B-166803, JUN. 25, 1969, 48 COMP. GEN. 792

B-166803: Jun 25, 1969

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

A MARINE CORPS MEMBER WHO WHILE IN AN UNAUTHORIZED ABSENCE STATUS IS CONFINED AND LATER INDICTED BY CIVILIAN AUTHORITIES FOR VIOLATING 18 U.S.C. 2312 (TRANSPORTING IN INTERSTATE COMMERCE A STOLEN MOTOR VEHICLE OR AIRCRAFT). WHO ON THE BASIS OF A COURT FINDING OF MENTAL INCOMPETENCY IS RETAINED IN A MEDICAL CENTER FOR FEDERAL PRISONERS UNTIL DISCHARGE OF THE INDICTMENT AND HIS RETURN TO MILITARY CONTROL. IS NOT ENTITLED TO CREDIT IN HIS FINAL MILITARY PAY RECORD WITH PAY AND ALLOWANCES FOR THE PERIOD OF ABSENCE. 1969: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 15. REQUESTING AN ADVANCE DECISION WHETHER YOU ARE AUTHORIZED TO CREDIT THE FINAL MILITARY PAY RECORD OF A FORMER PRIVATE IN THE U.S.

B-166803, JUN. 25, 1969, 48 COMP. GEN. 792

PAY--ABSENCE WITHOUT LEAVE--CIVIL ARREST--UNEXCUSED, ETC. A MARINE CORPS MEMBER WHO WHILE IN AN UNAUTHORIZED ABSENCE STATUS IS CONFINED AND LATER INDICTED BY CIVILIAN AUTHORITIES FOR VIOLATING 18 U.S.C. 2312 (TRANSPORTING IN INTERSTATE COMMERCE A STOLEN MOTOR VEHICLE OR AIRCRAFT), AND WHO ON THE BASIS OF A COURT FINDING OF MENTAL INCOMPETENCY IS RETAINED IN A MEDICAL CENTER FOR FEDERAL PRISONERS UNTIL DISCHARGE OF THE INDICTMENT AND HIS RETURN TO MILITARY CONTROL, IS NOT ENTITLED TO CREDIT IN HIS FINAL MILITARY PAY RECORD WITH PAY AND ALLOWANCES FOR THE PERIOD OF ABSENCE--- OCTOBER 5, 1962 TO FEBRUARY 9, 1965--- IN VIEW OF THE COMMANDANT OF THE CORPS DETERMINATION UNDER PARAGRAPH 044253, NAVY COMPTROLLER MANUAL, THAT THE ABSENCE MAY NOT BE EXCUSED AS UNAVOIDABLE, AND THAT THE MEMBER'S ABSENCE IN THE HANDS OF THE CIVIL AUTHORITIES MUST BE CONSIDERED "TIME LOST" FOR PAY PURPOSES.

TO MAJOR D. J. THOMAS, UNITED STATES MARINE CORPS, JUNE 25, 1969:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 15, 1969, WITH ENCLOSURE, REQUESTING AN ADVANCE DECISION WHETHER YOU ARE AUTHORIZED TO CREDIT THE FINAL MILITARY PAY RECORD OF A FORMER PRIVATE IN THE U.S. MARINE CORPS WITH PAY AND ALLOWANCES FOR THE PERIOD OCTOBER 5, 1962, TO FEBRUARY 8, 1965, UNDER THE CIRCUMSTANCES DISCLOSED. YOUR LETTER WAS FORWARDED HERE BY DISBURSING BRANCH, FISCAL DIVISION, HEADQUARTERS UNITED STATES MARINE CORPS, UNDER DATE OF APRIL 28, 1969, AND HAS BEEN ASSIGNED CONTROL NUMBER DO-MC-1035 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT THE PRIVATE ENLISTED IN THE MARINE CORPS FOR 4 YEARS ON NOVEMBER 8, 1961; THAT HE ENTERED AN UNAUTHORIZED ABSENCE STATUS ON SEPTEMBER 12, 1962; THAT ON OCTOBER 5, 1962, HE WAS APPREHENDED AND CONFINED BY CIVIL AUTHORITIES IN MEMPHIS, TENNESSEE, ON SUSPICION OF VIOLATING 18 U.S.C. 2312 (TRANSPORTING IN INTERSTATE COMMERCE A STOLEN MOTOR VEHICLE OR AIRCRAFT); AND THAT ON OCTOBER 8, 1962, AN INDICTMENT WAS ENTERED AGAINST HIM IN THE U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE.

YOU ALSO STATE THAT THE ENLISTED MAN ENTERED A PLEA OF NOT GUILTY TO THE INDICTMENT; THAT UPON HIS MOTION TO THE COURT HE WAS GRANTED A PRIVATE PSYCHIATRIC EXAMINATION; AND THAT ON THE BASIS OF THE PSYCHIATRIST'S REPORT, THE COURT, ON MARCH 5, 1963, COMMITTED HIM TO THE MEDICAL CENTER FOR FEDERAL PRISONERS, SPRINGFIELD, MISSOURI, FOR FURTHER EXAMINATION AND EVALUATION. YOU REPORT THAT ON JULY 29, 1963, THE ENLISTED MAN WAS FOUND BY THE COURT TO BE "PRESENTLY INSANE OR OTHERWISE SO MENTALLY INCOMPETENT AS TO BE UNABLE TO UNDERSTAND THE PROCEEDINGS AGAINST HIM OR PROPERLY TO ASSIST IN HIS OWN DEFENSE." HE WAS COMMITTED TO THE CUSTODY OF THE ATTORNEY GENERAL UNTIL HE WAS MENTALLY COMPETENT TO STAND TRIAL OR UNTIL THE CHARGES WERE DISPOSED OF. HE CONTINUED TO BE RETAINED IN THE MEDICAL CENTER FOR FEDERAL PRISONERS.

YOU FURTHER STATE THAT ON FEBRUARY 5, 1965, THE INDICTMENT AGAINST THE ENLISTED MAN WAS DISMISSED AND ON FEBRUARY 9, 1965, HE WAS RELEASED BY THE CIVIL AUTHORITIES AND RETURNED TO MILITARY CONTROL. NO DISCIPLINARY ACTION WAS TAKEN BY THE MARINE CORPS AGAINST HIM. THE COMMANDANT OF THE MARINE CORPS DECIDED NOT TO EXCUSE HIS ABSENCE AS UNAVOIDABLE. ON JULY 8, 1965, HE WAS DISCHARGED FROM THE MARINE CORPS UNDER HONORABLE CONDITIONS FOR PHYSICAL DISABILITY, BECAUSE OF "SCHIZOPHRENIC REACTION, PARANOID TYPE, WITH ACTIVE PSYCHOTIC MANIFESTATIONS OF SUCH (SIC) TO PRODUCE COMPLETE SOCIAL AND INDUSTRIAL INADAPTABILITY." HIS DISABILITY WAS DETERMINED TO HAVE EXISTED PRIOR TO ENTRANCE ON ACTIVE SERVICE AND NOT TO HAVE BEEN AGGRAVATED BY ACTIVE SERVICE.

YOU SAY THAT THE ENLISTED MAN WAS NOT PAID PAY AND ALLOWANCES FOR THE PERIOD SEPTEMBER 12, 1962, TO FEBRUARY 8, 1965. YOU ALSO SAY THAT HE PETITIONED THE BOARD FOR THE CORRECTION OF NAVAL RECORDS TO CHANGE HIS MILITARY RECORDS TO SHOW THAT HIS PERIOD OF UNAUTHORIZED ABSENCE WAS EXCUSED AS UNAVOIDABLE. THE CORRECTION BOARD HAS TAKEN THE POSITION THAT THE ABSENCE OF THE MEMBER DURING THE PERIOD OCTOBER 5, 1962, TO FEBRUARY 8, 1965, WHILE HE WAS IN CONFINEMENT IN THE HANDS OF CIVIL AUTHORITIES, CONCERNS A MATTER WHICH IS NOT PROPERLY WITHIN ITS PURVIEW.

THE BOARD IS OF THE OPINION, HOWEVER, AS POINTED OUT IN YOUR LETTER, THAT PARAGRAPH 044253, NAVY COMPTROLLER MANUAL, AUTOMATICALLY EXCUSES AS UNAVOIDABLE AN ABSENCE WHILE IN CONFINEMENT BY THE CIVIL AUTHORITIES UNDER CIRCUMSTANCES SUCH AS ARE HERE INVOLVED AND THAT THE CLAIMANT IS ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD OF CONFINEMENT. IT APPEARS THAT THE CORRECTION BOARD VIEWS THE ACTION BY THE COMMANDANT IN NOT EXCUSING THE ABSENCE AS UNAVOIDABLE, AS BEING IN CONTRAVENTION OF THE REGULATIONS AND THEREFORE WITHOUT LAWFUL EFFECT.

YOU EXPRESS DOUBT AS TO WHETHER PARAGRAPH 044253 OF THE NAVY COMPTROLLER MANUAL IS THE CONTROLLING REGULATION. YOU REFER TO PARAGRAPH 044254 OF THE SAME MANUAL, AND YOU SAY THAT WHILE THE DEPARTMENT OF THE NAVY DID NOT MAKE A SPECIFIC DETERMINATION THAT THE MEMBER WAS MENTALLY INCOMPETENT, THE COURT FOUND THAT HE WAS NOT MENTALLY COMPETENT AND THE INDICTMENT WAS SUBSEQUENTLY DISMISSED BECAUSE OF HIS MENTAL DISORDER. IF IT IS DETERMINED THAT PARAGRAPH 044253 IS CONTROLLING, YOU EXPRESS FURTHER DOUBT WHETHER THAT REGULATION SHOULD BE LITERALLY INTERPRETED SO AS TO REMOVE FROM ADMINISTRATIVE OFFICIALS THE DISCRETIONARY AUTHORITY TO FIND THAT AN UNAUTHORIZED ABSENCE SHOULD OR SHOULD NOT BE EXCUSED AS UNAVOIDABLE.

THE RIGHT OF A MEMBER 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 FORCES LEAVE ACT OF 1946--- WHICH READS AS FOLLOWS:

(A) A MEMBER OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, COAST GUARD, OR ENVIRONMENTAL SCIENCE SERVICES ADMINISTRATION, 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.

IT HAS LONG BEEN HELD THAT THE PHRASE "UNLESS IT (THE ABSENCE) IS EXCUSED AS UNAVOIDABLE" USED IN THE ABOVE STATUTORY PROVISION, MUST BE CONSTRUED AS MEANING THAT IF THE ABSENCE IS EXCUSED AS UNAVOIDABLE, THE MEMBER INVOLVED WOULD NOT FORFEIT PAY AND ALLOWANCES TO WHICH HE IS OTHERWISE ENTITLED FOR THE PERIOD OF HIS ABSENCE. UNDER THE STATUTE, THE QUESTION WHETHER THERE EXISTS SUFFICIENT GROUNDS FOR EXCUSING A MEMBER'S ABSENCE AS UNAVOIDABLE, IS, AT LEAST IN THE FIRST INSTANCE, A MATTER FOR ADMINISTRATIVE DETERMINATION BASED ON THE FACTS IN A PARTICULAR CASE. SEC 36 COMP. GEN. 173; 39 ID. 781 AND THE AUTHORITIES THERE CITED.

WITH RESPECT TO THE QUESTION OF CONFINEMENT OF A MEMBER BY THE CIVIL AUTHORITIES BECAUSE OF AN ALLEGED COMMISSION OF A CIVILIAN OFFENSE WHILE ON UNAUTHORIZED LEAVE, WE SAID IN 36 COMP. GEN. 173, 175, THAT PRESUMABLY, DISMISSAL OF THE CHARGES OR ACQUITAL WOULD CONSTITUTE A SUFFICIENT BASIS FOR EXCUSING SUCH AN UNAUTHORIZED ABSENCE AS UNAVOIDABLE, BUT "UNTIL SO EXCUSED * * * THE STATUTE PRECLUDES PAYMENT OF PAY FOR THE PERIOD OF ABSENCE, REGARDLESS OF THE OUTCOME OF THE CIVILIAN PROCEEDINGS."

UNLIKE THE PROVISIONS IN PARAGRAPH 044253 OF THE NAVY COMPTROLLER MANUAL, DISCUSSED BELOW, REGULATIONS PROMULGATED BY THE ARMY (PARAGRAPH 12122A, ARMY REGULATION 37-104, FEBRUARY 15, 1965) AND AIR FORCE (PARAGRAPH 10351A, AIR FORCE MANUAL 173-20, CH. 46, JANUARY 1, 1958) IN IMPLEMENTING 37 U.S.C. 503 (A) AND THE SIMILAR PROVISION OF THE 1946 LEAVE ACT, SPECIFICALLY REQUIRED A DETERMINATION BY THE MEMBER'S COMMANDING OFFICER THAT THE UNAUTHORIZED ABSENCE IN THE HANDS OF CIVIL AUTHORITIES WAS EXCUSED AS UNAVOIDABLE, BEFORE PAYMENT OF PAY AND ALLOWANCES COULD BE MADE.

WE UNDERSTAND THAT THE DECISION WHICH YOU BELIEVE TO BE APPLICABLE IN THIS CASE AND WHICH COVERS A SITUATION SIMILAR TO THIS ONE IS B 144660, APRIL 3, 1961. IN THAT DECISION WE CONSIDERED THE CASE OF AN AIR FORCE ENLISTED MAN WHO, FOR THE PERIOD INVOLVED, WAS IN THE HANDS OF THE CIVIL AUTHORITIES AND IN CONFINEMENT AT ST. ELIZABETH'S HOSPITAL IN CONSEQUENCE OF THE COMMISSION OF A CRIMINAL ACT. IN THE LIGHT OF THE LAW AND THE IMPLEMENTING AIR FORCE REGULATIONS WHICH PRECLUDED PAYMENT OF PAY AND ALLOWANCES UNLESS THE ABSENCE IS EXCUSED BY THE COMMANDING OFFICER AS UNAVOIDABLE, WE CONCLUDED THAT IN THE ABSENCE OF SUCH A DETERMINATION HE WAS NOT ENTITLED TO THE PAY AND ALLOWANCES FOR THE PERIOD OF THE ABSENCE.

PARAGRAPH 044253, NAVY COMPTROLLER MANUAL, IN EFFECT DURING THE PERIOD OF THE PRIVATE'S CLAIM, PROVIDED IN PERTINENT PART, AS FOLLOWS:

044253 ABSENCE, IN CUSTODY OF CIVIL AUTHORITIES.

1. GENERAL. A MEMBER UNDER ARREST AND HELD BY CIVIL AUTHORITIES WILL RECEIVE NO PAY AND ALLOWANCES FOR THE TIME OF SUCH UNAUTHORIZED ABSENCE. IF HE IS RELEASED WITHOUT TRIAL OR AFTER TRIAL AND ACQUITTAL, EXCEPT UPON HIS AGREEMENT TO MAKE RESTITUTION OR REPARATION FOR THE ALLEGED OFFENSE FOR WHICH HE WAS TAKEN INTO CUSTODY, THE ABSENCE IS CONSIDERED AS UNAVOIDABLE, AND PAY AND ALLOWANCES FOR THE PERIOD OF SUCH ABSENCE WILL BE RETURNED UNLESS THE MEMBER IS SUBSEQUENTLY CONVICTED BY A COURT-MARTIAL ON THE SAME FACTS * * *.APPARENTLY, NO ACTION HAS BEEN TAKEN BY THE MARINE CORPS UNDER PARAGRAPH 044253. THE COMMANDANT OF THE MARINE CORPS, HOWEVER, ON THE BASIS OF THE FACTS IN THIS CASE, MADE A DETERMINATION UNDER PARAGRAPH 044254, OF THE SAME MANUAL, THAT THE MEMBER'S ABSENCE MAY NOT BE EXCUSED AS UNAVOIDABLE. THIS PARAGRAPH PRECLUDED PAYMENT OF PAY AND ALLOWANCES TO A MENTALLY INCOMPETENT MEMBER FOR A PERIOD OF UNAUTHORIZED ABSENCE, UNLESS SUCH ABSENCE IS EXCUSED AS UNAVOIDABLE.

IN A DECISION DATED DECEMBER 12, 1958, B-134538, WE CONSIDERED THE EFFECT OF THE ABOVE-QUOTED PROVISIONS OF PARAGRAPH 044253 IN THE CASE OF AN ENLISTED MAN OF THE NAVY WHOSE AUTHORIZED LEAVE EXPIRED WHILE HE WAS BEING HELD BY THE CIVIL AUTHORITIES UNDER CHARGES AGAINST HIM WHICH WERE SUBSEQUENTLY DISMISSED. WHILE WE HELD IN THAT CASE THAT IN THE LIGHT OF PARAGRAPH 044253, THE ENLISTED MAN WAS ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD HE WAS ABSENT IN THE HANDS OF THE CIVIL AUTHORITIES, THERE IS FOR NOTING THAT SUCH CONCLUSION WAS BASED ON THE ADDITIONAL FACT THAT SINCE NO ENTRY WAS MADE IN THE MAN'S SERVICE RECORD CHARGING HIM WITH "LOST TIME" UNDER THE CITED SEC NAV INSTRUCTION, HIS ABSENCE WAS CONSIDERED AS HAVING BEEN EXCUSED. THE SAME SITUATION IS NOT PRESENT IN THIS CASE, SINCE THE COMMANDANT, IN MESSAGE DATED MARCH 30, 1965, COPY OF WHICH YOU ENCLOSED, EXPRESSLY DETERMINED THAT THE MEMBER'S ABSENCE IN THE HANDS OF THE CIVIL AUTHORITIES MUST BE CONSIDERED AS "TIME LOST" FOR PAY PURPOSES. MOREOVER, PARAGRAPH 044254 WAS NOT INVOLVED, THAT IS, IT HAD NO APPLICATION, IN THE CASE CONSIDERED IN THE DECISION OF DECEMBER 12, 1958.

WHILE THE ENLISTED MAN'S SITUATION SEEMS TO BRING HIM WITHIN THE SCOPE OF EITHER PARAGRAPH 044253 OR 044254 OF THE NAVY COMPTROLLER MANUAL, IT IS OUR VIEW THAT IN THE ABSENCE OF A DETERMINATION BY PROPER AUTHORITIES THAT HIS ABSENCE DURING THE PERIOD OCTOBER 5, 1962, TO FEBRUARY 8, 1965, A PERIOD OF OVER 2-1/3 YEARS, WHILE HE WAS IN THE HANDS OF THE CIVIL AUTHORITIES, IS EXCUSED AS UNAVOIDABLE, THERE IS NO BASIS FOR CREDITING HIS FINAL PAY ACCOUNT WITH PAY AND ALLOWANCES FOR THAT PERIOD. CF. 40 COMP. GEN. 366; 47 ID. 214, AND AUTHORITIES THERE CITED. SEE, ALSO, THE CURRENT REGULATIONS, APPLICABLE TO ALL THE SERVICES, UNDER WHICH PAY AND ALLOWANCES OF AN ENLISTED MAN WHILE ABSENT IN CONFINEMENT BY THE CIVIL AUTHORITIES IS FORFEITED UNLESS A DETERMINATION IS MADE THAT THE ABSENCE IS EXCUSED AS UNAVOIDABLE. SEE PARAGRAPH 10314, CHAPTER 3, SECTION B, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, RULES AND 6, TABLES 1-3-2. TABLE 1-3-3 PRESCRIBES RULES FOR DETERMINING WHETHER ABSENCE IS UNAVOIDABLE AND STATES THAT SUCH ABSENCE MAY BE EXCUSED AS UNAVOIDABLE.