A-87291, AUGUST 5, 1937, 17 COMP. GEN. 103

A-87291: Aug 5, 1937

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PAY - NAVY ENLISTED MEN - AWAITING TRIAL OR SENTENCE AFTER EXPIRATION OF ENLISTMENT A NAVY ENLISTED MAN HELD FOR TRIAL OR FOR SENTENCE BY COURT MARTIAL AFTER EXPIRATION OF HIS ENLISTMENT IS NOT ENTITLED TO PAY FOR ANY PERIOD BEYOND THE PERIOD FOR WHICH HE CONTRACTED TO SERVE. AS FOLLOWS: THERE IS FORWARDED HEREWITH FOR YOUR CONSIDERATION A LETTER FROM THE ACTING CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS OF THE NAVY DEPARTMENT. WHICH ARE BASED ON DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES OF MAY 15. ARE IN CONFLICT. THE RETENTION IN THE SERVICE OF AN ENLISTED MAN AFTER EXPIRATION OF ENLISTMENT AWAITING ACTION ON THE COURT-MARTIAL IS CONSIDERED TO BE FOR THE CONVENIENCE OF THE GOVERNMENT AND THE MAN'S PAY STATUS CONTINUES UNAFFECTED THEREBY UNTIL PROMULGATION OF THE SENTENCE.

A-87291, AUGUST 5, 1937, 17 COMP. GEN. 103

PAY - NAVY ENLISTED MEN - AWAITING TRIAL OR SENTENCE AFTER EXPIRATION OF ENLISTMENT A NAVY ENLISTED MAN HELD FOR TRIAL OR FOR SENTENCE BY COURT MARTIAL AFTER EXPIRATION OF HIS ENLISTMENT IS NOT ENTITLED TO PAY FOR ANY PERIOD BEYOND THE PERIOD FOR WHICH HE CONTRACTED TO SERVE. A.D. 6637, MAY 15, 1922, OVERRULED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, AUGUST 5, 1937:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 25, 1937, AS FOLLOWS:

THERE IS FORWARDED HEREWITH FOR YOUR CONSIDERATION A LETTER FROM THE ACTING CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS OF THE NAVY DEPARTMENT, DATED JUNE 8, 1937, WITH REQUEST FOR AN ADVANCE DECISION ON THE QUESTION AS TO THE RIGHT OF AN ENLISTED MAN TO PAY WHILE HELD BEYOND THE EXPIRATION OF HIS ENLISTMENT AWAITING TRIAL BY COURT MARTIAL.

THE INSTRUCTIONS ON THIS SUBJECT AS NOW EMBODIED IN ARTICLES 2146-3 AND 2151-3, BUREAU OF SUPPLIES AND ACCOUNTS MANUAL, WHICH ARE BASED ON DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES OF MAY 15, 1922, A-6637 (ART. 2146-3, BUREAU OF SUPPLIES AND ACCOUNTS MEMORANDA), AND MARCH 11, 1932 (11 COMP. GEN. 342), RESPECTIVELY, ARE IN CONFLICT. UNDER ARTICLE 2146-3, THE RETENTION IN THE SERVICE OF AN ENLISTED MAN AFTER EXPIRATION OF ENLISTMENT AWAITING ACTION ON THE COURT-MARTIAL IS CONSIDERED TO BE FOR THE CONVENIENCE OF THE GOVERNMENT AND THE MAN'S PAY STATUS CONTINUES UNAFFECTED THEREBY UNTIL PROMULGATION OF THE SENTENCE, WHEREAS, UNDER ARTICLE 2151-3, WHERE AN ENLISTED MAN IS CONFINED AWAITING TRIAL ON A CHARGE OF DESERTION WHICH RESULTS IN CONVICTION, HE IS NOT ENTITLED TO PAY AFTER THE DATE OF EXPIRATION OF HIS ENLISTMENT, BECAUSE WHILE CONFINED UNDER THOSE CIRCUMSTANCES HE DID NOT RETURN TO A FULL DUTY STATUS. THE PURPOSE OF THIS SUBMISSION, THEREFORE, IS TO SECURE A CLARIFICATION OF THE CITED DECISIONS WITH A VIEW TO APPROPRIATE MODIFICATION OF THE INSTRUCTIONS CONTAINED IN THE BUREAU OF SUPPLIES AND ACCOUNTS MANUAL.

IN SUPPORT OF THE CONCLUSION IN THE DECISION OF MAY 15, 1922, THAT AN ENLISTED MAN OF THE NAVY WAS ENTITLED TO PAY WHILE BEING HELD AFTER EXPIRATION OF ENLISTMENT AWAITING APPROVAL OF A GENERAL COURT-MARTIAL SENTENCE THERE WERE CITED 26 COMP. DEC. 447 AND 27 ID. 541. THOSE DECISIONS WERE LIMITED TO THE HOLDING THAT THE PERIOD OF DETENTION BEYOND THE EXPIRATION OF THE TERM OF SERVICE OF AN ENLISTED MAN OF THE NAVY UNDERGOING TREATMENT IN HOSPITAL IS TO BE CONSIDERED AS FOR THE CONVENIENCE OF THE GOVERNMENT AND THAT THE MAN IS ENTITLED TO PAY TO AND INCLUDING THE DATE OF HIS ACTUAL DISCHARGE.

PRIOR TO THE DECISION IN 26 COMP. DEC. 447, BOTH UNDER NAVY REGULATIONS AND DECISIONS OF FORMER COMPTROLLERS OF THE TREASURY, THE HOLDING APPEARS TO HAVE BEEN UNIFORM AND SETTLED THAT PAY WAS NOT DUE AFTER EXPIRATION OF ENLISTMENT DURING TREATMENT OF ENLISTED MEN IN HOSPITALS. PARAGRAPH 1173, NAVY REGULATIONS, 1865, 2 COMP. DEC. 11; NAVY REGULATIONS, 1876, PAGE 123, PARAGRAPH 26; NAVY REGULATIONS, 1893, ARTICLE 1231, PARAGRAPH 1, 3 COMP. DEC. PAGE 4; ARTICLE 1129 (2),NAVY REGULATIONS, 1909, 18 COMP. DEC. 436; 23 COMP. DEC. 370.

IN 12 COMP. DEC. 620, 622, IT WAS STATED: "THE REGULATION QUOTED PROVIDES FOR HIS RETENTION IN THE HOSPITAL IN THE UNITED STATES FOR TREATMENT AFTER HIS ENLISTMENT HAS EXPIRED FROM MOTIVES OF HUMANITY AND ENTIRELY FOR THE BENEFIT OF THE MAN. HE IS NOT HELD IN MILITARY SERVICE BUT IS MERELY RETAINED IN THE HOSPITAL AS A PATIENT FOR TREATMENT.'

A FURTHER CONSIDERATION OF THE DECISION IN 26 COMP. DEC. 447, AND THE INFERENCE ARISING FROM LEGISLATION APPARENTLY DEEMED NECESSARY TO AUTHORIZE PAY AFTER EXPIRATION OF ENLISTMENT, RAISES A DOUBT THAT THE RULE SHOULD PROPERLY BE EXTENDED TO APPLY SO AS TO AUTHORIZE PAY AFTER EXPIRATION OF ENLISTMENT TO ENLISTED MEN OF THE NAVY WHO ARE DETAINED AWAITING TRIAL BY COURT MARTIAL.

IN RE GRIMLEY, 137 U.S. 147, 150, THE COURT REFERRED TO THE ENLISTMENT CONTRACT IN THE FOLLOWING LANGUAGE:

* * * THIS CASE INVOLVES A MATTER OF CONTRACTUAL RELATION BETWEEN THE PARTIES; AND THE LAW OF CONTRACTS, AS APPLICABLE THERETO, IS WORTHY OF NOTICE. * * *

IN 9 COMP. DEC. 256, IT WAS HELD, QUOTING FROM THE SYLLABUS:

THE PAYMENT TO AN ENLISTED MAN OF THE NAVY, WHO WAS SENTENCED BY COURT- MARTIAL TO IMPRISONMENT FOR A SPECIFIED TERM EXTENDING BEYOND HIS TERM OF ENLISTMENT, WITH FORFEITURE OF PAY AND ALLOWANCES, OF AN AMOUNT EXCEPTED FROM FORFEITURE, IS NOT AUTHORIZED AFTER THE EXPIRATION OF THE TERM OF HIS ENLISTMENT, ALTHOUGH HE WAS NOT DISCHARGED UNTIL THE EXPIRATION OF HIS TERM OF CONFINEMENT.

IN THAT DECISION IT WAS STATED THAT SINCE NO PAY COULD ACCRUE AFTER THE TERMINATION OF ENLISTMENT NONE COULD ACCUMULATE TO BE RESERVED FROM FORFEITURE AND PAID TO THE MAN FOR PERSONAL EXPENSES OR FOR OTHER PURPOSES. SEE ALSO 12 COMP. DEC. 549; 18 ID. 538; 21 ID. 5.

ANY DOUBT AS TO THE NECESSITY FOR SPECIFIC STATUTORY AUTHORITY AS A CONDITION PRECEDENT TO THE RECEIPT OF PAY AFTER EXPIRATION OF THE TERM OF SERVICE WOULD APPEAR TO HAVE BEEN REMOVED SINCE SHORTLY AFTER THE BEGINNING OF THE GOVERNMENT. FOR EXAMPLE, EVEN WHERE OFFICERS AND SEAMEN OF SHIPS OF THE UNITED STATES WERE TAKEN BY THE ENEMY, THE CONGRESS RECOGNIZED THE NECESSITY FOR LEGISLATION TO CONTINUE THEIR PAY AND ALLOWANCES BEYOND THE NORMAL TERM OF SERVICE. SEE IN THIS CONNECTION SECTION 4 OF THE ACT APPROVED MARCH 2, 1799, 1 STAT. 714, 715, AND SECTION 15 OF THE ACT OF JULY 17, 1862, 12 STAT. 609, CARRIED INTO THE REVISED STATUTES AS SECTION 1575 (CODIFIED TITLE 34, U.S. CODE, SEC. 952). LEGISLATION OF A SIMILAR CHARACTER WITH REFERENCE TO PAY NOTWITHSTANDING EXPIRATION OF TERM OF SERVICE OF OFFICERS AND ENLISTED MEN OF THE ARMY WHEN CAPTURED BY THE ENEMY IS FOUND IN SECTION 1288 OF THE REVISED STATUTES DERIVED FROM SECTION 14 OF THE ACT OF MARCH 30, 1814, 3 STAT. 115 (CODIFIED TITLE 10, U.S. CODE, SEC. 846). AND SEE ALSO SECTION 1422, REVISED STATUTES.

ORDINARILY AN ENLISTED MAN'S CONNECTION WITH THE SERVICE CEASES BY LIMITATION OF TIME, BUT THE RIGHT TO BE DISCHARGED IS SUBJECT TO THE PARAMOUNT AUTHORITY OF DETENTION BEYOND THE NORMAL DATE OF EXPIRATION OF ENLISTMENT FOR THE PURPOSE OF PUNISHMENT FOR OFFENSES COMMITTED, OR TRIAL FOR OFFENSES FOR WHICH PROBABLE CAUSE EXISTS AND FOR PUNISHMENT WHERE CONVICTED. SEE ARTICLE 61 OF THE ARTICLES FOR THE GOVERNMENT OF THE NAVY.

AN ENLISTED MAN OF THE NAVY HELD FOR TRIAL OR FOR SENTENCE BY COURT MARTIAL AFTER EXPIRATION OF ENLISTMENT IS BEING HELD TO AWAIT THE COMPLETION OF CRIMINAL PROCEEDINGS AGAINST HIM UNDER AUTHORITY OF THE ARTICLES FOR THE GOVERNMENT OF THE NAVY. HE IS NO MORE ENTITLED TO PAY WHEN SO HELD AFTER EXPIRATION OF HIS ENLISTMENT THAN IS A CIVILIAN WHO IS BEING HELD FOR TRIAL ON A CRIMINAL OFFENSE BY THE CIVIL AUTHORITIES, AND THE FACT THAT THE ISSUANCE OF HIS DISCHARGE IS DELAYED PENDING THE CONCLUSION OF THE PROCEEDINGS GIVES HIM NO RIGHT TO PAY BEYOND THE PERIOD FOR WHICH HE CONTRACTED TO SERVE. THE PERIOD OF RETENTION FOR CRIMINAL PROCEEDINGS IS NO PART OF THE ENLISTMENT CONTRACT AND THE OBLIGATION OF THE GOVERNMENT (SUBJECT, OF COURSE, TO OTHER PROVISIONS OF LAW WHICH MAY AFFECT THE QUESTION) IS TO PAY HIM FOR THE PERIOD FOR WHICH HE CONTRACTED TO SERVE, NOT TO PAY HIM FOR ANY PERIOD HE MAY BE HELD ON CRIMINAL CHARGES AFTER EXPIRATION OF ENLISTMENT, ANY MORE THAN IT WOULD BE OBLIGATED TO PAY HIM AFTER HIS ENLISTMENT HAD EXPIRED IF HE WERE CONVICTED AND SENTENCED TO IMPRISONMENT. ACCORDINGLY, EFFECTIVE OCTOBER 1, 1937, THE RULE AS TO PAY WILL BE AS HEREIN INDICATED AND THE DECISION OF MAY 15, 1922, WILL NOT THEREAFTER BE FOLLOWED.