B-125677, FEB. 10, 1956

B-125677, FEB. 10, 1956

TO PRIVATE WALTER NEWHALL, RA 6 139 774:

YOUR LETTER DATED JUNE 9, 1955, FORWARDED HERE BY THE FINANCE AND ACCOUNTING OFFICER, WALTER REED ARMY MEDICAL CENTER, QUESTIONS THE CORRECTNESS OF THE ACTION TAKEN TO EFFECT PARTIAL COLLECTION OF YOUR UNSATISFIED INDEBTEDNESS FOR COURT-MARTIAL FINES BY THE APPLICATION OF AN AMOUNT FOUND DUE YOU FOR TRAVEL PERFORMED INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY.

IT APPEARS THAT BY SPECIAL COURT-MARTIAL ORDER NO. 34, DATED AUGUST 5, 1952, HEADQUARTERS, HEADQUARTERS AND SERVICE COMMAND, FAR EAST COMMAND, YOU WERE SENTENCED TO FORFEIT $150 A MONTH FOR SIX MONTHS, AND BY SPECIAL COURT-MARTIAL ORDER NO. 12, DATED SEPTEMBER 23, 1952, SAME COMMAND, YOU WERE SENTENCED TO BE CONFINED AT HARD LABOR FOR SIX MONTHS AND TO FORFEIT $65 A MONTH FOR A LIKE PERIOD. IT FURTHER APPEARS THAT YOU WERE DISCHARGED FROM THE ARMY ON AUGUST 18, 1953, AT WHICH TIME ALL BUT $193.96 OF THE COMBINED FORFEITURES HAD BEEN COLLECTED FROM YOUR PAY. YOU REENLISTED ON NOVEMBER 13, 1953. IN JULY 1954 YOU PRESENTED A CLAIM TO THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, FOR TRAVEL PAY FOR TRAVEL STATED TO HAVE BEEN PERFORMED IN JUNE 1952 FROM CAMP KILMER, NEW JERSEY, TO FORT LAWTON, WASHINGTON, PURSUANT TO PARAGRAPH 4 SPECIAL ORDERS NO. 70, HEADQUARTERS, CAMP KILMER, NEW JERSEY, DATED APRIL 15, 1952. THE CLAIM WAS ALLOWED BY OUR CLAIMS DIVISION IN THE AMOUNT OF $183.96, BUT THAT AMOUNT WAS SET OFF AGAINST THE REPORTED UNSATISFIED INDEBTEDNESS OF $193.96, LEAVING AN UNLIQUIDATED BALANCE OF $10.

YOU QUESTION THE VALIDITY OF THE COLLECTION OF THE INDEBTEDNESS, AND CITE PARAGRAPH 48, AR 35-1820, DATED JULY 2, 1952, AS AUTHORITY FOR YOUR POSITION THAT UPON YOUR DISCHARGE ON AUGUST 18, 1953, THE UNCOLLECTED PORTION OF THE COURT-MARTIAL FORFEITURES WAS REMITTED AND NOT PROPER FOR COLLECTION AFTER THAT DATE.

PARAGRAPH 48 OF ARMY REGULATION 35-1820, JULY 2, 1952, PROVIDES THAT THE DISCHARGE OF AN ENLISTED MAN OPERATES TO REMIT SUCH PORTION OF A COURT- MARTIAL SENTENCE, INVOLVING FORFEITURE OF PAY, AS EXTENDS BEYOND THE DATE OF DISCHARGE, INCLUDING ANY UNEXECUTED PART OF THE FORFEITURE. THE BASIS OF SUCH REMISSION IS THAT THE FORFEITURE IMPOSED BY A COURT-MARTIAL SENTENCE OPERATES ONLY ON AMOUNTS DUE UNDER THE CONTRACT OF ENLISTMENT IN WHICH THE SENTENCE WAS IMPOSED. THE REMISSION OF A COURT-MARTIAL SENTENCE OF FORFEITURE BY A DISCHARGE IS EFFECTIVE ONLY PROSPECTIVELY, AND IT LONG HAS BEEN HELD THAT THE FORFEITURE OF PAY IMPOSED UPON AN ENLISTED MAN OF THE ARMY BY A LEGALLY CONSTITUTED COURT-MARTIAL OF COMPETENT JURISDICTION, UPON PROMULGATION OF THE SENTENCE, BECOMES A DEBT DUE THE UNITED STATES AND MAY BE SET OFF AGAINST ANY PAY DUE OR BECOMING DUE THE ENLISTED MAN UNDER THE THEN CURRENT ENLISTMENT UNTIL SATISFIED. SEE LYON, EXECUTOR V. UNITED STATES, 48 C.CLS. 30.

WHILE THE UNEXECUTED PORTION OF A COURT-MARTIAL SENTENCE IMPOSINGA FORFEITURE IS, IN EFFECT, REMITTED BY THE DISCHARGE OF THE ENLISTED MAN INSOFAR AS THE APPLICATION OF AMOUNTS EARNED UNDER A SUBSEQUENT ENLISTMENT IS CONCERNED (4 COMP. GEN. 842), SUCH RULE DOES NOT BAR SETOFF, AFTER DISCHARGE, OF AN AMOUNT WHICH HAD ACCRUED TO THE ENLISTED MAN BUT REMAINED UNPAID AT THE DATE OF DISCHARGE. HENCE, ANY AMOUNT DUE YOU FOR THE TRAVEL INVOLVED WOULD PROPERLY BE FOR APPLICATION TO THE PORTION OF THE SENTENCES REMAINING UNCOLLECTED AT THE TIME OF YOUR DISCHARGE ON AUGUST 18, 1953.

IT APPEARS, HOWEVER, THAT THE TRAVEL INVOLVED WAS NOT PERFORMED, AS CLAIMED, PURSUANT TO SPECIAL ORDERS NO. 70, DATED APRIL 15, 1952, HEADQUARTERS, NEW JERSEY MILITARY DISTRICT, 1423D ASU, KEARNY SHIPYARDS, KEARNY, NEW JERSEY, WHICH TRANSFERRED YOU FROM THE KEARNY SHIPYARDS TO THE PERSONNEL CENTER, FORT LAWTON, SEATTLE, WASHINGTON, FOR FURTHER SHIPMENT OVERSEAS, WITH TEN DAYS' DELAY EN ROUTE AUTHORIZED. YOU WERE TO PROCEED ON APRIL 17, 1952, SO AS TO ARRIVE AT FORT LAWTON NO LATER THAN MAY 10, 1952. ON MAY 29, 1952, HEADQUARTERS, CAMP KILMER, NEW JERSEY, ISSUED SPECIAL ORDERS NO. 127, WHICH RELIEVED YOU FROM DETACHMENT 10,"AWOL HOLDING" AT THAT STATION EFFECTIVE JUNE 2, 1952, AND DIRECTED THAT YOU PROCEED TO FORT LAWTON SO AS TO ARRIVE THERE ON JUNE 6, 1952. THOSE ORDERS FURTHER PROVIDED THAT THE ENTIRE COST OF TRANSPORTATION AND SUBSISTENCE FOR THE TRAVEL WOULD BE CHARGED TO YOU.

THUS THE RECORD BEFORE US INDICATES THAT, IN FACT, YOU PROCEEDED TO FORT LAWTON UNDER SPECIAL ORDERS NO. 127 WHICH SPECIFICALLY PROVIDED THAT THE COST OF THE TRAVEL WAS TO BE AT YOUR OWN EXPENSE. THIS NECESSARILY FOLLOWED SINCE IT APPEARS THAT YOU WERE BEING HELD AT CAMP KILMER IN AN "AWOL HOLDING" STATUS.

ACCORDINGLY, WHILE ANY AMOUNT DUE ON YOUR CLAIM WOULD BE FOR OFFSET AGAINST THE UNEXECUTED PORTION OF YOUR COURT-MARTIAL SENTENCES, IT APPEARS FROM THE PRESENT RECORD THAT YOU ARE NOT ENTITLED TO ANY AMOUNT FOR THE TRAVEL PERFORMED AND THAT THE AMOUNT OF YOUR FORFEITURES WAS ERRONEOUSLY REDUCED.