B-149656, OCTOBER 29, 1962, 42 COMP. GEN. 222

B-149656, OCTOBER 29, 1962, 42 COMP. GEN. 222

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - COURT-MARTIAL SENTENCE NOTWITHSTANDING THE ABSENCE OF EVIDENCE TO ESTABLISH THAT A MARINE CORPS SERGEANT (E-4) WAS REDUCED TO THE GRADE OF PRIVATE UNDER A GENERAL COURT- MARTIAL FOR CONFINEMENT AND SUBSEQUENT PUNITIVE DISCHARGE, THE MEMBER, NEVERTHELESS, IS NOT ENTITLED TO PAYMENT FOR THE TRAVEL OF HIS DEPENDENTS AND TO A DISLOCATION ALLOWANCE FOR THE SHIPMENT OF HIS HOUSEHOLD EFFECTS INCIDENT TO ORDERS RELEASING HIM FROM A DISCIPLINARY COMMAND AND TRANSFERRING HIM FOR DUTY PENDING REVIEW OF HIS CASE BY THE COURT OF MILITARY APPEALS, PARAGRAPH 126E OF THE MANUAL FOR COURTS-MARTIAL, 1951 AND EXECUTIVE ORDER NO. 10652, JANUARY 10, 1956, IN EFFECT AT THE TIME OF THE COURT-MARTIAL, PROVIDING FOR THE AUTOMATIC REDUCTION OF THE MEMBER TO THE LOWEST PAY GRADE, AND, THEREFORE, THE MEMBER NOT MEETING THE E-4 PAY GRADE FOR ENTITLEMENT TO THE TRANSPORTATION OF DEPENDENTS AND A DISLOCATION ALLOWANCE, THERE IS NO AUTHORITY TO PAY HIS CLAIM.

TO CAPTAIN C. A. MURRAY, JR., UNITED STATES MARINE CORPS, OCTOBER 28, 1962:

BY THIRD ENDORSEMENT DATED SEPTEMBER 12, 1962, PDTATAC CONTROL NO. 62-17, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE FORWARDED HERE YOUR LETTER OF MAY 21, 1962, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE ENTITLEMENT OF A SERGEANT (E-4), UNITED STATES MARINE CORPS, TO PAYMENT FOR TRAVEL OF DEPENDENTS AND DISLOCATION ALLOWANCE UNDER THE CIRCUMSTANCES STATED BELOW.

IT IS STATED THAT THE MEMBER'S SERVICE RECORD BOOK REVEALS THAT HE WAS TRANSFERRED FROM FORCE SERVICE REGIMENT, THIRD MARINE DIVISION, FLEET MARINE FORCE, ON APRIL 1, 1961, TO THE U.S. NAVAL DISCIPLINARY COMMAND, PORTSMOUTH, NEW HAMPSHIRE, AS A RESULT OF GENERAL COURT MARTIAL, FOR CONFINEMENT AND SUBSEQUENT PUNITIVE DISCHARGE FROM THE U.S. MARINE CORPS. ORDERS DATED JANUARY 19, 1962, DIRECTED THAT HE BE RESTORED TO DUTY EFFECTIVE JANUARY 23, 1962, AND TRANSFERRED HIM FROM THE U.S. NAVAL DISCIPLINARY COMMAND, NAVAL BASE, PORTSMOUTH, NEW HAMPSHIRE, TO THE MARINE CORPS SCHOOLS, QUANTICO, VIRGINIA, FOR DUTY PENDING A REVIEW OF HIS CASE BY THE UNITED STATES COURT OF MILITARY APPEALS. YOUR QUESTION IS WHETHER HE IS ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS AND DISLOCATION ALLOWANCE INCIDENT TO THESE ORDERS.

IN SECOND ENDORSEMENT DATED JULY 30, 1962, FROM COMMANDANT, MARINE CORPS, IT IS STATED THAT THE SERGEANT HAD COMPLETED 4 YEARS' SERVICE FOR PAY PURPOSES PRIOR TO THE EFFECTIVE DATE OF HIS ORDERS OF JANUARY 19, 1962. HE FIRST ENLISTED ON JANUARY 31, 1956, SERVED ON CONTINUOUS ACTIVE DUTY, AND SUFFERED NO TIME LOST EXCEPT FOR THE PERIODS JANUARY 25 TO FEBRUARY 10, 1960, AND JUNE 28, 1960, THROUGH JANUARY 22, 1962. THE PERIOD JANUARY 25 THROUGH FEBRUARY 10, 1960, WAS TIME LOST IN ACCORDANCE WITH 10 U.S.C. 972 (3) AND THE PERIOD JUNE 28, 1960, THROUGH JANUARY 22, 1962, WAS TIME LOST IN ACCORDANCE WITH 10 U.S.C. 972 (4). THE COURT OF MILITARY APPEALS APPROVED THE CONVICTION AND SENTENCE ON JUNE 8, 1962. ALSO, IT IS STATED THAT A POINT FOR CONSIDERATION IS THE FACT THAT QUANTICO, VIRGINIA, WAS NOT INTENDED TO BE THE ULTIMATE DUTY STATION OF THE SERGEANT FOR NORMAL, UNRESTRICTED DUTIES. HE WOULD HAVE BEEN FURTHER TRANSFERRED TO THE 2D MARINE DIVISION AT CAMP LEJEUNE, NORTH CAROLINA, IF HE WERE TO HAVE BEEN RETURNED TO A NORMAL DUTY STATUS.

IT IS STATED FURTHER THAT THE SERGEANT'S DEPENDENTS WERE RESIDING IN PENSACOLA, FLORIDA, WHILE HE WAS ASSIGNED TO THE 3RD MARINE DIVISION IN A RESTRICTED AREA AND THAT THEY REMAINED THERE WHEN HE WAS TRANSPORTED AS A PRISONER TO NAVAL RETRAINING COMMAND AT PORTSMOUTH, NEW HAMPSHIRE. HE WAS NOT ELIGIBLE FOR REIMBURSEMENT FOR DEPENDENTS' TRAVEL OR DISLOCATION ALLOWANCE UPON HIS ASSIGNMENT TO THE 3RD MARINE DIVISION. HIS TRAVEL CLAIM FOR HIS DEPENDENTS' TRAVEL IS FOR THE DISTANCE FROM PENSACOLA, FLORIDA, TO QUANTICO, VIRGINIA, IT APPEARING THAT HIS WIFE AND DAUGHTER PERFORMED THE TRAVEL ON APRIL 5 AND 6, 1962. HOWEVER, THE VOUCHER FOR REIMBURSEMENT WOULD RESTRICT THE PAYMENT TO REIMBURSEMENT FOR THE LESSER DISTANCE FROM PORTSMOUTH, NEW HAMPSHIRE, TO QUANTICO, VIRGINIA.

THE RECORD FURNISHED DOES NOT DISCLOSE THE COURT-MARTIAL SENTENCE RECEIVED BY THE MEMBER. IT APPEARS, HOWEVER, FROM THE OPINION OF THE COURT OF MILITARY APPEALS THAT HE WAS BROUGHT TO TRIAL BEFORE A GENERAL COURT-MARTIAL CONVENED AT CAMP COURTNEY, OKINAWA. HE WAS CHARGED WITH CERTAIN VIOLATIONS OF THE UNIFORM CODE OF MILITARY JUSTICE WHICH RESULTED IN HIS CONVICTION. THE COURT 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. THE CONVENING AUTHORITY REDUCED THE PERIOD OF CONFINEMENT TO 5 YEARS BUT OTHERWISE APPROVED THE SENTENCE AS ADJUDGED AND PRESUMABLY ORDERED THE SENTENCE EXECUTED EXCEPT THE PORTION PROVIDING FOR A DISHONORABLE DISCHARGE. THEREAFTER, A BOARD OF REVIEW IN THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE NAVY AFFIRMED THE FINDINGS AND THE SENTENCE, EXCEPT THAT IT FURTHER REDUCED THE TERM OF CONFINEMENT TO TWO AND ONE-HALF YEARS. THE COURT OF MILITARY APPEALS AFFIRMED THE DECISION OF THE BOARD OF REVIEW.

THE MEMBER'S CLAIM FOR REIMBURSEMENT FOR HIS DEPENDENTS' TRAVEL AND FOR DISLOCATION ALLOWANCE INCIDENT TO HIS RELEASE FROM THE U.S. NAVAL DISCIPLINARY COMMAND, NAVAL BASE, PORTSMOUTH, NEW HAMPSHIRE, AND HIS SUBSEQUENT REPORTING FOR DUTY AT THE MARINE CORPS SCHOOL, QUANTICO, VIRGINIA, PURSUANT TO THE ORDERS OF JANUARY 19, 1962, APPARENTLY IS BASED ON THE FACT THAT HIS ORDERS WERE ADDRESSED TO HIM AS SERGEANT IN PAY GRADE E-4. HOWEVER, IF THE COURT-MARTIAL SENTENCE REDUCED HIM TO THE GRADE OF PRIVATE, AN INELIGIBLE GRADE FOR TRANSPORTATION OF DEPENDENTS AND DISLOCATION ALLOWANCE, HE WOULD NOT BE ENTITLED TO SUCH ALLOWANCES UNLESS HE HAD BEEN ADVANCED TO AN ELIGIBLE GRADE PRIOR TO THE TRANSFER.

WE HAVE BEEN ADVISED INFORMALLY THAT THE MEMBER WAS TRIED AND CONVICTED DURING THE PERIOD JUNE 2 TO 28, 1960, AND THAT HIS SENTENCE WAS APPROVED ON MARCH 2, 1961. THE RECORD DOES NOT SHOW THE REASON WHY HIS ORDERS WERE ADDRESSED TO HIM AS SERGEANT IN PAY GRADE E-4. HOWEVER, AT THE TIME OF HIS COURT-MARTIAL IN JUNE 1960, PARAGRAPH 126E OF THE MANUAL FOR COURTS- MARTIAL, 1951, PROVIDED FOR AUTOMATIC REDUCTION TO THE LOWEST PAY GRADE WHEN THE SENTENCE OF THE COURT MARTIAL INCLUDED EITHER (1) DISHONORABLE DISCHARGE; (2) CONFINEMENT; OR (3) HARD LABOR WITHOUT CONFINEMENT. ALSO, EXECUTIVE ORDER NO. 10652, JANUARY 10, 1956, PROVIDED FOR AUTOMATIC REDUCTION UPON APPROVAL OF A COURT-MARTIAL SENTENCE INCLUDING EITHER A PUNITIVE DISCHARGE, CONFINEMENT, OR HARD LABOR WITHOUT CONFINEMENT. VIEW OF THESE PROVISIONS, WE BELIEVE THAT HE IS TO BE VIEWED AS HAVING BEEN AUTOMATICALLY REDUCED TO THAT GRADE CONTEMPORANEOUSLY WITH THE APPROVAL BY THE CONVENING AUTHORITY OF HIS COURT-MARTIAL SENTENCE, NOTWITHSTANDING THE FACT THAT THE EXECUTION OF HIS SENTENCE ALSO PROVIDING THAT HE BE REDUCED TO THE GRADE OF PRIVATE WAS SUBJECT TO THE PROVISIONS OF ARTICLE 71, UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 871 (C). SEE, IN THIS CONNECTION, UNITED STATES V. WATKINS, 8 CMR 87; UNITED STATES V. TRAWICK, 27 ID. 154; JOHNSON V. UNITED STATES, 280 F.2D 856; 41 COMP. GEN. 293; 41 COMP. GEN. 298.

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), PROVIDES IN PART THAT UNDER SUCH CONDITIONS AND LIMITATIONS AND FOR SUCH "RANKS, GRADES OR RATINGS" AND TO AND FROM SUCH LOCATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED MEMBERS OF THE UNIFORMED SERVICES WHEN ORDERED TO MAKE A CHANGE OF PERMANENT STATION SHALL BE ENTITLED TO TRANSPORTATION OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD EFFECTS.

ALSO, THE STATUTE AUTHORIZES THE PAYMENT OF DISLOCATION ALLOWANCE TO A MEMBER WHOSE DEPENDENTS ARE AUTHORIZED TO MOVE AND ACTUALLY DO MOVE IN CONNECTION WITH THE PERMANENT CHANGE OF STATION UNDER REGULATIONS APPROVED BY THE SECRETARY CONCERNED.

JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO THE AUTHORITY THERE GRANTED PROVIDES IN PARAGRAPH 7000-1 THAT TRANSPORTATION OF DEPENDENTS IS NOT AUTHORIZED FOR ENLISTED MEMBERS IN PAY GRADES E-4 WITH 4 YEARS' SERVICE OR LESS, E-3, E-2 AND E-1. A DISLOCATION ALLOWANCE IS NOT PAYABLE FOR THE SAME REASON (PARAGRAPH 9003-2) AND SHIPMENT OF HOUSEHOLD EFFECTS IS AUTHORIZED ONLY FOR ENLISTED MEMBERS IN PAY GRADE E-4 (WITH OVER 4 YEARS' SERVICE) AND ABOVE (PARAGRAPH 8002 OF THE SAME REGULATIONS). SINCE WE FIND NO BASIS FOR A CONCLUSION THAT THE MEMBER WAS NOT REDUCED TO THE GRADE OF PRIVATE BY THE LAW AND REGULATIONS APPLICABLE IN THE CASE OF COURT-MARTIAL SENTENCES SUCH AS HIS AND THERE IS NO SHOWING THAT HE SUBSEQUENTLY WAS PROMOTED AND HELD THE GRADE OF SERGEANT (E-4) ON THE EFFECTIVE DATE OF HIS ORDERS OF JANUARY 19, 1962, THERE IS NO AUTHORITY ON THE PRESENT RECORD FOR THE PAYMENT OF HIS CLAIM FOR HIS WIFE'S TRAVEL AND DISLOCATION ALLOWANCE, INCIDENT TO HIS RELEASE FROM THE U.S. NAVAL DISCIPLINARY COMMAND AT PORTSMOUTH, NEW HAMPSHIRE. IN SUCH CIRCUMSTANCES, IT IS NOT NECESSARY TO DETERMINE WHETHER THE ORDERS OF JANUARY 19, 1962, EFFECTED A PERMANENT CHANGE OF STATION FOR PURPOSES OF TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE.

ACCORDINGLY, PAYMENT ON THE VOUCHER IS NOT AUTHORIZED AND IT WILL BE RETAINED HERE.