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B-149656, APRIL 10, 1963, 42 COMP. GEN. 568

B-149656 Apr 10, 1963
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TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - COURT-MARTIAL SENTENCE ALTHOUGH SUBSEQUENT INFORMATION EVIDENCES A MARINE CORPS ENLISTED MEMBER WAS NOT REDUCED TO HIS LOWEST ENLISTED GRADE UNTIL COMPLETION OF APPELLATE REVIEW OF THE GENERAL COURT-MARTIAL THAT SENTENCED HIM TO A DISHONORABLE DISCHARGE. THE MEMBER WAS IN THE GRADE OF SERGEANT (E-4/. THE MEMBER IS. THE TRANSFER ORDERS ARE NOT COMPETENT PERMANENT CHANGE OF STATION ORDERS UNDER WHICH THE MEMBER IS ELIGIBLE TO RECEIVE THE BENEFITS PROVIDED BY 37 U.S.C. 404 FOR MEMBERS AUTHORIZED A PERMANENT CHANGE OF STATION. 42 COMP. IT WAS OUR UNDERSTANDING THAT THE CONVENING AUTHORITY HAD SUSPENDED THE EXECUTION OF THE DISHONORABLE DISCHARGE AND CONFINEMENT UNTIL COMPLETION OF APPELLATE REVIEW AND IN VIEW OF SUCH INFORMATION.

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B-149656, APRIL 10, 1963, 42 COMP. GEN. 568

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - COURT-MARTIAL SENTENCE ALTHOUGH SUBSEQUENT INFORMATION EVIDENCES A MARINE CORPS ENLISTED MEMBER WAS NOT REDUCED TO HIS LOWEST ENLISTED GRADE UNTIL COMPLETION OF APPELLATE REVIEW OF THE GENERAL COURT-MARTIAL THAT SENTENCED HIM TO A DISHONORABLE DISCHARGE, FORFEITURE OF ALL PAY AND ALLOWANCES, AND CONFINEMENT, THE AUTOMATIC REDUCTION PROVIDED BY ARTICLE 58A OF THE UNIFORM CODE OF MILITARY JUSTICE UPON APPROVAL OF A COURT-MARTIAL SENTENCE BY THE CONVENING AUTHORITY NOT BEING REQUIRED BY NAVAL REGULATIONS, AND THAT, THEREFORE, THE MEMBER WAS IN THE GRADE OF SERGEANT (E-4/--- AN ELIGIBLE GRADE FOR TRANSPORTATION OF DEPENDENTS AND DISLOCATION ALLOWANCE--- ON THE EFFECTIVE DATE OF THE ORDERS TRANSFERRING HIM AFTER CONFINEMENT FROM A DISCIPLINARY COMMAND TO QUANTICO PENDING REVIEW OF HIS CASE, THE MEMBER IS, NEVERTHELESS, NOT ENTITLED TO TRAVEL AND TRANSPORTATION ALLOWANCES, HIS ASSIGNMENT PENDING APPELLATE REVIEW OF HIS SENTENCE BEING OF A TEMPORARY NATURE, THE TRANSFER ORDERS ARE NOT COMPETENT PERMANENT CHANGE OF STATION ORDERS UNDER WHICH THE MEMBER IS ELIGIBLE TO RECEIVE THE BENEFITS PROVIDED BY 37 U.S.C. 404 FOR MEMBERS AUTHORIZED A PERMANENT CHANGE OF STATION. 42 COMP. GEN. 222, MODIFIED.

TO MAJOR G. MATTHEW, UNITED STATES MARINE CORPS, APRIL 10, 1963:

BY THIRD INDORSEMENT DATED DECEMBER 19, 1962, PDTATAC CONTROL NO. 62-27, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE FORWARDED HERE YOUR LETTER OF NOVEMBER 26, 1962, IN EFFECT REQUESTING RECONSIDERATION OF OUR DECISION DATED OCTOBER 29, 1962, B-149656, 42 COMP. GEN. 222, TO CAPTAIN C. A. MURRAY, JR., DISBURSING OFFICER, U.S. MARINE CORPS. IN THAT DECISION WE CONSIDERED THE ENTITLEMENT OF SERGEANT (E-4) LUVERNE L. YOUNG, UNITED STATES MARINE CORPS, TO PAYMENT FOR TRAVEL OF DEPENDENTS AND DISLOCATION ALLOWANCE UPON HIS TRANSFER FROM THE U.S. NAVAL DISCIPLINARY COMMAND, NAVAL BASE, PORTSMOUTH, NEW HAMPSHIRE, AFTER CONFINEMENT, TO THE MARINE CORPS SCHOOLS, QUANTICO, VIRGINIA, PENDING REVIEW OF HIS CASE BY THE UNITED STATES COURT OF MILITARY APPEALS.

THE RECORD BEFORE US AT THAT TIME DID NOT DISCLOSE THE COURT-MARTIAL SENTENCE RECEIVED BY THE MEMBER. HOWEVER, IT APPEARED FROM THE OPINION OF THE COURT OF MILITARY APPEALS RENDERED IN HIS CASE, UNITED STATES V. YOUNG, 32 CMR 134, THAT A GENERAL COURT-MARTIAL SENTENCED HIM TO BE SEPARATED FROM THE SERVICE WITH A DISHONORABLE DISCHARGE, TO FORFEIT ALL PAY AND ALLOWANCES, TO BE CONFINED AT HARD LABOR FOR 8 YEARS AND TO BE REDUCED TO THE GRADE OF PRIVATE. ALSO, IT APPEARED FROM THAT OPINION THAT THE CONVENING AUTHORITY REDUCED THE PERIOD OF CONFINEMENT TO FIVE YEARS BUT OTHERWISE APPROVED THE SENTENCE AS ADJUDGED. ON THE BASIS OF INFORMAL INFORMATION WE RECEIVED CONCERNING THE MATTER, IT WAS OUR UNDERSTANDING THAT THE CONVENING AUTHORITY HAD SUSPENDED THE EXECUTION OF THE DISHONORABLE DISCHARGE AND CONFINEMENT UNTIL COMPLETION OF APPELLATE REVIEW AND IN VIEW OF SUCH INFORMATION, WE ASSUMED THAT HE ORDERED THE REMAINDER OF THE SENTENCE INTO IMMEDIATE EXECUTION. VIEWING SUCH CIRCUMSTANCES IN THE LIGHT OF THE PURPOSES OF THE PROVISIONS OF PARAGRAPH 126E OF THE MANUAL FOR COURTS MARTIAL, 1951, AS AMENDED BY EXECUTIVE ORDER NO. 10652, JANUARY 10, 1956, WITH RESPECT TO REDUCTION TO THE LOWEST ENLISTED PAY GRADE UNDER THE CIRCUMSTANCES THERE STATED,WE CONCLUDED THAT YOUNG WAS TO BE REGARDED AS HAVING BEEN REDUCED TO SUCH GRADE CONTEMPORANEOUSLY WITH THE APPROVAL OF HIS SENTENCE BY THE CONVENING AUTHORITY. SINCE THE GRADE OF PRIVATE IS AN INELIGIBLE GRADE FOR TRANSPORTATION OF DEPENDENTS AND DISLOCATION ALLOWANCE AND AS THERE WAS NO SHOWING THAT YOUNG WAS SUBSEQUENTLY PROMOTED WE HELD THAT HE WOULD NOT BE ENTITLED TO SUCH ALLOWANCES. IT NOW APPEARS, HOWEVER, THAT WHEN OUR DECISION OF OCTOBER 29, 1962, WAS RENDERED THE FULL FACTS WERE NOT AVAILABLE. ACCORDINGLY, THE MATTER WILL BE RECONSIDERED AT YOUR REQUEST. COMPARE 11 COMP. GEN. 138.

IT IS NOW REPORTED THAT THE CONVENING AUTHORITY DID NOT SUSPEND THE EXECUTION OF THE DISHONORABLE DISCHARGE OR CONFINEMENT UNTIL COMPLETION OF APPELLATE REVIEW AND THAT THE PROVISION OF THE SENTENCE FOR REDUCTION IN GRADE WAS NOT ORDERED EXECUTED UNTIL JULY 3, 1962, AFTER A DECISION HAD BEEN RENDERED BY THE COURT OF MILITARY APPEALS. IN THIS REGARD, YOU POINT OUT THAT PARAGRAPH 126E, MCM, 1951, AS AMENDED BY EXECUTIVE ORDER NO. 10652, EFFECTIVE JANUARY 20, 1956, DOES NOT REQUIRE AUTOMATIC REDUCTION IN GRADE, IF OTHERWISE PROSCRIBED BY REGULATIONS PROMULGATED BY THE SECRETARY OF THE DEPARTMENT CONCERNED, IN CASES WHERE A COURT-MARTIAL SENTENCE AS APPROVED BY THE CONVENING AUTHORITY INCLUDES (1) DISHONORABLE OR BAD CONDUCT DISCHARGE, (2) CONFINEMENT, OR (3) HARD LABOR WITHOUT CONFINEMENT. SIMILAR PROVISIONS ARE NOW CONTAINED IN 10 U.S.C. 858A, ARTICLE 55A OF THE UNIFORM CODE OF MILITARY JUSTICE, AS ADDED BY THE ACT OF JULY 12, 1960, PUBLIC LAW 86-633, 74 STAT. 468. YOU FURTHER POINT OUT THAT AT THE TIME OF THE CONVENING AUTHORITY'S ACTION IN YOUNG'S CASE SECTION 10109, 1955 NAVAL SUPPLEMENT TO THE MANUAL FOR COURTS-MARTIAL, PROMULGATED BY THE SECRETARY OF THE NAVY, PROVIDED THAT AUTOMATIC REDUCTION UNDER ARTICLE 58A OF THE CODE WILL NOT BE EFFECTED IN THE NAVAL SERVICE.

ARTICLE 71 (C) OF THE UNIFORM CODE OF MILITARY JUSTICE PROVIDES THAT:

(C) NO SENTENCE WHICH INCLUDES, UNSUSPENDED, A DISHONORABLE OR BAD CONDUCT DISCHARGE, OR CONFINEMENT FOR ONE YEAR OR MORE SHALL BE EXECUTED UNTIL AFFIRMED BY A BOARD OF REVIEW AND, IN CASES REVIEWED BY IT, THE COURT OF MILITARY APPEALS.

IN VIEW OF THESE PROVISIONS AND SINCE IT NOW APPEARS THAT THE PROVISIONS OF YOUNG'S SENTENCE FOR DISHONORABLE DISCHARGE AND CONFINEMENT WERE NOT SUSPENDED, THE PORTION OF THE SENTENCE PROVIDING FOR HIS REDUCTION TO THE GRADE OF PRIVATE LEGALLY COULD NOT BE, AND WAS NOT, ORDERED INTO EXECUTION AT THE TIME OF APPROVAL OF THE SENTENCE BY THE CONVENING AUTHORITY. FURTHER, SINCE THE ADMINISTRATIVE REGULATIONS PROVIDE THAT AUTOMATIC REDUCTION TO THE LOWEST ENLISTED GRADE WILL NOT BE EFFECTED IN THE NAVAL SERVICE IN THESE CIRCUMSTANCES, IT APPEARS THAT HE WAS NOT REDUCED IN GRADE UNTIL HIS SENTENCE WAS ORDERED EXECUTED ON JULY 3, 1962. OUR DECISION OF OCTOBER 29, 1962, IS THEREFORE MODIFIED ACCORDINGLY. THUS, HE HELD THE GRADE OF SERGEANT (E-4) ON THE EFFECTIVE DATE OF HIS ORDERS OF JANUARY 19, 1962, AND WE HAVE BEFORE US THE QUESTION CONCERNING HIS ENTITLEMENT TO TRAVEL AND TRANSPORTATION ALLOWANCES INCIDENT TO THOSE ORDERS.

UNDER THE PERTINENT STATUTE, 37 U.S.C. 404, AND THE APPLICABLE REGULATIONS ISSUED PURSUANT TO THE STATUTE A DULY AUTHORIZED PERMANENT CHANGE OF STATION FIXES THE MEMBER'S RIGHT TO TRANSPORTATION OF HIS DEPENDENTS AND DISLOCATION ALLOWANCE, WITHIN PRESCRIBED LIMITATIONS, FROM THE OLD PERMANENT STATION TO THE NEW. THE PURPOSE OF THE STATUTE AND REGULATIONS AUTHORIZING TRANSPORTATION OF DEPENDENTS AND DISLOCATION ALLOWANCE IS TO RELIEVE A MEMBER OF THE BURDEN OF PERSONALLY DEFRAYING THE TRAVEL EXPENSES OF HIS DEPENDENTS AND THE COST OF MOVING HIS HOUSEHOLD EFFECTS WHEN SUCH EXPENSES ARE INCURRED AS A RESULT OF AN ORDERED PERMANENT CHANGE OF STATION. WHETHER A DUTY STATION IS A MEMBER'S DESIGNATED POST OF DUTY (OR PERMANENT STATION) FOR SUCH PURPOSES IS A QUESTION OF FACT FOR DETERMINATION ON A CONSIDERATION OF FACTORS SUCH AS DURATION OR NATURE OF ASSIGNMENT, OR WHETHER THE DUTIES ASSIGNED THERE CONSTITUTE THE MEMBER'S PARAMOUNT OR ONLY EXISTING DUTY ASSIGNMENT. COMP. GEN. 757, 758; 38 ID. 853, 856.

IN YOUNG'S CASE THE RECORD INDICATES THAT HE WAS ORDERED TO QUANTICO, VIRGINIA, PENDING REVIEW OF HIS CASE BY THE UNITED STATES COURT OF MILITARY APPEALS. WHILE HE WAS ORDERED RESTORED TO DUTY, THE COMMANDANT OF THE MARINE CORPS REPORTED THAT QUANTICO WAS NOT INTENDED TO BE HIS ULTIMATE DUTY STATION FOR NORMAL, UNRESTRICTED DUTIES. HE WAS TO HAVE BEEN FURTHER TRANSFERRED TO THE 2D MARINE DIVISION AT CAMP LEJEUNE, NORTH CAROLINA, IF HE WAS TO HAVE BEEN RETURNED TO A NORMAL DUTY STATUS. THUS, IT APPEARS THAT WHILE HIS ASSIGNMENT AT QUANTICO, WHERE GOVERNMENT QUARTERS AND MESS WERE AVAILABLE, WAS HIS ONLY EXISTING STATION, THE ASSIGNMENT WAS INCIDENT TO THE COURT-MARTIAL SENTENCE WHICH INCLUDED A DISHONORABLE DISCHARGE AND WAS OF A TEMPORARY NATURE PENDING APPELLATE REVIEW OF SUCH SENTENCE.

IN THESE CIRCUMSTANCES AND SINCE THE TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS OF MEMBERS DISCHARGED FROM THE SERVICE UNDER OTHER THAN HONORABLE CONDITIONS MAY NOT BE AUTHORIZED AT GOVERNMENT EXPENSE, THE ORDERS OF JANUARY 19, 1962, MAY NOT BE VIEWED AS COMPETENT PERMANENT CHANGE OF STATION ORDERS FOR WHICH THE MEMBER IS AUTHORIZED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR HIS DEPENDENTS. COMPARE 37 COMP. GEN. 21.

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