B-171865, MAR 25, 1971

B-171865: Mar 25, 1971

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IS ALLOWABLE. ALTHOUGH CLAIMANT WAS CONFINED FROM APRIL 1. WHICH WAS AFTER HIS RELEASE FROM THE SERVICE ON OCTOBER 20. IS OF THE OPINION THAT CLAIMANT CONTINUED IN A PAY STATUS UNDER 10 U.S.C. 683(B) UNTIL THE DATE OF RELEASE FROM ACTIVE DUTY AND THEREFORE MAY BE PAID PAY AND ALLOWANCES UP TO THAT TIME. L. SMITH: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 18. YOUR REQUEST WAS FORWARDED UNDER D.O. WAS ORDERED TO TWO YEARS OF ACTIVE DUTY WITH HIS CONSENT AS AUTHORIZED BY 10 U.S.C. 672(D). HE WAS TRIED BEFORE A GENERAL COURT-MARTIAL CONVENED IN VIETNAM PURSUANT TO COURT-MARTIAL ORDER OF FEBRUARY 3. HE WAS FOUND GUILTY OF SPECIFIED CHARGES AND WAS SENTENCED TO CONFINEMENT FOR SIX MONTHS AND TO FORFEIT $250 A MONTH FOR SIX MONTHS.

B-171865, MAR 25, 1971

PAY AND ALLOWANCES - COURT MARTIAL - RELEASE FROM ACTIVE DUTY DECISION HOLDING THAT PAYMENT OF PAY AND ALLOWANCES TO 1ST. LT. JAMES B. DUFFY, INCIDENT TO ACTIVE DUTY WITH THE U.S. ARMY, IS ALLOWABLE. ALTHOUGH CLAIMANT WAS CONFINED FROM APRIL 1, TO AUGUST 31, 1970, FOLLOWING A GENERAL COURT-MARTIAL, AND HIS TWO-YEAR PERIOD OF OBLIGATED SERVICE EXPIRED ON AUGUST 4, 1970, THE COURT-MARTIAL CONVENING AUTHORITY DID NOT APPROVE THE SENTENCE (INCLUDING FORFEITURE OF PAY) UNTIL DECEMBER 2, 1970, WHICH WAS AFTER HIS RELEASE FROM THE SERVICE ON OCTOBER 20, 1970. SINCE CLAIMANT REMAINED UNDER MILITARY CONTROL UNTIL OCTOBER 20, 1970, AND THE FORFEITURE OF PAY DID NOT BECOME EFFECTIVE UNTIL DECEMBER 2, 1970, THE COMP. GEN. IS OF THE OPINION THAT CLAIMANT CONTINUED IN A PAY STATUS UNDER 10 U.S.C. 683(B) UNTIL THE DATE OF RELEASE FROM ACTIVE DUTY AND THEREFORE MAY BE PAID PAY AND ALLOWANCES UP TO THAT TIME.

TO CAPTAIN J. L. SMITH:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 18, 1970, REQUESTING AN ADVANCE DECISION REGARDING THE VALIDITY OF PAYMENT OF PAY AND ALLOWANCES TO FIRST LIEUTENANT JAMES B. DUFFY UNDER THE FOLLOWING DESCRIBED CIRCUMSTANCES. YOUR REQUEST WAS FORWARDED UNDER D.O. NO. A 1112, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

BY SPECIAL ORDER NO. 43 DATED JULY 18, 1968, LIEUTENANT DUFFY, A U.S. ARMY RESERVE OFFICER, WAS ORDERED TO TWO YEARS OF ACTIVE DUTY WITH HIS CONSENT AS AUTHORIZED BY 10 U.S.C. 672(D). HE WAS TRIED BEFORE A GENERAL COURT-MARTIAL CONVENED IN VIETNAM PURSUANT TO COURT-MARTIAL ORDER OF FEBRUARY 3, 1970, AS AMENDED BY COURT-MARTIAL ORDER DATED MARCH 23, 1970. HE WAS FOUND GUILTY OF SPECIFIED CHARGES AND WAS SENTENCED TO CONFINEMENT FOR SIX MONTHS AND TO FORFEIT $250 A MONTH FOR SIX MONTHS.

LIEUTENANT DUFFY WAS CONFINED FROM APRIL 1 TO AUGUST 31, 1970, AT AN INSTALLATION IN VIETNAM AND THEREAFTER SERVED IN AN ACTIVE DUTY STATUS UNTIL OCTOBER 20, 1970, WHEN HE WAS RELEASED FROM ACTIVE DUTY AT OAKLAND, CALIFORNIA, BY ORDERS OF THAT DATE, ISSUED PURSUANT TO A LETTER OF OCTOBER 14, 1970, FROM THE SECRETARY OF THE ARMY DIRECTING THAT ACTION BE TAKEN TO EFFECT HIS RELEASE. ON DECEMBER 2, 1970, THE COURT-MARTIAL CONVENING AUTHORITY APPROVED THE COURT-MARTIAL SENTENCE AND DIRECTED THAT THE FORFEITURE PROVISIONS SHALL APPLY TO PAY BECOMING DUE ON AND AFTER THE DATE OF THAT ACTION.

YOU POINT OUT THAT ON AUGUST 4, 1970, DURING THE PERIOD OF CONFINEMENT, LIEUTENANT DUFFY'S TWO-YEAR PERIOD OF OBLIGATED SERVICE EXPIRED. YOU CITE PARAGRAPH 10316B(2) OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL WHICH PROVIDES THAT IF A MEMBER'S ENLISTMENT EXPIRES WHILE HE IS CONFINED SERVING COURT MARTIAL SENTENCE, HE MAY RECEIVE NO PAY AND ALLOWANCES FROM THE DATE OF THE EXPIRATION UNTIL THE DATE HE IS RESTORED TO A FULL DUTY STATUS. WHILE RECOGNIZING THAT THIS PROVISION APPLIES ONLY TO ENLISTED PERSONNEL, YOUR LETTER REQUESTS A DECISION AS TO WHETHER SIMILAR ACTION IS APPROPRIATE IN THE CASE OF A RESERVE OFFICER WHOSE TERM OF ACTIVE SERVICE EXPIRES WHILE CONFINED SERVING A COURT-MARTIAL SENTENCE.

TITLE 10 OF THE U.S.C. SECTION 683(B), PROVIDES AS FOLLOWS:

"A RESERVE WHO IS KEPT ON ACTIVE DUTY AFTER HIS TERM OF SERVICE EXPIRES IS ENTITLED TO PAY AND ALLOWANCES WHILE ON THAT DUTY, EXCEPT AS THEY MAY BE FORFEITED UNDER THE APPROVED SENTENCE OF A COURT-MARTIAL OR BY NON- JUDICIAL PUNISHMENT BY A COMMANDING OFFICER OR WHEN HE IS OTHERWISE IN A NON-PAY STATUS."

WHILE LIEUTENANT DUFFY'S ACTIVE DUTY ORDERS OF JULY 18, 1968, INDICATE THAT HE WAS ORDERED TO ACTIVE DUTY WITH HIS CONSENT AS AN OBLIGATED VOLUNTEER OFFICER (OBV) FOR TWO YEARS, THE ORDERS CONTAINED NO PROVISION DIRECTING HIS RELEASE ON ANY SPECIFIED DATE. SECTION 681(A), TITLE 10 U.S.C., UNDER WHICH HIS RELEASE WAS DIRECTED PROVIDES THAT EXCEPT AS OTHERWISE PROVIDED, THE SECRETARY CONCERNED MAY, AT ANY TIME, RELEASE A RESERVE UNDER HIS JURISDICTION FROM ACTIVE DUTY.

IN THE CASE OF BERRY V UNITED STATES (1952), 107 F. SUPP. 849, THERE WAS CONSIDERED THE CASE OF A NAVAL RESERVE OFFICER ON ACTIVE DUTY WHO WAS DETACHED FROM DUTY AND ORDERED TO HIS HOME TO AWAIT RETIREMENT. THE ORDERS PROVIDED THAT UPON BEING PLACED ON THE RETIRED LIST ON SEPTEMBER 1, 1946, THE OFFICER WOULD REGARD HIMSELF RELIEVED OF ALL ACTIVE DUTY IN THE NAVY. ORDERS PLACING HIM ON THE RETIRED LIST WERE NOT ISSUED AND ON OCTOBER 4, 1946, FURTHER ORDERS WERE ISSUED DIRECTING THAT HE REPORT FOR DUTY. IN COMPLIANCE WITH THOSE ORDERS, HE REPORTED ON OCTOBER 20, 1946.

THE COURT OF CLAIMS HELD THAT THE OFFICER'S ACTIVE DUTY AWAITING ORDERS STATUS DID NOT TERMINATE ON SEPTEMBER 1, 1946, AND THAT HE WAS ENTITLED TO ACTIVE DUTY PAY FROM THAT DATE TO OCTOBER 19, 1946. THE COURT SAID THAT THE STATUTORY PROVISION THEN IN EFFECT, SIMILAR TO THE PRESENT SECTION 681(A), UNDER WHICH THE SECRETARY COULD RELEASE A RESERVE OFFICER TO INACTIVE DUTY, SEEMED TO CONTEMPLATE AFFIRMATIVE ACTION ON HIS PART IN ACHIEVING THAT RESULT. IN THE ABSENCE OF SUCH AFFIRMATIVE ACTION RELEASING THE OFFICER FROM ACTIVE DUTY, IT WAS HELD THAT HE CONTINUED IN AN ACTIVE DUTY PAY STATUS.

THE REASONING IN THAT CASE ALSO SEEMS TO BE APPLICABLE IN THE CASE OF LIEUTENANT DUFFY. HIS ACTIVE DUTY ORDERS DID NOT PROVIDE FOR HIS RELEASE ON ANY SPECIFIED DATE AND NO ORDERS WERE ISSUED TERMINATING HIS ACTIVE DUTY STATUS PRIOR TO OCTOBER 20, 1970. SINCE HE REMAINED UNDER MILITARY CONTROL UP TO THAT DATE AND AS HIS PAY WAS NOT FORFEITED BY THE TERMS OF HIS SENTENCE, WE ARE OF THE OPINION THAT HE CONTINUED IN A PAY STATUS UNDER 10 U.S.C. 683(B) UNTIL THE DATE OF HIS RELEASE FROM ACTIVE DUTY.

ACCORDINGLY, PAYMENT ON THE VOUCHERS SUBMITTED, WHICH ARE RETURNED HEREWITH, IS AUTHORIZED IF OTHERWISE CORRECT.