B-134539, MARCH 19, 1968, 47 COMP. GEN. 487

B-134539, MARCH 19, 1968, 47 COMP. GEN. 487

PAY - AFTER EXPIRATION OF ENLISTMENT - CONFINEMENT, ETC., PERIODS - PAY STATUS AN ENLISTED MAN WHO IS RESTORED TO DUTY TO MAKE UP LOST TIME AS PROVIDED BY 10 U.S.C. 972, HAVING RESUMED HIS OBLIGATED SERVICE CONTRACT, HIS ENLISTMENT EXTENDS BEYOND THE NORMAL EXPIRATION TERM OF SERVICE TO INCLUDE THE MAKE GOOD DAYS AND, THEREFORE, FIXES A NEW TERMINATION DATE, EVEN THOUGH A PERIOD OF CONFINEMENT MAY HAVE COMMENCED DURING THE EXTENDED PERIOD. HOWEVER, THE RESTORATION TO DUTY STATUS TO MAKE UP LOST TIME DOES NOT CONTINUE INDEFINITELY WHEN A STATUS CHANGES FROM DUTY TO CONFINEMENT, WHETHER PRETRIAL OR PURSUANT TO A COURT-MARTIAL SENTENCE. THEREFORE, A MEMBER WHO WAS PLACED IN PRETRIAL CONFINEMENT DURING A MAKE GOOD LOST TIME PERIOD EXTENDING FROM THE DATE HIS ENLISTMENT EXPIRED, AUGUST 26, 1965, TO THE ADJUSTED EXPIRATION DATE, DECEMBER 24, 1965, IS NOT ENTITLED TO PAY AND ALLOWANCES SUBSEQUENT TO THE NEW TERMINATION DATE. 37 COMP. GEN. 488, MODIFIED.

TO LIEUTENANT COLONEL IRVING C. HOAG, JR., DEPARTMENT OF THE ARMY, MARCH 19, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 19, 1967 (FILE REFERENCE ALLCO-FA), REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE NET AMOUNT OF $1,887.38 IN FAVOR OF PRIVATE FIRST CLASS CHARLES R. HALL, RA 14785091 REPRESENTING PAY AND ALLOWANCES DURING THE PERIOD MARCH 21, 1966, TO SEPTEMBER 30, 1967, WHILE IN MILITARY CONFINEMENT UNDER THE CIRCUMSTANCES DISCLOSED. YOUR REQUEST WAS FORWARDED HERE ON DECEMBER 22, 1967, BY THE OFFICE OF THE COMPTROLLER OF THE ARMY AND HAS BEEN ASSIGNED D.O. NUMBER A-073 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS REPORTED IN YOUR LETTER AND ENCLOSURES THAT PRIVATE FIRST CLASS HALL ENLISTED IN THE ARMY FOR 3 YEARS ON AUGUST 27, 1962; THAT DURING THE PERIOD JANUARY 21 TO 27, 1963, HE WAS ABSENT WITHOUT LEAVE, AND THAT PURSUANT TO TWO SEPARATE COURT-MARTIAL SENTENCES HE WAS IN CONFINEMENT FROM NOVEMBER 11, TO DECEMBER 18, 1963, AND FROM FEBRUARY 25 T MAY 9, 1964. THIS ABSENCE AND CONFINEMENT AMOUNTED TO 120 DAYS.

THE RECORD SHOWS THAT HALL'S TERM OF SERVICE WOULD HAVE EXPIRED ON AUGUST 26, 1965, BUT THAT HE WAS RETAINED IN THE SERVICE TO MAKE UP 120 DAYS OF LOST TIME WHICH ADVANCED THE DATE OF EXPIRATION OF HIS TERM OF SERVICE TO DECEMBER 24, 1965. IT IS REPORTED THAT ON AUGUST 27, 1965, THE DATE FOLLOWING THE NORMAL EXPIRATION OF HIS TERM OF SERVICE, THE ENLISTED MAN WAS IN A PRESENT-FOR-DUTY STATUS, HAVING BEEN HELD TO MAKE GOOD TIME LOST. ON OCTOBER 25, 1965, HOWEVER, HE WAS PLACED IN CONFINEMENT AWAITING TRIAL BY COURT-MARTIAL AND BY COURT MARTIAL ORDER DATED MARCH 21, 1966, HE WAS FOUND GUILTY AS CHARGED AND SENTENCED TO BE DISHONORABLY DISCHARGED FROM THE SERVICE, TO FORFEIT ALL PAY AND ALLOWANCES BECOMING DUE ON AND AFTER MARCH 21, 1966, TO BE CONFINED AT HARD LABOR FOR THE TERM OF HIS NATURAL LIFE, AND TO BE REDUCED TO THE LOWEST ENLISTED GRADE.

THE RECORD (GENERAL COURT-MARTIAL ORDER NO. 414, DATED MAY 29, 1967, THE MEMBER WAS RESTORED TO DUTY AND RETAINED IN CONFINEMENT AS PRESCRIBED IN THE COURT-MARTIAL SENTENCE OF MARCH 21, 1966, WERE SET ASIDE ON APRIL 12, 1967, AND A REHEARING WAS ORDERED BEFORE ANOTHER COURT-MARTIAL TO BE DESIGNATED. IT IS FURTHER REPORTED THAT ON MAY 2, 1967, THE MEMBER WAS RESTORED TO DUTY AND RETAINED IN CONFINEMENT AS A DETAINED PRISONER AND THAT HE WAS STILL IN CONFINEMENT AWAITING REHEARING AS OF OCTOBER 16, 1967.

AN ENLISTED MEMBER OF AN ARMED FORCE WHO WAS ABSENT FROM DUTY FOR CERTAIN SPECIFIED CAUSES IS REQUIRED TO MAKE UP LOST TIME UPON HIS RETURN TO FULL DUTY AS PROVIDED IN THE ACT OF JULY 24, 1956, CH. 692, 70 STAT. 631, NOW 10 U.S.C. 972, WHICH READS AS FOLLOWS: AN ENLISTED MEMBER OF AN ARMED FORCE WHO---

(1) DESERTS;

(2) IS ABSENT FROM HIS ORGANIZATION, STATION, OR DUTY FOR MORE THAN ONE DAY WITHOUT PROPER AUTHORITY, AS DETERMINED BY COMPETENT AUTHORITY;

(3) IS CONFINED FOR MORE THAN ONE DAY WHILE AWAITING TRIAL AND DISPOSITION OF HIS CASE, AND WHOSE CONVICTION HAS BECOME FINAL;

(4) IS CONFINED FOR MORE THAN ONE DAY UNDER A SENTENCE THAT HAS BECOME FINAL; OR

(5) IS UNABLE FOR MORE THAN ONE DAY, AS DETERMINED BY COMPETENT AUTHORITY, TO PERFORM HIS DUTIES BECAUSE OF INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUOR, OR BECAUSE OF DISEASE OR INJURY RESULTING FROM HIS OWN MISCONDUCT; IS LIABLE, AFTER HIS RETURN TO FULL DUTY, TO SERVE FOR A PERIOD THAT, WHEN ADDED TO THE PERIOD THAT HE SERVED BEFORE HIS ABSENCE FROM DUTY, AMOUNTS TO THE TERM FOR WHICH HE WAS ENLISTED OR INDUCTED.

THE CONDITIONS UNDER WHICH AN ENLISTED MEMBER IS ENTITLED TO PAY AND ALLOWANCES DURING CONFINEMENT WHILE MAKING UP LOST TIME IS SET FORTH IN PARAGRAPH 10316B (4), DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL--- JANUARY 1, 1967 (FORMERLY CONTAINED IN PARAGRAPH 12142D, ARMY REGULATIONS 37-104, FEBRUARY 15, 1965), WHICH PROVIDES AS FOLLOWS:

(4) CONFINED WHILE MAKING UP LOST TIME. IF A MEMBER'S TERM OF ENLISTMENT HAS EXPIRED AND HE HAS BEGUN TO MAKE UP LOST TIME, HE IS ENTITLED TO PAY AND ALLOWANCES WHILE LATER CONFINED BY COURT-MARTIAL SENTENCE. HE IS NOT ENTITLED TO PAY AND ALLOWANCES WHILE CONFINED AFTER ETS IF HE HAD NOT ALREADY STARTED TO MAKE UP LOST TIME BEFORE HE WAS CONFINED. THIS REGULATION IS IN CONSONANCE WITH OUR DECISION OF JANUARY 23, 1958, 37 COMP. GEN. 488, CITED IN YOUR SUBMISSION. WHEN AN UNEXECUTED COURT- MARTIAL SENTENCE WHICH INCLUDES A FORTEITURE IS SET ASIDE AND A REHEARING IS ORDERED, AS IN THIS CASE, THE MEMBER'S ENTITLEMENT TO PAY AND ALLOWANCES IS GOVERNED BY THE PROVISIONS OF PARAGRAPH 70509B (1) OF THE ABOVE-MENTIONED MANUAL WHICH PROVIDES IN PERTINENT PART, AS FOLLOWS:

* * * WHEN AN UNEXECUTED COURT-MARTIAL SENTENCE WHICH INCLUDES A FORFEITURE IS SET ASIDE OR DISAPPROVED AND A REHEARING IS ORDERED, THE MEMBER IS ENTITLED TO FULL PAY AND ALLOWANCES (SUBJECT TO OTHER PROPER DEDUCTIONS) FOR THE PERIOD FROM THE CONVENING AUTHORITY'S ACTION ON THE ORIGINAL SENTENCE UNTIL THE CONVENING AUTHORITY'S ACTION ON THE SUBSEQUENT SENTENCE. ENTITLEMENT TO PAY AND ALLOWANCES THEREAFTER DEPENDS ON THE TERMS OF THE NEW SENTENCE. THIS PROVISION OF THE REGULATION APPEARS TO STEM FROM 36 COMP. GEN. 512.

YOU EXPRESS DOUBT AS TO WHETHER THE RULE SET FORTH IN 37 COMP. GEN. 488, CITED IN YOUR SUBMISSION, IS CONTRARY TO THE APPLICABLE STATUTE AUTHORIZING PAY AND ALLOWANCES WHILE MAKING GOOD TIME LOST. YOUR DOUBT IN THE MATTER STEMS FROM THE FACT THAT A DIFFERENT RULE IS APPLIED TO ENLISTED MEMBERS WHO ARE IN CONFINEMENT ON THE DATE THEIR ORIGINAL TERM OF SERVICE EXPIRES SINCE PAY AND ALLOWANCES ARE VIEWED AS TERMINATING ON THAT DATE. YOU SAY THAT IT DOES NOT SEEM REASONABLE OR EQUITABLE THAT BECAUSE HALL WAS PRESENT FOR DUTY FOR 1 OR MORE DAYS AFTER THE EXPIRATION OF THE TERM OF HIS ENLISTMENT TO MAKE UP LOST TIME, HE SHOULD CONTINUE IN A PAY STATUS WHILE IN CONFINEMENT FOR POSSIBLY MORE THAN 2 YEARS BEYOND HIS ADJUSTED EXPIRATION DATE OF DECEMBER 24, 1965.

YOU SUGGEST THAT IF 37 COMP. GEN. 488 WERE MODIFIED TO AUTHORIZE PAYMENT OF PAY AND ALLOWANCES, LESS FORFEITURE, DURING A PERIOD OF CONFINEMENT, UP TO HIS ADJUSTED EXPIRATION DATE OF TERM OF SERVICE, THAT THE EQUITY OF TREATMENT WHICH IS DESIRED WOULD BE OBTAINED. IN THIS LIGHT YOU QUESTION THE LEGALITY OF MAKING PAYMENT TO HALL FOR THE PERIOD BEYOND HIS ADJUSTED TERM OF SERVICE DATE, NAMELY, DECEMBER 24, 1965.

IT IS STATED THAT THERE IS PENDING BEFORE YOU FOR PAYMENT THE PAY RECORDS OF SEVEN OTHER ENLISTED PERSONNEL WHO WERE PRESENT FOR DUTY MAKING UP LOST TIME AFTER NORMAL EXPIRATION DATE OF ENLISTMENT, AND THEN LATER PLACED IN CONFINEMENT AND THAT ACTION ON THESE CASES WILL BE WITHHELD PENDING OUR DECISION ON THE PRESENT CASE.

IN 37 COMP. GEN. 488 THE QUESTION PRESENTED WAS WHETHER AN ENLISTED MEMBER WHO WAS HELD IN THE SERVICE UNDER THE ACT OF JULY 24, 1956, TO MAKE GOOD TIME LOST AND WHO, ON THE DAY FOLLOWING THE NORMAL EXPIRATION DATE OF HIS ENLISTMENT, WAS PERFORMING FULL DUTY, BUT WAS THEREAFTER CONFINED UNDER SENTENCE OF COURT-MARTIAL, WAS ENTITLED TO PAY AND ALLOWANCES DURING SUCH PERIOD OF CONFINEMENT. IN THAT DECISION WE SAID THAT THE STATUTE HAS THE EFFECT OF AUTHORIZING PAY AND ALLOWANCES TO AN ENLISTED MEMBER WHILE HE IS BEING HELD IN THE SERVICE TO MAKE GOOD TIME LOST DURING HIS ENLISTMENT PERIOD, BEGINNING WITH HIS INITIAL RETURN TO FULL DUTY AFTER THE EXPIRATION OF HIS ENLISTMENT. WE ALSO SAID THAT AN ENLISTED MEMBER CONFINED UNDER COURT-MARTIAL SENTENCE DURING THE PERIOD HE IS BEING HELD IN SERVICE AFTER HIS INITIAL RETURN TO FULL DUTY MAY NOT BE REGARDED AS THEN MAKING GOOD TIME LOST.

IN CONCLUDING THAT THE ENLISTED MAN CONSIDERED IN 37 COMP. GEN. 488 WAS ENTITLED TO PAY AND ALLOWANCES DURING THE ENTIRE PERIOD OF HIS CONFINEMENT, EXCEPT AS FORFEITED BY COURT-MARTIAL SENTENCE, WE SAID THAT:

SUCH CONFINEMENT, HOWEVER, DOES NOT AFFECT HIS STATUS OF BEING HELD IN THE SERVICE FOR THE PURPOSE OF MAKING UP THE PREVIOUSLY LOST TIMEAS REQUIRED BY THE ACT AND HE CONTINUES TO BE SO HELD WHILE IN CONFINEMENT. HENCE, THE ENLISTED MEMBER CONTINUES IN A PAY STATUS WHILE SO CONFINED, EXCEPT TO THE EXTENT THAT HIS PAY MAY BE FORFEITED BY COURT-MARTIAL, THE SAME AS DURING HIS REGULAR ENLISTMENT PERIOD. AN ENLISTED MAN CONTRACTS FOR FAITHFUL SERVICE, BUT IS ENTITLED TO PAY WHILE IN CONFINEMENT DURING HIS REGULAR ENLISTMENT PERIOD EXCEPT AS FORFEITED BY COURT-MARTIAL SENTENCE, AND THERE APPEARS NO BASIS TO CONCLUDE THAT CONGRESS INTENDED TO APPLY A DIFFERENT AND MORE HARSH RULE TO AN ENLISTED MAN HELD IN SERVICE AFTER THE EXPIRATION OF HIS ENLISTMENT TO MAKE GOOD TIME LOST.

WHILE, AS POINTED OUT IN THE ABOVE DECISION, AN ENLISTED MAN IS ENTITLED TO PAY WHILE IN CONFINEMENT DURING HIS REGULAR ENLISTMENT PERIOD (EXCEPT AS MAY BE FORFEITED BY COURT-MARTIAL SENTENCE), IT DOES NOT NECESSARILY FOLLOW THAT THE SAME MEMBER, AFTER BEING RESTORED TO A DUTY STATUS FOLLOWING THE EXPIRATION OF HIS ENLISTMENT PERIOD TO MAKE GOOD TIME LOST DURING THAT PERIOD, CONTINUES INDEFINITELY IN A PAY STATUS WHEN HIS STATUS IS SUBSEQUENTLY CHANGED FROM DUTY TO CONFINEMENT WHETHER THE CONFINEMENT BE PRETRIAL OR PURSUANT TO A COURT MARTIAL SENTENCE.

THE PRIMARY PURPOSE OF 10 U.S.C. 972 IS TO REQUIRE THE ENLISTED MAN INVOLVED TO MAKE UP THE PERIOD OF TIME HE LOST DURING HIS ENLISTMENT PERIOD. ONCE AN ENLISTED MAN IS RESTORED TO DUTY TO MAKE UP A FIXED NUMBER OF DAYS THAT HE LOST DURING THE ENLISTMENT PERIOD HE IS, IN EFFECT, RESUMING HIS OBLIGATED SERVICE CONTRACT. THE NUMBER OF DAYS LOST WHEN ADDED TO THE TERM OF AN ENLISTMENT PERIOD HAS THE EFFECT OF EXTENDING THAT ENLISTMENT BEYOND THE NORMAL EXPIRATION OF HIS TERM OF SERVICE AND FIXING A NEW TERMINATION DATE. UPON FURTHER CONSIDERATION OF THE PROVISIONS OF 10 U.S.C. 972, WE THINK THE CONCLUSION THAT PAY AND ALLOWANCES CONTINUE WHILE IN CONFINEMENT THROUGH THAT NEW TERMINATION DATE IS SOUND. IT IS OUR VIEW, HOWEVER, THAT THE PAY OF A MEMBER IN CONFINEMENT, FOLLOWING RESTORATION TO DUTY TO MAKE GOOD TIME LOST, TERMINATES ON THE DATE HIS NORMAL TERM OF SERVICE, AS EXTENDED TO MAKE GOOD TIME LOST, WOULD HAVE EXPIRED. TO THE EXTENT THAT 37 COMP. GEN. 488 IS INCONSISTENT WITH THE HOLDING HERE STATED, THAT DECISION NO LONGER WILL BE FOLLOWED.

IN VIEW OF THE FOREGOING, PRIVATE HALL'S TERM OF ENLISTMENT, AS EXTENDED TO MAKE GOOD TIME LOST, WOULD HAVE EXPIRED ON DECEMBER 24, 1965, WHEN HE WAS IN PRETRIAL CONFINEMENT, AND HIS RIGHT TO PAY AND ALLOWANCES TERMINATED ON THAT DATE. ACCORDINGLY, PAYMENT ON THE VOUCHER, COVERING A PERIOD SUBSEQUENT TO DECEMBER 24, 1965, IS NOT AUTHORIZED. THE VOUCHER AND SUPPORTING PAPERS WILL BE RETAINED HERE.