B-144889, MAY 18, 1961

B-144889: May 18, 1961

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REQUESTS DECISION WHETHER PAYMENT IS AUTHORIZED ON AN ACCOMPANYING MILITARY PAY VOUCHER IN FAVOR OF HENRY E. IT IS STATED THAT THE SERVICE MEMBER ALLEGEDLY COMMITTED AN OFFENSE AGAINST A JAPANESE NATIONAL ON JUNE 12. WAS CONFINED IN THE BASE STOCKADE PENDING ACTION BY THE JAPANESE CIVIL AUTHORITIES. HE WAS INDICTED BY THE JAPANESE AUTHORITIES ON JULY 28. IT IS FURTHER STATED THAT ON OCTOBER 1. AN EMERGENCY LEAVE WAS ARRANGED AND APPROVED BY THE COMMANDING GENERAL. WITH THE CONCURRENCE OF THE JAPANESE CIVIL AUTHORITIES PROVIDED THE MEMBER WAS RETURNED FOR THE NEXT COURT HEARING SCHEDULED FOR OCTOBER 31. IT IS NOT STATED WHETHER THE CIVIL PROCEEDINGS HAVE BEEN CONCLUDED. YOUR SPECIFIC QUESTIONS ARE AS FOLLOWS: "SINCE THE UNITED STATES MILITARY AUTHORITIES STILL HAVE CUSTODY OF THE MEMBER AND HIS RELEASE WAS CONCURRED IN BY THE JAPANESE AUTHORITIES UNDER THE PREMISE THAT SUCH MEMBER WOULD BE RETURNED FOR TRIAL ON 31OCTOBER 1960.

B-144889, MAY 18, 1961

TO LIEUTENANT COLONEL K. K. WIGNALL, USA:

YOUR LETTER OF DECEMBER 13, 1960, WITH ENCLOSURES, RECEIVED JANUARY 23, 1961, REQUESTS DECISION WHETHER PAYMENT IS AUTHORIZED ON AN ACCOMPANYING MILITARY PAY VOUCHER IN FAVOR OF HENRY E. SHARPE, SP4, RA 18 554 995, FOR PAY AND ALLOWANCES FOR THE PERIOD OCTOBER 8 THROUGH 30, 1960, AND LEAVE RATIONS FOR THE PERIOD OCTOBER 10 THROUGH 25, 1960. YOUR REQUEST FOR DECISION HAS BEEN ASSIGNED D.O. NO. A-553 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS STATED THAT THE SERVICE MEMBER ALLEGEDLY COMMITTED AN OFFENSE AGAINST A JAPANESE NATIONAL ON JUNE 12, 1960, AND WAS CONFINED IN THE BASE STOCKADE PENDING ACTION BY THE JAPANESE CIVIL AUTHORITIES. HE WAS INDICTED BY THE JAPANESE AUTHORITIES ON JULY 28, 1960. IT IS FURTHER STATED THAT ON OCTOBER 1, 1960, THE ZAMA CHAPTER OF THE AMERICAN RED CROSS RECEIVED A TELEGRAM FROM THE RICHMOND, VIRGINIA, CHAPTER RECOMMENDING THE PRESENCE OF THE MEMBER. AN EMERGENCY LEAVE WAS ARRANGED AND APPROVED BY THE COMMANDING GENERAL, UNITED STATES ARMY, JAPAN, WITH THE CONCURRENCE OF THE JAPANESE CIVIL AUTHORITIES PROVIDED THE MEMBER WAS RETURNED FOR THE NEXT COURT HEARING SCHEDULED FOR OCTOBER 31, 1960. THE MEMBER DEPARTED JAPAN ON OCTOBER 8, 1960, AND RETURNED AND REENTERED CONFINEMENT IN THE BASE STOCKADE ON OCTOBER 30, 1960. IT IS NOT STATED WHETHER THE CIVIL PROCEEDINGS HAVE BEEN CONCLUDED.

YOUR SPECIFIC QUESTIONS ARE AS FOLLOWS:

"SINCE THE UNITED STATES MILITARY AUTHORITIES STILL HAVE CUSTODY OF THE MEMBER AND HIS RELEASE WAS CONCURRED IN BY THE JAPANESE AUTHORITIES UNDER THE PREMISE THAT SUCH MEMBER WOULD BE RETURNED FOR TRIAL ON 31OCTOBER 1960, ENTITLEMENT OF PAY AND ALLOWANCES (INCLUDING LEAVE RATIONS) IS QUESTIONED AS TO WHETHER SUCH MEMBER SHOULD BE CONSIDERED TO BE IN A PAY STATUS FOR THE DURATION OF HIS EMERGENCY LEAVE. ALSO, SHOULD SUCH LEAVE BE CHARGEABLE AS ORDINARY LEAVE.'

IN OUR DECISION OF AUGUST 28, 1956, B-128493, 36 COMP. GEN. 173, WE HELD THAT A MEMBER OF THE UNIFORMED SERVICES WHO IS (1) ARRESTED BY THE JAPANESE CIVIL AUTHORITIES BECAUSE OF AN ALLEGED COMMISSION OF A CIVIL OFFENSE, (2) RELEASED TO THE CUSTODY OF THE UNITED STATES MILITARY AUTHORITIES ON CONDITION THAT HE WILL BE MADE AVAILABLE FOR TRIAL BY A JAPANESE COURT UPON THE REQUEST OF THE JAPANESE, (3) CONFINED BY THE UNITED STATES MILITARY AUTHORITIES PENDING RELEASE TO THE JAPANESE FOR TRIAL, AND (4) TRIED AND CONVICTED BY A JAPANESE CIVIL COURT, IS IN A CONSTRUCTIVE ABSENT WITHOUT LEAVE STATUS DURING THE PERIOD OF HIS PRETRIAL CONFINEMENT BY THE MILITARY AUTHORITIES AND IS NOT ENTITLED TO PAY FOR SUCH PERIOD, UNLESS HIS ABSENCE IS EXCUSED AS UNAVOIDABLE. IN OUR DECISION OF AUGUST 26, 1957, B-132595, WE HELD THAT WHILE A MEMBER OF THE UNIFORMED SERVICES WHO IS RESTRICTED TO HIS BASE IN A SENSE IS BEING CONFINED BY THE MILITARY AUTHORITIES, THE TERM "CONFINEMENT" WAS USED IN THE DECISION OF AUGUST 28, 1956, AS HAVING REFERENCE GENERALLY TO PERIODS OF ACTUAL INCARCERATION AND DOES NOT INCLUDE PERIODS WHEN THE MEMBER IS IN A DUTY STATUS WHILE AWAITING CIVIL TRIAL EVEN THOUGH HIS AREA OF MOVEMENT IS RESTRICTED DURING SUCH PERIODS.

THE FACT THAT THE RELEASE OF THE MEMBER FROM ACTUAL INCARCERATION AND HIS PERMISSION TO RETURN TO THE UNITED STATES FOR A SHORT PERIOD OF TIME UNDER EMERGENT CONDITIONS WERE ACCOMPLISHED ONLY UPON THE CONCURRENCE OF THE JAPANESE CIVIL AUTHORITIES IS EVIDENCE THAT THERE WAS NO INTENT ON THE PART OF THE UNITED STATES MILITARY AUTHORITIES TO RESTORE THE MEMBER TO A DUTY STATUS OR TO CONSIDER HIM IN A STATUS OTHER THAN UNDER THE CONTROL OF THE CIVIL AUTHORITIES. HENCE, THE FACT THAT HE WAS PERMITTED TO RETURN TO THE UNITED STATES FOR A SHORT PERIOD OF TIME DOES NOT DISTINGUISH THAT PERIOD FROM HIS ABSENCE BECAUSE OF CONFINEMENT.

IF THE CIVIL TRIAL RESULTS IN A FINDING OF GUILTY, IT IS CONSIDERED THAT THE MEMBER IS NOT ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD STATED IN THE MILITARY PAY VOUCHER, WHICH WILL BE RETAINED HERE, AND NO CHARGE AGAINST ORDINARY LEAVE SHOULD BE MADE. IN THE EVENT THAT THE MEMBER HAS BEEN OR SHOULD BE ACQUITTED OF THE CIVIL CHARGES, AND HIS CONSTRUCTIVE ABSENCE IS EXCUSED AS UNAVOIDABLE, THE CREDIT OF PAY AND ALLOWANCES AND THE ACCRUAL OF OTHER BENEFITS WOULD APPEAR TO BE PROPER, IN THE ABSENCE OF OTHER DISQUALIFYING CIRCUMSTANCES. 36 COMP. GEN. 173. IN THAT EVENT NO CHARGE SHOULD BE MADE AGAINST HIS LEAVE FOR THE PERIOD OF THE EXCUSED ABSENCE.