B-127193, JUN. 8, 1956

B-127193: Jun 8, 1956

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VIA THE COMMANDANT OF THE MARINE CORPS: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 2. CORPORAL KNIGHT WAS INJURED NOT IN THE LINE OF DUTY AND DUE TO HIS OWN MISCONDUCT AND THAT HE WAS HOSPITALIZED FOR HIS INJURIES UNTIL OCTOBER 21. WHEN HE WAS RETURNED TO DUTY TO AWAIT FINAL ACTION ON PHYSICAL DISABILITY RETIREMENT PROCEEDINGS IN HIS CASE. HE WAS. HE CLEARLY IS ENTITLED TO PAY DURING THE 27 DAY PERIOD FROM OCTOBER 21. UNTIL THE DATE HIS ENLISTMENT WAS SO COMPLETED. IT APPEARS HE WAS RETAINED IN THE SERVICE IN A DUTY STATUS WITH IS CONSENT PENDING ACTION OF A PHYSICAL EVALUATION BOARD AND. SINCE APPARENTLY IT WAS CONSIDERED THAT THERE WAS SOME BASIS UPON WHICH HE MIGHT HAVE BEEN RETIRED FOR PHYSICAL DISABILITY.

B-127193, JUN. 8, 1956

TO MAJOR T. A. JAMES, DISBURSING OFFICER, VIA THE COMMANDANT OF THE MARINE CORPS:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 2, 1956, REQUESTING AN ADVANCE DECISION AS TO WHETHER CORPORAL FOSTER S. KNIGHT, U. S. MARINE CORPS, MAY BE CREDITED WITH PAY AND ALLOWANCES ON AND AFTER OCTOBER 22, 1955.

IT APPEARS THAT ON JUNE 3, 1955, CORPORAL KNIGHT WAS INJURED NOT IN THE LINE OF DUTY AND DUE TO HIS OWN MISCONDUCT AND THAT HE WAS HOSPITALIZED FOR HIS INJURIES UNTIL OCTOBER 21, 1955, WHEN HE WAS RETURNED TO DUTY TO AWAIT FINAL ACTION ON PHYSICAL DISABILITY RETIREMENT PROCEEDINGS IN HIS CASE. HIS ENLISTMENT HAVING BEEN DUE TO EXPIRE ON JUNE 30, 1955, HE WAS, OF COURSE, REQUIRED TO MAKE GOOD THE TIME LOST DUE TO HIS MISCONDUCT, DURING THE PERIOD JUNE 4 TO 30, BY THE ACT OF AUGUST 29, 1916, 39 STAT. 580, AS AMENDED, 34 U.S.C. 183, AND, IN VIEW OF THAT ACT, HE CLEARLY IS ENTITLED TO PAY DURING THE 27 DAY PERIOD FROM OCTOBER 21, 1955, UNTIL THE DATE HIS ENLISTMENT WAS SO COMPLETED.

CONCERNING THE PERIOD SUBSEQUENT TO THE COMPLETION OF HIS ENLISTMENT AS SO EXTENDED, IT APPEARS HE WAS RETAINED IN THE SERVICE IN A DUTY STATUS WITH IS CONSENT PENDING ACTION OF A PHYSICAL EVALUATION BOARD AND, IN THE CIRCUMSTANCES, SINCE APPARENTLY IT WAS CONSIDERED THAT THERE WAS SOME BASIS UPON WHICH HE MIGHT HAVE BEEN RETIRED FOR PHYSICAL DISABILITY, HIS RETENTION MAY BE REGARDED AS FOR THE CONVENIENCE OF THE GOVERNMENT. ACCORDINGLY, HE MAY BE PAID THE PAY AND ALLOWANCES OF HIS GRADE UNTIL HIS DUTY STATUS ENDS. COMPARE DECISION OF DECEMBER 22, 1955, B-124446, 35 COMP. GEN. 366, WHERE WE HELD THAT AN ENLISTED MEMBER WAS ENTITLED TO PAY AND ALLOWANCES UNDER THE PROVISIONS OF 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, WHILE IN AN AWAITING-ORDERS STATUS AT HIS HOME PENDING FINAL ACTION ON THE PROCEEDINGS OF A PHYSICAL EVALUATION BOARD RESPECTING A DISABILITY DEEMED TO HAVE BEEN INCURRED INCIDENT TO HIS SERVICE EVEN THOUGH IT WAS DISCOVERED AFTER HIS ENLISTMENT EXPIRED, THE ENLISTMENT HAVING EXPIRED WHILE HE WAS IN CONFINEMENT SERVING A COURT-MARTIAL SENTENCE.