B-128493, AUGUST 28, 1956, 36 COMP. GEN. 173

B-128493, AUGUST 28, 1956, 36 COMP. GEN. 173

MILITARY PERSONNEL - PAY-PERIODS OF CONFINEMENT FOR TRIAL BY FOREIGN CIVIL AUTHORITIES A MEMBER OF THE UNIFORMED SERVICES WHO IS CONFINED BY UNITED STATES MILITARY AUTHORITIES FOR TRIAL IN A JAPANESE CIVIL COURT, AS A RESULT OF APPREHENSION BY EITHER THE UNITED STATES MILITARY OR JAPANESE AUTHORITIES, IS REGARDED AS CONSTRUCTIVELY "ABSENT" FROM DUTY DURING THE PERIOD OF PRETRIAL CONFINEMENT AFTER CONVICTION, SO AS TO BE PRECLUDED FROM RECEIVING PAY AND ALLOWANCES DURING SUCH ABSENCE, UNLESS THE ABSENCE IS EXCUSED AS UNAVOIDABLE. A SERVICEMAN WHO IS APPREHENDED AND CONFINED BY UNITED STATES MILITARY AUTHORITIES FOR CHARGE BY PROPER PROCESS IN A JAPANESE CIVIL COURT IS ENTITLED TO BASIC PAY FOR THE PERIOD PRIOR TO DATE ON WHICH HE IS CHARGED. A SERVICEMAN WHO IS HELD BY UNITED STATES MILITARY AUTHORITIES, SUBJECT TO CALL OF THE JAPANESE CIVIL AUTHORITIES FOR HIS CUSTODY, IS CONSTRUCTIVELY ABSENT FROM DUTY AND IS NOT ENTITLED TO BASIC PAY FOR THE PERIOD OF HIS CONFINEMENT, NOTWITHSTANDING UNITED STATES MILITARY CHARGES HAVE BEEN PREFERRED AGAINST HIM ALSO. A SERVICEMAN WHO IS HELD BY UNITED STATES MILITARY AUTHORITIES, SUBJECT TO CALL OF THE JAPANESE CIVIL AUTHORITIES FOR HIS CUSTODY, AND WHO SUBSEQUENTLY IS ACQUITTED DOES NOT HAVE HIS ABSENT STATUS CHANGED BY REASON OF TRIAL AND CONVICTION BY COURT-MARTIAL ON CHARGES ARISING OUT OF THE SAME OFFENSE, AND, THEREFORE, THE MEMBER SHOULD NOT BE CREDITED WITH PAY FOR THE PERIOD OF CONFINEMENT; AND AFTER ACQUITTAL BY THE CIVIL AUTHORITIES, HIS RIGHT TO CREDIT WOULD DEPEND ON WHETHER HIS ABSENCE IS EXCUSED AS UNAVOIDABLE.

TO THE SECRETARY OF DEFENSE, AUGUST 28, 1956:

REFERENCE IS MADE TO LETTER DATED JUNE 30, 1956, AND ENCLOSURES, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION UPON CERTAIN QUESTIONS PRESENTED IN COMMITTEE ACTION NO. 144 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE. THE QUESTIONS ARE AS FOLLOWS:

1. MAY A MEMBER (OF THE UNIFORMED SERVICES) WHO IS (1) ARRESTED BY THE JAPANESE CIVIL AUTHORITIES BECAUSE OF AN ALLEGED COMMISSION OF A CIVIL OFFENSE, (2) RELEASED TO THE CUSTODY OF THE U.S. MILITARY AUTHORITIES ON THE CONDITION THAT HE WILL BE MADE AVAILABLE FOR TRIAL BY A JAPANESE CIVIL COURT UPON THE REQUEST OF THE JAPANESE, (3) CONFINED BY THE U.S. MILITARY AUTHORITIES PENDING RELEASE TO THE JAPANESE FOR TRIAL, AND (4) TRIED AND CONVICTED BY A JAPANESE CIVIL COURT, BE PAID BASIC PAY FOR THE PERIOD OF HIS PRETRIAL CONFINEMENT BY THE MILITARY AUTHORITIES?

2. MAY A MEMBER WHO IS (1) APPREHENDED AND CONFINED BY THE U.S. MILITARY AUTHORITIES BECAUSE OF AN ALLEGED COMMISSION OF A JAPANESE CIVIL OFFENSE, (2) LATER INDICTED BY THE JAPANESE CIVIL AUTHORITIES FOR THE SAME ALLEGED OFFENSE, AND (3) CONVICTED BY A JAPANESE CIVIL COURT FOR SUCH OFFENSE, BE PAID BASIC PAY FOR THE PERIOD OF HIS PRETRIAL CONFINEMENT BY THE MILITARY AUTHORITIES ON AND AFTER THE DATE OF INDICTMENT?

3. IF THE ANSWER TO QUESTION 2 IS IN THE NEGATIVE, MAY THE MEMBER CONSIDERED IN THAT QUESTION BE PAID BASIC PAY FOR THE PERIOD FROM THE DATE OF HIS CONFINEMENT BY THE U.S. MILITARY AUTHORITIES TO THE DATE PRIOR TO HIS INDICTMENT BY THE JAPANESE CIVIL AUTHORITIES?

4. IF THE ANSWER TO QUESTION 1 IS IN THE NEGATIVE, WOULD THE MEMBER CONSIDERED IN THAT QUESTION BE ENTITLED TO BASIC PAY FOR THE PERIOD OF HIS CONFINEMENT IF CHARGES BASED ON THE SAME ALLEGED OFFENSE ARE PREFERRED AGAINST HIM UNDER THE UNIFORM CODE OF MILITARY JUSTICE ON OR PRIOR TO THE DATE OF HIS CONFINEMENT?

5. IF THE ANSWER TO QUESTION 4 IS IN THE AFFIRMATIVE AND THE MILITARY CHARGES ARE PREFERRED AGAINST THE MEMBER AFTER THE DATE OF HIS CONFINEMENT, WOULD HE BE ENTITLED TO BASIC PAY FOR THE ENTIRE PERIOD OF CONFINEMENT OR ONLY FROM THE DATE THE CHARGES ARE PREFERRED?

6. IF THE ANSWER TO QUESTION 1 IS IN THE NEGATIVE, AND HAD THE MEMBER CONSIDERED IN THAT QUESTION BEEN ACQUITTED BY THE JAPANESE CIVIL COURT BUT ALSO TRIED AND CONVICTED BY COURT-MARTIAL ON CHARGES ARISING OUT OF THE SAME ALLEGED OFFENSE, WOULD HE BE ENTITLED TO BASIC PAY FOR THE PERIOD OF MILITARY CONFINEMENT PRIOR TO THE DATE HE WAS SO ACQUITTED?

IN EXPLANATION OF THE BASIS FOR CONFINEMENT IN CASES OF THE NATURE HERE INVOLVED, AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, DATED SEPTEMBER 10, 1954, CONTAINS THE FOLLOWING:

5. IN THE PRESENT CASE SUBJECT MEMBERS WERE HELD BY UNITED STATES MILITARY AUTHORITIES AT THE REQUEST OF THE JAPANESE AUTHORITIES PURSUANT TO THE AUTHORITY CONTAINED IN ARTICLE 17, PARAGRAPH 5 OF THE ADMINISTRATIVE AGREEMENT WITH JAPAN WHICH PROVIDES AS FOLLOWS:

"/C) THE CUSTODY OF AN ACCUSED MEMBER OF THE UNITED STATES ARMED FORCES OR THE CIVILIAN COMPONENT OVER WHOM JAPAN IS TO EXERCISE JURISDICTION SHALL, IF HE IS IN THE HANDS OF THE UNITED STATES, REMAIN WITH THE UNITED STATES UNTIL HE IS CHARGED BY JAPAN.'

THE AGREED MINUTES TO THE ABOVE PROVISION PROVIDE AS FOLLOWS:

"1. IN CASE THE JAPANESE AUTHORITIES HAVE ARRESTED AN OFFENDER WHO IS A MEMBER OF THE UNITED STATES ARMED FORCES, THE CIVILIAN COMPONENT, OR A DEPENDENT SUBJECT TO THE MILITARY LAW OF THE UNITED STATES WITH RESPECT TO A CASE OVER WHICH JAPAN HAS THE PRIMARY RIGHT TO EXERCISE JURISDICTION, THE JAPANESE AUTHORITIES WILL, UNLESS THEY DEEM THAT THERE IS ADEQUATE CAUSE AND NECESSITY TO RETAIN SUCH OFFENDER, RELEASE HIM TO THE CUSTODY OF THE UNITED STATES MILITARY AUTHORITIES PROVIDED THAT HE SHALL, ON REQUEST, BE MADE AVAILABLE TO THE JAPANESE AUTHORITIES, IF SUCH BE THE CONDITION OF HIS RELEASE. THE UNITED STATES AUTHORITIES SHALL, ON REQUEST, TRANSFER HIS CUSTODY TO THE JAPANESE AUTHORITIES AT THE TIME HE IS INDICTED BY THE LATTER.'

6. THE PURPOSE OF THE FOREGOING PROVISION IS TO KEEP UNITED STATES MILITARY PERSONNEL OUT OF FOREIGN JAILS WHENEVER POSSIBLE. IT APPEARS CLEAR, HOWEVER, THAT THE ACCUSED IN EACH CASE MUST BE REGARDED AS HAVING BEEN HELD FOR THE FOREIGN AUTHORITIES AS EVIDENCED BY THE FACT THAT SUCH FOREIGN AUTHORITIES COULD REQUEST THE TRANSFER OF SUCH PRISONERS TO THEIR CUSTODY AT ANY TIME.

THE QUESTIONS ARE STATED TO HAVE BEEN PRESENTED BECAUSE CERTAIN DECISIONS ON THIS SUBJECT BY THE COMPTROLLER OF THE TREASURY AND BY THIS OFFICE HAVE NOT BEEN UNIFORMLY INTERPRETED BY THE JUDGE ADVOCATE GENERALS OF THE MILITARY DEPARTMENTS. THE DECISIONS CITED IN THE OPINIONS OF THE JUDGE ADVOCATE GENERALS ENCLOSED WITH THE ASSISTANT SECRETARY'S LETTER ARE: 9 COMP. DEC. 249, 255; 8 COMP. GEN. 80; B-7042 DECEMBER 1, 1939; B-39269, JANUARY 26, 1944.

SUCH DECISIONS, HOWEVER, WERE RENDERED PRIOR TO THE ENACTMENT OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, AS AMENDED, 37 U.S.C. 21A 39, AND THE UNIFORM CODE OF MILITARY JUSTICE, WHICH LAWS MATERIALLY CHANGED THE PAY STATUS OF MEMBERS WHILE ABSENT WITHOUT LEAVE OR WHILE IN CONFINEMENT AWAITING TRIAL.

SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, 37 U.S.C. 33, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, 37 U.S.C. 33, 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 AND 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. * * *

UNDER THE PROVISIONS OF ARTICLE 2 OF THE UNIFORM CODE OF MILITARY JUSTICE (ACT OF MAY 5, 1950, 64 STAT. 107), 5 U.S.C. 552, THE MEMBERS HERE INVOLVED ARE SUBJECT TO THE PROVISIONS OF THE CODE WHICH PROVIDE:

ART. 13.

SUBJECT TO THE PROVISIONS OF ARTICLE 57, NO PERSON, WHILE BEING HELD FOR TRIAL OR THE RESULTS OF TRIAL, SHALL BE SUBJECTED TO PUNISHMENT OR PENALTY OTHER THAN ARREST OR CONFINEMENT UPON THE CHARGES PENDING AGAINST HIM * *

ART. 57.

(A) WHENEVER A SENTENCE OF A COURT-MARTIAL AS LAWFULLY ADJUDGED AND APPROVED INCLUDES A FORFEITURE OF PAY OR ALLOWANCES IN ADDITION TO CONFINEMENT NOT SUSPENDED, THE FORFEITURE MAY APPLY TO PAY OR ALLOWANCES BECOMING DUE ON OR AFTER THE DATE SUCH SENTENCE IS APPROVED BY THE CONVENING AUTHORITY. NO FORFEITURE SHALL EXTEND TO ANY PAY OR ALLOWANCES ACCRUED BEFORE SUCH DATE.

THUS, THE FACT THAT A MEMBER OF THE ARMED FORCES IS UNDER CHARGES BY THE CIVILIAN OR MILITARY AUTHORITIES GENERALLY DOES NOT DEPRIVE HIM OF HIS PAY. EVEN DURING PERIODS OF ACTUAL DETENTION BY THE CIVIL AUTHORITIES THE MEMBER IS ENTITLED TO PAY FOR SUCH PART OF THE PERIOD OF DETENTION AS IS COVERED BY AN AUTHORIZED GRANT OF LEAVE; BUT A MEMBER NOT ON AUTHORIZED LEAVE WHOSE MISCONDUCT HAS CAUSED HIM TO BE IN THE HANDS OF THE CIVIL AUTHORITIES AND THUS UNABLE TO FULFILL HIS OBLIGATION TO BE AT HIS POST OF DUTY MUST BE REGARDED AS ABSENT WITHOUT LEAVE AND HIS PAY FOR SUCH PERIOD OF UNAUTHORIZED ABSENCE IS FORFEITED. COMPARE DODGE V. UNITED STATES, 33 C.1CLS. 28, AND CARRINGTON V. UNITED STATES, 46 C.1CLS. 279, APPLYING A STATUTORY PROVISION SIMILAR TO THAT MADE BY THE LAST SENTENCE OF THE QUOTED SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT. IN CONSONANCE WITH SUCH RULE WE HELD IN DECISION OF DECEMBER 22, 1955, B-125398, THAT UNDER SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT THE PAY OTHERWISE ACCRUING TO AN ENLISTED MAN WHILE HE WAS CONFINED BY THE CIVIL AUTHORITIES AND NOT IN AN AUTHORIZED LEAVE STATUS WAS FORFEITED UNLESS HIS ABSENCE FROM DUTY WAS EXCUSED AS UNAVOIDABLE. PRESUMABLY DISMISSAL OF THE CHARGES OR ACQUITTAL WOULD CONSTITUTE A SUFFICIENT BASIS FOR EXCUSING SUCH AN UNAUTHORIZED ABSENCE AS UNAVOIDABLE. UNTIL SO EXCUSED, HOWEVER, THE STATUTE PRECLUDES ANY PAYMENT OF PAY FOR THE PERIOD OF ABSENCE, REGARDLESS OF THE OUTCOME OF THE CIVILIAN PROCEEDINGS. AND NO COMPELLING REASON IS APPARENT WHY THE FACT THAT THE CIVIL AUTHORITIES MAY PERMIT THE MEMBER TO BE CONFINED BY THE MILITARY AUTHORITIES FOR HIS CIVIL OFFENSE SHOULD OPERATE TO INCREASE HIS RIGHTS WITH RESPECT TO PAY. WHEN HE IS HELD BY THE MILITARY AUTHORITIES FOR THE LOCAL CIVIL AUTHORITIES AND THUS IS UNDER ONLY A QUALIFIED AND CONDITIONAL CUSTODY AND CONTROL OF THE MILITARY AUTHORITIES, IT IS OUR VIEW THAT HE IS TO BE REGARDED AS CONSTRUCTIVELY "ABSENT," AT LEAST, AND AS SUBJECT TO THE PROVISIONS OF SECTION 4 (B), ABOVE QUOTED, RESPECTING MEMBERS WHO ARE "ABSENT.' COMPARE 11 COMP. DEC. 755. MOREOVER, IN DETERMINING THE RIGHTS OF MEMBERS IN THE SITUATIONS HERE INVOLVED, IT IS NOT CONSIDERED TO BE MATERIAL THAT THE MILITARY AUTHORITIES RATHER THAN THE CIVIL AUTHORITIES MAY MAKE THE INITIAL ARREST.

ON THE ASSUMPTION THAT THE MEMBERS INVOLVED IN QUESTIONS 1 AND 2 ARE NOT GRANTED LEAVE AND THAT THEIR ABSENCE IS NOT EXCUSED AS UNAVOIDABLE, EACH OF THOSE QUESTIONS IS ANSWERED IN THE NEGATIVE.

THE " ADMINISTRATIVE AGREEMENT" WITH THE JAPANESE GOVERNMENT, WHICH GOVERNS THIS CUSTODY MATTER, SAYS THAT THE CUSTODY OF AN ACCUSED MEMBER OVER WHOM JAPAN IS TO EXERCISE JURISDICTION SHALL, IF HE IS IN THE HANDS OF THE UNITED STATES, REMAIN WITH THE UNITED STATES UNTIL HE IS CHARGED BY JAPAN. ACCORDINGLY, UNTIL A MEMBER HAS BEEN SO CHARGED, JURISDICTION OVER THE MEMBER REMAINS WITH THE UNITED STATES AND, PRIOR TO THE TIME WHEN JAPAN TAKES JURISDICTION, THE MEMBER MAY NOT BE REGARDED AS BEING CONSTRUCTIVELY ABSENT FROM DUTY. HENCE, THE MEMBER DESCRIBED IN QUESTION 3 WOULD BE ENTITLED TO BASIC PAY FOR THE PERIOD PRIOR TO THE DATE ON WHICH HE WAS CHARGED BY JAPAN, WHETHER BY INDICTMENT OR BY OTHER PROPER PROCESS UNDER JAPANESE CRIMINAL LAW.

WITH RESPECT TO QUESTIONS 4 AND 5, IT IS NOT CLEAR HOW THE UNITED STATES CAN RELINQUISH JURISDICTION TO JAPAN IN A PARTICULAR SITUATION AND STILL RETAIN JURISDICTION. IN ANY EVENT, IF A MEMBER IS IN FACT HELD FOR THE JAPANESE GOVERNMENT AND IS SUBJECT TO ITS CALL FOR HIS CUSTODY--- THE SITUATION WHICH WE UNDERSTAND THESE TWO QUESTIONS TO INVOLVE--- HE IS NOT UNDER UNQUALIFIED AND UNCONDITIONAL CONTROL OF THE UNITED STATES MILITARY AUTHORITIES AND THE PREFERMENT OF UNITED STATES MILITARY CHARGES AGAINST HIM WOULD NOT CHANGE HIS STATUS. HE WOULD STILL BE HELD FOR THE JAPANESE AUTHORITIES AND, THEREFORE, CONSTRUCTIVELY ABSENT FROM DUTY. ACCORDINGLY, QUESTION 4 IS ANSWERED IN THE NEGATIVE AND NO ANSWER TO QUESTION 5 IS NECESSARY.

AS WE UNDERSTAND IT, QUESTION 6 INVOLVES A CASE WHERE A MEMBER IS IN FACT BEING HELD FOR THE JAPANESE AUTHORITIES AND, AS POINTED OUT IN CONNECTION WITH QUESTIONS 4 AND 5, THE PREFERMENT OF CHARGES BY THE MILITARY AUTHORITIES DOES NOT CHANGE HIS ABSENT STATUS. HENCE, UNTIL THE CIVIL ACQUITTAL HAS OCCURRED, HE SHOULD NOT BE CREDITED WITH PAY FOR THE PERIOD OF HIS CONFINEMENT AND, AFTER ACQUITTAL, HIS RIGHT TO CREDIT FOR PAY FOR THE PERIOD OF CONFINEMENT PRIOR TO ACQUITTAL WOULD DEPEND UPON WHETHER HIS ABSENCE WAS EXCUSED AS UNAVOIDABLE. QUESTION 6 IS ANSWERED ACCORDINGLY.