A-24627, NOVEMBER 5, 1928, 8 COMP. GEN. 233

A-24627, NOVEMBER 5, 1928, 8 COMP. GEN. 233

TRAVEL ALLOWANCE - PAY - ARMY ENLISTED MAN ORDINARILY TRAVEL ALLOWANCE IS NOT AVAILABLE FOR SET-OFF AGAINST AN INDEBTEDNESS DUE FROM A SOLDIER TO THE UNITED STATES. WHILE A SOLDIER DESERTING THE SERVICE FORFEITS ALL PAY AND ALLOWANCES DUE AT DATE OF DESERTION BY REASON OF THE VIOLATION OF HIS ENLISTMENT CONTRACT, THE RULE DOES NOT EXTEND TO AMOUNTS DUE IN AN ENLISTMENT PRIOR TO THAT FROM WHICH HE DESERTED, WHICH ENLISTMENT HAD BEEN CLOSED BY HONORABLE DISCHARGE.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 5, 1928:

KURT HOLTSBACHER REQUESTED REVIEW OF SETTLEMENT NO. 0213386, DATED AUGUST 2, 1928, DISALLOWING HIS CLAIM FOR TRAVEL ALLOWANCE ON DISCHARGE FROM THE ARMY MAY 7, 1919, AT 5 CENTS PER MILE FOR THE DISTANCE FROM FORT SILL, OKLA., TO NEWARK, N.J.

CLAIMANT'S MILITARY RECORD SHOWS THAT HE ENLISTED IN THE ARMY JULY 11, 1914, GIVING NEWARK, J., AS HIS PLACE OF RESIDENCE; THAT HE WAS HONORABLY DISCHARGED FOR THE PURPOSE OF REENLISTING MAY 7, 1919, AT FORT SILL, OKLA.; THAT HE REENLISTED MAY 8, 1919; THAT HE DESERTED THE SERVICE AUGUST 18, 1919, AT FORT SILL; THAT HE WAS APPREHENDED OCTOBER 14, 1927, AT STAPLETON, STATEN ISLAND, N.Y., AND WAS RETURNED TO MILITARY CONTROL AT FORT WADSWORTH, N.Y.; AND THAT HE WAS DISCHARGED OCTOBER 29, 1927, NOT HONORABLY, BECAUSE OF PHYSICAL UNFITNESS AND DESERTION ADMITTED. CLAIMANT'S FINAL STATEMENT MADE BY THE FINANCE OFFICER AT BROOKLYN, N.Y., SHOWS THAT HE IS INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $118.31 FOR CLOTHING AND EQUIPAGE LOST THROUGH DESERTION.

THE ACT OF SEPTEMBER 29, 1919, 41 STAT. 291, PROVIDES THAT THOSE ENLISTED MEN OF THE ARMY WHO ENLISTED IN THE REGULAR ARMY PRIOR TO APRIL 2, 1917, AND WHO HAVE BEEN DISCHARGED FROM SUCH ENLISTMENT IN ORDER TO REENLIST UNDER THE TERMS OF THE ACT OF FEBRUARY 28, 1919, AUTHORIZING THE RESUMPTION OF VOLUNTARY ENLISTMENTS IN THE REGULAR ARMY, SHALL UPON SUCH DISCHARGE RECEIVE THE TRAVEL PAY THEN AUTHORIZED BY LAW OF 5 CENTS PER MILE FROM THE PLACE OF DISCHARGE TO THEIR ACTUAL BONA FIDE HOME OR RESIDENCE OR ORIGINAL MUSTER INTO THE SERVICE AS THEY MAY ELECT. CLAIMANT WAS DISCHARGED IN ORDER TO REENLIST MAY 7, 1919, FROM AN ENLISTMENT IN THE REGULAR ARMY ENTERED INTO PRIOR TO APRIL 2, 1917, AND BY VIRTUE OF THIS ACT, HIS RIGHT TO RECEIVE TRAVEL PAY AT 5 CENTS A MILE FROM FORT SILL TO NEWARK ACCRUED AS OF THAT DATE, BEING FOR 1,671 MILES, OR $83.55.

THERE IS NO STATUTE WHICH PROVIDES THAT THE PAY AND ALLOWANCES OF A SOLDIER SHALL BE FORFEITED BY DESERTION, BUT THE WELL-ESTABLISHED RULE, AUTHORIZED BY THE USAGE OF THE SERVICE, WINTHROP'S MILITARY LAWS AND PRECEDENTS, PAGE 427, IS THAT ALL PAY AND ALLOWANCES DUE AT DATE OF DESERTION ARE FORFEITED. IN THIS CONNECTION THE FOLLOWING IS QUOTED FROM THE DECISION OF ASSISTANT COMPTROLLER MITCHELL OF DECEMBER 22, 1903, 10 COMP. DEC. 490:

THERE IS NO EXPRESS STATUTE UPON THE SUBJECT, NOR IS THERE NEED OF ANY. ON GENERAL PRINCIPLES A PERSON WHO ENGAGES FOR A DEFINITE TIME FORFEITS HIS WAGES FOR THE PERIOD HE HAS SERVED IF HE FAILS TO FULFILL HIS CONTRACT. (MS DEC. SECOND COMP. VOL. 20, P. 137.)

FORFEITURE OF WAGES IS INCURRED BY DESERTING SEAMEN AT MARITIME LAW. CURTIS, RIGHTS AND DUTIES OF MERCHANT SEAMEN, 130, 303, 305, 306.

ENLISTMENT, WHILE IT CHANGES THE STATUS OF THE CIVILIAN TO THAT OF A SOLDIER, NEVERTHELESS IS A CONTRACT, UNITED STATES V. GRIMLEY, 137 U.S. 150, AND IN THE CASE OF UNITED STATES V. LANDERS, 92 U.S. 77, THE SUPREME COURT OF THE UNITED STATES, IN HARMONY WITH THE VIEWS OF THE EXECUTIVE AND ACCOUNTING OFFICERS OF THE GOVERNMENT, PLACES THE FORFEITURE OF PAY AND ALLOWANCES UP TO THE TIME OF DESERTION, NOT UPON ANY STATUTE, BUT "FROM THE CONDITION OF THE CONTRACT OF ENLISTMENT WHICH IS FOR FAITHFUL SERVICE.'

FOLLOWING THE SAME LINE OF REASONING EACH ENLISTMENT CONTRACT IS A SEPARATE ENTITY, AND THE RULE IS OF LONG CONTINUANCE THAT FORFEITURE BY DESERTION DOES NOT EXTEND TO AN AMOUNT DUE UNDER AN ENLISTMENT PRIOR TO THAT FROM WHICH THE SOLDIER DESERTED. SEE SECOND COMP. DEC., BUTLER, 1888, VOL. 55, P. 324; ID. MANSUR, 1893, VOL. 30, P. 191; ID. MANSUR, 1893, VOL. 62, P. 245; WINTHROP'S MILITARY LAWS AND PRECEDENTS, 1920, P. 430; DECISIONS OF AUGUST 25, 1923, REVIEW NO. 5230, AND JUNE 29,1922, REVIEW NO. 1994; 26 COMP. DEC. 380.

THERE IS FURTHER FOR CONSIDERATION WHETHER THE AMOUNT OF $83.55 DUE CLAIMANT FOR TRAVEL ALLOWANCE IS FOR SET-OFF AGAINST HIS INDEBTEDNESS DUE TO THE UNITED STATES FOR CLOTHING AND EQUIPAGE. THE RULE IS WELL ESTABLISHED THAT ON THE BASIS OF LAW AND PUBLIC POLICY AN AMOUNT DUE A SOLDIER FOR TRAVEL ALLOWANCE IS NOT FOR SET-OFF AGAINST CLOTHING OVERDRAWN, 8 COMP. DEC. 624, OR OTHER INDEBTEDNESS DUE THE UNITED STATES, 18 COMP. DEC. 621; 20 COMP. DEC. 707. ACCORDINGLY, UPON REVIEW, THERE IS CERTIFIED DUE CLAIMANT $83.55.