B-122545, JAN. 20, 1966

B-122545, JAN. 20, 1966

TO MR. JAMES S. NEIL:

REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 20, 1965, AND NOVEMBER 18, 1965, REGARDING THE CLAIM OF LEMIL MASTER OWENS FOR ARMY PAY AND ALLOWANCES FOR THE PERIOD FROM JANUARY 16, 1952, TO JUNE 3, 1953. THE CLAIM WAS DISALLOWED BY SETTLEMENT OF OUR CLAIMS DIVISION DATED APRIL 27, 1955.

THE RECORD INDICATES THAT ON JANUARY 16, 1952, WHILE A MEMBER OF 505TH AIRBORNE INFANTRY, FORT BRAGG, NORTH CAROLINA, MR. OWENS WAS APPREHENDED BY CIVIL AUTHORITIES IN FAYETTEVILLE, NORTH CAROLINA, AND ON JANUARY 17, 1952, HE WAS TRIED AT THE CITY RECORDER'S COURT ON A CHARGE OF ENGAGING IN AN AFFRAY AND WAS ACQUITTED. ON THE SAME DAY, HE WAS TRIED IN THE SUPERIOR COURT, CUMBERLAND COUNTY, NORTH CAROLINA, FOR LARCENY OF AN AUTOMOBILE AND WAS CONVICTED AND SENTENCED TO 18 MONTHS' IMPRISONMENT. APPARENTLY WAS CARRIED ON THE ROLLS OF HIS UNIT AS ABSENT WITHOUT LEAVE FROM JANUARY 16, 1952, TO JUNE 4, 1953, THE DAY HE WAS RELEASED FROM PRISON, WHICH WAS THE DAY HE REPORTED TO HIS UNIT FOR DUTY. ON OCTOBER 7, 1953, HE WAS GRANTED A PARDON BY THE GOVERNOR OF THE STATE OF NORTH CAROLINA.

THE RECORD SHOWS THAT THE MEMBER'S PAY ACCOUNT WAS CLOSED JANUARY 16, 1952, AND WAS REOPENED JUNE 4, 1953, THE DAY HE RETURNED TO DUTY. HIS CLAIM FOR PAY AND ALLOWANCES FOR THE PERIOD HE WAS IN THE HANDS OF CIVIL AUTHORITIES WAS ADMINISTRATIVELY DENIED UNDER THE PROVISIONS OF PARAGRAPH 9A AND B, ARMY REGULATIONS 35-1030, AND BY LETTER DATED AUGUST 24, 1954, HIS CLAIM WAS TRANSMITTED TO OUR CLAIMS DIVISION FOR SETTLEMENT. SETTLEMENT DATED APRIL 27, 1955, ADDRESSED TO THE MEMBER IN CARE OF HIS ATTORNEY, HARRY E. GROVES, THE CLAIM WAS DISALLOWED IN THE ABSENCE OF EVIDENCE THAT THE PERIOD OF UNAUTHORIZED ABSENCE HAD BEEN EXCUSED AS UNAVOIDABLE AS REQUIRED BY ARMY REGULATIONS 35-1030 AND SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748. IN YOUR LETTER OF OCTOBER 20, 1965, YOU REFER TO THE PROVISIONS OF SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT, REQUIRING THAT AN ABSENCE WITHOUT LEAVE MUST BE EXCUSED AS UNAVOIDABLE BY THE SECRETARY CONCERNED OR OTHER APPROPRIATE AUTHORITY FOR A MEMBER TO BE ENTITLED TO PAY AND ALLOWANCES FOR SUCH PERIOD OF ABSENCE, AND YOU REQUEST ASSISTANCE IN OBTAINING A RULING OR DECISION IN MR. OWENS' CASE FROM THE APPROPRIATE PARTY.

THE PERTINENT PROVISIONS OF SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED BY THE ACT OF AUGUST 4, 1947, ARE NOW CODIFIED IN 37 U.S.C. 503 (A) (1964 ED.) AS FOLLOWS:

"/A) A MEMBER OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, COAST GUARD, OR COAST AND GEODETIC SURVEY, WHO IS ABSENT WITHOUT LEAVE OR OVER LEAVE, FORFEITS ALL PAY AND ALLOWANCES FOR THE PERIOD OF THAT ABSENCE, UNLESS IT IS EXCUSED AS UNAVOIDABLE.'

PARAGRAPHS 9A AND B, ARMY REGULATIONS 35-1030, IMPLEMENTING THE STATUTE, WHICH WERE IN EFFECT DURING THE PERIOD INVOLVED AND WHICH WERE THE BASIS FOR THE ADMINISTRATIVE DENIAL OF MR. OWENS' CLAIM, PROVIDED IN PERTINENT PART THAT A MEMBER CONVICTED BY A CIVIL COURT IS NOT ENTITLED TO PAY AND ALLOWANCES FROM THE DATE HE WAS ARRESTED BY THE CIVIL AUTHORITIES TO THE DATE OF RETURN TO A DUTY STATUS AND THAT A SUBSEQUENT PARDON BY THE CIVIL AUTHORITIES WILL NOT RESTORE THE RIGHT TO PAY AND ALLOWANCES FOR THE TIME ABSENT IN THE HANDS OF THE CIVIL AUTHORITIES, CITING 3 COMP. DEC. 334.

WE HELD IN 36 COMP. GEN. 173, (COPY ENCLOSED) THAT A MEMBER OF THE ARMED FORCES WHO IS NOT ON AUTHORIZED LEAVE AND WHOSE CONDUCT HAS CAUSED HIM TO BE IN THE HANDS OF THE CIVIL AUTHORITIES AND THUS UNABLE TO FULFILL HIS OBLIGATION TO BE AT HIS POST OF DUTY, MUST BE REGARDED AS ABSENT WITHOUT LEAVE AND HIS PAY FOR SUCH PERIOD OF UNAUTHORIZED LEAVE IS FORFEITED, REGARDLESS OF THE OUTCOME OF THE CIVIL PROCEEDINGS, UNLESS HIS ABSENCE FROM DUTY IS EXCUSED AS UNAVOIDABLE. WE STATED IN 39 COMP. GEN. 781 (COPY ENCLOSED) THAT THE QUESTION OF WHETHER SUFFICIENT GROUNDS EXIST FOR EXCUSING ABSENCES OF MEMBERS OF THE ARMED FORCES AS UNAVOIDABLE UNDER SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT, AS AMENDED, (NOW RECODIFIED AS 37 U.S.C. 503 (A), QUOTED ABOVE), IS PRIMARILY FOR ADMINISTRATIVE DETERMINATION BASED ON THE INDIVIDUAL FACTS. WE ARE WITHOUT JURISDICTION TO MAKE SUCH A DETERMINATION.

AS MR. OWENS HAS BEEN PREVIOUSLY ADVISED, SINCE THE APPROPRIATE MILITARY AUTHORITIES HAVE NOT EXCUSED HIS ABSENCE FROM DUTY DURING THE PERIOD FROM JANUARY 16, 1952, TO JUNE 3, 1953, AS UNAVOIDABLE, THERE IS NO BASIS FOR THE ALLOWANCE OF HIS CLAIM. ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD THE SETTLEMENT OF APRIL 27, 1955, MUST BE SUSTAINED.

IF MR. OWENS WISHES TO PURSUE THIS MATTER, WE SUGGEST THAT HE PRESENT HIS CASE TO THE ADJUTANT GENERAL OF THE ARMY, DEPARTMENT OF THE ARMY, WASHINGTON, D.C. 20310. IF HIS ABSENCE IS ADMINISTRATIVELY EXCUSED AS UNAVOIDABLE, FURTHER CONSIDERATION WILL BE GIVEN THE CLAIM.