B-141833, MAY 18, 1960, 39 COMP. GEN. 781

B-141833: May 18, 1960

Additional Materials:

Contact:

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

 

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

IS PRIMARILY FOR ADMINISTRATIVE DETERMINATION BASED ON THE INDIVIDUAL FACTS. ARE RELEASED WITHOUT TRIAL UPON AGREEMENT TO MAKE REPARATION FOR THE CIVIL OFFENSE ARE NOT DUE TO ANY MISCONDUCT ON THE PART OF THE MEMBER BUT RESULT FROM EVENTS BEYOND THE MEMBERS' CONTROL WHICH WOULD JUSTIFY EXCUSING THE ABSENCE AS UNAVOIDABLE SO THAT FORFEITURE OF PAY AND ALLOWANCES WOULD NOT BE NECESSARY. WHO ARE DETAINED BY CIVIL AUTHORITIES BEYOND AUTHORIZED LEAVE PERIODS AND THEN RELEASED UPON AGREEMENT TO MAKE REPARATION FOR THE OFFENSE. 1960: REFERENCE IS MADE TO LETTER OF JANUARY 23. THE QUESTION IS AS FOLLOWS: AN OFFICER OR ENLISTED MEMBER DETAINED BY CIVIL AUTHORITIES. FOR THE PERIOD (EXCEEDING 24 HOURS) FOLLOWING SUCH EXPIRATION UNTIL HIS RETURN TO FULL DUTY IF HE IS RELEASED WITHOUT TRIAL UPON HIS AGREEMENT TO MAKE REPARATION FOR THE ALLEGED CIVIL OFFENSE.

B-141833, MAY 18, 1960, 39 COMP. GEN. 781

MILITARY PERSONNEL - EXPIRATION OF AUTHORIZED ABSENCES - CIVIL ARREST - REPARATION OR RESTITUTION FOR OFFENSES - UNAVOIDABLE ALTHOUGH THE QUESTION OF WHETHER SUFFICIENT GROUNDS EXISTS FOR EXCUSING ABSENCES OF MEMBERS OF THE UNIFORMED SERVICES AS UNAVOIDABLE UNDER SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT, 37 U.S.C. 33 (B), IS PRIMARILY FOR ADMINISTRATIVE DETERMINATION BASED ON THE INDIVIDUAL FACTS, THERE MAY BE CASES WHERE ABSENCES AFTER EXPIRATION OF AUTHORIZED LEAVE OF MEMBERS WHO, FOLLOWING DETENTION BY CIVIL AUTHORITIES, ARE RELEASED WITHOUT TRIAL UPON AGREEMENT TO MAKE REPARATION FOR THE CIVIL OFFENSE ARE NOT DUE TO ANY MISCONDUCT ON THE PART OF THE MEMBER BUT RESULT FROM EVENTS BEYOND THE MEMBERS' CONTROL WHICH WOULD JUSTIFY EXCUSING THE ABSENCE AS UNAVOIDABLE SO THAT FORFEITURE OF PAY AND ALLOWANCES WOULD NOT BE NECESSARY. THE BASIS FOR EXCUSING AS UNAVOIDABLE ABSENCES OF MEMBERS OF THE UNIFORMED SERVICES, WHO ARE DETAINED BY CIVIL AUTHORITIES BEYOND AUTHORIZED LEAVE PERIODS AND THEN RELEASED UPON AGREEMENT TO MAKE REPARATION FOR THE OFFENSE, SHOULD BE AN ABSENCE OF MISCONDUCT ON THE PART OF THE MEMBER RATHER THAN A LACK OF CRIMINAL CULPABILITY.

TO THE SECRETARY OF DEFENSE, MAY 18, 1960:

REFERENCE IS MADE TO LETTER OF JANUARY 23, 1960, WITH ENCLOSURE, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION ON A QUESTION DISCUSSED IN COMMITTEE ACTION NO. 253 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE. THE QUESTION IS AS FOLLOWS:

AN OFFICER OR ENLISTED MEMBER DETAINED BY CIVIL AUTHORITIES, HIS AUTHORIZED LEAVE HAVING EXPIRED SUBSEQUENT TO ARREST FORFEITS PAY AND ALLOWANCES, AND THE ENLISTED MEMBER ALSO LONGEVITY CREDIT, FOR THE PERIOD (EXCEEDING 24 HOURS) FOLLOWING SUCH EXPIRATION UNTIL HIS RETURN TO FULL DUTY IF HE IS RELEASED WITHOUT TRIAL UPON HIS AGREEMENT TO MAKE REPARATION FOR THE ALLEGED CIVIL OFFENSE. MAY THERE BE AN EXCEPTION TO THE FOREGOING IF HIS COMMANDING OFFICER EXCUSES THE ABSENCE AS UNAVOIDABLE CONCLUDING, AFTER EXAMINATION OF ALL THE FACTS, THAT THE MEMBER IN AGREEING TO MAKE REPARATION WAS NOT MOTIVATED BY A SENSE OF GUILT BUT WAS MOTIVATED BY A DESIRE TO OBTAIN HIS RELEASE FROM JAIL AND RETURN TO HIS DUTY STATION AS SOON AS POSSIBLE AND THAT THE FACTS DO NOT PROVE MISCONDUCT OF THE MEMBER?

IT IS STATED IN COMMITTEE ACTION NO. 253 THAT:

THE CURRENT ARMY, NAVY AND AIR FORCE REGULATIONS DEALING WITH THE SITUATION OF A MEMBER RELEASED FROM ARREST BY CIVIL AUTHORITIES WITHOUT TRIAL UPON HIS AGREEMENT TO MAKE REPARATION ARE BASED ON A DECISION OF THE COMPTROLLER GENERAL OF FEBRUARY 18, 1928, 7 COMP. GEN. 496. IN THAT CASE, THERE WAS NO QUESTION THAT THE MEMBER HAD CAUSED HIS ARREST BY HIS MISCONDUCT. THE REGULATIONS ADOPTED THE RULING AND NOW PROVIDE FOR FORFEITURE OF PAY WITHOUT THE POSSIBILITY OF AN EXCEPTION IN A SITUATION IN WHICH THE MEMBER'S COMMANDING OFFICER WOULD EXCUSE THE ABSENCE AS UNAVOIDABLE WHEN INVESTIGATION INDICATES THAT THE MEMBER WAS NOT GUILTY OF MISCONDUCT.

AN AGREEMENT TO MAKE REPARATION DOES NOT NECESSARILY PROVE GUILT; IT IS NOT NECESSARILY A CONFESSION OR ADMISSION OF GUILT. THE MEMBER MAY DESIRE TO OBTAIN HIS RELEASE FROM JAIL AND RETURN TO HIS DUTY STATION AS SOON AS POSSIBLE AND BE WILLING TO AGREE TO MAKE REPARATION FOR THE ALLEGED OFFENSE WITHOUT BEING GUILTY OF ACTUAL MISCONDUCT. IN ONE OR THE OTHER CASE THERE MAY BE INVOLVED A LIABILITY TO PAY FOR MERCHANDISE OR ON OTHER GROUNDS, BUT THAT LIABILITY MAY BE QUITE DIFFERENT FROM MISCONDUCT.

IN HIS DECISION OF OCTOBER 20, 1958, 38 COMP. GEN. 320, THE COMPTROLLER GENERAL DEALT WITH THE FOLLOWING QUESTION:

MAY AN ENLISTED MEMBER DETAINED BY CIVIL AUTHORITIES, HIS AUTHORIZED LEAVE HAVING EXPIRED SUBSEQUENT TO ARREST, BE PROPERLY DENIED LEAVE CREDIT FOR THE PERIOD (IN EXCESS OF 24 CONSECUTIVE HOURS) FOLLOWING SUCH EXPIRATION UNTIL HIS RETURN TO FULL DUTY:

"A. IF RELEASED WITHOUT TRIAL BY CIVIL AUTHORITIES;

"B. IF TRIED AND CONVICTED BY CIVIL AUTHORITIES; OR

"C.IF RELEASED WITHOUT TRIAL UPON HIS AGREEMENT TO MAKE REPARATION FOR THE CIVIL OFFENSE?

AFTER DISCUSSION, THE COMPTROLLER GENERAL DECIDED THE QUESTION AS FOLLOWS:

"QUESTION 1. ALL PARTS TO THIS QUESTION ARE ANSWERED IN THE AFFIRMATIVE UNLESS THE ABSENCE IS EXCUSED AS UNAVOIDABLE AS PROVIDED IN SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT, AS AMENDED, 37 U.S.C. 33 (B). THERE WOULD APPEAR TO BE LITTLE REASON FOR EXCUSING THE ABSENCE IN THE SITUATIONS PRESENTED UNDER QUESTIONS 1 (B) AND 1 (C), SINCE THE ABSENCE PRESUMABLY WAS INDUCED BY THE MEMBER AND IS DISTINGUISHABLE FROM THE SITUATION IN 1 (A), WHERE THE ABSENCE MIGHT BE CAUSED BY EVENTS BEYOND THE MEMBER'S CONTROL.' THE TWO SITUATIONS IN WHICH THE COMPTROLLER GENERAL OBSERVED THERE WOULD APPEAR TO BE LITTLE REASON FOR EXCUSING THE ABSENCE ARE THOSE IN WHICH A MEMBER IS TRIED AND CONVICTED AND THOSE IN WHICH HE IS "RELEASED WITHOUT TRIAL UPON HIS AGREEMENT TO MAKE REPARATION FOR THE CIVIL OFFENSE.' IT SHOULD BE NOTED THAT QUESTION C REFERRED TO THE CIVIL OFFENSE AS A FACT; BUT THIS IS NOT NECESSARILY SO IN ALL SITUATIONS; THE CIVIL OFFENSE MAY BE ALLEGED BUT DENIED BY THE MEMBER. A MEMBER IS NOT CONSIDERED GUILTY OF MISCONDUCT BECAUSE HE IS CHARGED WITH MISCONDUCT. HIS REASON FOR AGREEING TO PAY MAY BE HIS DESIRE TO OBTAIN HIS RELEASE FROM JAIL OR RETURN TO HIS DUTY STATION AS SOON AS POSSIBLE. FURTHER, THE PAYMENT MAY BE FOR AN ALLEGED LIABILITY UNRELATED TO MISCONDUCT.

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. * * *

THE PHRASE "UNLESS SUCH ABSENCE IS EXCUSED AS UNAVOIDABLE" USED IN THE ABOVE STATUTORY PROVISION MUST BE CONSTRUED AS MEANING THAT IF THE ABSENCE IS EXCUSED AS UNAVOIDABLE THE MEMBER INVOLVED WOULD NOT FORFEIT PAY AND ALLOWANCES TO WHICH HE IS OTHERWISE ENTITLED FOR THE PERIOD OF HIS ABSENCE. UNDER THE STATUTE, THE QUESTION OF WHETHER THERE EXISTS SUFFICIENT GROUNDS FOR EXCUSING A MEMBER'S ABSENCE AS UNAVOIDABLE IS, AT LEAST IN THE FIRST INSTANCE, AN ADMINISTRATIVE MATTER TO BE DETERMINED ON THE BASIS OF THE FACTS AND CIRCUMSTANCES INVOLVED. IF THE ABSENCE OF A MEMBER IS CAUSED BY HIS MISCONDUCT, NO REASON IS APPARENT FOR EXCUSING THE ABSENCE AS UNAVOIDABLE. ON THE OTHER HAND, AS SUGGESTED IN COMMITTEE ACTION NO 253, SITUATIONS MAY ARISE WHERE A MEMBER'S ABSENCE IS CAUSED BY EVENTS BEYOND HIS CONTROL. IN SUCH A CASE AND IF AN ADMINISTRATIVE FINDING IS MADE THAT THE ABSENCE IN FACT RESULTED FROM EVENTS BEYOND THE MEMBER'S CONTROL AND NOT DUE TO HIS MISCONDUCT, THERE WOULD APPEAR TO BE SUFFICIENT REASON FOR HIS COMMANDING OFFICER TO EXCUSE THE ABSENCE AS UNAVOIDABLE, EVEN THOUGH THE MEMBER IS RELEASED WITHOUT TRIAL UPON HIS AGREEMENT TO MAKE REPARATION FOR AN ALLEGED CIVIL OFFENSE. THIS IS NOT INCONSISTENT WITH THE RULING IN 38 COMP. GEN. 320, IT BEING ASSUMED IN THAT CASE THAT THE ABSENCE OF THE MEMBER WAS IN FACT CAUSED BY HIS MISCONDUCT RATHER THAN CAUSED BY EVENTS BEYOND HIS CONTROL. ALSO COMPARE 36 COMP. GEN. 173.

ACCORDINGLY, THE QUESTION IS ANSWERED IN THE AFFIRMATIVE.

IT IS NOTED THAT THE PROPOSED REVISION TO PARAGRAPH 1044253-1 OF THE NAVY COMPTROLLER MANUAL READS, IN PERTINENT PART, AS FOLLOWS:

IF HE HAS BEEN RELEASED UPON HIS AGREEMENT TO MAKE RESTITUTION OR REPARATION FOR THE ALLEGED OFFENSE FOR WHICH HE WAS COMMITTED, PAY AND ALLOWANCES FOR THE TIME OF SUCH ABSENCE MAY BE RETURNED ONLY IF THE COMMANDING OFFICER PERSONALLY SIGNS THE PAY VOUCHER AUTHORIZATION, BASED UPON EXAMINATION OF ALL DATA AVAILABLE TO HIM, THAT THE CONDUCT OF THE MEMBER WHICH OCCASIONED HIS DETENTION IS EXCUSED AS UNAVOIDABLE BECAUSE OF LACK OF CRIMINAL CULPABILITY.

THE QUESTION PRESENTED FOR DECISION RELATES TO THE AUTHORITY FOR EXCUSING THE ABSENCE OF A MEMBER WHO IS RELEASED UPON HIS AGREEMENT TO MAKE RESTITUTION OR REPARATION FOR THE ALLEGED OFFENSE FOR WHICH HE WAS COMMITTED BASED ON A DETERMINATION BY PROPER AUTHORITY, AFTER EXAMINATION OF ALL OF THE FACTS, THAT THE ABSENCE WAS UNAVOIDABLE AND NOT THE RESULT OF THE MEMBER'S MISCONDUCT. IT WELL MAY BE THAT IN SOME CASES THERE MAY BE FOUND A "LACK OF CRIMINAL CULPABILITY" EVEN THOUGH THE ABSENCE RESULTED FROM THE MEMBER'S MISCONDUCT. IT IS OUR VIEW THAT THE BASIS FOR EXCUSING ABSENCES SHOULD BE AN ABSENCE OF MISCONDUCT RATHER THAN A LACK OF CRIMINAL CULPABILITY.