B-35015, JULY 22, 1943, 23 COMP. GEN. 44

B-35015, JULY 22, 1943, 23 COMP. GEN. 44

PAY - FORFEITURE UPON DESERTION - EFFECT OF REMOVAL OF "MARK OF DESERTION" WHERE NAVY REGULATIONS IMPOSE A DUTY UPON COMMANDING OFFICERS UNDER GIVEN CIRCUMSTANCES TO ENTER A "MARK OF DESERTION" AGAINST A PERSON'S ACCOUNT, THE FAILURE TO MAKE SUCH ENTRY IN THE RECORD OF A MAN WHOSE CONDUCT REQUIRES THAT ACTION DOES NOT NECESSARILY NEGATIVE THE PRESUMPTION OF DESERTION, SO AS TO JUSTIFY NONFORFEITURE OF PAY, WHERE THE FACTS OF A PARTICULAR CASE ARE SUCH AS TO BRING THE PERSON WITHIN THE APPLICABLE REGULATIONS. IN THE ABSENCE OF A SHOWING OF EXCUSABLE CIRCUMSTANCES OR AN ACQUITTAL OF THE CHARGE OF DESERTION BY COURT-MARTIAL PROCEEDINGS, THE UNAUTHORIZED ABSENCE FROM DUTY OF A NAVY ENLISTED MAN FOR ALMOST 90 DAYS TOGETHER WITH HIS SUBSEQUENT ARREST AS A DESERTER MUST BE VIEWED AS PRIMA FACIE EVIDENCE THAT THE ABSENCE WAS IN FACT "DESERTION," EVEN THOUGH THE "MARK OF DESERTION" PLACED AGAINST HIS ACCOUNT AS REQUIRED BY APPLICABLE NAVY REGULATIONS UNDER SUCH CIRCUMSTANCES WAS LATER REMOVED, AND PAYMENT MAY NOT BE MADE OF ANY AMOUNTS WHICH MAY HAVE ACCRUED TO HIS CREDIT PRIOR TO THE COMMENCEMENT DATE OF HIS ABSENCE FROM DUTY.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JULY 22, 1943:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 5, 1943, TRANSMITTING A LETTER FROM THE DISBURSING OFFICER, UNITED STATES NAVAL PRISON, NAVY YARD, PORTSMOUTH, NEW HAMPSHIRE, DATED MAY 6, 1943, AND REQUESTING A DECISION RELATIVE TO THE RIGHT OF ONE CLARENCE ARNOLD KNICKER, APPRENTICE SEAMAN, USNR, A GENERAL COURT-MARTIAL PRISONER, TO RECEIVE THE PAY OF HIS RATING UP TO JANUARY 8, 1943, UNDER THE CIRCUMSTANCES SET FORTH IN THE SAID LETTER.

THE DISBURSING OFFICER'S LETTER OF MAY 6, 1943, DISCLOSES THAT THE ENLISTED MAN WAS DECLARED A DESERTER ON JUNE 12, 1942, AND AGAIN ON JULY 21, 1942, AND THAT, AS A RESULT THEREOF, UNDER THE DATE OF NOVEMBER 28, 1942, HE WAS TRIED AND CONVICTED BY A GENERAL COURT MARTIAL OF THE LESSER CHARGES OF "ABSENCE FROM STATION AND DUTY AFTER LEAVE HAD EXPIRED" AND " ABSENCE FROM STATION AND DUTY WITHOUT LEAVE.' THE SENTENCE IMPOSED BY THE COURT-MARTIAL IS NOT DISCLOSED; HOWEVER, IT IS STATED THAT UNDER DATE OF DECEMBER 23, 1942, THE ACTING SECRETARY OF THE NAVY APPROVED THE PROCEEDINGS, FINDINGS AND SENTENCE IN THE CASE BUT ORDERED THE PERIOD OF CONFINEMENT WITH CORRESPONDING ACCESSORIES REDUCED TO TWENTY-FOUR MONTHS AND THE EXECUTION THEREOF HELD IN ABEYANCE WITH A VIEW TO WITHHOLDING ITS EXECUTION ENTIRELY UPON THE SUCCESSFUL COMPLETION OF A PROBATIONARY PERIOD OF SIX MONTHS. DURING THIS PERIOD KNICKER'S COMMANDING OFFICER WAS AUTHORIZED TO ORDER THE EXECUTION OF THE SENTENCE AS MITIGATED. AS A RESULT THEREOF KNICKER WAS RELEASED FROM ARREST AND RESTORED TO DUTY ON PROBATION. THE RECORD FURTHER DISCLOSES THAT ON JANUARY 7, 1943, IN VIEW OF THE CONVICTION OF KNICKER ON THE LESSER CHARGES, THE MARK OF DESERTION WAS REMOVED FROM HIS RECORD. THEREAFTER, ON JANUARY 8, 1943, KNICKER FAILED TO REPORT AT THE RECEIVING STATION AT PHILADELPHIA, PENNSYLVANIA, WITH A DRAFT FROM THE GREAT LAKES STATION. IT APPEARS, FURTHER, THAT HE WAS APPREHENDED AS A DESERTER IN CHICAGO, ILLINOIS, ON MARCH 30, 1943, AND THAT, AS A RESULT THEREOF, HIS PROBATIONARY PERIOD, PRESCRIBED BY VIRTUE OF HIS PREVIOUS CONVICTION, WAS TERMINATED.

ALSO, IN THE SAID LETTER OF MAY 6, 1943, IT IS STATED THAT---

THE TRANSFER PAY ACCOUNT, RECEIVED AT THIS STATION FROM THE GREAT LAKES, SHOWS THE MARK OF DESERTION REMOVED, APPARENTLY ASSUMING THAT THE FAILURE ON THE PART OF THE GOVERNMENT TO AGAIN TRY THIS MAN ON HIS FINAL DESERTION, OPERATES TO REMOVE THE MARK OF DESERTION.

IT IS NOT ENTIRELY CLEAR WHETHER THE MARK OF DESERTION REFERRED TO WAS REMOVED AS AN INCIDENT TO THE PRIOR CONVICTION OF A LESSER OFFENSE, BUT THE INFERENCE IS FAIRLY OBVIOUS FROM THE USE OF THE TERM "FINAL DESERTION" THAT THE MARK EVIDENCING THE FACT OF DESERTION HAD REFERENCE TO THE ABSENCE BEGINNING JANUARY 8, 1943, AND IF THIS BE CORRECT, ANY PAY DUE AT DATE OF THAT DESERTION WAS FORFEITED.

IT LONG HAS BEEN ESTABLISHED THAT, FOR THE PURPOSES OF FORFEITURE OF PAY, AS PRESCRIBED BY ARTICLE 1878, NAVY REGULATIONS, THE QUESTION OF DESERTION IS ONE OF FACT AND AS SUCH NEED NOT NECESSARILY BE ESTABLISHED BY THE FINDINGS OF A COURT-MARTIAL. GENERALLY THE MERE CHANGE OR ENTERING OF THE MARK OF DESERTION ON AN ENLISTED MAN'S RECORD IS A SUFFICIENT BASIS TO WITHHOLD ANY MONEYS DUE SUCH PERSONNEL. UNITED STATES V. LANDERS, 92 U.S. 77; 12 COMP. DEC. 328; 19 COMP. DEC. 488. SEE, ALSO, WINTHROP'S MILITARY LAW AND PRECEDENTS, PAGE 645.

ARTICLE 20 OF THE ARTICLES FOR THE GOVERNMENT OF THE NAVY, 34 U.S.C. 1200, PROVIDES:

RULES TO BE OBEYED BY---

EVERY COMMANDING OFFICER OF A VESSEL IN THE NAVY SHALL OBEY THE FOLLOWING RULES:

THIRD (DEATHS AND DESERTION).

HE SHALL CAUSE TO BE ACCURATELY MINUTED ON THE SHIP'S BOOKS THE NAMES OF ANY PERSON DYING OR DESERTING, AND THE TIMES AT WHICH SUCH DEATH OR DESERTION OCCURS.

ARTICLE 1878 OF THE NAVY REGULATIONS PROVIDES THAT THE WAGES DUE A DESERTER ARE FORFEITED TO THE UNITED STATES.

ARTICLE 1692, OF THE NAVY REGULATIONS PROVIDES* IN PERTINENT PART AS FOLLOWS:

"ABSENCE WITHOUT LEAVE" AND "ABSENCE OVER LEAVE" SHALL BE REGARDED BY COMMANDING OFFICERS AS ,DESERTION" WHEN ANY ONE OF THE FOLLOWING CONDITIONS OBTAIN, AND THE ACTION TO BE TAKEN IN THE CASE OF SUCH ABSENTEES SHALL BE THE SAME AS THAT TAKEN IN THE CASE OF "DESERTERS:"

(1) IN A CASE OF "ABSENCE WITHOUT LEAVE" ACTION SHALL BE TAKEN IMMEDIATELY UPON DISCOVERY OF THE FACT OF UNAUTHORIZED ABSENCE IF IT IS MANIFEST THAT THE ABSENTEE LEFT THE COMMAND WITH THE INTENTION NOT TO RETURN; IF THE INTENTION OF THE ABSENTEE IS NOT CLEARLY MANIFEST, THEN ACTION SHALL BE TAKEN AT THE END OF 30 DAYS.

(6) THE COMMANDING OFFICER SHALL CAUSE THE PROPER ENTRIES OF THE FACTS, OF WHICH HE SHALL BE THE JUDGE, TO BE MADE IN THE LOG AND ON THE SUPPLY OFFICER'S PAY ROLLS. * * *

ARTICLE 1693-2 OF THE NAVY REGULATIONS PROVIDES:

THE ENTRIES REQUIRED ARE:

FIRST. A CONCISE SUMMARY OF THE FACTS IN CONNECTION WITH THE UNAUTHORIZED ABSENCE SET FORTH IN SUCH MANNER AS TO SERVE AS PROOF IN SUPPORT OF A CHARGE OF "DESERTION" BASED UPON ONE OF THE CONDITIONS OUTLINED IN THE PRECEDING ARTICLE.

SECOND. "THE MARK OF DESERTION" WHICH CONSTITUTES IN ITSELF A CHARGE (BUT NOT MORE THAN A CHARGE) PREFERRED AGAINST THE ABSENTEE.

THE ABOVE REGULATIONS CLEARLY SET FORTH THE CIRCUMSTANCES UNDER WHICH THE MAN IS TO BE CONSIDERED A DESERTER. IN THIS CONNECTION, SEE REED V. UNITED STATES, 252 F. 21, 22. SUCH REGULATIONS IMPOSE A DUTY UPON COMMANDING OFFICERS UNDER GIVEN CIRCUMSTANCES TO ENTER A "MARK OF DESERTION" AGAINST THE PERSON'S ACCOUNT AND IF THERE BE A FAILURE OF A COMMANDING OFFICER SO TO CHARGE A MAN WHOSE CONDUCT CREATES THE REQUIREMENT FOR SUCH ACTION, SUCH FAILURE DOES NOT NECESSARILY NEGATIVE THE PRESUMPTION OF DESERTION WHERE THE FACTS OF A PARTICULAR CASE BRING THE PERSON WITHIN THE APPLICABLE REGULATIONS.

IN THE INSTANT CASE THE FACTS DISCLOSE AN UNAUTHORIZED ABSENCE FROM DUTY OF ALMOST 90 DAYS TOGETHER WITH A SUBSEQUENT ARREST AS A DESERTER. IN THE ABSENCE OF A SHOWING OF EXCUSABLE CIRCUMSTANCES OR AN ACQUITTAL OF THE CHARGE OF DESERTION BY COURT-MARTIAL PROCEEDINGS, THE FACTS AS DISCLOSED BY THE RECORD PRESENTED MUST BE VIEWED AS PRIMA FACIE EVIDENCE THAT KNICKER'S ABSENCE WAS IN FACT "DESERTION.' IN ANY EVENT, THE MATTER IS NOT SO FREE FROM DOUBT AS TO JUSTIFY THIS OFFICE IN AUTHORIZING PAYMENT TO KNICKER OF ANY AMOUNTS WHICH MAY HAVE ACCRUED TO HIS CREDIT PRIOR TO JANUARY 8, 1943, THE DATE OF COMMENCEMENT OF HIS LAST ABSENCE FROM DUTY.