B-150909, MAR. 25, 1966

B-150909, MAR. 25, 1966

TO MR. EDUARDO A. MIGUELINO:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17, 1966, AGAIN REQUESTING PAYMENT OF ACTIVE DUTY PAY AND ALLOWANCES BELIEVED BY YOU TO HAVE ACCRUED UP TO THE DATE OF YOUR DISCHARGE FROM THE NAVY ON AUGUST 23, 1961, INCIDENT TO YOUR ENLISTMENT ON OCTOBER 30, 1945.

CONTRARY TO THE OPINION EXPRESSED BY YOU, THE EXISTENCE OF AN OVERPAYMENT IN YOUR PAY ACCOUNT, AS REPORTED BY THE DEPARTMENT OF THE NAVY, WAS NOT THE BASIS FOR DENIAL OF YOUR CLAIM FOR ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD AFTER AUGUST 23, 1949. SINCE YOU DID NOT PERFORM ANY DUTY AFTER THAT DATE AND YOU WERE NOT IN A STATUS ENTITLING YOU TO CONTINUATION OF PAY AND ALLOWANCES WITHOUT PERFORMANCE OF DUTY, NO PAY OR ALLOWANCES ACCRUED TO YOU AFTER THAT DATE. CONCERNING YOUR STATEMENT AS TO THE "FACTS THAT CAN CONVINCE ME TO ACCEPT THE CHARGE OF UNAUTHORIZED ABSENCE," YOU ARE WELL AWARE OF THE FACT THAT YOU DID NOT LEAVE YOUR STATION IN AUGUST 1949, ON AUTHORIZED LEAVE, THAT YOU HAVE NOT PERFORMED THE DUTIES OF AN ENLISTED MAN IN THE NAVY SINCE THAT TIME, AND THAT YOU HAVE OFFERED NO EXPLANATION OF YOUR ABSENCE WHICH HAS CAUSED THE NAVY TO CONCLUDE THAT SUCH ABSENCE WAS OTHER THAN UNAUTHORIZED.

WE HAVE BEEN UNABLE TO OBTAIN ANY INFORMATION RELATIVE TO THE REPORTED "OVERPAYMENT" OF $1,081.56 AND THE MENTION OF THAT ITEM IS NOT INTENDED AS A DEMAND THAT YOU PAY SUCH AMOUNT--- OR ANY AMOUNT--- TO THE UNITED STATES.

ALTHOUGH, DUE TO YOUR ABSENCE FROM NAVAL CONTROL, YOU WERE NOT ISSUED A DISCHARGE CERTIFICATE UNTIL AUGUST 23, 1961, THE LACK OF SUCH CERTIFICATE DID NOT EXTEND THE PERIOD OF YOUR ENLISTMENT IN THE NAVY AFTER OCTOBER 29, 1949, THE DATE ON WHICH YOUR ENLISTMENT TERMINATED. YOU WERE RETURNED TO NAVAL CUSTODY FOR A SHORT PERIOD IN 1953 AND YOU STATE THAT DURING THAT TIME YOU WERE AWAITING TRIAL BY COURT-MARTIAL BUT THAT SUCH TRIAL NEVER OCCURRED. CRIMINAL LIABILITY ON YOUR PART COULD HAVE BEEN ESTABLISHED ONLY BY MEANS OF A COURT-MARTIAL CONVICTION. SINCE YOU WERE NOT TRIED BY COURT-MARTIAL, NO CRIMINAL LIABILITY HAS BEEN ESTABLISHED AGAINST YOU ON ACCOUNT OF NONPERFORMANCE OF NAVAL DUTY AFTER AUGUST 23, 1949, AND THE DENIAL OF YOUR CLAIM FOR PAY AND ALLOWANCES CARRIES NO IMPLICATION OF CRIMINAL LIABILITY. SINCE UNAUTHORIZED ABSENCE IS NOT A CRIMINAL CHARGE, COURT MARTIAL PROCEEDINGS ARE NOT NECESSARY FOR A DETERMINATION, BY THE ADMINISTRATIVE OFFICE, THAT AN INDIVIDUAL'S ABSENCE FROM THE SERVICE WAS UNAUTHORIZED. SUCH DETERMINATION IS MADE ON THE BASIS OF ALL AVAILABLE INFORMATION INCLUDING THE EXPLANATION OR LACK OF EXPLANATION OF THE PERSON CONCERNED AS TO THE REASONS FOR HIS ABSENCE.

YOU EXPRESS THE OPINION THAT PAY OF A MEMBER OF THE ARMED FORCES MAY NOT BE FORFEITED EXCEPT BY ORDER OF A COURT. BEFORE ANY QUESTION OF FORFEITURE MAY ARISE, THERE MUST BE AN ESTABLISHED RIGHT TO ACCRUE THE PAY AND ALLOWANCES IN QUESTION. NO FORFEITURE OF PAY COVERING A PERIOD AFTER AUGUST 23, 1949, WAS POSSIBLE IN YOUR CASE SINCE, AS STATED ABOVE, NO PAY OR ALLOWANCES ACCRUED TO YOU AFTER THAT DATE.

WE HAVE PREVIOUSLY EXPLAINED TO YOU THAT DURING PERIODS OF UNAUTHORIZED ABSENCE YOU ARE NOT ENTITLED TO PAY AND THAT IN CASES WHERE THE FACTS ARE IN DISPUTE WE MUST ACCEPT THE FACTS AS REPORTED BY THE ADMINISTRATIVE OFFICE AS OPPOSED TO THE CONTRARY STATEMENT PRESENTED BY THE CLAIMANT.

YOUR LETTER OF FEBRUARY 17, 1966, PRESENTS NO NEW EVIDENCE OR INFORMATION NOT PREVIOUSLY CONSIDERED. WHILE WE ARE ALWAYS WILLING TO RECONSIDER A CASE UPON THE RECEIPT OF NEW EVIDENCE, CONTINUED CORRESPONDENCE WHICH CONSTITUTES ONLY A REPETITION OF PREVIOUS DEMANDS AND QUESTIONS PREVIOUS RULINGS CAN SERVE NO USEFUL PURPOSE. THEREFORE, ANY SUCH CORRESPONDENCE WHICH MAY BE RECEIVED FROM YOU IN THE FUTURE WILL BE FILED WITHOUT REPLY.