B-35120, JUL 29, 1943

B-35120, JUL 29, 1943

PRECIS-UNAVAILABLE

COLONEL J. N. MCFALL, F.D., U.S. ARMY:

THERE WAS RECEIVED BY SECOND INDORSEMENT DATED JUNE 11, 1943, YOUR LETTER OF MAY 12, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, TRANSMITTED THEREWITH, IN FAVOR OF JULIAN M. HARPER SERIAL NO. 20419376 (NC), PRIVATE, COMPANY D, 124TH INFANTRY, COVERING PAY FOR THE PERIOD MAY 21, 1942, TO FEBRUARY 8, 1943.

FROM THE INFORMATION SUBMITTED WITH YOUR REQUEST IT APPEARS THAT ON JULY 24, 1941, HARPER WAS TRIED BY A GENERAL COURT-MARTIAL AND SENTENCED TO BE DISHONORABLY DISCHARGED, TO FORFEIT ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE AND TO BE CONFINED FOR ONE YEAR AND ONE DAY. ON MAY 21, 1942, BEFORE HE HAD COMPLETED HIS PERIOD OF CONFINEMENT, THE UNEXECUTED PORTION THEREOF AND THE FORFEITURE OF PAY AND ALLOWANCES WERE REMITTED AND THE PORTION OF THE SENTENCE DIRECTING DISHONORABLE DISCHARGE WAS SUSPENDED. GENERAL COURT-MARTIAL ORDERS NO. 19, HEADQUARTERS 31ST INFANTRY DIVISION, CAMP BOWIE, TEXAS. THE LATTER ORDER WAS ISSUED "BY COMMAND OF MAJOR GENERAL PERSONS." PURSUANT TO SUCH ORDER THE ENLISTED MAN WAS RELEASED FROM CONFINEMENT AND RETURNED TO DUTY; HOWEVER, IN AN OPINION DATED DECEMBER 29, 1942, THE JUDGE ADVOCATE GENERAL, WAR DEPARTMENT, HELD THAT THE COMMANDING GENERAL, 31ST DIVISION, DID NOT HAVE GENERAL COURT-MARTIAL JURISDICTION OVER THE ENLISTED MAN ON MAY 21, 1942, AND THAT "HAVING LIST GENERAL COURT MARTIAL JURISDICTION OVER THE PRISONER, SO MUCH OF GENERAL COURT MARTIAL ORDERS NO. 19, MAY 21, 1942, AS ATTEMPTS TO REMIT THE UNEXECUTED PORTION OF THE SENTENCE TO CONFINEMENT AND FORFEITURE OF PAY IS INVALID." IT WAS RECOMMENDED IN SAID OPINION THAT THE CASE BE REFERRED TO THE OFFICER HAVING GENERAL COURT-MARTIAL JURISDICTION OVER THE ENLISTED MAN WITH THE RECOMMENDATION THAT THE UNEXECUTED PORTION OF THE SENTENCE BE REMITTED. GENERAL COURT-MARTIAL ORDERS NO. 207, DATED FEBRUARY 9, 1943, HEADQUARTERS FOURTH SERVICE COMMAND, IS AS FOLLOWS:

"IN THE CASE OF GENERAL PRISONER JULIAN M. RAEPER, (FORMERLY PRIVATE FIRST CLASS, 20419376, COMPANY D, 124TH INFANTRY (R), NOW AT FORT BENNING, GEORGIA, THE UNEXECUTED PORTION OF THE SENTENCE AS PUBLISHED IN GENERAL COURT-MARTIAL ORDERS NO. 21, HEADQUARTERS 31ST INFANTRY DIVISION, A.P.O. 31, BAGLEY, LOUISIANA, SEPTEMBER 1, 1941, AND CORRECTED COPY THEREOF ISSUED AT CAMP BLANDING FLORIDA, OCTOBER 21, 1941, IS REMITTED. THIS SOLDIER WILL BE RESTORED TO DUTY AND ASSIGNED TO AN ORGANIZATION AT FORT BENNING, GEORGIA. (201-JA).

"BY COMMAND OF MAJOR GENERAL BEYDEN:"

THE ACT OF MARCH 4, 1915, 38 STAT. 1065, PROVIDES:

"THAT HEREAFTER PAY AND ALLOWANCES SHALL NOT ACCRUE TO A SOLDIER UNDER SENTENCE OF DISHONORABLE DISCHARGE, DURING SUCH PERIOD AS THE EXECUTION OF THE SENTENCE OF DISCHARGE MAY BE SUSPENDED UNDER AUTHORITY OF THE ACT OF CONGRESS APPROVED APRIL TWENTY-SEVENTH, NINETEEN HUNDRED AND FOURTEEN

THE ACT OF APRIL 27, 1914, 38 STAT. 354, REFERRED TO PROVIDED:

"THAT THE REVIEWING AUTHORITY MAY SUSPEND THE EXECUTION OF A SENTENCE OF DISHONORABLE DISCHARGE UNTIL THE SOLDIER'S RELEASE FROM CONFINEMENT, BUT THE ORDER OF SUSPENSION MAY BE VACATED AT ANY TIME AND THE EXECUTION OF THE DISHONORABLE DISCHARGE DIRECTED BY THE OFFICER HAVING GENERAL COURT- MARTIAL JURISDICTION OVER THE COMMAND IN WHICH THE SOLDIER IS HELD, OR BY THE SECRETARY OF WAR ***."

IT WAS HELD IN A DECISION DATED JANUARY 21, 1936, 15 COMP.GEN. 646, THAT THE ACT OF MARCH 4, 1915, SUPRA, IS NOT APPLICABLE IN THE CASE OF A SOLDIER WHOSE SENTENCE TO DISHONORABLE DISCHARGE AND FORFEITURE OF ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE IS SUSPENDED BY THE REVIEWING AUTHORITY AND WHO IS RESTORED TO DUTY WITH HIS ORGANIZATION. WHILE IN THE PRESENT CASE THE ORDER OF MAY 21, 1942, WAS HELD TO BE INVALID, BEFORE ITS INVALIDITY WAS DETERMINED THE ENLISTED MAN WAS RETURNED TO DUTY. HE WAS NOT DISHONORABLY DISCHARGED FROM THE SERVICE AND BECAUSE OF HIS RETURN TO DUTY THERE REMAINED UNEXECUTED A PORTION OF HIS SENTENCE TO CONFINEMENT. IT WAS HIS SENTENCE TO DISHONORABLE DISCHARGE AND THE UNEXECUTED PORTION OF HIS SENTENCE TO CONFINEMENT AND FORFEITURES WHICH WERE REMITTED BY THE ORDER OF FEBRUARY 9, 1943. SINCE THE ENLISTED MAN WAS RETURNED TO DUTY, IN WHICH STATUS PAY ACCRUED (15 COMP.GEN. 646), THE UNEXECUTED PORTION OF HIS SENTENCE ON MAY 21, 1942, REMAINED THE SAME UNTIL IT WAS REMITTED BY THE ORDER OF FEBRUARY 9, 1943. THEREFORE, THE REMISSION WAS IN EFFECT A REMISSION AS OF MAY 21, 1942, WHICH WOULD ENTITLE THE SOLDIER TO PAY FROM THAT DATE. ACCORDINGLY, THE ENLISTED MAN IS ENTITLED TO PAY AND ALLOWANCES FROM THE DAY HE WAS RETURNED TO DUTY. PAYMENT ON THE VOUCHER, RETURNED HEREWITH, IF OTHERWISE CORRECT, IS AUTHORIZED.