B-125209, AUG. 29, 1955

B-125209, AUG. 29, 1955

TO MR. DONALD W. FLICK:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 13, 1955, CONCERNING YOUR CLAIM FOR PAY BELIEVED TO BE DUE INCIDENT TO YOUR SERVICE AS AN ENLISTED MAN, UNITED STATES ARMY.

THE RECORD DISCLOSES THAT YOU ENLISTED IN THE ARMY ON SEPTEMBER 7, 1949, FOR A PERIOD OF THREE YEARS. YOU WERE CONVICTED BY GENERAL COURT-MARTIAL OF BEING ABSENT WITHOUT LEAVE FROM APRIL 21 TO SEPTEMBER 26, 1951, AND YOU WERE SENTENCED ON JANUARY 25, 1952, TO BE DISCHARGED FROM THE SERVICE WITH A BAD CONDUCT DISCHARGE. THE SENTENCE WAS APPROVED MARCH 7, 1952, BY HEADQUARTERS FIFTH ARMY, CHICAGO 15, ILLINOIS, AND THE RECORD OF TRIAL FORWARDED TO THE JUDGE ADVOCATE GENERAL OF THE ARMY FOR REVIEW BY A BOARD OF REVIEW. THE ORDER OF THE APPROVING AUTHORITY ALSO PROVIDED THAT PENDING COMPLETION OF THE REVIEW YOU WOULD BE RETAINED IN THAT COMMAND. THE OFFICE OF THE ADJUTANT GENERAL HAS REPORTED THAT YOU ABSENTED YOURSELF WITHOUT LEAVE ON MAY 16, 1952, AND WERE DROPPED FROM THE ROLLS AS A DESERTER ON JUNE 14, 1952. YOU WERE RETURNED TO MILITARY CONTROL ON MARCH 16, 1953, AND DISCHARGED UNDER CONDITIONS OTHER THAN HONORABLE ON APRIL 22, 1953, AT FORT SHERIDAN, ILLINOIS.

BY SETTLEMENT DATED MARCH 18, 1955, OF OUR CLAIMS DIVISION YOU WERE ADVISED THAT, SINCE ANY PAY ACCRUED PRIOR TO UNAUTHORIZED ABSENCE IS FORFEITED BY DESERTION, THE SUM OF $118.87 UNPAID ON MAY 17, 1952, WAS FORFEITED, AND THAT NO PAY ACCRUED FROM THAT DATE TO THE DATE OF YOUR DISCHARGE. YOU APPEAR TO BE OF THE OPINION THAT SINCE YOU WERE NOT CONVICTED BY COURT-MARTIAL OF DESERTION YOU ARE ENTITLED TO THE ALLOWANCE OF YOUR CLAIM FOR THE UNPAID PAY OF $118.87.

THE SUPREME COURT OF THE UNITED STATES HELD IN UNITED STATES V. LANDERS, 92 U.S. 77, 79, THAT---

"* * * FORFEITURE OF PAY AND ALLOWANCES UP TO THE TIME OF DESERTION FOLLOWS FROM THE CONDITIONS OF THE CONTRACT OF ENLISTMENT, WHICH IS FOR FAITHFUL SERVICE. THE CONTRACT IS AN ENTIRETY; AND, IF SERVICE FOR ANY PORTION OF THE TIME IS CRIMINALLY OMITTED, THE PAY AND ALLOWANCES FOR FAITHFUL SERVICE ARE NOT EARNED. AND, FOR THE PURPOSE OF DETERMINING THE RIGHTS OF THE SOLDIER TO RECEIVE PAY AND ALLOWANCES FOR PAST SERVICES, THE FACT OF DESERTION NEED NOT BE ESTABLISHED BY THE FINDINGS OF A COURT- MARTIAL; IT IS SUFFICIENT TO JUSTIFY A WITHHOLDING OF THE MONEYS THAT THE FACT APPEARS UPON THE MUSTER-ROLLS OF HIS COMPANY. * * *"

IT HAS UNIFORMLY BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT AN ENLISTED MAN, UPON DESERTION, FORFEITS ALL PAY AND ALLOWANCES DUE AND UNPAID AT THE TIME OF HIS DESERTION AND EARNS NO PAY DURING THE PERIOD HE IS IN DESERTION. SEE 8 COMP. GEN. 217; ID. 549; 9 ID. 192; 23 ID. 44. WHILE YOU WERE NOT FOUND TO BE A DESERTER BY A COURT-MARTIAL, IT IS CLEAR THAT YOU WERE DROPPED FROM THE ROLLS AS A DESERTER. HENCE, UNDER THE DECISION IN THE LANDERS CASE, ANY UNPAID PAY REMAINING DUE YOU ON JUNE 14, 1952, THE DATE YOU WERE DROPPED FROM THE ROLLS, WAS AUTOMATICALLY FORFEITED. 12 COMP. DEC. 328; 8 COMP. GEN. 233. SEE, ALSO, WINTHROP'S MILITARY LAW AND PRECEDENTS, PAGE 645.

ACCORDINGLY, THE SETTLEMENT OF MARCH 18, 1955, WAS CORRECT AND IS SUSTAINED.