B-149505, OCT. 4, 1962

B-149505: Oct 4, 1962

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CLARENCE CLARK: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 27. YOUR PRESENT LETTER WILL BE TREATED AS A REQUEST FOR REVIEW OF THAT SETTLEMENT. YOU WERE CONVICTED BY A SUMMARY COURT-MARTIAL OF ABSENCE WITHOUT LEAVE FROM JANUARY 3 TO JANUARY 13. WERE DRUNK AND DISORDERLY IN CAMP IN VIOLATION OF THE 96TH ARTICLE OF WAR. YOU WERE CONVICTED BY A GENERAL COURT MARTIAL OF ABSENCE WITHOUT LEAVE FROM APRIL 30. THE UNEXECUTED PORTION OF YOUR SENTENCE TO CONFINEMENT WAS REMITTED AND YOU WERE RELEASED FROM CONFINEMENT AND RESTORED TO DUTY NOVEMBER 28. YOU BELIEVE THAT BECAUSE OF MEDICAL REASONS WHICH YOU SAY WERE PROVEN. YOU WERE ENTITLED AT THE TIME OF YOUR DISCHARGE ON DECEMBER 23. THE CHARGE OF DESERTION BEFORE A COURT-MARTIAL IS PRIMARILY OF A CRIMINAL NATURE.

B-149505, OCT. 4, 1962

TO MR. CLARENCE CLARK:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 27, 1962, RELATIVE TO YOUR CLAIM FOR BACK PAY AND AN ALLOTMENT FOR YOUR MOTHER INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY. SINCE OUR CLAIMS DIVISION BY SETTLEMENT DATED JULY 21, 1954, CLAIM NO. Z 934813, DISALLOWED YOUR CLAIM FOR BACK PAY AND ADVISED YOU THAT ANY REQUEST FOR INFORMATION RELATIVE TO FAMILY ALLOWANCE SHOULD BE ADDRESSED TO THE U.S. ARMY FINANCE CENTER, YOUR PRESENT LETTER WILL BE TREATED AS A REQUEST FOR REVIEW OF THAT SETTLEMENT.

THE RECORDS SHOW THAT YOU LOST TIME UNDER THE 107TH ARTICLE OF WAR AS FOLLOWS: ABSENT WITHOUT LEAVE FROM JANUARY 3 TO JANUARY 12, 1943; IN CONFINEMENT FROM JANUARY 21 TO MARCH 5, 1943; ABSENT WITHOUT LEAVE FROM MARCH 15 TO MARCH 16, 1943, MARCH 26 TO MARCH 30, 1943, APRIL 2 TO APRIL 25, 1943, APRIL 30, 1943, TO APRIL 10, 1944; AND IN CONFINEMENT FROM APRIL 11 TO NOVEMBER 27, 1944, ALL DATES INCLUSIVE. YOU WERE CONVICTED BY A SUMMARY COURT-MARTIAL OF ABSENCE WITHOUT LEAVE FROM JANUARY 3 TO JANUARY 13, 1943, IN VIOLATION OF THE 61ST ARTICLE OF WAR; YOU BEHAVED DISRESPECTFULLY TOWARD A COMMISSIONED OFFICER IN VIOLATION OF THE 63D ARTICLE OF WAR; WERE DRUNK AND DISORDERLY IN CAMP IN VIOLATION OF THE 96TH ARTICLE OF WAR; AND SENTENCED, AS APPROVED FEBRUARY 5, 1943, TO BE CONFINED AT HARD LABOR FOR 29 DAYS AND TO FORFEIT $25 OF YOUR PAY. YOU WERE CONVICTED BY A GENERAL COURT MARTIAL OF ABSENCE WITHOUT LEAVE FROM APRIL 30, 1943, TO APRIL 11, 1944, IN VIOLATION OF THE 61ST ARTICLE OF WAR AND SENTENCED, AS APPROVED JUNE 30, 1944, TO BE DISHONORABLY DISCHARGED, TO FORFEIT ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE, AND TO BE CONFINED AT HARD LABOR FOR FIVE YEARS, WITH THAT PORTION OF THE SENTENCE RELATING TO DISHONORABLE DISCHARGE TO BE SUSPENDED UNTIL YOUR RELEASE FROM CONFINEMENT. THE UNEXECUTED PORTION OF YOUR SENTENCE TO CONFINEMENT WAS REMITTED AND YOU WERE RELEASED FROM CONFINEMENT AND RESTORED TO DUTY NOVEMBER 28, 1944. YOU BELIEVE THAT BECAUSE OF MEDICAL REASONS WHICH YOU SAY WERE PROVEN, YOU WERE ENTITLED AT THE TIME OF YOUR DISCHARGE ON DECEMBER 23, 1944, TO ARREARS OF PAY FOR THE 652 DAYS LOST.

THE CHARGE OF DESERTION BEFORE A COURT-MARTIAL IS PRIMARILY OF A CRIMINAL NATURE. A CLAIM FOR PAY, HOWEVER, IS OF A CIVIL NATURE AND WHILE THE CIRCUMSTANCES SURROUNDING YOUR UNAUTHORIZED ABSENCES WERE SUCH THAT PART OF YOUR SENTENCE TO CONFINEMENT WAS REMITTED AND YOU WERE RESTORED TO DUTY, THAT FACT DOES NOT IN ANY WAY CHANGE THE FACT THAT YOU WERE ABSENT WITHOUT LEAVE DURING CERTAIN PERIODS WHILE YOU WERE IN THE SERVICE.

PRIOR TO THE ENACTMENT OF SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, IT CONSISTENTLY WAS HELD THAT A MAN ENLISTING IN THE ARMY CONTRACTS FOR HONEST AND FAITHFUL SERVICE AND THE RENDITION OF SUCH SERVICE IS AN ESSENTIAL PRECEDENT TO HIS RIGHT TO BE PAID. THE CONTRACT OF ENLISTMENT IS AN ENTIRELY AND, IF SERVICE FOR ANY PORTION OF THE TIME IS OMITTED WITHOUT AUTHORITY, THE PAY OR ALLOWANCES FOR HONEST AND FAITHFUL SERVICE ARE NOT EARNED. COMPARE UNITED STATES V. LANDERS, 92 U.S. 77, 79. IT WAS HELD IN 27 COMP. DEC. 675, QUOTING FROM THE SYLLABUS, THAT---

"WHERE AN ENLISTED MAN OF THE ARMY CHARGED WITH DESERTION IS FOUND BY A COURT-MARTIAL NOT GUILTY * * * WITHOUT * * * FINDING HIM EITHER SPECIFICALLY OR BY INFERENCE GUILTY OF THE LESSER OFFENSE OF ABSENCE WITHOUT LEAVE, HIS CIVIL OR CONTRACTUAL OBLIGATION IS STILL OPEN TO ADMINISTRATIVE DETERMINATION, AND IF IT BE ADMINISTRATIVELY DETERMINED THAT HE WAS ABSENT WITHOUT LEAVE HE SHOULD LOSE PAY FOR THE PERIOD OF UNAUTHORIZED ABSENCE * * *.'

ALSO SEE 29 COMP. GEN. 339. PAY FOR THE PERIOD OF ABSENCE IS NOT PAID BECAUSE IT HAS NOT BEEN EARNED; IT IS NOT WITHHELD AS A FORFEITURE OR PENALTY FOR THE ABSENCE.

ACCORDINGLY, THE SETTLEMENT DISALLOWING YOUR CLAIM FOR PAY DURING THE PERIODS OF YOUR UNAUTHORIZED ABSENCES WAS CORRECT AND UPON REVIEW MUST BE SUSTAINED.

WITH REGARD TO YOUR CLAIM FOR AN ALLOTMENT FOR YOUR MOTHER DURING THE PERIOD INVOLVED, THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 37 U.S.C. 203 (1946 ED.), IN EFFECT AT THE TIME INVOLVED, PROVIDED THAT A MONTHLY FAMILY ALLOWANCE SHALL BE GRANTED AND PAID BY THE UNITED STATES TO THE CLASS B OR B-1 DEPENDENT OR DEPENDENTS (PARENTS, BROTHERS AND SISTERS), OF ANY ELIGIBLE ENLISTED MAN UPON WRITTEN APPLICATION TO THE DEPARTMENT CONCERNED MADE BY SUCH ENLISTED MAN OR MADE BY OR ON BEHALF OF SUCH DEPENDENT OR DEPENDENTS IN ANY CASE IN WHICH THE SECRETARY OF THE DEPARTMENT CONCERNED FINDS THAT IT IS IMPRACTICABLE FOR SUCH ENLISTED MAN TO REQUEST THE PAYMENT OF SUCH ALLOWANCE. SECTION 211 THEREOF PROVIDED THAT ADMINISTRATION OF THE SAID STATUTORY PROVISION IS VESTED IN THE SECRETARY OF WAR IN ITS APPLICATION TO ENLISTED MEN OF THE ARMY AND THE DEPENDENTS OF SUCH ENLISTED MEN, WITH AUTHORITY GRANTED TO THE SECRETARY TO PRESCRIBE REGULATIONS AND TO DELEGATE TO OFFICERS AND EMPLOYEES OF THE DEPARTMENT ANY OF HIS FUNCTIONS UNDER THE ACT. SECTION 212 PROVIDED THAT THE DETERMINATION OF ALL FACTS INCLUDING THE FACT OF DEPENDENCY WHICH IT SHALL BE NECESSARY TO DETERMINE IN THE ADMINISTRATION OF THE SAID ACT IS TO BE MADE BY THE SECRETARY OF THE DEPARTMENT CONCERNED, AND THAT SUCH DETERMINATION SHALL BE FINAL AND CONCLUSIVE FOR ALL PURPOSES AND SHALL NOT BE SUBJECT TO REVIEW IN ANY COURT OR BY ANY ACCOUNTING OFFICER OF THE GOVERNMENT.

THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, WAS REPEALED BY SECTION 515 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, EXCEPT AS TO THOSE SERVICE MEMBERS ON ACTIVE DUTY WHO WERE IN RECEIPT OF THE FAMILY ALLOWANCE BENEFIT. UPON THE REPEAL OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, NO FURTHER APPLICATIONS COULD BE ACCEPTED, EITHER FROM THE ENLISTED MEMBER, OR FROM THE DEPENDENT. THE APPLICATIONS THAT WERE FILED PRIOR TO OCTOBER 1, 1949 (EFFECTIVE DATE OF THE REPEAL), AND NOT ACTED UPON, WERE PERMITTED TO BE PROCESSED TO CONCLUSION BY SECTION 13 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 797.

DETERMINATIONS OF DEPENDENCY AND AUTHORIZATION OF PAYMENT OF THE FAMILY ALLOWANCE UNDER THE SERVICEMAN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, CAN NOW BE MADE ONLY ON APPLICATIONS WHICH HAD BEEN FILED PRIOR TO OCTOBER 1, 1949. THEREFORE, SINCE THE RECORD DOES NOT SHOW THAT AN APPLICATION WAS FILED BY YOUR MOTHER IN HER BEHALF AT ANY TIME PRIOR TO THE REPEAL OF THE ACT AUTHORIZING THE FAMILY ALLOWANCE, THERE IS NO ACTION THAT CAN BE TAKEN IN THE MATTER BY OUR OFFICE.