B-40619, MARCH 31, 1944, 23 COMP. GEN. 740

B-40619: Mar 31, 1944

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THE MAN WAS GIVEN THE OPTION OF RETURNING TO THE NAVAL SERVICE AND SURRENDERING HIS DISCHARGE OR OF RETURNING HIS DISCHARGE FOR REISSUE AS OF A CHARACTER WARRANTED BY HIS RECORD. PAYMENT OF THE PAY AND ALLOWANCES OF HIS RATING FOR THE INTERVENING PERIOD BETWEEN THE DATE OF HIS DISCHARGE AND THE DATE OF HIS RETURN TO DUTY IN ACCORDANCE WITH THE OPTION IS NOT AUTHORIZED. LEGALLY IS ENTITLED TO THE ACTIVE DUTY PAY AND ALLOWANCES OF HIS RATING FROM AUGUST 21. WAS TRIED BY SUMMARY COURT MARTIAL FOR (1) ABSENT OVER LEAVE 2 DAYS. WAS SENTENCED TO FORTY (40) DAYS CONFINEMENT AND A BAD CONDUCT DISCHARGE. APPROVED THE SENTENCE BUT THE BAD CONDUCT DISCHARGE WAS REMITTED PROVIDED BRUIN MAINTAINED A SATISFACTORY RECORD FOR A PERIOD OF SIX MONTHS. 2.

B-40619, MARCH 31, 1944, 23 COMP. GEN. 740

PAY - DISCHARGES AND DISMISSALS - SUBSEQUENT REINSTATEMENT WHERE, UPON THE SETTING ASIDE BY THE SECRETARY OF THE NAVY OF A COAST GUARD RESERVE ENLISTED MAN'S COURT-MARTIAL SENTENCE TO A BAD CONDUCT DISCHARGE, THE MAN WAS GIVEN THE OPTION OF RETURNING TO THE NAVAL SERVICE AND SURRENDERING HIS DISCHARGE OR OF RETURNING HIS DISCHARGE FOR REISSUE AS OF A CHARACTER WARRANTED BY HIS RECORD, PAYMENT OF THE PAY AND ALLOWANCES OF HIS RATING FOR THE INTERVENING PERIOD BETWEEN THE DATE OF HIS DISCHARGE AND THE DATE OF HIS RETURN TO DUTY IN ACCORDANCE WITH THE OPTION IS NOT AUTHORIZED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MARCH 31, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 3, 1944, IN WHICH YOU REQUEST DECISION WHETHER, UNDER THE CIRCUMSTANCES STATED IN A LETTER DATED FEBRUARY 23, 1944, FROM THE UNITED STATES COAST GUARD, EARL K. BRUIN, APPRENTICE SEAMAN, UNITED STATES COAST GUARD RESERVE, LEGALLY IS ENTITLED TO THE ACTIVE DUTY PAY AND ALLOWANCES OF HIS RATING FROM AUGUST 21, 1943, TO JANUARY 5, 1944. THE SAID COAST GUARD LETTER OF FEBRUARY 23, 1944, PRESENTS THE FOLLOWING FACTS:

1. ON MARCH 24, 1943, EARL K. BRUIN, SEAMAN SECOND CLASS, USCGR, WAS TRIED BY SUMMARY COURT MARTIAL FOR (1) ABSENT OVER LEAVE 2 DAYS, 16 HOURS, 30 MINUTES; (2) FOR DRUNKENNESS; AND WAS SENTENCED TO FORTY (40) DAYS CONFINEMENT AND A BAD CONDUCT DISCHARGE. THE CONVENING AUTHORITY ON MARCH 27, 1943, APPROVED THE SENTENCE BUT THE BAD CONDUCT DISCHARGE WAS REMITTED PROVIDED BRUIN MAINTAINED A SATISFACTORY RECORD FOR A PERIOD OF SIX MONTHS.

2. DURING BRUIN'S PROBATIONARY PERIOD, ON MAY 24, 1943, HE WENT ABSENT WITHOUT LEAVE UNTIL MAY 27, 1943, 3 DAYS, AND AS A RESULT OF SUMMARY COURT MARTIAL FOR THIS OFFENSE ON JULY 12, 1943, WAS SENTENCED TO 30 DAYS' CONFINEMENT AND LOSS OF PAY OF $25.00. THE SENTENCE WAS APPROVED JULY 20, 1943.

3. UNDER DATE OF AUGUST 20, 1943, BRUIN WAS ISSUED A BAD CONDUCT DISCHARGE FROM THE COAST GUARD RESERVE PURSUANT TO THE SENTENCE OF SUMMARY COURT MARTIAL HELD ON MARCH 24, 1943. ON OCTOBER 30, 1943, BY YOUR DIRECTION, SO MUCH OF THE SENTENCE OF THE SUMMARY COURT MARTIAL, AS ADJUDGED A BAD CONDUCT DISCHARGE, WAS SET ASIDE FOR THE REASON THAT THE SENTENCE OF THE COURT IMPOSED MORE THAN ONE OF THE SEPARATE PUNISHMENTS WHICH IT WAS LEGALLY EMPOWERED TO ADJUDGE.

4. BY REASON OF THE ACTION IN SETTING ASIDE THE BAD CONDUCT DISCHARGE, BRUIN WAS ADVISED ON NOVEMBER 15, 1943, THAT IF HE DESIRED TO COMPLETE HIS TERM OF ENLISTMENT IN THE COAST GUARD RESERVE TO REPORT TO THE DISTRICT COAST GUARD OFFICER, 5TH NAVAL DISTRICT, NORFOLK, VIRGINIA, OR IN CASE HE DID NOT DESIRE TO RETURN TO THE COAST GUARD, TO FORWARD HIS DISCHARGE CERTIFICATE FOR REISSUE TO ANOTHER TYPE OF DISCHARGE WARRANTED BY HIS RECORD. HE REPORTED AS INSTRUCTED ON JANUARY 6, 1944, AND WAS IMMEDIATELY ASSIGNED TO DUTY AT THE COAST GUARD BARRACKS, LITTLE CREEK, VIRGINIA.

SECTIONS 9 AND 17 OF THE ACT OF FEBRUARY 16, 1909, 35 STAT. 621, 623, PROVIDE:

SEC. 9. THAT THE SECRETARY OF THE NAVY MAY SET ASIDE THE PROCEEDINGS OR REMIT OR MITIGATE, IN WHOLE OR IN PART, THE SENTENCE IMPOSED BY ANY NAVAL COURT-MARTIAL CONVENED BY HIS ORDER OR BY THAT OF ANY OFFICER OF THE NAVY OR MARINE CORPS.

SEC. 17. THAT ALL SENTENCES OF SUMMARY COURTS-MARTIAL MAY BE CARRIED INTO EFFECT UPON THE APPROVAL OF THE SENIOR OFFICER PRESENT, AND ALL SENTENCES OF DECK COURTS MAY BE CARRIED INTO EFFECT UPON APPROVAL OF THE CONVENING AUTHORITY OR HIS SUCCESSOR IN OFFICE.

THE SAID SECTION 17 OF THE ACT OF FEBRUARY 16, 1909, WAS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 556, 586, WHICH READS---

NO SENTENCE OF A SUMMARY COURT-MARTIAL SHALL BE CARRIED INTO EXECUTION UNTIL THE PROCEEDINGS AND SENTENCE HAVE BEEN APPROVED BY THE OFFICER ORDERING THE COURT, OR HIS SUCCESSOR IN OFFICE, AND BY HIS IMMEDIATE SUPERIOR IN COMMAND: PROVIDED, THAT IF THE OFFICER ORDERING THE COURT OR HIS SUCCESSOR IN OFFICE, BE THE SENIOR OFFICER PRESENT, SUCH SENTENCE MAY BE CARRIED INTO EXECUTION UPON HIS APPROVAL THEREOF.

IN A DECISION DATED JANUARY 11, 1936, A-68890, THERE WAS CONSIDERED THE CASE OF AN ENLISTED MAN OF THE NAVY WHO HAD BEEN DISHONORABLY DISCHARGED THEREFROM PURSUANT TO A SENTENCE OF A GENERAL COURT MARTIAL. IN THAT CASE AFTER THE ENLISTED MAN HAD BEEN DISCHARGED, THE SENTENCE WAS MITIGATED AS TO CHARACTER OF DISCHARGE BY THE SECRETARY OF THE NAVY AND AS MITIGATED WAS REMITTED SUBJECT TO THE ENLISTED MAN'S CONDUCT FOR A PERIOD OF SIX MONTHS. AT THE TIME OF REMISSION BY THE SECRETARY OF THE NAVY THE ENLISTED MAN WAS ORDERED TO RETURN TO THE NAVAL SERVICE AND HE COMPLIED WITH SUCH ORDER WITHOUT DELAY. APPLYING THE VIEW EXPRESSED IN THE CASE OF HARRIS V. DANIELS, 279 F. 844, IT WAS HELD THAT THE ENLISTED MAN WAS NOT LEGALLY OUT OF THE SERVICE BY REASON OF THE DISHONORABLE DISCHARGE AND THAT CONSEQUENTLY, HE WAS ENTITLED TO THE PAY OF HIS RATING FROM THE DAY FOLLOWING SUCH DISCHARGE TO THE DAY HE RETURNED TO THE NAVAL SERVICE.

THE SAID DECISION OF JANUARY 11, 1936, WAS DISTINGUISHED IN THE CASE OF REY EUGENE DELEON, SEAMAN, SECOND CLASS, UNITED STATES NAVY, WHOSE CLAIM FOR PAY AND ALLOWANCES BETWEEN THE DATE HE RECEIVED A BAD CONDUCT DISCHARGE AND THE DATE HE RETURNED TO THE NAVAL SERVICE WAS CONSIDERED IN A DECISION DATED JULY 12, 1943, TO THE SECRETARY OF THE NAVY, B 33772. DELEON RECEIVED HIS DISCHARGE PURSUANT TO A SENTENCE BY A COURT MARTIAL, WHICH SENTENCE WAS LATER REMITTED BY THE SECRETARY OF THE NAVY. AFTER REMISSION OF THE SENTENCE THE ENLISTED MAN RETURNED TO THE NAVAL SERVICE IN ACCORDANCE WITH THE ADVICE FROM THE BUREAU OF NAVAL PERSONNEL THAT "IF HE DESIRED TO RETURN TO NAVAL CUSTODY HE SHOULD REPORT TO NAVY RECRUITING STATION, SEATTLE, WASHINGTON, OR IF HE DID NOT DESIRE TO COMPLETE HIS ENLISTMENT HE SHOULD FORWARD TO THE BUREAU OF NAVAL PERSONNEL THE BAD CONDUCT DISCHARGE PREVIOUSLY ISSUED SO THAT IT MIGHT BE REISSUED AS OF THE CHARACTER WARRANTED BY HIS RECORD.' BASED UPON THE PERMISSIVE NATURE OF THE INSTRUCTIONS FOR DELEON'S RETURN TO DUTY IT WAS HELD IN THE SAID DECISION OF JULY 12, 1943, AS FOLLOWS:

* * * IT APPEARS THAT UPON THE REMISSION OF THE BAD CONDUCT DISCHARGE BY ACTION OF THE SECRETARY, DELEON WAS GIVEN AN ELECTION, EITHER TO RETURN TO THE NAVY OR TO BE REGARDED AS HAVING BEEN DISCHARGED, THE CHARACTER OF THE DISCHARGE TO BE REDETERMINED. CLEARLY, THE ACTION THUS TAKEN DID NOT HAVE THE EFFECT OF AUTOMATICALLY RESTORING THE INDIVIDUAL INVOLVED TO THE STATUS OCCUPIED PRIOR TO THE FINDING AND SENTENCE. IF HE HAD FAILED EITHER TO REPORT FOR COMPLETION OF HIS ENLISTMENT OR TO RETURN HIS DISCHARGE FOR AMENDMENT AS TO THE CHARACTER THEREOF, PRESUMABLY THE BAD CONDUCT DISCHARGE OF JANUARY 29, 1942, WOULD HAVE BEEN PERMITTED TO STAND. ALSO, IF HE HAD ELECTED TO RETURN THE DISCHARGE FOR AMENDMENT AS TO THE CHARACTER THEREOF, IT MAY BE ASSUMED THAT THE EFFECTIVE DATE OF THE AMENDED DISCHARGE WOULD HAVE REMAINED AS JANUARY 29, 1942. UNDER THESE CIRCUMSTANCES IT IS NOT REASONABLE TO CONCLUDE THAT THE ACTION OF DELEON IN RETURNING TO THE NAVY ALMOST A YEAR AFTER HE HAD BEEN DISCHARGED THEREFROM COULD OPERATE TO RESTORE HIM TO A PAY STATUS DURING SUCH INTERVENING PERIOD. SEE, ALSO, DECISION DATED SEPTEMBER 21, 1943, B- 36797.

IN THE PRESENT CASE IT APPEARS THAT BRUIN WAS GIVEN A BAD CONDUCT DISCHARGE ON AUGUST 20, 1943, PURSUANT TO THE SENTENCE OF A SUMMARY COURT MARTIAL, WHICH SENTENCE, INSOFAR AS THE DISCHARGE IS CONCERNED, WAS SET ASIDE BY THE SECRETARY OF THE NAVY "FOR THE REASON THAT THE SENTENCE OF THE COURT IMPOSED MORE THAN ONE OF THE SEPARATE PUNISHMENTS WHICH IT WAS LEGALLY EMPOWERED TO ADJUDGE.' HE WAS GIVEN THE SAME OPTION IN THAT CONNECTION AS WAS GIVEN TO DELEON, WHOSE CASE WAS CONSIDERED IN THE DECISION OF JULY 12, 1943; THAT IS, HE COULD RETURN TO THE NAVAL SERVICE AND SURRENDER HIS DISCHARGE OR HE COULD CONSIDER HIMSELF DISCHARGED, MERELY RETURNING HIS DISCHARGE FOR REISSUE AS OF A CHARACTER WARRANTED BY HIS RECORD. ACTUALLY BRUIN RETURNED TO THE NAVAL SERVICE ON JANUARY 6, 1944, BUT SINCE HIS RETURN WAS LEFT TO HIS CHOICE, IF HE HAD FAILED TO RETURN, HIS BAD CONDUCT DISCHARGE, AMENDED AS TO THE CHARACTER THEREOF, APPARENTLY WOULD HAVE BEEN CONSIDERED AN EFFECTIVE TERMINATION OF HIS STATUS IN THE COAST GUARD. ACCORDINGLY, YOU ARE ADVISED THAT THE ENLISTED MAN IS NOT ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES OF HIS RATING FOR THE PERIOD AUGUST 21, 1943 TO JANUARY 5, 1944.