B-140250, AUG. 21, 1959

B-140250, AUG. 21, 1959

TO STAFF SERGEANT MARVIN L. MORRISON, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 22, 1959, IN EFFECT A REQUEST FOR REVIEW OF OUR SETTLEMENT OF JUNE 18, 1959, WHICH DISALLOWED YOUR CLAIM FOR PAY AND ALLOWANCES FOR THE PERIOD JULY 4 TO DECEMBER 31, 1957, AS STAFF SERGEANT, UNITED STATES AIR FORCE.

THE RECORD INDICATES THAT YOU WERE ABSENT WITHOUT LEAVE FROM YOUR DUTY STATION AT CHARLESTON AIR FORCE BASE, SOUTH CAROLINA, FOR THE PERIOD JULY 4, 1957, TO JANUARY 8, 1958, WHEN YOU WERE INVOLUNTARILY RETURNED TO MILITARY CONTROL. YOUR TERM OF ENLISTMENT HAD NOT EXPIRED AT THAT TIME. SUBSEQUENT TO YOUR RETURN TO MILITARY CONTROL A MEDICAL BOARD AT THE 2750TH UNITED STATES AIR FORCE HOSPITAL, WRIGHT-PATTERSON AIR FORCE BASE, DETERMINED THAT YOU WERE INSANE AT THE TIME YOU ABSENTED YOURSELF FROM DUTY. ACCORDINGLY COURT-MARTIAL CHARGES AGAINST YOU WERE DROPPED AND MORNING REPORTS, WHICH SHOWED YOU IN A STATUS OF ABSENT WITHOUT LEAVE AND DESERTION, WERE CORRECTED TO SHOW YOUR STATUS AS ABSENT-SICK. ON AUGUST 15, 1958, YOU WERE HONORABLY DISCHARGED FOR REASONS OF PHYSICAL DISABILITY. ON AUGUST 27, 1958, YOU CLAIMED PAY AND ALLOWANCES FOR THE PERIOD IN WHICH YOU HAD PREVIOUSLY BEEN CARRIED AS ABSENT WITHOUT LEAVE, APPARENTLY ON THE BASIS THAT INASMUCH AS ALL CHARGES AGAINST YOU WERE DROPPED AND THE RECORDS CORRECTED, YOU SHOULD BE CONSIDERED IN A PAY STATUS FOR THE PERIOD OF YOUR ABSENCE.

SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY THE ACT OF AUGUST 4, 1947, 37 U.S.C. 33 (B) PROVIDES, IN PERTINENT PART, THAT:

"* * * WHEN ABSENT WITHOUT LEAVE OR ABSENT OVER LEAVE, THEY (MEMBERS OF THE ARMED FORCES) SHALL FORFEIT ALL PAY AND ALLOWANCES DURING SUCH ABSENCE, UNLESS SUCH ABSENCE IS EXCUSED AS UNAVOIDABLE. * * *"

AFTER CONTACTING YOUR LAST ORGANIZATION, THE 79TH FIGHTER GROUP (AIR DEFENSE) YOUNGSTOWN MUNICIPAL AIRPORT, OHIO, AND THE AIR FORCE RECORDS CENTER, THE AIR FORCE ACCOUNTING AND FINANCE CENTER HAS INFORMED THIS OFFICE THAT IT HAS BEEN UNABLE TO SECURE A STATEMENT THAT YOUR ABSENCE WAS "EXCUSED AS UNAVOIDABLE.' THE ACTION OF THE MEDICAL BOARD WHICH FOUND THAT YOU WERE INCOMPETENT AT THE TIME YOU ABSENTED YOURSELF FROM DUTY IS NOT SUFFICIENT FOR THIS PURPOSE. THE CORRECTION OF YOUR RECORDS AFTER COURT-MARTIAL CHARGES WERE DROPPED, TO SHOW YOUR STATUS AS ABSENT-SICK, IS LIKEWISE INSUFFICIENT TO EXCUSE YOUR ABSENCE FOR PAY PURPOSES INASMUCH AS IT APPEARS THAT YOU WERE IN FACT ABSENT WITHOUT LEAVE DURING THE PERIOD INVOLVED.

ALTHOUGH YOUR MENTAL CONDITION WAS FOUND TO BE SUCH AS TO ABSOLVE YOU OF CRIMINAL RESPONSIBILITY FOR YOUR ABSENCE, IT IS WELL ESTABLISHED THAT PAY AND ALLOWANCES DO NOT ACCRUE TO A MEMBER FOR PERIODS OF ABSENCE WITHOUT LEAVE, UNLESS SUCH ABSENCE IS EXCUSED AS UNAVOIDABLE. SEE 21 COMP. GEN. 845; 7 ID. 812; 4 ID. 750, AND B 131446, JUNE 26, 1957. THEREFORE, SINCE IT DOES NOT APPEAR THAT THE AIR FORCE HAS EXCUSED YOUR ABSENCE AS UNAVOIDABLE AND SINCE THE ADMINISTRATIVE ACTION WHICH RESULTED FROM THE MEDICAL FINDING OF YOUR INCOMPETENCE IS INSUFFICIENT TO BE CONSIDERED AS SUCH A FINDING, YOUR PAY AND ALLOWANCES WERE FORFEITED DURING THE SUBJECT PERIOD.

FOR THE ABOVE STATED REASONS THE SETTLEMENT OF JUNE 18, 1958, MUST BE AFFIRMED ON THE BASIS OF THE PRESENT RECORD AS CORRECT.