1923.

THE ACT OF MARCH 4, 1915, 38 STAT. 1065, PROVIDES:

THAT HEREAFTER PAY AND ALLOWANCES SHALL NOT ACCRUE TO A SOLDIER UNDER SENTENCE OF DISHONORABLE DISCHARGE DURING SUCH PERIOD AS THE EXECUTION OF THE SENTENCE OF DISCHARGE MAY BE SUSPENDED UNDER AUTHORITY OF THE ACT OF CONGRESS APPROVED APRIL TWENTY-SEVENTH, NINETEEN HUNDRED AND FOURTEEN * *

THE ACT OF APRIL 27, 1914, 38 STAT. 354, REFERRED TO PROVIDED:

THAT THE REVIEWING AUTHORITY MAY SUSPEND THE EXECUTION OF A SENTENCE OF DISHONORABLE DISCHARGE UNTIL THE SOLDIER'S RELEASE FROM CONFINEMENT, BUT THE ORDER OF SUSPENSION MAY BE VACATED AT ANY TIME AND THE EXECUTION OF THE DISHONORABLE DISCHARGE DIRECTED BY THE OFFICER HAVING GENERAL COURT- MARTIAL JURISDICTION OVER THE COMMAND IN WHICH THE SOLDIER IS HELD, OR BY THE SECRETARY OF WAR.

THE QUOTED PROVISION OF THE ACT OF MARCH 4, 1915, HAD FOR ITS PURPOSE THE COVERING BACK INTO THE TREASURY OF FUNDS THERETOFORE ACCRUING TO THE SOLDIERS' HOME. THE QUOTED PROVISION OF THE ACT OF APRIL 27, 1914, HAS BEEN LARGELY SUPERSEDED BY THE PROVISIONS OF THE FIFTIETH, FIFTY-FIRST, FIFTY-SECOND, AND FIFTY-THIRD ARTICLES OF WAR. THE LANGUAGE OF THE 1915 ACT IS PLAIN, HOWEVER, IN VIEW OF THE SPECIFIC REFERENCE TO THE ACT OF 1914 IN THE CITED QUOTATION, THAT THE PROVISION THAT PAY SHALL NOT ACCRUE IS ADDRESSED TO CASES WHERE THE SOLDIER IS SERVING A SENTENCE OF CONFINEMENT AND DOES NOT APPLY TO A MAN ON DUTY WITH HIS ORGANIZATION, ALTHOUGH HE MAY BE UNDER A SUSPENDED SENTENCE TO DISHONORABLE DISCHARGE, CONFINEMENT, AND FORFEITURE OF PAY, FOR IF PAY DOES NOT ACCRUE IN SUCH A CASE, THE SOLDIER WOULD BE REQUIRED TO SERVE ON DUTY WITHOUT PAY. THE REASON FOR THE PROVISION IS PLAIN WHEN ITS APPLICATION IS LIMITED TO PRISONERS SERVING SENTENCES OF CONFINEMENT, USUALLY IN DISCIPLINARY BARRACKS, THE EQUIVALENT OF CONFINEMENT IN A STATE PENITENTIARY. PAYMENT OF THE PAY ROLL IS AUTHORIZED IF OTHERWISE CORRECT.