B-1749, AUGUST 26, 1939, 19 COMP. GEN. 290

B-1749, AUGUST 26, 1939, 19 COMP. GEN. 290

PAY - AFTER EXPIRATION OF ENLISTMENT AND DURING TREATMENT IN HOSPITAL - NAVY ENLISTED MEN RETENTIONS OF NAVY ENLISTED MEN FOR TREATMENT AT A HOSPITAL IN THE UNITED STATES AFTER EXPIRATION OF ENLISTMENT MUST BE CONSIDERED AS PRIMARILY FOR THE BENEFIT OF THE MAN CONCERNED AND NOT AS A HOLDING FOR MILITARY SERVICE, WHETHER THE PATIENT IS BEING TREATED FOR DISEASE INCURRED INCIDENT TO HIS OWN MISCONDUCT OR IN LINE OF DUTY, AND ENLISTED MEN SO HELD ARE NOT ENTITLED TO PAY BEYOND THE DATE OF EXPIRATION OF ENLISTMENT. 26 COMP. DEC. 447 AND DECISIONS FOLLOWING THE RULE THERE SET FORTH WILL NO LONGER BE FOR APPLICATION.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF THE NAVY, AUGUST 26, 1939:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 2, 1939, AS FOLLOWS:

IN THE ACTING COMPTROLLER GENERAL'S DECISION TO THE SECRETARY OF THE NAVY OF APRIL 11, 1939, B-1749, THE QUESTION WAS CONSIDERED AS TO THE RIGHT OF ATWOOD HENRY BURNHAM, WATER TENDER FIRST CLASS, U.S. NAVY, TO PAY FROM AUGUST 6, 1938, 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.

AS THE FACTS IN BURNHAM'S CASE ARE STATED CORRECTLY IN THE CITED DECISION OF APRIL 11, 1939, A RESTATEMENT OF THE SAME HEREIN IS NOTDEEMED NECESSARY.

AS TO BURNHAM'S RIGHT TO PAY FOR THE PERIOD AUGUST 6, 1938, 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 WAS CONCLUDED IN THE DECISION OF APRIL 11, 1939, AS FOLLOWS:

"WHILE IN A STATUS OF AWAITING TRAIL 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 HE 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.' ITALICS SUPPLIED.)

IN THE DECISION OF THE COMPTROLLER OF THE TREASURY OF DECEMBER 13, 1920 (27 COMP. DEC. 541), THERE WAS CONSIDERED THE CASE OF AN ENLISTED MAN WHO DESERTED ON SEPTEMBER 12, 1919, SURRENDERED TO NAVAL AUTHORITIES ON JANUARY 13, 1920, TRANSFERRED TO THE NAVY YARD, BOSTON, MASS., AND ON JUNE 10, 1920, TO THE NAVAL HOSPITAL, FORT LYON, COLO. WITH RESPECT TO THIS MAN'S RIGHT TO PAY FOLLOWING HIS SURRENDER TO NAVAL AUTHORITIES, IT WAS STATED IN THE DECISION:

"IN 26 COMP. DEC. 447, IT WAS HELD THAT THE PERIOD OF DETENTION BEYOND THE EXPIRATION OF THE TERM OF SERVICE OF AN ENLISTED MAN OF THE NAVY, UNDERGOING TREATMENT IN A HOSPITAL IS TO BE CONSIDERED AS FOR THE CONVENIENCE OF THE GOVERNMENT, AND THE ENLISTED MAN IS ENTITLED TO PAY TO AND INCLUDING THE DATE OF HIS ACTUAL DISCHARGE.

"ACCORDINGLY, SMITH IS ENTITLED TO PAY FOR THE PERIOD JANUARY 13 TO FEBRUARY 16, 1920, COMPUTED ON THE BASE RATE OF $84 PER MONTH, AND IF HE WAS NOT SENTENCED BY COURT-MARTIAL TO CONFINEMENT AND FORFEITURE OF PAY HE WOULD BE ENTITLED TO CONTINUE IN THE RECEIPT OF PAY AT THE ABOVE RATE BEYOND THE DATE HIS ENLISTMENT WAS DUE TO EXPIRE TO AND INCLUDING THE ACTUAL DATE OF DISCHARGE.'

IN THE COMPTROLLER GENERAL'S DECISION OF APRIL 22, 1924, A-2138, THE RIGHT OF AN ENLISTED MAN OF THE NAVY TO PAY AND ALLOWANCES WHILE UNDERGOING TREATMENT IN A HOSPITAL SUBSEQUENT TO EXPIRATION DATE OF ENLISTMENT WAS DEFINITELY RECOGNIZED, AND IN SUPPORT OF HIS CONCLUSION THERE WAS CITED THE EARLIER DECISION OF THE COMPTROLLER OF THE TREASURY OF DECEMBER 4, 1919 (26 COMP. DEC. 447), SUPRA.

PRIOR TO THE DECISION OF THE COMPTROLLER OF THE TREASURY OF DECEMBER 4, 1919 (26 COMP. DEC. 447), BOTH UNDER NAVY REGULATIONS AND DECISIONS OF FORMER COMPTROLLERS OF THE TREASURY, IT WAS HELD THAT PAY WAS NOT DUE AFTER EXPIRATION OF ENLISTMENT DURING TREATMENT OF ENLISTED MEN IN HOSPITALS.

HOWEVER, AN EXCEPTION TO THE RULE JUST MENTIONED WAS STATED IN AN EARLIER DECISION OF AUGUST 14, 1919 (26 COMP. DEC. 128), TO THE EFFECT THAT AN ENLISTED MAN SENT TO A HOSPITAL FOR TREATMENT WAS ENTITLED TO PAY FOR TIME AFTER HIS ENLISTMENT EXPIRED "ONLY UP TO AND INCLUDING THE DAY ON WHICH THE GOVERNMENT IS READY TO DISCHARGE HIM, NO PAY ACCRUING AFTER THAT DATE FOR THE PERIOD HE WAS HELD FOR TREATMENT FOR HIS OWN BENEFIT.'

THE ACTING COMPTROLLER GENERAL'S DECISION OF APRIL 11, 1919 (1939), SUPRA, IS EXPRESSLY APPLICABLE TO THE "CIRCUMSTANCES OF THIS PARTICULAR CASE" AND APPEARS TO REST PRIMARILY ON BURNHAMS'S "STATUS OF AWAITING TRAIL AFTER EXPIRATION OF ENLISTMENT," HIS CONCURRENT STATUS AS A PATIENT IN THE HOSPITAL BEING APPARENTLY TREATED AS MERELY INCIDENTAL TO HIS STATUS AS AN ENLISTED MAN AWAITING TRIAL AFTER DATE OF EXPIRATION OF ENLISTMENT (AS EXTENDED).

AS BEARING ON THIS QUESTION, YOUR ATTENTION IS INVITED TO THE PROVISIONS OF ARTICLE 1190 (4). U.S. NAVY REGULATIONS, 1902, AS AMENDED BY C.N.R. NO. 3, WHICH READS AS FOLLOWS:

"/4) ENLISTED MEN HELD FOR TREATMENT AT A HOSPITAL AFTER EXPIRATION OF ENLISTMENT ARE HELD FOR THE CONVENIENCE OF THE GOVERNMENT, AND ENTITLED TO PAY AND ALLOWANCES UNTIL DATE OF ACTUAL DISCHARGE FROM THE SERVICE.'

IN ORDER THAT THERE MAY BE NO MISUNDERSTANDING AS TO THE EFFECT AND PROPER APPLICATION OF THE ACTING COMPTROLLER GENERAL'S DECISION OF APRIL 11, 1939, B-1749, THE NAVY DEPARTMENT REQUESTS TO BE ADVISED WHETHER SUCH DECISION WAS INTENDED TO REVERSE OR MODIFY THE PRIOR DECISIONS OF DECEMBER 4, 1919 (26 COMP. DEC. 447), DECEMBER 13, 1920 (27 COMP. DEC. 541), OR APRIL 22, 1924, A-2138.

THERE WAS CONSIDERED IN DECISION A-87291, DATED AUGUST 5, 1937, PUBLISHED 17 COMP. GEN. 103, THE RIGHT OF AN ENLISTED MAN OF THE AWAITING TRIAL BY COURT MARTIAL, AND IN THE SUBMISSION OF THE SECRETARY OF THE NAVY IN THAT CASE ATTENTION WAS INVITED TO THE APPARENT CONFLICT BETWEEN THE DECISIONS OF MAY 15, 1922, A-6737, AND MARCH 11, 1932, PUBLISHED 11 COMP. GEN. 342 (AN ARMY CASE). THE DECISION OF AUGUST 5, 1937, HELD IN AGREEMENT WITH 11 COMP. GEN. 342, THAT AN ENLISTED MAN OF THE NAVY IS NOT ENTITLED TO PAY FOR ANY PERIOD HE MAY BE HELD ON COURT MARTIAL CHARGES AFTER EXPIRATION OF ENLISTMENT. AT PAGES 103, 104 OF THE PUBLISHED DECISION OF AUGUST 5, 1937, IT WAS STATED:

IN SUPPORT OF THE CONCLUSION IN THE DECISION OF MAY 15, 1922, THAT AN ENLISTED MAN OF THE NAVY WAS ENTITLED TO PAY WHILE BEING HELD AFTER EXPIRATION OF ENLISTMENT AWAITING APPROVAL OF A GENERAL COURT-MARTIAL SENTENCE THERE WERE CITED 26 COMP. DEC. 447 AND 27 ID. 541. THOSE DECISIONS WET LIMITED TO THE HOLDING THAT THE PERIOD OF DETENTION BEYOND THE EXPIRATION OF THE TERM OF SERVICE OF AN ENLISTED MAN OF THE NAVY UNDERGOING TREATMENT IN HOSPITAL IS TO BE CONSIDERED AS FOR THE CONVENIENCE OF THE GOVERNMENT AND THAT THE MAN IS ENTITLED TO PAY TO AND INCLUDING THE DATE OF HIS ACTUAL DISCHARGE.

PRIOR TO THE DECISION IN 26 COMP. DEC. 447, BOTH UNDER NAVY REGULATIONS AND DECISIONS OF FORMER COMPTROLLERS OF THE TREASURY, THE HOLDING APPEARS TO HAVE BEEN UNIFORM AND SETTLED THAT PAY WAS NOT DUE AFTER EXPIRATION OF ENLISTMENT DURING TREATMENT OF ENLISTED MEN IN HOSPITALS. PARAGRAPH 1173, NAVY REGULATIONS, 1865, 2 COMP. DEC. 11; NAVY REGULATIONS, 1876, PAGE 123, PARAGRAPH 26, NAVY REGULATIONS, 1993, ARTICLE 1231, PARAGRAPH 1, 3 COMP. DEC. PAGE 4; ARTICLE 1129 (2), NAVY REGULATIONS, 1909, 18 COMP. DEC. 436; 23 COMP. DEC. 370.

IN 12 COMP. DEC. 620, 622, IT WAS STATED: "THE REGULATION QUOTED PROVIDES FOR HIS RETENTION IN THE HOSPITAL IN THE UNITED STATES FOR TREATMENT AFTER HIS ENLISTMENT HAS EXPIRED FROM MOTIVES OF HUMANITY AND ENTIRELY FOR THE BENEFIT OF THE MAN. HE IS NOT HELD IN MILITARY SERVICE BUT IS MERELY RETAINED IN THE HOSPITAL AS A PATIENT FOR TREATMENT.'

A FURTHER CONSIDERATION OF THE DECISION IN 26 COMP. DEC. 447, AND THE INFERENCE ARISING FROM LEGISLATION APPARENTLY DEEMED NECESSARY TO AUTHORIZE PAY AFTER EXPIRATION OF ENLISTMENT, RAISES A DOUBT THAT THE RULE SHOULD PROPERLY BE EXTENDED TO APPLY SO AS TO AUTHORIZE PAY AFTER EXPIRATION OF ENLISTMENT TO ENLISTED MEN OF THE NAVY WHO ARE DETAINED AWAITING TRIAL BY COURT MARTIAL.

IT WILL BE SEEN THAT WHILE COMMENT WAS MADE REGARDING THE RULE STATED IN 26 COMP. DEC. 447 THE FACTS FOR CONSIDERATION IN THE DECISION OF AUGUST 5, 1937, DIFFERED MATERIALLY FROM THOSE CONSIDERED IN THE DECISION OF THE FORMER COMPTROLLER OF THE TREASURY. I AM OF THE VIEW THAT THE CORRECT, PROPER, AND LAWFUL RULE IS THAT STATED IN THE REGULATIONS OF THE NAVY DEPARTMENT AND THE DECISIONS OF THE FORMER ACCOUNTING OFFICERS OF THE TREASURY PRIOR TO THE DECISION PUBLISHED BEGINNING IN THE 26TH VOLUME, NAMELY, THAT RETENTIONS OF ENLISTED MEN IN THE HOSPITAL IN THE UNITED STATES FOR TREATMENT AFTER EXPIRATION OF ENLISTMENT ARE MOTIVATED PRIMARILY FOR PURPOSES OF HUMANITY AND ENTIRELY FOR THE BENEFIT OF THE MAN CONCERNED; THEY ARE NOT HELD FOR MILITARY SERVICE BUT MERELY DETAINED IN HOSPITAL FOR TREATMENT AND THIS IS SO WHETHER THE PATIENT IS BEING TREATED FOR A DISEASE INCURRED INCIDENT TO HIS OWN MISCONDUCT OR IN LINE OF DUTY. WHEN THE CONTRACT OF ENLISTMENT EXPIRES THE MAN IS ENTITLED TO BE DISCHARGED UNLESS DETAINED IN THE PUBLIC SERVICE AS PROVIDED AND DEFINED BY STATUTE HE IS REQUIRED TO SERVE THEREAFTER AS, FOR INSTANCE, UNDER SECTION 1422 OF THE REVISED STATUTES OR OTHER PROPER ADMINISTRATIVE PURPOSES. SEE, ALSO, 7 COMP. DEC. 391; 8 ID. 461; 13 ID. 185.

IN ANSWER TO YOUR SPECIFIC QUESTION AND BASED UPON THE AUTHORITY CONTAINED IN 17 COMP. GEN. 103, 18 ID. 781, AND WHAT IS SAID HEREIN, THE DECISIONS FOLLOWING 26 COMP. DEC. 447 WILL NO LONGER BE FOR APPLICATION.