B-165244, OCT. 2, 1968

B-165244, OCT. 2, 1968

TO MR. H. M. ANDERSON:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 23, 1968, REQUESTING AN ADVANCE DECISION AS TO WHETHER THE FORFEITURE IMPOSED AGAINST SEAMAN RUDOLPH R. TOMSICH, 2028432, U.S. COAST GUARD RESERVE, UNDER 10 U.S.C. 815 IS A PROPER CHARGE AGAINST HIS PAY ACCOUNT.

YOU SAY THAT WHILE SEAMAN TOMSICH WAS PERFORMING ANNUAL ACTIVE DUTY FOR TRAINING AT COAST GUARD GROUP, TWO RIVERS, WISCONSIN, DURING THE PERIOD MAY 7 TO 19, 1968, HE COMMITTED AN OFFENSE PUNISHABLE UNDER THE UNIFORM CODE OF MILITARY JUSTICE. SUBSEQUENT TO HIS RELEASE FROM ACTIVE DUTY, HE WAS AWARDED NONJUDICIAL PUNISHMENT ON JUNE 23, 1968, AND SENTENCED TO FORFEIT $50 A MONTH FOR TWO MONTHS.

AT THE TIME THE SENTENCE WAS IMPOSED SEAMAN TOMSICH HAD RETURNED TO AN INACTIVE DUTY STATUS AND WAS RECEIVING $6.41 PER DRILL, WHICH RATE WAS INCREASED TO $6.85 PER DRILL EFFECTIVE JULY 1, 1968. THE UNIT TO WHICH HE IS ASSIGNED IS AUTHORIZED A MAXIMUM OF 48 DRILLS PER FISCAL YEAR. SINCE HIS NORMAL INACTIVE DUTY (DRILL) PAY IS LESS THAN $50 PER MONTH, DOUBT EXISTS AS TO THE AMOUNT TO BE COLLECTED UNDER THE SENTENCE AND YOU POSE FOR CONSIDERATION THE FOLLOWING QUESTIONS:

"/1)IN VIEW OF THE PROVISIONS OF 37 U.S.C. 206 (A), DOES THIS MEMBER, IN FACT, HAVE A MONTHLY RATE OF PAY?

"/2) IF THE ANSWER TO QUESTION (1) IS IN THE AFFIRMATIVE, IS THE MONTHLY RATE OF PAY 1/12 OF REQUIRED YEARLY DRILLS (48 DRILLS) AND, IF SO, WHAT EFFECT WOULD NORMAL ABSENCES PRECLUDING PERFORMANCE OF SOME DRILLS HAVE?

"/3) WHAT IS THE MAXIMUM AMOUNT THAT CAN BE RECOVERED IF SEAMAN TOMSICH PERFORMS ALL THE DRILLS AUTHORIZED DURING THE PERIOD OF FORFEITURE.'

AMONG THE PERSONS SUBJECT TO CHAPTER 47, TITLE 10, U.S.C. (UNIFORM CODE OF MILITARY JUSTICE) ARE MEMBERS OF A RESERVE COMPONENT WHILE THEY ARE ON ACTIVE DUTY TRAINING REQUIRED BY WRITTEN ORDERS. ARTICLE 15 OF THE UNIFORM CODE OF MILITARY JUSTICE (10 U.S.C. 815) PROVIDES THAT UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, AND UNDER SUCH ADDITIONAL REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY CONCERNED, ANY COMMANDING OFFICER MAY, IN ADDITION TO OR IN LIEU OF ADMONITION OR REPRIMAND, IMPOSE ONE OR MORE OF THE DISCIPLINARY PUNISHMENTS SET OUT UNDER SUBSECTION (B) FOR MINOR OFFENSES WITHOUT INTERVENTION OF A COURT- MARTIAL. AMONG THOSE PUNISHMENTS WHICH MAY BE IMPOSED UPON MEMBERS OTHER THAN OFFICERS, AN OFFICER OF THE GRADE OF MAJOR OR LIEUTENANT COMMANDER OR ABOVE MAY IMPOSE FORFEITURE OF NOT MORE THAN ONE HALF OF ONE MONTH'S PAY PER MONTH FOR TWO MONTHS. 10 U.S.C. 815 (B) (2) (H) (III).

IT IS PROVIDED IN 37 U.S.C. 206 (A) THAT A MEMBER OF A RESERVE COMPONENT OF A UNIFORMED SERVICE WHO IS NOT ENTITLED TO BASIC PAY UNDER 10 U.S.C. 204 IS ENTITLED TO COMPENSATION, AT THE RATE OF ONE THIRTIETH OF THE BASIC PAY AUTHORIZED FOR A MEMBER OF A UNIFORMED SERVICE OF A CORRESPONDING GRADE ENTITLED TO BASIC PAY, FOR EACH REGULAR PERIOD OF INSTRUCTION, OR PERIOD OF APPROPRIATE DUTY, AT WHICH HE IS ENGAGED FOR AT LEAST TWO HOURS, INCLUDING THAT PERFORMED ON A SUNDAY OR HOLIDAY, OR FOR THE PERFORMANCE OF SUCH OTHER EQUIVALENT TRAINING, INSTRUCTION, DUTY, OR APPROPRIATE DUTIES, AS THE SECRETARY MAY PRESCRIBE. SUBSECTION 206 (B) PROVIDES THAT THE SECRETARY CONCERNED SHALL PRESCRIBE THE MINIMUM STANDARDS THAT MUST BE MET BEFORE AN ASSEMBLY FOR DRILL, ETC., MAY BE CREDITED FOR PAY PURPOSES, THE MAXIMUM NUMBER OF ASSEMBLIES THAT MAY BE COUNTED FOR PAY PURPOSES IN EACH FISCAL YEAR, AND THE MINIMUM NUMBER OF ASSEMBLIES, ETC., THAT MUST BE COMPLETED IN STATED PERIODS OF TIME BEFORE THE MEMBER CAN QUALIFY FOR PAY.

WHILE THE COMPENSATION TO WHICH A MEMBER IN AN ACTIVE RESERVE COMPONENT IS ENTITLED FOR EACH DRILL ATTENDED IS BASED ON A PORTION OF THE MONTHLY BASIC PAY HE WOULD RECEIVE IF ON ACTIVE DUTY, AND EACH UNIT HAS PRESCRIBED REQUIREMENTS OF SERVICE IN ORDER THAT THE MEMBERS OF THE UNIT MAY QUALIFY FOR PAY, THE MEMBERS DO NOT HAVE A FIXED MONTHLY RATE OF PAY. THE AMOUNT PAYABLE TO EACH INDIVIDUAL MEMBER IN ANY ONE MONTH IS DEPENDENT UPON THE NUMBER OF DRILLS HE ACTUALLY ATTENDED DURING THE MONTH FOR WHICH HE IS ENTITLED TO RECEIVE PAYMENT. SINCE IT IS NOT NECESSARY FOR EVERY MEMBER OF A RESERVE ORGANIZATION TO ATTEND EVERY DRILL AND SINCE THE DRILLS MAY BE SCHEDULED AT ANY TIME, THERE IS NO FORMULA BY WHICH THE MONTHLY RATE OF PAY OF AN INDIVIDUAL RESERVIST MAY BE FIXED IN ADVANCE. THE AMOUNT OF PAY TO WHICH HE BECOMES ENTITLED MAY BE DETERMINED ONLY AFTER THE END OF THE MONTHLY PERIOD OF TIME INVOLVED BASED ON THE NUMBER OF DRILLS ATTENDED FOR WHICH HE IS ENTITLED TO BE PAID. IF, AS APPEARS, QUESTION (1) HAS REFERENCE TO A FIXED MONTHLY RATE OF PAY, IT IS ANSWERED IN THE NEGATIVE AND QUESTION (2) REQUIRES NO ANSWER.

SINCE SEAMAN TOMSICH REVERTED TO AN ACTIVE RESERVE STATUS, ENTITLEMENT TO PAY ACCRUED THEREAFTER ONLY FOR DRILLS ACTUALLY PERFORMED, INCLUDING DRILLS DURING THE PERIOD COVERED BY THE SENTENCE IMPOSED AND SINCE FORFEITURE UNDER 10 U.S.C. 815 (B) (2) (H) (III) IS LIMITED TO ,ONE-HALF OF ONE MONTH'S PAY PER MONTH FOR TWO MONTHS," THERE MAY BE RECOVERED, UNDER THE FORFEITURE IMPOSED, ONLY ONE-HALF OF THE DRILL PAY TO WHICH HE IS ENTITLED FOR THE PERIOD FROM JUNE 23 TO AUGUST 22, 1968. QUESTION (3) IS ANSWERED ACCORDINGLY.