B-136430, JUL. 9, 1958

B-136430: Jul 9, 1958

Additional Materials:

Contact:

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

 

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

TOU VELLE: REFERENCE IS MADE TO YOUR LETTER OF MAY 6. SINCE YOUR PRESENT CLAIM IS A DUPLICATE OF THE CLAIM WHICH WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED AUGUST 14. YOUR LETTER WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THAT SETTLEMENT. YOU STATE YOU WERE ABSENT FROM YOUR STATION FROM FEBRUARY 22 TO JULY 10. YOU WERE TRIED BY GENERAL COURT MARTIAL ON A CHARGE OF DESERTION IN TIME OF WAR (1 SPECIFICATION. THAT YOU WERE FOUND NOT GUILTY OF THAT CHARGE. APPARENTLY YOU ARE UNDER THE IMPRESSION THAT BY REASON OF YOUR ACQUITTAL YOU ARE ENTITLED TO PAY FOR THE PERIOD OF YOUR ABSENCE FROM DUTY. YOUR LETTER CLEARLY INDICATED THAT YOUR ABSENCE WAS UNAUTHORIZED. THE CHARGE OF DESERTION IN TIME OF WAR BEFORE A COURT MARTIAL IS PRIMARILY OF A CRIMINAL NATURE.

B-136430, JUL. 9, 1958

TO MR. GAVINE M. TOU VELLE:

REFERENCE IS MADE TO YOUR LETTER OF MAY 6, 1958, PRESENTING CLAIM FOR $639 REPRESENTING PAY FOR THE PERIOD FEBRUARY 22 TO JULY 10, 1945, AS A CHIEF SPECIALIST (T), UNITED STATES NAVAL RESERVE. SINCE YOUR PRESENT CLAIM IS A DUPLICATE OF THE CLAIM WHICH WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED AUGUST 14, 1946, YOUR LETTER WILL BE CONSIDERED AS A REQUEST FOR REVIEW OF THAT SETTLEMENT.

YOU STATE YOU WERE ABSENT FROM YOUR STATION FROM FEBRUARY 22 TO JULY 10, 1945; THAT ON OCTOBER 30, 1945, YOU WERE TRIED BY GENERAL COURT MARTIAL ON A CHARGE OF DESERTION IN TIME OF WAR (1 SPECIFICATION--- 139 DAY, SURRENDERED); THAT YOU WERE FOUND NOT GUILTY OF THAT CHARGE; AND THAT ON NOVEMBER 26, 1945, THE CONVENING AUTHORITY APPROVED THE FINDING OF THE GENERAL COURT MARTIAL AND ORDERED YOU RELEASED FROM ARREST AND RESTORED TO DUTY. APPARENTLY YOU ARE UNDER THE IMPRESSION THAT BY REASON OF YOUR ACQUITTAL YOU ARE ENTITLED TO PAY FOR THE PERIOD OF YOUR ABSENCE FROM DUTY. YOUR LETTER CLEARLY INDICATED THAT YOUR ABSENCE WAS UNAUTHORIZED.

THE CHARGE OF DESERTION IN TIME OF WAR BEFORE A COURT MARTIAL IS PRIMARILY OF A CRIMINAL NATURE, WHEREAS THAT OF A CLAIM FOR PAY IS OF A CIVIL NATURE. AS A CONSEQUENCE, THE ACQUITTAL BY GENERAL COURT MARTIAL IN YOUR CASE DID NOT IN ANY WAY CHANGE THE FACT THAT YOU WERE ABSENT WITHOUT LEAVE DURING THE PERIOD FEBRUARY 22 TO JULY 10, 1945. IN OTHER WORDS, WHILE THE CIRCUMSTANCES SURROUNDING YOUR UNAUTHORIZED ABSENCE WERE SUCH THAT YOU WERE ABSOLVED FROM PUNISHMENT BY COURT MARTIAL FOR CRIMINAL RESPONSIBILITY, IT LONG HAS BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT UNDER THE PAY LAWS THERE IS NO ENTITLEMENT TO PAY FOR SUCH UNAUTHORIZED ABSENCE. THE ESTABLISHED RULE IS THAT THE LAW GIVES NO RIGHT TO PAY FOR ANY PERIOD OF TIME DURING WHICH AN ENLISTED MAN IS ABSENT WITHOUT PROPER AUTHORITY. CONSEQUENTLY NO PAY ACCRUED TO YOU DURING THE PERIOD OF YOUR UNAUTHORIZED ABSENCE, FEBRUARY 22 TO JULY 10, 1945.

ACCORDINGLY, THE SETTLEMENT DISALLOWING YOUR CLAIM WAS PROPER AND, UPON REVIEW, IS SUSTAINED.