B-137883, DECEMBER 29, 1958, 38 COMP. GEN. 456

B-137883: Dec 29, 1958

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MILITARY PERSONNEL - TRAVEL - PRISONERS PLACED ON COMMANDANT'S PAROLE A PRISONER WHO IS RELEASED FROM CONFINEMENT IN A DISCIPLINARY BARRACKS ON COMMANDANT'S PAROLE CONTINUES TO BE A MEMBER OF THE UNIFORMED SERVICES PENDING APPELLATE REVIEW ACTION ON COURT-MARTIAL PROCEEDINGS AND IS TECHNICALLY IN THE LEGAL CUSTODY AND CONTROL OF THE COMMANDANT SO THAT HE MAY BE REGARDED AS COMING WITHIN THE TERM "GENERAL PRISONERS" IN SECTION 303 (E) OF CAREER COMPENSATION ACT OF 1949 FOR ENTITLEMENT TO TRAVEL AND TRANSPORTATION ALLOWANCES PURSUANT TO COMPETENT TRAVEL ORDERS. 1958: REFERENCE IS MADE TO LETTER DATED NOVEMBER 3. IT IS STATED THAT THE REQUEST FOR DECISION WAS APPROVED BY THE PER DIEM TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE AND ASSIGNED CONTROL NO. 58-18.

B-137883, DECEMBER 29, 1958, 38 COMP. GEN. 456

MILITARY PERSONNEL - TRAVEL - PRISONERS PLACED ON COMMANDANT'S PAROLE A PRISONER WHO IS RELEASED FROM CONFINEMENT IN A DISCIPLINARY BARRACKS ON COMMANDANT'S PAROLE CONTINUES TO BE A MEMBER OF THE UNIFORMED SERVICES PENDING APPELLATE REVIEW ACTION ON COURT-MARTIAL PROCEEDINGS AND IS TECHNICALLY IN THE LEGAL CUSTODY AND CONTROL OF THE COMMANDANT SO THAT HE MAY BE REGARDED AS COMING WITHIN THE TERM "GENERAL PRISONERS" IN SECTION 303 (E) OF CAREER COMPENSATION ACT OF 1949 FOR ENTITLEMENT TO TRAVEL AND TRANSPORTATION ALLOWANCES PURSUANT TO COMPETENT TRAVEL ORDERS.

TO THE SECRETARY OF THE ARMY, DECEMBER 29, 1958:

REFERENCE IS MADE TO LETTER DATED NOVEMBER 3, 1958, FROM THE UNDER SECRETARY OF THE ARMY, REQUESTING A DECISION AS TO WHETHER THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE TRAVEL AND TRANSPORTATION ALLOWANCES TO ARMY PRISONERS PLACED ON "COMMANDANT'S PAROLE" IN THE CIRCUMSTANCES SET FORTH BELOW. IT IS STATED THAT THE REQUEST FOR DECISION WAS APPROVED BY THE PER DIEM TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE AND ASSIGNED CONTROL NO. 58-18.

IN OUR DECISION OF SEPTEMBER 17, 1958, B-136919, TO THE SECRETARY OF DEFENSE, WE CONSIDERED SEVERAL QUESTIONS AS TO WHETHER PAY AND ALLOWANCES WOULD CONTINUE TO ACCRUE TO A PRISONER WHO WAS SENT HOME ON "COMMANDANT'S PAROLE", UNDER A PROPOSED NEW POLICY OF PAROLING UNSENTENCED PRISONERS WHO ARE CONFINED IN DISCIPLINARY BARRACKS BEFORE THEIR SENTENCES ARE ORDERED INTO EXECUTION, THE STATED PURPOSE OF SUCH POLICY BEING TO RELEASE AN UNSENTENCED PRISONER FROM CONFINEMENT PENDING COMPLETION OF FINAL APPELLATE ACTION ON THE COURT-MARTIAL PROCEEDINGS IN HIS CASE. THE UNDER SECRETARY'S LETTER OF NOVEMBER 3, 1958, RAISES THE QUESTION AS TO WHETHER TRAVEL AND TRANSPORTATION ALLOWANCES MAY BE PRESCRIBED FOR PRISONERS SO PAROLED, UNDER THE PROVISIONS OF SECTION 303 (E) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253 (E). SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, 37 U.S.C. 253 (A), PROVIDES, AMONG OTHER THINGS, THAT, UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED,"MEMBERS OF THE UNIFORMED SERVICES" ARE ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED, OR TO BE PERFORMED, UNDER COMPETENT ORDERS ,UPON A CHANGE OF PERMANENT STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POSTS OF DUTY REGARDLESS OF THE LENGTH OF TIME AWAY FROM SUCH DESIGNATED POSTS OF DUTY.' SUBSECTION (E) OF SECTION 303 AUTHORIZES TRAVEL AND TRANSPORTATION ALLOWANCES (AS PRESCRIBED IN SUBSECTION (A) ( TO THE CLASSES OF PERSONS THERE INDICATED, INCLUDING "GENERAL PRISONERS" AND "DISCHARGED PRISONERS," DUE CONSIDERATION TO BE GIVEN TO THE RIGHTS OF THE GOVERNMENT AS WELL AS THOSE OF THE INDIVIDUAL IN THE PROMULGATION OF REGULATIONS PRESCRIBING SAID ALLOWANCES.

THE UNDER SECRETARY'S LETTER STATES THAT WHILE THE TERM,"GENERAL PRISONER," IS NOT OFFICIALLY DEFINED OR USED IN ANY CURRENT ARMY REGULATION, IT WAS DEFINED, AT THE TIME OF PASSAGE OF THE 1949 ACT, IN PARAGRAPH 11A (2), ARMY REGULATIONS 600-375, DATED JANUARY 6, 1948, AS MEANING ONE WHOSE SENTENCE TO CONFINEMENT AND TO DISMISSAL OR DISCHARGE, WHETHER OR NOT THE LATTER HAS BEEN SUSPENDED, HAS BEEN APPROVED. IT IS POINTED OUT THAT APPROVAL OF A SENTENCE BY THE CONVENING AUTHORITY UNDER THE UNIFORM CODE OF MILITARY JUSTICE IS REQUIRED UNDER CURRENT ARMY REGULATIONS BEFORE AN UNSENTENCED PRISONER CAN BE CONFINED IN A DISCIPLINARY BARRACKS. IT APPEARS TO BE THE VIEW OF THE DEPARTMENT OF THE ARMY, THAT PRISONERS PLACED ON COMMANDANT'S PAROLE ARE "GENERAL PRISONERS" AS THAT TERM IS USED IN SECTION 303 (E) OF THE 1949 ACT. IT IS STATED THAT ALTHOUGH A PRISONER IS NOT PLACED ON PAROLE UNLESS HE MAKES APPLICATION THEREFOR, THE PAROLING OF AN ELIGIBLE PRISONER IS DEEMED TO BE IN THE BEST INTERESTS OF THE GOVERNMENT, AND THAT, IF A PAROLE IS GRANTED, THE PAROLEE IS DIRECTED BY COMPETENT ORDERS (PARAGRAPH 3001, JOINT TRAVEL REGULATIONS) TO PROCEED TO HIS HOME OR OTHER AUTHORIZED POINT AND IS REQUIRED TO COMPLY WITH ALL DIRECTIVES AND ORDERS OF THE COMMANDANT, ESTABLISHING THE CONDITIONS OF HIS PAROLE. IT IS STATED FURTHER THAT IN ADDITION TO FULFILLING THE REQUIREMENTS AND MEETING THE CONDITIONS UNDER WHICH THE PAROLE WAS GRANTED, THE PAROLEE MAY BE DIRECTED TO RETURN TO THE DISCIPLINARY BARRACKS, OR TO PROCEED TO ANOTHER FACILITY, FOR PURPOSES SUCH AS REHEARING, HOSPITALIZATION, PHYSICAL EXAMINATION OR DISCHARGE.

THE PROPOSED REGULATIONS PROVIDE AS FOLLOWS:

"COMMANDANT'S PAROLE

"AN ARMY OR AIR FORCE PRISONER WHO IS RELEASED ON " COMMANDANT'S PAROLE" FROM A DISCIPLINARY BARRACKS WILL BE FURNISHED TRANSPORTATION IN KIND AND MEAL TICKETS TO HIS HOME OR OTHER AUTHORIZED POINT. IN THE EVENT A REHEARING IS ORDERED FOLLOWING COMPLETION OF SUCH TRAVEL, OR THE PAROLEE IS REQUIRED TO PERFORM OFFICIAL TRAVEL FOR HOSPITALIZATION, PHYSICAL EXAMINATION, DISCHARGE, OR OTHER PURPOSES INCIDENT TO HIS PAROLE, HE WILL BE FURNISHED TRANSPORTATION IN KIND AND MEAL TICKETS, IF PRACTICABLE, FROM THE PLACE OF PAROLE TO THE FACILITY CONCERNED AND FOR RETURN TRAVEL, IF APPROPRIATE. IN THE EVENT IT IS IMPRACTICABLE TO FURNISH TRANSPORTATION IN KIND AND MEAL TICKETS FOR ANY OF THE LATTER TRAVEL, REIMBURSEMENT WILL BE EFFECTED ON THE BASIS OF 5 CENT PER MILE FOR THE OFFICIAL DISTANCE AND $1.50 PER MEAL FOR THE REQUIRED TRAVEL TIME ONLY. NO ALLOWANCES ARE AUTHORIZED OTHER THAN FOR THE ACTUAL AND NECESSARY PERIODS OF TRAVEL.'

THE TERM "GENERAL PRISONERS" AS USED IN SECTION 303 (E) OF THE 1949 ACT, 37 U.S.C. 253 (E), IS NOT DEFINED IN THAT ACT. UNLIKE DISCHARGED PRISONERS, A PRISONER RELEASED FROM CONFINEMENT IN A DISCIPLINARY BARRACKS ON COMMANDANT'S PAROLE CONTINUES TO BE A MEMBER OF THE UNIFORMED SERVICES WHILE ON PAROLE PENDING APPELLATE REVIEW ACTION ON THE COURT-MARTIAL PROCEEDINGS INVOLVED, AND SINCE HE IS TECHNICALLY A PRISONER IN THE LEGAL CUSTODY AND CONTROL OF THE COMMANDANT OF THE DISCIPLINARY BARRACKS, WE ARE OF THE VIEW THAT HE MAY BE REGARDED AS FALLING WITHIN THE CATEGORY OF "GENERAL PRISONERS" AS THAT TERM IS USED IN SECTION 303 (E) OF THE 1949 ACT. HENCE, AN INDIVIDUAL ON COMMANDANT'S PAROLE IS ENTITLED TO THE TRAVEL AND TRANSPORTATION ALLOWANCES PRESCRIBED IN REGULATIONS ISSUED UNDER AUTHORITY OF SECTION 303 (E), FOR TRAVEL DIRECTED BY COMPETENT ORDERS.

WE FIND NO LEGAL OBJECTION TO THE PROPOSED AMENDMENT TO THE JOINT TRAVEL REGULATIONS. WE SUGGEST, HOWEVER, THAT THE AMENDMENT EITHER INCLUDE A DEFINITION OF THE TERM "COMMANDANT'S PAROLE," OR AN APPROPRIATE REFERENCE TO ADMINISTRATIVE REGULATIONS WHERE SUCH DEFINITION CAN BE FOUND.