B-162244, OCTOBER 24, 1967, 47 COMP. GEN. 214

B-162244, OCTOBER 24, 1967, 47 COMP. GEN. 214

PAY - ABSENCE WITHOUT LEAVE - CIVIL ARREST - UNEXCUSED, ETC. A MEMBER OF THE UNIFORMED SERVICES WHO AT THE TIME OF CONVICTION FOR A CRIME BY CIVIL AUTHORITIES WAS FOUND SANE, A SIMILAR FINDING BEING MADE BY THE MILITARY AUTHORITIES, BUT WHO SUBSEQUENTLY WAS COMMITTED T A STATE HOSPITAL FOR THE CRIMINALLY INSANE, FOLLOWED BY PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST, PURSUANT TO 10 U.S.C. 1202, HAS FORFEITED ENTITLEMENT TO PAY AND ALLOWANCES UNDER 37 U.S.C. 503 (A) FOR THE PERIOD FROM DATE OF APPREHENSION BY THE CIVIL AUTHORITIES UNTIL HIS PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST, THE MEMBER'S COMMANDING OFFICER PROPERLY DECLINING TO EXCUSE HIS ABSENCE FROM DUTY AS UNAVOIDABLE, AND THE DISABILITY OF THE MEMBER HAVING BEEN INCURRED DURING A PERIOD OF UNAUTHORIZED ABSENCE, HE WAS NOT IN A PAY STATUS ON THE DAY PRECEDING THE DATE OF HIS RETIREMENT, A PREREQUISITE TO PHYSICAL DISABILITY RETIREMENT AND, THEREFORE, THE MEMBER ALSO IS NOT ENTITLED TO RETIRED PAY.

TO LIEUTENANT COLONEL FRANK BERRISH, DEPARTMENT OF THE ARMY, OCTOBER 24, 1967:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 31, 1967, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON SEVERAL VOUCHERS IN FAVOR OF AN ENLISTED MEMBER, RETIRED, REPRESENTING ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD JANUARY 1, 1965, THROUGH OCTOBER 19, 1966, TOTALING $8,040.03, AND RETIRED PAY FROM OCTOBER 20, 1966, THROUGH APRIL 30, 1967, TOTALING $1,471.19, UNDER THE CIRCUMSTANCES DISCLOSED. YOUR LETTER WAS FORWARDED HERE BY THE OFFICE OF THE COMPTROLLER OF THE ARMY UNDER DATE OF AUGUST 8, 1967, AND HAS BEEN ALLOCATED D.O. NUMBER A954 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT THE MEMBER, WHILE ASSIGNED TO THE 2ND ARMORED DIVISION, FORT HOOD, TEXAS, WAS APPREHENDED ON JANUARY 1, 1965, BY THE CIVIL AUTHORITIES AND CONFINED IN THE CITY JAIL FOR THE OFFENSE OF RAPE; THAT ON JANUARY 2, 1965, HE WAS TRANSFERRED TO ANOTHER JAIL; AND THAT ON JANUARY 28, 1965, HE APPEARED BEFORE A GRAND JURY AND WAS INDICTED FOR RAPE. YOU SAY THAT HE WAS SEEN AT THE MENTAL HYGIENE CONSULTATION SERVICE WHERE A SANITY BOARD WAS HELD ON MARCH 10, 1965, WHICH FOUND HIM LEGALLY SANE AT THAT TIME. YOU STATE THAT ON APRIL 26, 1965, HE APPEARED FOR A SANITY HEARING WHERE IT WAS DETERMINED THAT HE WAS SANE AT THE TIME OF HIS ALLEGED OFFENSE ON JANUARY 1, 1965, BUT THAT HE WAS INSANE ON APRIL 26, 1965. ON THE BASIS OF THOSE FINDINGS IT IS STATED THAT THE COURT ORDERED THAT HE BE COMMITTED TO THE STATE HOSPITAL FOR THE CRIMINALLY INSANE FOR AN INDEFINITE PERIOD OF TREATMENT AND HE WAS SO TRANSFERRED. YOU REPORT THAT THE SANITY DETERMINATIONS MADE BY THE CIVILIAN PSYCHIATRISTS WERE CONCURRED IN BY A MILITARY PSYCHIATRIST AFTER AN EVALUATION OF THE MEMBER'S MENTAL STATE ON SEPTEMBER 27, 1965.

YOU FURTHER STATE THAT A MEDICAL BOARD CONVENED JANUARY 7, 1966, FOUND THE MEMBER MEDICALLY UNFIT AND RECOMMENDED HIS APPEARANCE BEFORE A PHYSICAL EVALUATION BOARD. THE LATTER BOARD, WHICH CONVENED MARCH 29, 1966, FOUND THE ENLISTED MAN TO BE PHYSICALLY UNFIT BY REASON OF DISABILITY RATED AT 100 PERCENT AND RECOMMENDED HIS PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST. PRESUMABLY, SUCH ACTION WAS BASED ON HIS MENTAL CONDITION AT THAT TIME. THIS ACTION WAS CONCURRED IN BY THE ARMY PHYSICAL REVIEW COUNCIL ON JULY 13, 1966. YOU STATE THAT ACTIVE DUTY PAY WAS LAST PAID TO INCLUDE DECEMBER 31, 1964.

BY ORDERS DATED OCTOBER 18, 1966, THE MEMBER WAS RETIRED BY REASON OF PHYSICAL DISABILITY PURSUANT TO 10 U.S.C. 1202 WITH A DISABILITY RATING OF 100 PERCENT AND PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE OCTOBER 20, 1966. YOU STATE THAT IT WAS NOT UNTIL OCTOBER 26, 1966, THAT IT WAS LEARNED THAT THE DISTRICT COURT ON OCTOBER 6, 1966, HAD FOUND THAT THE MEMBER WAS SANE AT THAT TIME, HAD CONVICTED HIM OF THE CRIME AS CHARGED AND HAD SENTENCED HIM TO NOT LESS THAN 5 NOR MORE THAN 75 YEARS IMPRISONMENT.

IT APPEARS THAT THE ENLISTED MAN IS CURRENTLY AT A TREATMENT CENTER. THE FILE CONTAINS A CERTIFICATE DATED MARCH 7, 1967, SIGNED BY THE CHIEF, PSYCHIATRY SERVICE, TO THE EFFECT THAT A PSYCHIATRIC EVALUATION WAS MADE IN THE MEMBER'S CASE AT THE TREATMENT CENTER AND THAT HIS DISABLING MENTAL CONDITION REMAINS ESSENTIALLY UNCHANGED. THE REPORT FURTHER STATES THAT HE CONTINUES TO BE TOTALLY DISABLED AND RECOMMENDED CONTINUATION ON THE TEMPORARY DISABILITY RETIRED LIST STATUS WITH PERIODIC EVALUATION IN 18 MONTHS.

THE RIGHT OF MEMBERS OF THE UNIFORMED SERVICES TO RECEIVE PAY AND ALLOWANCES WHILE ABSENT WITHOUT LEAVE IS GOVERNED BY THE PROVISIONS OF 37 U.S.C. 503 (A/--- DERIVED FROM SECTION 4 (B) OF THE ARMED SERVICES LEAVE ACT OF 1946--- WHICH READS AS FOLLOWS:

"A MEMBER OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, COAST GUARD, OR COAST AND GEODETIC SURVEY, WHO IS ABSENT WITHOUT LEAVE OR OVER LEAVE, FORFEITS ALL PAY AND ALLOWANCES FOR THE PERIOD OF THAT ABSENCE, UNLESS IT IS EXCUSED AS UNAVOIDABLE.

REGULATIONS IMPLEMENTING THAT LAW AND IN EFFECT DURING THE PERIOD HERE INVOLVED PROVIDED IN PARAGRAPH 12122A, ARMY REGULATION 37-104, FEBRUARY 15, 1965, THAT A MEMBER WHO IS CHARGED WITH A CIVIL OFFENSE AND CONFINED BY CIVIL AUTHORITIES IS IN AN UNAUTHORIZED ABSENCE STATUS (EXCEPT FOR THE PART OF THE PERIOD COVERED BY AUTHORIZED LEAVE) AND IS ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD OF CONFINEMENT ONLY IF HIS COMMANDER EXCUSES THE ABSENCE AS UNAVOIDABLE AFTER RESULTS OF THE TRIAL ARE KNOWN. PARAGRAPH 12122A FURTHER PROVIDES THAT PAY AND ALLOWANCES ARE NOT AUTHORIZED UNLESS SO EXCUSED, REGARDLESS OF THE OUTCOME OF THE CIVIL PROCEEDINGS.

PARAGRAPHS 12124 AND 12125 OF THE SAME REGULATIONS DESCRIBE THE CIRCUMSTANCES FOR EXCUSING OR NOT EXCUSING AN ABSENCE AS UNAVOIDABLE, AND ONE OF THE CIRCUMSTANCES FOR NOT EXCUSING THE ABSENCE AS UNAVOIDABLE IS WHERE THE MEMBER IS TRIED AND CONVICTED. SIMILAR REGULATIONS IN SUBSTANTIALLY THE SAME FORM ARE NOW CONTAINED IN CHAPTER 3, SECTION B, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, RULES 5 AND 6, TABLES 1-3-2 AND 1-3-3, RESPECTIVELY. IN THIS CONNECTION, YOU STATE THAT THE MEMBER'S COMMANDING OFFICER ON JUNE 6, 1966, DECLINED TO EXCUSE HIS ABSENCE AS UNAVOIDABLE ON THE BASIS THAT HIS CASE DID NOT FALL WITHIN THE CATEGORIES SET OUT BY THE REGULATIONS.

THE ABOVE REGULATIONS ARE IN LINE WITH THE LONGSTANDING RULE THAT A MEMBER OF THE ARMED FORCES WHO IS NOT ON AUTHORIZED LEAVE AND WHOSE CONDUCT HAS CAUSED HIM TO BE IN THE HANDS OF THE CIVIL AUTHORITIES AND THUS UNABLE TO FULFILL HIS OBLIGATION TO BE AT HIS POST OF DUTY, MUST BE REGARDED AS ABSENT WITHOUT LEAVE AND HIS PAY FOR SUCH PERIOD OF UNAUTHORIZED LEAVE IS FORFEITED, REGARDLESS OF THE OUTCOME OF THE CIVIL PROCEEDINGS, UNLESS HIS ABSENCE FROM DUTY IS EXCUSED AS UNAVOIDABLE. SEE 36 COMP. GEN. 173. WE STATED IN 39 COMP. GEN. 781, CITED IN YOUR SUBMISSION, THAT THE QUESTION OF WHETHER SUFFICIENT GROUNDS EXIST FOR EXCUSING ABSENCE OF MEMBERS OF THE ARMED FORCES AS UNAVOIDABLE UNDER SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT, AS AMENDED, IS PRIMARILY FOR ADMINISTRATIVE DETERMINATION BASED ON THE ACTUAL FACTS INVOLVED.

THE MERE DETERMINATION THAT AN ENLISTED MAN WAS MENTALLY INCOMPETENT DURING A PERIOD OF ABSENCE WITHOUT LEAVE WILL NEGATIVE THE IMPOSITION OF ANY PUNISHMENT FOR SUCH ABSENCE, BUT SUCH A DETERMINATION DOES NOT REMOVE THE REQUIREMENT THAT HE COMPLY WITH THE CONTRACTUAL OBLIGATIONS OF HIS ENLISTMENT IN ORDER FOR HIM TO BE ENTITLED TO PAY. SEE 40 COMP. GEN. 366, AND THE AUTHORITIES THERE CITED. ALSO, COMPARE MERWIN V. UNITED STATES, 78 CT. CL. 561 (1933).

WHILE THE RECORD INDICATES THAT THE MEDICAL AUTHORITIES HAVE DETERMINED THAT THE MEMBER WAS INSANE SUBSEQUENT TO COMMITTING THE CRIMINAL OFFENSE FOR WHICH HE WAS CHARGED AND CONVICTED, THE RECORD ALSO SHOWS THAT THE COURT FOUND HIM TO BE SANE AT THE TIME OF THE COMMISSION OF THE ALLEGED OFFENSE. IT IS ALSO SHOWN THAT HE WAS REPRESENTED BY LEGAL COUNSEL AT THE JUDICIAL PROCEEDINGS HELD ON OCTOBER 6, 1966, IN WHICH A JURY HELD HIM TO BE SANE AT THAT TIME AND THAT FOLLOWING SUCH HEARING HE PLEADED GUILTY TO THE OFFENSE FOR WHICH HE WAS CHARGED.

ALTHOUGH HE WAS JUDICIALLY DETERMINED TO BE INSANE ON APRIL 26, 1965, HIS MENTAL CONDITION AT THAT TIME WAS NOT THE REASON FOR HIS BEING ABSENT FROM HIS POST OF DUTY. IT APPEARS CLEAR THAT IF HE HAD BEEN FOUND TO BE SANE ON APRIL 26, 1965, THE ONLY CHANGE WHICH WOULD HAVE FOLLOWED WOULD HAVE BEEN AN EARLIER TRIAL, CONVICTION AND SENTENCE. HE WOULD NOT HAVE BEEN RETURNED TO MILITARY CONTROL. WE SEE NO REASON WHY HIS ABSENCE FROM HIS STATION SHOULD HAVE BEEN EXCUSED AS UNAVOIDABLE AND, SINCE HIS COMMANDING OFFICER DECLINED TO SO EXCUSE HIM, HIS PAY AND ALLOWANCES FOR THE PERIOD INVOLVED WERE FORFEITED UNDER THE PROVISIONS OF 37 U.S.C. 503 (A). IN THE CIRCUMSTANCES, PAYMENT ON THE VOUCHERS REPRESENTING ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD JANUARY 1, 1965, TO OCTOBER 19, 1966, IS NOT AUTHORIZED.

WITH RESPECT TO THE MEMBER'S ENTITLEMENT TO RETIRED PAY BY REASON OF DISABILITY COMMENCING ON OCTOBER 20, 1966, 10 U.S.C. 1202 PROVIDES, IN PERTINENT PART, THAT UPON A DETERMINATION BY THE SECRETARY CONCERNED THAT A MEMBER OF A REGULAR COMPONENT OF THE ARMED FORCES "ENTITLED TO BASIC PAY" WHO HAS BEEN CALLED OR ORDERED TO ACTIVE DUTY FOR A PERIOD OF MORE THAN 30 DAYS, WOULD BE QUALIFIED FOR RETIREMENT UNDER SECTION 1201 OF TITLE 10 BUT FOR THE FACT THAT HIS DISABILITY IS NOT DETERMINED TO BE OF A PERMANENT NATURE, THE SECRETARY SHALL, IF HE ALSO DETERMINES THAT ACCEPTED MEDICAL PRINCIPLES INDICATE THAT THE DISABILITY MAY BE OF A PERMANENT NATURE, PLACE THE MEMBER'S NAME ON THE TEMPORARY DISABILITY RETIRED LIST, WITH RETIRED PAY COMPUTED UNDER SECTION 1401 OF TITLE 10. SECTION 1201 (2) OF TITLE 10 PROVIDES A LIMITATION ON RETIREMENT FOR A DISABILITY OF A PERMANENT NATURE TO THE EFFECT THAT THE DISABILITY NOT BE INCURRED DURING A PERIOD OF UNAUTHORIZED ABSENCE. THE INFORMATION FURNISHED INDICATES THAT THE MEMBER'S MENTAL DISABILITY WAS INCURRED AFTER JANUARY 1, 1965, WHILE ABSENT FROM HIS STATION WITHOUT LEAVE.

AS POINTED OUT IN YOUR SUBMISSION, WE SAID IN 35 COMP. GEN. 626, IN ANSWER TO THE FIRST QUESTION, THAT IN THE ABSENCE OF A CONTROLLING DEFINITION IN THE STATUTE, OR OTHER STATUTORY LANGUAGE REQUIRING A DIFFERENT CONCLUSION, IT WAS OUR VIEW THAT THE TERM "INCURRED" AS USED IN SUBSECTIONS (A) AND (B) OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 816, 817, NOW CODIFIED IN 10 U.S.C. 1201 AND 1202, PROPERLY IS TO BE CONSIDERED AS REFERRING TO THE DATE OF ONSET OF THE DISEASE OR OCCURRENCE OF THE INJURY. THAT DECISION, HOWEVER, AFFORDS NO BASIS FOR CONCLUDING THAT THE MEMBER INCURRED DISABILITY BECAUSE OF HIS MENTAL CONDITION PRIOR TO JANUARY 1, 1965, WHILE ENTITLED TO RECEIVE BASIC PAY. THIS FACT MUST BE SUPPORTED BY A CLEAR AND UNEQUIVOCAL MEDICAL CONCLUSION AND THE RECORD BEFORE US DOES NOT SUPPORT SUCH A CONCLUSION. THE ONLY INFORMATION ON THIS MATTER IS A STATEMENT IN THE MILITARY PSYCHIATRIST'S CERTIFICATE OF MARCH 7, 1967, REFERRING TO A "BACKGROUND HISTORY OF SCHIZOID ADJUSTMENT.' THIS FALLS FAR SHORT OF THE LEGAL REQUIREMENTS IN A CASE OF THIS TYPE.

AS STATED IN YOUR SUBMISSION AND AS SHOWN BY THE RECORD, SINCE THE MEMBER'S TERM OF ENLISTMENT WAS TO HAVE EXPIRED ON OCTOBER 20, 1966, AND IN ORDER TO PROTECT ANY INTEREST THAT THE MEMBER MAY HAVE, IT WAS ADMINISTRATIVELY RECOMMENDED THAT HE BE RETIRED BY REASON OF PHYSICAL DISABILITY AND PLACED ON THE TEMPORARY DISABILITY RETIRED LIST PURSUANT TO 10 U.S.C. 1202, AND THAT THE DISBURSING OFFICER SHOULD SUBMIT THE MATTER TO THE COMPTROLLER GENERAL FOR AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF RETIRED PAY.

SINCE, AS SHOWN ABOVE, THE MEMBER WAS NOT IN A PAY STATUS DURING ANY PART OF THE PERIOD JANUARY 1, 1965, TO OCTOBER 19, 1966, THE DAY PRECEDING THE DATE OF HIS RETIREMENT, AND SINCE HE THUS WAS NOT "ENTITLED TO BASIC PAY" (WHICH IS A PREREQUISITE TO PHYSICAL DISABILITY RETIREMENT UNDER 10 U.S.C. 1202), THE VALIDITY OF HIS RETIREMENT ORDERS IS QUESTIONABLE. COMPARE HEINS V. UNITED STATES, 137 CT. CL. 658 (1957), AND 34 COMP. GEN. 65. ACCORDINGLY, ON THE BASIS OF THE RECORD BEFORE US THERE IS NO BASIS FOR THE PAYMENT OF RETIRED PAY ON AND AFTER OCTOBER 20, 1966. SEE LONGWILL V. UNITED STATES, 17 CT. CL. 288 (1881) AND CHARLES V. UNITED STATES, 19 CT. CL. 316 (1884).

PAYMENT NOT BEING AUTHORIZED ON THE SUBMITTED VOUCHERS, THEY WILL BE RETAINED HERE.