B-159924, OCT. 13, 1966

B-159924: Oct 13, 1966

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MELTON: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 12. YOU SAY YOU HESITATE TO SETTLE YOUR INDEBTEDNESS SINCE YOU FEEL THAT YOU ARE ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD FROM FEBRUARY 23 TO DECEMBER 20. A CLAIM FOR WHICH WAS DISALLOWED BY SETTLEMENT OF OUR OFFICE DATED JANUARY 26. WE WILL CONSIDER YOUR LETTER AS A REQUEST FOR REVIEW OF THE SETTLEMENT. YOU WERE ARRESTED BY THE JAPANESE CIVIL AUTHORITIES FOR VIOLATION OF THE NARCOTIC CONTROL LAW AND YOU WERE RELEASED TO THE CUSTODY OF THE UNITED STATES MILITARY AUTHORITIES ON THE SAME DAY. YOU WERE PLACED IN MILITARY CONFINEMENT. MILITARY AUTHORITIES THAT THEY WERE EXERCISING JURISDICTION OVER YOUR CASE AND YOU WERE INDICTED BY THEM ON FEBRUARY 26.

B-159924, OCT. 13, 1966

TO RAYMON E. MELTON:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 12, 1966, IN RESPONSE TO OUR REQUEST THAT YOU LIQUIDATE YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $156. YOU SAY YOU HESITATE TO SETTLE YOUR INDEBTEDNESS SINCE YOU FEEL THAT YOU ARE ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD FROM FEBRUARY 23 TO DECEMBER 20, 1962, AS AN ENLISTED MEMBER, REGULAR ARMY, A CLAIM FOR WHICH WAS DISALLOWED BY SETTLEMENT OF OUR OFFICE DATED JANUARY 26, 1965. WE WILL CONSIDER YOUR LETTER AS A REQUEST FOR REVIEW OF THE SETTLEMENT.

IN A LETTER DATED JULY 26, 1964, YOU RELATED THAT ON JANUARY 26, 1962, YOU WERE ARRESTED BY THE JAPANESE CIVIL AUTHORITIES FOR VIOLATION OF THE NARCOTIC CONTROL LAW AND YOU WERE RELEASED TO THE CUSTODY OF THE UNITED STATES MILITARY AUTHORITIES ON THE SAME DAY. ON JANUARY 30, 1962, YOU WERE PLACED IN MILITARY CONFINEMENT. YOU SAID THAT ON FEBRUARY 23, 1962, THE JAPANESE CIVIL AUTHORITIES NOTIFIED THE U.S. MILITARY AUTHORITIES THAT THEY WERE EXERCISING JURISDICTION OVER YOUR CASE AND YOU WERE INDICTED BY THEM ON FEBRUARY 26, 1962.

YOU REMAINED IN THE CUSTODY OF THE UNITED STATES MILITARY AUTHORITIES UNTIL DECEMBER 20, 1962, AT WHICH TIME YOU WERE RELEASED TO THE JAPANESE CIVIL AUTHORITIES PURSUANT TO LETTER DATED DECEMBER 14, 1962, TO YOUR COMMANDING OFFICER. THE LETTER NOTIFIED HIM OF THE DECISION OF THE TOKYO HIGH COURT DATED NOVEMBER 28, 1962, WHICH UPHELD THE JUDGMENT OF THE YOKOHOMA DISTRICT COURT, WHICH HAD FOUND YOU GUILTY AND HAD SENTENCED YOU TO CONFINEMENT FOR 5 YEARS. THE LETTER STATES FURTHER THAT COURT-MARTIAL CHARGES DATED FEBRUARY 6, 1962, BASED ON THE SAME OFFENSE, WERE DISMISSED AND YOU WERE TO BE RETAINED IN THAT COMMAND UNTIL DELIVERED TO THE JAPANESE AUTHORITIES UPON THEIR REQUEST, TO SERVE THE SENTENCE.

IN THE LETTER OF JULY 26, 1964, YOU CLAIMED ENTITLEMENT TO PAY AND ALLOWANCES FOR THE PERIOD FROM FEBRUARY 23 TO DECEMBER 20, 1962, CONTENDING THAT WHEN ON FEBRUARY 23, 1962, THE JAPANESE AUTHORITIES INFORMED THE UNITED STATES AUTHORITIES THAT THEY WERE EXERCISING JURISDICTION IN YOUR CASE THE UNITED STATES MILITARY AUTHORITIES HAD NO FURTHER JURISDICTION, BUT ERRONEOUSLY CONTINUED TO HOLD YOU IN MILITARY CONFINEMENT UNDER AUTHORITY OF THE UNIFORM CODE OF MILITARY JUSTICE WITH NO INTENTION OF TRYING YOU BY COURT MARTIAL. YOU EXPRESSED THE OPINION THAT YOUR PRETRIAL CONFINEMENT COULD HAVE BEEN AVOIDED IF YOU HAD BEEN GIVEN AN OPPORTUNITY TO BE RELEASED ON BAIL BY THE JAPANESE COURT UNDER THE AGREED MINUTES TO PARAGRAPH 9, ARTICLE 17, OF THE STATUS OF FORCES AGREEMENT, BUT YOUR CONFINEMENT UNDER AUTHORITY OF THE UNIFORM CODE OF MILITARY JUSTICE ON THE SAME CHARGE PRECLUDED YOU FROM SECURING RELEASE ON BAIL.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED JANUARY 26, 1965, ON THE BASIS OF OUR DECISION OF AUGUST 28, 1956, 36 COMP. GEN. 173. IN YOUR LETTER DATED APRIL 12, 1966, YOU RESTATED THE CONTENTIONS MADE IN YOUR PREVIOUS LETTER. YOU ALSO CONTEND THAT IT IS UNFAIR THAT A MEMBER ORDERED TO PRE-TRIAL CONFINEMENT PENDING TRIAL BY JAPANESE AUTHORITIES IS CONSIDERED TO BE IN AN ABSENT-WITHOUT-LEAVE STATUS AND NOT ENTITLED TO PAY AND ALLOWANCES, WHEREAS OTHER MILITARY PERSONNEL SERVING A SENTENCE BY COURT-MARTIAL PENDING TRIAL BY JAPANESE AUTHORITIES ARE NOT CONSIDERED TO BE IN AN ABSENT-WITHOUT-LEAVE STATUS AND THEREFORE THE TIME SPENT BY THEM IN CONFINEMENT IS CREDITED TO THEIR SENTENCE AND THEY MAY EVEN RECEIVE A PORTION OF THEIR PAY.

PARAGRAPH 1-98/A) (1), ARMY REGULATIONS 37-104, CHANGE 38, DATED APRIL 16, 1961, IN EFFECT AT THE TIME UNDER CONSIDERATION, PROVIDED IN PERTINENT PART THAT A MEMBER WHO IS CHARGED WITH A CIVIL OFFENSE AND HELD IN CONFINEMENT UNDER MILITARY JURISDICTION AT THE REQUEST OF CIVIL AUTHORITIES UNTIL SUCH TIME AS HIS CUSTODY IS REQUESTED BY CIVIL AUTHORITIES, IS ABSENT OR CONSTRUCTIVELY ABSENT FROM DUTY, EXCEPT FOR THE PART OF THE PERIOD OF CONFINEMENT COVERED BY A GRANT OF AUTHORIZED LEAVE. IT PROVIDES FURTHER THAT AFTER THE RESULTS OF THE TRIAL ARE KNOWN, ENTRIES IN THE MEMBER'S PAY ACCOUNT SHOULD BE MADE, IF APPROPRIATE, THAT THE ABSENCE HAS BEEN EXCUSED AS UNAVOIDABLE, AND IN THE ABSENCE OF SUCH ENTRIES PAYMENT FOR THE PERIOD OF ABSENCE MAY NOT BE MADE REGARDLESS OF THE OUTCOME OF THE CIVIL PROCEEDINGS. SUBPARAGRAPH B OF THOSE REGULATIONS PROVIDES THAT A MEMBER ON FOREIGN DUTY, WHO IS HELD IN CONFINEMENT BY THE MILITARY AUTHORITIES PRIOR TO THE TIME THE FOREIGN CIVIL AUTHORITIES EXERCISE JURISDICTION (BY CHARGE, INDICTMENT OR OTHERWISE) UNDER THE TERMS OF A TREATY OR EXECUTIVE AGREEMENT WITH THE UNITED STATES IS ENTITLED TO OTHERWISE PROPER CREDIT OF PAY AND ALLOWANCES UNTIL THE DATE JURISDICTION IS SO EXERCISED.

UNDER THE PROVISIONS OF PARAGRAPH 1-98, ARMY REGULATIONS 37-104 AND IN ACCORDANCE WITH 36 COMP. GEN. 173, PAY AND ALLOWANCES WERE NOT CREDITED TO YOU FOR THE PORTION OF YOUR PRE-TRIAL CONFINEMENT COMMENCING FEBRUARY 23, 1962, THE DAY THE JAPANESE CIVIL AUTHORITIES EXERCISED JURISDICTION IN YOUR CASE. AS INDICATED IN 36 COMP. GEN. 173, A MEMBER WHO IS HELD IN CONFINEMENT BY THE UNITED STATES MILITARY AUTHORITIES PENDING RELEASE TO THE JAPANESE UPON THEIR REQUEST, AND WHO LATER IS TRIED AND CONVICTED BY A JAPANESE CIVIL COURT, IS TO BE REGARDED AS IN A CONSTRUCTIVE ABSENT WITHOUT LEAVE STATUS DURING THE PERIOD OF PRE-TRIAL CONFINEMENT FROM THE DATE THE JAPANESE AUTHORITIES EXERCISED JURISDICTION AND IS NOT ENTITLED TO PAY FOR SUCH PERIOD NOTWITHSTANDING THE FACT THAT CHARGES WERE ALSO PREFERRED UNDER THE UNIFORM CODE OF MILITARY JUSTICE. UNDER THOSE CIRCUMSTANCES THE MEMBER WOULD NOT BE ENTITLED TO PAY FOR SUCH PERIOD UNLESS, PURSUANT TO THE PERTINENT PROVISIONS OF THE LEAVE LAW, 37 U.S.C. 503 (A), HIS ABSENCE IS EXCUSED AS UNAVOIDABLE.

YOU DID NOT PERFORM REQUIRED DUTIES WITH YOUR REGULARLY ASSIGNED UNIT, BUT WERE PLACED IN A PRE-TRIAL CONFINEMENT FACILITY AND WERE LATER INDICTED AND CONVICTED BY JAPANESE CIVIL AUTHORITIES. AND THE RECORD DOES NOT INDICATE THAT YOUR CONSTRUCTIVE ABSENCE WITHOUT LEAVE FROM YOUR ASSIGNED UNIT WAS EXCUSED BY PROPER AUTHORITY AS UNAVOIDABLE. ACCORDINGLY, ON THE RECORD BEFORE US YOUR ARE NOT ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD CLAIMED WHILE IN PRE TRIAL CONFINEMENT.

WITH RESPECT TO YOUR CONTENTION THAT THE JAPANESE ASSUMED JURISDICTION ON FEBRUARY 23, 1962, AND THAT YOU WERE THEREAFTER ILLEGALLY HELD BY THE UNITED STATES MILITARY AUTHORITIES, YOUR CONFINEMENT APPARENTLY WAS IN ACCORDANCE WITH THE POLICY STATED IN A LETTER BY THE JUDGE ADVOCATE GENERAL OF THE NAVY AS QUOTED IN 36 COMP. GEN. 173, TO KEEP UNITED STATES MILITARY PERSONNEL OUT OF FOREIGN JAILS WHENEVER POSSIBLE, BUT HE SAID THE ACCUSED IN EACH CASE MUST BE REGARDED AS HAVING BEEN HELD FOR THE FOREIGN AUTHORITIES AND THEY COULD REQUEST THE TRANSFER OF SUCH PRISONERS TO THEIR CUSTODY AT ANY TIME. THE RECORD INDICATES THAT THE JAPANESE AUTHORITIES DID NOT REQUEST YOUR TRANSFER UNTIL AFTER YOUR TRIAL AND CONVICTION AND THAT YOUR PRE TRIAL CONFINEMENT WAS IN ACCORDANCE WITH THE AGREEMENT WITH JAPAN.

WHILE THE PROCEDURE UNDER WHICH YOU WERE HELD IN CUSTODY MAY HAVE LIMITED THE OPPORTUNITY YOU WOULD HAVE HAD TO SEEK RELEASE ON BAIL IF YOU HAD BEEN TRANSFERRED TO THE CUSTODY OF JAPANESE OFFICIALS FOR PRE TRIAL CONFINEMENT, SUCH FACT AFFORDS NO BASIS TO ALLOW PAY FOR THE PERIOD INVOLVED DURING WHICH YOU ACTUALLY WERE IN CONFINEMENT UNDER THE AGREED PROCEDURE.

AS TO YOUR ALLEGATION OF UNFAIR TREATMENT AND YOUR STATEMENT THAT OTHER MEMBERS IN SIMILAR CONFINEMENT WERE PAID, IT MAY BE STATED THAT YOUR RIGHTS AND THE RIGHTS OF OTHERS SIMILARLY CONFINED IS A MATTER FOR DETERMINATION ON THE BASIS OF THE FACTS IN EACH CASE. YOUR CONFINEMENT WAS ONLY ONE FACTOR FOR CONSIDERATION IN DETERMINING YOUR PAY RIGHTS FOR THE PERIOD CLAIMED. IN THE CASES OF THE MEMBERS WHOM YOU SAY RECEIVED PAY DURING CONFINEMENT, THERE MAY HAVE BEEN FACTORS FOR CONSIDERATION THAT WERE NOT PRESENT IN YOUR CASE. IF, HOWEVER, PAYMENT WAS MADE IN A CASE NOT FACTUALLY DISTINGUISHABLE FROM YOURS, SUCH ERRONEOUS ACTION WOULD NOT, OF COURSE, PROVIDE AN AUTHORIZED BASIS FOR MAKING A SIMILAR PAYMENT TO YOU.

ACCORDINGLY, THE SETTLEMENT OF JANUARY 26, 1965, WAS CORRECT AND IS SUSTAINED. IT IS THEREFORE REQUESTED THAT YOU MAKE PAYMENT PROMPTLY TO LIQUIDATE YOUR INDEBTEDNESS OF $156. PAYMENT SHOULD BE MADE BY CHECK OR MONEY ORDER PAYABLE TO THE "UNITED STATES GENERAL ACCOUNTING OFFICE" AND FORWARD TO THE U.S. GENERAL ACCOUNTING OFFICE, POST OFFICE BOX 2610, WASHINGTON, D.C. 20013.