B-123453, AUGUST 29, 1955, 35 COMP. GEN. 110

B-123453, AUGUST 29, 1955, 35 COMP. GEN. 110

PAY - AFTER EXPIRATION OF ENLISTMENT - RETENTION FOR MEDICAL CARE - PERIODS OF CONFINEMENT AWAITING TRIAL, ETC. ENLISTED PERSONNEL WHO WITH THEIR CONSENT ARE RETAINED IN THE SERVICE BEYOND THE TERM OF ENLISTMENT FOR MEDICAL CARE AND WHO SUBSEQUENTLY ARE INVOLVED IN COURT MARTIAL ACTION ARE ENTITLED, UNDER THE ACT OF DECEMBER 12, 1941, TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD OF MEDICAL CARE.

TO LIEUTENANT COLONEL W. J. RIDLON, JR., UNITED STATES MARINE CORPS, AUGUST 29, 1955:

YOUR LETTER OF FEBRUARY 25, 1955, REQUESTS AN ADVANCE DECISION AS TO WHETHER PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES SUBSEQUENT TO EXPIRATION DATE OF ENLISTMENT IS PROPER IN CASES OF PRIVATES ARDIS LAWHUN AND EDUARDO MARRERO, UNITED STATES MARINE CORPS, REPORTED TO HAVE BEEN RETAINED IN SERVICE BEYOND NORMAL DISCHARGE DATE BOTH IN CONNECTION WITH COURT MARTIAL ACTION AND BECAUSE OF A NEED FOR FURTHER MEDICAL CARE.

IT IS STATED THAT LAWHUN ENLISTED FOR THREE YEARS ON JANUARY 17, 1952; THAT ON SEPTEMBER 28, 1954, HE WAS HOSPITALIZED FOR AN INJURY INCURRED IN LINE OF DUTY; THAT ON DECEMBER 20, 1954, HE ABSENTED HIMSELF FROM THE U.S. NAVAL HOSPITAL, QUANTICO, VIRGINIA., AND THAT HE REMAINED SO ABSENT UNTIL JANUARY 5, 1955, WHEN HE SURRENDERED HIMSELF AT THE HOSPITAL. ON JANUARY 14, 1955, HE APPEARED BEFORE A CLINICAL BOARD WHICH RECOMMENDED THAT HE APPEAR BEFORE A PHYSICAL EVALUATION BOARD; THAT HIS ENLISTMENT EXPIRED ON JANUARY 16, 1955; AND THAT ON JANUARY 19, 1955, HE WAS DISCHARGED FROM THE HOSPITAL TO DUTY PENDING APPEARANCE BEFORE A PHYSICAL EVALUATION BOARD. IT IS FURTHER STATED THAT ON JANUARY 28, 1955, HE WAS TRIED BY A SPECIAL COURT MARTIAL AND WAS SENTENCED TO CONFINEMENT AT HARD LABOR FOR SIX MONTHS AND REDUCTION TO THE GRADE OF PRIVATE. ON FEBRUARY 2, 1955, THE CONVENING AUTHORITY APPROVED THE SENTENCE BUT SUSPENDED FOR THREE MONTHS THE EXECUTION OF THAT PORTION THEREOF ADJUDGING CONFINEMENT.

IT IS STATED THAT MARRERO ENLISTED FOR THREE YEARS ON JANUARY 2, 1952; THAT ON NOVEMBER 8, 1954, HE WAS HOSPITALIZED FOR AN INJURY INCURRED IN LINE OF DUTY; AND THAT SINCE JANUARY 1, 1955, THE TERMINATION DATE OF HIS CONTRACT OF ENLISTMENT, HE HAS BEEN RETAINED IN THE SERVICE FOR FURTHER TREATMENT. ON FEBRUARY 3, 1955, HE WAS CONVICTED BY A SPECIAL COURT MARTIAL AND SENTENCED TO BE REDUCED TO THE GRADE OF PRIVATE, TO FORFEIT $30 PER MONTH FOR FIVE MONTHS, AND TO BE DISCHARGED FROM THE SERVICE WITH A BAD CONDUCT DISCHARGE. ALSO, IT IS STATED THAT ACTION ON HIS CASE BY THE CONVENING AUTHORITY IS PENDING.

THE LONGSTANDING RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT IS THAT PAY AND ALLOWANCES DO NOT ACCRUE TO AN ENLISTED MAN HELD BEYOND THE EXPIRATION DATE OF HIS ENLISTMENT, UNLESS SUCH HOLDING IS FOR THE CONVENIENCE OF THE GOVERNMENT OR FOR THE PURPOSE OF MAKING GOOD TIME LOST. SEE 30 COMP. GEN. 449, AND CASES THEREIN CITED. THE ACT OF DECEMBER 12, 1941, 55 STAT. 797, HOWEVER, PROVIDES:

* * * HEREAFTER ANY ENLISTED MAN OF THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD OF THE UNITED STATES IN THE ACTIVE SERVICE, WHOSE TERM OF ENLISTMENT SHALL EXPIRE WHILE HE IS SUFFERING DISEASE OR INJURY INCIDENT TO SERVICE AND NOT DUE TO MISCONDUCT, AND WHO IS IN NEED OF MEDICAL CARE OR HOSPITALIZATION, MAY, WITH HIS CONSENT, BE RETAINED IN SUCH SERVICE BEYOND THE EXPIRATION OF HIS TERM OF ENLISTMENT, AND ANY SUCH ENLISTED MAN SHALL BE ENTITLED TO RECEIVE AT GOVERNMENT EXPENSE MEDICAL CARE OR HOSPITALIZATION AND HIS PAY AND ALLOWANCES (INCLUDING EXPENSE MONEY AUTHORIZED BY LAW AND CREDIT FOR LONGEVITY) UNTIL HE SHALL HAVE RECOVERED TO SUCH EXTENT AS WOULD ENABLE HIM TO MEET THE PHYSICAL REQUIREMENTS FOR REENLISTMENT, OR UNTIL IT SHALL HAVE BEEN ASCERTAINED BY COMPETENT AUTHORITY OF THE SERVICE CONCERNED THAT THE DISEASE OR INJURY IS OF A CHARACTER THAT RECOVERY TO SUCH AN EXTENT WOULD BE IMPOSSIBLE, WHICHEVER IS EARLIER: PROVIDED, THAT ANY ENLISTED MAN WHOSE ENLISTMENT HAD NOT EXPIRED, AND NOTHING CONTAINED IN THIS ACT SHALL PREVENT ANY ENLISTED MAN OF THE ARMY, NAVY, OR MARINE CORPS, AND THE COAST GUARD, FROM BEING HELD IN SERVICE WITHOUT HIS CONSENT UNDER, RESPECTIVELY, THE PROVISIONS OF THE ONE HUNDRED AND SEVENTH ARTICLE OF WAR, THE ACT OF AUGUST 29, 1916, AS AMENDED (40 STAT. 717), AND SECTION 1, SUBSECTION (A), OF THE ACT OF MAY 26, 1906, AS AMENDED (50 STAT. 547). ( ITALICS SUPPLIED.)

IN THE CASE OF A MEMBER HELD IN SERVICE BEYOND THE TERM OF HIS ENLISTMENT AWAITING TRIAL BY COURT MARTIAL, THE RULE SET OUT IN 30 COMP. GEN. 449, CITING 17 COMP. GEN. 103, IS FOR APPLICATION IN DETERMINING HIS RIGHT TO PAY AND ALLOWANCES FOR SUCH PERIOD DEPENDENT UPON WHETHER THE TRIAL RESULTED IN HIS CONVICTION OR IN AN ACQUITTAL. THIS RULE, HOWEVER, MAY NOT OPERATE TO DEFEAT, IN AN OTHERWISE PROPER CASE, A MEMBER'S STATUTORY RIGHT, UNDER THE ACT OF DECEMBER 12, 1941, TO BE RETAINED IN THE SERVICE BEYOND THE EXPIRATION OF HIS ENLISTMENT TO RECEIVE MEDICAL CARE AND HOSPITALIZATION AT GOVERNMENT EXPENSE, AND TO PAY AND ALLOWANCES FOR SUCH PERIOD SUBJECT TO FORFEITURE AS PROVIDED IN THAT ACT.

ACCORDINGLY, PRIVATES LAWHUN AND MARRERO ARE ENTITLED TO PAY AND ALLOWANCES ON THE SAME BASIS AS IF THEIR COURT MARTIAL TRIALS HAD OCCURRED DURING THE CONTRACTUAL PERIODS OF THEIR ENLISTMENTS. THE ORDERS TO ADJUST THEIR PAY ACCOUNTS ARE RETURNED.