B-139600, JUN 23, 1959

B-139600: Jun 23, 1959

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DEPARTMENT OF THE ARMY: REFERENCE IS MADE TO YOUR UNDATED LETTER. IT APPEARS THAT THE OFFICER WAS APPOINTED SECOND LIEUTENANT IN THE UNITED STATES ARMY RESERVE ON APRIL 17. HE WAS CONVICTED BY A GENERAL COURT-MARTIAL. HE WAS DISMISSED FROM THE SERVICE AND CONFINED AT UNITED STATES DISCIPLINARY BARRACKS. PRIOR TO THAT TIME HE APPARENTLY WAS CONFINED IN DISCIPLINARY BARRACKS AT CAMP GORDON. THE OFFICER TIMELY PETITIONED THE JUDGE ADVOCATE GENERAL OF THE ARMY FOR A NEW TRIAL WHICH WAS GRANTED ON THE BASIS OF NEWLY DISCOVERED EVIDENCE AND SUBSTANTIAL EVIDENCE OF FRAUD ON THE COURT PREJUDICIAL TO THE OFFICER. THE OFFICER WAS RELEASED FROM CONFINEMENT AND SET AT LIBERTY. AN HONORABLE DISCHARGE CERTIFICATE WAS SUBSTITUTED FOR THE PREVIOUSLY EXECUTED SENTENCE OF DISMISSAL.

B-139600, JUN 23, 1959

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL J. L. WHIPPLE, F. C.; DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO YOUR UNDATED LETTER, WITH ENCLOSURES, FORWARDED HERE BY INDORSEMENT DATED JUNE 1, 1959, OF THE FIELD DIVISION, OFFICE OF THE CHIEF OF FINANCE, REQUESTING DECISION WHETHER PAYMENT MAY BE MADE TO FIRST LIEUTENANT MICHAEL J. COLLINS, JR., U.S.A.R., ON A VOUCHER IN THE AMOUNT OF $6,919.38, REPRESENTING THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF A SECOND LIEUTENANT AND FIRST LIEUTENANT FOR THE PERIOD FROM OCTOBER 17, 1954, THROUGH JUNE 15, 1955, THE PAY AND ALLOWANCES OF A FIRST LIEUTENANT FROM JUNE 16, 1955, THROUGH JULY 23, 1956, AND PAY AND ALLOWANCES FOR 60 DAYS ACCRUED LEAVE, LESS $943.50 FEDERAL WITHHOLDING TAX. YOUR REQUEST HAS BEEN ALLOCATED D.O. NO. 421 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT THE OFFICER WAS APPOINTED SECOND LIEUTENANT IN THE UNITED STATES ARMY RESERVE ON APRIL 17, 1953, AND ENTERED UPON EXTENDED ACTIVE DUTY IN SUCH GRADE FOR NOT LESS THAN THREE YEARS; THAT ON JUNE 5, 1954, HE WAS CONVICTED BY A GENERAL COURT-MARTIAL; THAT THE APPROVED COURT-MARTIAL SENTENCE PROVIDED FOR DISMISSAL FROM THE SERVICE, TOTAL FORFEITURES AND CONFINEMENT AT HARD LABOR FOR 10 YEARS; AND THAT EFFECTIVE JUNE 15, 1955, HE WAS DISMISSED FROM THE SERVICE AND CONFINED AT UNITED STATES DISCIPLINARY BARRACKS, FORT LEAVENWORTH, KANSAS. PRIOR TO THAT TIME HE APPARENTLY WAS CONFINED IN DISCIPLINARY BARRACKS AT CAMP GORDON, GEORGIA.

IT ALSO APPEARS THAT ON JUNE 23, 1955, THE OFFICER TIMELY PETITIONED THE JUDGE ADVOCATE GENERAL OF THE ARMY FOR A NEW TRIAL WHICH WAS GRANTED ON THE BASIS OF NEWLY DISCOVERED EVIDENCE AND SUBSTANTIAL EVIDENCE OF FRAUD ON THE COURT PREJUDICIAL TO THE OFFICER; THAT ON JANUARY 6, 1956, THE DESIGNATED CONVENING AUTHORITY FOR THE OFFICER'S NEW TRIAL, DISMISSED ALL CHARGES AGAINST HIM AND ORDERED RESTORATION OF ALL RIGHTS, PRIVILEGES AND PROPERTY OF WHICH HE HAD BEEN DEPRIVED BY VIRTUE OF THE APPROVED SENTENCE OF THE COURT; THAT ON JANUARY 20, 1956, THE OFFICER WAS RELEASED FROM CONFINEMENT AND SET AT LIBERTY; AND THAT ON FEBRUARY 9, 1956, AN HONORABLE DISCHARGE CERTIFICATE WAS SUBSTITUTED FOR THE PREVIOUSLY EXECUTED SENTENCE OF DISMISSAL, EFFECTIVE THE SAME DATE. THEREAFTER, UNDER THE PROVISIONS OF ARTICLE 75(C), UNIFORM CODE OF MILITARY JUSTICE, THE OFFICER PETITIONED THE PRESIDENT OF THE UNITED STATES FOR REAPPOINTMENT AS A COMMISSIONED OFFICER. THAT PETITION WAS APPROVED AND THE TENDERED INDEFINITE TERM APPOINTMENT AS FIRST LIEUTENANT IN THE UNITED STATES ARMY RESERVE WAS ACCEPTED ON JULY 23, 1956.

IT FURTHER APPEARS THAT THE OFFICER PETITIONED THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS FOR CORRECTION OF HIS ARMY RECORDS, AND UNDER THE PROVISIONS OF 10 U.S.C. 1552 HIS RECORDS WERE CORRECTED TO SHOW:

"A. THAT HE WAS PROMOTED TO FIRST LIEUTENANT, ARMY OF THE UNITED STATES, ON 17 OCTOBER 1954;

"B. THAT THE ORDERS WHICH EFFECTED HIS DISMISSAL FROM THE SERVICE ON 15 JUNE 1955 ARE CONSIDERED TO BE NULL AND VOID AND OF NO FURTHER FORCE OR EFFECT;

"C. THAT THE ORDERS WHICH EFFECTED HIS HONORABLE DISCHARGE FROM THE SERVICE ON 15 JUNE 1955 ARE CONSIDERED TO BE NULL AND VOID AND OF NO FURTHER FORCE OR EFFECT;

"D. THAT HE WAS PROMOTED TO FIRST LIEUTENANT, UNITED STATES ARMY RESERVE, ON 16 APRIL 1956;

"E. THAT HE WAS RELIEVED FROM ACTIVE DUTY ON 23 JULY 1956 IN THE GRADE OF FIRST LIEUTENANT, ARMY OF THE UNITED STATES; AND

"F. THAT HE SERVED ON CONTINUOUS ACTIVE DUTY FROM 17 APRIL 1953 THROUGH 23 JULY 1956."

IT IS STATED THAT A CERTIFICATE WAS FORWARDED TO CLAIMANT FOR THE AMOUNT CONSIDERED TO BE DUE AS A RESULT OF THE CORRECTION OF HIS RECORDS, BUT SINCE THE COMPUTATION DID NOT INCLUDE CREDIT FOR QUARTERS ALLOWANCE FOR THE PERIOD JUNE 16, 1955, THROUGH JULY 23, 1956, THE OFFICER REFUSED TO EXECUTE THE CLAIM CERTIFICATE. THE OFFICER'S ATTORNEY CONTENDS THAT A PRISON CELL IS NOT ADEQUATE QUARTERS FOR AN OFFICER. A NEW CLAIM CERTIFICATE WAS PREPARED AND SIGNED BY THE CLAIMANT WHICH INCLUDED CREDIT FOR QUARTERS ALLOWANCE FOR PERIOD JULY 8, 1954, THROUGH JULY 23, 1956. THE CREDIT FOR QUARTERS ALLOWANCE INCLUDES THE PERIOD THE ORIGINAL SENTENCE WAS APPROVED FOR TOTAL FORFEITURES AND CONFINEMENT THROUGH THE CORRECTED DATE OF RELEASE FROM ACTIVE DUTY.

THE QUESTION PRESENTED IS WHETHER THE OFFICER WAS FURNISHED QUARTERS, WHILE A PRISONER, THAT WERE APPROPRIATE TO HIS RANK OR ADEQUATE FOR AN OFFICER. A COROLLARY QUESTION IS WHETHER THE SUBSISTENCE ALLOWANCE DUE THE OFFICER MAY BE PROPERLY ADJUSTED FOR THE RATIONS FURNISHED FOR THE PERIOD OF CONFINEMENT OF THE OFFICER.

UNDER THE PROVISIONS OF SECTION 1552, OF TITLE 10, U.S.C. ADMINISTRATIVE CORRECTION OF MILITARY RECORDS IS AUTHORIZED IN CASES WHERE, IN THE JUDGMENT OF THE SECRETARY CONCERNED, SUCH ACTION IS NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE AND CORRECTIONS SO MADE ARE FINAL AND CONCLUSIVE ON OUR OFFICE. HENCE, A DETERMINATION OF THE AMOUNT WHICH MAY BE PAID UNDER SUCH CORRECTION REQUIRES ONLY THE APPLICATION OF THE PROPER PAY STATUTES TO THE FACTS IN THE CASE AND THE CLAIMANT'S STATUS AS FIXED BY HIS CORRECTED RECORD. 32 COMP. GEN. 242; 32 COMP. GEN. 372.

SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 63 STAT. 812, PROVIDES, IN PERTINENT PART AS FOLLOWS:

"SEC. 302. (A) EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION OR BY ANY OTHER PROVISION OF LAW, MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO RECEIVE BASIC PAY SHALL BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR QUARTERS IN SUCH AMOUNT AND UNDER SUCH CIRCUMSTANCES AS ARE PROVIDED IN THIS SECTION: ***

"(B) EXCEPT AS OTHERWISE PROVIDED BY LAW, NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO MEMBERS OF THE UNIFORMED SERVICES ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES, APPROPRIATE TO THEIR RANK, GRADE, OR RATING AND ADEQUATE FOR THEMSELVES AND DEPENDENTS, IF WITH DEPENDENTS."

WHILE THE OFFICER'S RECORD WAS CORRECTED TO OMIT ALL REFERENCE TO HIS COURT-MARTIAL AND MATTERS RELATED THERETO, IT DOES NOT NECESSARILY FOLLOW THAT THERE WOULD BE NO REFERENCE TO THE OCCUPANCY OF QUARTERS. HOWEVER, SINCE IT DOES NOT APPEAR THAT THE FURNISHING OF QUARTERS IN CONNECTION WITH HIS CONFINEMENT IN DISCIPLINARY BARRACKS UNDER THE COURT-MARTIAL SENTENCE, COULD PROPERLY BE REGARDED AS AN ASSIGNMENT OF QUARTERS APPROPRIATE TO HIS RANK, HE IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS DURING THAT PERIOD.

ALSO, THE OFFICER IS ENTITLED TO THE BASIC ALLOWANCE FOR SUBSISTENCE, IN VIEW OF THE PLAIN PROVISIONS OF SECTION 301(A) OF THE CAREER COMPENSATION ACT, THE PERTINENT PART OF WHICH PROVIDES THAT "OFFICERS SHALL, AT ALL TIMES, BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR SUBSISTENCE ON A MONTHLY BASIS." HOWEVER, HIS MEALS WERE FURNISHED AT GOVERNMENT EXPENSE. HIS PAY RECORD SHOWS THAT SUBSISTENCE WAS FURNISHED IN KIND ON A FIELD RATION BASIS PRIOR TO JUNE 16, 1955, AND THAT DEDUCTIONS WERE MADE FOR THE VALUE OF THE MEALS SO FURNISHED. PARAGRAPH 4-4C, ARMY REGULATIONS 37- 104. PROPER DEDUCTIONS SHOULD ALSO BE MADE FOR THE MEALS FURNISHED AFTER THAT DATE. COMPARE PARAGRAPH 4 4B OF THE CITED REGULATIONS.

ACCORDINGLY, THE VOUCHER AND ACCOMPANYING CLAIM ARE RETURNED AND, IF AMENDED TO INCLUDE THE ADDITIONAL DEDUCTIONS MENTIONED ABOVE, MAY BE PAID IF OTHERWISE CORRECT.