B-141962, MAY 3, 1960

B-141962, MAY 3, 1960

TO LIEUTENANT COLONEL R. H. MACPHERSON, FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO YOUR UNDATED LETTER FORWARDED HERE BY THE OFFICE OF CHIEF OF FINANCE ON FEBRUARY 8, 1960, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO PAY THE ENCLOSED VOUCHER IN FAVOR OF JOSEPH F. PETRLIK, JR., RA 13 516 634, COVERING ACTIVE DUTY PAY AND ALLOWANCES ALLEGED TO BE DUE HIM FOR THE PERIOD NOVEMBER 29, 1957, TO JANUARY 11, 1958. THE SUBMISSION WAS ALLOCATED DO NO. 478 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT THE FORMER SERVICE MEMBER WAS SENTENCED TO A BAD CONDUCT DISCHARGE AND TO TOTAL FORFEITURE OF ALL PAY AND ALLOWANCES IN ACCORDANCE WITH THE PROVISIONS OF GENERAL COURT-MARTIAL ORDER NO. 89, DATED SEPTEMBER 26, 1957. THE SENTENCE WAS APPROVED BY THE CONVENING AUTHORITY ON THE SAME DATE BUT EXECUTION OF THAT PORTION OF THE SENTENCE ADJUDGING BAD CONDUCT DISCHARGE WAS SUSPENDED PENDING COMPLETION OF APPELLATE REVIEW. UPON APPELLATE REVIEW, THE SENTENCE, INCLUDING THE FORFEITURE OF ALL PAY AND ALLOWANCES, WAS APPROVED AND IT WAS ORDERED INTO EXECUTION BY GENERAL COURT-MARTIAL ORDER NO. 122, DATED NOVEMBER 29, 1957. THE MEMBER RECEIVED A BAD CONDUCT DISCHARGE ON JANUARY 11, 1958.

BY ACTION OF THE ASSISTANT OF THE ASSISTANT SECRETARY OF THE ARMY ON JULY 18, 1958, IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1552, THE MEMBER'S RECORDS WERE CORRECTED TO SHOW THAT HE WAS SEPARATED ON A CERTIFICATE OF GENERAL DISCHARGE IN LIEU OF A BAD CONDUCT DISCHARGE. HOWEVER, THE RECORDS WERE NOT CHANGED TO DELETE OR ADJUST THAT PORTION OF THE COURT-MARTIAL SENTENCE IMPOSING TOTAL FORFEITURE OF ALL PAY AND ALLOWANCES FOR THE PERIOD NOVEMBER 29, 1957, TO JANUARY 11, 1958. FOLLOWS THAT THE ONLY PAY AND ALLOWANCES AFFECTED BY THE CORRECTION OF RECORDS WERE MUSTERING-OUT PAY AND TRAVEL ALLOWANCE. CF. 26 COMP. GEN. 265.

IT IS REPORTED THAT THE MILITARY PAY RECORDS CLOSED DECEMBER 31, 1957,AND JANUARY 11, 1958, SHOW THAT THE PAY AND ALLOWANCES CREDITED THE MEMBER FOR THE PERIOD NOVEMBER 29, 1957, TO JANUARY 11, 1958, WERE COLLECTED. APPEARS THAT AS A RESULT OF THIS COLLECTION A LETTER WAS RECEIVED IN BEHALF OF THE FORMER SERVICE MEMBER CLAIMING THAT HE CONTINUED HIS DUTIES AS PERSONNEL SERGEANT FROM "SEPTEMBER 8, UNTIL HIS TRANSFER FROM KOREA IN JANUARY OF 1958; " THAT HE WAS NOT CONFINED OR RESTRICTED TO HIS BASE OR QUARTERS AT ANY TIME; AND THAT "FROM THE 28TH OF NOVEMBER UNTIL HIS RETURN TO THE UNITED STATES, A PERIOD OF ONE MONTH, HE CONTINUED TO PERFORM SAID DUTIES WITHOUT PAY AND ALLOWANCES.'

IN OUR DECISION DATED MARCH 10, 1958, B-134725, 37 COMP. GEN. 591, WE STATED AT PAGE 593 THAT SINCE IT APPEARED THAT THE JUDGE ADVOCATE GENERAL OF THE ARMY CONSISTENTLY HAS VIEWED A RESTORATION TO DUTY (AFTER CONFINEMENT) AS OPERATING BY IMPLICATION TO SUSPEND THAT PORTION OF THE SENTENCE ADJUDGING TOTAL FORFEITURES WHICH REMAINS UNEXECUTED AT THE TIME OF THE MEMBER'S RESTORATION TO DUTY, THE MEMBER WAS ENTITLED TO PAY IN THAT CASE BEGINNING MAY 20, 1957,"WHILE RESTORED TO DUTY.'

IN THE INSTANT CASE, IT APPEARS THAT THE MEMBER WAS NOT CONFINED. HOWEVER, THE ARMY RECORDS REFERRED TO IN YOUR LETTER FAIL TO DISCLOSE WHAT SPECIFIC DUTIES, IF ANY, THE MEMBER WAS CALLED UPON TO PERFORM DURING ANY PART OF THE PERIOD NOVEMBER 29, 1957, TO JANUARY 11, 1958. A REQUIREMENT THAT HE PARTICIPATE IN THE USUAL HOUSEKEEPING DUTIES AND PROCESSING DURING THE PERIOD BETWEEN THE EXECUTION OF THE SENTENCE AND THE DATE OF HIS DISCHARGE IS NOT CONSIDERED A SUFFICIENT BASIS TO MANIFEST AN INTENTION TO MAKE INOPERABLE THE FORFEITURES ADJUDGED. IN THIS CONNECTION, IT MUST BE RECALLED THAT AT THE TIME THE MEMBER WAS UNDER SENTENCE "TO BE DISCHARGED FROM THE SERVICE WITH A BAD CONDUCT DISCHARGE.'

THE COURT-MARTIAL SENTENCE ADJUDGED ON SEPTEMBER 9, 1957, INCLUDING A "FORFEITURE OF ALL PAY AND ALLOWANCES," BECAME EFFECTIVE NOVEMBER 29, 1957. SUCH SENTENCE RESULTED IN A FORFEITURE OF PAY AND ALLOWANCES ON AND AFTER THAT DATE IN THE ABSENCE OF EVIDENCE SHOWING THAT IT WAS MODIFIED (33 COMP. GEN. 281) OR THAT SOME OTHER AFFIRMATIVE ADMINISTRATIVE ACTION WAS TAKEN EVIDENCING AN INTENTION TO SUSPEND THE FORFEITURE PORTION OF SUCH SENTENCE. THE RECORD CONTAINS NO SHOWING TO THAT EFFECT. THE ONLY ACTION TAKEN WAS TO TRANSFER THE ENLISTED MAN TO A SEPARATION CENTER FOR DISCHARGE FROM THE SERVICE PURSUANT TO THE COURT-MARTIAL SENTENCE. THE PERIOD INVOLVED DOES NOT APPEAR TO CONSTITUTE AN UNREASONABLE TIME IN WHICH TO RETURN THE MEMBER FROM KOREA TO THE CONTINENTAL UNITED STATES AND TO EFFECT HIS DISCHARGE FROM THE ARMY. WE FIND NO BASIS FOR A CONCLUSION THAT THE CIRCUMSTANCES SHOWN WERE TANTAMOUNT TO A RESTORATION TO DUTY UNDER THE RULE STATED IN 37 COMP. GEN. 591 SO AS TO ENTITLE THE MEMBER TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD NOVEMBER 29, 1957, TO JANUARY 11, 1958.

ACCORDINGLY, MR. PETRLIK IS NOT ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD INVOLVED ON THE BASIS OF THE PRESENT RECORD. THE VOUCHER ENCLOSED WITH YOUR LETTER IS BEING RETAINED IN THIS OFFICE.