B-122600, FEBRUARY 18, 1955, 34 COMP. GEN. 390

B-122600, FEBRUARY 18, 1955, 34 COMP. GEN. 390

PAY - AFTER EXPIRATION OF ENLISTMENT - RETENTION PERIOD TO MAKE GOOD TIME LOST A MARINE CORPS ENLISTED MAN WHO, WHILE IN CONFINEMENT IMPOSED BY A GENERAL COURT-MARTIAL, MADE APPLICATION, PURSUANT TO THE ACT OF MAY 21, 1928, TO MAKE GOOD TIME LOST BY REASON OF THE CONVICTION, AND WHOSE APPLICATION WAS APPROVED ON THE DATE HIS ENLISTMENT NORMALLY WOULD HAVE EXPIRED, IS ENTITLED, UPON RESTORATION TO FULL DUTY STATUS AFTER COMPLETION OF THE SENTENCE, TO PAY AND ALLOWANCES FROM THE DATE OF RESTORATION.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE NAVY, FEBRUARY 18, 1955:

REFERENCE IS MADE TO LETTER OF JANUARY 14, 1955, FROM THE ASSISTANT SECRETARY OF THE NAVY (1AIR), FORWARDING A LETTER DATED NOVEMBER 3, 1954, FROM THE DISBURSING OFFICER, U.S. NAVAL RETRAINING COMMAND, NAVAL BASE, PORTSMOUTH, NEW HAMPSHIRE, REQUESTING DECISION AS TO WHETHER PRIVATE JOHN STRINGAS, UNITED STATES MARINES CORPS, IS ENTITLED TO PAY AND ALLOWANCES ON AND AFTER NOVEMBER 1, 1954, THE DATE OF HIS RESTORATION TO DUTY FOR THE PURPOSE OF MAKING GOOD TIME LOST.

IT IS STATED THAT THE ENLISTED MAN WAS CONVICTED BY A GENERAL COURT- MARTIAL OF THE CHARGE OF DESERTION AND THAT HE WAS SENTENCED TO CONFINEMENT AT HARD LABOR FOR ONE YEAR, TO FORFEIT ALL PAY AND ALLOWANCES, AND TO RECEIVE A BAD-CONDUCT DISCHARGE. THE SENTENCE WAS ADJUDGED ON FEBRUARY 3, 1954, AND APPROVED BY THE CONVENING AUTHORITY OF MARCH 1, 1954. IT IS FURTHER STATED THAT ON SEPTEMBER 19, 1954, STRINGAS SUBMITTED AN APPLICATION TO MAKE GOOD TIME LOST, IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 10260, MARINE CORPS MANUAL, 1949, AND THAT SUCH APPLICATION WAS APPROVED BY HIS COMMANDING OFFICER ON SEPTEMBER 20, 1954, THE DATE ON WHICH HIS ENLISTMENT NORMALLY WOULD HAVE EXPIRED. STRINGAS WAS RESTORED TO DUTY ON NOVEMBER 1, 1954.

THE DISBURSING OFFICER'S DOUBT AS TO THE MEMBER'S RIGHT TO PAY AND ALLOWANCES ON AND AFTER NOVEMBER 1, 1954, APPEARS TO BE OCCASIONED BY THE FACTS THAT (1) STRINGAS' APPLICATION TO MAKE GOOD TIME LOST AND THE APPROVAL OF SUCH APPLICATION WERE EFFECTED WHILE HE WAS STILL IN CONFINEMENT, AND (2) HIS CONFINEMENT CONTINUED FOR SOME TIME AFTER THE DATE OF SUCH APPROVAL.

THE ACT OF MAY 21, 1928, 45 STAT. 620, 34 U.S.C. 183A, PROVIDES:

THAT EVERY ENLISTED MAN IN THE NAVAL SERVICE, WHO, WITHOUT PROPER AUTHORITY, ABSENTS HIMSELF FROM HIS SHIP, STATION, OR DUTY FOR MORE THAN ONE DAY, OR WHO IS CONFINED FOR MORE THAN ONE DAY UNDER SENTENCE, OR WHILE AWAITING TRIAL AND DISPOSITION OF HIS CASE, IF THE TRIAL RESULTS IN CONVICTION, MAY BE PERMITTED TO SERVE, AFTER HIS RETURN TO A FULL-DUTY STATUS, FOR SUCH PERIOD AS SHALL, WITH THE TIME HE MAY HAVE SERVED PRIOR TO SUCH UNAUTHORIZED ABSENCE OR CONFINEMENT, AMOUNT TO THE FULL TERM OF HIS ENLISTMENT.

PARAGRAPH 10260, MARINE CORPS MANUAL, 1949, IS, IN PERTINENT PART, AS FOLLOWS:

1. EVERY ENLISTED PERSON IN THE NAVAL SERVICE WHO, WITHOUT PROPER AUTHORITY, ABSENTS HIMSELF FROM HIS SHIP, STATION, OR DUTIES FOR MORE THAN 1 DAY, OR WHO IS CONFINED FOR MORE THAN 1 DAY SERVING SENTENCE, OR WHILE AWAITING TRIAL OR DISPOSITION OF HIS CASE, IF THE TRIAL RESULTS IN CONVICTION, LOSES SUCH TIME FOR LONGEVITY AND FOR ENLISTMENT ALLOWANCE PURPOSES; SEE CHAPTER 78. HOWEVER, HE MAY BE PERMITTED TO SERVE AFTER HIS RETURN TO A FULL DUTY STATUS FOR SUCH PERIOD AS SHALL, WHEN ADDED TO THE TIME SERVED PRIOR TO THE UNAUTHORIZED ABSENCE OR CONFINEMENT, AMOUNT TO THE FULL TERM OF HIS ENLISTMENT.

2. WHEN PERSONNEL HAVE LOST TIME IN EXCESS OF 1 DAY DUE TO ANY OF THE ABOVE CAUSES AND DESIRE TO SERVE THIS TIME, DAY FOR DAY, AT EXPIRATION OF CURRENT ENLISTMENT OR EXTENSION OF ENLISTMENT, THEY SHALL MAKE OFFICIAL APPLICATION TO THEIR COMMANDING OFFICER FOR THIS PRIVILEGE, ON AN APPLICATION TO MAKE GOOD TIME LOST, FORM NAVMC 917 PD (IN TRIPLICATE), SHOWING TOTAL TIME LOST WITH DATES UNDER EACH OF THE CONDITIONS ENUMERATED IN THE PRECEDING SUBPARAGRAPH. THE TIME SHOWN SHALL BE CAREFULLY CHECKED WITH ENTRIES IN THE SERVICE RECORD BOOK TO ENSURE THAT DATES GIVEN BY THE ENLISTED PERSON ARE CORRECT. THE COMMANDING OFFICER'S ACTION ON THE REQUEST WILL BE FINAL UNLESS THERE ARE UNUSUAL CIRCUMSTANCES ATTENDING WHICH WOULD JUSTIFY REFERRING THE APPLICATION TO THE COMMANDANT OF THE MARINE CORPS. THE COMMANDING OFFICER SHALL INSERT ONE COPY OF THE APPLICATION TO MAKE GOOD TIME LOST IN THE SERVICE RECORD BOOK, SHALL FORWARD 2 COPIES TO THE COMMANDANT OF THE MARINE CORPS, AND SHALL INFORM THE DISBURSING OFFICE OF THE EXTENSION ON COMMANDING OFFICERS' PAY RECORD ORDER, FORM NAVS AND A 510, IN ACCORDANCE WITH INSTRUCTIONS CONTAINED IN CHAPTER 78.

3. IN ORDER TO SECURE THE BENEFITS DESCRIBED ABOVE, IT IS NECESSARY THAT THE APPLICATION TO SERVE TIME LOST BE SUBMITTED AND APPROVED PRIOR TO EXPIRATION OF THE ENLISTMENT, OR EXTENSION OF ENLISTMENT DURING WHICH THE TIME INVOLVED WAS LOST.

THE ACT OF MAY 21, 1928, AND THE QUOTED REGULATIONS DO NOT SPECIFY WHETHER OR NOT AN APPLICATION TO MAKE GOOD TIME LOST OR THE APPROVAL OF SUCH APPLICATION MAY BE EFFECTED WHILE THE MEMBER IS IN CONFINEMENT. THE ENDORSEMENTS AND ENCLOSURES FORWARDED WITH THE DISBURSING OFFICER'S LETTER INDICATE THAT IT IS THE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, THE BUREAU OF NAVAL PERSONNEL, THE BUREAU OF SUPPLIES AND ACCOUNTS, AND THE LEGAL SECTION, SUPPLY DEPARTMENT, MARINE CORPS, THAT THERE IS NO BAR IN THE LAW OR IN THE REGULATIONS AGAINST THE SUBMISSION OF AN APPLICATION TO MAKE GOOD TIME LOST AND THE APPROVAL OF SUCH APPLICATION WHILE THE MEMBER OF THE NAVAL SERVICE IS IN CONFINEMENT, PROVIDED THE APPLICATION IS MADE AND THE APPROVAL IS ACCOMPLISHED PRIOR TO THE EXPIRATION OF THE MEMBER'S CONTRACTUAL PERIOD OF ENLISTMENT. WE AGREE WITH SUCH ADMINISTRATIVE VIEW OF THE LAW AND REGULATIONS. OF COURSE, THE TIME SPENT IN CONFINEMENT AFTER THE APPROVAL OF THE AGREEMENT TO SERVE COULD NOT BE COUNTED AS SERVICE FOR THE PURPOSE OF MAKING UP TIME LOST BY REASON OF UNAUTHORIZED ABSENCE OR CONFINEMENT. AND UNDER THE TERMS OF THE QUOTED ACT OF MAY 21, 1928, THE TIME COVERED BY THE EXTENSION AGREEMENT DID NOT BEGIN TO RUN UNTIL THE DATE OF THE MEMBER'S "RETURN TO A FULL-DUTY STATUS.'

IN THE PRESENT CASE THE NORMAL EXPIRATION DATE OF THE ENLISTMENT WAS SEPTEMBER 20, 1954. THE APPLICATION WAS APPROVED ON THAT DAY AND HENCE WAS APPROVED WITHIN THE TERM OF THE MEMBER'S ENLISTMENT. ACCORDINGLY, IF OTHERWISE ENTITLED, STRINGAS MAY BE CREDITED PAY AND ALLOWANCES ON AND AFTER NOVEMBER 1, 1954, THE DATE OF HIS RESTORATION TO DUTY.