B-127803, AUG. 2, 1956

B-127803: Aug 2, 1956

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WRIGHT: REFERENCE IS MADE TO YOUR LETTER DATED APRIL 16. YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED OCTOBER 10. FOR THE REASON THAT YOU WERE IN AN ABSENT-WITHOUT-LEAVE STATUS FOR THE PERIOD FROM OCTOBER 17 TO DECEMBER 17. THE RECORD SHOWS THAT YOU WERE ABSENT WITHOUT LEAVE FROM OCTOBER 17 THROUGH DECEMBER 17. YOU WERE FOUND GUILTY AND SENTENCED TO BE RESTRICTED TO THE POST FOR THREE MONTHS AND TO FORFEIT $72 OF YOUR PAY. THE SUMMARY COURT MARTIAL WAS HELD TO BE VOID. THE FINDINGS AND SENTENCE WERE VACATED. PRIVILEGES AND PROPERTY OF WHICH YOU HAD BEEN DEPRIVED BY VIRTUE OF THE SENTENCE WERE ORDERED RESTORED. YOU NOW CONTEND THAT SINCE THE SUMMARY COURT MARTIAL SENTENCE WAS VOIDED AND VACATED.

B-127803, AUG. 2, 1956

TO MR. GERALD K. WRIGHT:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 16, 1956, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR PAY AND ALLOWANCES FOR THE PERIOD FROM OCTOBER 17, 1944, THROUGH MARCH 31, 1945. YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED OCTOBER 10, 1955, FOR THE REASON THAT YOU WERE IN AN ABSENT-WITHOUT-LEAVE STATUS FOR THE PERIOD FROM OCTOBER 17 TO DECEMBER 17, 1944, DURING WHICH PERIOD NO PAY ACCRUED, AND THAT YOUR PAY RECORDS SHOWED THAT YOU HAD BEEN PAID PAY AND ALLOWANCES FOR THE PERIOD FOLLOWING DECEMBER 17, 1944.

THE RECORD SHOWS THAT YOU WERE ABSENT WITHOUT LEAVE FROM OCTOBER 17 THROUGH DECEMBER 17, 1944, FROM YOUR ORGANIZATION AT ARMY AIR FORCE CONVALESCENT HOSPITAL, FORT GEORGE WRIGHT, WASHINGTON, AND THAT BY A SUMMARY COURT MARTIAL HELD AT FORT GEORGE WRIGHT ON JANUARY 11, 1945, YOU WERE FOUND GUILTY AND SENTENCED TO BE RESTRICTED TO THE POST FOR THREE MONTHS AND TO FORFEIT $72 OF YOUR PAY. THE REVIEWING AUTHORITY MODIFIED THE SENTENCE TO ONE MONTH'S RESTRICTION AND FORFEITURE OF $72. IT FURTHER APPEARS THAT BY ORDERS DATED JANUARY 26, 1945, THE SUMMARY COURT MARTIAL WAS HELD TO BE VOID, THE FINDINGS AND SENTENCE WERE VACATED, AND ALL RIGHTS, PRIVILEGES AND PROPERTY OF WHICH YOU HAD BEEN DEPRIVED BY VIRTUE OF THE SENTENCE WERE ORDERED RESTORED.

YOU NOW CONTEND THAT SINCE THE SUMMARY COURT MARTIAL SENTENCE WAS VOIDED AND VACATED, AND ALL RIGHTS, PRIVILEGES AND PROPERTY RESTORED THAT YOU ARE ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD OCTOBER 17 THROUGH DECEMBER 17, 1944. YOU FURTHER CONTEND THAT THE WITHHOLDING OF PAY AND ALLOWANCES FOR THAT PERIOD AMOUNTS TO A FORFEITURE WHICH WAS VACATED BY THE ORDERS OF JANUARY 26, 1945.

THE CHARGE OF ABSENCE FROM STATION AND DUTY WITHOUT OFFICIAL LEAVE BEFORE A COURT MARTIAL PRIMARILY IS OF A CRIMINAL NATURE, WHEREAS THAT OF A CLAIM FOR PAY IS OF A CIVIL NATURE. AS A CONSEQUENCE, THE VOIDING AND VACATING OF A SUMMARY COURT MARTIAL IN YOUR CASE IS NOT CONCLUSIVE IN ANY WAY UPON THE ADMINISTRATIVE DETERMINATION THAT YOU WERE IN FACT ABSENT WITHOUT LEAVE DURING THE PERIOD OCTOBER 17 THROUGH DECEMBER 17, 1944. IN OTHER WORDS, WHILE THE CIRCUMSTANCES SURROUNDING YOUR UNAUTHORIZED ABSENCE MAY HAVE BEEN SUCH AS TO ABSOLVE YOU FROM PUNISHMENT BY COURT MARTIAL FOR CRIMINAL RESPONSIBILITY, IT HAS BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT UNDER THE PAY LAWS YOU ARE NOT ENTITLED TO PAY FOR SUCH UNAUTHORIZED ABSENCE. THE ESTABLISHED RULE IS THAT THE LAW GIVES NO RIGHT TO PAY FOR ANY PERIOD OF TIME DURING WHICH AN ENLISTED MAN IS ABSENT WITHOUT PROPER AUTHORITY. A MAN'S RIGHT TO PAY IS CONTINGENT UPON THE PERFORMANCE OF SERVICE AND DURING SUCH AN ABSENCE PAY DOES NOT ACCRUE BECAUSE, BY BEING ABSENT WITHOUT PROPER AUTHORITY, HE FAILS TO RENDER SERVICE DURING SUCH PERIOD. CONSEQUENTLY NO PAY ACCRUED TO YOU DURING THE PERIOD OF YOUR UNAUTHORIZED ABSENCE, OCTOBER 17 THROUGH DECEMBER 17, 1944. THEREFORE, PAY FOR SUCH PERIOD WAS NOT FORFEITED UNDER THE COURT MARTIAL SENTENCE AND THE VACATING OF THE SENTENCE GAVE YOU NO RIGHT TO PAY FOR THAT PERIOD.

ACCORDINGLY, THE SETTLEMENT DISALLOWING YOUR CLAIM WAS PROPER AND, UPON REVIEW, IS SUSTAINED.