B-134539, JANUARY 23, 1958, 37 COMP. GEN. 488
Highlights
IS CONFINED UNDER SENTENCE OF COURT-MARTIAL CONTINUES IN A PAY STATUS WHILE SO CONFINED. 1958: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 1. IS ENTITLED TO PAY AND ALLOWANCES WHILE IN CONFINEMENT. IT IS REPORTED THAT PRIVATE RADER ENLISTED IN THE MARINE CORPS ON AUGUST 3. THE EXPIRATION DATE OF THIS ENLISTMENT WAS AUGUST 2. HE WAS REQUIRED TO SERVE AN ADDITIONAL 115 DAYS AFTER THE EXPIRATION DATE OF HIS ENLISTMENT TO MAKE UP THIS LOST TIME. HE WAS SENTENCED BY A SPECIAL COURT -MARTIAL TO CONFINEMENT AT HARD LABOR FOR 5 MONTHS AND FORFEITURE OF $65 PER MONTH FOR A LIKE PERIOD. UPON HIS RELEASE FROM CONFINEMENT HE WILL BE RETAINED IN SERVICE UNTIL HE HAS MADE UP HIS LOST TIME. THE QUESTION PRESENTED IS WHETHER AN ENLISTED MEMBER WHO IS BEING HELD IN THE SERVICE UNDER THE ACT OF JULY 24.
B-134539, JANUARY 23, 1958, 37 COMP. GEN. 488
MILITARY PERSONNEL - AFTER EXPIRATION OF ENLISTMENT - MAKING GOOD THE TIME LOST - COURT-MARTIAL SENTENCE AN ENLISTED MAN WHO, AFTER EXPIRATION OF HIS NORMAL ENLISTMENT AND WHILE BEING HELD TO MAKE GOOD THE TIME LOST DURING THE ENLISTMENT PURSUANT TO 10 U.S.C. 629A, IS CONFINED UNDER SENTENCE OF COURT-MARTIAL CONTINUES IN A PAY STATUS WHILE SO CONFINED, EXCEPT TO THE EXTENT THAT HIS PAY MAY BE FORFEITED BY COURT-MARTIAL; HOWEVER, THE TIME IN CONFINEMENT DOES NOT COUNT TO MAKE GOOD THE TIME LOST.
TO CHIEF WARRANT OFFICER W. J. SICARD, UNITED STATES MARINE CORPS, JANUARY 23, 1958:
REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 1, 1957, L16-4/WJS:ED, WITH ENCLOSURE, AND SECOND ENDORSEMENT DATED NOVEMBER 27, 1957, CDF-FG, OF THE COMMANDANT OF THE MARINE CORPS, REQUESTING OUR DECISION AS TO WHETHER, IN THE CIRCUMSTANCES OF HIS CASE, DARRELL (N) RADER, 1516176, PRIVATE, USMC, IS ENTITLED TO PAY AND ALLOWANCES WHILE IN CONFINEMENT.
IT IS REPORTED THAT PRIVATE RADER ENLISTED IN THE MARINE CORPS ON AUGUST 3, 1954, FOR A PERIOD OF 3 YEARS. THE EXPIRATION DATE OF THIS ENLISTMENT WAS AUGUST 2, 1957. THE ENLISTED MAN LOST 115 DAYS OF TIME DURING THIS ENLISTMENT AND UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1956, 70 STAT. 631, 10 U.S.C. 629A, AND SECNAV INSTRUCTION 1626.4 DATED DECEMBER 11, 1956, HE WAS REQUIRED TO SERVE AN ADDITIONAL 115 DAYS AFTER THE EXPIRATION DATE OF HIS ENLISTMENT TO MAKE UP THIS LOST TIME. ON AUGUST 12, 1957, WHILE BEING HELD TO MAKE UP LOST TIME, HE WAS SENTENCED BY A SPECIAL COURT -MARTIAL TO CONFINEMENT AT HARD LABOR FOR 5 MONTHS AND FORFEITURE OF $65 PER MONTH FOR A LIKE PERIOD. UPON HIS RELEASE FROM CONFINEMENT HE WILL BE RETAINED IN SERVICE UNTIL HE HAS MADE UP HIS LOST TIME.
THE QUESTION PRESENTED IS WHETHER AN ENLISTED MEMBER WHO IS BEING HELD IN THE SERVICE UNDER THE ACT OF JULY 24, 1956, TO MAKE GOOD TIME LOST AND WHO, ON THE DAY FOLLOWING THE NORMAL EXPIRATION DATE OF HIS ENLISTMENT, IS PERFORMING FULL DUTY, BUT IS THEREAFTER CONFINED UNDER SENTENCE OF COURT- MARTIAL, IS ENTITLED TO PAY AND ALLOWANCES DURING SUCH PERIOD OF CONFINEMENT.
THE ACT OF JULY 24, 1956, PROVIDES THAT AN ENLISTED MEMBER OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHO IS ABSENT FROM DUTY FOR CERTAIN SPECIFIED CAUSES IS LIABLE AFTER HIS RETURN TO FULL DUTY TO SERVE FOR A PERIOD WHICH, WHEN ADDED TO THE PERIOD HE HAD SERVED BEFORE HIS ABSENCE, AMOUNTS TO THE TERM FOR WHICH HE WAS ENLISTED. THUS THE STATUTE HAS THE EFFECT OF AUTHORIZING PAY AND ALLOWANCES TO AN ENLISTED MEMBER WHILE HE IS BEING HELD IN THE SERVICE TO MAKE GOOD TIME LOST DURING HIS ENLISTMENT PERIOD, BEGINNING WITH HIS INITIAL RETURN TO FULL DUTY AFTER THE EXPIRATION OF HIS ENLISTMENT--- IMMEDIATELY IN THIS CASE, RADER HAVING BEEN PERFORMING FULL DUTY ON THE DAY FOLLOWING SUCH EXPIRATION DATE.
AN ENLISTED MEMBER CONFINED UNDER COURT-MARTIAL SENTENCE DURING THE PERIOD HE IS BEING HELD IN SERVICE AFTER HIS INITIAL RETURN TO FULL DUTY MAY NOT BE REGARDED AS THEN MAKING GOOD TIME LOST, SUCH PERIODS NOT BEING PERIODS OF FULL DUTY AND BEING DECLARED BY THE ACT OF JULY 24, 1956, TO BE TIME LOST DURING AN ENLISTMENT. COMPARE B-134151, DECEMBER 4, 1957, 37 COMP. GEN. 380. SUCH CONFINEMENT, HOWEVER, DOES NOT AFFECT HIS STATUS OF BEING HELD IN THE SERVICE FOR THE PURPOSE OF MAKING UP THE PREVIOUSLY LOST TIME AS REQUIRED BY THE ACT AND HE CONTINUES TO BE SO HELD WHILE IN CONFINEMENT. HENCE, THE ENLISTED MEMBER CONTINUES IN A PAY STATUS WHILE SO CONFINED, EXCEPT TO THE EXTENT THAT HIS PAY MAY BE FORFEITED BY COURT- MARTIAL, THE SAME AS DURING HIS REGULAR ENLISTMENT PERIOD. AN ENLISTED MAN CONTRACTS FOR FAITHFUL SERVICE, BUT IS ENTITLED TO PAY WHILE IN CONFINEMENT DURING HIS REGULAR ENLISTMENT PERIOD EXCEPT AS FORFEITED BY COURT-MARTIAL SENTENCE, AND THERE APPEARS NO BASIS TO CONCLUDE THAT CONGRESS INTENDED TO APPLY A DIFFERENT AND MORE HARSH RULE TO AN ENLISTED MAN HELD IN SERVICE AFTER THE EXPIRATION OF HIS ENLISTMENT TO MAKE GOOD TIME LOST.
ACCORDINGLY, RADER IS ENTITLED TO PAY AND ALLOWANCES DURING THE ENTIRE PERIOD OF HIS CONFINEMENT, EXCEPT AS FORFEITED BY THE COURT MARTIAL SENTENCE.