B-119488, AUGUST 23, 1954, 34 COMP. GEN. 95

B-119488, AUGUST 23, 1954, 34 COMP. GEN. 95

RECORDS - MILITARY, NAVAL, ETC. - CORRECTION - TRAVEL ALLOWANCE, MUSTERING-OUT AND LEAVE PAYMENTS A DISHONORABLY DISCHARGED ENLISTED MAN WHOSE MILITARY RECORDS WERE CORRECTED TO SHOW HONORABLE DISCHARGE, BUT NOT CORRECTED TO DELETE PAY FORFEITURE PROVISIONS OF COURT-MARTIAL SENTENCE, IS ENTITLED TO TRAVEL ALLOWANCE AND MUSTERING-OUT PAY WHICH ARE INCIDENT TO HONORABLE DISCHARGE; HOWEVER, PAYMENT MAY NOT BE MADE FOR ANY UNUSED LEAVE WHICH IS PART OF MEMBER'S COMPENSATION FOR ACTIVE MILITARY SERVICE. B 116526, SEPTEMBER 8, 1953, OVERRULED IN PART.

ACTING COMPTROLLER GENERAL WEITZEL TO CAPTAIN C. L. CARDWELL, DEPARTMENT OF THE ARMY, AUGUST 23, 1954:

REFERENCE IS MADE TO YOUR REQUEST, RECEIVED WITH FIRST ENDORSEMENT DATED MARCH 29, 1954, FROM THE OFFICE CHIEF OF FINANCE, FOR AN ADVANCE DECISION AS TO WHETHER YOU ARE AUTHORIZED TO PAY A VOUCHER STATED IN FAVOR OF WILLIE D. WILLIS, FORMER ENLISTED MEMBER OF THE ARMY OF THE UNITED STATES, COVERING MUSTERING-OUT PAY, TRAVEL ALLOWANCE ON DISCHARGE AND A LUMP-SUM LEAVE PAYMENT BASED ON THE CORRECTION OF HIS MILITARY RECORDS.

YOU STATE THAT ON SEPTEMBER 2, 1944, PRIVATE WILLIS WAS SENTENCED BY AN ARMY GENERAL COURT-MARTIAL TO BE DISHONORABLY DISCHARGED FROM THE MILITARY SERVICE TO A PERIOD OF CONFINEMENT AND TO FORFEITURE OF PAY AND ALLOWANCES DUE OR TO BECOME DUE. THE SAID GENERAL COURT-MARTIAL SENTENCE WAS THE RESULT OF HIS CONVICTION FOR AN ASSAULT WHICH OCCURRED ON MAY 18, 1944. YOU FURTHER STATE THAT THE SENTENCE WAS APPROVED WITH AN IMMATERIAL MODIFICATION AND THAT WILLIS WAS SEPARATED FROM THE MILITARY SERVICE BY DISHONORABLE DISCHARGE ON NOVEMBER 1, 1946, FOLLOWING HIS RELEASE FROM CONFINEMENT.

THE RECORD SHOWS THAT ON APRIL 25, 1950, THE SECRETARY OF THE ARMY, ACTING PURSUANT TO THE AUTHORITY VESTED IN HIM BY SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, 60 STAT. 812, 5 U.S.C. 191A, DIRECTED (1) THAT ALL DEPARTMENT OF THE ARMY RECORDS OF FORMER PRIVATE WILLIE D. WILLIS, ARMY SERIAL NO. 38 226 165, BE CORRECTED TO SHOW HIM AS HONORABLY SEPARATED FROM THE ARMY OF THE UNITED STATES ON NOVEMBER 1, 1946, IN LIEU OF A DISHONORABLE SEPARATION; (2) THAT THE DEPARTMENT OF THE ARMY ISSUE TO WILLIE D. WILLIS, A CERTIFICATE OF HONORABLE DISCHARGE FROM THE ARMY OF THE UNITED STATES, DATED NOVEMBER 1, 1946, IN LIEU OF THE DISHONORABLE DISCHARGE CERTIFICATE OF THE SAME DATE AND (3) THAT TIME LOST UNDER ARTICLE OF WAR 107 AS A RESULT OF HIS TRIAL AND CONVICTION BY A GENERAL COURT-MARTIAL STRICKEN FROM THE RECORDS. SUBSEQUENTLY, FOLLOWING AMENDMENT OF SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946 BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 655, THE SECRETARY OF THE ARMY DIRECTED IN A MEMORANDUM DATED SEPTEMBER 3, 1952, THAT THE DEPARTMENT OF THE ARMY PAY TO WILLIE D. WILLIS ALL MONEY FOUND TO BE DUE HIM AS A RESULT OF THE CORRECTION OF HIS MILITARY RECORDS AS DIRECTED BY THE SECRETARY OF THE ARMY UNDER DATE OF APRIL 25, 1950 "BUT LIMITED TO MUSTERING OUT PAY, TRAVEL PAY AND PAY FOR UNUSED LEAVE ACCRUED ON 18 MAY 1944, LESS ANY PROPER DEDUCTIONS.'

THE AMOUNT AUTHORIZED TO BE PAID UNDER SECTION 207 (B) OF THE ACT OF OCTOBER 25, 1951, AS A RESULT OF THE CORRECTION OF A MILITARY RECORD THERETOFORE MADE PURSUANT TO THE PROVISIONS OF SECTION 207 OF THE 1946 ACT, AS ORIGINALLY ENACTED, OR AS A RESULT OF A CORRECTION MADE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 207 (A) AS AMENDED BY THE 1951 LAW, DEPENDS ON A PROPER APPLICATION OF THE PERTINENT STATUTES TO THE FACTS IN THE CASE AND THE CLAIMANT'S STATUS AS FIXED BY HIS CORRECTED MILITARY RECORDS. 32 COMP. GEN. 242, 246. COMPARE 32 COMP. GEN. 294. DECISION OF JULY 7, 1954, B-117367, 34 COMP. GEN. 7, TO THE SECRETARY OF THE ARMY, IT WAS HELD THAT---

IN VIEW OF THE REASONABLY CLEAR AND UNAMBIGUOUS LANGUAGE OF SECTION 207, AS AMENDED, AND THE OBVIOUS PURPOSE OF THE CONGRESS AS EVIDENCED BY SUCH LANGUAGE AND THE HISTORY OF THE 1951 AMENDING ACT, THE CONCLUSION IS REQUIRED THAT THE SECRETARIES OF THE DEPARTMENTS CONCERNED ARE NOT VESTED, IMPLIEDLY OR OTHERWISE, WITH ANY DISCRETIONARY POWER TO MAKE DETERMINATIONS OF THE SPECIFIC AMOUNTS TO BE PAID AS A RESULT OF THE CORRECTION OF MILITARY OR NAVAL RECORDS AND THAT THE AMOUNTS LAWFULLY AUTHORIZED TO BE PAID UNDER SECTION 207 (B), PURSUANT TO THE CORRECTION OF MILITARY OR NAVAL RECORDS ARE NOT DEPENDENT UPON EITHER THE JUDGMENT OR THE GENEROSITY OF SUCH SECRETARIES IN ANY PARTICULAR SITUATION BUT DEPEND SOLELY ON A PROPER APPLICATION OF THE STATUTES TO THE FACTS OR PURPORTED FACTS AS SHOWN BY THE CORRECTED RECORD IN THE PARTICULAR CASE.

ACCORDINGLY, THE FORMER ENLISTED MAN'S RIGHT, IF ANY, TO PAYMENT OF MUSTERING-OUT PAY, A TRAVEL ALLOWANCE INCIDENT TO HIS DISCHARGE AND A LUMP -SUM LEAVE PAYMENT IS NOT RESTRICTED OR ENLARGED BY THE DIRECTIVE OF THE SECRETARY OF THE ARMY DATED SEPTEMBER 3, 1952, BUT DEPENDS SOLELY ON THE PROPER APPLICATION OF THE PERTINENT STATUTES TO THE FACTS, OR PURPORTED FACTS, AS SHOWN BY THE CORRECTED MILITARY RECORDS IN THIS CASE. AS ABOVE INDICATED, WILLIS WAS DISHONORABLY DISCHARGED FROM THE MILITARY SERVICE ON NOVEMBER 1, 1946, PURSUANT TO AN ARMY GENERAL COURT-MARTIAL SENTENCE ADJUDGED SEPTEMBER 2, 1944, IMPOSING CONFINEMENT AND FORFEITURE OF ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE HIM. HIS MILITARY RECORDS ARE REPORTED TO HAVE BEEN CORRECTED TO SHOW HIM AS HAVING BEEN HONORABLY SEPARATED FROM THE MILITARY SERVICE ON NOVEMBER 1, 1946; TO SHOW ISSUANCE OF A CERTIFICATE OF HONORABLE DISCHARGE FROM THE ARMY OF THE UNITED STATES; AND TO SHOW NO TIME LOST UNDER ARTICLE OF WAR 107. HOWEVER, THE CORRECTION OF WILLIS' MILITARY RECORDS DOES NOT EXPRESSLY REVERSE OR IN ANY MANNER AFFECT THAT PART OF THE GENERAL COURT-MARTIAL SENTENCE IMPOSING FORFEITURE OF ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE HIM AND THE PRECISE QUESTION PRESENTED IS WHETHER, UNDER SUCH CIRCUMSTANCES, PAYMENT OF MUSTERING-OUT PAY, TRAVEL ALLOWANCE INCIDENT TO DISCHARGE AND LUMP-SUM LEAVE PAYMENT PROPERLY MAY BE MADE TO HIM IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF LAW GOVERNING THOSE BENEFITS.

SECTION 126, ACT OF JUNE 3, 1916, AS AMENDED BY SECTION 21, ACT OF AUGUST 2, 1946, 60 STAT. 856 (SEE 10 U.S.C. 752, 1946 USED./--- THE TRAVEL ALLOWANCE LAW IN EFFECT ON NOVEMBER 1, 1946--- PRESCRIBED A TRAVEL ALLOWANCE OF FIVE CENTS PER MILE TO AN ENLISTED PERSON OF THE ARMY, INCLUDING THE RESERVE COMPONENTS,"UPON DISCHARGE EXCEPT BY WAY OF PUNISHMENT FOR AN OFFENSE.' THE TRAVEL ALLOWANCE SO PROVIDED FOR AN ENLISTED PERSON DISCHARGED FROM THE MILITARY SERVICE EXCEPT BY WAY OF PUNISHMENT FOR AN OFFENSE IS A COMMUTATION OF TRANSPORTATION IN KIND, THE RIGHT TO WHICH ACCRUES ONLY UPON DISCHARGE FROM THE MILITARY SERVICE UNDER THE CONDITIONS STIPULATED IN THE STATUTE. HENCE, A TRAVEL ALLOWANCE INCIDENT TO DISCHARGE DOES NOT CONSTITUTE PART OF THE STATUTORY PAY AND ALLOWANCES IN THE NATURE OF COMPENSATION WHICH BECOME DUE AND PAYABLE TO AN ENLISTED PERSON FOR HIS SERVICE WHILE IN THE ACTIVE MILITARY SERVICE. SEE 3 COMP. GEN. 207; 3 COMP. GEN. 534, 536. COMPARE SHERBURNE V. UNITED STATES, 16 C.1CLS. 491, 497.

A SENTENCE OF A GENERAL COURT-MARTIAL IMPOSING FORFEITURE OF ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE OPERATES ONLY ON THOSE ITEMS OF STATUTORY PAY AND ALLOWANCES COMPRISING AN INDIVIDUAL'S COMPENSATION FOR HIS ACTIVE MILITARY SERVICES DURING THE PERIOD OF CURRENT ENLISTMENT AND DOES NOT AFFECT SUCH AN INDIVIDUAL'S RIGHT TO A TRAVEL ALLOWANCE UPON DISCHARGE FROM THE MILITARY SERVICE, IF OTHERWISE ENTITLED. THUS, WILLIS IS ENTITLED TO THE TRAVEL ALLOWANCE BENEFITS HE WOULD HAVE RECEIVED HAD HE ORIGINALLY BEEN GRANTED AN HONORABLE DISCHARGE ON NOVEMBER 1, 1946, THE SUBSEQUENT CORRECTION OF HIS MILITARY RECORDS TO SHOW HIM AS HONORABLY DISCHARGED ON THAT DATE HAVING THE EFFECT OF CHANGING THE CHARACTER OF HIS SEPARATION FROM THAT OF A DISCHARGE NOT BY WAY OF PUNISHMENT FOR AN OFFENSE. ACCORDINGLY, PAYMENT OF A TRAVEL ALLOWANCE BASED UPON THE CORRECTION OF WILLIS' MILITARY RECORDS IS PROPER. SEE DECISION OF TODAY TO YOU IN THE CASE OF BERNARD B. MILLER, 34 COMP. GEN. 93.

THE MUSTERING-OUT PAYMENT ACT OF 1944, 58 STAT. 8 (38 U.S.C. 691 691G, 1946 USED.), IN PERTINENT PART PROVIDES THAT "EACH MEMBER OF THE ARMED FORCES WHO SHALL HAVE BEEN ENGAGED IN ACTIVE SERVICE IN THE PRESENT WAR, AND WHO IS DISCHARGED OR RELIEVED FROM ACTIVE SERVICE UNDER HONORABLE CONDITIONS ON OR AFTER DECEMBER 7, 1941, SHALL BE ELIGIBLE TO RECEIVE MUSTERING-OUT PAYMENT.' INASMUCH AS WILLIS' MILITARY RECORDS, AS CORRECTED, NOW SHOW THAT HE WAS HONORABLY SEPARATED FROM THE MILITARY SERVICE ON NOVEMBER 1, 1946, AND THAT A CERTIFICATE OF HONORABLE DISCHARGE FROM THE ARMY OF THE UNITED STATES HAS BEEN ISSUED TO HIM, HE IS ENTITLED TO THE BENEFITS PRESCRIBED IN THE MUSTERING-OUT PAYMENT ACT OF 1944, AND PAYMENT TO HIM OF MUSTERING OUT PAY IS AUTHORIZED, IF OTHERWISE CORRECT.

UNDER THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963 (37 U.S.C. 32-37, 10 U.S.C. 18, 1946 USED.), EACH MEMBER OF THE ARMED FORCES BECAME ENTITLED TO LEAVE AT THE RATE OF TWO AND ONE-HALF CALENDAR DAYS FOR EACH MONTH OF ACTIVE SERVICE, EXCLUDING PERIODS OF (1) ABSENCE FROM DUTY WITHOUT LEAVE, (2) ABSENCE OVER LEAVE, AND (3) CONFINEMENT AS THE RESULT OF A SENTENCE OF COURT-MARTIAL. SUCH LEAVE IN THE CASE OF ENLISTED MEMBERS WAS CUMULATIVE FROM SEPTEMBER 8, 1939, SUBJECT TO CERTAIN LIMITATIONS SPECIFIED IN THE ACT, AND A MEMBER OF THE ARMED FORCES ON ACTIVE DUTY ON SEPTEMBER 1, 1946 (OTHER THAN A MEMBER ON TERMINAL LEAVE ON SUCH DATE) WHO HAD TO HIS CREDIT ON AUGUST 31, 1946, ACCUMULATED OR ACCRUED LEAVE AGGREGATING IN EXCESS OF 60 DAYS BECAME ENTITLED TO RECEIVE SETTLEMENT IN THE MANNER PRESCRIBED IN SECTION 6 OF THE ACT FOR THE NUMBER OF DAYS OF SUCH EXCESS LEAVE COMPUTED ON THE BASIS OF THE RATES OF PAY AND ALLOWANCES THAT WERE IN EFFECT ON AUGUST 31, 1946. SEE SECTIONS 4 (A) AND 5 (B), 60 STAT. 964, 965, 37 U.S.C. 33 (A), 34 (B), 1946 USED., RESPECTIVELY. IT SEEMS APPARENT THAT ACCUMULATED AND ACCRUED LEAVE AGGREGATING IN EXCESS OF 60 DAYS ON AUGUST 31, 1946, IN THE CASE OF A MEMBER ON ACTIVE DUTY ON SEPTEMBER 1, 1946, AUTHORIZED TO BE SETTLED AND COMPENSATED UNDER THE AFORESAID PROVISIONS OF LAW CONSTITUTES PART OF SUCH MEMBER'S STATUTORY ALLOWANCES IN THE NATURE OF COMPENSATION PAYABLE SOLELY ON ACCOUNT OF ACTIVE MILITARY SERVICE WHILE IN THE SERVICE. THEREFORE, UNDER THE RULE PREVIOUSLY STATED AND SINCE THE CORRECTION OF WILLIS' MILITARY RECORDS HAS NOT REACHED OR IN ANY MANNER MODIFIED OR AFFECTED THAT PART OF THE GENERAL COURT-MARTIAL SENTENCE OF SEPTEMBER 2, 1944, IN HIS CASE, IMPOSING FORFEITURE OF ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE HIM, IT MUST BE HELD THAT PAY FOR ANY ACCUMULATED AND ACCRUED LEAVE IN EXCESS OF 60 DAYS TO HIS CREDIT ON AUGUST 31, 1946 (OR AS OF MAY 18, 1944, AS INDICATED ON THE VOUCHER), HAS BEEN FORFEITED PURSUANT TO THE EXPLICIT TERMS OF THE GENERAL COURT-MARTIAL SENTENCE. TO THE EXTENT THAT DECISION OF SEPTEMBER 8, 1953, B-116526, MAY BE CONTRARY TO THIS CONCLUSION IT WILL NO LONGER BE FOLLOWED.

ACCORDINGLY, PAYMENT ON THE VOUCHER PRESENTED, WHICH IS RETURNED HEREWITH, MAY BE MADE ONLY AS TO THE ITEMS OF MUSTERING-OUT PAY AND TRAVEL ALLOWANCE ON DISCHARGE, LESS THE AMOUNTS PREVIOUSLY PAID TO WILLIS IN LIEU OF A TRAVEL ALLOWANCE UPON HIS DISHONORABLE DISCHARGE FROM THE ARMY ON NOVEMBER 1, 1946. A COPY OF THIS DECISION SHOULD BE ATTACHED TO THE VOUCHER UPON WHICH PAYMENT IS MADE.