B-92305, FEBRUARY 24, 1950, 29 COMP. GEN. 339

B-92305, FEBRUARY 24, 1950, 29 COMP. GEN. 339

FORFEITURE OF PAY - NAVY ENLISTED MEN ABSENT WITHOUT LEAVE - CORRECTION OF RECORDS ALTHOUGH THE UNDESIRABLE DISCHARGE GIVEN AN ENLISTED MAN FOR REASONS INCLUDING ABSENCE WITHOUT LEAVE WAS, UPON LATER DISCLOSURE OF THE CIRCUMSTANCES, CORRECTED TO AN HONORABLE DISCHARGE FOR THE CONVENIENCE OF THE GOVERNMENT BY A NAVAL BOARD OF REVIEW, DISCHARGES AND DISMISSALS PURSUANT TO SECTION 301 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, SUCH ENLISTED MAN IS NEVERTHELESS NOT ENTITLED TO RECEIVE PAY FOR THE PERIOD OF THE UNAUTHORIZED ABSENCE.

COMPTROLLER GENERAL WARREN TO LELAND LEX HEIN, FEBRUARY 24, 1950:

REFERENCE IS MADE TO THE LETTER DATED JANUARY 14, 1950, WRITTEN IN YOUR BEHALF BY MR. HERBERT S. BROWN, ATTORNEY, TRENTON, MISSOURI, RELATIVE TO THAT PART OF GENERAL ACCOUNTING OFFICE SETTLEMENT OF NOVEMBER 3, 1949, CERTIFICATE NO. 1,791,533, WHICH DISALLOWED YOUR CLAIM FOR PAY FOR THE PERIOD FROM MAY 23, 1945, TO MARCH 27, 1946, AS MOTOR MACHINIST'S MATE, THIRD CLASS, UNITED STATES NAVAL RESERVE, FOR THE REASON THAT YOU WERE ABSENT OVER LEAVE AND IN A NON-PAY STATUS DURING THE SAID PERIOD. ALSO, THERE HAS BEEN RECEIVED A LETTER DATED JANUARY 16, 1950, FROM HONORABLE CLARE MAGEE, HOUSE OF REPRESENTATIVES, CONCERNING THE SAME MATTER.

THE DISALLOWANCE OF YOUR CLAIM FOR PAY FOR THE ABOVE PERIOD WAS PREDICATED UPON AN ENTRY ON YOUR OFFICIAL NAVY PAY RECORD WHICH SHOWED YOU TO BE ABSENT OVER LEAVE FOR THE PERIOD IN QUESTION AND UPON A REPORT DATED JULY 28, 1949, OF THE CHIEF OF NAVAL PERSONNEL, AS FOLLOWS:

1. THE SUBJECT NAMED MAN ABSENTED HIMSELF FROM THE NAVAL SERVICE ON 22 MAY 1945 AND SURRENDERED TO NAVAL JURISDICTION ON 27 MARCH 1946. ON 21 JUNE 1946 HE WAS DISCHARGED FROM THE NAVAL SERVICE WITH AN UNDESIRABLE DISCHARGE BY REASON OF DESERTION WITHOUT TRIAL.

2. THE UNDESIRABLE DISCHARGE WAS CANCELLED ON 18 MAY 1948, IN ACCORDANCE WITH THE BOARD OF REVIEW, DISCHARGES AND DISMISSALS LETTER EXOS:QB (411) EWW:ER DATED 7 MAY 1948, AND HEREIN WAS ISSUED A DISCHARGE UNDER HONORABLE CONDITIONS BY REASON OF CONVENIENCE OF THE GOVERNMENT.

3. THE MARK OF DESERTION FOR THE ABOVE PERIOD OF ABSENCE HAS BEEN REMOVED FROM THE RECORD OF HEIN.

IT IS URGED THAT YOU WERE NOT IN AN OVER-LEAVE OR NON-PAY STATUS DURING THE PERIOD MAY 23, 1945, TO MARCH 27, 1946, FOR THE REASON THAT YOU HAD ADVISED YOUR SUPERIOR OFFICERS OF YOUR HOSPITALIZATION IN A CIVILIAN HOSPITAL IN TRENTON, MISSOURI, DUE TO AN ACCIDENTAL GUNSHOT WOUND RECEIVED IN MAY 1945; THAT YOU WERE UNDER THE CARE OF A CIVILIAN DOCTOR AT THE DIRECTION OF NAVAL AUTHORITIES; THAT YOU HAD PERMISSION TO REMAIN AT TRENTON, MISSOURI, UNTIL ABLE TO TRAVEL TO THE NAVAL BASE AT OLATHE, KANSAS; AND THAT YOU DID NOT SUFFICIENTLY RECOVER UNTIL MARCH 27, 1946, AT WHICH TIME YOU REPORTED AT OLATHE, KANSAS. IT IS ALSO STATED THAT UPON THE DISCLOSURE OF THOSE FACTS, YOUR PREVIOUSLY ISSUED UNDESIRABLE DISCHARGE FROM THE SERVICE WAS CHANGED TO A DISCHARGE UNDER HONORABLE CONDITIONS AND IT IS CONTENDED THAT SUCH CHANGE IN THE CHARACTER OF YOUR DISCHARGE CONSTITUTES A FINDING BY THE NAVY THAT YOU WERE NOT ABSENT OVER LEAVE.

IT HAS BEEN INFORMALLY ASCERTAINED FROM THE NAVY DEPARTMENT THAT ON MAY 14, 1945, WHILE ON LEAVE FROM YOUR SHIP, THE U.S.S. CHARA, YOU REQUESTED THAT THE COMMANDING OFFICER OF THE VESSEL AUTHORIZE AN EXTENSION OF THE LEAVE DUE TO HOSPITALIZATION FOR INJURIES RECEIVED IN A HUNTING ACCIDENT; THAT THE REQUEST WAS GRANTED AND YOU WERE ORDERED TO CONTACT THE NEAREST NAVAL AUTHORITY; THAT YOU CONTACTED THE UNITED STATES NAVAL AIR STATION AT OLATHE, KANSAS, AND THE MEDICAL DIRECTOR AT THAT INSTALLATION TOLD YOU TO REPORT TO THE NAVAL HOSPITAL AT OLATHE WHEN YOU WERE ABLE TO TRAVEL; THAT YOU WERE ADVISED THAT IF YOU REQUIRED ASSISTANCE TO TRAVEL FROM TRENTON, MISSOURI, TO OLATHE THE NAVY WOULD SUPPLY THE TRANSPORTATION, INCLUDING AN AMBULANCE, IF NECESSARY; THAT YOU WERE ORDERED TO REPORT BACK TO YOUR SHIP ON MAY 22, 1945, BUT THAT ON MAY 19, 1945, YOU NOTIFIED YOUR COMMANDING OFFICER THAT YOU WERE STILL IN THE HOSPITAL WHEREUPON YOUR COMMANDING OFFICER ORDERED YOU TO REPORT TO THE NAVAL INSTALLATION AT OLATHE; THAT THE U.S.S. CHARA DEPARTED ON MAY 23, 1945; THAT YOU DID NOT REPORT TO THE UNITED STATES NAVAL AIR STATION AT OLATHE, KANSAS, UNTIL MARCH 27, 1946, ALTHOUGH IT WAS SUBSEQUENTLY LEARNED THAT YOU WERE DISCHARGED FROM THE CIVILIAN HOSPITAL AT TRENTON, MISSOURI, ON JUNE 10, 1945.

IT DOES NOT APPEAR THAT A FURTHER EXTENSION OF LEAVE BEYOND MAY 22, 1945, WAS REQUESTED OR GRANTED, OR THAT YOUR ABSENCE FOR THE PERIOD MAY 23, 1945, TO MARCH 27, 1946, WAS EXCUSED AS UNAVOIDABLE. HENCE, IT APPEARS THAT YOUR ABSENCE DURING THAT PERIOD WAS UNAUTHORIZED AND NO PAY ACCRUED.

IT LONG HAS BEEN HELD THAT BY ENLISTING IN THE NAVY A MAN CONTRACTS FOR HONEST AND FAITHFUL SERVICE AND THE RENDITION OF SUCH SERVICE IS AN ESSENTIAL PRECEDENT TO HIS RIGHT TO BE PAID. SUCH CONTRACT IS AN ENTIRETY AND, IF SERVICE FOR ANY PORTION OF THE TIME IS OMITTED WITHOUT AUTHORITY, THE PAY OR ALLOWANCES FOR "SERVICE" ARE NOT EARNED. CF. UNITED STATES V. LANDERS, 92 U.S. 77, 79. IT WAS HELD IN 27 COMP. DEC. 675, QUOTING FROM THE SYLLABUS THAT:

WHERE AN ENLISTED MAN OF THE ARMY CHARGED WITH DESERTION IS FOUND BY A COURT-MARTIAL NOT GUILTY * * * WITHOUT * * * FINDING HIM EITHER SPECIFICALLY OR BY INFERENCE GUILTY OF THE LESSER OFFENSE OF ABSENCE WITHOUT LEAVE, HIS CIVIL OR CONTRACTUAL OBLIGATION IS STILL OPEN TO ADMINISTRATIVE DETERMINATION, AND IF IT BE ADMINISTRATIVELY DETERMINED THAT HE WAS ABSENT WITHOUT LEAVE HE SHOULD LOSE PAY FOR THE PERIOD OF UNAUTHORIZED ABSENCE * * *.

IT HAS BEEN REPORTED THAT YOU DID NOT PERFORM ANY DUTIES UNDER NAVAL JURISDICTION DURING THE PERIOD MAY 23, 1945, TO MARCH 27, 1946, AND WHILE YOUR ABSENCE WAS SUBSEQUENTLY FOUND NOT SUCH AS TO WARRANT AN UNDESIRABLE DISCHARGE, IT NEVERTHELESS APPEARS TO HAVE BEEN AN UNAUTHORIZED ABSENCE FOR PAY PURPOSES.

AS TO THE ACTION OF THE BOARD OF REVIEW, DISCHARGES AND DISMISSALS IT APPEARS THAT THE ACTION TAKEN BY SAID BOARD WAS PURSUANT TO AUTHORITY CONTAINED IN SECTION 301 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 286, IN PART AS FOLLOWS:

* * * SUCH BOARD SHALL HAVE AUTHORITY, EXCEPT IN THE CASE OF A DISCHARGE OR DISMISSAL BY REASON OF THE SENTENCE OF A GENERAL COURT MARTIAL, TO CHANGE, CORRECT, OR MODIFY ANY DISCHARGE OR DISMISSAL, AND TO ISSUE A NEW DISCHARGE IN ACCORD WITH THE FACTS PRESENTED TO THE BOARD. * * *

THE APPARENT PURPOSE OF THE ABOVE PROVISION OF LAW IS TO AUTHORIZE THE CORRECTION OR MODIFICATION OF DISCHARGES WHICH, UPON REVIEW, ARE FOUND NOT TO BE IN ACCORDANCE WITH ESTABLISHED FACTS. IT WAS ON THAT BASIS THAT YOU RECEIVED A CERTIFICATE OF DISCHARGE UNDER HONORABLE CONDITIONS FOR THE CONVENIENCE OF THE GOVERNMENT, UPON THE REVIEW OF YOUR CASE BY SUCH BOARD. HOWEVER, YOU THEREBY BECAME ENTITLED TO NO BENEFITS WHICH YOU WOULD NOT HAVE BEEN ENTITLED TO RECEIVE HAD A CERTIFICATE OF DISCHARGE UNDER HONORABLE CONDITIONS BEEN ISSUED TO YOU AT THE TIME OF YOUR SEPARATION FROM THE SERVICE. PAYMENT OF THE AMOUNT NOW CLAIMED WAS DENIED NOT BECAUSE OF THE CHARACTER OF YOUR DISCHARGE BUT, RATHER, BECAUSE OF YOUR UNAUTHORIZED ABSENCE.

ACCORDINGLY, THE SETTLEMENT OF NOVEMBER 3, 1949, IS CORRECT AND UPON REVIEW IS SUSTAINED.