B-140383, NOV. 23, 1959

B-140383: Nov 23, 1959

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DEPARTMENT OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER OF JULY 6. IS ENTITLED TO PAYMENT OF THE PAY AND ALLOWANCES PROPOSED ON THE VOUCHER AND CERTAIN ADDITIONAL ALLOWANCES. IT IS REPORTED THAT PRIVATE CLINDON ENLISTED IN THE REGULAR ARMY ON JUNE 30. HE WAS RELEASED FROM FORT LAWTON. HE WAS RELEASED ON BAIL. THE FOLLOWING DAY PRIVATE CLINDON REPORTED TO THE CHARLESTON TRANSPORTATION DEPOT AND HIS PARENT ORGANIZATION AT FORT LAWTON WAS NOTIFIED OF HIS RELEASE ON BAIL. IT IS STATED THAT REPEATED REQUESTS WERE ADDRESSED TO THE PARENT ORGANIZATION THAT THE ENLISTED MEMBER BE ATTACHED TO THE CHARLESTON TRANSPORTATION DEPOT. NO ACTION WAS TAKEN UNTIL APRIL 30. IT IS FURTHER REPORTED THAT THE MEMBER PERIODICALLY REPORTED TO THE TRANSPORTATION DEPOT BETWEEN NOVEMBER 24.

B-140383, NOV. 23, 1959

TO FIRST LIEUTENANT S. LAZEVNICK, F.C., FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1959, ENCLOSING A VOUCHER AND SUPPORTING DOCUMENTS, TRANSMITTED HERE BY THIRD ENDORSEMENT OF THE FIELD DIVISION, OFFICE CHIEF OF FINANCE, U.S. ARMY, DATED AUGUST 2, 1959, D.C. NUMBER 442, WITH ADDITIONAL ENCLOSURES, REQUESTING DECISION AS TO WHETHER, IN THE CIRCUMSTANCES PRESENTED, RONNY M. CLINDON, PRIVATE, E-2, RA 14 681 825, IS ENTITLED TO PAYMENT OF THE PAY AND ALLOWANCES PROPOSED ON THE VOUCHER AND CERTAIN ADDITIONAL ALLOWANCES.

IT IS REPORTED THAT PRIVATE CLINDON ENLISTED IN THE REGULAR ARMY ON JUNE 30, 1958. ON NOVEMBER 13, 1958, HE WAS RELEASED FROM FORT LAWTON, WASHINGTON, TO SOUTH CAROLINA CIVIL AUTHORITIES AND EXTRADITED TO SOUTH CAROLINA ON A CRIMINAL CHARGE. ON NOVEMBER 23, 1958, HE WAS RELEASED ON BAIL. THE FOLLOWING DAY PRIVATE CLINDON REPORTED TO THE CHARLESTON TRANSPORTATION DEPOT AND HIS PARENT ORGANIZATION AT FORT LAWTON WAS NOTIFIED OF HIS RELEASE ON BAIL. IT IS STATED THAT REPEATED REQUESTS WERE ADDRESSED TO THE PARENT ORGANIZATION THAT THE ENLISTED MEMBER BE ATTACHED TO THE CHARLESTON TRANSPORTATION DEPOT, BUT NO ACTION WAS TAKEN UNTIL APRIL 30, 1959. IT IS FURTHER REPORTED THAT THE MEMBER PERIODICALLY REPORTED TO THE TRANSPORTATION DEPOT BETWEEN NOVEMBER 24, 1958, AND APRIL 30, 1959, BUT NEITHER PERFORMED ANY DUTIES, MESSED OR BILLETED THERE. DECEMBER 24, 1958, NOTIFICATION WAS RECEIVED THAT THE MEMBER'S PAY AND ALLOWANCES WERE TO BE HELD UP PENDING FINAL DETERMINATION ON CHARGES OF FRAUDULENT ENLISTMENT. THE MEMBER WAS MARRIED ON FEBRUARY 22, 1959, AND ON APRIL 30, 1959, ORDERS WERE ISSUED BY HEADQUARTERS, 26TH ARTY GP (AIR DEFENSE), FORT LAWTON, WASHINGTON, ATTACHING CLINDON TO THE CHARLESTON TRANSPORTATION DEPOT FOR RATIONS, QUARTERS, ADMINISTRATION AND DUTY. THE ORDER STATES THAT IT IS EFFECTIVE NOVEMBER 24, 1958. IN THE ENCLOSURES ACCOMPANYING THE INDORSEMENT OF THE OFFICE CHIEF OF FINANCE, IT IS STATED THAT THE INDICTMENT AGAINST CLINDON HAS BEEN "STRUCK OFF," THE CRIMINAL ACTION IN SOUTH CAROLINA HAS BEEN TERMINATED, AND CLINDON IS NO LONGER REQUIRED TO ANSWER THE SPECIFIED CHARGE. IN ADDITION IT APPEARS THAT THE COMMANDING OFFICER, 26TH ARTILLERY GROUP, FORT LAWTON, WASHINGTON, MADE A DETERMINATION THAT THE MEMBER'S CURRENT ENLISTMENT IS NOT FRAUDULENT.

YOUR QUESTIONS ARE STATED AS FOLLOWS:

"A. IS MEMBER ENTITLED TO BASIC PAY AND BASIC ALLOWANCE FOR CLOTHING FOR THE PERIOD 24 NOVEMBER 1958 THROUGH 30 APRIL 1959?

"B. IS MEMBER ENTITLED TO BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENT (WIFE) FROM DATE OF MARRIAGE?

"C. WHAT ALLOWANCE IS MEMBER ENTITLED TO FOR THE PERIOD 24 NOVEMBER 1958 TO 30 APRIL 1959 WHILE NOT SUBSISTED BY THE MILITARY SERVICE?

"D. WHAT ALLOWANCE IS MEMBER ENTITLED TO FOR THE PERIOD 23 NOVEMBER 1958 TO 21 FEBRUARY 1959 WHILE NOT QUARTERED BY THE MILITARY SERVICE?

IN DECISION DATED AUGUST 28, 1956, 36 COMP. GEN. 173, AT PAGE 175, IT IS STATED THAT---

"THUS, THE FACT THAT A MEMBER OF THE ARMED FORCES IS UNDER CHARGES BY THE CIVILIAN OR MILITARY AUTHORITIES GENERALLY DOES NOT DEPRIVE HIM OF HIS PAY. EVEN DURING PERIODS OF ACTUAL DETENTION BY THE CIVIL AUTHORITIES THE MEMBER IS ENTITLED TO PAY FOR SUCH PART OF THE PERIOD OF DETENTION AS IS COVERED BY AN AUTHORIZED GRANT OF LEAVE; BUT A MEMBER NOT ON AUTHORIZED LEAVE WHOSE MISCONDUCT HAS CAUSED HIM TO BE IN THE HANDS OF THE CIVIL AUTHORITIES AND THUS UNABLE TO FULFILL HIS OBLIGATION TO BE AT HIS POST OF DUTY MUST BE REGARDED AS ABSENT WITHOUT LEAVE AND HIS PAY FOR SUCH PERIOD OF UNAUTHORIZED ABSENCE IF FORFEITED. COMPARE DODGE V. UNITED STATES, 33 C.CLS. 28, AND CARRINGTON V. UNITED STATES 46 C.CLS. 279, APPLYING A STATUTORY PROVISION SIMILAR TO THAT MADE BY THE LAST SENTENCE OF THE QUOTED SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT. IN CONSONANCE WITH SUCH RULE WE HELD IN DECISION OF DECEMBER 22, 1955, B-125398, THAT UNDER SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT THE PAY OTHERWISE ACCRUING TO AN ENLISTED MAN WHILE HE WAS CONFINED BY THE CIVIL AUTHORITIES AND NOT IN AN AUTHORIZED LEAVE STATUS WAS FORFEITED UNLESS HIS ABSENCE FROM DUTY WAS EXCUSED AS UNAVOIDABLE. PRESUMABLY DISMISSAL OF THE CHARGES OR ACQUITTAL WOULD CONSTITUTE A SUFFICIENT BASIS FOR EXCUSING SUCH AN UNAUTHORIZED ABSENCE AS UNAVOIDABLE. UNTIL SO EXCLUDED, HOWEVER, THE STATUTE PRECLUDES ANY PAYMENT OF PAY FOR THE PERIOD OF ABSENCE, REGARDLESS OF THE OUTCOME OF THE CIVILIAN PROCEEDINGS. * * *"

SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED 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. * * *"

PARAGRAPH 1-98A, AR 37-104, CHANGE 7, DATED OCTOBER 31, 1958 (AND ALSO CHANGE 11, DATED FEBRUARY 9, 1959), PROVIDES AS FOLLOWS:

"1-98. DETENTION BY CIVIL AUTHORITIES

"A. CHARGED WITH CIVIL OFFENSE.

(1) A MEMBER WHO IS CHARGED WITH A CIVIL OFFENSE AND CONFINED BY CIVIL AUTHORITIES, OR HELD IN CONFINEMENT UNDER MILITARY JURISDICTION AT THE REQUEST OF CIVIL AUTHORITIES UNTIL SUCH TIME AS HIS CUSTODY IS REQUESTED BY CIVIL AUTHORITIES, IS ABSENT OR CONSTRUCTIVELY ABSENT FROM DUTY, EXCEPT FOR THE PART OF THE PERIOD OF CONFINEMENT COVERED BY A GRANT OF AUTHORIZED LEAVE. AFTER THE RESULTS OF THE TRIAL ARE KNOWN AND THE APPROPRIATE MILITARY AUTHORITY EXCUSES THE ABSENCE (PERIOD CONFINED BY CIVIL AUTHORITIES OR HELD IN CONFINEMENT UNDER MILITARY JURISDICTION AT REQUEST OF CIVIL AUTHORITIES) AS BEING UNAVOIDABLE, PAYMENT OF PAY AND ALLOWANCES MAY BE MADE TO THE MEMBER. UNLESS SO EXCUSED, HOWEVER, PAYMENT FOR THE PERIOD OF ABSENCE MAY NOT BE MADE, REGARDLESS OF THE OUTCOME OF THE CIVIL PROCEEDINGS. SEE 8 COMP. GEN. 80, 36 ID. 173.

(2)THE FOLLOWING CIRCUMSTANCES CONSTITUTE SUFFICIENT BASIS FOR EXCUSING THE ABSENCE AS UNAVOIDABLE:

1. WHERE A MEMBER IS TRIED AND ACQUITTED.

2. WHERE A MEMBER IS ADMITTED TO BAIL AND THE TRIAL IS POSTPONED INDEFINITELY AND IT IS APPARENT THAT THE AUTHORITIES DO NOT INTEND TO PROSECUTE THE CASE. SEE 10 COMP. DEC. 490.

3. WHERE THE CHARGES ARE DISMISSED OR THE MEMBER IS RELEASED (OR DIES) WITHOUT TRIAL. THIS DOES NOT APPLY IN CASES WHERE THE MEMBER IS RELEASED UPON HIS AGREEMENT TO MAKE REPARATION FOR THE OFFENSE OR IF IT IS CLEARLY ESTABLISHED THAT THE ARREST AND DETENTION WAS CAUSED BY HIS OWN MISCONDUCT. SEE 7 COMP. GEN. 496.'

PARAGRAPH 1-100 OF AR 37-104 PROVIDES THAT:

"1-100. SUBSTANTIATING DOCUMENT

"A MILITARY PAY ORDER (DD FORM 114) SHOWING THE DATE OF DEPARTURE, AND ANY OTHER RELEVANT DATE, WILL BE SUBMITTED TO THE FINANCE AND ACCOUNTING OFFICER HAVING CUSTODY OF THE MEMBER'S MILITARY PAY RECORD AT THE COMMENCEMENT OF SUCH ABSENCE. UPON RETURN OF THE MEMBER TO MILITARY CONTROL, A MILITARY PAY ORDER WILL SUBMITTED SHOWING INCLUSIVE DATES OF ABSENCE AND A STATEMENT THAT THE UNAUTHORIZED ABSENCE IS OR IS NOR EXCUSED BY THE MEMBER'S COMMANDING OFFICER AS UNAVOIDABLE.'

WHILE IT APPEARS THAT PRIVATE CLINDON HAS BEEN RELEASED BY THE CIVIL AUTHORITIES, THAT THE CIVILIAN CRIMINAL CHARGES HAVE BEEN DISMISSED, AND THAT HE HAS BEEN RESTORED TO DUTY, THE FILE DOES NOT SHOW THAT HIS ABSENCE HAS BEEN "EXCUSED AS UNAVOIDABLE.' UNLESS IT IS DETERMINED THAT THE ABSENCE SHOULD BE EXCUSED AS UNAVOIDABLE, PAY AND ALLOWANCES FOR THE PERIOD OF PRIVATE CLINDON'S ABSENCE ARE FORFEITED UNDER THE LAW AND REGULATIONS AND HE IS NOT ENTITLED TO PAYMENT. ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, PAYMENT ON THE VOUCHER, WHICH IS RETAINED HERE, IS NOT AUTHORIZED.

THE PROVISIONS OF THE ARMED FORCES LEAVE ACT RELATING TO FORFEITURE OF PAY AND ALLOWANCES DURING ABSENCE WITHOUT LEAVE WERE NOT INTENDED AS ADDITIONAL PAY PROVISIONS SUPPORTING A RIGHT TO PAY AND ALLOWANCES WHICH WOULD NOT HAVE EXISTED UNDER OTHER LAWS AND REGULATIONS IF THE MEMBER HAD REMAINED ON DUTY AT HIS STATION. HENCE, IT IS OUR VIEW THAT AN INDIVIDUAL WHOSE UNAUTHORIZED ABSENCE IS EXCUSED AS UNAVOIDABLE IS ENTITLED TO RECEIVE FOR THE PERIOD OF HIS ABSENCE ONLY THE PAY AND ALLOWANCES WHICH HE WOULD HAVE RECEIVED UNDER APPLICABLE LAW AND REGULATIONS HAD HE NOT BEEN SO ABSENT.

IF PRIVATE CLINDON HAD NOT BEEN ABSENT FROM HIS STATION IT SEEMS CLEAR THAT HE WOULD HAVE ENTITLED UNDER APPLICABLE LAW AND REGULATIONS, TO HIS PAY AND TO UNIFORM AND CLOTHING ALLOWANCES FOR THE PERIOD FROM NOVEMBER 24, 1958, TO APRIL 30, 1959, AND TO BASIC ALLOWANCE FOR QUARTERS FOR HIS DEPENDENT WIFE FOR THE PERIOD FROM FEBRUARY 22 TO APRIL 30, 1959. IN THIS LATTER CONNECTION WE ASSUME THAT HE WFLD NOT HAVE BEEN ASSIGNED DEPENDENT QUARTERS AND THAT THE PERTINENT CLASS Q ALLOTMENT REQUIREMENTS WOULD HAVE BEEN MET. SEE GENERALLY CHAPTER 5 OF ARMY REGULATIONS 37-104. THEREFORE, IF HIS ABSENCE IS EXCUSED AS UNAVOIDABLE, HE IS ENTITLED TO PAYMENT OF THOSE ITEMS.

UNDER SECTIONS 301 AND 302 OF THE CAREER COMPENSATION ACT OF 1949, 62 STAT. 812, AS AMENDED, 37 U.S.C. 251, 252 AND CHAPTERS 4 AND 5 OF ARMY REGULATIONS 37-104, HOWEVER, ENLISTED MEMBERS ARE ENTITLED TO CREDITS OF SUBSISTENCE ALLOWANCE AND SINGLE BASIC ALLOWANCE FOR QUARTERS ONLY WHEN SUCH CREDITS ARE SPECIFICALLY AUTHORIZED IN CERTAIN SITUATIONS. IT DOES NOT APPEAR THAT PRIVATE CLINDON WOULD HAVE QUALIFIED FOR SUCH ALLOWANCES HAD HE NOT BEEN ABSENT FROM HIS STATION AND, HENCE, EVEN IF HIS ABSENCE IS EXCUSED AS UNAVOIDABLE HE WOULD NOT BE ENTITLED TO CREDITS FOR THOSE ALLOWANCES FOR ANY PART OF THE PERIOD INVOLVED.