B-115784, DECEMBER 30, 1953, 33 COMP. GEN. 281

B-115784, DECEMBER 30, 1953, 33 COMP. GEN. 281

PAY - COURT-MARTIAL SENTENCES - EXPIRATION OF ENLISTMENT - RESTORATION TO DUTY PENDING APPELLATE REVIEW AN ENLISTED MAN WHO IS SENTENCED BY A COURT MARTIAL TO DISHONORABLE DISCHARGE, FORFEITURE OF ALL PAY AND ALLOWANCES AND CONFINEMENT AT HARD LABOR FOR FIVE YEARS, AND WHO IS RETAINED IN THE SERVICE AFTER THE EXPIRATION OF ENLISTMENT AND RELEASED FROM CONFINEMENT AND "RESTORED TO DUTY PENDING COMPLETION OF APPELLATE REVIEW," PURSUANT TO A COURT MARTIAL ORDER WHICH PROVIDED THAT THE PORTION OF THE SENTENCE ADJUDGING FORFEITURES WAS NOT APPLICABLE TO FUTURE PAY AND ALLOWANCES, IS ENTITLED TO PAY WHILE PERFORMING DUTY AFTER SUCH DATE, EVEN THOUGH, UPON APPELLATE REVIEW, THE SENTENCE OF DISHONORABLE DISCHARGE IS ORDERED EXECUTED.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO LIEUTENANT COLONEL J. E. COLBERT, DEPARTMENT OF THE ARMY, DECEMBER 30, 1953:

BY SECOND ENDORSEMENT DATED JUNE 15, 1953, THE CHIEF OF FINANCE REFERRED TO THIS OFFICE YOUR LETTER OF MAY 26, 1953, REQUESTING ADVANCE DECISION AS TO WHETHER PAYMENT MAY BE MADE ON THE BASIS OF A MILITARY PAY ORDER SUBMITTED THEREWITH IN FAVOR OF MASTER SERGEANT JOHN F. WEDGE, NG 33,189,885, FOR PAY BEGINNING MARCH 4, 1953, UNDER THE CIRCUMSTANCES STATED IN YOUR LETTER.

IT APPEARS THAT WEDGE ENLISTED IN THE NATIONAL GUARD FOR A PERIOD OF THREE YEARS ON JUNE 16, 1948, AND WAS ORDERED TO ACTIVE DUTY FOR A PERIOD OF TWENTY-FOUR MONTHS ON SEPTEMBER 11, 1950. HE WAS PLACED IN CONFINEMENT ON FEBRUARY 16, 1952, AND BY GENERAL COURT MARTIAL SENTENCE ADJUDGED ON MARCH 21, 1952, AS APPROVED MAY 31, 1952, HE WAS SENTENCED TO DISHONORABLE DISCHARGE, FORFEITURE OF ALL PAY AND ALLOWANCES, AND CONFINEMENT AT HARD LABOR FOR FIVE YEARS. THE RECORD OF TRIAL WAS FORWARDED TO THE JUDGE ADVOCATE GENERAL OF THE ARMY FOR REVIEW BY A BOARD OF REVIEW AND, PENDING COMPLETION OF APPELLATE REVIEW, HE WAS PLACED IN CONFINEMENT. BY GENERAL COURT MARTIAL ORDER DATED MARCH 4, 1953, HE WAS "RESTORED TO DUTY PENDING COMPLETION OF APPELLATE REVIEW.' SUCH ORDER ALSO PROVIDED:

* * * THAT PORTION OF THE SENTENCE ADJUDGING FORFEITURES SHALL NOT APPLY TO PAY AND ALLOWANCES BECOMING DUE ON AND AFTER THE DATE OF THIS ORDER.

SINCE WEDGE IS RETAINED IN THE SERVICE AFTER THE EXPIRATION OF HIS ENLISTMENT PENDING COMPLETION OF APPELLATE REVIEW AND NOT FOR THE PURPOSE OF MAKING GOOD TIME LOST, AND IN VIEW OF THE HOLDING IN B 113109, JANUARY 30, 1953, YOU STATE THAT DOUBT ARISES AS TO WHETHER HE WILL BE IN A PAY STATUS FROM MARCH 4, 1953, TO DATE OF SEPARATION FROM SERVICE, IF UPON COMPLETION OF APPELLATE REVIEW DISHONORABLE DISCHARGE IS ORDERED EXECUTED.

IT HAS BEEN HELD THAT ANY ARMY ENLISTED MAN RETAINED IN THE SERVICE BEYOND THE TERM OF HIS ENLISTMENT AWAITING TRIAL WAS HELD IN THE SERVICE FOR THE CONVENIENCE OF THE GOVERNMENT IN CASE THE TRIAL RESULTED IN AN ACQUITTAL AND THAT SUCH RETENTION WAS NOT FOR THE CONVENIENCE OF THE GOVERNMENT IN THE EVENT THE TRIAL RESULTED IN A CONVICTION. SEE 11 COMP. GEN. 342. AND, NOTWITHSTANDING ARTICLE OF WAR 16, AS AMENDED BY THE ACT OF JUNE 24, 1948, 62 STAT. 630, AND SUBPARAGRAPH 19A, MANUAL FOR COURTS- MARTIAL, U.S. ARMY, 1949, PROVIDING IN EFFECT THAT A PRISONER WILL NOT FORFEIT PAY AND ALLOWANCES DURING A PERIOD OF CONFINEMENT EXCEPT PURSUANT TO SENTENCE ORDERED EXECUTED, IT WAS HELD IN 30 COMP. GEN. 449 THAT PAY AND ALLOWANCES DO NOT ACCRUE TO AN ENLISTED MEMBER 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.

IT WAS ON THAT BASIS THAT IT WAS HELD IN B-113109, JANUARY 30, 1953, (DISTINGUISHED) IN A CASE INVOLVING AN ENLISTED MAN WHO WAS IN DESERTION AT THE TIME HIS ENLISTMENT EXPIRED, THAT SINCE IN SUCH CASES NO PAY ACCRUES UNTIL THE ENLISTED MAN IS RESTORED TO DUTY, THE MAN WAS NOT ENTITLED TO PAY THEREAFTER WHILE IN CONFINEMENT AWAITING TRIAL AND SERVING SENTENCE WHERE THE SENTENCE ADJUDGING TOTAL FORFEITURES AND CONFINEMENT WAS SET ASIDE AND THERE WAS A RESTORATION OF ALL PROPERTY RIGHTS OF WHICH HE HAD BEEN DEPRIVED. HOWEVER, SUCH DECISION HAS NO APPLICATION TO DENY PAY FOR A PERIOD AFTER THE ENLISTED MAN IS RESTORED TO DUTY. IT HAS BEEN HELD THAT WHERE AN ENLISTED MAN OF THE NAVY, SENTENCED BY A COURT MARTIAL TO CONFINEMENT AND DISHONORABLE OR BAD CONDUCT DISCHARGE, IS RESTORED TO DUTY ON PROBATION, HE IS ENTITLED TO PAY WHILE ON PROBATION AND PERFORMING DUTY. B-75057, JUNE 17, 1948. SEE, ALSO, B-33539, APRIL 26, 1943, AND 15 COMP. GEN. 646. A SIMILAR RULE APPEARS APPLICABLE IN THE PRESENT CASE. THEREFORE, SINCE THE ENLISTED MAN HERE INVOLVED HAS BEEN RESTORED TO DUTY AND SINCE THAT PORTION OF HIS SENTENCE ADJUDGING FORFEITURES IS NOT APPLICABLE TO PAY AND ALLOWANCES BECOMING DUE ON AND AFTER THE DATE OF THE ORDER RESTORING HIM TO DUTY, HE IS ENTITLED TO PAY WHILE PERFORMING DUTY, EVEN THOUGH, UPON APPELLATE REVIEW, THE SENTENCE OF DISHONORABLE DISCHARGE IS ORDERED EXECUTED. THE MILITARY PAY ORDER IS RETURNED HEREWITH.