B-132595, AUG. 26, 1957

B-132595: Aug 26, 1957

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REQUESTS DECISION WHETHER PAYMENT IS AUTHORIZED ON AN ACCOMPANYING MILITARY PAY ORDER IN FAVOR OF BASIC AIRMAN ROBERT A. THE ENLISTED MAN WAS APPREHENDED BY THE JAPANESE POLICE FOR AN ALLEGED COMMISSION OF A CIVIL OFFENSE AND RELEASED TO THE CUSTODY OF THE U.S. HE WAS INDICTED BY THE JAPANESE AUTHORITIES. HE WAS SENTENCED TO A TERM OF IMPRISONMENT. THE SENTENCE WAS APPEALED TO THE JAPANESE SUPREME COURT AND ON FEBRUARY 19. THIS APPEAL WAS STILL PENDING. THE ENLISTED MAN'S ORGANIZATION REPORTS THAT HE IS RECORDED AS BEING PRESENT FOR DUTY FOR THE PERIODS APRIL 19 TO AUGUST 20. HE IS RECORDED AS BEING PRESENT. WE HELD THAT A MEMBER OF THE UNIFORMED SERVICES WHO IS (1) ARRESTED BY THE JAPANESE CIVIL AUTHORITIES BECAUSE OF AN ALLEGED COMMISSION OF A CIVIL OFFENSE.

B-132595, AUG. 26, 1957

TO CAPTAIN C. H. READOUT, USAF, FINANCE OFFICER, UNITED STATES AIR FORCE:

YOUR LETTER OF MARCH 15, 1957, WITH ENCLOSURES, RECEIVED JULY 17, 1957, REQUESTS DECISION WHETHER PAYMENT IS AUTHORIZED ON AN ACCOMPANYING MILITARY PAY ORDER IN FAVOR OF BASIC AIRMAN ROBERT A. COLEMAN, AF 1551 7191, FOR PAY AND ALLOWANCES AFTER APRIL 18, 1956.

THE ENCLOSURES TO YOUR LETTER SHOW THAT ON MARCH 5, 1956, THE ENLISTED MAN WAS APPREHENDED BY THE JAPANESE POLICE FOR AN ALLEGED COMMISSION OF A CIVIL OFFENSE AND RELEASED TO THE CUSTODY OF THE U.S. MILITARY AUTHORITIES WITH THE UNDERSTANDING THAT HE WOULD BE MADE AVAILABLE TO THE JAPANESE AUTHORITIES UPON RECEIPT OF THEIR REQUEST. ON APRIL 19, 1956, HE WAS INDICTED BY THE JAPANESE AUTHORITIES. HIS JAPANESE TRIAL RESULTED IN CONVICTION AND ON SEPTEMBER 18, 1956, HE WAS SENTENCED TO A TERM OF IMPRISONMENT. THE SENTENCE WAS APPEALED TO THE JAPANESE SUPREME COURT AND ON FEBRUARY 19, 1957, THIS APPEAL WAS STILL PENDING. THE ENLISTED MAN'S ORGANIZATION REPORTS THAT HE IS RECORDED AS BEING PRESENT FOR DUTY FOR THE PERIODS APRIL 19 TO AUGUST 20, 1956, AND SEPTEMBER 15 TO OCTOBER 18, 1956, AND RESTRICTED TO BASE PENDING JAPANESE COURT ACTION. HE IS RECORDED AS BEING PRESENT, NOT FOR DUTY, FOR THE PERIOD AUGUST 21 TO SEPTEMBER 14, 1956, BECAUSE OF CONFINEMENT IN THE POST STOCKADE FOR A MILITARY LAW VIOLATION, AND AFTER OCTOBER 18, 1956, BECAUSE OF CONFINEMENT PENDING THE FINAL OUTCOME OF HIS JAPANESE TRIAL.

IN DECISION OF AUGUST 28, 1956, B-128493, 36 COMP. GEN. 173, COPY ENCLOSED, WE HELD THAT 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 CONDITION THAT HE WILL BE MADE AVAILABLE FOR TRIAL BY A JAPANESE 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, IS IN A CONSTRUCTIVE ABSENT WITHOUT LEAVE STATUS DURING THE PERIOD OF HIS PRE-TRIAL CONFINEMENT BY THE MILITARY AUTHORITIES AND IS NOT ENTITLED TO PAY FOR SUCH PERIOD, UNLESS HIS ABSENCE IS EXCUSED AS UNAVOIDABLE.

WHILE A MEMBER OF THE UNIFORMED SERVICES WHO IS RESTRICTED TO HIS BASE, IN A SENSE, IS BEING CONFINED BY THE MILITARY AUTHORITIES, THE TERM "CONFINEMENT" WAS USED IN THE DECISION OF AUGUST 28, 1956, AS HAVING REFERENCE GENERALLY TO PERIODS OF ACTUAL INCARCERATION. THE TERM AS THERE USED DOES NOT INCLUDE PERIODS WHEN THE MEMBER IS IN A DUTY STATUS WHILE AWAITING CIVIL TRIAL EVEN THOUGH HIS AREA OF MOVEMENT IS RESTRICTED DURING SUCH PERIODS. COMPARE DECISION OF NOVEMBER 30, 1955, B-124309, COPY ENCLOSED. NEITHER WAS IT MEANT TO INCLUDE PERIODS OF INCARCERATION WHICH ARE FOR REASONS OTHER THAN THE JAPANESE LAW VIOLATION.

SINCE AIRMAN COLEMAN WAS NOT HELD IN "CONFINEMENT" FOR THE JAPANESE AUTHORITIES PRIOR TO OCTOBER 19, 1956, HE IS ENTITLED TO CREDIT OF BASIC PAY FOR THE PERIOD APRIL 19 TO OCTOBER 13, 1956, UNLESS, OF COURSE, HIS PAY RIGHTS ARE ADVERSELY AFFECTED BY HIS MILITARY LAW VIOLATIONS. HAVING BEEN CONTINUOUSLY HELD IN CONFINEMENT AFTER OCTOBER 18, 1956, FOR THE JAPANESE AUTHORITIES, HOWEVER, HE IS NOT ENTITLED TO CREDIT OF BASIC PAY AFTER THAT DATE UNLESS HIS JAPANESE TRIAL FINALLY RESULTS IN ACQUITTAL AND HIS CONSTRUCTIVE ABSENCE WITHOUT LEAVE IS EXCUSED ..END :