B-171097, DEC. 14, 1970

B-171097: Dec 14, 1970

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WHERE MEMBER HAS NOT EXERCISED HIS RIGHT OF APPEAL IT WOULD APPEAR THAT HE HAS CONSENTED TO THE FORFEITURE AND GAO CAN CONCLUDE THAT THE IMPOSITION WAS ILLEGAL ONLY IF ORDERS AUTHORIZING DUTY WERE IMPROPERLY DRAWN. BENDER: FURTHER REFERENCE IS MADE TO LETTER DATED OCTOBER 14. IT APPEARS THAT THE COAST GUARD PROCEDURE FOR ORDERING A RESERVIST TO INACTIVE DUTY FOR TRAINING IS ACCOMPLISHED BY ISSUING ORDERS TO THAT EFFECT WHICH DIRECT THE RESERVIST TO PERFORM SUCH DUTY. SUCH ORDERS INCLUDE A PROVISION TO THE EFFECT THAT AN INDIVIDUAL PERFORMING SUCH DUTY WILL BE SUBJECT TO THE UNIFORM CODE OF MILITARY JUSTICE. THAT HE WILL BE SUBJECT TO THE UNIFORM CODE OF MILITARY JUSTICE WHILE PERFORMING THE DUTY AUTHORIZED IN THE ORDERS.

B-171097, DEC. 14, 1970

U.S. COAST GUARD - INACTIVE RESERVE - NON-JUDICIAL PUNISHMENT DECISION ALLOWING FORFEITURE IN THE AMOUNT OF $15.58 TO BE CHARGED AGAINST MEMBER OF COAST GUARD RESERVE AS NON-JUDICIAL PUNISHMENT UNDER THE AUTHORITY OF ARTICLE 15 OF THE UNIFORM CODE OF MILITARY JUSTICE 10 U.S.C. 815, IN CONNECTION WITH ORDERS TO INACTIVE DUTY TRAINING. WHERE MEMBER HAS NOT EXERCISED HIS RIGHT OF APPEAL IT WOULD APPEAR THAT HE HAS CONSENTED TO THE FORFEITURE AND GAO CAN CONCLUDE THAT THE IMPOSITION WAS ILLEGAL ONLY IF ORDERS AUTHORIZING DUTY WERE IMPROPERLY DRAWN.

TO ADMIRAL CHESTER R. BENDER:

FURTHER REFERENCE IS MADE TO LETTER DATED OCTOBER 14, 1970, FROM MISS C. C. GORDON, AUTHORIZED CERTIFYING OFFICER, U.S. COAST GUARD, TO OUR CLAIMS DIVISION REQUESTING OUR VIEWS CONCERNING THE AUTHORITY OF A COMMANDING OFFICER OF AN INACTIVE RESERVE COMPONENT TO IMPOSE NON JUDICIAL PUNISHMENT UNDER ARTICLE 15, UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 815.

FROM THE INFORMATION PRESENTED, IT APPEARS THE COMMANDING OFFICER OF ORTUAG 03-83234, DETERMINED THAT A FORFEITURE IN THE AMOUNT OF $15.58 SHOULD BE CHARGED AGAINST THE PAY OF SN STEPHEN I. NEUMAN, 2075-278, USCGR, AS NON-JUDICIAL PUNISHMENT UNDER THE AUTHORITY OF ARTICLE 15 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 815. THE RECORD INDICATES THAT A LEGAL OFFICER OF THE COAST GUARD, CITING 44 MILITARY LAW REVIEW 123 -129 (D.A. PAM. 27-100-44, APRIL 1969), RAISED A QUESTION AS TO THE AUTHORITY OF THE ABOVE-MENTIONED COMMANDING OFFICER TO IMPOSE SUCH PUNISHMENT AND SUGGESTED THAT THE QUESTION BE PRESENTED TO THE COMPTROLLER GENERAL FOR DECISION.

IT APPEARS THAT THE COAST GUARD PROCEDURE FOR ORDERING A RESERVIST TO INACTIVE DUTY FOR TRAINING IS ACCOMPLISHED BY ISSUING ORDERS TO THAT EFFECT WHICH DIRECT THE RESERVIST TO PERFORM SUCH DUTY. SUCH ORDERS INCLUDE A PROVISION TO THE EFFECT THAT AN INDIVIDUAL PERFORMING SUCH DUTY WILL BE SUBJECT TO THE UNIFORM CODE OF MILITARY JUSTICE, CHAPTER 47, TITLE 10, U.S.C. BY FIRST ENDORSEMENT TO SUCH ORDERS THE RESERVIST CONCERNED AGREES, AMONG OTHER THINGS, THAT HE WILL BE SUBJECT TO THE UNIFORM CODE OF MILITARY JUSTICE WHILE PERFORMING THE DUTY AUTHORIZED IN THE ORDERS. COPY OF THE ORDERS OF JANUARY 29, 1969, ISSUED TO MR. NEUMAN IN THIS CASE BEARS HIS SIGNATURE TO THE FIRST ENDORSEMENT INDICATING THAT HE WAS AWARE THAT HE WAS SUBJECT TO THE UNIFORM CODE OF MILITARY JUSTICE AND ACCEPTED THIS STATUS. APPARENTLY, HIS COMMANDING OFFICER ACTED ON THE ASSUMPTION THAT HE WAS SUBJECT TO THE CODE.

FROM THE INFORMATION PROVIDED, IT APPEARS THAT MR. NEUMAN HAS NOT EXERCISED THE RIGHT OF APPEAL PROVIDED IN 10 U.S.C. 815(E) AND PARAGRAPH 135, MANUAL FOR COURTS-MARTIAL UNITED STATES, 1969 REVISED. HENCE, IT WOULD APPEAR THAT HE HAS CONSENTED TO THE FORFEITURE. IN SUCH CIRCUMSTANCES, THIS OFFICE COULD CONCLUDE THAT THE IMPOSITION OF THE FORFEITURE WAS IMPROPER OR ILLEGAL ONLY IF IT IS DETERMINED THAT THE ORDERS, AUTHORIZING THE DUTY, WERE IMPROPERLY DRAWN IN THEIR REFERENCE TO THE UNIFORM CODE OF MILITARY JUSTICE.

ON THE BASIS OF THE LIMITED RECORD AND ESPECIALLY THE ABSENCE OF A COMPLETE ADMINISTRATIVE REPORT SETTING FORTH THE POLICY OF THE COAST GUARD IN ISSUING ORDERS OF THIS TYPE, THIS OFFICE CANNOT CONCLUDE THAT THE FORFEITURE SHOULD NOT BE CHARGED AGAINST MR. NEUMAN'S PAY.

IF THE MEMBER IS DISSATISFIED WITH THE ACTION TAKEN AND DECIDES TO INSTITUTE AN APPEAL UNDER THE ABOVE-CITED PROVISIONS OF LAW AND REGULATION, THE FORFEITURE SHOULD NOT BE CHARGED AGAINST HIS PAY AT THIS TIME. AT THE TIME THE APPEAL IS BEING CONSIDERED OR WHEN THE MATTER IS FINALLY DECIDED, IF THERE IS ANY DOUBT AS TO WHETHER A DEDUCTION SHOULD BE MADE, THE SECRETARY OF TRANSPORTATION MAY REQUEST A DECISION WITH RESPECT TO THE AUTHORITY OF THE COMMANDING OFFICER OF AN INACTIVE RESERVE COMPONENT TO IMPOSE NON-JUDICIAL PUNISHMENT IN CIRCUMSTANCES SUCH AS ARE HERE INVOLVED. IN THE EVENT SUCH DECISION IS REQUESTED A COMPLETE STATEMENT OF THE FACTS INVOLVED, TOGETHER WITH A STATEMENT OF THE POSITION OF THE DEPARTMENT OF TRANSPORTATION ON THE LEGAL QUESTION PRESENTED, SHOULD ACCOMPANY THE REQUEST.