B-120509, AUGUST 13, 1954, 34 COMP. GEN. 65

B-120509: Aug 13, 1954

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PAY - DISABILITY SEVERANCE PAY - DISABILITY INCURRED WHILE IN PAY FORFEITURE STATUS A MEMBER OF UNIFORMED SERVICES WHO INCURRED A DISABILITY WHILE IN A PAY FORFEITURE STATUS IS NOT ENTITLED TO THE DISABILITY SEVERANCE PAY WHICH IS AUTHORIZED BY THE CAREER COMPENSATION ACT OF 1949 FOR MEMBERS WHO INCUR DISABILITY WHILE ENTITLED TO RECEIVE BASIC PAY. WAS TRIED BY GENERAL COURT- MARTIAL AND FOUND GUILTY OF RAPE. HE WAS SENTENCED ON 20 JUN 52. A COPY OF WHICH IS ATTACHED. PRIVATE DULING WAS IN A SENTENCED PRISONER STATUS. ON 20 APR 53 THE SECRETARY OF THE ARMY REMITTED THE UNEXECUTED PORTION OF THE SENTENCE INCLUDING THE DISHONORABLE DISCHARGE AND PRIVATE DULING WAS RESTORED TO DUTY. DULING WAS ADMITTED TO THE ARMY HOSPITAL.

B-120509, AUGUST 13, 1954, 34 COMP. GEN. 65

PAY - DISABILITY SEVERANCE PAY - DISABILITY INCURRED WHILE IN PAY FORFEITURE STATUS A MEMBER OF UNIFORMED SERVICES WHO INCURRED A DISABILITY WHILE IN A PAY FORFEITURE STATUS IS NOT ENTITLED TO THE DISABILITY SEVERANCE PAY WHICH IS AUTHORIZED BY THE CAREER COMPENSATION ACT OF 1949 FOR MEMBERS WHO INCUR DISABILITY WHILE ENTITLED TO RECEIVE BASIC PAY, EVEN THOUGH THE SECRETARY OF THE DEPARTMENT REMITS THE UNEXECUTED PORTION OF THE SENTENCE INCLUDING ALL UNCOLLECTED FORFEITURES.

ACTING COMPTROLLER GENERAL WEITZEL TO CAPTAIN G. L. LASSITER, DEPARTMENT OF THE ARMY, AUGUST 13, 1954:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 25, 1954, FORWARDED HERE BY ENDORSEMENT OF THE CHIEF OF FINANCE DATED JUNE 21, 1954, REQUESTING DECISION AS TO WHETHER PAYMENT PROPERLY MAY BE MADE ON A MILITARY PAY ORDER, INCLUDED WITH YOUR LETTER, IN FAVOR OF PAUL J. DULING FOR DISABILITY SEVERANCE PAY.

THE ADJUTANT GENERAL OF THE ARMY HAS REPORTED THAT:

THE OFFICIAL RECORDS OF THE DEPARTMENT OF THE ARMY SHOW THAT PRIVATE, THEN CORPORAL, PAUL J. DULING, RA11 215 824, WAS TRIED BY GENERAL COURT- MARTIAL AND FOUND GUILTY OF RAPE, IN VIOLATION OF UCMJ, ARTICLE 120, AND DISOBEDIENCE OF A LAWFUL ORDER, IN VIOLATION OF UCMJ, ARTICLE 92. HE WAS SENTENCED ON 20 JUN 52, TO BE DISHONORABLY DISCHARGED FROM THE SERVICE, TO FORFEIT ALL PAY AND ALLOWANCES, AND TO BE CONFINED FOR A PERIOD OF FIVE (5) YEARS. THE CONVENING AUTHORITY APPROVED THE SENTENCE BUT RULED THAT THE APPLICATION OF FORFEITURES SHOULD APPLY TO PAY AND ALLOWANCES BECOMING DUE ON AND AFTER 14 JUL 52, AND FORWARDED THE RECORD OF TRIAL TO THE JUDGE ADVOCATE GENERAL OF THE ARMY FOR REVIEW BY A BOARD OF REVIEW. THE REVIEWING AUTHORITY AFFIRMED THE SENTENCE AS MODIFIED ON 26 JAN 53, A COPY OF WHICH IS ATTACHED, BUT SUSPENDED THE DISHONORABLE DISCHARGE UNTIL THE ACCUSED'S RELEASE FROM CONFINEMENT. DURING THE PERIOD 15 JUL 52 TO 19 APR 53 INCLUSIVE, PRIVATE DULING WAS IN A SENTENCED PRISONER STATUS. ON 20 APR 53 THE SECRETARY OF THE ARMY REMITTED THE UNEXECUTED PORTION OF THE SENTENCE INCLUDING THE DISHONORABLE DISCHARGE AND PRIVATE DULING WAS RESTORED TO DUTY.

ALSO, IT APPEARS THAT ON JANUARY 6, 1953, DULING WAS ADMITTED TO THE ARMY HOSPITAL, CAMP COOKE, CALIFORNIA, FROM THE DISCIPLINARY BARRACKS AT LOMPOC, CALIFORNIA; THAT ON JANUARY 13, 1953, HE WAS TRANSFERRED TO LETTERMAN GENERAL HOSPITAL; THAT ON AUGUST 27, 1953, HE WAS TRANSFERRED TO VALLEY FORGE ARMY HOSPITAL; AND THAT A PHYSICAL EVALUATION BOARD AT THE LATTER HOSPITAL FOUND THAT HE WAS PHYSICALLY UNFIT FOR MILITARY SERVICE BY REASON OF A DISABILITY OF 10 PERCENTUM DETERMINED TO BE THE PROXIMATE RESULT OF THE PERFORMANCE OF ACTIVE DUTY. IT FURTHER APPEARS THAT THE PHYSICAL REVIEW COUNCIL FOUND THAT THE EVIDENCE OF RECORD ESTABLISHED THAT THE INCEPTION OF DULING'S DISABILITY WAS DURING A PERIOD OF TIME WHEN HE WAS UNDER CONFINEMENT AND NOT ENTITLED TO RECEIVE BASIC PAY. IN OTHER WORDS, IT WAS DETERMINED THAT THE DISABILITY HAD ITS INCEPTION DURING THE PERIOD JULY 14, 1952, TO APRIL 19, 1953, WHILE THE TOTAL FORFEITURE OF DULING'S PAY AND ALLOWANCES WAS OPERATIVE. THE EXPIRATION DATE OF DULING'S ENLISTMENT DOES NOT APPEAR IN THE FILE BEFORE THIS OFFICE. WILL BE ASSUMED THAT SUCH DATE WAS SUBSEQUENT TO APRIL 19, 1953.

SUBSECTION 402 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, PROVIDES, IF CERTAIN OTHER CONDITIONS ARE MET, FOR THE GRANTING OF DISABILITY SEVERANCE PAY---

UPON A DETERMINATION BY THE SECRETARY CONCERNED (1) THAT A MEMBER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY * * * IS UNFIT TO PERFORM THE DUTIES OF HIS OFFICE, RANK, GRADE, OR RATING, BY REASON OF PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO RECEIVE BASIC PAY * * *. (ITALICS SUPPLIED.)

IN THE CASE OF VANDERSLICE V. UNITED STATES, 19 C.1CLS. 480, 489, DECIDED APRIL 28, 1884, THE COURT SAID," IN THE CASE BEFORE US THE GOVERNMENT WAS RELEASED BY THE SENTENCE (OF TOTAL FORFEITURE) FROM ITS PROMISE TO PAY THE ACCRUING SALARY OF THE CLAIMANT, AND THE PARDON DID NOT REVIVE IT.' THE GOVERNMENT IS RELEASED, BY A COURT-MARTIAL SENTENCE OF FORFEITURES OF PAY TO ACCRUE IN THE FUTURE, FROM ITS PROMISE TO PAY THE ACCRUING SALARY. 1 COMP. GEN. 291, DECEMBER 1, 1921, AND CASES THEREIN CITED. PAY FORFEITED BY SENTENCE IMPOSED BY A COURT-MARTIAL "IS AN AMOUNT THAT MAY NOT BE PAID THE SOLDIER, THE APPROVAL OF THE SENTENCE RELIEVES THE GOVERNMENT TO THE EXTENT THEREIN PROVIDED OF ITS OBLIGATION TO PAY THE AMOUNT, AND THE SOLDIER HAS NO RIGHT TO THE AMOUNT SO FORFEITED.' 7348, JANUARY 4, 1923, 17 MS COMP. GEN. 63, 73.

UNDER THE LONG-ESTABLISHED RULE EXEMPLIFIED IN THE ABOVE CASES, AN INDIVIDUAL IS NOT ENTITLED TO PAY DURING A PERIOD DURING WHICH A TOTAL FORFEITURE OF PAY IS OPERATIVE. THUS, DULING INCURRED DISABILITY WHEN HE WAS NOT ENTITLED TO PAY. THE SUBSEQUENT MITIGATION OF HIS SENTENCE DID NOT GIVE HIM ANY RIGHT TO PAY ALREADY FORFEITED. COMPARE STATEMENT QUOTED ABOVE FROM THE DECISION IN THE VANDERSLICE CASE. ALSO, COMPARE 1 COMP. GEN. 291, CITED ABOVE, IN WHICH IT WAS SAID THAT FORFEITURES OF PAY TO ACCRUE IN THE FUTURE, IMPOSED BY SENTENCES OF COURTS-MARTIAL, ARE TO BE CONSIDERED AS COLLECTED FROM DAY TO DAY AS THE PAY ACCRUES. SEE PARAGRAPH 97A, MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, PROVIDING THAT THE SECRETARY OF A DEPARTMENT MAY REMIT THE UNEXECUTED PORTION OF ANY SENTENCE, INCLUDING ALL UNCOLLECTED FORFEITURES.

ACCORDINGLY, ON THE RECORD PRESENTED, DULING IS NOT ENTITLED TO DISABILITY SEVERANCE PAY, SINCE HE DID NOT INCUR DISABILITY WHILE ENTITLED TO RECEIVE BASIC PAY. PAYMENT ON THE MILITARY PAY ORDER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.