B-145618, MAY 11, 1961

B-145618: May 11, 1961

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JAMES JOHNSON: REFERENCE IS MADE TO YOUR LETTER OF APRIL 4. WE HAVE BEEN ADVISED BY THE DEPARTMENT OF THE ARMY THAT THEIR RECORDS SHOW THAT YOU ENTERED ON ACTIVE DUTY MARCH 21. WERE DISCHARGED ON JANUARY 8. WAS DISALLOWED BY SETTLEMENT OF MARCH 31. ON THE BASIS THAT THE DESERTION OPERATED TO FORFEIT ALL PAY AND ALLOWANCES WHICH MIGHT OTHERWISE HAVE BEEN DUE YOU. IT IS NOTED THAT YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE IN 1960. IT SHOULD BE POINTED OUT IN THIS RESPECT THAT A CLAIM SUCH AS YOURS IS BARRED FROM CONSIDERATION BY OUR OFFICE UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9. INASMUCH AS MORE THAN TEN FULL YEARS HAVE ELAPSED SINCE THE DATE THE CLAIM FIRST ACCRUED.

B-145618, MAY 11, 1961

TO MR. JAMES JOHNSON:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 4, 1961, CONCERNING YOUR CLAIM FOR PAY INCIDENT TO YOUR ARMY SERVICE AS AN ENLISTED MAN FROM MARCH 21, 1918, TO JULY 2, 1918.

WE HAVE BEEN ADVISED BY THE DEPARTMENT OF THE ARMY THAT THEIR RECORDS SHOW THAT YOU ENTERED ON ACTIVE DUTY MARCH 21, 1918, WITH THE NATIONAL ARMY, DESERTED ON JULY 2, 1918, AND WERE DISCHARGED ON JANUARY 8, 1953, UNDER THE PROVISIONS OF SECTION III, ARMY REGULATION 615-366 (PROVIDING DISCHARGE AUTHORITY IN CASES OF DESERTERS FROM SPANISH AMERICAN WAR, WORLD WAR I, OR, IN SOME CASES, PEACETIME DESERTERS). YOUR CLAIM FOR PAY FOR THE PERIOD OF YOUR SERVICE UP TO JULY 2, 1918, WAS DISALLOWED BY SETTLEMENT OF MARCH 31, 1961, ON THE BASIS THAT THE DESERTION OPERATED TO FORFEIT ALL PAY AND ALLOWANCES WHICH MIGHT OTHERWISE HAVE BEEN DUE YOU.

IT IS NOTED THAT YOUR CLAIM WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE IN 1960. IT SHOULD BE POINTED OUT IN THIS RESPECT THAT A CLAIM SUCH AS YOURS IS BARRED FROM CONSIDERATION BY OUR OFFICE UNDER THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, INASMUCH AS MORE THAN TEN FULL YEARS HAVE ELAPSED SINCE THE DATE THE CLAIM FIRST ACCRUED. A COPY OF THE ACT IS ENCLOSED HEREWITH FOR YOUR INFORMATION. HOWEVER, EVEN IF YOUR CLAIM WERE NOT BARRED FROM OUR CONSIDERATION BY THE ACT OF OCTOBER 9, 1940, THERE WOULD BE NO BASIS FOR ITS PAYMENT. THE SUPREME COURT OF THE UNITED STATES HELD IN UNITED STATES V. LANDERS, 92 U.S. 77, 79, THAT---

"* * * FORFEITURE OF PAY AND ALLOWANCES UP TO THE TIME OF DESERTION FOLLOWS FROM THE CONDITIONS OF THE CONTRACT OF ENLISTMENT, WHICH IS FOR FAITHFUL SERVICE. THE CONTRACT IS AN ENTIRETY; AND, IF SERVICE FOR ANY PORTION OF THE TIME IS CRIMINALLY OMITTED, THE PAY AND ALLOWANCES FOR FAITHFUL SERVICE ARE NOT EARNED. AND, FOR THE PURPOSE OF DETERMINING THE RIGHTS OF THE SOLDIER TO RECEIVE PAY AND ALLOWANCES FOR PAST SERVICES, THE FACT OF DESERTION NEED NOT BE ESTABLISHED BY THE FINDINGS OF A COURT- MARTIAL; IT IS SUFFICIENT TO JUSTIFY A WITHHOLDING OF THE MONEYS THAT THE FACT APPEARS UPON THE MUSTER-ROLLS OF HIS COMPANY. * * *"

IT UNIFORMLY HAS BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT AN ENLISTED MAN, UPON DESERTION, FORFEITS ALL PAY AND ALLOWANCES DUE AND UNPAID AT THE TIME OF HIS DESERTION AND EARNS NO PAY DURING THE PERIOD HE IS IN DESERTION. SEE 8 COMP. GEN. 217; ID. 549; 9 ID. 192; 23 ID. 44.

WHILE YOU MAY NOT HAVE BEEN FOUND TO BE A DESERTER BY A COURT MARTIAL, IT APPEARS THAT YOU WERE DROPPED FROM THE ROLLS AS A DESERTER AS OF JULY 2, 1918. HENCE, UNDER THE DECISION IN THE LANDERS CASE, ANY UNPAID PAY WHICH MAY HAVE BEEN DUE YOU ON JULY 2, 1918, WAS AUTOMATICALLY FORFEITED. COMP. DEC. 328; 8 COMP. GEN. 233.

IN YOUR CURRENT LETTER, YOU INDICATE THAT YOU ARE ATTEMPTING TO HAVE YOUR PRESENT DISCHARGE CHANGED TO AN HONORABLE DISCHARGE. IN THIS RESPECT WE SUGGEST THAT YOU CONTACT THE ADJUTANT GENERAL, U.S. ARMY RECORDS CENTER, ST. LOUIS 14, MISSOURI, AS THAT OFFICE HAS JURISDICTION ON MATTERS DEALING WITH CHANGES IN THE CHARACTER OF DISCHARGE.