B-35009, JANUARY 24, 1944, 23 COMP. GEN. 535

B-35009, JANUARY 24, 1944, 23 COMP. GEN. 535

PAY - RETIRED - PRESIDENTIAL APPROVAL OF ENLISTED MAN'S RETIREMENT WHILE UNDER COURT-MARTIAL SENTENCE TO CONFINEMENT AND DISCHARGE THE ACTION OF THE PRESIDENT IN APPROVING THE RECOMMENDATION OF A COAST GUARD RETIRING BOARD, RETIRING AN ENLISTED MAN WHO WAS UNDER COURT-MARTIAL SENTENCE PRESCRIBING CONFINEMENT AND A BAD CONDUCT DISCHARGE, MAY NOT BE CONSIDERED AS HAVING THE EFFECT OF RESTORING THE ENLISTED MAN TO A PAY STATUS ON THE ACTIVE LIST OR AS PLACING HIM IN A PAY STATUS ON THE RETIRED LIST PENDING THE EXECUTION OR REMISSION OF THE COURT-MARTIAL SENTENCE. WHERE A COAST GUARD ENLISTED MAN SENTENCED BY A COURT-MARTIAL TO CONFINEMENT AND DISHONORABLE DISCHARGE IS RESTORED TO DUTY ON PROBATION, HE IS ENTITLED UNDER HIS CONTRACT OF ENLISTMENT TO THE PAY AND ALLOWANCE PROVIDED FOR MEN OF HIS RATING FOR THE TIME WHILE ON PROBATION AND PERFORMING DUTY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 24, 1944:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF JUNE 5, 1943, TRANSMITTING A LETTER DATED MAY 31, 1943, FROM THE COMMANDANT, UNITED STATES COAST GUARD, IN PERTINENT PART AS FOLLOWS:

1. IT APPEARS FROM THE RECORDS THAT JOE L. RAMAT (217-377), WHILE SERVING AS AN OFFICER'S STEWARD THIRD CLASS, U.S. COAST GUARD, WAS TRIED BY A GENERAL COURT-MARTIAL AT THE PUGET SOUND NAVY YARD, BREMERTON, WASHINGTON, FOR "ABSENCE FROM STATION AND DUTY AFTER LEAVE HAD EXPIRED" AND SENTENCED TO BE REDUCED TO THE RATING OF MESS ATTENDANT THIRD CLASS, TO BE CONFINED FOR A PERIOD OF SIX MONTHS, THEN TO BE DISCHARGED WITH A BAD CONDUCT DISCHARGE AND TO SUFFER ALL THE OTHER ACCESSORIES OF SAID SENTENCE AS PRESCRIBED BY SECTION 622, NAVAL COURTS AND BOARDS. THE ACTING SECRETARY OF THE NAVY, ON 8 AUGUST, 1942, APPROVED THE SENTENCE, BUT THE EXECUTION OF THE SENTENCE WAS HELD IN ABEYANCE WITH A VIEW TO WITHHOLDING ITS EXCEPTION ENTIRELY UPON THE SUCCESSFUL COMPLETION OF A PROBATIONARY PERIOD OF TWELVE MONTHS.

2. FOR VIOLATING HIS PROBATION ON 24 SEPTEMBER, 1942, THE SUSPENSION OF RAMAT'S SENTENCE WAS TERMINATED AND HE WAS PLACED IN THE RECEIVING STATION, PUGET SOUND NAVY YARD, ON 1 OCTOBER, 1942 FOR TEMPORARY CONFINEMENT PENDING DESIGNATION OF A PLACE OF PERMANENT CONFINEMENT.

3. WHILE UNDERGOING CONFINEMENT AS A RESULT OF THE SENTENCE OF THE GENERAL COURT-MARTIAL REFERRED TO, RAMAT WAS ADMITTED TO THE PUGET SOUND NAVY YARD HOSPITAL FOR MEDICAL TREATMENT AND WHILE CONVALESCING DEVELOPED A MENTAL CONDITION WHICH NECESSITATED HIS REMOVAL TO THE VETERAN'S HOSPITAL AT ROSEBURG, OREGON. ON 23 JANUARY, 1943, RAMAT WAS ORDERED TO APPEAR BEFORE A COAST GUARD RETIRING BOARD CONVENED AT THE U.S. MARINE HOSPITAL, SEATTLE, WASHINGTON. THIS RETIRING BOARD RECOMMENDED RAMAT'S RETIREMENT, WHICH RECOMMENDATION WAS APPROVED BY THE PRESIDENT ON 30 APRIL, 1943. ON MAY 1, 1943, RAMAT WAS PLACED ON THE RETIRED LIST.

4. THE STATUS OF RAMAT AT THE TIME THE RETIRING BOARD ACTED UPON HIS RETIREMENT WAS THAT OF A NAVAL COURT-MARTIAL PRISONER UNDERGOING SENTENCE, WHICH SENTENCE CARRIED WITH IT FORFEITURE OF ALL PAY AND ALLOWANCES AS PRESCRIBED BY SECTION 622, NAVAL COURTS AND BOARDS. THE RECORDS AT HEADQUARTERS SHOW THAT RAMAT HAD COMPLETED SIX YEARS' SERVICE PRIOR TO CONFINEMENT, AND WAS AT THAT TIME BEING CREDITED WITH PAY AT THE RATE OF $55.00 PER MONTH. THE ORDER PLACING HIM ON THE RETIRED LIST STATED THAT HIS MONTHLY RETIRED PAY WOULD BE $41.25, WHICH IS SEVENTY-FIVE PERCENTUM OF $55.00. THE RECORDS SHOW THAT THERE WAS DUE RAMAT AND UNPAID ON 1 OCTOBER, 1942, THE SUM OF $213.72 WHICH SUM HAD ACCRUED TO HIM WHILE UNDERGOING TRAIL AND FINAL ACTION IN HIS CASE.

UPON THE BASIS OF SUCH FACTS, YOU SUBMIT THE FOLLOWING QUESTIONS FOR DECISION:

(A) WHETHER RAMAT, WHOSE STATUS ON THE DATE OF HIS RETIREMENT WAS THAT OF A NAVAL COURT-MARTIAL PRISONER UNDERGOING SENTENCE WHICH PRESCRIBED CONFINEMENT AND A BAD CONDUCT DISCHARGE AT THE END OF THE TERM OF CONFINEMENT, IS ENTITLED TO RETIRED PAY?

(B) WHAT IS THE CORRECT RATE OF RETIRED PAY TO WHICH RAMAT WILL BE ENTITLED IN THE EVENT QUESTION (A) IS ANSWERED IN THE AFFIRMATIVE?

(C) IS RAMAT ENTITLED TO THE PAY AND ALLOWANCES WHICH ACCRUED TO HIS CREDIT PRIOR TO OCTOBER 1, 1942, THE DATE ON WHICH THE SUSPENSION OF HIS ORIGINAL SENTENCE WAS TERMINATED BY REASON OF VIOLATING HIS PROBATION AND HIS PRIOR SENTENCE OF CONFINEMENT BECAME EFFECTIVE?

IT DOES NOT APPEAR THAT INFORMATION CONCERNING RAMAT'S COURT-MARTIAL SENTENCE OR HIS STATUS AS A COURT-MARTIAL PRISONER WAS BEFORE THE PRESIDENT WHEN HE APPROVED THE RECOMMENDATION OF THE RETIRING BOARD AND, HOWEVER THAT MAY BE, IT SEEMS EVIDENT THAT THE PRESIDENT'S ACTION WAS NOT A CONSTRUCTIVE PARDON AND DID NOT IMPLIEDLY REMIT THE APPROVED COURT- MARTIAL SENTENCE ADJUDGING, INTER ALIA, THAT RAMAT BE DISCHARGED WITH A BAD CONDUCT DISCHARGE AFTER COMPLETING THE STIPULATED PERIOD OF CONFINEMENT. SEE 31 OP. ATTY. GEN. 419. THE EXECUTION OF THE SENTENCE IN SUCH RESPECT WAS NOT RENDERED IMPOSSIBLE BY THE TRANSFER OF RAMAT TO THE RETIRED LIST AND, UNDER SUCH CONDITIONS, THE PRESIDENT'S ACTION IN APPROVING THE RECOMMENDATION OF THE RETIRING BOARD MAY NOT BE CONSIDERED AS HAVING THE EFFECT OF RESTORING THE ENLISTED MAN TO A PAY STATUS ON THE ACTIVE LIST OR AS PLACING HIM IN A PAY STATUS ON THE RETIRED LIST PENDING THE EXECUTION OR REMISSION OF THE COURT-MARTIAL SENTENCE DIRECTING THAT HE BE DISCHARGED WITH A BAD CONDUCT DISCHARGE. WHILE NO PRECEDENTS CLEARLY DECISIVE OF THE QUESTION HAVE BEEN FOUND--- AND NONE WAS CITED WITH YOUR SUBMISSION--- THE MATTER APPEARS AT LEAST TOO DOUBTFUL TO WARRANT THIS OFFICE IN APPROVING THE PAYMENT OF RETIRED PAY TO RAMAT UNDER THE CONDITIONS STATED. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE, THEREBY RENDERING UNNECESSARY ANY ANSWER TO YOUR SECOND QUESTION.

WITH RESPECT TO YOUR THIRD QUESTION, IT APPEARS THAT RAMAT WAS PLACED ON PROBATION AUGUST 8, 1942, CONCURRENTLY WITH THE APPROVAL OF HIS COURT- MARTIAL SENTENCE AND THAT HE SERVED ON ACTIVE DUTY UNTIL OCTOBER 1, 1942, WHEN, IN CONSEQUENCE OF A VIOLATION OF HIS PROBATION, THE SUSPENSION OF HIS SENTENCE WAS TERMINATED AND HE WAS PLACED IN CONFINEMENT PURSUANT TO SUCH SENTENCE. IT HAS BEEN HELD THAT WHERE AN ENLISTED MAN OF THE NAVY SENTENCED BY A COURT-MARTIAL TO CONFINEMENT AND DISHONORABLE DISCHARGE IS RESTORED TO DUTY ON PROBATION, HE IS ENTITLED UNDER HIS CONTRACT OF ENLISTMENT TO THE PAY PROVIDED FOR MEN OF HIS RATING FOR THE TIME WHILE ON PROBATION AND PERFORMING DUTY. SEE DECISION TO YOU UNDER DATE OF APRIL 26, 1943, B-33539, AND CASES THEREIN CITED. THE SAME RULE APPEARS APPLICABLE IN THE PRESENT CASE, AND IT FOLLOWS THAT RAMAT, HAVING BEEN RESTORED TO ACTIVE DUTY ON PROBATION AND HAVING PERFORMED DUTY UNTIL THE TERMINATION OF HIS PROBATIONARY PERIOD ON OCTOBER 1, 1942, IS ENTITLED TO THE PAY AND ALLOWANCES WHICH ACCRUED TO HIS CREDIT PRIOR TO THAT DATE. THEREFORE, YOUR THIRD QUESTION IS ANSWERED IN THE AFFIRMATIVE.