A-98248, AUGUST 26, 1939, 19 COMP. GEN. 288

A-98248: Aug 26, 1939

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

PAY - AFTER EXPIRATION OF ENLISTMENT AND DURING TREATMENT IN HOSPITAL WHILE MAKING GOOD TIME LOST DUE TO OWN MISCONDUCT WHERE A MARINE CORPS ENLISTED MAN WAS HELD IN SERVICE BEYOND EXPIRATION OF HIS ENLISTMENT IN ORDER TO MAKE GOOD TIME LOST DUE TO HIS OWN MISCONDUCT. BEFORE HE HAD MADE GOOD ALL TIME SO LOST HE WAS AGAIN ADMITTED TO THE HOSPITAL FOR TREATMENT OF THE SAME DISEASE. THE TIME IN HOSPITAL AFTER EXPIRATION OF ENLISTMENT WAS NOT ACTUAL SERVICE UNDER HIS CONTRACT. HE IS NOT ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD OF SUCH HOSPITALIZATION. IT IS REPORTED THAT THE RECORDS OF THE NAVY DEPARTMENT SHOW THAT POTTER WAS ENLISTED IN THE UNITED STATES MARINE CORPS ON DECEMBER 27. WAS ADMITTED TO TREATMENT ABOARD THE U.S.S.

A-98248, AUGUST 26, 1939, 19 COMP. GEN. 288

PAY - AFTER EXPIRATION OF ENLISTMENT AND DURING TREATMENT IN HOSPITAL WHILE MAKING GOOD TIME LOST DUE TO OWN MISCONDUCT WHERE A MARINE CORPS ENLISTED MAN WAS HELD IN SERVICE BEYOND EXPIRATION OF HIS ENLISTMENT IN ORDER TO MAKE GOOD TIME LOST DUE TO HIS OWN MISCONDUCT, AND BEFORE HE HAD MADE GOOD ALL TIME SO LOST HE WAS AGAIN ADMITTED TO THE HOSPITAL FOR TREATMENT OF THE SAME DISEASE, THE TIME IN HOSPITAL AFTER EXPIRATION OF ENLISTMENT WAS NOT ACTUAL SERVICE UNDER HIS CONTRACT, AND HE IS NOT ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD OF SUCH HOSPITALIZATION.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF THE NAVY, AUGUST 26, 1939:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 18, 1939, RELATIVE TO AUDIT EXCEPTIONS TO PAYMENTS MADE ON VOUCHERS NOS. 1455, 1648, 1810, AND 1956, FOR THE MONTHS OF JANUARY, FEBRUARY, MARCH, AND APRIL 1938, ACCOUNTS OF LT. COL. CHARLES A. WYNN. PAYMASTER, DEPARTMENT OF THE PACIFIC, UNITED STATES MARINE CORPS, AGGREGATING $85.75, REPRESENTING PAY AND ALLOWANCES PAID TO PRIVATE, FIRST CLASS, CHARLES R. POTTER, SUBSEQUENT TO THE NORMAL EXPIRATION DATE OF HIS ENLISTMENT.

IT IS REPORTED THAT THE RECORDS OF THE NAVY DEPARTMENT SHOW THAT POTTER WAS ENLISTED IN THE UNITED STATES MARINE CORPS ON DECEMBER 27, 1933; WAS ADMITTED TO TREATMENT ABOARD THE U.S.S. WEST VIRGINIA ON AUGUST 21, 1935, FOR SYPHILIS DUE TO HIS OWN MISCONDUCT AND WAS RETAINED FOR TREATMENT ON BOARD THAT VESSEL UNTIL SEPTEMBER 9, 1935, A TOTAL PERIOD OF 20 DAYS; THAT THE MEDICAL HISTORY IN THE CASE DISCLOSED THAT THE INITIAL SYMPTOM OCCURRED ON THE DATE OF POTTER'S ADMISSION FOR TREATMENT, AUGUST 21, 1925; THAT ON JANUARY 14, 1938, HE WAS ADMITTED TO THE UNITED STATES NAVAL HOSPITAL, NAVY YARD, PUGET SOUND, WASH., FOR TREATMENT OF THE SAME DISEASE AND REMAINED UNDER TREATMENT TO INCLUDE MARCH 31, 1938. IT IS FURTHER REPORTED THAT AFTER RELEASE FROM TREATMENT MARCH 31, 1938, POTTER WAS DISCHARGED FROM THE SERVICE ON APRIL 12, 1938, BY REASON OF EXPIRATION OF ENLISTMENT, HAVING BEEN RETAINED IN THE SERVICE TO MAKE GOOD THE REMAINING TWO DAYS' TIME LOST UNDER NAVY GENERAL ORDER NO. 20 AND DETAINED 10 DAYS FOR THE CONVENIENCE OF THE GOVERNMENT APPARENTLY DUE TO ADMINISTRATIVE REQUIREMENTS.

THE PERIOD OF ACTUAL SERVICE REQUIRED UNDER POTTER'S ENLISTMENT WAS 4 YEARS BEGINNING DECEMBER 27, 1933, AND ENDING DECEMBER 26, 1937, AND BUT FOR THE TIME LOST BETWEEN THOSE DATES THE LATTER DATE WAS THE DATE THAT HIS ENLISTMENT EXPIRED. HE HAD MADE GOOD ALL BUT 2 OF THE 20 DAYS LOST BETWEEN DECEMBER 27, 1937, AND JANUARY 13, 1938, WHEN TREATMENT WAS RESUMED FOR THE DISEASE, THE INITIAL SYMPTOM OF WHICH APPEARED MORE THAN 1 YEAR PREVIOUSLY, AND HE WAS ACCORDED SUCH TREATMENT UNTIL MARCH 31, 1938, PAYMENT OF PAY AND ALLOWANCES AS AN ENLISTED MAN OF THE MARINE CORPS HAVING BEEN CREDITED APPARENTLY BECAUSE OF SECTION 2, ACT OF MAY 17, 1926, 44 STAT. 557, AND THE FACT THE TIME LOST DURING THE ENLISTMENT HAD NOT BEEN COMPLETELY MADE GOOD.

POTTER'S CONTRACT WAS FOR 4 YEARS' ACTUAL SERVICE AND FOR PAY FOR 4 YEARS. ACTUAL SERVICE DAY FOR DAY WAS NECESSARY TO MAKE GOOD THE 20 DAYS' TIME LOST. TIME IN THE HOSPITAL AFTER EXPIRATION OF ENLISTMENT ON ACCOUNT OF SICKNESS OF THE NATURE WHICH WAS BEING MADE GOOD WAS NOT ACTUAL SERVICE UNDER HIS CONTRACT OF ENLISTMENT NOR WAS IT SERVICE MAKING GOOD TIME LOST UNDER HIS CONTRACT OF ENLISTMENT. WHILE THE LOSS OF TIME WHICH IS REQUIRED TO BE MADE GOOD UNDER NAVY GENERAL ORDER NO. 20 AND THE ACT OF AUGUST 29, 1916, AS AMENDED BY THE ACT OF JULY 1, 1918, 30 U.S. CODE, SECTION 183, IS NORMALLY A QUESTION DISTINCT FROM THE QUESTION OF THE RIGHT TO PAY FOR TIME SO LOST UNDER THE ACT OF MAY 17, 1926, THIS LATTER ACT, TITLE 34, U.S. CODE, SECTION 882A-D, BY THE USE OF THE PHRASE "NO PERSON IN THE ACTIVE SERVICE IN THE MILITARY OR NAVAL SERVICE WHO SHALL BE ABSENT FROM HIS REGULAR DUTIES," ETC., CLEARLY CONTEMPLATES ABSENCE FROM SERVICE BETWEEN THE DATE OF ENLISTMENT AND NORMAL DATE OF DISCHARGE AND WAS NOT DESIGNED OR INTENDED TO EXTEND AN ENLISTMENT WITH PAY TO THE EXTENT OF THE HOSPITAL TREATMENT DEEMED DESIRABLE FOR A DISEASE DUE TO THE MAN'S MISCONDUCT SO AS TO CONFER A CONTINUOUS AND INDEFINITE PERIOD OF PAY AND ALLOWANCES UPON A MAN. THAT IS TO SAY, THE AUTOMATIC EXTENSION OF ENLISTMENT AFTER NORMAL DATE OF EXPIRATION OF ENLISTMENT TO MAKE GOOD BY ACTUAL NAVAL SERVICE UNDER THE ACT OF AUGUST 29, 1916, OPERATES TO REQUIRE ACTUAL SERVICE (AS DISTINCT FROM TIME LOST UNDER THE ACT) AND TIME AFTER EXPIRATION OF ENLISTMENT SPENT IN HOSPITAL FOR THE CAUSE THAT MADE NECESSARY THE AUTOMATIC EXTENSION OF ENLISTMENT IS NOT SERVICE FOR PAY. THAT IS, THE AMOUNT ACCRUING TO THE MAN UNDER HIS ENLISTMENT CONTRACT MAY NOT BE INCREASED BY ABSENCE, DURING THE EXTENDED PERIOD OF ENLISTMENT, IN HOSPITAL FOR THE SAME CAUSE THAT MADE THE EXTENSION NECESSARY. FOR THE EFFECT ON THE PAY STATUS OF AN ENLISTED MAN RECEIVING HOSPITAL TREATMENT IN THE UNITED STATES AFTER THE NORMAL DATE OF EXPIRATION OF HIS ENLISTMENT CONTRACT SEE DECISION B-1749, 19 COMP. GEN. 290, TO YOU DATED TODAY.

AS THE PAYMENTS IN QUESTION SEEM TO HAVE BEEN MADE UNDER THE DECISION OF THE FORMER ACCOUNTING OFFICERS WHICH GAVE SOME BASIS THEREFOR, THE ITEMS, IF OTHERWISE CORRECT, WILL BE PASSED TO CREDIT, BUT THE RULE AS INDICATED HEREIN WILL BE FOR APPLICATION TO PAYMENTS HEREAFTER MADE.