B-142822, JUN. 10, 1960

B-142822: Jun 10, 1960

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HAVE BEEN FORWARDED TO THIS OFFICE FOR CONSIDERATION. SINCE A SIMILAR CLAIM WAS DISALLOWED BY THIS OFFICE ON APRIL 30. YOUR CURRENT LETTERS WILL BE CONSIDERED IN THE NATURE OF A REQUEST FOR REVIEW OF THE PREVIOUS ACTION TAKEN IN THE MATTER. THE RECORD SHOWS THAT YOU WERE ABSENT WITHOUT LEAVE FROM MARCH 2. WERE DROPPED FROM THE ROLLS OF YOUR ORGANIZATION ON APRIL 7. YOU WERE PLACED IN CONFINEMENT THROUGH JULY 26. YOU WERE PAID $129.29 WHICH REPRESENTED MUSTERING-OUT PAY ($100). YOU WERE IN A DESERTION STATUS FROM MARCH 2. NO DISCIPLINARY ACTION WAS TAKEN FOR THE PERIOD OF YOUR UNAUTHORIZED ABSENCE. YOU WERE NOT ENTITLED TO ANY PAY FOR THAT PERIOD. AS IT HAS BEEN HELD THAT AN ENLISTED MEMBER IS NOT ENTITLED TO PAY FOR THE TIME HE IS ABSENT WITHOUT PROPER AUTHORITY.

B-142822, JUN. 10, 1960

TO MR. ERNEST ATLES:

YOUR LETTERS OF FEBRUARY 25 AND MARCH 12, 1960, CLAIMING PAY FOR THE PERIOD MARCH 2, 1942 TO AUGUST 24, 1948, AS PRIVATE, ARMY OF THE UNITED STATES, SERVICE NO. 38053622, SENT TO THE DEPARTMENT OF THE ARMY FINANCE CENTER, HAVE BEEN FORWARDED TO THIS OFFICE FOR CONSIDERATION. SINCE A SIMILAR CLAIM WAS DISALLOWED BY THIS OFFICE ON APRIL 30, 1954, YOUR CURRENT LETTERS WILL BE CONSIDERED IN THE NATURE OF A REQUEST FOR REVIEW OF THE PREVIOUS ACTION TAKEN IN THE MATTER.

THE RECORD SHOWS THAT YOU WERE ABSENT WITHOUT LEAVE FROM MARCH 2, 1942, THROUGH APRIL 11, 1948, AND WERE DROPPED FROM THE ROLLS OF YOUR ORGANIZATION ON APRIL 7, 1942, BECAUSE OF DESERTION. UPON RETURN TO MILITARY CONTROL ON APRIL 12, 1948, YOU WERE PLACED IN CONFINEMENT THROUGH JULY 26, 1948, RESTORED TO DUTY ON JULY 27, 1948, AND HONORABLY DISCHARGED ON AUGUST 4, 1948. AT THE TIME OF YOUR DISCHARGE, YOU WERE PAID $129.29 WHICH REPRESENTED MUSTERING-OUT PAY ($100), TRAVEL ALLOWANCE ($10.70), AND PAY FOR THE PERIOD JULY 27 TO AUGUST 4, 1948 ($18.59).

YOU WERE IN A DESERTION STATUS FROM MARCH 2, 1942, THROUGH APRIL 11, 1948. EVEN THOUGH, UPON YOUR RETURN TO MILITARY CONTROL, NO DISCIPLINARY ACTION WAS TAKEN FOR THE PERIOD OF YOUR UNAUTHORIZED ABSENCE, YOU WERE NOT ENTITLED TO ANY PAY FOR THAT PERIOD, AS IT HAS BEEN HELD THAT AN ENLISTED MEMBER IS NOT ENTITLED TO PAY FOR THE TIME HE IS ABSENT WITHOUT PROPER AUTHORITY. A MEMBER'S RIGHT TO PAY IS BASED UPON THE PERFORMANCE OF SERVICE. BEING ABSENT WITHOUT AUTHORITY DURING THE PERIOD MENTIONED, YOU FAILED TO RENDER SERVICE FOR THE PERIOD OF ABSENCE AND ARE NOT ENTITLED TO ANY PAY THEREFOR. THE DISALLOWANCE OF APRIL 30, 1954, WAS CORRECT IN DENYING YOUR CLAIM FOR PAY COVERING THAT PERIOD.

AS STATED ABOVE, THE RECORD SHOWS THAT YOU WERE IN CONFINEMENT FROM APRIL 12 UNTIL JULY 26, 1948, AND WERE RESTORED TO DUTY JULY 27, 1948. YOU WERE PAID AS PRIVATE FROM DATE YOU WERE RESTORED TO DUTY THROUGH DATE OF DISCHARGE AUGUST 4, 1948. OFFICE DISALLOWANCE OF APRIL 30, 1954, DENIED YOUR CLAIM FOR PAY COVERING THE PERIOD YOU WERE IN CONFINEMENT, FOR THE REASON THAT APPLICABLE REGULATIONS PROVIDED THAT IF AN ENLISTED MAN IN DESERTION OR ABSENT WITHOUT LEAVE SURRENDERS OR IS APPREHENDED AFTER HIS ENLISTMENT PERIOD, HIS PAY AND ALLOWANCES WILL NOT AGAIN ACCRUE UNTIL HE SHALL HAVE BEEN RESTORED TO A DUTY STATUS. HOWEVER, SINCE THE RECORD SHOWS YOU WERE INDUCTED AS A MEMBER OF THE ARMY OF THE UNITED STATES, YOU WERE UNDER THE PROVISIONS OF THE ACT OF DECEMBER 13, 1941, 55 STAT. 799- 800, SUBJECT TO ACTIVE MILITARY SERVICE UNTIL SIX MONTHS AFTER THE WAR IN WHICH THE UNITED STATES WAS ENGAGED HAD BEEN TERMINATED. THIS REQUIRED SERVICE ENDED JANUARY 25, 1948, PURSUANT TO THE PROVISIONS OF SECTION 3 OF THE ACT OF JULY 25, 1947, 61 STAT. 451, AND WHEN YOU RETURNED TO MILITARY CONTROL APRIL 12, 1948, YOU WERE NOT REQUIRED TO RENDER ACTIVE SERVICE IN ACCORDANCE WITH THE SAID ACT OF DECEMBER 13, 1941. SINCE IT WAS DETERMINED TO RELEASE YOU WITH AN HONORABLE DISCHARGE, IT MAY BE CONSIDERED THAT ON APRIL 12, 1948, YOU WERE HELD IN A DUTY STATUS BY THE GOVERNMENT FOR ITS CONVENIENCE AND YOU ARE ENTITLED TO PAY FOR THE ENTIRE PERIOD FROM APRIL 12, 1948, THE TIME YOU WERE RETURNED TO MILITARY CONTROL TO AUGUST 4, 1948, THE TIME OF DISCHARGE. YOU WERE PAID FOR THE PERIOD JULY 27 THROUGH AUGUST 4, 1948, AND, ACCORDINGLY, YOU ARE NOW DUE PAY FOR THE PERIOD APRIL 12 THROUGH JULY 26, 1948.

A SETTLEMENT ALLOWING THE PROPER AMOUNT FOUND DUE ON THE BASIS INDICATED ABOVE WILL ISSUE IN DUE COURSE.