B-125398, DEC. 22, 1955

B-125398: Dec 22, 1955

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BARTHOLOMEW: REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 15 AND SEPTEMBER 12. WHILE YOU WERE CONFINED IN THE HANDS OF THE CIVIL AUTHORITIES. THE RECORDS SHOW THAT YOU WERE DISCHARGED ON JULY 8. UNLESS SUCH ABSENCE IS EXCUSED AS UNAVOIDABLE. * * *" SINCE IT IS ESTABLISHED BY THE RECORD THAT YOU WERE ABSENT FROM MILITARY JURISDICTION FROM MAY 27 TO JULY 8. SINCE IT DOES NOT APPEAR THAT THE DEPARTMENT OF THE ARMY HAS DETERMINED THAT DURING THAT PERIOD YOU WERE ABSENT ON ACCOUNT OF SICKNESS OR THAT THE ABSENCE HAS BEEN EXCUSED AS UNAVOIDABLE. THERE IS NO LEGAL BASIS ON THE PRESENT RECORD TO ALLOW YOU ACTIVE DUTY PAY AND ALLOWANCES AS AN ENLISTED MAN OF THE ARMY DURING ANY PART OF THE PERIOD.

B-125398, DEC. 22, 1955

TO MR. LYLE H. BARTHOLOMEW:

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 15 AND SEPTEMBER 12, 1955, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT DATED AUGUST 8, 1955, DISALLOWING YOUR CLAIM FOR PAY AND ALLOWANCES BELIEVED DUE YOU AS AN ENLISTED MAN IN THE UNITED STATES ARMY FOR THE PERIOD FROM MAY 27 TO JULY 8, 1949, WHILE YOU WERE CONFINED IN THE HANDS OF THE CIVIL AUTHORITIES. THE RECORDS SHOW THAT YOU WERE DISCHARGED ON JULY 8, 1949, BECAUSE OF CONVICTION BY A CIVIL COURT.

SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, PROVIDES IN PERTINENT PART AS FOLLOWS:

"/B) AFTER AUGUST 31, 1946, MEMBERS OF THE ARMED FORCES WHEN ABSENT ON ACCOUNT OF SICKNESS OR WOUNDS, OR WHEN DIRECTED BY THE SECRETARY TO BE ABSENT FROM DUTY TO AWAIT ORDERS PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS FOR ANY PERIOD IN EXCESS OF THE NUMBER OF DAYS' LEAVE AUTHORIZED BY THIS ACT, SHALL RECEIVE THE SAME PAY AND ALLOWANCES THEY WOULD RECEIVE IF NOT SO ABSENT; WHEN ABSENT WITH LEAVE FOR OTHER CAUSES, MEMBERS SHALL BE ENTITLED DURING SUCH ABSENCE NOT EXCEEDING THE AGGREGATE NUMBER OF DAYS' LEAVE AUTHORIZED BY THIS ACT TO THE SAME PAY AND ALLOWANCES THEY WOULD RECEIVE IF NOT ON LEAVE TO ANY ADDITIONAL ALLOWANCE OR ALLOWANCES OTHERWISE PROVIDED BY LAW FOR MEMBERS WHILE ON LEAVE. WHEN THE SECRETARY AUTHORIZES MEMBERS TO BE ABSENT IN EXCESS OF THE NUMBER OF DAYS' LEAVE AUTHORIZED BY THIS ACT, THEY SHALL NOT BE ENTITLED TO ANY PAY OR ALLOWANCES DURING SUCH ABSENCE. WHEN ABSENT WITHOUT LEAVE OR ABSENT OVER LEAVE, THEY SHALL FORFEIT ALL PAY AND ALLOWANCES DURING SUCH ABSENCE, UNLESS SUCH ABSENCE IS EXCUSED AS UNAVOIDABLE. * * *"

SINCE IT IS ESTABLISHED BY THE RECORD THAT YOU WERE ABSENT FROM MILITARY JURISDICTION FROM MAY 27 TO JULY 8, 1949, AND SINCE IT DOES NOT APPEAR THAT THE DEPARTMENT OF THE ARMY HAS DETERMINED THAT DURING THAT PERIOD YOU WERE ABSENT ON ACCOUNT OF SICKNESS OR THAT THE ABSENCE HAS BEEN EXCUSED AS UNAVOIDABLE, THERE IS NO LEGAL BASIS ON THE PRESENT RECORD TO ALLOW YOU ACTIVE DUTY PAY AND ALLOWANCES AS AN ENLISTED MAN OF THE ARMY DURING ANY PART OF THE PERIOD.