B-163728, APR. 30, 1968

B-163728: Apr 30, 1968

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SR.: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 19. THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED JANUARY 17 AND FEBRUARY 14. IN WHICH YOU WERE ADVISED THAT CONSIDERATION OF YOUR CLAIM FOR SUCH PAY WAS BARRED BY THE ACT OF OCTOBER 9. WHILE YOU STATE THAT YOU KNOW OF A CASE SIMILAR TO YOURS IN WHICH THE INDIVIDUAL INVOLVED WAS PAID BACK PAY AND ALLOWANCES FOR A PERIOD OF ABSENCE OF 40 YEARS. YOU ARE ADVISED THAT WE HAVE NO KNOWLEDGE OF THE CASE TO WHICH YOU REFER. IT APPEARS THAT SINCE YOU WERE NOT APPREHENDED BY MILITARY AUTHORITIES WITHIN THE STATUTORY LIMITATION PERIOD SPECIFIED IN 10 U.S.C. 843. YOU WERE NOT TRIED FOR THIS OFFENSE. YOU WERE ISSUED AN UNDESIRABLE DISCHARGE.

B-163728, APR. 30, 1968

TO MR. JAMES T. CHADWICK, SR.:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 19, 1968, REQUESTING REVIEW OF YOUR CLAIM FOR ARREARS OF PAY BELIEVED TO BE DUE FOR SERVICE IN THE UNITED STATES ARMY SUBSEQUENT TO NOVEMBER 7, 1927.

THIS MATTER WAS THE SUBJECT OF LETTERS FROM OUR CLAIMS DIVISION DATED JANUARY 17 AND FEBRUARY 14, 1968, IN WHICH YOU WERE ADVISED THAT CONSIDERATION OF YOUR CLAIM FOR SUCH PAY WAS BARRED BY THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A.

WHILE YOU STATE THAT YOU KNOW OF A CASE SIMILAR TO YOURS IN WHICH THE INDIVIDUAL INVOLVED WAS PAID BACK PAY AND ALLOWANCES FOR A PERIOD OF ABSENCE OF 40 YEARS, YOU ARE ADVISED THAT WE HAVE NO KNOWLEDGE OF THE CASE TO WHICH YOU REFER.

THE RECORD SHOWS THAT ON AUGUST 23, 1926, YOU ENLISTED IN THE REGULAR ARMY FOR A THREE YEAR TOUR OF DUTY AND YOU ADMIT THAT ON NOVEMBER 8, 1927, YOU LEFT YOUR POST OF DUTY WITHOUT AUTHORITY AND NEVER SERVED IN ANY OF THE UNITED STATES ARMED FORCES AFTER THAT DATE. IT APPEARS THAT SINCE YOU WERE NOT APPREHENDED BY MILITARY AUTHORITIES WITHIN THE STATUTORY LIMITATION PERIOD SPECIFIED IN 10 U.S.C. 843, FOLLOWING YOUR DESERTION, YOU WERE NOT TRIED FOR THIS OFFENSE. HOWEVER, ON APRIL 10, 1967, PURSUANT TO SECTION VIII, ARMY REGULATIONS 635-206, DATED JULY 15, 1966, YOU WERE ISSUED AN UNDESIRABLE DISCHARGE, THE CHARACTER OF YOUR SERVICE BEING LISTED AS UNDER CONDITIONS OTHER THAN HONORABLE.

PARAGRAPH 3, ARMY REGULATIONS 35-1420, DECEMBER 15, 1924, IN FORCE AT THE TIME OF YOUR DESERTION IN NOVEMBER 1927, PROVIDED THAT A MEMBER WHO ABSENTS HIMSELF FROM HIS POST OR COMPANY WITHOUT AUTHORITY FOR MORE THAN A 24-HOUR PERIOD EARNS NEITHER PAY NOR ALLOWANCES DURING THE PERIOD OF HIS ABSENCE AND WILL BE GIVEN NEITHER PAY NOR ALLOWANCES FROM THE DATE OF HIS ABSENTATION TO THE DATE OF HIS RETURN TO MILITARY CONTROL.

THIS IS IN LINE WITH THE GENERAL RULE THAT WHEN A PERSON ENTERS INTO A CONTRACT OF ENLISTMENT HE CONTRACTS TO PERFORM FAITHFUL SERVICE. IF HE ABSENTS HIMSELF FROM HIS POST OF DUTY WITHOUT LEAVE, HE FORFEITS HIS RIGHTS UNDER THE CONTRACT AND EARNS NO PAY AND ALLOWANCES DURING THE PERIOD OF HIS ABSENCE. SEE 8 COMP. GEN. 233; 23 COMP. GEN. 44 AND UNITED STATES V LANDERS, 92 U.S. 77 (1875). THE FACT THAT YOU RECENTLY RECEIVED A CERTIFICATE OF DISCHARGE UNDER CONDITIONS OTHER THAN HONORABLE, NEITHER ALTERS THE DESERTION STATUS SHOWN IN YOUR SERVICE RECORD NOR ADDS TO YOUR RIGHTS IN ANY WAY.