B-144660, APR. 3, 1961

B-144660: Apr 3, 1961

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ROACHE: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 4. WHILE YOU WERE IN THE HANDS OF CIVIL AUTHORITIES AND CONFINED IN SAINT ELIZABETH'S HOSPITAL. THE RECORD SHOWS THAT WHILE YOU WERE ON AUTHORIZED LEAVE FOR A PERIOD OF 30 DAYS. YOU WERE APPREHENDED BY CIVIL AUTHORITIES ON JUNE 22. BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA YOU WERE COMMITTED TO SAINT ELIZABETH'S HOSPITAL ON OCTOBER 19. YOU WERE RETURNED TO THE CIVIL AUTHORITIES TO AWAIT TRIAL ON THE CHARGE. WHEN YOU WERE HONORABLY DISCHARGED BY REASON OF EXPIRATION OF TERM OF SERVICE. YOUR CLAIM FOR PAY AND ALLOWANCES FOR THE INVOLVED PERIOD WAS DISALLOWED BY OUR CLAIMS DIVISION ON DECEMBER 1. ON THE GROUND THAT YOUR ABSENCE FROM MILITARY CONTROL WAS NOT EXCUSED AS UNAVOIDABLE IN ACCORDANCE WITH SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946.

B-144660, APR. 3, 1961

TO MR. HAROLD J. ROACHE:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 4, 1960, AND ENCLOSURE, IN EFFECT REQUESTING REVIEW OF YOUR CLAIM FOR PAY AND ALLOWANCES BELIEVED DUE AS A MASTER SERGEANT, UNITED STATES AIR FORCE, FOR THE PERIOD JULY 1, 1959, TO APRIL 22, 1960, WHILE YOU WERE IN THE HANDS OF CIVIL AUTHORITIES AND CONFINED IN SAINT ELIZABETH'S HOSPITAL.

THE RECORD SHOWS THAT WHILE YOU WERE ON AUTHORIZED LEAVE FOR A PERIOD OF 30 DAYS, COMMENCING JUNE 1, 1959, YOU WERE APPREHENDED BY CIVIL AUTHORITIES ON JUNE 22, 1959, AND CHARGED WITH THE COMMISSION OF A SPECIFIC OFFENSE. BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA YOU WERE COMMITTED TO SAINT ELIZABETH'S HOSPITAL ON OCTOBER 19, 1959, FOR EXAMINATION AND ON JANUARY 12, 1960, YOU WERE RETURNED TO THE CIVIL AUTHORITIES TO AWAIT TRIAL ON THE CHARGE. UPON A FINDING OF NOT GUILTY BY REASON OF INSANITY, THE COURT ISSUED AN ORDER ON JANUARY 19, 1960, FOR YOUR CONFINEMENT IN SAINT ELIZABETH'S HOSPITAL. THE RECORD FURTHER SHOWS THAT FROM JULY 1, 1959, THE DAY FOLLOWING THE DAY OF THE TERMINATION OF YOUR AUTHORIZED LEAVE, UNTIL APRIL 22, 1960, WHEN YOU WERE HONORABLY DISCHARGED BY REASON OF EXPIRATION OF TERM OF SERVICE, THE UNITED STATES AIR FORCE CARRIED YOU IN A LEAVE WITHOUT PAY STATUS.

YOUR CLAIM FOR PAY AND ALLOWANCES FOR THE INVOLVED PERIOD WAS DISALLOWED BY OUR CLAIMS DIVISION ON DECEMBER 1, 1960, ON THE GROUND THAT YOUR ABSENCE FROM MILITARY CONTROL WAS NOT EXCUSED AS UNAVOIDABLE IN ACCORDANCE WITH 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). THAT SECTION PROVIDES, IN PERTINENT PART, AS OLLOWS:

"/B) AFTER AUGUST 31, 1946, MEMBERS OF THE ARMED FORCES WHEN ABSENT ON ACCOUNT OF SICKNESS OR WOUNDS, OR WHEN DIRECTED BY THE SECRETARY TO BE ABSENT FROM DUTY TO AWAIT ORDERS PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS FOR ANY PERIOD IN EXCESS OF THE NUMBER OF DAYS' LEAVE AUTHORIZED BY THIS ACT, SHALL RECEIVE THE SAME PAY AND ALLOWANCES THEY WOULD RECEIVE IF NOT SO ABSENT; WHEN ABSENT WITH LEAVE FOR OTHER CAUSES, MEMBERS SHALL BE ENTITLED DURING SUCH ABSENCE NOT EXCEEDING THE AGGREGATE NUMBER OF DAYS' LEAVE AUTHORIZED BY THIS ACT TO THE SAME PAY AND ALLOWANCES THEY WOULD RECEIVE IF NOT ON LEAVE AND TO ANY ADDITIONAL ALLOWANCE OR ALLOWANCES OTHERWISE PROVIDED BY LAW FOR MEMBERS WHILE ON LEAVE. WHEN THE SECRETARY AUTHORIZES MEMBERS TO BE ABSENT IN EXCESS OF THE NUMBER OF DAYS' LEAVE AUTHORIZED BY THIS ACT, THEY SHALL NOT BE ENTITLED TO ANY PAY OR ALLOWANCES DURING SUCH ABSENCE. WHEN ABSENT WITHOUT LEAVE OR ABSENT OVER LEAVE, THEY SHALL FORFEIT ALL PAY AND ALLOWANCES DURING SUCH ABSENCE, UNLESS SUCH ABSENCE IS EXCUSED AS UNAVOIDABLE. * * *"

REGULATIONS OF THE AIR FORCE PROMULGATED TO IMPLEMENT THE ABOVE PROVISION OF LAW, WHICH WERE IN EFFECT DURING THE PERIOD INVOLVED, WERE CONTAINED IN PARAGRAPH 10351A OF AIR FORCE MANUAL 173-20 OF JANUARY 1, 1958, CHANGE 46, QUOTED BELOW.

"A. EXCEPT AS PROVIDED IN B BELOW, 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 SUCH PART OF THE PERIOD OF CONFINEMENT AS IS COVERED BY AUTHORIZED LEAVE. PAY OTHERWISE ACCRUING TO A MEMBER CONFINED BY, OR FOR CIVIL AUTHORITIES, MAY BE MADE AFTER RESULT OF THE TRIAL IS KNOWN ONLY IF THE ABSENCE FROM DUTY IS EXCUSED BY THE COMMANDER AS UNAVOIDABLE. UNLESS SO EXCUSED, NO PAYMENT FOR THE PERIOD OF ABSENCE MAY BE MADE, REGARDLESS OF THE OUTCOME OF THE CIVIL PROCEEDINGS. (SEE 8 CG 80, 36 CG 173.) ANY OF THE FOLLOWING CIRCUMSTANCES CONSTITUTES A SUFFICIENT BASIS FOR EXCUSING THE ABSENCE AS UNAVOIDABLE:

"/1) WHERE THE CHARGES ARE DISMISSED OR THE MEMBER IS RELEASED (OR DIES) WITHOUT TRIAL, EXCEPT WHERE RELEASED WITHOUT TRIAL---

(A) UPON HIS AGREEMENT TO MAKE REPARATION FOR THE OFFENSE FOR WHICH CONFINED (7 CG 496).

(B) IF IT IS CLEARLY ESTABLISHED THAT HIS ARREST AND DETENTION WERE CAUSED BY HIS OWN MISCONDUCT (7 CG 496).

"/2) WHERE THE MEMBER IS TRIED AND ACQUITTED.

(3) WHERE THE MEMBER IS ADMITTED TO BAIL, AND THE TRIAL POSTPONED INDEFINITELY, IT BEING APPARENTLY NOT THE INTENTION OF AUTHORITIES TO PROSECUTE THE CASE (10 COMP. DEC. 490).

(4) WHERE THE CASE HAS BEEN NOL PROSSED (OP. JAG, 18 MAR 1909).

(5) WHERE THE MEMBER IS DISCHARGED BY CIVIL AUTHORITIES, THE JURY FAILING TO AGREE.'

CLEARLY, UNDER THE ABOVE REGULATIONS THERE WAS REQUIRED AS A PREREQUISITE TO PAYMENT FOR A PERIOD OF ABSENCE WITHOUT AUTHORIZATION A DETERMINATION BY THE AIR FORCE THAT SUCH LEAVE WAS UNAVOIDABLE AND, HENCE, EXCUSED. THIS CONNECTION, THE RECORD FAILS TO SHOW THAT SUCH A DETERMINATION WAS MADE IN YOUR CASE.

DURING THE ENTIRE PERIOD JULY 1, 1959, TO APRIL 22, 1960, YOU WERE IN THE HANDS OF CIVIL AUTHORITIES AND IN CONFINEMENT IN SAINT ELIZABETH'S HOSPITAL IN CONSEQUENCE OF THE COMMISSION OF A CRIMINAL ACT AND AT NO TIME DURING SUCH PERIOD WERE YOU IN ANY SENSE AVAILABLE FOR MILITARY DUTY. SUCH CIRCUMSTANCE, WE MUST HOLD THAT YOUR CASE FALLS SQUARELY WITHIN THE RULE ESTABLISHED IN THE CASE OF MERWIN V. UNITED STATES, 78 CT.CL. 561. THE PLAINTIFF IN THAT CASE, WHILE IN AN ACTIVE-DUTY STATUS AS A WARRANT OFFICER OF THE ARMY, WAS SURRENDERED TO CIVIL AUTHORITIES TO ANSWER CRIMINAL CHARGES, BUT WAS ULTIMATELY FOUND "NOT GUILTY BY REASON OF INSANITY.' HE WAS PROMPTLY ADJUDGED TO BE INSANE AND WAS DULY COMMITTED TO A STATE HOSPITAL FOR THE INSANE WHERE HE REMAINED FOR A PERIOD OF APPROXIMATELY ONE YEAR. ON THE BASIS OF A WRIT OF HABEAS CORPUS ISSUED BY A STATE COURT, HE WAS RELEASED FROM THE STATE HOSPITAL AND IMMEDIATELY RETURNED TO MILITARY CONTROL. THE COURT OF CLAIMS IN CONSTRUING AN ARMY REGULATION SIMILAR TO THE AIR FORCE REGULATION QUOTED ABOVE SAID:

"THE REGULATION SOUGHT TO ACCOMPLISH A RETURN OF IMPOUNDED PAY IN CASES OF CRIMINAL CHARGES AGAINST A SOLDIER WHEN AN ADJUDICATION, LEGAL IN ALL RESPECTS, ACQUITTED HIM OF THE SAME AND AS A RESULT OF SAID ACQUITTAL THE SOLDIER REGAINED HIS LIBERTY AND WAS AGAIN AVAILABLE FOR MILITARY DUTY BY REASON OF INNOCENCE; IN OTHER WORDS, WHEN THE SOLDIER'S DETENTION BY THE CIVIL AUTHORITIES WAS DISCLOSED TO BE WITHOUT LEGAL WARRANT AND HIS RELEASE FROM CIVIL CUSTODY ENABLED HIS RETURN TO HIS POST OF DUTY. OBVIOUSLY, THERE WAS APPARENT NECESSITY FOR A PROVISION FOR FORFEITURE OF HIS PAY, IF FOUND GUILTY OR LAWFULLY RETAINED IN CUSTODY OF THE CIVIL AUTHORITIES.'

THE COURT THEN CONCLUDED, IN EFFECT, THAT MERWIN WAS NOT "ACQUITTED" OF THE OFFENSE CHARGED, IN THE SENSE AND MEANING GIVEN TO THE WORD IN THE THEN EXISTING REGULATIONS, AND HELD THAT HE WAS NOT ENTITLED TO PAY AND ALLOWANCES FROM THE DATE OF HIS DETENTION BY THE CIVIL AUTHORITIES TO THE DATE OF HIS RELEASE FROM THE STATE HOSPITAL. TO THAT EFFECT, THE COURT SAID:

"WHILE TECHNICALLY IT MAY BE SAID THAT HE WAS ACQUITTED OF SECOND DEGREE MURDER BY REASON OF INSANITY, IT CANNOT AS A MATTER OF FACT, OR WITHIN THE MEANING AND INTENT OF THE REGULATIONS, BE SAID THAT THE PLAINTIFF ESCAPED THE CONSEQUENCES OF AN ACT, OR THAT WHICH HE DID WAS OF SUCH A CHARACTER AS TO RELEASE HIM TEMPORARILY FROM MILITARY DUTY. THE ACT WHICH WAS COMMITTED WAS RESPONSIBLE, AS THE JUDGMENTS OF THE COURT ATTEST, FOR THE LOSS OF HIS INDIVIDUAL LIBERTY FOR THE TIME CONFINED; AND WE BELIEVE THAT, NOTWITHSTANDING THE PATHETIC AND DISTRESSING AFFLICTION OF INSANITY, WHERE A SOLDIER SETS IN MOTION A LEGAL PROCEDURE THAT TAKES HIM FROM THE ARMY AND PLACES HIM WITHIN THE JURISDICTION OF THE CIVIL COURTS, AND SUCH COURTS IN PURSUANCE OF LAW RETAIN JURISDICTION AND CONTROL BECAUSE OF THE COMMISSION OF THE ACT, DURING THAT TIME HE IS NOT ENTITLED TO PAY AND ALLOWANCES PROVIDED BY LAW. THE REGULATION, WE THINK, WAS NOT INTENDED TO AWARD PAY UNDER THE ABOVE CONDITIONS.

"THE CASE IS DIFFERENT FROM ONE WHERE A MAN IN THE MILITARY SERVICE BECOMES INSANE AND BY REASON OF HIS AFFLICTION MUST BE CONFINED IN AN ASYLUM. THIS CLASS OF AFFLICTED PERSONS IS COMMITTED TO GOVERNMENT HOSPITALS FOR TREATMENT; THEIR REMOVAL FROM ARMY SERVICE IS DUE TO INSANITY AND NO OTHER CAUSE, AND WHEN CONFINED IT IS ACCOMPLISHED IN THE FIRST INSTANCE BY MILITARY REQUESTS OR PROCEDURE, AND UNDER MILITARY REGULATIONS. THEY ARE NOT REMOVED FROM THE SERVICE BY THE INTERPOSITION OF THE CIVIL AUTHORITIES BUT TREATED AS INCAPACITATED, BY REASON OF INSANITY, FOR PERFORMING ARMY DUTIES.'

IN OUR DECISION OF AUGUST 28, 1956, TO THE SECRETARY OF DEFENSE, REPORTED IN 36 COMP. GEN. 173, IN WHICH WE INTERPRETED THE ABOVE SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, INSOFAR AS IT CONCERNED MEMBERS OF THE ARMED FORCES WHO WERE APPREHENDED BY JAPANESE CIVIL AUTHORITIES BECAUSE OF THE ALLEGED COMMISSION OF CIVIL OFFENSES, WE HELD, AMONG OTHER THINGS, AS FOLLOWS:

"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 IS 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 EXCUSED, HOWEVER, THE STATUTE PRECLUDES ANY PAYMENT OF PAY FOR THE PERIOD OF ABSENCE, REGARDLESS OF THE OUTCOME OF THE CIVILIAN PROCEEDINGS.'

WE HAVE NOT OVERLOOKED THE FACT THAT IN YOUR CASE THE OFFENSE WAS COMMITTED WHILE YOU WERE ON AUTHORIZED LEAVE. HOWEVER, IN CONSIDERATION OF THE FURTHER FACT THAT YOU WERE PREVENTED BY THE CIVIL AUTHORITIES FROM RETURNING TO YOUR REGULAR MILITARY DUTIES AT THE EXPIRATION OF YOUR AUTHORIZED LEAVE, WE MUST REGARD YOUR STATUS DURING THE PERIOD OF ABSENCE COMMENCING FROM THE DAY FOLLOWING THE DAY OF THE EXPIRATION OF YOUR AUTHORIZED LEAVE AS ABSENT OVER LEAVE WITHIN THE MEANING OF THE STATUTE.

YOU CONTEND IN YOUR LETTER OF DECEMBER 4, 1960, THAT INASMUCH AS YOUR MENTAL ILLNESS WAS INDUCED BY YOUR ACTIVE MILITARY DUTY, IT IS SERVICE- CONNECTED AND, THEREFORE, IN SUCH CIRCUMSTANCE, THERE WOULD BE COMPLIANCE WITH THE ABOVE SECTION 4 (B) IN THAT THE ABSENCE FROM DUTY WOULD BE EXCUSED AS UNAVOIDABLE. YOU HAVE FURNISHED A COPY OF THE ORDER OF COMMITMENT OF JANUARY 19, 1960, OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA TO SUBSTANTIATE THE FACT THAT YOU WERE ADJUDGED TO BE INSANE. THAT ORDER OF COMMITMENT WAS MADE UNDER A SPECIAL STATUTE IN CONNECTION WITH THE QUESTION OF YOUR CRIMINAL RESPONSIBILITY FOR THE OFFENSE FOR WHICH YOU WERE CHARGED AND FOLLOWING SUCH FINDING THE CIVIL AUTHORITIES WERE REQUIRED TO CONFINE YOU IN SAINT ELIZABETH'S HOSPITAL FOR THE PURPOSES OF REHABILITATION AND RECOVERY. WE FIND NOTHING IN THE LAW OR REGULATIONS PROVIDING FOR AUTOMATIC EXCUSAL OR REQUIRING THE EXCUSAL BY THE SEVERAL MILITARY DEPARTMENTS OF LEAVE WITHOUT AUTHORIZATION OR ABSENCE OVER LEAVE AS UNAVOIDABLE IN SUCH SITUATIONS. WE FIND NO PROVISION IN THE STATUTE EXCUSING SUCH ABSENCE AS UNAVOIDABLE IF YOUR MENTAL CONDITION WAS "SERVICE-CONNECTED.' THE STATUTE REQUIRES A SPECIFIC DETERMINATION BY THE MILITARY AUTHORITIES THAT THE LEAVE WITHOUT AUTHORITY OR ABSENCE OVER LEAVE WAS UNAVOIDABLE AND THEREFORE EXCUSED.

IN DECISION OF DECEMBER 14, 1960, B-143997, 40 COMP. GEN. 366, IN CONSIDERING THE QUESTION WHETHER UNDER THE ARMED FORCES LEAVE ACT THE SECRETARIES OF THE MILITARY DEPARTMENTS MAY EXCUSE, AS UNAVOIDABLE, UNAUTHORIZED ABSENCES OF MENTALLY INCOMPETENT MEMBERS, WE SAID:

"THE MERE DETERMINATION THAT AN ENLISTED MAN WAS MENTALLY INCOMPETENT DURING A PERIOD OF ABSENCE WITHOUT LEAVE WILL NEGATIVE THE IMPOSITION OF ANY PUNISHMENT FOR SUCH ABSENCE, BUT SUCH A DETERMINATION DOES NOT REMOVE THE REQUIREMENT TO COMPLY WITH THE CONTRACTUAL OBLIGATIONS OF HIS ENLISTMENT IN ORDER FOR HIM TO BE ENTITLED TO PAY. * * * * * * * * * *

"* * * WHETHER A PARTICULAR UNAUTHORIZED ABSENCE WAS UNAVOIDABLE IS A QUESTION OF FACT AND AN ENLISTED MAN'S COMPETENCY IS ONE FACT FOR CONSIDERATION IN DETERMINING THE CHARACTER OF HIS ABSENCE. IF, BECAUSE OF MENTAL INCOMPETENCY, AN ENLISTED MAN COULD NOT COMPREHEND THAT HE WAS ABSENT FROM HIS POST OF DUTY WITHOUT AUTHORITY, THAT FACT MAY JUSTIFY A CONCLUSION THAT SUCH ABSENCE, AS FAR AS THE ENLISTED MAN IS CONCERNED, WAS UNAVOIDABLE WITHIN THE SCOPE OF THE DEFINITION AND STATUTE MENTIONED. * *

IN YOUR CASE THE AIR FORCE HAS NOT DETERMINED THAT YOUR ABSENCE OVER LEAVE WAS UNAVOIDABLE AND HAS NOT EXCUSED IT ON THAT ACCOUNT.

ACCORDINGLY, ON THE PRESENT RECORD, WE MUST HOLD THAT THERE IS NO LEGAL AUTHORITY FOR THE PAYMENT OF THE PAY AND ALLOWANCES. THE DISALLOWANCE OF YOUR CLAIM, THEREFORE, WAS PROPER AND UPON REVIEW IT IS SUSTAINED.