B-179149, MAY 3, 1974

B-179149, MAY 3, 1974

WHERE A MEMBER OF THE NAVAL RESERVE WAS ORDERED TO INVOLUNTARY ACTIVE DUTY FOR TRAINING FAILED TO COMPLY WITH ORDERS UNTIL APPREHENDED, HE WAS ENTITLED TO PAY AND ALLOWANCES DURING THE PERIOD HE WAS IN CONFINEMENT BY MILITARY AUTHORITIES AWAITING TRIAL BY COURT-MARTIAL, AND THEREAFTER WHILE SERVING A COURT-MARTIAL SENTENCE EXCEPT AS FORFEITED BY SUCH SENTENCE.

TO SN JOHN P. CHEAK:

THIS ACTION IS IN RESPONSE TO LETTER DATED JUNE 13, 1973 (FILE REFERENCE 301:LKM:RR 7220), WITH ENCLOSURES, FROM J. G. WEISEND, NAVY REGIONAL FINANCE CENTER, GREAT LAKES, ILLINOIS, REQUESTING AN ADVANCE DECISION REGARDING THE ENTITLEMENT OF SN JOHN P. CHEAK, USNR-R, 37-40 5022, TO ACTIVE DUTY PAY AND ALLOWANCES IN THE CIRCUMSTANCES DESCRIBED. THE REQUEST WAS FORWARDED TO THIS OFFICE BY LETTER DATED JULY 10, 1973, FROM THE OFFICE OF THE COMPTROLLER OF THE NAVY AND HAS BEEN ASSIGNED NAVY REQUEST NO. DO-N-1197 BY THE DEPARTMENT OF DEFENSE PAY AND ALLOWANCES COMMITTEE.

THE RECORD SHOWS THAT THE MEMBER WAS ORDERED TO SERVE A 45-DAY PERIOD OF INVOLUNTARY ACTIVE DUTY FOR TRAINING BY ACTIVE DUTY FOR TRAINING ORDER, ORDER SERIAL 0335-12-60-09, DATED NOVEMBER 13, 1972, ISSUED BY THE NAVAL RESERVE CENTER, GIRARDEAU, MISSOURI, TO REPORT TO THE COMMANDING OFFICER, U.S.S. DYESS, NEW YORK, NEW YORK, ON DECEMBER 10, 1972. THOSE ORDERS WERE AMENDED BY LETTER MODIFICATION NO. 1, DATED DECEMBER 8, 1972, ISSUED BY THE COMMANDER, NAVAL SURFACE RESERVE, OMAHA, NEBRASKA, CHANGING THE PLACE OF REPORTING TO THE U.S.S. JOHNSON, PHILADELPHIA, PENNSYLVANIA, AND THE DATE OF REPORTING TO DECEMBER 17, 1972.

THE SUBMISSION STATES THAT THE MEMBER FAILED TO REPORT AS ORDERED. WAS APPREHENDED BY THE CIVIL AUTHORITIES OF CARBONDALE CITY, ILLINOIS, ON MARCH 14, 1973, WHO IN TURN NOTIFIED THE NAVAL AUTHORITIES AT GREAT LAKES, ILLINOIS. HE REMAINED IN CIVIL CONFINEMENT UNTIL HE WAS PICKED UP BY NAVAL GUARD ON MARCH 15, 1973, AND WAS HELD IN NAVAL CONFINEMENT AT GREAT LAKES FROM MARCH 16, 1973, THROUGH MAY 2, 1973, PENDING DISCIPLINARY ACTION.

BY SPECIAL COURT-MARTIAL, DATED MAY 3, 1973, THE MEMBER WAS FOUND GUILTY OF ABSENTING HIMSELF FROM HIS ORGANIZATION FROM ON OR ABOUT DECEMBER 17, 1972, UNTIL ON OR ABOUT MARCH 14, 1973, AND THAT HE WAS TO BE REDUCED TO PAY GRADE E-1, CONFINED AT HARD LABOR FOR 45 DAYS, AND FINED $500. THE RESULTS OF THE COURT-MARTIAL WERE REVIEWED ON JUNE 8, 1973, WITH THE FINE BEING REDUCED TO $200 PER MONTH FOR TWO CONSECUTIVE MONTHS AND ONLY SO MUCH OF THE SENTENCE WHICH PROVIDED FOR REDUCTION TO PAY GRADE E-1 AND FORFEITURE OF $200 A MONTH FOR TWO MONTHS WAS APPROVED AND ORDERED EXECUTED.

BASED ON THE ABOVE, THE QUESTION IS ASKED AS TO WHETHER THE MEMBER, ORDERED TO "INVOLUNTARY ACDUTRA" AND WHO FAILS TO COMPLY WITH SUCH ORDERS, IS ENTITLED TO PAY AND ALLOWANCES AFTER BEING RETURNED TO MILITARY AUTHORITIES IN A DISCIPLINARY STATUS.

UNDER THE PROVISIONS OF ARTICLE 2 OF THE UNIFORM CODE OF MILITARY JUSTICE (ACT OF MAY 5, 1950), 64 STAT. 109, 10 U.S.C. 802, A MEMBER SUCH AS HERE INVOLVED, IS SUBJECT TO THE PROVISIONS OF THE CODE, SECTION 813 OF WHICH PROVIDES IN PART:

"SUBJECT TO SECTION 857 OF THIS TITLE (ARTICLE 57), NO PERSON, WHILE BEING HELD FOR TRIAL OR THE RESULT OF TRIAL, MAY BE SUBJECTED TO PUNISHMENT OR PENALTY OTHER THAN ARREST OR CONFINEMENT UPON THE CHARGES PENDING AGAINST HIM ***"

AND SUBSECTION 857(A) PROVIDES:

"WHENEVER A SENTENCE OF A COURT-MARTIAL AS LAWFULLY ADJUDGED AND APPROVED INCLUDES A FORFEITURE OF PAY OR ALLOWANCES IN ADDITION TO CONFINEMENT NOT SUSPENDED OR DEFERRED, THE FORFEITURE MAY APPLY TO PAY OR ALLOWANCES BECOMING DUE ON OR AFTER THE DATE THE SENTENCE IS APPROVED BY THE CONVENING AUTHORITY. NO FORFEITURE MAY EXTEND TO ANY PAY OR ALLOWANCES ACCRUED BEFORE THAT DATE."

THUS, THE FACT THAT A MEMBER OF THE ARMED FORCES IS UNDER CHARGES BY THE CIVILIAN OR MILITARY AUTHORITIES GENERALLY DOES NOT DEPRIVE HIM OF HIS PAY.

SUBPARAGRAPH 10316-A OF THE DEPARTMENT OF DEFENSE PAY AND ALLOWANCE ENTITLEMENTS MANUAL (DODPM), STATES GENERALLY THAT PAY AND ALLOWANCES ACCRUE TO A MEMBER WHILE IN MILITARY CONFINEMENT EXCEPT: (1) WHEN CONFINED BY MILITARY AUTHORITIES FOR CIVIL AUTHORITIES, (2) WHEN PAY AND ALLOWANCES ARE FORFEITED PURSUANT TO A COURT-MARTIAL SENTENCE, AND (3) WHEN TERM OF ENLISTMENT EXPIRES.

IN 44 COMP. GEN. 80 (1964), WHICH INVOLVED A SITUATION SIMILAR TO THE PRESENT CASE, WE HELD THAT AN ENLISTED PERSON WHO WAS ABSENT WITHOUT AUTHORITY DURING A PERIOD OF ORDERED ACTIVE DUTY WAS ENTITLED TO PAY BEGINNING ON THE DATE HE WAS RETURNED TO THE JURISDICTION OF THE ARMED FORCES, I.E., THE DATE DELIVERED TO MILITARY AUTHORITIES.

THE FIRST DAY THAT THE MEMBER CAME INTO MILITARY CONTROL FOR HIS ORDERED PERIOD OF ACTIVE DUTY WAS MARCH 15, 1973, THE DATE HE WAS PICKED UP BY NAVAL GUARD. IT IS OUR VIEW, THEREFORE, THAT THE MEMBER ENTERED A PAY STATUS ON THAT DATE.

THE MEMBER WAS CONFINED AWAITING TRIAL FROM MARCH 16, 1973, THROUGH MAY 2, 1973, AND ALTHOUGH THE RECORD IS UNCLEAR, HE PRESUMABLY REMAINED IN MILITARY CONFINEMENT UNTIL HIS DATE OF SEPARATION, JUNE 14, 1973. RULE 9, TABLE 1-3-2 OF THE DODPM, PROVIDES THAT WHEN A MEMBER IS ABSENT FROM DUTY IN MILITARY CONFINEMENT AND IS AWAITING TRIAL BY COURT MARTIAL HE IS ENTITLED TO OTHERWISE PROPER CREDITS OF PAY AND ALLOWANCES, AND RULE 10 OF THE SAME TABLE PROVIDES THAT WHEN A MEMBER IS IN MILITARY CONFINEMENT SERVING A COURT-MARTIAL SENTENCE WHICH INCLUDES A FORFEITURE OF PAY AND ALLOWANCES HE IS ENTITLED TO THE PAY AND ALLOWANCES WHICH ACCRUE BEFORE THE DATE OF SENTENCE WAS APPROVED BY THE CONVENING AUTHORITY AND TO ANY UNFORFEITED PAY AND ALLOWANCES ACCRUING AFTER THAT DATE.

ACCORDINGLY, SN CHEAK IS ENTITLED TO PAY AND ALLOWANCES DURING THE ENTIRE PERIOD OF HIS MILITARY CONFINEMENT, EXCEPT AS FORFEITED BY COURT MARTIAL SENTENCE, IF OTHERWISE CORRECT.