B-107391, AUG 7, 1952

B-107391: Aug 7, 1952

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FLYNN: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 6. THE DATE OF APPROVAL OF THE GENERAL COURT-MARTIAL SENTENCE UNDER WHICH YOU WERE TO BE DISHONORABLY DISCHARGED FROM THE SERVICE. WAS DISALLOWED SUBSTANTIALLY FOR THE REASON THAT THE RECORDS SHOW YOU WERE APPREHENDED AFTER THE EXPIRATION OF YOUR TERM OF SERVICE. SINCE YOU WERE IN CONFINEMENT FROM THE DATE OF YOUR RETURN TO MILITARY CONTROL TO THE DATE OF YOUR DISCHARGE. YOU WERE NOT ENTITLED TO PAY AND ALLOWANCES FOR THAT PERIOD. IN YOUR REQUEST FOR A REVIEW OF THE MATTER YOU CONTEND THAT THE DISALLOWANCE OF YOUR CLAIM UNDOUBTEDLY WAS BASED ON ARMY REGULATIONS NO. 35-1420 DATED DECEMBER 15. PARAGRAPH 6C OF WHICH PROVIDES THAT AN ENLISTED PERSON IN DESERTION WHO SURRENDERS OR IS APPREHENDED AFTER THE EXPIRATION OF HIS ENLISTMENT PERIOD IS NOT ENTITLED TO AGAIN ACCRUE PAY AND ALLOWANCES UNTIL HE SHALL HAVE BEEN RESTORED TO A DUTY STATUS.

B-107391, AUG 7, 1952

PRECIS-UNAVAILABLE

RALPH W. FLYNN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 6, 1951, AND YOUR UNDATED LETTER, POSTMARKED MARCH 3, 1952, CONCERNING GENERAL ACCOUNTING OFFICE SETTLEMENT DATED NOVEMBER 19, 1951, WHICH DISALLOWED YOUR CLAIM FOR PAY FOR THE PERIOD FROM SEPTEMBER 5 TO DECEMBER 7, 1950, INCIDENT TO YOUR STATUS AS AN ENLISTED MAN, UNITED STATES AIR FORCE. THERE HAS BEEN RECEIVED, ALSO, YOUR LETTER OF JUNE 30, 1952, INQUIRING AS TO THE STATUS OF YOUR CLAIM.

YOUR CLAIM FOR PAY FROM THE DATE OF YOUR RETURN TO MILITARY CONTROL FROM A DESERTER STATUS ON SEPTEMBER 5, 1950 TO DECEMBER 7, 1950, THE DATE OF APPROVAL OF THE GENERAL COURT-MARTIAL SENTENCE UNDER WHICH YOU WERE TO BE DISHONORABLY DISCHARGED FROM THE SERVICE, WAS DISALLOWED SUBSTANTIALLY FOR THE REASON THAT THE RECORDS SHOW YOU WERE APPREHENDED AFTER THE EXPIRATION OF YOUR TERM OF SERVICE, AND SINCE YOU WERE IN CONFINEMENT FROM THE DATE OF YOUR RETURN TO MILITARY CONTROL TO THE DATE OF YOUR DISCHARGE, YOU WERE NOT ENTITLED TO PAY AND ALLOWANCES FOR THAT PERIOD.

IN YOUR REQUEST FOR A REVIEW OF THE MATTER YOU CONTEND THAT THE DISALLOWANCE OF YOUR CLAIM UNDOUBTEDLY WAS BASED ON ARMY REGULATIONS NO. 35-1420 DATED DECEMBER 15, 1939, PARAGRAPH 6C OF WHICH PROVIDES THAT AN ENLISTED PERSON IN DESERTION WHO SURRENDERS OR IS APPREHENDED AFTER THE EXPIRATION OF HIS ENLISTMENT PERIOD IS NOT ENTITLED TO AGAIN ACCRUE PAY AND ALLOWANCES UNTIL HE SHALL HAVE BEEN RESTORED TO A DUTY STATUS. YOU STATE THAT YOU ARE ENTITLED TO SUCH PAY AND YOU BASE YOUR CONTENTION ON THE FACT THAT THE SAID ARMY REGULATIONS DATED DECEMBER 15, 1939, WERE SUPERSEDED BY ARMY REGULATIONS NO. 35-1030 DATED JANUARY 10, 1950, PARAGRAPH 6D OF WHICH PROVIDES THAT THE PAY AND ALLOWANCES OF AN ABSENTEE WHO SURRENDERS OR WHO IS APPREHENDED AFTER THE EXPIRATION OF HIS TERM OF ENLISTMENT, AND WHO IS BEING HELD AWAITING TRIAL BY COURT-MARTIAL, NOT BARRED BY THE STATUTE OF LIMITATIONS (ARTICLE OF WAR 39), WILL ACCRUE FROM THE DATE HIS RETURN TO MILITARY CONTROL IS EFFECTED.

IN A LETTER DATED APRIL 28, 1952, THE OFFICE OF THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, REPORTED THAT YOU WERE INDUCTED INTO THE MILITARY SERVICE ON APRIL 20, 1943; THAT YOU REPORTED FOR ACTIVE DUTY ON APRIL 27, 1943; AND THAT YOU WERE DISHONORABLY DISCHARGED ON DECEMBER 18, 1950, PURSUANT TO SENTENCE IMPOSED BY GENERAL COURT MARTIAL. THE REPORT SHOWS THAT YOU WERE ABSENT WITHOUT LEAVE OR IN DESERTION FROM APRIL 21, 1945 TO SEPTEMBER 4, 1950, AND THAT YOU ACTUALLY WERE IN CONFINEMENT FROM SEPTEMBER 5 TO DECEMBER 18, 1950. THE REPORT FURTHER STATES THAT YOU WERE TRIED AND FOUND GUILTY BEFORE A GENERAL COURT-MARTIAL FOR VIOLATION OF THE 58TH ARTICLE OF WAR, IN THAT YOU DID ON OR ABOUT APRIL 21, 1945, DESERT THE SERVICE AND DID REMAIN ABSENT IN DESERTION UNTIL YOU WERE APPREHENDED ON OR ABOUT SEPTEMBER 5, 1950, AND THAT YOU WERE SENTENCED TO BE DISHONORABLY DISCHARGED FROM THE SERVICE, TO FORFEIT ALL PAY AND ALLOWANCES TO BECOME DUE AFTER THE DATE OF THE ORDER DIRECTING EXECUTION OF THE SENTENCE, AND TO BE CONFINED AT HARD LABOR FOR THREE YEARS. THE SAID SENTENCE WAS ADJUDGED NOVEMBER 6, 1950, AND WAS APPROVED AND ORDERED EXECUTED AS PUBLISHED IN GENERAL COURT-MARTIAL ORDERS NO. 192, DATED DECEMBER 7, 1950, AND PURSUANT THERETO YOU WERE DISHONORABLY DISCHARGED ON DECEMBER 18, 1950.

SECTION 2 OF THE ACT OF DECEMBER 13, 1941, 55 STAT. 799, 800, PROVIDED THAT THE PERIODS OF SERVICE, TRAINING AND SERVICE, ENLISTMENT, APPOINTMENT, OR COMMISSION, OF ALL MEMBERS OF THE ARMY OF THE UNITED STATES, THEN OR THEREAFTER IN OR SUBJECT TO ACTIVE MILITARY SERVICE OF THE UNITED STATES, WOULD BE EXTENDED FOR THE DURATION OF ANY WAR IN WHICH THE UNITED STATES WAS ENGAGED AND FOR SIX MONTHS IMMEDIATELY FOLLOWING THE TERMINATION OF SUCH WAR. SECTION 3 OF THE ACT OF JULY 25, 1947, 61 STAT. 451, 452, PROVIDES THAT FOR THE PURPOSES OF THE LAWS SPECIFICALLY REFERRED TO THEREIN, INCLUDING THE SAID SECTION 2 OF THE ACT OF DECEMBER 13, 1941, WORLD WAR II SHALL BE CONSIDERED AS HAVING TERMINATED ON THE DATE OF APPROVAL OF THAT ACT, THAT IS, JULY 25, 1947. THUS, YOUR PERIOD OF SERVICE IN THE ARMY OF THE UNITED STATES, REQUIRED BY LAW TO BE FOR THE DURATION OF THE WAR AND SIX MONTHS THEREAFTER, EXPIRED SIX MONTHS SUBSEQUENT TO JULY 25, 1947, OR ON JANUARY 25, 1948, AT WHICH TIME YOU WERE IN A DESERTION STATUS.

PARAGRAPH 6C OF ARMY REGULATIONS NO. 35-1420, DATED DECEMBER 15, 1939, WHICH YOU CITE IN YOUR LETTER, MERELY SETS FORTH A LONG ESTABLISHED RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT. SEE 20 COMP. DEC. 751; 3 COMP. GEN. 874; 9 ID. 323. IN THE LATTER DECISION IT WAS HELD (QUOTING THE SYLLABUS) THAT:

"WHERE AN ENLISTED MAN IN THE ARMY WHO HAD LOST TIME DURING HIS ENLISTMENT, REQUIRED TO BE MADE GOOD BY THE ACT OF APRIL 27, 1914, 38 STAT. 353, AND THE ONE HUNDRED AND SEVENTH ARTICLE OF WAR, SURRENDERED AFTER THE EXPIRATION OF HIS ENLISTMENT, THE TIME THEREAFTER WHILE HE WAS AWAITING TRIAL AND SERVING SENTENCE, PRIOR TO RESTORATION TO A FULL DUTY STATUS FOR THE PURPOSES OF MAKING GOOD THE TIME LOST, UNDER THE STATUTE, MAY NOT BE COUNTED TO COMPLETE HIS ENLISTMENT, AND PAY FOR SUCH PERIOD IS NOT AUTHORIZED."

IN THE ABSENCE OF CLEAR STATUTORY AUTHORITY THEREFOR, THE ARMY REGULATION OF JANUARY 10, 1950, WHICH YOU CITE MAY NOT BE VIEWED AS CHANGING THE LONG -ESTABLISHED RULE WITH RESPECT TO THE RIGHTS AND OBLIGATIONS OF EITHER THE GOVERNMENT OR THE ENLISTED MAN WHO IS IN DESERTION AT THE EXPIRATION OF HIS TERM OF SERVICE AND SUBSEQUENTLY RETURNED TO MILITARY CONTROL. THE SAID REGULATION DOES NOT CITE THE AUTHORITY UNDER WHICH IT IS PURPORTED TO HAVE BEEN ISSUED AND THIS OFFICE IS NOT AWARE OF ANY SUCH AUTHORITY. THAT CONNECTION, IT IS NOTED THAT THE 16TH ARTICLE OF WAR AS AMENDED BY THE ACT OF JUNE 24, 1948, 62 STAT. 630, IN EFFECT DURING THE PERIOD INVOLVED, PROVIDED IN PART AS FOLLOWS:

"*** NOR SHALL ANY DEFENDANT AWAITING TRIAL BE MADE SUBJECT TO PUNISHMENT OR PENALTIES OTHER THAN CONFINEMENT PRIOR TO SENTENCE ON CHARGES AGAINST HIM."

IT MAY BE THAT SUCH PROVISION WAS CONSIDERED AS AUTHORITY FOR ISSUING THE ARMY REGULATION ON WHICH YOUR CLAIM IS PREDICATED. IN A DECISION OF THIS OFFICE DATED MAY 14, 1951, B-100037, 30 COMP. GEN. 449, THE SAID PROVISION OF THE 16TH ARTICLE OF WAR WAS CONSIDERED IN CONJUNCTION WITH A PROVISION CONTAINED IN SUBPARAGRAPH 19A, MANUAL FOR COURTS-MARTIAL, U.S. ARMY, 1949, TO THE EFFECT THAT AN ACCUSED WHO IS CONFINED AWAITING TRIAL SHALL NOT BE MADE SUBJECT TO PUNISHMENTS OR PENALTIES OTHER THAN CONFINEMENT FOR AN OFFENSE WITH WHICH HE STANDS CHARGED PRIOR TO EXECUTION OF AN APPROVED SENTENCE ON CHARGES AGAINST HIM AND WILL NOT FORFEIT PAY OR ALLOWANCES DURING THE PERIOD OF CONFINEMENT EXCEPT PURSUANT TO A SENTENCE ORDERED EXECUTED. FOLLOWING PRIOR DECISIONS OF THIS OFFICE, IT WAS POINTED OUT IN SUCH DECISION THAT PAY AND ALLOWANCES SIMPLY DO NOT ACCRUE TO AN ENLISTED PERSON AFTER THE EXPIRATION OF HIS ENLISTMENT, UNLESS HE IS HELD IN THE SERVICE FOR THE CONVENIENCE OF THE GOVERNMENT OR FOR THE PURPOSE OF MAKING GOOD TIME LOST, AND THAT THE NONPAYMENT OF PAY AND ALLOWANCES WHICH DO NOT ACCRUE DOES NOT CONSTITUTE A FORFEITURE OF PAY OR ANY PUNISHMENT OR PENALTY OTHER THAN CONFINEMENT WITHIN THE MEANING OF THE SAID STATUTORY PROVISIONS. HENCE, IT WAS REITERATED THAT THE PAY AND ALLOWANCES OF AN ENLISTED MAN WHOSE TERM OF ENLISTMENT EXPIRES WHILE HE IS IN CONFINEMENT AWAITING TRIAL BY COURT-MARTIAL TERMINATE ON THE DATE OF EXPIRATION OF HIS ENLISTMENT UNLESS HE IS ACQUITTED, THE CONCLUSION BEING REQUIRED, UNDER SUCH CIRCUMSTANCES, THAT THE MAN IS NOT HELD IN THE SERVICE FOR THE CONVENIENCE OF THE GOVERNMENT OR FOR THE PURPOSE OF MAKING GOOD TIME LOST. A COPY OF THE SAID DECISION OF MAY 14, 1951, IS ENCLOSED HEREWITH FOR YOUR INFORMATION. MOREOVER, IT MAY BE POINTED OUT THAT THE ARMY REGULATIONS OF JANUARY 10, 1950, REFERRED TO IN YOUR LETTER, HAVE SINCE BEEN SUPERSEDED BY ARMY REGULATIONS NO. 35-1030, DATED FEBRUARY 7, 1952, WHICH (IN PARAGRAPHS 5A AND 5C) FOLLOW THE LONG ESTABLISHED RULE WITH RESPECT TO THE PAY AND ALLOWANCES OF AN ENLISTED MAN WHO IS IN DESERTION AT THE EXPIRATION OF HIS TERM OF SERVICE AND IS SUBSEQUENTLY RESTORED TO MILITARY CONTROL, AND PROVIDE THAT SUCH A MAN DOES NOT ACCRUE PAY UNTIL HE IS RESTORED TO A FULL DUTY STATUS FOR THE PURPOSE OF MAKING GOOD THE TIME LOST TO COMPLETE HIS ENLISTMENT.

ACCORDINGLY, SINCE YOUR REQUIRED TERM OF SERVICE EXPIRED SIX MONTHS SUBSEQUENT TO JULY 25, 1947, OR ON JANUARY 25, 1948, AT WHICH TIME YOU WERE IN A DESERTION STATUS, YOU WERE NOT AGAIN ENTITLED TO ACCRUE PAY UNLESS RESTORED TO A DUTY STATUS. THE RECORD INDICATES THAT YOU WERE NOT RESTORED TO A FULL DUTY STATUS DURING THE PERIOD INVOLVED BUT THAT YOU WERE MERELY HELD FOR THE PURPOSE OF STANDING TRIAL WHICH TRIAL RESULTED IN A CONVICTION, AND HENCE, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM. FOR THE REASONS STATED HEREIN, THE SETTLEMENT DATED NOVEMBER 19, 1951, IS SUSTAINED.