B-134151, DECEMBER 4, 1957, 37 COMP. GEN. 380

B-134151, DECEMBER 4, 1957, 37 COMP. GEN. 380

MILITARY PERSONNEL - PAY - AFTER EXPIRATION OF ENLISTMENT - ABSENCE WITHOUT LEAVE - RETURN TO MILITARY CONTROL THE ACT OF JULY 24, 1956, 34 U.S.C. 1836, WHICH IMPOSES ON ENLISTED MEMBERS OF THE ARMED FORCES LIABILITY TO MAKE UP TIME LOST FOR UNAUTHORIZED ABSENCE OR CONFINEMENT AFTER RETURN TO FULL DUTY, IS APPLICABLE TO ALL ENLISTED MEMBERS, INCLUDING THOSE RETURNED TO MILITARY CONTROL FROM A STATUS OF ABSENCE WITHOUT LEAVE OR DESERTION AFTER EXPIRATION OF THEIR TERM OF ENLISTMENT; HOWEVER, ENTITLEMENT TO PAY AND ALLOWANCES DOES NOT COMMENCE ON THE RETURN TO MILITARY CONTROL BUT BEGINS ONLY AFTER THE MEMBER IS RELEASED FROM CONFINEMENT AND PERFORMS HIS REQUIRED DUTIES.

TO THE SECRETARY OF DEFENSE, DECEMBER 4, 1957:

FURTHER REFERENCE IS MADE TO LETTER DATED OCTOBER 17, 1957, AND ENCLOSURE, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING OUR DECISION ON CERTAIN QUESTIONS CONCERNING THE ENTITLEMENT OF ENLISTED MEMBERS OF THE ARMED FORCES TO PAY AND ALLOWANCES WHILE IN A DISCIPLINARY STATUS AFTER EXPIRATION OF ENLISTMENT.

THE SPECIFIC QUESTIONS UPON WHICH DECISION IS REQUESTED ARE SET OUT IN AN ENCLOSED COPY OF COMMITTEE ACTION NO. 193 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

1. IS AN ENLISTED MEMBER OF THE ARMED FORCES WHOSE TERM OF ENLISTMENT OR INDUCTION TERMINATES WHILE IN A STATUS OF ABSENCE WITHOUT LEAVE OR IN DESERTION, ENTITLED TO PAY AND ALLOWANCES UPON HIS RETURN TO MILITARY CONTROL WHILE CONFINED AWAITING TRIAL AND DISPOSITION OF HIS CASE;

(A) IF HIS CONVICTION BECOMES FINAL, AND HIS RETURN TO FULL DUTY THROUGHOUT THE PERIOD OF ENTITLEMENT HERE IN QUESTION HAS NEVER BEEN EFFECTED?

(B) IF HIS TRIAL RESULTS IN AN ACQUITTAL, AND HIS RETURN TO FULL DUTY THROUGHOUT THE PERIOD OF ENTITLEMENT HERE IN QUESTION HAS NEVER BEEN EFFECTED?

(C) IF HIS CONVICTION BECOMES FINAL, AND HIS RETURN TO FULL DUTY WAS EFFECTED UPON HIS RETURN TO MILITARY CONTROL?

(D) IF HIS TRIAL RESULTS IN AN ACQUITTAL, AND HIS RETURN TO FULL DUTY WAS EFFECTED UPON HIS RETURN TO MILITARY CONTROL?

2. IS AN ENLISTED MEMBER OF THE ARMED FORCES, WHOSE TERM OF ENLISTMENT OR INDUCTION TERMINATES WHILE HE IS CONFINED AWAITING TRIAL AND DISPOSITION OF HIS CASE, ENTITLED, SUBSEQUENT TO SUCH TERMINATION, TO PAY AND ALLOWANCES;

(A) IF SUCH TRIAL RESULTS IN A CONVICTION WHICH BECOMES FINAL, AND IF HIS RETURN TO FULL DUTY THROUGHOUT THE PERIOD OF ENTITLEMENT HERE IN QUESTION IS NEVER EFFECTED?

(B) IF SUCH TRIAL RESULTS IN AN ACQUITTAL, AND IF HIS RETURN TO FULL DUTY THROUGHOUT THE PERIOD OF ENTITLEMENT HERE IN QUESTION IS NEVER EFFECTED?

IT LONG HAS BEEN THE RULE THAT, REGARDLESS OF WHETHER THE ENLISTMENT CONTRACT EXPIRED WHEN AN ENLISTED MEMBER WAS ABSENT IN A STATUS OF ABSENCE WITHOUT LEAVE OR IN DESERTION, OR WHEN IN CONFINEMENT AWAITING TRIAL BY COURT-MARTIAL, PAY AND ALLOWANCES DO NOT ACCRUE TO THE ENLISTED MEMBER WHILE SUBJECT TO MILITARY CONTROL AFTER THE EXPIRATION OF HIS ENLISTMENT UNLESS HE IS ACQUITTED AND THEREFORE CONSIDERED TO HAVE BEEN HELD FOR THE CONVENIENCE OF THE GOVERNMENT, OR HE IS HELD TO MAKE GOOD TIME LOST, OR HE IS RESTORED TO DUTY. 17 COMP. GEN. 103; 30 COMP. GEN. 449; 33 COMP. GEN. 281; 34 COMP. GEN. 390; B-133519, OCTOBER 7, 1957, 37 COMP. GEN. 228. THE VIEW IS EXPRESSED IN A DISCUSSION OF THE ABOVE QUESTIONS CONTAINED IN THE COMMITTEE ACTION, HOWEVER, THAT IF THE ACT OF JULY 24, 1956, 70 STAT. 631, 34 U.S.C. 183B, APPLIES TO AN ENLISTED MEMBER WHOSE TERM OF ENLISTMENT OR INDUCTION TERMINATES WHILE HE IS IN A STATUS OF ABSENCE WITHOUT LEAVE OR DESERTION, SUCH MEMBER MAY BE ENTITLED UNDER THAT ACT TO PAY AND ALLOWANCES BY VIRTUE OF HIS RETURN TO MILITARY CONTROL BECAUSE HE IS THEN AVAILABLE FOR THE PERFORMANCE OF FULL DUTY.

THE ACT OF JULY 24, 1956, PROVIDES THAT AN ENLISTED MEMBER OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHO (1) DESERTS, (2) IS ABSENT WITHOUT LEAVE FOR MORE THAN ONE DAY, (3) IS CONFINED FOR MORE THAN ONE DAY WHILE AWAITING TRIAL AND DISPOSITION OF HIS CASE AND WHOSE CONVICTION BECOMES FINAL, (4) IS CONFINED FOR MORE THAN ONE DAY UNDER A SENTENCE WHICH HAS BECOME FINAL, OR (5) IS UNABLE FOR MORE THAN ONE DAY TO PERFORM DUTY BECAUSE OF INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUOR, OR BECAUSE OF DISEASE OR INJURY RESULTING FROM HIS MISCONDUCT, IS ABLE,"AFTER HIS RETURN TO FULL DUTY," TO SERVE FOR A PERIOD WHICH, WHEN ADDED TO THE PERIOD HE HAD SERVED BEFORE HIS ABSENCE FROM DUTY, AMOUNTS TO THE TERM FOR WHICH HE WAS ENLISTED OR INDUCTED. THIS STATUTE REPEALED AND SUPERSEDED SOMEWHAT SIMILAR STATUTORY PROVISIONS RELATING TO ENLISTED MEMBERS OF THE SERVICES CONCERNED. THE PRIOR PROVISIONS APPLICABLE TO THE ARMY AND AIR FORCE REQUIRED AN ENLISTED PERSON TO MAKE UP TIME LOST BECAUSE OF UNAUTHORIZED ABSENCE OR CONFINEMENT ,AFTER HIS RETURN TO A FULL DUTY STATUS.' SUCH PROVISIONS APPLICABLE TO THE NAVY, MARINE CORPS AND COAST GUARD, HOWEVER, DID NOT MANDATORILY REQUIRE COMPLETION OF THE ENLISTMENTS IN SUCH CASES BUT PERMITTED ENLISTMENT MEMBERS TO MAKE UP THE LOST TIME, PROVIDED THEY MADE APPLICATION TO DO SO AND THE APPLICATION WAS ACCEPTED BEFORE THEIR ENLISTMENTS EXPIRED.

THE LEGISLATIVE HISTORY OF THE ACT OF JULY 24, 1956, SHOWS THAT ITS PURPOSE WAS TO EXTEND TO ENLISTED MEMBERS OF ALL THE MILITARY SERVICES THE LIABILITY PREVIOUSLY IMPOSED ON ENLISTED MEMBERS OF ITS ARMY AND AIR FORCE TO MAKE UP TIME LOST FOR THE ENUMERATED CAUSES. IN RECOMMENDING ENACTMENT OF THE BILL WHICH BECAME THE ACT OF JULY 24, 1956, THE ACTING SECRETARY OF THE NAVY SAID IN A LETTER OF JANUARY 4, 1956, TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES THAT IT "WOULD PERMIT ALL CLASSES OF PRISONERS TO BE CONSIDERED IN A REHABILITATION PROGRAM; WOULD MINIMIZE THE NUMBER OF DISCIPLINARY CASES IN A NONPAY STATUS; WOULD SIMPLIFY THE ADMINISTRATION OF PERSONNEL IN THIS CATEGORY; AND WOULD GREATLY CONTRIBUTE TO REDUCTION OF ABSENCES, WHEN OFFENDERS RECOGNIZE THAT SUCH TIME LOST MUST BE MADE GOOD TO COMPLETE THEIR ENLISTMENTS.'

IT IS POINTED OUT IN THE COMMITTEE ACTION DISCUSSION THAT, WHILE THE PRIOR ARMY AND AIR FORCE LAW IMPOSED THE LIABILITY TO MAKE GOOD THE LOST TIME AFTER THE ENLISTED MEMBER WAS RETURNED TO A ,FULL-DUTY STATUS," THE ACT OF JULY 24, 1956, IMPOSES THE LIABILITY AFTER SUCH MEMBER IS RETURNED TO "FULL DUTY.' IN VIEW OF THE MENTIONED REHABILITATION FEATURES OF THE STATUTE, ITS ANTICIPATED EFFECT OF MINIMIZING THE NUMBER OF DISCIPLINARY CASES IN A NONPAY STATUS AND THE PROHIBITION AGAINST PUNISHMENT PRIOR TO TRIAL CONTAINED IN ARTICLE 13 OF THE UNIFORM CODE OF MILITARY JUSTICE, IT IS SUGGESTED THAT THE USE OF THE TERM "FULL DUTY" INSTEAD OF THE TERM "FULL-DUTY STATUS" MAY REFLECT A CONGRESSIONAL INTENT TO CONFER ON AN ENLISTED MEMBER, WHO IS RETURNED TO MILITARY CONTROL AFTER THE EXPIRATION OF HIS TERM OF SERVICE, A RIGHT TO PAY AND ALLOWANCES UPON HIS RETURN TO MILITARY CONTROL EVEN THOUGH THE MEMBER IS IN A DISCIPLINARY STATUS.

WE BELIEVE THAT THE ACT OF JULY 24, 1956, WAS INTENDED TO APPLY TO ALL ENLISTED MEMBERS, INCLUDING THOSE RETURNED TO MILITARY CONTROL FROM A STATUS OF ABSENCE WITHOUT LEAVE OR DESERTION AFTER EXPIRATION OF THEIR TERM OF SERVICE. THERE IS NOTHING IN THE LANGUAGE OF THE STATUTE THAT REQUIRES A DIFFERENT CONCLUSION AND TO HOLD THAT THE LAW DOES NOT SO APPLY WOULD PERMIT ENLISTED MEMBERS IN THOSE STATUSES TO AVOID THE LIABILITY IMPOSED BY THE LAW, PROVIDED THEY COULD REMAIN FREE FROM MILITARY CONTROL UNTIL AFTER THEIR TERMS OF SERVICE HAD EXPIRED. IT DOES NOT FOLLOW, HOWEVER, THAT SUCH MEMBERS BECOME ENTITLED TO PAY AND ALLOWANCES UPON THEIR RETURN TO MILITARY CONTROL.

WHILE THE TERM "FULL DUTY" IS NOT DEFINED BY THE LAW, WE PERCEIVE NO REASON FOR CONCLUDING THAT CONGRESS INTENDED SUCH WORDS TO MEAN SOMETHING OTHER THAN WAS MEANT BY THE TERM "FULL-DUTY STATUS" CONTAINED IN THE PRIOR LAWS. THE VIEW THAT SUCH WORDS REFER TO NOTHING MORE THAN A RESTORATION TO MILITARY CONTROL SEEMINGLY WOULD ATTRIBUTE TO CONGRESS A PURPOSE OF ESTABLISHING THE SOMEWHAT ANOMALOUS PROPOSITION THAT A PERIOD OF CONFINEMENT FOLLOWING A RETURN TO MILITARY CONTROL AFTER EXPIRATION OF ENLISTMENT SUFFICES TO MAKE UP TIME LOST DURING THE ENLISTMENT, BUT THAT A PERIOD OF CONFINEMENT PRIOR TO EXPIRATION OF ENLISTMENT RESULTS IN TIME LOST DURING THE ENLISTMENT. IN THIS RESPECT, HOUSE OF REPRESENTATIVES REPORT NO. 2361, 84TH CONGRESS, ON THE BILL H.R. 8407, WHICH BECAME THE ACT OF JULY 24, 1956, SAYS:

IN MERITORIOUS CASES THE NAVY AND THE MARINE CORPS AFFORD PERSONS SENTENCED TO PUNITIVE DISCHARGES THE OPPORTUNITY OF EARNING A DISCHARGE UNDER HONORABLE CONDITIONS BY PERFORMING FURTHER HONORABLE SERVICE.

THIS OPPORTUNITY IS GIVEN TO THOSE WHO SHOW BY THEIR CONDUCT AND SERVICE MOTIVATION THAT THEY MAY BE SUITABLE FOR RETENTION IN THE SERVICE. SUCH A CASE THE PUNITIVE DISCHARGE IS SUSPENDED AT THE REQUEST OF THE ENLISTED MAN AND HE IS RETURNED TO ACTIVE DUTY AFTER COMPLETING HIS SENTENCE. * * * IT HAPPENS NOT INFREQUENTLY THAT A MAN WHO IS CONSIDERED TO BE DESERVING OF A CHANCE TO EARN A DISCHARGE UNDER HONORABLE CONDITIONS IS DENIED THAT OPPORTUNITY BY REASON OF THE EXPIRATION OF HIS ENLISTMENT.

THE LAW AFFECTING THE ARMY AND AIR FORCE, WHICH MAKES A MAN LIABLE TO MAKE UP THE TIME LOST RATHER THAN PERMITTING HIM SO TO DO, DOES NOT REQUIRE THE SUBMISSION AND APPROVAL OF AN APPLICATION BEFORE HIS ENLISTMENT EXPIRES. UNDER THAT LAW, A MAN WHO IS SERVING A SENTENCE AT THE TIME HIS ENLISTMENT EXPIRES CAN BE RETURNED TO DUTY UPON RELEASE FROM CONFINEMENT FOR THE PURPOSE OF MAKING UP THE TIME HE HAS NOT SERVED DURING HIS ENLISTMENT. (ITALICS SUPPLIED.)

REASONABLY, THEREFORE, WE BELIEVE THAT THE TERM "AFTER HIS RETURN TO FULL DUTY" AS USED IN THE ACT OF JULY 24, 1956, IS TO BE REGARDED AS HAVING REFERENCE TO A PERIOD AFTER RELEASE FROM CONFINEMENT DURING WHICH THE ENLISTED MEMBER IS REQUIRED TO PERFORM THE DUTIES REQUIRED OF SUCH A MEMBER.

THE ACT OF JULY 24, 1956, IS CONCERNED PRIMARILY WITH A MATTER OF PERSONNEL ADMINISTRATION AND IN OUR VIEW IT WAS NOT INTENDED EITHER TO CONFER UPON ENLISTED MEMBERS OF THE MILITARY SERVICES ANY GREATER RIGHTS TO PAY AND ALLOWANCES IN THE SITUATIONS TO WHICH IT APPLIES THAN SUCH MEMBERS HAD PRIOR TO ITS ENACTMENT, OR TO DECREASE SUCH RIGHTS IN THOSE SITUATIONS.

IT FOLLOWS THAT THE ANSWERS TO YOUR QUESTIONS ARE GOVERNED BY THE RULE SET OUT ABOVE AND, ACCORDINGLY, QUESTIONS 1 (A) AND 2 (A) ARE ANSWERED IN THE NEGATIVE AND QUESTIONS 1 (B), 1 (C), 1 (D) AND 2 (B) ARE ANSWERED IN THE AFFIRMATIVE.