B-131446, JUN. 26, 1957

B-131446: Jun 26, 1957

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USAF: REFERENCE IS MADE TO YOUR LETTER OF MARCH 13. REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER. IT IS STATED IN YOUR LETTER THAT: "INFORMATION FURNISHED FROM THE FORMER AIRMAN'S PERSONNEL RECORDS INDICATE THAT HE ENLISTED IN THE UNITED STATES AIR FORCE ON 8 SEPTEMBER 1949 FOR A PERIOD OF THREE YEARS. ENLISTMENT EXPIRING ON 7 SEPTEMBER 1952 WAS EXTENDED FOR A PERIOD OF NINE MONTHS BY EXECUTIVE ORDER 10345. ENLISTMENT AS EXTENDED WAS REDUCED TO 7 FEBRUARY 1953 BY AFPMP-4 78. HE WAS ABSENT WITHOUT LEAVE FROM 14 FEBRUARY 1951 UNTIL APPREHENDED AND RETURNED TO AIR FORCE JURISDICTION ON 27 DECEMBER 1955. FORMER AIRMAN WAS HELD IN CONFINEMENT AWAITING TRIAL BY COURT-MARTIAL FROM 27 DECEMBER 1955 TO 7 APRIL 1956 WHEN HE WAS HOSPITALIZED IN A CONFINEMENT STATUS FOR OBSERVATION.

B-131446, JUN. 26, 1957

TO LIEUTENANT COLONEL C. W. GRIFFIN, USAF:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 13, 1957, WITH ENCLOSURES, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER, TRANSMITTED WITH YOUR LETTER, STATED IN FAVOR OF ALEXANDER VARRO, JR., A FORMER ENLISTED MAN OF THE AIR FORCE, IN THE NET AMOUNT OF $5,610.96, REPRESENTING PAY AND CLOTHING ALLOWANCES FROM FEBRUARY 14, 1951, TO JULY 11, 1956, LEAVE PAY FOR 60 DAYS, LEAVE RATIONS FOR 60 DAYS, AND MUSTERING- OUT PAYMENT OF $200. IT IS STATED IN YOUR LETTER THAT:

"INFORMATION FURNISHED FROM THE FORMER AIRMAN'S PERSONNEL RECORDS INDICATE THAT HE ENLISTED IN THE UNITED STATES AIR FORCE ON 8 SEPTEMBER 1949 FOR A PERIOD OF THREE YEARS. ENLISTMENT EXPIRING ON 7 SEPTEMBER 1952 WAS EXTENDED FOR A PERIOD OF NINE MONTHS BY EXECUTIVE ORDER 10345, DATED 17 APRIL 1952. ENLISTMENT AS EXTENDED WAS REDUCED TO 7 FEBRUARY 1953 BY AFPMP-4 78, DATED 24 APRIL 1952. HE WAS ABSENT WITHOUT LEAVE FROM 14 FEBRUARY 1951 UNTIL APPREHENDED AND RETURNED TO AIR FORCE JURISDICTION ON 27 DECEMBER 1955. FORMER AIRMAN WAS HELD IN CONFINEMENT AWAITING TRIAL BY COURT-MARTIAL FROM 27 DECEMBER 1955 TO 7 APRIL 1956 WHEN HE WAS HOSPITALIZED IN A CONFINEMENT STATUS FOR OBSERVATION. A BOARD OF MEDICAL OFFICERS ON 24 APRIL 1956 DETERMINED THAT AIRMAN WAS MENTALLY INCOMPETENT FROM THE TIME HIS ABSENCE WITHOUT LEAVE COMMENCED ON 14 FEBRUARY 1951 TO 24 APRIL 1956, AND RECOMMENDED FURTHER HOSPITALIZATION FOR TREATMENT AND DISPOSITION THROUGH MEDICAL CHANNELS. BASED UPON THE DECISION OF THE BOARD OF MEDICAL OFFICERS, COURT-MARTIAL CHARGES WERE WITHDRAWN AND THE PERIOD OF ABSENCE WITHOUT LEAVE WAS DELETED FROM AIRMAN'S PERSONNEL RECORDS. A BOARD OF MEDICAL OFFICERS ON 29 JUNE 1956 DETERMINED THAT AIRMAN WAS MENTALLY COMPETENT ON THAT DATE, HE WAS MEDICALLY UNQUALIFIED FOR FURTHER MILITARY SERVICE, THE PHYSICAL DEFECT EXISTED PRIOR TO ENTRY INTO ACTIVE SERVICE, WAS NOT AGGRAVATED BEYOND THE NORMAL PROGRESSION BY MILITARY SERVICE, AND, THAT THIS DISABILITY DID NOT FALL WITHIN THE PURVIEW OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949. THE BOARD RECOMMENDED THAT AIRMAN BE SEPARATED FROM MILITARY SERVICE UNDER THE PROVISIONS OF PARAGRAPH 105, CHAPTER 9, AIR FORCE MANUAL 35-4. AIRMAN WAS DISCHARGED ON 11 JULY 1956 FOR PHYSICAL DISABILITY EXISTING PRIOR TO ENTRY INTO SERVICE. THE PERIOD 14 FEBRUARY 1951 THROUGH 11 JULY 1956 WAS ENTERED IN AIRMAN'S PERSONNEL RECORDS AS CREDITABLE SERVICE IN COMPUTING HIS YEARS SERVICE FOR BASIC PAY PURPOSES.'

IT APPEARS THAT COURT-MARTIAL CHARGES AGAINST VARRO WERE WITHDRAWN ON MAY 4, 1956.

INCLUDED IN THE FILE FORWARDED WITH YOUR LETTER IS A COPY OF AN UNDATED REPORT OF A BOARD OF MEDICAL OFFICERS WHICH STATES, IN PART:

"HISTORY OF PRESENT ILLNESS: AIRMAN VARRO ENLISTED IN THE AIR FORCE 8 SEPTEMBER 1949. HE COMPLETED BASIC TRAINING AT LACKLAND AFB AND WAS THEN SENT TO SCHOOL AT KEESLER AFB WHERE HE WAS TRAINED AS A RADAR OPERATOR. HE WAS STATIONED AT NONTAUK POINT, LONG ISLAND, FOR 4 1/2 MONTHS AND THEN TRANSFERRED TO AN ACW SITE NEAR MITCHELL AFB. UPON REASSIGNMENT, HE HAD A DELAY ENROUTE TO HIS HOME IN GARY, INDIANA WHERE HE REMAINED UNTIL APPREHENDED ON 27 DECEMBER 1955, A PERIOD OF OVER 4 YEARS. HE STATED THAT HE DIDN-T KNOW WHY HE WENT AWOL; HOWEVER, FROM HIS DESCRIPTIONS OF HIS SERVICE LIFE, ONE OBTAINS THE PICTURE OF A SHY AND RETIRING INDIVIDUAL WHO DID NOT APPROVE OF THE OTHER MEN'S "ROWDINESS AND DRINKING.' THE PATIENT STATED THAT HE MADE NO ATTEMPT TO HIDE OR RUN AWAY DURING HIS PERIOD OF AWOL BUT MERELY REMAINED AT HOME. HE DID NOT DATE AT ALL, BEING AFRAID THAT HE MIGHT BE APPREHENDED WHILE OUT WITH A GIRL AND THIS WOULD EMBARRASS HER. DURING THE ENTIRE 4 YEARS, HE WORKED LITTLE, APPARENTLY JUST HELPING AROUND THE HOUSE. HE MANIFESTED LITTLE INTEREST IN ANYTHING. AFTER BEING PICKED UP, HE WAS AWAITING GENERAL COURT MARTIAL WHEN HE WAS REFERRED TO THE VA HOSPITAL IN MINNEAPOLIS, MINNESOTA, BY HIS TRIAL COUNSEL FOR DETERMINATION OF SANITY. IT WAS THE OPINION OF THE CONSULTANT PSYCHIATRIST THAT AIRMAN VARRO WAS SUFFERING FROM A CHRONIC SCHIZOPHRENIA WITH DEPRESSIVE ELEMENTS AND THAT HE SHOULD RECEIVED PSYCHIATRIC TREATMENT. HE WAS THEREUPON TRANSFERRED TO THE USAF HOSPITAL AT CHANUTE AFB AND FROM THERE WAS TRANSFERRED TO EGLIN AFB HOSPITAL FOR "CUSTODIAL CARE, EVALUATION, TREATMENT AND/OR DISPOSITION OF THE CASE.'"

ALSO INCLUDED IS A COPY OF A REPORT OF A BOARD OF MEDICAL OFFICERS DATED JUNE 28, 1956, WHICH STATES, IN PART:

"HISTORY OF PRESENT ILLNESS: THIS PATENT ENLISTED INTO THE AIR FORCE IN SEPTEMBER 1949 AND AFTER BASIC TRAINING AT LACKLAND AFB WENT TO KEESLER AFB TO TRAIN AS A RADAR OPERATOR. FROM THERE, HE WAS SENT TO MONTAUK POINT, L.I. WHERE HE WAS STATIONED FOR 4 1/2 MONTHS AND THEN TRANSFERRED TO AN ACW SITE NEAR MITCHELL AFB. HE WAS THEN ASSIGNED TO LITTLE FALLS, MINN. HE HAD A DELAY IN ROUTE TO HIS HOME IN GARY, INDIANA AT THAT TIME, AND THERE HE REMAINED UNTIL APPREHENDED ON 27 DECEMBER 1955, A PERIOD OF OVER 4 YEARS. * * *"

SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED BY THE ACT OF AUGUST 4, 1947, 37 U.S.C. 33 (B), PROVIDES, IN PERTINENT PART, THAT:

"* * * WHEN ABSENT WITHOUT LEAVE OR ABSENT OVER LEAVE, THEY (MEMBERS OF THE ARMED FORCES) SHALL FORFEIT ALL PAY AND ALLOWANCES DURING SUCH ABSENCE, UNLESS SUCH ABSENCE IS EXCUSED AS UNAVOIDABLE. * * *"

YOU REFER TO THE ABOVE PROVISIONS AND ASK THE FOLLOWING QUESTIONS:

"/1) IN VIEW OF THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946, WOULD AN ADMINISTRATIVE DETERMINATION THAT THE ABSENCE WITHOUT LEAVE IN THIS CASE WAS UNAVOIDABLE BE SUFFICIENT TO AUTHORIZE CREDITABLE SERVICE AND PAY AND ALLOWANCES FOR SUCH ABSENCE?

"/2) IF YOUR ANSWER TO QUESTION 1, IS IN THE AFFIRMATIVE, MAY THE FACT THAT THE ABSENCE WAS DELETED FROM THE AIRMAN'S PERSONNEL RECORDS BE REGARDED AS AN APPROPRIATE ADMINISTRATIVE DETERMINATION THAT SUCH ABSENCE WAS UNAVOIDABLE AND WAS EXCUSED FOR THE PURPOSES OF DETERMINING CREDITABLE SERVICE AND ENTITLEMENT TO PAY AND ALLOWANCES?

"/3) IF YOUR ANSWER TO QUESTION 2 IS IN THE AFFIRMATIVE, WOULD CREDITABLE SERVICE AND PAY AND ALLOWANCES ACCRUE THROUGH DATE OF EXPIRATION OF ORIGINAL ENLISTMENT, THROUGH DATE OF EXPIRATION OF ENLISTMENT AS EXTENDED AND REDUCED, OR FOR THE ENTIRE PERIOD OF ABSENCE ENDING 26 DECEMBER 1955?

"/4) IN VIEW OF THE FACT THAT THE PERIOD 27 DECEMBER 1955 THROUGH 11 JULY 1956 WAS CONSIDERED AS CREDITABLE SERVICE IN COMPUTING HIS CUMULATIVE YEARS SERVICE FOR BASIC PAY PURPOSES AS SHOWN BY PERSONNEL RECORDS, MAY THE FORMER ENLISTED MAN BE CONSIDERED AS BEING HELD IN SERVICE FOR THE CONVENIENCE OF THE GOVERNMENT, FOR SUCH PERIOD, AS OPPOSED TO A STATUS OF CONFINEMENT AWAITING TRIAL BY COURT-MARTIAL, AND, AS A PATIENT HOSPITALIZED FOR TREATMENT SET FORTH IN 18 COMP. GEN. 781?

SECTION 1265, REVISED STATUTES, 10 U.S.C. (1946 ED.) 841--- REPEALED BY SECTION 4 OF THE ABOVE ACT OF AUGUST 4, 1947, 61 STAT. 749, PROVIDED THAT:

"OFFICERS WHEN ABSENT ON ACCOUNT OF SICKNESS OR WOUNDS, OR LAWFULLY ABSENT FROM DUTY AND WAITING ORDERS, SHALL RECEIVE FULL PAY; WHEN ABSENT WITH LEAVE, FOR OTHER CAUSES, FULL PAY DURING SUCH ABSENCE NOT EXCEEDING IN THE AGGREGATE THIRTY DAYS IN ONE YEAR, AND HALF PAY DURING SUCH ABSENCE EXCEEDING THIRTY DAYS IN ONE YEAR. WHEN ABSENT WITHOUT LEAVE, THEY SHALL FORFEIT ALL PAY DURING SUCH ABSENCE, UNLESS THE ABSENCE IS EXCUSED AS UNAVOIDABLE.'

UNDER SECTION 13 OF THE ACT OF MARCH 3, 1899, 30 STAT. 1007, ARMY LEAVE LAWS BECAME APPLICABLE TO OFFICERS OF THE NAVY. 21 COMP. GEN. 845, 847. AND, BEGINNING AUGUST 15, 1932, ARMY REGULATIONS CARRIED PROVISIONS RECOGNIZING A RIGHT TO PAY AND ALLOWANCES FOR UNAUTHORIZED ABSENCES OF MILITARY PERSONNEL IF THE ABSENCE WERE EXCUSED AS UNAVOIDABLE. SEE PARAGRAPH 3, AR 35-1420, AUGUST 15, 1932. THUS, THE PROVISION IN THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, FOR EXCUSING UNAUTHORIZED ABSENCES AS UNAVOIDABLE DOES NOT EMBODY ANY NEW CONCEPT OF MILITARY OR NAVAL LAW, AND, PRIOR TO THE ENACTMENT OF THAT ACT, SUCH AUTHORITY TO EXCUSE APPARENTLY WAS USED SPARINGLY AND WITH RESPECT TO RELATIVELY SHORT PERIODS ONLY. THUS IT IS OUR VIEW THAT CONGRESS, BY ENACTMENT OF THE ARMED FORCES LEAVE ACT, DID NOT INTEND TO CREATE OR SANCTION A RULE WHICH COULD RESULT IN PAYMENT OF PAY AND ALLOWANCES FOR A TERM OF YEARS WITHOUT ANY SERVICE OR OTHER REAL CONSIDERATION TO THE GOVERNMENT THEREFOR.

MOREOVER, IT SEEMS DOUBTFUL THAT VARRO'S UNAUTHORIZED ABSENCE REASONABLY COULD BE CONSIDERED AS UNAVOIDABLE, OR THAT THE AIR FORCE WOULD MAKE A POSITIVE DETERMINATION THAT IT WAS UNAVOIDABLE, IF, AS THE PAPERS BEFORE US INDICATE, HE WAS AT HIS HOME DURING ALL OR NEARLY ALL OF THE PERIOD INVOLVED. UNDER SUCH CIRCUMSTANCES, IT WOULD APPEAR THAT HE SHOULD HAVE BEEN APPREHENDED SOON AFTER THE BEGINNING OF HIS UNAUTHORIZED ABSENCE, THUS AVOIDING THE GREATER PART OF THAT ABSENCE.

ACCORDINGLY, ON THE BASIS OF THE FACTS AND CIRCUMSTANCES INDICATED ABOVE AND OUR VIEW OF THE PURPOSE AND INTENT OF THE STATUTORY PROVISIONS INVOLVED, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE. HENCE, NO ANSWERS ARE REQUIRED TO THE SECOND AND THIRD QUESTIONS.

VARRO WAS APPREHENDED ON DECEMBER 27, 1955, WHEN HIS ENLISTMENT AS EXTENDED HAD ALREADY EXPIRED. HE WAS HELD IN CONFINEMENT AWAITING TRIAL BY COURT-MARTIAL BUT THE COURT-MARTIAL CHARGES WERE WITHDRAWN ON MAY 4, 1956. IN 30 COMP. GEN. 449, AT PAGE 451, WE AFFIRMED THE RULE THAT "THE PAY AND ALLOWANCES OF AN ENLISTED PERSON WHOSE TERM OF ENLISTMENT EXPIRES WHILE HE IS IN CONFINEMENT, AWAITING TRIAL BY COURT MARTIAL, TERMINATE ON THE DATE OF THE EXPIRATION OF HIS TERM OF ENLISTMENT UNLESS HE IS ACQUITTED, IN WHICH EVENT PAY AND ALLOWANCES ACCRUE UNTIL HE IS DISCHARGED.'

THE SAME RULE AS TO NONACCRUAL OF PAY AND ALLOWANCES IS FOR APPLICATION IN A CASE WHERE THE TERM OF ENLISTMENT HAD ALREADY EXPIRED WHEN THE PERIOD OF CONFINEMENT BEGAN. COMPARE 9 COMP. GEN. 323; 23 ID. 786. VARRO WAS NOT TRIED AND, HENCE, WAS NOT ACQUITTED. HE IS NOT ENTITLED TO PAY FOR THE PERIOD OF CONFINEMENT. COMPARE 18 COMP. GEN. 781; 21 COMP. GEN. 845.

FROM MAY 4, 1956, UNTIL THE DATE OF HIS DISCHARGE, JULY 11, 1956, VARRO WAS HELD BEYOND THE EXPIRATION DATE OF HIS ENLISTMENT APPARENTLY FOR HOSPITALIZATION AND TREATMENT.

THE ACT OF DECEMBER 12, 1941, 55 STAT. 797, PROVIDES:

"THAT HEREAFTER ANY ENLISTED MAN OF THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD OF THE UNITED STATES IN THE ACTIVE SERVICE, WHOSE TERM OF ENLISTMENT SHALL EXPIRE WHILE HE IS SUFFERING DISEASE OR INJURY INCIDENT TO SERVICE AND NOT DUE TO MISCONDUCT, AND WHO IS IN NEED OF MEDICAL CARE OR HOSPITALIZATION, MAY, WITH HIS CONSENT, BE RETAINED IN SUCH SERVICE BEYOND THE EXPIRATION OF HIS TERM OF ENLISTMENT, AND ANY SUCH ENLISTED MAN SHALL BE ENTITLED TO RECEIVE AT GOVERNMENT EXPENSE MEDICAL CARE OR HOSPITALIZATION AND HIS PAY AND ALLOWANCES (INCLUDING EXPENSE MONEY AUTHORIZED BY LAW AND CREDIT FOR LONGEVITY) UNTIL HE SHALL HAVE RECOVERED TO SUCH EXTENT AS WOULD ENABLE HIM TO MEET THE PHYSICAL REQUIREMENTS FOR REENLISTMENT, OR UNTIL IT SHALL HAVE BEEN ASCERTAINED BY COMPETENT AUTHORITY OF THE SERVICE CONCERNED THAT THE DISEASE OR INJURY IS OF A CHARACTER THAT RECOVERY TO SUCH AN EXTENT WOULD BE IMPOSSIBLE, WHICHEVER IS EARLIER: PROVIDED, THAT ANY ENLISTED MAN WHOSE ENLISTMENT IS EXTENDED AS PROVIDED HEREIN SHALL BE SUBJECT TO FORFEITURE IN THE SAME MANNER AND TO THE SAME EXTENT AS IFHIS TERM OF ENLISTMENT HAD NOT EXPIRED, AND NOTHING CONTAINED IN THIS ACT SHALL PREVENT ANY ENLISTED MAN OF THE ARMY, NAVY, OR MARINE CORPS, AND THE COAST GUARD, FROM BEING HELD IN THE SERVICE WITHOUT HIS CONSENT UNDER, RESPECTIVELY, THE PROVISIONS OF THE ONE HUNDRED AND SEVENTH ARTICLE OF WAR, THE ACT OF AUGUST 29, 1916, AS AMENDED (40 STAT. 717), AND SECTION 1, SUBSECTION (A), OF THE ACT OF MAY 26, 1906, AS AMENDED (50 STAT. 547).'

VARRO'S TREATMENT WAS NOT FOR "DISEASE OR INJURY INCIDENT TO SERVICE" SINCE IT WAS DETERMINED THAT HIS "PHYSICAL DEFECT EXISTED PRIOR TO ENTRY INTO ACTIVE SERVICE, (AND) WAS NOT AGGRAVATED BEYOND THE NORMAL PROGRESSION BY MILITARY SERVICE.' ACCORDINGLY, THE ACT OF DECEMBER 12, 1941, DOES NOT APPLY IN HIS CASE. YOUR FOURTH QUESTION, THEREFORE, IS ANSWERED IN THE NEGATIVE.

PAYMENT ON THE VOUCHER, WHICH IS RETAINED HERE, IS NOT AUTHORIZED. PAYMENT ON A NEW VOUCHER REPRESENTING ONLY MUSTERING-OUT PAYMENT OF $200 WOULD BE AUTHORIZED, IF OTHERWISE CORRECT.