B-162151, SEP. 1, 1967

B-162151, SEP. 1, 1967

ARMED SERVICES - PAY - CONFINEMENT PERIODS DECISION CONCERNING CLAIM OF MILITARY MEMBER FOR ACTIVE DUTY PAY FOR PERIOD OF CONFINEMENT AS RESULT OF COURT-MARTIAL ACTION AFTER NORMAL EXPIRATION OF TERM OF SERVICE. MEMBER OF THE UNIFORMED SERVICES WHO IS CONFINED AS RESULT OF COURT MARTIAL SENTENCE AFTER NORMAL EXPIRATION OF ENLISTMENT IS NOT ENTITLED TO PAY AND ALLOWANCES IN ABSENCE OF A RESTORATION TO DUTY. DECISION DISTINGUISHES MOSES, DICKENSON, GROSSO CASES

TO MR. FRED W. SHIELDS:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 23, 1967, FILING ON BEHALF OF SERGEANT THOMAS C. O-SUCH, JR., 154 95 00, USMC, A CLAIM FOR ACTIVE DUTY PAY AND ALLOWANCES COMMENCING ON OR ABOUT FEBRUARY 27, 1965, AND CONTINUING TO THE PRESENT TIME, A PERIOD WHILE IN MILITARY CONFINEMENT AS A RESULT OF COURT-MARTIAL ACTION SUBSEQUENT TO THE NORMAL EXPIRATION OF HIS TERM OF SERVICE.

THE RECORD SHOWS THAT SERGEANT O-SUCH WAS TRIED BY GENERAL COURT MARTIAL AT CAMP COURTNEY, OKINAWA, ON SEPTEMBER 15, 1964. THE COURT FOUND HIM GUILTY AS CHARGED AND SENTENCED HIM TO BE DISHONORABLY DISCHARGED FROM THE SERVICE, TO BE REDUCED TO PAY GRADE E-1, TO FORFEIT ALL PAY AND ALLOWANCES, AND TO BE CONFINED AT HARD LABOR FOR LIFE. ON FEBRUARY 27, 1965, THE CONVENING AUTHORITY APPROVED THE SENTENCE WITHOUT CHANGE. MARCH 10, 1967, THE UNITED STATES COURT OF MILITARY APPEALS IN THE CASE OF O-SUCH (UNITED STATES V. O-SUCH, 16 USCMA 537, 37 CMR 157) SET ASIDE THE FINDINGS OF GUILT AND REVERSED THE DECISION OF THE BOARD OF REVIEW IN THIS CASE. THE COURT'S DECISION ADDED THAT A REHEARING MAY BE ORDERED.

IN FILING SERGEANT O-SUCH'S CLAIM YOU QUOTE FROM A COURT-MARTIAL ORDER DATED APRIL 6, 1967, ISSUED BY THE CONVENING AUTHORITY FOR O SUCH'S CASE WHICH READS AS FOLLOWS: "-IN THE GENERAL COURT-MARTIAL CASE OF SERGEANT THOMAS C. O-SUCH, U.S. MARINE CORPS, THE APPROVED FINDINGS OF GUILTY AND THE SENTENCE AS PROMULGATED BY GENERAL COURT MARTIAL ORDER 7-65 ON 27 FEBRUARY 1965 THIS HEADQUARTERS WERE ON 10 MARCH 1967 SET ASIDE BY THE UNITED STATES COURT OF MILITARY APPEALS. ALL RIGHTS PRIVILEGES AND PROPERTY OF WHICH THE ACCUSED HAS BEEN DEPRIVED BY VIRTUE OF THE FINDINGS OF GUILTY AND THE SENTENCE SO SET ASIDE WILL BE RESTORED. A REHEARING IS ORDERED BEFORE ANOTHER COURT MARTIAL TO BE HEREAFTER DESIGNATED. IT IS ADMINISTRATIVELY REPORTED THAT A REHEARING IN SERGEANT O-SUCH'S CASE HAS BEEN ORDERED BUT INFORMATION AS TO THE DATE OF TRIAL IS NOT NOW AVAILABLE.

THE RECORD FURTHER SHOWS THAT SERGEANT O-SUCH'S ENLISTMENT EXPIRED ON JANUARY 23, 1965, WHILE IN CONFINEMENT AS A RESULT OF THE COURT MARTIAL SENTENCE ADJUDGED SEPTEMBER 15, 1964. IT APPEARS THAT SERGEANT O-SUCH'S CLAIM FOR PAY AND ALLOWANCES WAS ADMINISTRATIVELY DENIED BY THE MARINE CORPS ON THE BASIS OF THE PROVISIONS OF PARAGRAPH 044204-4 OF THE NAVY CONTROLLER MANUAL, IN EFFECT AT THE TIME HERE INVOLVED, WHICH, IN SUBSTANCE, PRECLUDED THE PAYMENT OF PAY AND ALLOWANCES TO A MEMBER WHOSE TERM OF ENLISTMENT EXPIRES WHILE IN CONFINEMENT AWAITING COURT-MARTIAL ACTION GENERALLY AND WHO IS NOT ACQUITTED OR RESTORED TO DUTY.

THE MARINE CORPS REPORTS THAT SERGEANT O-SUCH'S PAY RECORDS SHOW THAT HE WAS ERRONEOUSLY CREDITED PAY AND ALLOWANCES THROUGH FEBRUARY 26, 1965 (THE DAY PRIOR TO THE DATE OF THE CONVENING AUTHORITY'S APPROVAL), INSTEAD OF THROUGH JANUARY 23, 1965 (THE DATE OF EXPIRATION OF HIS ENLISTMENT), AND THAT A PAY ADJUSTMENT AUTHORIZATION HAS BEEN ISSUED DEBITING HIS ACCOUNT WITH THE OVERCREDIT. IT IS FURTHER REPORTED THAT SERGEANT O-SUCH'S PRESENT STATUS IS "DETAINED IN SERVICE AWAITING A REHEARING.'

IN SUPPORT OF SERGEANT O-SUCH'S CLAIM YOU CITE THE DECISION IN THE CASE OF DICKENSON V. UNITED STATES, 163 CT. CL. 512 (1963), WHICH YOU SAY IS SUBSTANTIALLY THE SAME SITUATION AS INVOLVED HERE. ALSO, YOU RELY ON THE CASE OF GROSSO V. UNITED STATES, CT. CL. NO. 457-61, WHEREIN THE COURT OF CLAIMS ENTERED JUDGMENT ON JUNE 19, 1964, IN THE PLAINTIFF'S FAVOR ON THE BASIS OF A STIPULATION BETWEEN THE PLAINTIFF AND DEFENDANT. IN THE LIGHT OF THOSE CASES AND ARTICLE 57A OF THE UNIFORM CODE OF MILITARY JUSTICE IT IS YOUR VIEW THAT THE CLAIMANT IS ENTITLED TO RECOVER THE PAY AND ALLOWANCES WHICH HAVE BEEN WITHHELD FROM HIM SINCE FEBRUARY 27, 1965.

IT LONG HAS BEEN THE RULE THAT PAY AND ALLOWANCES OF AN ENLISTED PERSON, WHOSE TERM OF ENLISTMENT EXPIRES WHILE IN CONFINEMENT AWAITING TRIAL BY COURT-MARTIAL, TERMINATES ON THE DATE OF THE EXPIRATION OF HIS TERM OF ENLISTMENT. SUCH PAY AND ALLOWANCES ARE NOT VIEWED AS ACCRUING TO THE MEMBER WHILE SUBJECT TO MILITARY CONTROL AND IN CONFINEMENT AFTER THE EXPIRATION OF HIS ENLISTMENT UNLESS HE IS ACQUITTED AND, THEREFORE, CONSIDERED TO HAVE BEEN HELD FOR THE CONVENIENCE OF THE GOVERNMENT. COMP. GEN. 342; 17 ID. 103; 30 ID. 449; 33 ID. 281; 34 ID. 390; 37 ID. 228; MOSES V. UNITED STATES, 137 CT. CL. 374 (1957). SPEAKING OF THIS RULE, WE SAID IN 37 COMP. GEN. 228, AT PAGE 230:

"* * * THIS RULE IS SUBJECT TO MODIFICATION IN THOSE CASES WHERE AN ENLISTED MAN, SENTENCED BY A COURT-MARTIAL TO DISHONORABLE OR BAD CONDUCT DISCHARGE, AND WHO IS RETAINED IN THE SERVICE AFTER THE EXPIRATION OF HIS ENLISTMENT, IS RELEASED FROM CONFINEMENT AND RESTORED TO DUTY PENDING COMPLETION OF APPELLATE REVIEW.- IN THE LATTER CASE THE ENLISTED MAN IS ENTITLED TO PAY AND ALLOWANCES WHILE PERFORMING DUTY AFTER RESTORATION TO DUTY, EVEN THOUGH, UPON APPELLATE REVIEW, THE SENTENCE OF DISHONORABLE OR BAD CONDUCT DISCHARGE IS ORDERED EXECUTED. 33 COMP. GEN. 281;, ARTICLE 57 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 857, PROVIDES THAT THE SENTENCE TO FORFEITURE OF PAY AND ALLOWANCES MAY APPLY TO PAY AND ALLOWANCES BECOMING DUE ON OR AFTER THE DATE OF SENTENCE IS APPROVED BY THE CONVENING AUTHORITY. "NO FORFEITURE MAY EXTEND TO ANY PAY OR ALLOWANCES ACCRUED BEFORE THAT DATE.'

WE HAVE RECOGNIZED ENTITLEMENT TO PAY AND ALLOWANCES WHERE THE APPROVED SENTENCE WAS SUBSEQUENTLY SET ASIDE BY THE COURT OF MILITARY APPEALS AND A REHEARING ORDERED. SEE 43 COMP. GEN. 645. IN THAT DECISION WE CONSIDERED THE CASE OF AN ENLISTED MAN WHOSE GENERAL COURT MARTIAL SENTENCE AS APPROVED ON JULY 22, 1960, WAS SET ASIDE ON DECEMBER 22, 1961, BY THE COURT OF MILITARY APPEALS AND A REHEARING ORDERED. UPON REHEARING, GENERAL COURT-MARTIAL ORDER DATED MAY 4, 1962, SENTENCED THE MEMBER TO A LESSER PUNISHMENT. IN HOLDING THAT THE MEMBER WAS ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD JULY 22, 1960, TO MAY 3, 1962, WE SAID THAT SINCE THE ORIGINAL SENTENCE WAS SET ASIDE BY THE COURT OF MILITARY APPEALS, NO FORFEITURE EVER BECAME EFFECTIVE AND HENCE THERE EXISTED NO BASIS FOR WITHHOLDING PAY AND ALLOWANCES PURSUANT TO THAT SENTENCE. THERE IS FOR NOTING, HOWEVER, THAT THE FACTS IN THAT CASE DID NOT INVOLVE CONFINEMENT BEYOND THE EXPIRATION OF TERM OF SERVICE.

IN ANOTHER CASE WHERE THE COURT OF MILITARY APPEALS HELD THAT THE CONVENING AUTHORITY ERRED IN ITS CONSIDERATION OF THE GENERAL COURT MARTIAL SENTENCE, SET THAT ACTION ASIDE, AND DIRECTED THAT THE CASE BE RETURNED TO THE CONVENING AUTHORITY FOR CONSIDERATION, WE HELD IN 39 COMP. GEN. 42, AT PAGE 45, IN ANSWER TO QUESTION 2, THAT THE MEMBER WAS NOT ENTITLED TO ANY PAY AND ALLOWANCES FOR THE PERIOD OF HIS CONFINEMENT SUBSEQUENT TO THE NORMAL DATE OF EXPIRATION OF HIS TERM OF SERVICE, THAT IS, FROM JUNE 19, 1957, THE DAY FOLLOWING EXPIRATION OF TERM OF SERVICE, TO MARCH 28, 1958, THE DAY PRECEDING THE DATE HE WAS RESTORED TO DUTY.

IN THE CASE OF MOSES V. UNITED STATES, CITED ABOVE, INVOLVING A MAN HELD AFTER EXPIRATION OF ENLISTMENT TO FACE COURT-MARTIAL CHARGES, THE COURT REJECTED THE PLAINTIFF'S CONTENTION THAT DURING PERIOD OF RETENTION AFTER A NORMAL DATE OF EXPIRATION OF ENLISTMENT, HE CONTINUED TO BE A MEMBER OF THE ARMY UNTIL LEGALLY DISCHARGED AND THUS WAS ENTITLED TO PAY. THE COURT THEREIN APPLIED OUR DECISION, 30 COMP. GEN. 449, WITHOUT QUALIFICATION, HOLDING THAT WHEN AN ENLISTED PERSON IS IN CONFINEMENT AWAITING TRIAL AT THE TIME HIS TERM OF ENLISTMENT EXPIRES, HIS PAY AND ALLOWANCES TERMINATE ON THE DATE HIS ENLISTMENT EXPIRES UNLESS HE IS SUBSEQUENTLY ACQUITTED.

IN THE CASE OF DICKENSON, ALSO CITED ABOVE, THERE IS FOR NOTING THAT DICKENSON WAS A PRISONER OF WAR AT THE TIME HIS ENLISTMENT EXPIRED AND ENTITLEMENT TO PAY AND ALLOWANCES CONTINUED TO ACCRUE TO HIM THEREAFTER BY REASON OF THE PROVISIONS OF LAW CONTAINED IN THE MISSING PERSONS ACT, APPROVED MARCH 7, 1942, CH. 166, 56 STAT. 143, AS AMENDED, 50 U.S. APP. 1001. FOLLOWING HIS RETURN TO MILITARY CONTROL ON OCTOBER 21, 1953, AND HIS SUBSEQUENT RETURN TO THE UNITED STATES, DICKENSON WAS PLACED IN CONFINEMENT ON JANUARY 22, 1954, AWAITING COURT-MARTIAL PROCEEDINGS WHICH RESULTED IN HIS BEING FOUND GUILTY AS CHARGED. THE COURT TOOK THE VIEW THAT THE PLAINTIFF CONTINUED AS A MATTER OF LAW TO BE HELD FOR THE CONVENIENCE OF THE GOVERNMENT AFTER HIS CONFINEMENT AND HELD THAT HE WAS ENTITLED TO RECOVER PAY AND ALLOWANCES FOR THE PERIOD JANUARY 22, 1954 (THE FIRST DAY OF CONFINEMENT), TO JULY 12, 1954 (THE DAY PRECEDING THE CONVENING AUTHORITY'S APPROVAL OF THE SENTENCE).

IN THE DICKENSON DECISION (163 CT. CL. 512), THE COURT, AFTER REFERRING TO THE MOSES CASE AND OUR DECISION OF APRIL 14, 1951, 30 COMP. GEN. 449, HAD THIS TO SAY ON PAGES 518 AND 519:

"APART FROM THE QUESTION WHETHER THE COMPTROLLER GENERAL'S 1951 RULE IS NOW SOUND IN VIEW OF THE MORE RECENT JUDICIAL AND STATUTORY PRONOUNCEMENTS THAT ARE REFERRED TO SUBSEQUENTLY IN THIS OPINION, IT SHOULD BE NOTED THAT THE RULE ACTUALLY DOES NOT FIT THE PLAINTIFF'S CASE. THE PLAINTIFF'S CASE IS NOT THAT OF -AN ENLISTED PERSON WHOSE TERM OF ENLISTMENT EXPIRES WHILE HE IS IN CONFINEMENT AWAITING TRIAL BY COURT-MARTIAL.- INSTEAD, THE PLAINTIFF'S TERM OF ENLISTMENT EXPIRED NOT LATER THAN APRIL 15, 1953, WHICH WAS MORE THAN 9 MONTHS BEFORE THE PLAINTIFF'S CONFINEMENT BEGAN UNDER THE COURT-MARTIAL CHARGES. OF COURSE, THE PLAINTIFF WAS A PRISONER OF WAR IN THE HANDS OF THE ENEMY WHEN THE TERM OF HIS ENLISTMENT EXPIRED. HOWEVER, HE WAS RETURNED TO THE MILITARY CONTROL OF THE UNITED STATES ON OCTOBER 21, 1953; AND THEREAFTER, FOR A PERIOD OF 3 MONTHS, THE PLAINTIFF WAS RETAINED IN THE SERVICE WITHOUT BEING CONFINED OR SUBJECTED TO COURT- MARTIAL CHARGES. THAT THIS RETENTION WAS FOR THE GOVERNMENT'S OWN PURPOSES SEEMS TO BE CLEAR. * * *"

THE COURT LEFT LITTLE DOUBT THAT THE DICKENSON CASE WAS "NOT THAT OF -AN ENLISTED PERSON WHOSE TERM OF ENLISTMENT EXPIRES WHILE HE IS IN CONFINEMENT AWAITING TRIAL BY COURT-MARTIAL, - " SUCH AS CONSIDERED IN 39 COMP. GEN. 449, AND THE MOSES DECISION. MOREOVER, THE COURT RECOGNIZED THAT DICKENSON, FOR THE PERIOD OF 3 MONTHS AFTER HIS RETURN TO MILITARY CONTROL HAD THE STATUS OF A MEMBER WHO WAS RETAINED IN THE SERVICE WITHOUT BEING CONFINED SUBJECT TO COURT-MARTIAL CHARGES.

THE FACTUAL SITUATION IN SERGEANT O-SUCH'S CASE IS SUBSTANTIALLY DIFFERENT FROM THAT IN THE DICKENSON CASE. UNLIKE DICKENSON, SERGEANT O- SUCH WAS IN CONFINEMENT PENDING REVIEW OF HIS COURT-MARTIAL SENTENCE WHEN HIS ENLISTMENT EXPIRED ON JANUARY 23, 1965, AND THERE IS NOTHING IN THE RECORD TO SHOW THAT SINCE THAT DATE HE WAS RESTORED TO A DUTY STATUS. WHILE THE COURT OF MILITARY APPEALS SET ASIDE SERGEANT O SUCH'S ORIGINAL COURT-MARTIAL SENTENCE AND A REHEARING WAS ORDERED, IT IS OUR VIEW THAT IN THE ABSENCE OF A RESTORATION TO DUTY PENDING A REHEARING OF HIS COURT- MARTIAL SENTENCE, THERE IS NO BASIS FOR AUTHORIZING PAY AND ALLOWANCES SUBSEQUENT TO THE DATE OF EXPIRATION OF HIS TERM OF SERVICE. COMPARE 39 COMP. GEN. 42. MOREOVER, IT IS OUR VIEW THAT THE PROVISION IN ARTICLE 57 OF THE UNIFORM CODE OF MILITARY JUSTICE REGARDING THE CONVENING AUTHORITY'S APPROVAL BEFORE ANY PAY OR ALLOWANCE FORFEITURE IS EFFECTIVE IS NOT FOR APPLICATION IN THE CIRCUMSTANCES HERE STATED. SINCE THESE SPECIFIC POINTS WERE NOT RAISED OR DISCUSSED IN THE DICKENSON DECISION, WE DO NOT VIEW THAT CASE AS PROVIDING A PROPER BASIS FOR ALLOWING SERGEANT O- SUCH'S CLAIM.

WITH RESPECT TO THE GROSSO CASE, SINCE THAT CASE WAS SETTLED ON THE BASIS OF A JUDGMENT RENDERED BY THE COURT OF CLAIMS PURSUANT TO AN AGREEMENT BETWEEN THE PARTIES, SUCH CASE MAY NOT BE CONSIDERED AS A JUDICIAL PRECEDENT TO SUPPORT AN ALLOWANCE HERE. IN ANY EVENT, THE FACTS IN THE GROSSO CASE ARE SUBSTANTIALLY DIFFERENT FROM THOSE HERE INVOLVED.

FOR THE REASONS INDICATED ABOVE AND IN VIEW OF THE DOUBT IN THE MATTER, WE MUST CONCLUDE THAT IN THE ABSENCE OF A JUDICIAL DETERMINATION ESTABLISHING SERGEANT O-SUCH'S RIGHT TO PAY AND ALLOWANCES WHILE IN CONFINEMENT FOLLOWING HIS EXPIRATION OF TERM OF SERVICE, THERE IS NO BASIS FOR AUTHORIZING PAYMENT OF HIS CLAIM. SEE LONGWILL V. UNITED STATES, 17 CT. CL. 288 (1881) AND CHARLES V. UNITED STATES, 19 CT. CL. 316 (1884).