B-141598, APR. 20, 1960

B-141598: Apr 20, 1960

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GROSSO: REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 17. THE DISALLOWANCE WAS FOR THE STATED REASON THAT THE RECORD SHOWED THAT YOU WERE HELD IN A NONPAY STATUS FOR THE PERIOD NOVEMBER 30. THAT YOU WERE PAID FROM AUGUST 5. YOU WERE CONVICTED OF CERTAIN OFFENSES BY A GENERAL COURT-MARTIAL. THAT SENTENCE WAS PROMULGATED ON DECEMBER 2. YOU WERE RETAINED. YOU WERE PLACED IN CONFINEMENT IN A NONPAY STATUS DURING INVESTIGATION OF CHARGES OTHER THAN THOSE CONCERNED IN THE GENERAL COURT-MARTIAL ACTION. THAT YOU WERE HOSPITALIZED IN THE U.S. THAT YOU WERE THEN RETURNED TO THE U.S. YOU WERE TRIED AND CONVICTED BY A SPECIAL COURT MARTIAL ON THE CHARGES BROUGHT AGAINST YOU ON NOVEMBER 30. THE FINDINGS OF GUILTY AND THE SENTENCE PROMULGATED IN THE GENERAL COURT-MARTIAL PROCEEDINGS WERE SET ASIDE BY THE UNITED STATES COURT OF MILITARY APPEALS AND A REHEARING WAS ORDERED.

B-141598, APR. 20, 1960

TO MR. FELIX B. GROSSO:

REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 17, 1959, AND JANUARY 5, 1960, RELATIVE TO GENERAL ACCOUNTING OFFICE SETTLEMENT DATED DECEMBER 10, 1959, WHICH DISALLOWED YOUR CLAIM FOR PAY AND ALLOWANCES BELIEVED TO BE DUE FOR THE PERIOD NOVEMBER 30, 1956, TO AUGUST 5, 1958, AS AN ENLISTED MEMBER OF THE UNITED STATES NAVY. THE DISALLOWANCE WAS FOR THE STATED REASON THAT THE RECORD SHOWED THAT YOU WERE HELD IN A NONPAY STATUS FOR THE PERIOD NOVEMBER 30, 1956, THROUGH AUGUST 4, 1958, AND THAT YOU WERE PAID FROM AUGUST 5, 1958, DATE OF RESTORATION TO DUTY, THROUGH NOVEMBER 5, 1958, DATE OF BAD CONDUCT DISCHARGE.

IT APPEARS THAT YOU REENLISTED IN THE UNITED STATES NAVY ON NOVEMBER 3, 1950, FOR A PERIOD OF SIX YEARS; THAT ON NOVEMBER 10, 1955, YOU WERE CONVICTED OF CERTAIN OFFENSES BY A GENERAL COURT-MARTIAL; THAT SENTENCE WAS PROMULGATED ON DECEMBER 2, 1955, AND APPEAL TAKEN TO THE UNITED STATES COURT OF MILITARY APPEALS, AND THAT ON NOVEMBER 2, 1956, YOUR ENLISTMENT PERIOD OF SIX YEARS EXPIRED, BUT YOU WERE RETAINED, NOT IN CONFINEMENT, PENDING DISPOSITION OF YOUR APPEAL IN THE GENERAL COURT-MARTIAL CASE. ALSO, IT APPEARS THAT ON NOVEMBER 30, 1956, YOU WERE PLACED IN CONFINEMENT IN A NONPAY STATUS DURING INVESTIGATION OF CHARGES OTHER THAN THOSE CONCERNED IN THE GENERAL COURT-MARTIAL ACTION; THAT ON DECEMBER 11, 1956, YOU REQUESTED TO BE RETAINED IN THE NAVAL SERVICE BEYOND THE NORMAL DATE OF EXPIRATION OF ENLISTMENT, NOVEMBER 2, 1956, TO COMPLETE HOSPITALIZATION AND TREATMENT; THAT YOU WERE HOSPITALIZED IN THE U.S. NAVAL HOSPITAL, SAN DIEGO, CALIFORNIA, FROM DECEMBER 11, 1956, THROUGH JANUARY 17, 1957 (38 DAYS), AND THAT YOU WERE THEN RETURNED TO THE U.S. NAVAL RECEIVING STATION, DISCIPLINARY BARRACKS, AT SAN DIEGO. ON FEBRUARY 6, 1957, YOU WERE TRIED AND CONVICTED BY A SPECIAL COURT MARTIAL ON THE CHARGES BROUGHT AGAINST YOU ON NOVEMBER 30, 1956.

IT FURTHER APPEARS THAT ON FEBRUARY 8, 1957, THE FINDINGS OF GUILTY AND THE SENTENCE PROMULGATED IN THE GENERAL COURT-MARTIAL PROCEEDINGS WERE SET ASIDE BY THE UNITED STATES COURT OF MILITARY APPEALS AND A REHEARING WAS ORDERED. ON MARCH 11, 1957, THE CONVENING AUTHORITY ORDERED A REHEARING OF THE SPECIAL COURT-MARTIAL. ON APRIL 4, 1957, A REHEARING OF THE GENERAL COURT-MARTIAL WAS DETERMINED TO BE IMPRACTICAL, THE CHARGE DISMISSED, AND ALL RIGHTS, PRIVILEGES, AND PROPERTY OF WHICH YOU HAD BEEN DEPRIVED BY REASON OF THE FINDINGS OF GUILTY IN THAT ACTION WERE RESTORED. THE SPECIAL COURT-MARTIAL WAS REHEARD ON JUNE 4, 1957, AND YOU WERE FOUND GUILTY. YOUR SENTENCE, AS APPROVED ON THE SAME DAY, WAS THAT YOU WERE TO BE DISCHARGED FROM THE NAVAL SERVICE WITH A BAD CONDUCT DISCHARGE, TO BE CONFINED AT HARD LABOR FOR SIX MONTHS, AND TO FORFEIT $70 PER MONTH FOR A PERIOD OF SIX MONTHS, BUT YOU WERE CREDITED WITH CONFINEMENT FROM FEBRUARY 6, 1957, UNTIL JUNE 4, 1957.

ALSO, IT APPEARS THAT ON JULY 8, 1957, YOU WERE RELEASED FROM CONFINEMENT. ON NOVEMBER 29, 1957, YOU APPEALED TO THE UNITED STATES COURT OF MILITARY APPEALS FOR REVIEW OF YOUR SPECIAL COURT-MARTIAL. MARCH 1958 YOU VOLUNTARILY DECLINED THE OPPORTUNITY OF BEING SENT HOME ON LEAVE WITHOUT PAY WHILE AWAITING COMPLETION OF ACTION BY THE COURT OF MILITARY APPEALS ON YOUR PETITION FOR REVIEW OF THE SPECIAL COURT MARTIAL SENTENCE ADJUDGED JUNE 4, 1957. ON AUGUST 5, 1958, YOU WERE PLACED IN A DUTY AND PAY STATUS, PENDING COMPLETION OF THE APPELLATE REVIEW. SEPTEMBER 12, 1958, THE COURT OF MILITARY APPEALS SUSTAINED THE SPECIAL COURT-MARTIAL ACTION, AND ON NOVEMBER 5, 1958, YOU WERE GIVEN A BAD CONDUCT DISCHARGE FROM THE SERVICE. THEREAFTER, YOU PETITIONED THE BOARD FOR CORRECTION OF NAVAL RECORDS FOR CORRECTION OF YOUR RECORD TO SHOW ENTITLEMENT TO BACK PAY BUT, ON MAY 27, 1959, THE BOARD HELD THAT THERE DID NOT APPEAR ANY RECORD CHANGES IT COULD MAKE WHICH WOULD CREATE AN ENTITLEMENT TO THE BACK PAY.

YOU STATE THAT YOU WERE IN A "FULL DUTY STATUS" FOR THE ENTIRE PERIOD OF YOUR CLAIM, AND THAT THERE IS NO BASIS FOR WITHHOLDING YOUR PAY FOR THE PERIOD NOVEMBER 30, 1956, THROUGH AUGUST 4, 1958. YOU ALSO REQUEST THAT YOUR CLAIM AND PAPERS BE FORWARDED TO THE CLERK OF THE UNITED STATES COURT OF CLAIMS.

IN DECISION DATED OCTOBER 7, 1957, 37 COMP. GEN. 228, WE STATED:

"IT IS THE RULE THAT THE PAY AND ALLOWANCES OF AN ENLISTED PERSON WHOSE TERM OF ENLISTMENT EXPIRES WHILE HE IS IN CONFINEMENT, AWAITING TRIAL BY COURT-MARTIAL, TERMINATE ON THE DATE OF THE EXPIRATION OF HIS TERM OF ENLISTMENT UNLESS HE IS ACQUITTED, IN WHICH EVENT PAY AND ALLOWANCES ACCRUE UNTIL HE IS DISCHARGED. 30 COMP. GEN. 449. THIS RULE IS SUBJECT TO MODIFICATION IN THOSE CASES WHERE AN ENLISTED MAN, SENTENCED BY A COURT -MARTIAL TO DISHONORABLE OR BAD CONDUCT DISCHARGE, AND WHO IS RETAINED IN THE SERVICE AFTER THE EXPIRATION OF HIS ENLISTMENT, IS RELEASED FROM CONFINEMENT AND "RESTORED TO DUTY PENDING COMPLETION OF APPELLATE REVIEW.' IN THE LATTER CASE THE ENLISTED MAN IS ENTITLED TO PAY AND ALLOWANCES WHILE PERFORMING DUTY AFTER RESTORATION TO DUTY, EVEN THOUGH, UPON APPELLATE REVIEW, THE SENTENCE OF DISHONORABLE OR BAD CONDUCT DISCHARGE IS ORDERED EXECUTED. 33 COMP. GEN. 281.'

AT THE NORMAL EXPIRATION DATE OF YOUR TERM OF ENLISTMENT, NOVEMBER 2, 1956, YOU WERE RETAINED IN SERVICE PENDING DISPOSITION OF YOUR APPEAL TO THE COURT OF MILITARY APPEALS IN THE GENERAL COURT-MARTIAL ACTION, AND YOU CEASED TO BE IN A PAY STATUS. THIS RETENTION- PENDING APPEAL STATUS IN CONNECTION WITH THE GENERAL COURT-MARTIAL WAS TERMINATED UPON YOUR BEING CONFINED FOR INVESTIGATION AND TRIAL ON THE SPECIAL COURT-MARTIAL CHARGES. HENCE, UPON THE ULTIMATE DISMISSAL OF THE GENERAL COURT-MARTIAL CHARGES, YOU BECAME ENTITLED TO PAY AND ALLOWANCES BEYOND THE EXPIRATION DATE OF YOUR ENLISTMENT, BUT ONLY TO THE DATE OF THE PLACING OF CHARGES AGAINST YOU (NOVEMBER 30, 1956) IN CONNECTION WITH THE SPECIAL COURT- MARTIAL. THEREAFTER, THE SAME RULE WOULD APPLY, THAT ENTITLEMENT TO PAY DID NOT EXIST UNLESS THE CHARGES WERE DISMISSED, YOU WERE ACQUITTED, OR IF YOU WERE RESTORED TO DUTY.

THERE IS NO QUESTION AS TO YOUR ENTITLEMENT TO PAY FOR THE PERIODS NOVEMBER 3 THROUGH 29, 1956 (WHILE BEING HELD UNDER GENERAL COURT MARTIAL), AND AUGUST 5, 1958, DATE OF RESTORATION TO DUTY, THROUGH NOVEMBER 5, 1958, DATE OF DISCHARGE, AND THE RECORD SHOWS THAT YOU HAVE BEEN PAID FOR THESE PERIODS.

IN MOSES V. UNITED STATES, 137 C.CLS. 374, THE COURT OF CLAIMS STATED, AT PAGE 380:

"PLAINTIFF'S SECOND PROPOSITION. PLAINTIFF CLAIMS THAT EVEN IF THE SECOND GENERAL COURT-MARTIAL WAS VALID, HE IS ENTITLED TO PAY AND ALLOWANCES FROM THE DATE HIS ENLISTMENT EXPIRED UP TO THE DATE OF THE SECOND TRIAL SINCE HE WAS NEVER DISCHARGED FROM THE SERVICE DURING THAT PERIOD. WE CANNOT ACCEPT THIS VIEW. WHEN AN ENLISTED PERSON IS IN CONFINEMENT AWAITING TRIAL AT THE TIME HIS TERM OF ENLISTMENT EXPIRES, HIS PAY AND ALLOWANCES TERMINATE ON THE DATE HIS ENLISTMENT EXPIRES UNLESS HE IS SUBSEQUENTLY ACQUITTED. SEE 30 COMP. GEN. 449. IN THE PRESENT CASE PLAINTIFF WAS NOT SUBSEQUENTLY ACQUITTED BUT WAS INSTEAD CONVICTED. THEREFORE HE WAS NOT ENTITLED TO ANY PAY AFTER HIS TERM OF ENLISTMENT EXPIRED.'

YOU CONTEND, HOWEVER, THAT UPON YOUR RELEASE FROM CONFINEMENT ON JULY 8, 1957, YOU WERE IN A ,FULL LIBERTY STATUS," WORKING SEVEN DAYS A WEEK AND STANDING WATCH, AND HENCE, IN FACT RESTORED TO DUTY AT THAT TIME, RATHER THAN ON AUGUST 5, 1958, AT THE DIRECTION OF THE CHIEF OF NAVAL PERSONNEL.

THE RECORD HERE INDICATES THAT WHILE YOU MAY HAVE BEEN RELEASED FROM CONFINEMENT AS STATED, YOU WERE NOT RESTORED TO DUTY, AND THAT THERE WAS NO INTENT ON THE PART OF THE COMMANDING OFFICER OF THE DISCIPLINARY BARRACKS TO RESTORE YOU TO DUTY. THE CHIEF OF NAVAL PERSONNEL HAS SPECIFICALLY DETERMINED THAT YOU WERE NOT RESTORED TO DUTY FOR ANY PORTION OF THE PERIOD IN QUESTION. IT MUST BE RECALLED THAT AT THE TIME OF YOUR RELEASE FROM CONFINEMENT, APPARENTLY BY REASON OF COMPLETION OF SENTENCE OF CONFINEMENT, YOU WERE YET UNDER SENTENCE OF BAD CONDUCT DISCHARGE. THIS CONNECTION, PARAGRAPH C 10314/4), BUPERS MANUAL, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"/4) DISCHARGES AS A RESULT OF SENTENCES OF COURTS-MARTIAL WILL BE EFFECTED ONLY UPON ORDERS FROM APPROPRIATE AUTHORITY AFTER APPELLATE REVIEW OF THE SENTENCE HAS BEEN COMPLETED. IN THOSE CASES WHERE CONFINEMENT IS ADJUDGED IN ADDITION TO A DISCHARGE, THE DISCHARGE SHALL NOT BE EFFECTED UNTIL THE COMPLETION OF APPELLATE REVIEW OR COMPLETION OF THE SENTENCE OF CONFINEMENT, WHICHEVER IS THE LATER. * * *"

SINCE APPELLATE REVIEW OF YOUR SENTENCE HAD NOT BEEN COMPLETED, YOUR BAD CONDUCT DISCHARGE COULD NOT BE EFFECTED. THUS, UPON COMPLETION OF YOUR PERIOD OF CONFINEMENT, YOUR ENLISTMENT PERIOD HAVING EXPIRED, YOU REMAINED IN A "NONPAY" STATUS, BUT HELD IN THE SERVICE PENDING APPELLATE REVIEW AND DISCHARGE IF THE COURT-MARTIAL ACTION WAS SUSTAINED. YOU WERE OFFERED THE OPPORTUNITY TO AWAIT THE RESULT OF THE APPELLATE REVIEW AT HOME, BUT YOU DECLINED, PREFERRING TO WAIT AT THE DISCIPLINARY BARRACKS. THE "DUTIES" WHICH YOU PERFORMED WHILE IN THIS STATUS WERE NOT THE DUTIES OF YOUR GRADE OR OF A PARTICULAR GRADE, BUT APPEAR TO HAVE BEEN ONLY PERFUNCTORY DUTIES, AND FOR THE PURPOSE OF EXERCISE ONLY. WE CANNOT CONCLUDE THAT THIS CIRCUMSTANCE WAS TANTAMOUNT TO A RESTORATION TO DUTY, SO AS TO ENTITLE YOU TO PAY AND ALLOWANCES FOR THE PERIOD NOVEMBER 30, 1956, TO AUGUST 4, 1958.

AS TO YOUR REQUEST THAT WE FORWARD THE PAPERS WHICH YOU HAVE SUBMITTED HERE TO THE UNITED STATES COURT OF CLAIMS, YOU MAY BE ADVISED THAT WE CANNOT ACCEDE TO YOUR REQUEST SINCE SUCH PAPERS ARE NOW A PART OF THE PERMANENT RECORDS OF OUR OFFICE. HOWEVER, CERTIFIED COPIES WILL BE AVAILABLE FOR PRODUCTION UPON RECEIPT OF A PROPER COURT ORDER.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM BY SETTLEMENT DATED DECEMBER 10, 1959, UPON REVIEW, IS SUSTAINED.

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