B-120000, JULY 19, 1954, 34 COMP. GEN. 28

B-120000: Jul 19, 1954

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COMBAT PAY - CHECK AGES AND FORFEITURES - COURT-MARTIAL SENTENCES - PAY ACCRUED BUT NOT PAID AN ARMY ENLISTED MAN WHO WAS HONORABLY DISCHARGED FROM AN ENLISTMENT IN WHICH HE PERFORMED SERVICE FOR WHICH COMBAT PAY SUBSEQUENTLY WAS AUTHORIZED BY THE COMBAT PAY ACT OF 1952. WHO DESERTED AFTER REENLISTING AND WAS IN A DESERTION STATUS ON THE DATE OF ENACTMENT OF SAID ACT. WHO UPON APPREHENSION WAS SENTENCED BY COURT-MARTIAL TO FORFEIT THE COMBAT PAY FOR DUTY PERFORMED IN THE PRIOR ENLISTMENT. EVEN THOUGH THE STATUTE WHICH AUTHORIZED THE COMBAT PAY WAS NOT ENACTED UNTIL AFTER THE MEMBER'S DESERTION. NEAL PERFORMED SERVICE DURING THE SAID MONTHS OF THE TYPE FOR WHICH COMBAT PAY WAS AUTHORIZED.

B-120000, JULY 19, 1954, 34 COMP. GEN. 28

COMBAT PAY - CHECK AGES AND FORFEITURES - COURT-MARTIAL SENTENCES - PAY ACCRUED BUT NOT PAID AN ARMY ENLISTED MAN WHO WAS HONORABLY DISCHARGED FROM AN ENLISTMENT IN WHICH HE PERFORMED SERVICE FOR WHICH COMBAT PAY SUBSEQUENTLY WAS AUTHORIZED BY THE COMBAT PAY ACT OF 1952, BUT WHO DESERTED AFTER REENLISTING AND WAS IN A DESERTION STATUS ON THE DATE OF ENACTMENT OF SAID ACT, AND WHO UPON APPREHENSION WAS SENTENCED BY COURT-MARTIAL TO FORFEIT THE COMBAT PAY FOR DUTY PERFORMED IN THE PRIOR ENLISTMENT, EVEN THOUGH THE STATUTE WHICH AUTHORIZED THE COMBAT PAY WAS NOT ENACTED UNTIL AFTER THE MEMBER'S DESERTION.

ACTING COMPTROLLER GENERAL WEITZEL TO CAPTAIN C. L. CARDWELL, DEPARTMENT OF THE ARMY, JULY 19, 1954:

BY FIRST ENDORSEMENT OF MAY 10, 1954, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF APRIL 22, 1954, SUBMITTING FOR DECISION AS TO THE LEGALITY OF PAYMENT A VOUCHER COVERING COMBAT PAY FOR AUBREY J. NEAL, FORMER ENLISTED MAN, UNITED STATES ARMY, FOR THE MONTHS FROM JULY THROUGH OCTOBER, 1950, AND MARCH AND APRIL, 1951.

IT APPEARS THAT MR. NEAL PERFORMED SERVICE DURING THE SAID MONTHS OF THE TYPE FOR WHICH COMBAT PAY WAS AUTHORIZED, EFFECTIVE MAY 31, 1950, BY THE COMBAT DUTY PAY ACT OF 1952, APPROVED JULY 10, 1952, 66 STAT. 538.

IT IS STATED THAT THE CLAIMANT WAS HONORABLY DISCHARGED ON JANUARY 4, 1952, FROM THE ENLISTMENT TO WHICH THE CLAIM FOR COMBAT PAY PERTAINS AND REENLISTED ON MARCH 24, 1952; THAT HE DESERTED THE SERVICE ON JULY 7, 1952, AND WAS ABSENT AS A DESERTED UNTIL APPREHENDED ON OR ABOUT OCTOBER 10, 1952; THAT HE WAS CONVICTED OF DESERTION AND SENTENCED TO TO BE DISHONORABLY DISCHARGED AND TO FORFEIT ALL PAY AND ALLOWANCES TO BECOME DUE ON OR AFTER THE DATE OF APPROVAL OF THE SENTENCE; AND THAT SENTENCE WAS ADJUDGED JANUARY 8, 1953, AND AFFIRMED BY GCMO NO. 28, HEADQUARTERS QMTC, FORT LEE, VIRGINIA, DATED APRIL 7, 1953.

IN YOUR LETTER YOU CITE DECISION OF THIS OFFICE DATED JANUARY 11, 1954, 33 COMP. GEN. 288, WHEREIN IT WAS HELD THAT THE RIGHT TO PAYMENT OF COMBAT PAY INCIDENT TO SERVICE IN 1950 AND 1951, ACCRUED ON JULY 10, 1952, AND THAT, HENCE, AN ENLISTED MAN WHO, PRIOR TO JULY 10, 1952, WAS SENTENCED BY COURT MARTIAL TO FORFEIT "PAY AND ALLOWANCES BECOMING DUE ON AND AFTER THE DATE OF THIS ACTION," FORFEITED THE COMBAT PAY OTHERWISE DUE HIM. IN THE CASE YOU PRESENT, HOWEVER, THE COURT-MARTIAL SENTENCE OF FORFEITURE WAS ADJUDGED AFTER THE COMBAT PAY BECAME DUE. YOUR DOUBT AS TO THE PROPRIETY OF PAYMENT ARISES BY REASON OF THE FACT THAT THE CLAIMANT WAS IN THE STATUS OF A DESERTED WHEN THE PAY ACCRUED, JULY 10, 1952, HAVING DESERTED ON JULY 7, 1952. YOU ALSO CALL ATTENTION TO THE FACT THAT THE PERIODS FOR WHICH COMBAT PAY IS CLAIMED WERE PERIODS IN A PRIOR ENLISTMENT OF THE CLAIMANT AND THAT HE WAS HONORABLY DISCHARGED FROM SUCH ENLISTMENT ON MARCH 24, 1952.

THE COURT-MARTIAL SENTENCE OF FORFEITURE OF PAY TO BECOME DUE, BEING ADJUDGED AFTER THE ACCRUAL OF THE COMBAT PAY, WAS INEFFECTIVE TO WORK A FORFEITURE OF SUCH PAY. RESPECTING THE EFFECT ON PAY RIGHTS OF DESERTION, IT UNIFORMLY HAS BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT AN ENLISTED MAN, UPON DESERTION, FORFEITS ALL PAY AND ALLOWANCES DUE AND UNPAID HIM FOR HIS THEN CURRENT ENLISTMENT AT THE TIME OF HIS DESERTION AND EARNS NO PAY DURING THE PERIOD HE IS IN A DESERTION STATUS. SEE 4 COMP. DEC. 279; 14 ID. 408; 27 ID. 46; 8 COMP. GEN. 549; AND UNITED STATES V. LANDERS, 92 U.S. 77.

IN THE PRESENT CASE, HOWEVER, THE COMBAT PAY WAS EARNED IN A PRIOR ENLISTMENT FROM WHICH THE CLAIMANT HAD BEEN HONORABLY DISCHARGED AND THE RIGHT TO PAYMENT THEROF ACCRUED TO HIM INDEPENDENTLY OF THE ENLISTMENT IN WHICH HE WAS SERVING ON THE DATE OF HIS DESERTION. HENCE, IT MUST BE HELD THAT COMBAT PAY FOR DUTY PERFORMED BY THE CLAIMANT DURING THE MONTHS OF JULY THROUGH OCTOBER, 1950, AND MARCH THROUGH APRIL 1951, WAS NOT FORFEITED BY HIS DESERTION IN A SUBSEQUENT ENLISTMENT ON JULY 7, 1952, ALTHOUGH THE STATUTE AUTHORIZING SUCH PAYMENT WAS NOT ENACTED UNTIL AFTER HIS DESERTION. COMPARE 33 COMP. GEN. 316.

ACCORDINGLY, PAYMENT ON THE VOUCHER IS AUTHORIZED, IF OTHERWISE CORRECT. THE VOUCHER AND OTHER PAPERS SUBMITTED WITH YOUR LETTER ARE ENCLOSED.