B-147334, NOV. 6, 1961

B-147334, NOV. 6, 1961

TO MR. EDDIE DOMINGUEZ:

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 29 AND OCTOBER 18, 1961, IN EFFECT REQUESTING RECONSIDERATION OF THAT PART OF OUR SETTLEMENT DATED AUGUST 17, 1961, WHICH DISALLOWED YOUR CLAIM FOR PAY DURING THE PERIOD AUGUST 22, 1953, TO APRIL 13, 1954, INCIDENT TO YOUR SERVICE IN THE UNITED STATES MARINE CORPS.

THE RECORD SHOWS THAT YOU WERE ABSENT WITHOUT LEAVE FROM YOUR ORGANIZATION DURING THIS PERIOD AND THAT YOU WERE FOUND GUILTY OF DESERTION BY A GENERAL COURT-MARTIAL. YOU WERE SENTENCED TO DISHONORABLE DISCHARGE, FORFEITURE OF ALL PAY AND ALLOWANCES, AND CONFINEMENT AT HARD LABOR FOR THREE YEARS. THE BOARD OF REVIEW MODIFIED THE PERIOD OF CONFINEMENT TO TWO YEARS IN PLACE OF THREE YEARS. THEREAFTER, YOU SUBMITTED A PETITION FOR A GRANT OF REVIEW OF YOUR CASE BY THE U.S. COURT OF MILITARY APPEALS, AND THE JUDGE ADVOCATE GENERAL REMITTED SO MUCH OF THE SENTENCE AS WAS IN EXCESS OF DISHONORABLE DISCHARGE, CONFINEMENT FOR TEN MONTHS AND FORFEITURE OF ALL PAY AND ALLOWANCES. THE BOARD OF REVIEW LATER DISMISSED THE CHARGE OF DESERTION AND SET ASIDE THE FINDING OF GUILTY AND THE SENTENCE. ORDERS WERE ISSUED RESTORING ALL YOUR RIGHTS, PRIVILEGES AND PROPERTY WHICH YOU WERE DEPRIVED OF BY REASON OF THE FINDING OF GUILTY AND THE COURT-MARTIAL SENTENCE.

ALL PAY AND ALLOWANCES TO WHICH YOU WERE ENTITLED FOR THE PERIOD JULY 1, 1953, THROUGH OCTOBER 28, 1955, WERE CREDITED TO YOUR PAY ACCOUNT EXCEPT FOR PERIODS OF UNAUTHORIZED ABSENCES, INCLUDING THE PERIOD FROM AUGUST 22, 1953, TO APRIL 13, 1954, AND A PERIOD WHEN YOU WERE SENT HOME IN A NONPAY STATUS. YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION FOR THE REASON THAT YOU WERE IN AN ABSENT-WITHOUT LEAVE STATUS DURING THE PERIOD AUGUST 22, 1953, TO APRIL 13, 1954. YOU CONTEND THERE ARE SWORN STATEMENTS BY SERVICEMEN THAT YOU WERE ON DUTY DURING THIS PERIOD; THAT YOU WERE NEVER IN AN ABSENT-WITHOUT LEAVE STATUS, AND THE COURT OF MILITARY APPEALS HAS DISMISSED THE CASE AGAINST YOU.

SECTION 3 (A) OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, AS AMENDED, 37 U.S.C. 31A, PROVIDES FOR THE ACCRUAL OF ANNUAL LEAVE BY MEMBERS OF THE ARMED FORCES AT THE RATE OF 2 1/2 DAYS FOR EACH MONTH OF "ACTIVE SERVICE," EXCLUDING PERIODS OF (1) ABSENCE FROM DUTY WITHOUT LEAVE, (2) ABSENCE OVER LEAVE, AND (3) CONFINEMENT AS THE RESULT OF A SENTENCE OF COURT-MARTIAL. SECTION 4 (B) OF THE STATUTE, AS AMENDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, 37 U.S.C. 33 (B), PROVIDES THAT WHEN MEMBERS ARE ABSENT WITHOUT LEAVE OR ABSENT OVER LEAVE, THEY SHALL FORFEIT ALL PAY AND ALLOWANCES DURING SUCH ABSENCE, UNLESS SUCH ABSENCE IS EXCUSED AS UNAVOIDABLE. THE FACT THAT THE FINDING OF GUILTY BEFORE A COURT-MARTIAL ON A CHARGE OF DESERTION WAS SET ASIDE IS NOT CONCLUSIVE IN ANY WAY UPON THE ADMINISTRATIVE DETERMINATION THAT YOU WERE IN FACT ABSENT WITHOUT LEAVE DURING THE PERIOD AUGUST 22, 1953, TO APRIL 13, 1954. THE CHARGE AGAINST YOU AT THE COURT-MARTIAL PRIMARILY WAS OF A CRIMINAL NATURE WHEREAS A CLAIM FOR PAY IS OF A CIVIL NATURE. IN OTHER WORDS, WHILE THE CIRCUMSTANCES SURROUNDING YOUR UNAUTHORIZED ABSENCE MAY HAVE BEEN SUCH AS TO ABSOLVE YOU FROM PUNISHMENT BY COURT-MARTIAL FOR CRIMINAL RESPONSIBILITY, THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946 PROHIBIT ALLOWANCE OF PAY FOR ANY PERIOD YOU WERE ABSENT WITHOUT LEAVE, SUCH ABSENCE NOT HAVING BEEN EXCUSED AS UNAVOIDABLE. CONSEQUENTLY, YOUR PAY WAS FORFEITED DURING THE PERIOD OF YOUR UNAUTHORIZED ABSENCE, AUGUST 22, 1953, TO APRIL 13, 1954. SINCE YOUR PAY FOR SUCH PERIOD WAS FORFEITED UNDER THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, THE SETTING ASIDE OF THE COURT MARTIAL SENTENCE GAVE YOU NO RIGHT TO PAY FOR THAT PERIOD.

WITH REGARD TO YOUR CLAIM THAT THERE ARE SWORN STATEMENTS BY SERVICEMEN THAT YOU WERE ON DUTY AT THE TIME OF THE ABSENT-WITHOUT LEAVE STATUS, YOU ARE ADVISED THAT IT IS THE ESTABLISHED RULE OF OUR OFFICE TO ACCEPT THE REPORT OF THE ADMINISTRATIVE OFFICERS ON DISPUTED QUESTIONS OF FACT IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD THE SETTLEMENT DISALLOWING YOUR CLAIM WAS PROPER AND UPON REVIEW IS SUSTAINED.

THE MARINE CORPS HAS ADVISED US THAT GENERALLY SPEAKING, WITH THE EXCEPTION OF FINAL SETTLEMENT AS IN YOUR CASE, ITS MEMBERS ARE PAID IN CASH AND NOT BY CHECK AS YOU APPARENTLY ARE UNDER THE IMPRESSION SINCE YOU REQUEST VERIFICATION OF YOUR SIGNATURE ON CHECKS. HOWEVER, IF YOU BELIEVE YOU DID NOT RECEIVE PAYMENT FOR A PARTICULAR PERIOD FOR WHICH YOU WERE ENTITLED TO BE PAID, AND WILL FURNISH OUR OFFICE THE PERIOD INVOLVED, WE WILL EXAMINE THE RECORDS FOR SUCH PERIOD AND ADVISE YOU.

IN CONNECTION WITH YOUR REQUEST FOR INFORMATION WHERE TO GET PERMISSION TO FILE SUIT FOR MORE THAN $10,000, WE PROPERLY MAY NOT ADVISE YOU AUTHORITATIVELY ON THIS MATTER. HOWEVER, THE UNITED STATES COURT OF CLAIMS MAY HEAR, DETERMINE, AND RENDER JUDGMENT UPON CERTAIN CLAIMS AGAINST THE UNITED STATES. YOUR ATTENTION IS INVITED TO 28 U.S.C. 2501 WHICH PROVIDES THAT EVERY CLAIM OF WHICH THE COURT OF CLAIMS HAS JURISDICTION SHALL BE BARRED UNLESS THE PETITION THEREON IS FILED WITHIN SIX YEARS AFTER SUCH CLAIM FIRST ACCRUES.