B-113109, JAN 30, 1953

B-113109, JAN 30, 1953

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL J. E. COLBERT, F.C., DISBURSING OFFICER:

BY SECOND INDORSEMENT DATED DECEMBER 8, 1952, THE CHIEF OF FINANCE REFERRED TO THIS OFFICE YOUR LETTER OF OCTOBER 14, 1952, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO WHETHER CREDIT IS LEGALLY AUTHORIZED IN THE ACCOUNT OF PRIVATE WILLIAM A. COLLIER, RA 14,078,372, FOR PAY AND ALLOWANCES FOR THE PERIOD JUNE 29, 1951, TO JUNE 12, 1952.

IT APPEARS THAT COLLIER ENLISTED IN THE REGULAR ARMY FOR TWO YEARS ON DECEMBER 15, 1945; THAT HE DESERTED THE SERVICE ON SEPTEMBER 11, 1946; THAT HE WAS RETURNED TO MILITARY CONTROL ON JUNE 29, 1951, AND PLACED IN CONFINEMENT THE SAME DATE, AND THAT HE WAS ULTIMATELY RELEASED FROM CONFINEMENT AND RETURNED TO A DUTY STATUS ON AUGUST 7, 1952. AS ANNOUNCED IN GENERAL COURT-MARTIAL ORDERS NO. 85, HEADQUARTERS FOURTH ARMY, FORT SAM HOUSTON, TEXAS, DATED AUGUST 24, 1951, COLLIER WAS FOUND GUILTY OF DESERTION IN VIOLATION OF THE 58TH ARTICLE OF WAR AND HE WAS SENTENCED TO BE DISHONORABLY DISCHARGED FROM THE SERVICE, TO FORFEIT ALL PAY AND ALLOWANCES, AND TO BE CONFINED AT HARD LABOR FOR ONE AND ONE-HALF YEARS. GENERAL COURT-MARTIAL ORDERS NO. 105, SAME HEADQUARTERS, DATED AUGUST 1, 1952, ARE AS FOLLOWS:

"IN THE GENERAL COURT-MARTIAL CASE OF PRIVATE WILLIAM ARTHUR COLLIER, RA 14 078 372, U. S. ARMY, ENLISTED DETACHMENT, 4006TH AREA SERVICE UNIT, STATION COMPLEMENT, FORT SAM HOUSTON, TEXAS, PURSUANT TO ARTICLE 67, THE FINDINGS OF GUILTY AND THE SENTENCE AS PROMULGATED BY GENERAL COURT- MARTIAL ORDER NO. 85, THIS HEADQUARTERS, DATED 24 AUGUST 1951, WERE SET ASIDE ON 13 JUNE 1952. THE CHARGES ARE DISMISSED. ALL RIGHTS, PRIVILEGES, AND PROPERTY OF WHICH THE ACCUSED HAS BEEN DEPRIVED BY VIRTUE OF THE FINDINGS OF GUILTY AND THE SENTENCE SO SET ASIDE WILL BE RESTORED. (CM 348060, 201 AKAJA.)"

THE DEFINITE PERIOD OF ACTUAL SERVICE REQUIRED OF THIS ENLISTED MEMBER BY HIS TWO YEAR ENLISTMENT WAS FROM DECEMBER 15, 1945, TO DECEMBER 14, 1947. THE REQUIRED TERM OF SERVICE UNDER THE SAID ENLISTMENT WAS TERMINATED BY OPERATION OF LAW NO LATER THAN JANUARY 25, 1948. SEE SECTION 2, ACT OF DECEMBER 13, 1941, 55 STAT. 799, 800; SECTION 3, ACT OF JULY 25, 1947, 61 STAT. 452; 10 U.S.C., SUPP. V, 16A. 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, IS SET FORTH IN PARAGRAPH 5A, ARMY REGULATIONS NO. 35- 1030, DATED FEBRUARY 7, 1952, WHICH PROVIDES 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 THE ENLISTMENT. THUS, SINCE HIS NON -ENTITLEMENT TO PAY DURING THE PERIOD IN QUESTION AROSE BY OPERATION OF LAW AND NOT AS THE RESULT OF THE COURT-MARTIAL, THE RESTORATION OF THE RIGHTS, BENEFITS, AND PRIVILEGES OF WHICH HE WAS DEPRIVED BY SUCH COURT- MARTIAL COULD NOT OPERATE TO GIVE HIM A STATUS ENTITLING HIM TO PAY AND ALLOWANCES FOR THAT PERIOD.

INASMUCH AS COLLIER'S ENLISTMENT, OR REQUIRED TERM OF SERVICE, EXPIRED NO LATER THAN JANUARY 25, 1948, AT WHICH TIME HE WAS IN A DESERTION STATUS, HE WOULD NOT AGAIN BE ENTITLED TO ACCRUE PAY UNTIL ACTUALLY RESTORED TO A FULL DUTY STATUS FOR THE PURPOSE OF MAKING GOOD THE TIME LOST TO COMPLETE HIS ENLISTMENT. ACCORDINGLY, THERE IS NO AUTHORITY OF LAW TO CREDIT THE ACCOUNT OF THE SAID WILLIAM A. COLLIER WITH PAY AND ALLOWANCES FOR THE PERIOD JUNE 29, 1951, TO JUNE 12, 1952.

THE PAPERS SUBMITTED IN CONNECTION WITH THE MATTER ARE RETAINED IN THIS OFFICE.