B-1749, APRIL 11, 1939, 18 COMP. GEN. 781

B-1749, APRIL 11, 1939, 18 COMP. GEN. 781

PAY - AFTER EXPIRATION OF ENLISTMENT AND WHILE AWAITING COURT MARTIAL AND TREATMENT IN HOSPITAL - MARK OF DESERTION REMOVED AND DISCIPLINARY ACTION ABANDONED ACCOUNT MENTAL IRRESPONSIBILITY A NAVY ENLISTED MAN, DECLARED A DESERTER, WHOSE ENLISTMENT EXPIRED WHILE AWAITING TRIAL BY COURT MARTIAL, AND WHO WHILE AWAITING SUCH TRIAL SUBSEQUENT TO EXPIRATION OF ENLISTMENT, WAS ADMITTED TO A NAVAL HOSPITAL AS MENTALLY IRRESPONSIBLE, THE MARK OF DESERTION SUBSEQUENTLY HAVING BEEN REMOVED AS ERRONEOUS AND DISCIPLINARY ACTION BECAUSE OF THE ABSENCE ABANDONED, IS NOT ENTITLED TO ACTIVE DUTY PAY AS A NAVY ENLISTED MAN FROM THE DATE OF EXPIRATION OF ENLISTMENT, AS EXTENDED, TO THE DATE OF HIS TRANSFER TO THE FLEET NAVAL RESERVE, THE CONCLUSION OF THE MEDICAL SURVEY AS TO MENTAL IRRESPONSIBILITY BEING FOR CONSIDERATION MERELY AS A DEFENSE TO THE DESERTION CHARGE, AND THE SUBSEQUENT REMOVAL OF THE CHARGE OF DESERTION AND ABANDONMENT OF DISCIPLINARY ACTION NOT CREATING A SERVICE STATUS FOR PAY PURPOSES FOR THE PERIOD SUBSEQUENT TO THE EXPIRATION OF ENLISTMENT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, APRIL 11, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 21, 1939, TRANSMITTING A LETTER DATED JANUARY 25, 1939, FROM LT.COMDR. R. H. LENSON, SUPPLY CORPS, UNITED STATES NAVY, WITH INCLOSURES, REQUESTING DECISION WHETHER ATWOOD HENRY BURNHAM, WATER TENDER, FIRST CLASS, UNITED STATES NAVY, IS ENTITLED TO BE CREDITED PAY FOR THE PERIOD AUGUST 6, 1938, STATED TO BE THE DATE FOLLOWING EXPIRATION OF HIS LAST ENLISTMENT(AS EXTENDED) TO THE DATE OF HIS TRANSFER TO THE FLEET NAVAL RESERVE TO BE EFFECTIVE ON OR ABOUT MARCH 1, 1939.

IT APPEARS BURHAM WAS DECLARED A DESERTER ON JUNE 30, 1938, HAVING REMAINED ON UNAUTHORIZED ABSENCE FROM JUNE 30 TO JULY 12, 1938, AND THAT HIS ENLISTMENT EXPIRED AUGUST 5, 1938, WHILE AWAITING TRIAL BY COURT MARTIAL. IT IS STATED THAT WHILE AWAITING TRIAL BY COURT MARTIAL SUBSEQUENT TO EXPIRATION OF ENLISTMENT, AS EXTENDED, HE WAS ADMITTED AS A PATIENT TO THE NAVAL HOSPITAL, MARE ISLAND, CALIF.; THAT A BOARD OF MEDICAL SURVEY ON DECEMBER 17, 1938, EXPRESSED THE OPINION THAT THE ENLISTED MAN WAS MENTALLY IRRESPONSIBLE AND THAT THE BUREAU OF NAVIGATION ON JANUARY 18, 1939, INFORMED THE COMMANDING OFFICER, NAVAL HOSPITAL, MARE ISLAND, CALIF., TO RETAIN BURNHAM FOR FURTHER MEDICAL TREATMENT AND THAT NO DISCIPLINARY ACTION WOULD BE TAKEN FOR HIS UNAUTHORIZED ABSENCE. THE MARK OF DESERTION APPEARS TO HAVE BEEN REMOVED AS ERRONEOUS BY THE NAVY DEPARTMENT ON JANUARY 31, 1939.

AN ENLISTED MAN HELD FOR TRIAL OR FOR SENTENCE BY COURT MARTIAL AFTER EXPIRATION OF HIS ENLISTMENT IS NOT ENTITLED TO PAY FOR ANY PERIOD BEYOND THAT FOR WHICH HE CONTRACTED TO SERVE. 17 COMP. GEN. 103. HAVING COMMITTED AN OFFENSE AGAINST NAVAL DISCIPLINE HE IS SUBJECT TO BE HELD FOR TRIAL BY COURT MARTIAL FOR A PERIOD AFTER THE NORMAL DATE OF EXPIRATION OF ENLISTMENT, THE RIGHT TO DISCHARGE BEING MEANWHILE SUSPENDED. SEE WINTHROPE MILITARY LAW AND PRECEDENTS, SECOND EDITION, REPRINT 1920, PAGE 91, QUOTING FROM THE SUPREME COURT OF MASSACHUSETTS IN THE CASE OF IN RE WALKER (CITED AS 3 AM.JUR., 281) AS FOLLOWS:

* * * IT IS TRUE THAT SEAMAN IS NOT BOUND TO DO SERVICE AFTER THE EXPIRATION OF HIS TERM OF ENLISTMENT. BUT WITHIN THAT TERM HE IS BOUND TO OBSERVE THE RULES AND REGULATIONS PROVIDED BY LAW FOR THE GOVERNMENT OF THE NAVY, AND IS PUNISHABLE FOR ALL CRIMES AND OFFENCES COMMITTED IN VIOLATION OF THEM DURING HIS TERM OF SERVICE. * * * IN THIS CASE THE PETITIONER WAS ARRESTED OR PUT IN CONFINEMENT, AND CHARGES WERE PREFERRED AGAINST HIM TO THE SECRETARY OF THE NAVY, BEFORE THE EXPIRATION OF THE TIME OF HIS ENLISTMENT; AND THIS WAS CLEARLY A SUFFICIENT COMMENCEMENT OF THE PROSECUTION TO AUTHORIZE A COURT MARTIAL TO PROCEED TO TRIAL AND SENTENCE, NOTWITHSTANDING THE TIME OF SERVICE HAD EXPIRED BEFORE THE COURT MARTIAL HAD BEEN CONVENED.

WHILE IN A STATUS OF AWAITING TRIAL AFTER EXPIRATION OF ENLISTMENT AND INCIDENTALLY, ALSO IN THE HOSPITAL FOR TREATMENT, IT WAS DIRECTED SOME 5 1/2 MONTHS AFTER EXPIRATION OF ENLISTMENT THAT NO DISCIPLINARY ACTION WOULD BE TAKEN AGAINST THIS ENLISTED MAN INCIDENT TO THE CHARGE OF DESERTION. THE RETENTION AFTER AUGUST 5, 1938, FOR THE TWOFOLD PURPOSE OF AWAITING TRIAL AND AS A PATIENT IN HOSPITAL DID NOT CONSTITUTE SERVICE IN THE ENLISTMENT PERIOD FOR WHICH EH LAST CONTRACTED TO SERVE, AND THE SUBSEQUENT ADMINISTRATIVE DETERMINATION NOT TO TRY HIM ON THE CHARGE OF DESERTION AND TO REMOVE THE CHARGE DID NOT CREATE A STATUS ENTITLING TO PAY AFTER DATE OF EXPIRATION OF ENLISTMENT. IN THE CIRCUMSTANCES OF THIS PARTICULAR CASE THE CONCLUSION OF THE MEDICAL SURVEY MAY BE CONSIDERED MERELY AS A DEFENSE TO THE DESERTION CHARGE FOR THE BENEFIT OF THE ENLISTED MAN. ON THE FACTS PRESENTED BURNHAM IS NOT ENTITLED TO ACTIVE DUTY PAY AS AN ENLISTED MAN IN THE NAVY SUBSEQUENT TO AUGUST 5, 1938.