B-133519, OCTOBER 7, 1957, 37 COMP. GEN. 228

B-133519: Oct 7, 1957

Additional Materials:

Contact:

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

 

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

MILITARY PERSONNEL - PAY - AFTER EXPIRATION OF ENLISTMENT - COURT MARTIAL SENTENCE REVIEW ACTION OF A GENERAL COURT-MARTIAL REVIEW BOARD WHICH DID NOT AFFIRM A NAVY ENLISTED MAN'S BAD CONDUCT DISCHARGE BUT DID AFFIRM ONE OF THE CHARGES OF DISOBEDIENCE MAY NOT BE REGARDED AS AN ACQUITTAL TO ENTITLE THE MEMBER TO PAY AND ALLOWANCES AFTER THE EXPIRATION OF HIS ENLISTMENT WHILE HE WAS IN A CONFINEMENT AND RESTRICTED STATUS. WAS ASSIGNED TO THE POST CONTROL OFFICE TO "PERFORM DUTIES OF HIS RATE" IS ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD OF SUCH DUTY UPON TRANSFER TO THE NAVAL RESERVE AND RELEASE TO INACTIVE DUTY. THE MEMBER IS ENTITLED TO A LUMP-SUM PAYMENT FOR ANY ACCRUED LEAVE WHICH HAD NOT BEEN USED ON THE DATE OF NORMAL EXPIRATION OF ENLISTMENT.

B-133519, OCTOBER 7, 1957, 37 COMP. GEN. 228

MILITARY PERSONNEL - PAY - AFTER EXPIRATION OF ENLISTMENT - COURT MARTIAL SENTENCE REVIEW ACTION OF A GENERAL COURT-MARTIAL REVIEW BOARD WHICH DID NOT AFFIRM A NAVY ENLISTED MAN'S BAD CONDUCT DISCHARGE BUT DID AFFIRM ONE OF THE CHARGES OF DISOBEDIENCE MAY NOT BE REGARDED AS AN ACQUITTAL TO ENTITLE THE MEMBER TO PAY AND ALLOWANCES AFTER THE EXPIRATION OF HIS ENLISTMENT WHILE HE WAS IN A CONFINEMENT AND RESTRICTED STATUS. A NAVY ENLISTED MAN WHO, AFTER EXPIRATION OF HIS ENLISTMENT AND WHILE RESTRICTED TO HIS STATION AWAITING APPELLATE REVIEW OF A COURT MARTIAL SENTENCE OF A BAD CONDUCT DISCHARGE, WAS ASSIGNED TO THE POST CONTROL OFFICE TO "PERFORM DUTIES OF HIS RATE" IS ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD OF SUCH DUTY UPON TRANSFER TO THE NAVAL RESERVE AND RELEASE TO INACTIVE DUTY, AND THE MEMBER IS ENTITLED TO A LUMP-SUM PAYMENT FOR ANY ACCRUED LEAVE WHICH HAD NOT BEEN USED ON THE DATE OF NORMAL EXPIRATION OF ENLISTMENT, PLUS SUCH LEAVE AS MAY HAVE ACCRUED DURING THE PERIOD OF DUTY AFTER EXPIRATION OF HIS ENLISTMENT.

TO THE UNITED STATES NAVY ACCOUNTS DISBURSING OFFICER, OCTOBER 7, 1957:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 5, 1957, WITH ENCLOSURES, TRANSMITTED HERE BY THE JUDGE ADVOCATE GENERAL OF THE NAVY, REQUESTING DECISION WHETHER ROLAND L. VIOLETTE, YN3, 463 20 41 USN, IS ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD BEYOND NORMAL DATE OF EXPIRATION OF ENLISTMENT IN THE CIRCUMSTANCES RECITED.

IT IS STATED THAT VIOLETTE ENLISTED IN THE NAVY ON AUGUST 11, 1952, FOR A PERIOD OF 4 YEARS. ON THE DATE OF NORMAL EXPIRATION OF ENLISTMENT, AUGUST 10, 1956, VIOLETTE WAS BEING HELD PENDING TRIAL BY GENERAL COURT-MARTIAL FOR OFFENSES COMMITTED ON JUNE 22, 1956. THE GENERAL COURT-MARTIAL SENTENCE ADJUDGED SEPTEMBER 14, 1956, AWARDED A BAD CONDUCT DISCHARGE ONLY, VIOLETTE HAVING BEEN FOUND GUILTY OF THE TWO CHARGES FOR WHICH TRIED. A SERVICE RECORD ENTRY SHOWS THAT VIOLETTE WAS CONFINED DURING THE PERIOD AUGUST 13 TO SEPTEMBER 14, 1956, AND THAT ON SEPTEMBER 14, THE DATE OF THE COURT-MARTIAL SENTENCE, HIS STATUS WAS CHANGED FROM CONFINEMENT TO RESTRICTION AWAITING BAD CONDUCT DISCHARGE. ON NOVEMBER 5, 1956, PURSUANT TO AUTHORITY OF THE BUREAU OF NAVAL PERSONNEL, THE ENLISTED MAN WAS RELEASED ON LEAVE WITHOUT PAY AWAITING REVIEW OF THE GENERAL COURT- MARTIAL, AND FURNISHED TRANSPORTATION IN KIND TO HIS HOME. THE BOARD OF REVIEW, ON MARCH 25, 1957, AFFIRMED THE FINDING OF GUILTY OF ONE OF THE CHARGES (DISOBEDIENCY), ORDERED THE DISMISSAL OF THE OTHER CHARGE, AND DID NOT AFFIRM THE SENTENCE OF BAD CONDUCT DISCHARGE. THE BOARD OF REVIEW FURTHER STATED THAT SINCE THE ACCUSED WAS IN A NONPAY STATUS FROM THE EXPIRATION OF HIS ENLISTMENT, THEY BELIEVED HE HAD BEEN SUFFICIENTLY PUNISHED FOR HIS DISOBEDIENCY. IT IS ALSO STATED THAT ALTHOUGH RESTRICTED TO THE STATION, VIOLETTE WAS ASSIGNED TO THE PORT CONTROL OFFICE TO PERFORM DUTIES OF HIS RATE, AND THAT, IN A SENSE, IT APPEARS THAT HE WAS RESTORED TO A DUTY STATUS. VIOLETTE WAS RELEASED TO INACTIVE DUTY IN THE NAVAL RESERVE ON APRIL 23, 1957.

IN VIEW OF SUCH CIRCUMSTANCES YOU REQUEST A DECISION CONCERNING VIOLETTE'S ENTITLEMENT TO PAY AND ALLOWANCES DURING ALL OR ANY PART OF THE PERIOD AUGUST 11 TO NOVEMBER 5, 1956, AND ALSO, AS TO HIS ENTITLEMENT TO LUMP-SUM SETTLEMENT OF ACCRUED LEAVE.

IT IS 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. 30 COMP. GEN. 449. THIS RULE IS SUBJECT TO MODIFICATION IN THOSE CASES WHERE AN ENLISTED MAN, SENTENCED BY A COURT -MARTIAL TO DISHONORABLE OR BAD CONDUCT DISCHARGE, AND WHO IS RETAINED IN THE SERVICE AFTER THE EXPIRATION OF HIS ENLISTMENT, IS RELEASED FROM CONFINEMENT AND "RESTORED TO DUTY PENDING COMPLETION OF APPELLATE REVIEW.' IN THE LATTER CASE THE ENLISTED MAN IS ENTITLED TO PAY AND ALLOWANCES WHILE PERFORMING DUTY AFTER RESTORATION TO DUTY, EVEN THOUGH, UPON APPELLATE REVIEW, THE SENTENCE OF DISHONORABLE OR BAD CONDUCT DISCHARGE IS ORDERED EXECUTED. 33 COMP. GEN. 281.

WHILE THE BOARD OF REVIEW DID NOT AFFIRM THE COURT-MARTIAL SENTENCE OF DISCHARGE, IT DID AFFIRM THE FINDING AND SPECIFICATION ON CHARGE II AND, HENCE, VIOLETTE MAY NOT BE REGARDED AS HAVING BEEN ,ACQUITTED" SO AS TO ENTITLE HIM TO ANY PAY AND ALLOWANCES AFTER EXPIRATION OF HIS ENLISTMENT UNDER THE RULE OF 30 COMP. GEN. 449.

IT IS STATED, HOWEVER, THAT THE ENLISTED MAN WAS ASSIGNED TO THE PORT CONTROL OFFICE TO "PERFORM DUTIES OF HIS RATE.' THIS STATEMENT INDICATES THAT SUCH DUTY WAS DIRECTED BY COMPETENT AUTHORITY AND, IF THE RECORD BE MADE TO SHOW THAT SUCH IS THE CASE, THE ASSIGNMENT MAY BE REGARDED AS A RESTORATION TO DUTY WITHIN THE SCOPE OF 33 COMP. GEN. 281. YOU DO NOT INDICATE THE DATE THAT THE ENLISTED MAN WAS ASSIGNED TO DUTY IN THE PORT CONTROL OFFICE OR THE DATE OF HIS RELEASE THEREFROM. HOWEVER, FOR THE PERIOD OF SUCH DUTY, THE ENLISTED MAN IS ENTITLED TO THE PAY AND ALLOWANCES OF HIS RANK. COMPARE 36 COMP. GEN. 564. IN ADDITION, HAVING BEEN TRANSFERRED TO THE U.S. NAVAL RESERVE AND RELEASED TO INACTIVE DUTY IN THAT STATUS WITHOUT DISCHARGE, HE IS ENTITLED TO LUMP-SUM SETTLEMENT FOR ANY ACCRUED LEAVE WHICH HAD NOT BEEN USED ON THE DATE OF NORMAL EXPIRATION OF ENLISTMENT PLUS SUCH LEAVE AS MAY HAVE ACCRUED DURING THE PERIOD OF DUTY IN THE PORT CONTROL OFFICE. COMPARE 35 COMP. GEN. 666.