A-69449, MARCH 24, 1936, 15 COMP. GEN. 836

A-69449: Mar 24, 1936

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BURIAL EXPENSES - ARMY - ENLISTED MEN ABSENT WITHOUT LEAVE THERE IS NO AUTHORITY UNDER THE ACT OF MARCH 9. 1936: THERE WAS DULY RECEIVED YOUR LETTER OF DECEMBER 28. DIES OR IS KILLED BY ACCIDENT OR OTHERWISE. IS NOT PAYABLE FROM THE APPROPRIATION MADE BY THE ACT OF MARCH 4. WAS DENIED ON THE GROUND THAT THIS SOLDIER WAS ABSENT WITHOUT LEAVE (FROM JULY 2. AT THE TIME OF SUCH DEATH HE WAS NOT ON THE "ACTIVE LIST OF THE ARMY.'. THE MILITARY RECORDS IN THIS CASE INDICATE THAT PRIVATE CADORET WAS NOT CONVICTED. WHICH ARE AT VARIANCE WITH THE VIEWS OF THE WAR DEPARTMENT AS TO THE MEANING OF THE WORDS "ON THE ACTIVE LIST" AND "IN ACTIVE SERVICE" AS USED IN THE BASIC ACT OF MARCH 9. THERE IS INCLOSED FOR YOUR CONSIDERATION THE OPINION OF THE ATTORNEY GENERAL RENDERED UNDER DATE OF JULY 8.

A-69449, MARCH 24, 1936, 15 COMP. GEN. 836

BURIAL EXPENSES - ARMY - ENLISTED MEN ABSENT WITHOUT LEAVE THERE IS NO AUTHORITY UNDER THE ACT OF MARCH 9, 1928, 45 STAT. 251, FOR PAYMENT OF THE BURIAL EXPENSES OF ENLISTED MEN OF THE ARMY WHO DIE WHILE ABSENT WITHOUT LEAVE AND BEYOND MILITARY CONTROL.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, MARCH 24, 1936:

THERE WAS DULY RECEIVED YOUR LETTER OF DECEMBER 28, 1935, AS FOLLOWS:

IN THE ADMINISTRATION OF THE AFFAIRS OF THE WAR DEPARTMENT IT OCCASIONALLY HAPPENS THAT AN ENLISTED MAN, TEMPORARILY ABSENT WITHOUT LEAVE, BUT UNDER CIRCUMSTANCES WHICH DO NOT WARRANT A FINDING OR CONCLUSION OF DESERTION, DIES OR IS KILLED BY ACCIDENT OR OTHERWISE, GIVING RISE TO THE QUESTION OF THE PROPRIETY OF HIS BURIAL AT THE EXPENSE OF PUBLIC FUNDS APPROPRIATED FOR THE GENERAL PURPOSE OF BURIAL OF ENLISTED MEN WHO DIED "IN ACTIVE SERVICE" OR WHILE "ON THE ACTIVE LIST" UNDER THE TERMS OF THE AUTHORIZING ACT OF MARCH 9, 1928, 45 STAT. 251, U.S.C. 10:916. THE APPROPRIATION TO CARRY OUT THE PROVISIONS OF THE ABOVE ACT AS CONTAINED IN THE CURRENT ANNUAL WAR DEPARTMENT APPROPRIATION ACT READS AS FOLLOWS:

"FOR RECOVERY OF BODIES AND DISPOSITION OF REMAINS OF MILITARY PERSONNEL AND CIVILIAN EMPLOYEES OF THE ARMY UNDER ACT APPROVED MARCH 9, 1928 (U.S.C. SUPP. VII, TITLE 10, SEC. 916).'

IN YOUR DECISION OF DECEMBER 14, 1922, 2 C.G. 380, YOU HELD, QUOTING FROM THE SYLLABUS, THAT---

"THE EXPENSE OF BURIAL OF AN ENLISTED MAN OF THE ARMY DYING WHILE ABSENT FROM DUTY WITHOUT LEAVE AND UNDER ARREST BY THE CIVIL AUTHORITIES, IS NOT PAYABLE FROM THE APPROPRIATION MADE BY THE ACT OF MARCH 4, 1921,41 STAT. 1386, FOR THE BURIAL EXPENSES OF ENLISTED MEN IN ACTIVE SERVICE.'

THE FACTS IN THE CASE THEN UNDER CONSIDERATION INDICATED THAT IN ADDITION TO THE INCARCERATION OF THIS SOLDIER BY THE CIVIL AUTHORITIES BY REASON OF A HOMICIDE THE DEATH OF THE SOLDIER RESULTED FROM A SELF INFLICTED GUNSHOT WOUND.

LIKEWISE, IN A RECENT DECISION OF YOUR OFFICE DATED NOVEMBER 7, 1934, CLAIM BY CERTAIN FUNERAL DIRECTORS FOR REIMBURSEMENT FOR EXPENSES INCURRED BY THEM IN CONNECTION WITH THE BURIAL OF THE LATE PRIVATE ARTHUR CADORET, 6845212, COMPANY G, 34TH INFANTRY, WAS DENIED ON THE GROUND THAT THIS SOLDIER WAS ABSENT WITHOUT LEAVE (FROM JULY 2, 1934) AT THE TIME OF THE ACCIDENT WHICH RESULTED IN HIS DEATH ON JULY 4, 1934, AND THAT, THEREFORE, AT THE TIME OF SUCH DEATH HE WAS NOT ON THE "ACTIVE LIST OF THE ARMY.' THE MILITARY RECORDS IN THIS CASE INDICATE THAT PRIVATE CADORET WAS NOT CONVICTED, NOR DROPPED FROM THE ROLLS, AS A DESERTER AT THE TIME OF HIS DEATH.

IN VIEW OF THESE TWO DECISIONS OF YOUR OFFICE, WHICH ARE AT VARIANCE WITH THE VIEWS OF THE WAR DEPARTMENT AS TO THE MEANING OF THE WORDS "ON THE ACTIVE LIST" AND "IN ACTIVE SERVICE" AS USED IN THE BASIC ACT OF MARCH 9, 1928, AND IN THE EARLIER ACT OF MARCH 4, 1921, 41 STAT. 1386, CONSIDERED IN 2 C.G. 380, THE WAR DEPARTMENT DEEMED IT ADVISABLE TO PROCURE THE ADVICE OF THE ATTORNEY GENERAL ON THE SUBJECT. THERE IS INCLOSED FOR YOUR CONSIDERATION THE OPINION OF THE ATTORNEY GENERAL RENDERED UNDER DATE OF JULY 8, 1935, WHICH HOLDS THAT THE PHRASES "IN ACTIVE SERVICE" AND "ON THE ACTIVE LIST" AS USED IN THE BASIC AUTHORIZING ACT OF 1928--- THE LANGUAGE OF WHICH IS ALSO CONTROLLING SO FAR AS THE ACT APPROPRIATING FUNDS IS CONCERNED INASMUCH AS THE APPROPRIATING ACT MERELY REFERS TO THE LANGUAGE OF THE BASIC ACT--- WERE NOT INTENDED TO EXCLUDE THE REIMBURSEMENT OF BURIAL EXPENSES UNDER THE CIRCUMSTANCES OF THE TWO CASES IN QUESTION. THE ATTORNEY GENERAL OBSERVED IN THIS CONNECTION THAT---

"* * * A SOLDIER TEMPORARILY ABSENT WITHOUT AUTHORITY, PARTICULARLY IN THE ABSENCE OF FACTS TO SUPPORT A CONCLUSION THAT HE DID NOT INTEND TO RETURN AND THUS REQUIRE HIS NAME TO BE DROPPED FROM THE ROLLS AS A DESERTER, WOULD PROPERLY BE CONSIDERED "IN ACTIVE SERVICE" OR ON THE "ACTIVE LIST" WITHIN THE MEANING OF THE ACT OF MARCH 9, 1928.'

IT WILL BE NOTED THAT THE ATTORNEY GENERAL DISCUSSES AT SOME LENGTH THE DIFFERENCE BETWEEN THE TERMS "IN ACTIVE SERVICE" AND "ON THE ACTIVE LIST" ON THE ONE HAND AND "ACTIVE DUTY" ON THE OTHER, POINTING OUT THAT THE LATTER DENOTES THE PHYSICAL PRESENCE OF THE SOLDIER AT HIS PROPER STATION WHILE THE FORMER PHRASE DENOTES HIS STATUS IN THE ARMY. THE VIEW OF THE ATTORNEY GENERAL AS TO THE DISTINCTION IN MEANING BETWEEN THESE SEVERAL PHRASES IS BELIEVED BY THE WAR DEPARTMENT TO BE A CORRECT ONE ENTIRELY COMPORTING WITH WELL SETTLED MILITARY USAGE AND UNDERSTANDING, IF NOT INDEED A VIEW IMPELLED BY THE INHERENT CHARACTER OF THE CONTRACT OF ENLISTMENT WHICH, AS SAID BY THE SUPREME COURT OF THE UNITED STATES IN IN RE GRIMLEY, 137 U.S. 151, IS "ONE OF THOSE CONTRACTS WHICH CHANGES THE STATUS, AND WHERE THAT IS CHANGED, NO BREACH OF THE CONTRACT DESTROYS THE NEW STATUS OR RELIEVES FROM THE OBLIGATIONS WHICH ITS EXISTENCE IMPOSES.' IN USING THE TERMS "IN ACTIVE SERVICE" AND "ON THE ACTIVE LIST" IN THE ACT OF MARCH 9, 1928, SUPRA, TO WHICH THE APPROPRIATING ACT REFERS, IT IS THE BELIEF OF THE WAR DEPARTMENT THAT CONGRESS MUST HAVE VIEWED THOSE TERMS, PECULIAR AS THEY ARE TO THE MILITARY SERVICE, IN THEIR TECHNICAL SENSE, IN WHICH VIEW THE QUESTION OF DUTY OR THE PERFORMANCE OF DUTY BY THE ENLISTED MAN IS NOT NECESSARILY CONTROLLING AS TO HIS STATUS, OR HIS RIGHTS OR THE RIGHTS OF PERSONS CLAIMING THROUGH HIM.

IN VIEW OF THE ABOVE, AND PARTICULARLY IN THE LIGHT OF THE OPINION OF THE ATTORNEY GENERAL OF JULY 8, 1935, IT IS REQUESTED THAT YOU RECONSIDER THE RULE AS ANNOUNCED BY YOUR OFFICE IN 2 C.G. 380, AND IN THE CADORET CASE WITH A VIEW TO AUTHORIZING THE DEFRAYING OF THE EXPENSES OF BURIAL OF FORMER ENLISTED MEN OF THE ARMY WHO DIE UNDER CIRCUMSTANCES SIMILAR TO THOSE ATTENDING THOSE TWO CASES, AND THAT THE WAR DEPARTMENT BE ADVISED PROMPTLY OF YOUR DECISION IN THE PREMISES IN ORDER THAT IT MAY DETERMINE THE PROPER COURSE TO PURSUE IN THE MATTER OF PROMULGATING APPROPRIATE REGULATIONS TO THE FIELD TOUCHING THE QUESTION INVOLVED.

THE CASE OF THE LATE PRIVATE ARTHUR CADORET, 6845212, COMPANY G, THIRTY- FOURTH INFANTRY, TO WHICH YOU REFER AS A RECENT DECISION BY THIS OFFICE DATED NOVEMBER 7, 1934, WAS NOT A FORMAL DECISION; IT APPEARS IT WAS A CLAIM SUBMITTED BY AN UNDERTAKER TO THE CLAIMS DIVISION OF THIS OFFICE, WHICH WAS SETTLED IN ACCORDANCE WITH THE RECOMMENDATION OF THE QUARTERMASTER GENERAL OF THE ARMY, FILE QM 293 A-M, AUGUST 29, 1934, AS FOLLOWS:

IN VIEW OF THE INFORMATION FURNISHED IN THE ATTACHED PAPERS TO THE EFFECT THAT THE LATE PRIVATE ARTHUR CADORET WAS ABSENT FROM HIS PROPER STATION WITHOUT AUTHORITY ON THE DATE OF HIS DEATH, HIS BURIAL EXPENSES ARE NOT AUTHORIZED TO BE PAID BY THE WAR DEPARTMENT. HAD THIS INFORMATION BEEN FURNISHED THIS OFFICE IN LETTER OF JULY 14, 1934, FROM THE QUARTERMASTER AT FORT GEORGE G. MEADE, THIS OFFICE WOULD NOT HAVE GIVEN APPROVAL FOR THE EXPENDITURE OF $150.00 FOR BURIAL SERVICES AS SET FORTH IN 2ND INDORSEMENT OF JULY 19, 1934. SUCH AUTHORITY IS HEREBY REVOKED.

THE ACT OF MARCH 9, 1928, 45 STAT. 251, TO WHICH YOU REFER, EMBODIED IN PERMANENT LAW A PROVISION THAT HAD THERETOFORE APPEARED IN THE ANNUAL WAR DEPARTMENT APPROPRIATION ACTS. THE PROVISION AUTHORIZES APPROPRIATIONS OF SUCH SUMS AS MAY BE NECESSARY FOR THE EXPENSES OF INTERMENT, CREMATION (ONLY BY REQUEST OF RELATIVES), OR PREPARATION AND TRANSPORTATION TO THEIR HOMES, OR TO SUCH NATIONAL CEMETERIES AS MAY BE DESIGNATED BY PROPER AUTHORITY, OF THE REMAINS, AMONG OTHERS, OF ENLISTED MEN IN ACTIVE SERVICE, WITH A PROVISO THAT IN ANY CASE WHERE THE EXPENSES OF BURIAL OR SHIPMENT OF THE REMAINS OF OFFICERS OR ENLISTED MEN OF THE ARMY WHO DIE ON THE ACTIVE LIST ARE BORNE BY INDIVIDUALS--- WHERE SUCH EXPENSES WOULD HAVE BEEN LAWFUL CLAIMS AGAINST THE GOVERNMENT--- REIMBURSEMENT TO SUCH INDIVIDUALS MAY BE MADE OF THE AMOUNT ALLOWED BY THE GOVERNMENT FOR SUCH SERVICES, WITH A LIMITING DATE AFTER WHICH SUCH REIMBURSEMENT IS NOT AUTHORIZED.

ABSENCE WITHOUT LEAVE IS A MILITARY CRIMINAL OFFENSE UNDER THE ARTICLES OF WAR, PUNISHABLE AS A COURT-MARTIAL MAY DIRECT. SIXTY FIRST ARTICLE OF WAR. THE SUPREME COURT, IN UNITED STATES V. LANDERS, 92 U.S. 77, AT PAGE 79, STATED:

* * * THE CONTRACT (OF ENLISTMENT) IS AN ENTIRETY; AND, IF SERVICE FOR ANY PORTION OF THE TIME IS CRIMINALLY OMITTED, THE PAY AND ALLOWANCES FOR FAITHFUL SERVICE ARE NOT EARNED. * * *

BOTH BEFORE AND SINCE THIS DECISION ARMY REGULATIONS HAVE PROVIDED THAT AN ENLISTED MAN ABSENT WITHOUT LEAVE SHOULD NOT BE PAID FOR THE TIME SO ABSENT, THE RECENT TWO EDITIONS OF ARMY REGULATIONS HAVING CONTAINED THE PROVISION IN PARAGRAPH 132, ARMY REGULATIONS, 1913, AND PARAGRAPH 3, A.R. 35-1420, DATED AUGUST 15, 1932.

IN THE DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, 1912, AT PAGE 6, PARAGRAPH II B 8 A, OPINIONS HAVE BEEN DIGESTED AS FOLLOWS:

AN ENLISTED MAN FORFEITS HIS PAY AND ALLOWANCES DURING THE PERIOD OF AN ABSENCE WITHOUT LEAVE, AS PROVIDED IN ARMY REGULATIONS. DURING SUCH ABSENCE HE RENDERS NO SERVICE, AND THEREFORE EARNS NEITHER PAY NOR ALLOWANCES. C. 12168, MAR. 10, 1902; 3694, JULY 9, 1910. THE FORFEITURE IS THUS BY OPERATION OF LAW, AND ACCRUES INDEPENDENTLY OF THE RESULT OF A TRIAL FOR THE MILITARY OFFENSE INVOLVED IN THE UNAUTHORIZED ABSENCE. ONE OF THE PURPOSES OF THE MUSTER AND PAY ROLLS IS TO SHOW WHAT SERVICE THE SOLDIER RENDERS, AND IF THEY SHOW THAT HE HAS RENDERED NONE DURING A PARTICULAR PERIOD BY REASON OF AN ABSENCE WITHOUT LEAVE, HE IS NOT ENTITLED TO PAY AND ALLOWANCES DURING SUCH PERIOD. (CITING UNITED STATES V. LANDERS, 92 U.S. 77, 79) P. 36 303, NOV., 1889, 57, 240, JAN. 1893; C. 1494, JUNE 1895. FOR AN ABSENCE WITHOUT LEAVE OF LESS THAN A DAY THE SOLDIER MAY, OF COURSE, BE TRIED BY COURT-MARTIAL AND SENTENCED TO SUFFER A FORFEITURE, BUT SUCH ABSENCE SHOULD NOT BE NOTED ON THE MUSTER AND PAY ROLLS. P. 47 399, JUNE 1891; C. 12577, JUNE 17, 1902. THE PAY SO FORFEITED SHOULD COVER THE ENTIRE PERIOD OF HIS ABSENCE WITHOUT LEAVE. 12967, JULY 15, 1902; 13808, DEC. 16, 1902; 17492, FEB. 3,1905; 17768, APR. 1, 1905; 18934, DEC. 28, 1905.

SO, ALTHOUGH AN ENLISTED MAN MAY BE ON THE ACTIVE LIST OF THE REGULAR ARMY OR IN ACTIVE SERVICE--- THAT IS, HIS MILITARY STATUS HAS NOT BEEN TERMINATED--- WHEN ABSENT WITHOUT LEAVE HE IS NOT ENTITLED TO PAY AND ALLOWANCES DURING THE PERIOD OF HIS ABSENCE WITHOUT LEAVE FOR 1 DAY OR MORE.

THE ACT OF APRIL 27, 1914, 38 STAT. 353 (10 U.S.C. 629), PROVIDES:

* * * THAT AN ENLISTMENT SHALL NOT BE REGARDED AS COMPLETE UNTIL THE SOLDIER SHALL HAVE MADE GOOD ANY TIME IN EXCESS OF ONE DAY LOST BY UNAUTHORIZED ABSENCES, OR ON ACCOUNT OF DISEASE RESULTING FROM HIS OWN INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUORS OR OTHER MISCONDUCT, OR WHILE IN CONFINEMENT AWAITING TRIAL OR DISPOSITION OF HIS CASE IF THE TRIAL RESULTS IN CONVICTION, OR WHILE IN CONFINEMENT UNDER SENTENCE; * *

THE ONE HUNDRED AND SEVENTH ARTICLE OF WAR, ACT OF JUNE 4, 1920, 41 STAT. 809, (10 U.S.C. 1579) 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.

SO, ALTHOUGH ON THE ACTIVE LIST OF THE REGULAR ARMY OR IN ACTIVE SERVICE- -- THAT IS, HIS MILITARY STATUS HAS NOT BEEN TERMINATED--- UNDER THESE STATUTES THE PERIOD DURING WHICH AN ENLISTED MAN IS ABSENT WITHOUT LEAVE IN EXCESS OF 1 DAY IS NOT SERVICE FOR THE COMPLETION OF HIS ENLISTMENT CONTRACT.

IN DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, 1912, PAGE 854, PARAGRAPH I C 5 A, AN OPINION IS DIGESTED AS FOLLOWS:

IN COUNTING CONTINUOUS-SERVICE TIME ALL ABSENCE WITHOUT LEAVE SHOULD BE DEDUCTED. THERE IS NO LEGAL RELATION BETWEEN "CONTINUOUS SERVICE" AND "TERMS OF ENLISTMENT.' UNDER THE FORMER HEAD ONLY SERVICE UNFORFEITED BY REASON OF ABSENCE WITHOUT LEAVE CAN BE COUNTED; A TERM OF ENLISTMENT, UPON THE OTHER HAND, IS NOT AFFECTED BY THE FACT THAT THE SOLDIER DURING THAT PARTICULAR TERM MAY HAVE BEEN ABSENT FROM HIS COMMAND WITHOUT LEAVE. 18438, APR. 4, 1907, AND JUNE 24, 1908.

IN AGREEMENT WITH THE FOREGOING IS 2 COMP. GEN. 162, ANSWERS TO QUESTIONS C TO F, INCLUSIVE. SO, ALTHOUGH ON THE ACTIVE LIST OF THE REGULAR ARMY OR INACTIVE SERVICE--- THAT IS, HIS MILITARY STATUS HAS NOT BEEN TERMINATED-- - A SOLDIER IS NOT ENTITLED TO COUNT FOR LONGEVITY INCREASE OF PAY, PERIODS DURING WHICH HE IS ABSENT WITHOUT LEAVE. ALTHOUGH, THEREFORE, THE MILITARY STATUS OF A SOLDIER ABSENT WITHOUT LEAVE HAS NOT BEEN TERMINATED AND TECHNICALLY HE IS ON THE ACTIVE LIST OF THE REGULAR ARMY OR IN ACTIVE SERVICE, UNDER THE FOREGOING STATUTES, OPINION OF THE SUPREME COURT, AND OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, AN ENLISTED MAN ABSENT WITHOUT LEAVE IS NOT DURING SUCH PERIOD RENDERING SERVICES FOR THE PURPOSE OF PAY AND ALLOWANCES FOR THE COMPLETION OF HIS TERM OF ENLISTMENT, NOR FOR COMPUTING LENGTH OF SERVICE FOR LONGEVITY PAY, YET IT IS ARGUED HE IS ON THE ACTIVE LIST OF THE REGULAR ARMY OR IN ACTIVE SERVICE FOR THE PURPOSE OF BEING BURIED BY THE UNITED STATES SHOULD HE DIE WHILE AWAY FROM HIS ORGANIZATION OR DUTY STATION AND ABSENT WITHOUT LEAVE. SUCH VIEW OF THE LAW MAY NOT BE ADOPTED BY THIS OFFICE. FOR THE PURPOSE OF SETTLEMENT OF ACCOUNTS AND CLAIMS IN THIS OFFICE A MAN WHO IS ABSENT WITHOUT LEAVE AND WHO IS NOT ON THE ACTIVE LIST OR IN ACTIVE SERVICE FOR THE PURPOSES OF PAY AND ALLOWANCES, FOR THE PURPOSES OF COMPLETING HIS ENLISTMENT CONTRACT, OR FOR THE PURPOSE OF COMPUTING HIS LENGTH OF SERVICE FOR LONGEVITY PAY, IS, ALSO, NOT ON THE ACTIVE LIST OR IN ACTIVE SERVICE FOR THE PURPOSE OF BURIAL IF HE DIES WHILE ABSENT WITHOUT LEAVE FROM HIS ORGANIZATION OR DUTY STATION.

WITH RESPECT TO THE SUGGESTION "THAT SUCH A NARROW INTERPRETATION MAY LEAD TO ABSURD RESULTS IS MANIFEST IF IT BE CONSIDERED, FOR EXAMPLE, THAT A SOLDIER KILLED IN BARRACKS WHILE MOMENTARILY LATE FOR FORMATION WOULD THEREBY FORFEIT THE RIGHT OF BURIAL AT GOVERNMENT EXPENSE," SEE THE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, QUOTED ABOVE, AND WHERE ABSENCE WITHOUT LEAVE IS LESS THAN 1 DAY, IT SHOULD NOT BE NOTED ON THE MUSTER AND PAY ROLLS. A MAN PRESENT WITH HIS ORGANIZATION OR AT HIS DUTY STATION MAY BE CHARGEABLE WITH AN OFFENSE UNDER THE SIXTY-FIRST ARTICLE OF WAR FOR FAILURE TO OBEY AN ORDER, BUT HE IS NOT ABSENT FROM HIS ORGANIZATION AND THERE IS NO QUESTION AS TO HIS DUTY OR PAY STATUS BECAUSE OF THE DISOBEDIENCE. SO FAR AS BURIAL EXPENSES ARE CONCERNED, THE QUESTION ARISES ONLY WHERE THE MAN IS ABSENT WITHOUT LEAVE FROM HIS ORGANIZATION OR DUTY STATION, AND THE MILITARY AUTHORITIES IN FACT EXERCISE NO CONTROL OVER HIM. THAT IS THE SITUATION AND THE ONLY SITUATION CONSIDERED IN THE DECISION AND IN THE CLAIM SETTLEMENT TO WHICH YOU REFER. THE FACT THAT PROSECUTION FOR A DISOBEDIENCE OF ORDERS WHILE PRESENT WITH HIS ORGANIZATION MAY BE LAID UNDER THE SIXTY-FIRST ARTICLE OF WAR AND DENOMINATED ABSENCE WITHOUT LEAVE FOR THE PURPOSE OF THAT ARTICLE GIVES NO BASIS FOR ERECTING A THEORY, SOLELY FOR THE PURPOSE OF PAYMENT BY THE GOVERNMENT OF BURIAL EXPENSES, OF GOVERNMENT OR MILITARY CONTROL OVER THE REMAINS OF A MAN IN FACT ABSENT WITHOUT LEAVE FROM HIS ORGANIZATION OR DUTY STATION AT TIME OF DEATH.

IF IT IS BELIEVED THE LAW SHOULD BE SUCH AS TO PLACE UPON THE GOVERNMENT THE EXPENSE OF BURIAL OF ENLISTED MEN WHO MEET DEATH (POSSIBLY A RESULT OF THEIR WRONGDOING) WHILE ABSENT WITHOUT LEAVE AND THUS BEYOND MILITARY CONTROL, THE MATTER IS ONE FOR SUBMISSION BY YOU TO THE CONGRESS. SEE 14 COMP. GEN. 648.