Entitlement to Pay and Allowances of Service Member Whose Enlistment Expired While in Confinement

An advance decision was requested regarding the legality of crediting pay and allowances to a former member of the Marine Corps whose enlistment expired while he was in confinement pending an appellate review of his court-martial sentence. The member was tried, convicted, and sentenced to 2 years at hard labor, to forfeit all pay and allowances, and to be discharged with a bad conduct discharge. The member's enlistment expired while he was confined. Subsequently he applied for parole and was sent home in an adjudged parole status. When the parole status ended the member was placed in an indefinite excess leave status pending the completion of the applellate review. The conviction and sentence were set aside, and all rights privileges, and property were restored. The member was honorably discharged and he received pay and allowances through the date when his parole began. Three specific issues were raised: (1) whether the member entitled to pay and allowances for the parole period; (2) whether any provision exists to recoup a difference between his military pay and allowances and his civilian pay entitlements; and (3) whether he was not entitled to pay for the parole period, the commencement date for the member's leave accrued through the date of his release on parole. GAO has held that, when a conviction is set aside and a portion of confinement time served, an individual is entitled to pay and allowances for his parole period. GAO found that the member was entitled to pay and allowances for his parole period and payment for leave accrued prior to the date on which the sentence ended, not to exceed 60 days. GAO also held that in the absence of a statute so authorizing, it would be improper to set off civilian earnings against military pay due for a parole period which becomes a period of entitlement to pay and allowances, unless the earnings are from federal civilian employment which is considered incompatible with military service.