B-8293, APRIL 26, 1940, 19 COMP. GEN. 901

B-8293, APRIL 26, 1940, 19 COMP. GEN. 901

COMPENSATION - COAST GUARD DESERTER IN CIVILIAN POSITION AN ENLISTED MAN OF THE COAST GUARD MAY RETAIN COMPENSATION RECEIVED AS A CIVILIAN EMPLOYEE OF THE GOVERNMENT FOR SERVICES RENDERED WHILE HE WAS IN DESERTION, BUT NOT FOR SUCH PERIOD AS HE WAS ACTUALLY IN A PAY STATUS IN THE COAST GUARD AFTER HIS APPREHENSION EVEN THOUGH HIS COAST GUARD PAY FOR SAID PERIOD WAS FORFEITED UNDER A COAST GUARD COURT SENTENCE. 3 COMP. GEN. 40, 17 ID. 1049, AND 18 ID. 213, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, APRIL 26, 1940:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 30, 1940, AS FOLLOWS:

THE COMMISSION IS IN RECEIPT OF AN APPLICATION FOR REFUND OF RETIREMENT DEDUCTIONS FILED UNDER THE ACT OF MAY 29, 1930 BY WILLIAM M. GIBSON, ON WHICH THE TOTAL AMOUNT DUE, INCLUDING INTEREST OF $45.86, IS $321.75.

IT WAS DEVELOPED DURING THE ADJUDICATION OF THIS CLAIM THAT DURING MR. GIBSON'S ENLISTMENT IN THE UNITED STATES COAST GUARD FROM APRIL 17, 1925 TO APRIL 24, 1929, HE ACCEPTED AN APPOINTMENT IN THE PHILADELPHIA NAVY YARD AS HELPER COPPERSMITH AND RENDERED SERVICE IN THIS POSITION FROM SEPTEMBER 22, 1926, TO JUNE 9, 1928, RECEIVING SALARY OF $2,362.92, OF WHICH DEDUCTIONS OF $82.77 WERE DEPOSITED IN THE CIVIL SERVICE RETIREMENT AND DISABILITY FUND.

SINCE SERVICE IN THE CIVIL POSITION APPEARED CONTRARY TO SECTION 1765 OF THE REVISED STATUTES AS INTERPRETED BY THE COMPTROLLER GENERAL IN HIS DECISION OF JULY 21, 1923, 3 COMP. GEN. 40, A STATEMENT WAS REQUESTED FROM THE COAST GUARD AND IS ENCLOSED, TOGETHER WITH OTHER PERTINENT PAPERS. VIEW OF THE UNUSUAL CIRCUMSTANCES YOUR DECISION IS REQUESTED AS TO THE LEGALITY OF THE SERVICE RENDERED IN THE NAVY YARD AND THE DISPOSITION OF THE AMOUNT TO MR. GIBSON'S CREDIT IN THE RETIREMENT FUND.

IN THE CITED DECISION OF JULY 21, 1923, 3 COMP. GEN. 40, AND SIMILAR DECISIONS--- SEE 17 COMP. GEN. 1049, AND 18 COMP. GEN. 213--- IT APPEARED THE ENLISTED MEN INVOLVED WERE IN AN ACTIVE PAY STATUS IN THE ARMY WHILE EMPLOYED, OR PROPOSED TO BE EMPLOYED, CONCURRENTLY, IN A CIVILIAN POSITION UNDER THE GOVERNMENT. IN THE PRESENT CASE, HOWEVER, IT IS REPORTED THAT GIBSON DESERTED FROM THE COAST GUARD ON SEPTEMBER 9, 1925, AND WAS NOT APPREHENDED UNTIL JUNE 8, 1928. THEREFORE, HE WAS NOT IN A DUTY OR PAY STATUS IN THE COAST GUARD WHILE EMPLOYED AT THE PHILADELPHIA NAVY YARD FROM SEPTEMBER 22, 1926, UNTIL APPREHENDED AND RETURNED TO COAST GUARD CONTROL ON JUNE 8, 1928.

SECTION 5 OF THE ACT OF MAY 26, 1906, 34 STAT. 201, AS AMENDED BY SECTION 1 OF THE ACT OF JANUARY 28, 1915, 38 STAT. 800, AND CARRIED INTO THE U.S.C. AS SECTION 147 OF TITLE 14, IS IN PART AS FOLLOWS:

* * * PROVIDED, THAT NO PERSON WHO HAS DESERTED FROM THE COAST GUARD SHALL AFTERWARDS BE EMPLOYED IN SAID SERVICE, OR ENLISTED IN ANY OTHER MILITARY OR NAVAL SERVICE UNDER THE UNITED STATES, UNLESS HE SHALL HAVE DELIVERED HIMSELF ABOARD THE VESSEL FROM WHICH HE DESERTED, OR BEEN APPREHENDED, AND THE DISABILITY SHALL HAVE BEEN REMOVED BY A BOARD OF COMMISSIONED OFFICERS OF THE SAID SERVICE CONVENED FOR A CONSIDERATION OF THE CASE, AND THE ACTION OF THE SAID BOARD SHALL HAVE BEEN APPROVED BY THE SECRETARY OF THE TREASURY.

BY ARTICLE 24 OF THE REGULATIONS PROMULGATED OCTOBER 11, 1923, TO GOVERN COAST GUARD COURTS AND BOARDS, IT IS PROVIDED IN EFFECT THAT NO PERSON SHALL BE TRIED BY A COAST GUARD COURT OR OTHERWISE PUNISHED FOR DESERTION UNLESS THE ORDER FOR SUCH TRIAL OR PUNISHMENT SHALL BE ISSUED WITHIN TWO YEARS FROM THE END OF THE TERM FOR WHICH THE PERSON WAS ENLISTED. THE ACT OF MAY 26, 1906, SUPRA, EXPRESSLY DISQUALIFYING A DESERTER FOR FURTHER EMPLOYMENT IN THE COAST GUARD OR FOR ENLISTMENT IN ANY OTHER MILITARY OR NAVAL SERVICE UNDER THE UNITED STATES, UNLESS THE DISABILITY BE REMOVED, APPARENTLY LEAVES UNIMPAIRED THE RIGHT OF ANY SUCH PERSON TO EMPLOYMENT OTHERWISE UNDER THE GOVERNMENT, UNLESS AND UNTIL RETURNED TO COAST GUARD CONTROL.

THE COAST GUARD REPORTS THAT GIBSON WAS RETURNED TO A PAY STATUS AND CREDITED WITH PAY AT THE RATE OF $84 A MONTH FROM AND INCLUDING JUNE 8, 1928. THE NAVY DEPARTMENT REPORTS THAT HE WAS IN A PAY STATUS AT THE PHILADELPHIA NAVY YARD TO AND INCLUDING " 4/8 DAY JUNE 9, 1928.' HAVING BEEN IN A PAY STATUS IN THE COAST GUARD JUNE 8 AND 9, 1928, EVEN THOUGH HIS PAY FOR SAID DAYS MAY HAVE BEEN FORFEITED BY A COAST GUARD COURT SENTENCE, HE IS PROPERLY CHARGEABLE WITH THE CIVILIAN COMPENSATION PAID HIM AS A NAVY YARD EMPLOYEE FOR THOSE TWO DAYS. SEE ACT OF MAY 10, 1916, AS AMENDED, 39 STAT. 120, 582, 5 U.S.C. 58; 17 COMP. GEN. 1049; B-3951, JUNE 19, 1939. THE RECORDS OF THIS OFFICE SHOW THAT FOR THOSE TWO DAYS HE WAS PAID FOR A TOTAL OF 12 HOURS AT THE RATE OF 57 CENTS AN HOUR, OR $6.84. ACCORDINGLY, YOU ARE ADVISED THAT IN MAKING REFUND OF RETIREMENT DEDUCTIONS THE SAID AMOUNT OF $6.84 SHOULD BE WITHHELD AND DEPOSITED FOR COVERING INTO THE TREASURY TO THE CREDIT OF THE APPROPRIATION ACCOUNT "78601 ENGINEERING, 1928, SUBHEAD 1.'