B-48897, JUNE 7, 1945, 24 COMP. GEN. 879

B-48897: Jun 7, 1945

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PAY - ABSENCE IN CUSTODY OF CIVIL AUTHORITIES A NAVY ENLISTED MAN IS NOT ENTITLED TO PAY FOR THE PERIOD OF HIS ABSENCE FROM NAVAL JURISDICTION AND CONTROL WHILE IN THE CUSTODY OF CIVIL AUTHORITIES BY REASON OF CRIMINAL CHARGES OF WHICH HE WAS CONVICTED OR TO WHICH HE PLEADED GUILTY. NOTWITHSTANDING THE FACT THAT HE WAS SUBSEQUENTLY ACQUITTED BY A COURT MARTIAL ON A CHARGE OF ABSENCE FROM DUTY AFTER LEAVE HAD EXPIRED. A NAVY ENLISTED MAN IS NOT ENTITLED TO PAY FOR THE PERIOD OF HIS ABSENCE FROM NAVAL JURISDICTION AND CONTROL WHILE IN THE CUSTODY OF CIVIL AUTHORITIES AS A RESULT OF A CRIMINAL OFFENSE TO WHICH HE PLEADED GUILTY. EVEN THOUGH HE WAS RELEASED TO NAVAL AUTHORITIES WITHOUT IMPOSITION OF A SENTENCE OR PUNISHMENT.

B-48897, JUNE 7, 1945, 24 COMP. GEN. 879

PAY - ABSENCE IN CUSTODY OF CIVIL AUTHORITIES A NAVY ENLISTED MAN IS NOT ENTITLED TO PAY FOR THE PERIOD OF HIS ABSENCE FROM NAVAL JURISDICTION AND CONTROL WHILE IN THE CUSTODY OF CIVIL AUTHORITIES BY REASON OF CRIMINAL CHARGES OF WHICH HE WAS CONVICTED OR TO WHICH HE PLEADED GUILTY, NOTWITHSTANDING THE FACT THAT HE WAS SUBSEQUENTLY ACQUITTED BY A COURT MARTIAL ON A CHARGE OF ABSENCE FROM DUTY AFTER LEAVE HAD EXPIRED, WITHOUT PROPER AUTHORITY. A NAVY ENLISTED MAN IS NOT ENTITLED TO PAY FOR THE PERIOD OF HIS ABSENCE FROM NAVAL JURISDICTION AND CONTROL WHILE IN THE CUSTODY OF CIVIL AUTHORITIES AS A RESULT OF A CRIMINAL OFFENSE TO WHICH HE PLEADED GUILTY, EVEN THOUGH HE WAS RELEASED TO NAVAL AUTHORITIES WITHOUT IMPOSITION OF A SENTENCE OR PUNISHMENT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JUNE 7, 1945:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 30, 1945, AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH A LETTER FROM THE DISBURSING OFFICER, U.S. NAVAL FRONTIER BASE, LITTLE CREEK, VIRGINIA, DATED FEBRUARY 19, 1945, WITH ENCLOSURES AND ACCOMPANYING ENDORSEMENT RELATIVE TO THE QUESTION AS TO WHETHER AN ENLISTED MAN IS ENTITLED TO PAY AND ALLOWANCES FOR A 77 DAY PERIOD OF TIME, DURING WHICH HE WAS IN THE CUSTODY OF CIVIL AUTHORITIES SERVING SENTENCE OF CONFINEMENT AND PENDING TRIAL ON CRIMINAL CHARGES.

THE RECORDS OF THE NAVY DEPARTMENT SHOW AS FOLLOWS:

(1) THAT JENNINGS B. LEDWELL, SC3/C. USNR, WHILE ATTACHED TO THE NAVAL FRONTIER BASE, LITTLE CREEK, VIRGINIA, WAS GRANTED LIBERTY UNTIL 8:00 A.M. ON AUGUST 31, 1944.

(2) THAT AT OR ABOUT 1:45 A.M. ON AUGUST 31, 1944, LEDWELL WAS ARRESTED BY THE CIVIL AUTHORITIES AT OR NEAR ELIZABETH CITY, N.C., AND CHARGED WITH RECKLESS DRIVING, SPEEDING, OPERATING A VEHICLE WITHOUT DRIVER'S LICENSE, AND LARCENY OF A CAR.

(3) THAT LEDWELL WAS CONFINED TO JAIL FROM AUGUST 31, 1944 TO SEPTEMBER 6, 1944, AT WHICH TIME HE WAS TRIED IN THE RECORDER'S COURT, ELIZABETH CITY, N.C., AND FOUND GUILTY ON THE FIRST 3 ABOVE MENTIONED CHARGES AND SENTENCED TO SERVE 30 DAYS IN JAIL.

(4) THAT LEDWELL SERVED SAID SENTENCE FROM SEPTEMBER 7, 1944 TO OCTOBER 6, 1944, INCLUSIVE.

(5) THAT LEDWELL WAS INDICTED ON A FELONY CHARGE OF "LARCENY OF A CAR OF THE VALUE OF MORE THAN FIFTY DOLLARS ($50.00)" AND HELD IN CONFINEMENT IN THE ELIZABETH CITY JAIL PENDING TRIAL BEFORE THE SUPERIOR COURT OF PASQUOTANK COUNTY, N.C.

(6) THAT LEDWELL'S CASE CAME UP FOR TRIAL BEFORE THE SUPERIOR COURT OF PASQUOTANK COUNTY ON NOVEMBER 14, 1944, AT WHICH TIME HE ENTERED A PLEA OF GUILTY TO THE AFORESAID FELONY CHARGE.

(7) THAT UPON RECOMMENDATION OF THE PROSECUTING ATTORNEY, THE SUPERIOR COURT PERMITTED LEDWELL TO PLEAD GUILTY TO THE LESSER CHARGE OF "UNAUTHORIZED USE OF A MOTOR VEHICLE.'

(8) THAT UPON RECOMMENDATION OF THE PROSECUTING ATTORNEY, THE SUPERIOR COURT ENTERED JUDGMENT IN LEDWELL'S CASE ORDERING THAT HE BE DELIVERED TO THE CUSTODY OF THE NAVAL AUTHORITIES TO THE END THAT HE BE TRIED AND FINAL DISPOSITION OF THIS CASE BE MADE.

(9) THAT PURSUANT TO SAID JUDGMENT, LEDWELL WAS DELIVERED TO THE NAVAL AUTHORITIES AT 1:00 P.M. ON NOVEMBER 15, 1944.

(10) THAT LEDWELL SUBSEQUENTLY WAS TRIED BY GENERAL COURT MARTIAL AT THE NAVAL OPERATING BASE, NORFOLK, VIRGINIA, ON JANUARY 25, 1945, AND ACQUITTED ON THE CHARGE OF ABSENCE FROM DUTY AFTER LEAVE HAD EXPIRED, WITHOUT PROPER AUTHORITY, FOR A PERIOD OF SEVENTY-SEVEN DAYS.

(11) THAT THE CONVENING AUTHORITY ON JANUARY 29, 1945, FOUND THE AFORESAID COURT MARTIAL PROCEEDINGS RESULTING IN AN ACQUITTAL OF LEDWELL, TO BE LEGAL, QUALIFYING ITS FINDINGS, HOWEVER, BY THE FOLLOWING STATEMENT:

"IT IS THE OPINION OF THE CONVENING AUTHORITY THAT THE UNAUTHORIZED ABSENCE IN THIS CASE WAS CAUSED BY THE MISCONDUCT OF THE ACCUSED, AS EVIDENCE BY HIS CONVICTION FOR RECKLESS DRIVING IN THE RECORDER'S COURT, ELIZABETH CITY, NORTH CAROLINA. IT IS THE FURTHER OPINION OF THE CONVENING AUTHORITY THAT HAD THE COURT CAREFULLY CONSIDERED SECTION 74 OF NAVAL COURTS AND BOARDS AS RECOMMENDED BY THE JUDGE ADVOCATE, IT WOULD HAVE FOUND THAT THE ACCUSED WAS WITHOUT A LEGAL DEFENSE TO HIS UNAUTHORIZED LEAVE OF ABSENCE.'

THE COMPTROLLER OF THE TREASURY HAS ON NUMEROUS OCCASIONS HELD THAT AN ENLISTED MAN IS NOT ENTITLED TO PAY WHILE HE IS UNDER ARREST BY CIVIL AUTHORITIES FOR AN OFFENSE FOR WHICH HE IS CONVICTED (2 COMP. DEC. 584; 3 ID. 334; 9 ID. 254; 10 ID. 490; 14 ID. 116; 19 ID. 265; 27 ID. 1081). HOWEVER, IN VIEW OF THE FACT THAT LEDWELL WAS ACQUITTED BY GENERAL COURT MARTIAL ON CHARGE OF UNAUTHORIZED ABSENCE FROM STATION AND DUTY AFTER LEAVE HAD EXPIRED, FOR THE ENTIRE PERIOD OF TIME FROM THE DATE OF HIS ARREST TO THE TIME HE WAS RELEASED TO THE CUSTODY OF THE NAVAL AUTHORITIES, IT IS QUESTIONABLE WHETHER THE AFORESAID DECISIONS WOULD BE CONTROLLING IN THIS CASE.

YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTION:

(1) WHETHER UNDER THE CIRCUMSTANCES STATED ABOVE, JENNINGS B. LEDWELL IS ENTITLED TO PAY FROM THE DATE OF HIS ARREST BY THE CIVIL AUTHORITIES ON AUGUST 31, 1944 TO OCTOBER 6, 1944, INCLUSIVE, THE DATE HE COMPLETED SERVICE OF SENTENCE OF CONFINEMENT IN THE ELIZABETH CITY, NORTH CAROLINA JAIL, AFTER HAVING BEEN FOUND GUILTY ON CRIMINAL CHARGES BY THE RECORDER'S COURT OF ELIZABETH ITY?

(2) WHETHER LEDWELL IS ENTITLED TO PAY FROM OCTOBER 7, 1944 TO NOVEMBER 15, 1944, INCLUSIVE, THE PERIOD DURING WHICH HE WAS HELD IN CONFINEMENT BY THE CIVIL AUTHORITIES PENDING TRIAL ON A CRIMINAL CHARGE TO WHICH HE PLEAD GUILTY BUT WAS NEVER CONVICTED, TO THE TIME OF HIS DELIVERY TO THE NAVAL AUTHORITIES?

ARTICLE 2140, 6 (C) (1), BUREAU OF SUPPLIES AND ACCOUNTS MANUAL, PROVIDES:

OFFICERS AND ENLISTED MEN UNDER ARREST AND HELD BY CIVIL AUTHORITIES WILL RECEIVE NO PAY FOR THE TIME OF SUCH ABSENCE; IF RELEASED WITHOUT TRIAL OR AFTER TRIAL AND ACQUITTAL, PAY FOR THE TIME OF SUCH ABSENCE IS RESTORED UNLESS THE OFFICER OR MAN IS SUBSEQUENTLY CONVICTED BY COURT MARTIAL ON THE SAME FACTS.

THE RULE THAT PERSONNEL OF THE ARMED FORCES ARE NOT ENTITLED TO PAY FOR PERIODS DURING WHICH THEY WERE ABSENT UNDER CIVIL ARREST, IF CONVICTED OR GUILT IS ADMITTED, LONG HAS BEEN FOLLOWED BOTH BY THE COURTS AND BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT. SEE, FOR EXAMPLE, DODGE V. UNITED STATES, 33 C.1CLS. 28; MERWIN V. UNITED STATES, 78 C.1CLS. 561; 2 COMP. DEC. 584; 19 ID. 265; 7 COMP. GEN. 496; AND 21 ID. 845. IN DECISION OF JUNE 2, 1932, A-42659, THIS OFFICE HELD THAT AN ENLISTED MAN OF THE NAVY IS NOT ENTITLED TO PAY DURING THE PERIOD HE IS ABSENT FROM NAVAL JURISDICTION AND CONTROL AS THE RESULT OF A CRIMINAL OFFENSE TO WHICH HE PLEADS GUILTY EVEN THOUGH THE CASE BE FILED WITHOUT IMPOSITION OF A SENTENCE OR PUNISHMENT. CF. 7 COMP. GEN. 496. THE CONTRACT OF ENLISTMENT REQUIRES FAITHFUL SERVICE AND IF SERVICE FOR ANY PORTION OF THE TIME BE CRIMINALLY OMITTED, PAY AND ALLOWANCES FOR FAITHFUL SERVICE ARE NOT EARNED. UNITED STATES V. LANDERS, 92 U.S. 77, 79.

IN THE INSTANT CASE, IT IS STATED THAT THE ENLISTED MAN WAS ARRESTED BY CIVIL AUTHORITIES ON AUGUST 31, 1944; THAT HE WAS TRIED AND CONVICTED BY A CIVIL COURT ON SEPTEMBER 6, AND WAS SENTENCED TO SERVE 30 DAYS IN JAIL; AND THAT UPON EXPIRATION OF SUCH SENTENCE HE WAS HELD UNTIL NOVEMBER 15, 1944, FOR TRIAL ON ANOTHER SEPARATE CHARGE, TO WHICH HE PLEADED GUILTY. THE FACT THAT HE SUBSEQUENTLY WAS ACQUITTED BY A COURT MARTIAL ON A CRIMINAL CHARGE OF ABSENCE FROM DUTY AFTER LEAVE HAD EXPIRED, WITHOUT PROPER AUTHORITY, DOES NOT CHANGE THE FACT THAT DURING THE PERIOD INVOLVED HE ACTUALLY WAS ABSENT IN THE HANDS OF THE CIVIL AUTHORITIES BY REASON OF CRIMINAL CHARGES OF WHICH HE WAS CONVICTED OR TO WHICH HE PLEADED GUILTY. HAVING BEEN ABSENT UNDER THOSE CIRCUMSTANCES, THE RULE APPLIES THAT HE IS NOT ENTITLED TO PAY FOR THE PERIOD OF SUCH ABSENCE.

ACCORDINGLY, EACH OF THE QUESTIONS SUBMITTED IS ANSWERED IN THE NEGATIVE.