B-177201, DEC 6, 1972

B-177201: Dec 6, 1972

Additional Materials:

Contact:

Shirley Jones
(202) 512-8156
jonessa@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IF DEPARTURE WAS MADE WITH THE CADET'S CONSENT ON A LEAVE WITHOUT PAY BASIS. THE CADETS' TRAVEL ALLOWANCES ARE ALLOWED. SINCE THEIR RETURN TRAVEL IS CONSIDERED IN COMPLIANCE WITH THE INJUNCTION ORDERING THEIR REINSTATEMENT. ADAMS: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 26. WHICH WAS FORWARDED HERE BY LETTER DATED OCTOBER 3. HAGOPIAN AND JAREMKO HAVE FILED SUIT AND OBTAINED ORDERS FROM THE COURT FOR THEIR REINSTATEMENT TO THE ACADEMY. BROWN WAS ADDITIONALLY REPORTED FOR ACADEMIC DEFICIENCY. THE RECOMMENDATIONS WERE APPROVED BY THE SECRETARY OF THE ARMY AND SEPARATION ACTIONS WERE CONSUMMATED FOR BOTH BROWN AND JAREMKO. HAGOPIAN WAS A MEMBER OF THE SECOND (JUNIOR) CLASS DURING THE ACADEMIC YEAR 1971-1972.

B-177201, DEC 6, 1972

TRAVEL ALLOWANCES - PAY FOR DISMISSED CADETS - REINSTATEMENT EXPENSES CONCERNING PAY AND ALLOWANCES FOR CADETS S. F. BROWN, J. HAGOPIAN, AND J. E. JAREMKO, PURSUANT TO A DISTRICT COURT PRELIMINARY INJUNCTION REINSTATING THE CADETS TO THE U.S. MILITARY ACADEMY PENDING THE OUTCOME OF THEIR CIVIL SUITS FOR FULL READMISSION. IF DEPARTURE WAS MADE WITH THE CADET'S CONSENT ON A LEAVE WITHOUT PAY BASIS, NO PAY OR ALLOWANCES WOULD ACCRUE TO HIM UNTIL HIS RETURN TO THE ACADEMY. HOWEVER, AN INVOLUNTARY DEPARTURE FROM THE ACADEMY ENTITLES THE CADETS TO PAY AND ALLOWANCES ACCRUING FROM THE DATE OF DEPARTURE. SEE 46 COMP. GEN. 261 (1966), 49 COMP. GEN. 407 (1969). THUS, THE CADETS' TRAVEL ALLOWANCES ARE ALLOWED, UNDER JTR M5000-3, SINCE THEIR RETURN TRAVEL IS CONSIDERED IN COMPLIANCE WITH THE INJUNCTION ORDERING THEIR REINSTATEMENT.

TO LT. COL. G. B. ADAMS:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 26, 1972, WHICH WAS FORWARDED HERE BY LETTER DATED OCTOBER 3, 1972, OF THE OFFICE OF THE COMPTROLLER OF THE ARMY, REQUESTING AN ADVANCE DECISION AS TO THE PAY AND ALLOWANCES PAYABLE TO CADETS STEVEN F. BROWN, JOACHIM HAGOPIAN AND JOSEPH E. JAREMKO, PURSUANT TO ORDERS OF THE UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK, FOR THEIR REINSTATEMENT TO THE UNITED STATES MILITARY ACADEMY. YOUR REQUEST HAS BEEN ASSIGNED CONTROL NO. DO-A- 1177 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

CADETS BROWN, HAGOPIAN AND JAREMKO HAVE FILED SUIT AND OBTAINED ORDERS FROM THE COURT FOR THEIR REINSTATEMENT TO THE ACADEMY. ALL THREE CADETS HAD BEEN FOUND DEFICIENT IN CONDUCT AND RECOMMENDED TO HEADQUARTERS, DEPARTMENT OF THE ARMY, FOR SEPARATION PURSUANT TO APPLICABLE REGULATIONS. MR. BROWN WAS ADDITIONALLY REPORTED FOR ACADEMIC DEFICIENCY. THE RECOMMENDATIONS WERE APPROVED BY THE SECRETARY OF THE ARMY AND SEPARATION ACTIONS WERE CONSUMMATED FOR BOTH BROWN AND JAREMKO.

YOU SAY THAT MR. HAGOPIAN WAS A MEMBER OF THE SECOND (JUNIOR) CLASS DURING THE ACADEMIC YEAR 1971-1972. ON JUNE 8, 1972, THE ACADEMIC BOARD RECOMMENDED HIS SEPARATION FOR DEFICIENCY IN CONDUCT. ON JUNE 12, 1972, HE WAS SUSPENDED AND DEPARTED THE ACADEMY IN A LEAVE WITHOUT PAY STATUS PENDING ACTION BY THE SECRETARY OF THE ARMY ON THE RECOMMENDATION WHICH WAS APPROVED ON JUNE 27, 1972. HE FILED SUIT ON JUNE 30, 1972, AND A TEMPORARY RESTRAINING ORDER WAS ISSUED ON THE SAME DAY EFFECTIVELY BARRING FINAL SEPARATION ACTION AGAINST HIM. ON JULY 27, 1972, THE DISTRICT COURT ISSUED A PRELIMINARY INJUNCTION ORDERING THE ACADEMY TO READMIT HIM "TO THE PROGRAM OF INSTRUCTION AND TRAINING" AND "THAT HE SHALL NOT BE SUBJECTED TO ANY FORFEITURE OR UNREASONABLE DETRIMENT BY REASON OF HIS ABSENCE DURING THE PENDENCY OF THIS MOTION." HE RETURNED TO THE ACADEMY ON JULY 31, 1972.

IN CONNECTION WITH A VOUCHER IN FAVOR OF MR. HAGOPIAN IN THE AMOUNT OF $517.69 REPRESENTING PAY AND ALLOWANCES FOR THE PERIOD FROM JUNE 12 TO JULY 30, 1972, YOU PRESENTED THE FOLLOWING QUESTIONS:

"1. INASMUCH AS HE WAS NOT SEPARATED WE DO NOT QUESTION HIS ENTITLEMENT TO PAY AND ALLOWANCES SINCE HIS RETURN, HOWEVER, DOES ENTITLEMENT EXIST FOR THE PERIOD BEFORE THAT DATE?

"2. IF SO, FOR WHAT PERIOD; I.E., FOR 12 JUNE, THE DATE OF HIS DEPARTURE; FROM 30 JUNE, THE DATE HE FILED SUIT AND OBTAINED THE RESTRAINING ORDER OR FROM 21 JULY, THE DATE OF THE PRELIMINARY INJUNCTION?

"3. ARE TRAVEL ALLOWANCES FOR TRAVEL PERFORMED TO HIS HOME AND RETURN TO WEST POINT AUTHORIZED?"

THE COURTS HAVE CONSISTENTLY HELD THAT THEY HAVE NO RIGHT TO INTERFERE WITH LEGITIMATE MILITARY MATTERS AND HAVE RECOGNIZED THAT THE SUPERVISION AND CONTROL OF THE SELECTION, APPOINTMENT, AND DISMISSAL OF OFFICERS ARE NOT JUDICIAL FUNCTIONS. BEARD V. STAHR, 200 F. SUPP. 766 (1961). HOWEVER, IN DUNMAR V. AILES, 348 F.2D 51 (1965), IT WAS HELD THAT THE DISTRICT COURT HAD JURISDICTION OF AN ACTION TO RESTRAIN THE SECRETARY OF THE ARMY FROM SEPARATING THE PLAINTIFF FROM THE CORPS OF CADETS, UNITED STATES MILITARY ACADEMY, FOR A CADET HONOR CODE VIOLATION ON THE GROUND THAT THE SEPARATION ORDER WAS INVALID BECAUSE OF LACK OF PROCEDURAL DUE PROCESS, IN VIOLATION OF ARMY AND ACADEMY RULES AND REGULATIONS, VAGUENESS OF HONOR CODE, AND LACK OF POWER TO SEPARATE. IN VIEW THEREOF THE ORDER OF THE DISTRICT COURT DATED JULY 26, 1972, MUST BE COMPLIED WITH AND MR. HAGOPIAN MUST BE READMITTED TO THE ACADEMY PENDING THE OUTCOME OF THE SUIT.

WHILE ARTICLE 12.03, REGULATIONS FOR THE UNITED STATES MILITARY ACADEMY, PROVIDES THAT THE SUPERINTENDENT MAY AWARD CERTAIN PUNISHMENTS TO CADETS, INCLUDING LOSS OF LEAVE, IT SEEMS CLEAR THAT UNDER THE COURT ORDER MR. HAGOPIAN MAY NOT BE CHARGED WITH LEAVE WITHOUT PAY AS A PUNISHMENT FOR THE OFFENSE WHICH IS THE SUBJECT OF THE SUIT. HOWEVER, IN 46 COMP. GEN. 261 (1966), CITED WITH APPROVAL IN 49 COMP. GEN. 407 (1969), WE HELD THAT A MIDSHIPMAN MAY, UNDER PROPER REGULATIONS AND WITH HIS CONSENT, BE PLACED IN A LEAVE WITHOUT PAY STATUS PENDING APPROVAL OF HIS RESIGNATION OR DISCHARGE. HENCE, IF HE DEPARTED THE ACADEMY IN A LEAVE WITHOUT PAY STATUS WITH HIS CONSENT, NO PAY AND ALLOWANCES WOULD ACCRUE TO HIM UNTIL HE RETURNED TO THE ACADEMY. CONVERSELY, IF HE DEPARTED THE ACADEMY INVOLUNTARILY HE IS ENTITLED TO PAY AND ALLOWANCES FROM THE DATE OF DEPARTURE. QUESTIONS 1 AND 2 ARE ANSWERED ACCORDINGLY.

UNDER THE PROVISIONS OF 37 U.S.C. 410(A)(1) CADETS OF THE UNITED STATES MILITARY ACADEMY ARE ENTITLED TO SUCH TRAVEL AND TRANSPORTATION ALLOWANCES PROVIDED BY SECTION 404 OF THAT TITLE AS PRESCRIBED BY THE SECRETARY CONCERNED. CHAPTER 5, PART A, JOINT TRAVEL REGULATIONS, RELATES TO TRAVEL OF CADETS AND MIDSHIPMEN OF THE SERVICE ACADEMIES. PARAGRAPH M5000-1 PROVIDES THAT A PERSON ENTERING ONE OF THE SERVICE ACADEMIES WILL BE ENTITLED TO THE PERMANENT CHANGE-OF-STATION ALLOWANCES PRESCRIBED FOR OFFICER MEMBERS FOR TRAVEL ACTUALLY PERFORMED NOT TO EXCEED THE OFFICIAL DISTANCE BETWEEN THE PLACE WHICH HE CERTIFIES WAS HIS ACTUAL PERMANENT PLACE OF ABODE, HOME, SCHOOL, OR DUTY STATION AT THE TIME SUCH TRAVEL COMMENCED AND THE SERVICE ACADEMY INVOLVED. PARAGRAPH M5000-3 PROVIDES THAT WHEN A CADET OR MIDSHIPMAN OF ANY OF THE SERVICE ACADEMIES (INCLUDING GRADUATED CADETS) RESIGNS, IS DISMISSED, OR IS DISCHARGED, HE WILL BE ENTITLED TO PERMANENT CHANGE OF-STATION ALLOWANCES FOR TRAVEL FROM THE ACADEMY TO HIS ABODE, HOME, OR TO HIS PROPER MILITARY STATION.

A CADET IS REQUIRED TO SIGN AN AGREEMENT THAT HE WILL COMPLETE THE FULL FOUR-YEAR COURSE OF INSTRUCTION AT THE ACADEMY. HIS POST OF DUTY REMAINS THE SAME DURING THAT TIME. IF HE SHOULD DECIDE TO TRAVEL TO HIS HOME DURING A PERIOD OF LEAVE SUCH TRAVEL WOULD BE AT PERSONAL EXPENSE, THAT IS TO SAY, DURING HIS COURSE OF STUDIES AT THE ACADEMY, A CADET MAY, UNDER THE LAW AND REGULATIONS, BE ALLOWED TRAVEL AT GOVERNMENT EXPENSE ONLY FOR TRAVEL FROM HIS HOME, ETC., TO THE ACADEMY AND FROM THE ACADEMY TO HIS HOME OR OFFICIAL STATION WHEN HE GRADUATES OR LEAVES THE ACADEMY. MR. HAGOPIAN'S RETURN TRAVEL TO THE ACADEMY MUST BE CONSIDERED IN COMPLIANCE WITH THE COURT ORDER. QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE. THE VOUCHER IN HIS FAVOR, WHICH IS RETURNED, MAY BE PAID ON THE BASIS INDICATED.

YOU ALSO SAY THAT MR. BROWN WAS A MEMBER OF THE FIRST OR SENIOR CLASS DURING THE 1971-1972 ACADEMIC YEAR. HE WAS SUSPENDED AND DEPARTED THE ACADEMY IN A LEAVE WITHOUT PAY STATUS ON MAY 31, 1972, BASED ON A SEPARATE ACT OF MISCONDUCT. ON JUNE 3, 1972, THE ACADEMIC BOARD RECOMMENDED HIS SEPARATION FOR CONDUCT AND ACADEMIC DEFICIENCY AND THE SUPERINTENDENT IN PROCESSING THE RECOMMENDATION FURTHER RECOMMENDED THAT HIS MILITARY ACTIVE DUTY COMMITMENT UNDER 10 U.S.C. 4348(B) BE WAIVED. THE RECOMMENDATIONS WERE APPROVED AND THE SEPARATION WAS CONSUMMATED ON JUNE 23, 1972.

SUIT WAS FILED ON JULY 27, 1972, AND ON AUGUST 9, 1972, THE DISTRICT COURT ISSUED A PRELIMINARY INJUNCTION ORDERING THAT HE "BE READMITTED FORTHWITH TO THE PROGRAM OF MILITARY INSTRUCTION AND TRAINING AT THE UNITED STATES MILITARY ACADEMY FROM WHICH HE HAS BEEN EXCLUDED" AND "THAT NO LIMITATIONS SHALL BE IMPOSED UPON PLAINTIFF'S REINSTATEMENT WITHOUT SPECIFIC APPLICATION TO THE COURT UPON REASONABLE NOTICE." YOU SAY THAT HE RETURNED TO THE ACADEMY ON AUGUST 14, 1972, ALTHOUGH, TO DATE NO AUTHORITY HAS BEEN RECEIVED TO REVOKE, RESCIND OR OTHERWISE VOID THE SEPARATION ORDERS.

IN CONNECTION WITH A VOUCHER IN FAVOR OF MR. BROWN IN THE AMOUNT OF $1,271.24, REPRESENTING PAY AND ALLOWANCES FOR THE PERIOD FROM JUNE 1, 1972, THROUGH SEPTEMBER 30, 1972, YOU RAISED THE FOLLOWING QUESTIONS:

"1. WHAT, IF ANY, ENTITLEMENT TO PAY AND ALLOWANCES INCLUDING TRAVEL TO AND FROM HOME ACCRUED TO BROWN FOR THE PERIOD OF HIS ABSENCE FROM THE ACADEMY?

"2. IN VIEW OF THE CONTINUED EXISTENCE OF SEPARATION ORDERS, ALTHOUGH HE HAS PHYSICALLY RETURNED TO THE ACADEMY, MAY HE BE CONSIDERED TO BE ENTITLED TO PAY AND ALLOWANCES FROM 14 AUGUST 1972, THE DATE HE RETURNED TO THE ACADEMY?

"3. MAY PAYMENTS BE PROPERLY CONTINUED UNTIL SUCH TIME AS LITIGATION IS COMPLETED OR ENTITLEMENT IS OTHERWISE PROPERLY TERMINATED?"

AS IN MR. HAGOPIAN'S CASE, IF MR. BROWN DEPARTED THE ACADEMY IN A LEAVE WITHOUT PAY STATUS WITH HIS CONSENT AS OPPOSED TO LOSS OF LEAVE IMPOSED AS A PUNISHMENT, NO PAY AND ALLOWANCES ACCRUED TO HIM UNTIL HE RETURNED TO THE ACADEMY. HIS ENTITLEMENT TO TRAVEL ALLOWANCES IS THE SAME AS MR. HAGOPIAN'S. QUESTION 1 IS ANSWERED ACCORDINGLY.

WHILE MR. BROWN'S SEPARATION WAS CONSUMMATED, THE LEGALITY OF HIS SEPARATION IS THE SUBJECT OF HIS SUIT AND UNTIL THE ISSUE IS FINALLY SETTLED WE ARE OF THE OPINION THAT HE IS ENTITLED TO PAY AND ALLOWANCES AS A CADET FROM AUGUST 14, 1972, THE DATE HE RETURNED TO THE ACADEMY, UNTIL SUCH TIME AS LITIGATION IS COMPLETED OR ENTITLEMENT IS OTHERWISE PROPERLY TERMINATED. QUESTIONS 2 AND 3 ARE ANSWERED IN THE AFFIRMATIVE. THE VOUCHER IN FAVOR OF MR. BROWN WHICH IS RETURNED, MAY BE PAID ON THE BASIS INDICATED.

AS TO MR. JAREMKO YOU SAY THAT HE WAS ALSO A MEMBER OF THE SECOND CLASS DURING THE 1971-1972 ACADEMIC YEAR. THE ACADEMIC BOARD ON JUNE 8, 1972, RECOMMENDED HIS SEPARATION FOR DEFICIENCY IN CONDUCT AND THE SECRETARY OF THE ARMY APPROVED THE RECOMMENDATION ON JUNE 27, 1972. HE WAS SEPARATED, TRANSFERRED TO THE U.S. ARMY RESERVE, AND CONCURRENTLY CALLED TO ACTIVE DUTY WITH AN EFFECTIVE DATE OF JULY 31, 1972, BY ORDERS ISSUED AT THE UNITED STATES MILITARY ACADEMY ON JULY 7, 1972. HE REPORTED TO FORT KNOX, KENTUCKY, ON THE EFFECTIVE DATE SPECIFIED AND BEGAN SERVICE AS A PRIVATE FIRST CLASS, E-3. SUIT WAS FILED FOR HIM ON AUGUST 11, 1972, AND A TEMPORARY RESTRAINING ORDER ISSUED ON THE SAME DATE REQUIRED THE SUPERINTENDENT "TO REINSTATE THE PLAINTIFF HEREIN (TO) THE UNITED STATES MILITARY ACADEMY *** FORTHWITH." HE WAS ISSUED ORDERS AT FORT KNOX WITH AUTHORIZED DELAY EN ROUTE TO RETURN TO THE ACADEMY AND ARRIVED THERE ON AUGUST 21, 1972. NO REVOCATION OF THE ORDERS OF JULY 7 HAS BEEN ISSUED.

YOU PRESENTED THE FOLLOWING QUESTIONS REGARDING MR. JAREMKO:

"1. SAME AS NUMBER 1 FOR BROWN.

"2. IF HE ACCRUED ANY ENTITLEMENT BEFORE 21 AUGUST FOR SERVICE AS A CADET; E.G., ON AND, SUBSEQUENT TO 11 AUGUST, THE DATE OF THE COURT ORDER; DOES THAT STATUS TAKE PRECEDENCE OVER HIS ACTUAL SERVICE AS AN E 3 ON ACTIVE DUTY?

"3. IS HE NOW ENTITLED TO PAY AND ALLOWANCES AS A CADET OR AN ACTIVE DUTY ENLISTED MEMBER, IF EITHER?

"4. MAY PAYMENTS CONTINUE TO BE MADE TO MR. JAREMKO PENDING FINAL ACTION ON HIS SUIT?"

SINCE MR. JAREMKO WAS NOT SEPARATED FROM THE SERVICE AND WAS NOT PLACED IN A LEAVE WITHOUT PAY STATUS, HE IS ENTITLED TO PAY AND ALLOWANCES AS A CADET FOR THE PERIOD FROM JUNE 12, 1972, THE DATE HE DEPARTED THE ACADEMY, TO AUGUST 21, 1972, DATE HE RETURNED, LESS PAY AND ALLOWANCES RECEIVED FOR THAT PERIOD AS PRIVATE FIRST CLASS, E-3. HIS ENTITLEMENT TO TRAVEL ALLOWANCES TO HIS HOME AS A CADET IS THE SAME AS THAT OF MR. HAGOPIAN AND MR. BROWN. HE TRAVELED FROM HIS HOME TO FORT KNOX, KENTUCKY, AND FROM FORT KNOX TO THE ACADEMY UNDER ORDERS AND WE SEE NO REASON TO QUESTION THE PAYMENT OF TRAVEL ALLOWANCES PAID TO HIM AS AN ENLISTED MAN. QUESTIONS 1 AND 2 ARE ANSWERED ACCORDINGLY.

MR. JAREMKO IS ENTITLED TO PAY AND ALLOWANCES AS A CADET FROM THE DATE OF HIS RETURN TO THE ACADEMY UNTIL SUCH TIME AS FINAL ACTION IS TAKEN ON HIS SUIT. QUESTION 3 IS ANSWERED ACCORDINGLY AND QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE. UPON PROPER ADJUSTMENT OF THE AMOUNT OF PAY DUE MR. JAREMKO FOR THE PERIOD JUNE 12, 1972, THROUGH AUGUST 20, 1972, THE VOUCHER IN HIS FAVOR MAY BE PAID.

Jul 19, 2019

Jul 18, 2019

Jul 17, 2019

Jul 16, 2019

Looking for more? Browse all our products here