B-150544, MAR. 7, 1963

B-150544, MAR. 7, 1963

TO THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY:

THERE IS FORWARDED HEREWITH A LETTER DATED JANUARY 10, 1963, FROM THE CLAIMS DIVISION, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, ENCLOSING A LETTER DATED DECEMBER 20, 1962, FROM HEADQUARTERS, 97TH GENERAL HOSPITAL, APO 757, NEW YORK, NEW YORK, WHICH REQUESTS A DD FORM 139 (PAY ADJUSTMENT AUTHORIZATION) FOR MASTER SERGEANT E-7 PAUL W. HARDY, RA 6 552 255, BASED ON PAY RESTORATION PROVISIONS CONTAINED IN GENERAL COURT-MARTIAL ORDER NO. 63, DATED DECEMBER 11, 1962, HEADQUARTERS, NORTHERN AREA COMMAND, U.S. FORCES, APO 757. THE REQUEST WAS FORWARDED TO THIS OFFICE BECAUSE THERE WAS UNDER CONSIDERATION HERE THE MEMBER'S CLAIM FOR PAY AND ALLOWANCES WHICH WERE CREDITED TO HIS ACCOUNT DURING THE PERIOD PRIOR TO APPROVAL OF HIS COURT-MARTIAL SENTENCE AND APPLIED AGAINST THE SUM OF $16,350 FOR WHICH HE WAS HELD PECUNIARILY LIABLE. CM 401400, UNITED STATES V. HARDY; 28 CMR 554; 29 CMR 337 AND 31 CMR 99. FURTHER, PERMISSION IS REQUESTED BY THE HOSPITAL TO STOP COLLECTION ACTION IN THE CASE.

MASTER SERGEANT PAUL W. HARDY WAS TRIED BY GENERAL COURT-MARTIAL AT FORT JAY, NEW YORK, FOR OFFENSES ARISING FROM HIS ACTIVITIES WHILE SERVING AS COMMISSARY STEWARD AT FORT JAY. HE WAS FOUND GUILTY AND ON SEPTEMBER 19, 1958, WAS SENTENCED TO DISHONORABLE DISCHARGE, FORFEITURE OF ALL PAY AND ALLOWANCES AND CONFINEMENT AT HARD LABOR FOR 5 YEARS. BY GENERAL COURT- MARTIAL ORDER NO. 6, DATED JANUARY 13, 1959, THE CONVENING AUTHORITY APPROVED THE SENTENCE AS ADJUDGED, MADE THE FORFEITURES EFFECTIVE AS OF/THE DATE OF HIS ACTION AND FORWARDED THE RECORD OF TRIAL TO THE JUDGE ADVOCATE GENERAL OF THE ARMY FOR REVIEW BY A BOARD OF REVIEW.

ON SEPTEMBER 25, 1959, THE BOARD OF REVIEW CONFIRMED THE FINDINGS AND SENTENCE AS APPROVED BY THE CONVENING AUTHORITY. 28 CMR 554. ON JUNE 17, 1960, THE UNITED STATES COURT OF MILITARY APPEALS RETURNED THE RECORD OF TRIAL TO THE BOARD OF REVIEW FOR FURTHER PROCEEDINGS RELATIVE TO CLAIMED IRREGULARITIES IN THE PREPARATION OF THE POST-TRIAL REVIEW. 29 CMR 337. ON JUNE 24, 1960, PURSUANT TO ORDER OF THE SECRETARY OF THE ARMY, COURT- MARTIAL ORDER NO. 425 WAS ISSUED BY HEADQUARTERS, FORT LEAVENWORTH, KANSAS, IN WHICH THE UNEXECUTED PORTION OF THE SENTENCE AS APPROVED BY THE CONVENING AUTHORITY AND AFFIRMED BY THE BOARD OF REVIEW ON SEPTEMBER 25, 1959, WAS SUSPENDED AND THE ACCUSED RESTORED TO DUTY. THIS ORDER FURTHER PROVIDED FOR THE REMISSION OF THE UNEXECUTED PORTION OF THE SENTENCE BY THE SECRETARY OF THE ARMY UPON PUBLICATION OF THE GENERAL COURT-MARTIAL ORDER PROMULGATING THE RESULT OF THE AFFIRMING ACTION.

ON MARCH 27, 1961, THE BOARD OF REVIEW RECONSIDERED ITS PRIOR DECISION IN THIS MATTER AS DIRECTED BY THE MANDATE OF THE UNITED STATES COURT OF MILITARY APPEALS AND AGAIN RENDERED A DECISION AFFIRMING THE APPROVED FINDINGS AND SENTENCE. ON NOVEMBER 17, 1961, THE UNITED STATES COURT OF MILITARY APPEALS RENDERED A FURTHER DECISION SETTING ASIDE THE DECISION OF THE BOARD OF REVIEW AND THE ACTION OF THE CONVENING AUTHORITY. 31 CMR 99. BY GCMO 271, HEADQUARTERS, FIRST UNITED STATES, ARMY, DECEMBER 22, 1961, THE ACTION OF THE INITIAL CONVENING AUTHORITY WAS WITHDRAWN AND GCMO 6, DATED JANUARY 13, 1959, WAS RESCINDED. THE RECORD OF TRIAL WAS REFERRED TO THE COMMANDING GENERAL, SECOND UNITED STATES ARMY, FOR A NEW POST TRIAL REVIEW AND CONVENING AUTHORITY'S ACTION.

A NEW POST-TRIAL REVIEW RESULTED IN THE CONVENING AUTHORITY APPROVING ON MARCH 16, 1962, ONLY SO MUCH OF THE SENTENCE AS PROVIDED FOR DISHONORABLE DISCHARGE, FORFEITURE OF ALL PAY AND ALLOWANCES AND CONFINEMENT AT HARD LABOR FOR 2 YEARS. HE FURTHER SUSPENDED THE EXECUTION OF THIS SENTENCE EFFECTIVE JUNE 24, 1960, UNTIL COMPLETION OF APPELLATE REVIEW, AT WHICH TIME, UNLESS THE SUSPENSION WOULD BE SOONER VACATED, THE SUSPENDED PORTION WAS TO BE REMITTED WITHOUT FURTHER ACTION (GCMO 4, HEADQUARTERS, SECOND UNITED STATES ARMY). THAT ACTION WAS AFFIRMED BY THE BOARD OF REVIEW ON MAY 24, 1962.

ON AUGUST 23, 1962, THE BOARD OF REVIEW DETERMINED THAT "NO FURTHER PUNISHMENT IS APPROPRIATE AND AFFIRMS NO PUNISHMENT AS THE APPROVED SENTENCE.' BY GOMO 63, HEADQUARTERS, NORTHERN AREA COMMAND, APO 757, DATED DECEMBER 11, 1962, NOTING THAT "ONLY THE FINDINGS OF GUILTY AS APPROVED BY THE CONVENING AUTHORITY HAVE BEEN AFFIRMED PURSUANT TO ARTICLE 66," AND THAT NO PUNISHMENT HAD BEEN AFFIRMED,"ALL RIGHTS, PRIVILEGES, AND PROPERTY OF WHICH THE ACCUSED HAS BEEN DEPRIVED BY VIRTUE OF THE SENTENCE IN THIS CASE" WERE RESTORED. SEE ARTICLE 75 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 875.

SINCE THE ORIGINAL SENTENCE TO FORFEITURES NEVER BECAME EXECUTED, MONIES WITHHELD UNDER THAT SENTENCE PENDING COMPLETION OF APPELLATE REVIEW WERE NOT EXECUTED FORFEITURES. SIMILARLY, THERE EXISTED NO APPROVED SENTENCE AND THE FINAL APPELLATE REVIEW ON AUGUST 23, 1962, AFFIRMED NO PUNISHMENT AS THE SENTENCE. THEREFORE NO REDUCTION IN GRADE WAS EFFECTED. COMPARE 39 COMP. GEN. 42. ACCORDINGLY, HARDY MUST BE CONSIDERED TO HAVE NEVER BEEN REDUCED IN RANK AND IS THEREFORE ENTITLED TO THE PAY AND ALLOWANCES OF A MASTER SERGEANT, E-7, FOR THE PERIOD OF THE CLAIM. A SETTLEMENT WILL BE STATED ACCORDINGLY.

FOR THE ABOVE REASONS PAY AND ALLOWANCES THAT ACCRUED TO SERGEANT HARDY DURING THE PERIOD INVOLVED (SEE ADMINISTRATIVE REPORT, FINCS-AF HARDY, PAUL W. RA 6 552 255 DATED AUGUST 2, 1962, FROM THE CLAIMS DIVISION, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS 49, INDIANA, COPY ENCLOSED) WILL BE APPLIED TO HIS DEBT AND A SETTLEMENT WILL BE STATED IN HIS FAVOR FOR ANY BALANCE REMAINING DUE HIM. THIS MATTER IS BROUGHT TO YOUR ATTENTION IN ORDER TO ENABLE YOUR OFFICE TO MAKE APPROPRIATE REPLY TO LETTER DATED DECEMBER 20, 1962, FROM HEADQUARTERS, 97TH GENERAL HOSPITAL.