B-158834, JUN. 8, 1966, 45 COMP. GEN. 766

B-158834, JUN. 8, 1966, 45 COMP. GEN. 766

PAY - ABSENCE WITHOUT LEAVE - CIVIL ARREST - NATO STATUS OF FORCES AGREEMENT A MEMBER OF THE UNIFORMED SERVICES PLACED IN PRETRIAL CONFINEMENT ON APRIL 30, 1964 IN A UNITED STATES ARMY STOCKADE PENDING CIVIL CHARGES OF ALLEGED HOMICIDE BY OFFICIALS OF THE FEDERAL REPUBLIC OF GERMANY AND INDICTED NOVEMBER 15, 1964, ALTHOUGH THE NATO STATUS OF FORCES AGREEMENT WAIVER OF JURISDICTION WAS RECALLED BY THE GERMAN OFFICIALS ON MAY 25, 1964, THE MEMBER REMAINING IN CUSTODY AND CONFINEMENT IN THE ARMY STOCKADE, AFTER RECEIVING A PRISON SENTENCE WITH CREDIT FOR PRETRIAL CONFINEMENT, UNTIL JUNE 23, 1965, IS NOT ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD SUBSEQUENT TO MAY 25, 1964, THE MEMBER, EVEN THOUGH IN MILITARY CONFINEMENT, HAVING BEEN CONSTRUCTIVELY ABSENT FROM THE TIME HE WAS PLACED UNDER THE EFFECTIVE CONTROL OF THE GERMAN OFFICIALS, AND NOT HAVING BEEN GRANTED LEAVE OR EXCUSED "ABSENCE," THE LOSS OF HIS SERVICES TO THE GOVERNMENT IS THE DIRECT RESULT OF THE CIVIL OFFENSE; HOWEVER, THE MEMBER'S RIGHT TO PAY AND ALLOWANCES FOR THE PERIOD OF CONFINEMENT PRIOR TO MAY 25, 1964 IS UNAFFECTED BY THE WAIVER OF JURISDICTION, REQUIRED UNDER THE NATO AGREEMENT WHEN REQUESTED, AND ITS RECALL.

TO LIEUTENANT COLONEL J. O. STEEN, DEPARTMENT OF THE ARMY, JUNE 8, 1966:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 9, 1966, REQUESTING AN ADVANCE DECISION AS TO THE ENTITLEMENT OF SPECIALIST E5 ALBERT LOGAN, RA 18287699, TO PAY AND ALLOWANCES SUBSEQUENT TO APRIL 30, 1964, THE DATE HE WAS PLACED IN CONFINEMENT IN A U.S. ARMY STOCKADE PENDING CIVIL CHARGES. YOUR LETTER WAS FORWARDED HERE BY THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, UNDER DATE OF MARCH 29, 1966, AND HAS BEEN ALLOCATED D.O. NO. 900 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE RECORD REVEALS THAT LOGAN WAS PLACED IN PRETRIAL CONFINEMENT IN A U.S. ARMY STOCKADE ON APRIL 30, 1964, PENDING CIVIL CHARGES OF ALLEGED HOMICIDE BY OFFICIALS OF THE FEDERAL REPUBLIC OF GERMANY. WHILE THE NATO STATUS OF FORCES AGREEMENT WAIVER OF JURISDICTION IN THE CASE WAS RECALLED BY THE GERMAN OFFICIALS ON MAY 25, 1964, INDICTMENT WAS NOT FILED UNTIL NOVEMBER 15, 1964. A CIVIL TRIAL WAS HELD DURING THE PERIOD DECEMBER 14 THROUGH 16, 1964, THE MEMBER WAS FOUND GUILTY AND HE WAS SENTENCED TO 3- 1/2 YEARS CONFINEMENT IN A GERMAN PRISON. PENDING THE OUTCOME OF AN APPEAL BY THE GERMAN PROSECUTOR, LOGAN REMAINED IN CUSTODY AND CONFINEMENT IN THE U.S. ARMY STOCKADE UNTIL JUNE 23, 1965, WHEN HE WAS RELEASED TO THE GERMAN AUTHORITIES FOR CONFINEMENT IN A GERMAN PRISON. CREDIT FOR PRETRIAL CONFINEMENT FROM APRIL 30, 1964, WAS ALLOWED TOWARDS SERVING OF SENTENCE.

YOU SAY THAT SINCE YOU WERE NOT ADVISED OF THE MEMBER'S INVOLVEMENT WITH THE CIVIL AUTHORITIES UNTIL APRIL 5, 1965, PAYMENTS OF FULL PAY AND ALLOWANCES THROUGH MARCH 31, 1965, WERE MADE TO THE AMERICAN EXPRESS COMPANY FOR DEPOSIT TO HIS ACCOUNT AND TRANSFERRED TO THE ACCOUNT OF CLARE R. LOGAN, WIFE, UNDER AUTHORITY OF A GENERAL POWER OF ATTORNEY EXECUTED BY HIM. UPON RECEIPT BY YOU OF NOTICE OF HIS INDICTMENT, HE WAS PLACED IN A NONPAY STATUS RETROACTIVE TO NOVEMBER 15, 1964, IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 12122 OF ARMY REGULATIONS 37-104 AND ACTION WAS TAKEN TO OBTAIN A REFUND OF THE AMOUNTS PAID FOR THE PERIOD SUBSEQUENT TO THAT DATE. YOU WERE ABLE TO OBTAIN A REFUND OF $225.51 REPRESENTING THE PAYMENT MADE FOR THE MONTH OF MARCH 1965.

THE MATTER IS SUBMITTED FOR AN ADVANCE DECISION FOR THE STATED REASON THAT WHILE THE CHIEF OF FINANCE CONCURS IN THE INTERPRETATION OF PARAGRAPH 12122, AR 37-104, AND THE RESULTING ACTION TAKEN BY YOU IN THE CASE, THE JUDGE ADVOCATE GENERAL CONTENDS THAT BASED ON HIS INTERPRETATION OF ARTICLE 22 OF THE STATUS OF FORCES AGREEMENT IN THE FEDERAL REPUBLIC OF GERMANY THE REGULATIONS DO NOT APPLY IN LOGAN'S CASE. YOU ALSO RAISE QUESTIONS AS TO WHETHER THE RECALL OF THE WAIVER OF JURISDICTION BY GERMAN AUTHORITIES ON MAY 25, 1964, AND THE FACT THAT CREDIT FOR PRETRIAL CONFINEMENT WAS GIVEN TOWARD THE SERVING OF THE SENTENCE, HAD A DIRECT EFFECT ON THE MEMBER'S PAY STATUS.

PARAGRAPH 1-98B, AR 37-104, CHANGE 38, DATED APRIL 16, 1961, IN EFFECT AT THE TIME LOGAN WAS PLACED IN THE MILITARY STOCKADE PROVIDED:

A MEMBER ON FOREIGN DUTY, WHO IS HELD IN CONFINEMENT BY THE MILITARY AUTHORITIES PRIOR TO THE TIME THE FOREIGN CIVIL AUTHORITIES EXERCISE JURISDICTION (BY CHARGE, INDICTMENT OR OTHERWISE) UNDER THE TERMS OF A TREATY OR EXECUTIVE AGREEMENT WITH THE UNITED STATES, IS ENTITLED TO OTHERWISE PROPER CREDIT OF PAY AND ALLOWANCES UNTIL THE DATE JURISDICTION IS SO EXERCISED.

PARAGRAPH 12122C, AR 37-104, DATED FEBRUARY 15, 1965, ON WHICH YOUR ACTION IN THIS CASE IS SAID TO HAVE BEEN BASED READS AS FOLLOWS:

A MEMBER ON FOREIGN DUTY WHO IS CONFINED BY MILITARY AUTHORITIES BEFORE BEING CHARGED BY FOREIGN CIVIL AUTHORITIES EXERCISES JURISDICTION (BY CHARGE, INDICTMENT, OR OTHERWISE) UNDER THE TERMS OF A TREATY OR EXECUTIVE AGREEMENT WITH THE UNITED STATES IS ENTITLED TO OTHERWISE PROPER CREDIT OF PAY AND ALLOWANCES UNTIL THE DATE JURISDICTION IS EXERCISED.

BOTH OF THE ABOVE-QUOTED PROVISIONS WERE ISSUED TO IMPLEMENT OUR DECISION OF AUGUST 28, 1956, 36 COMP. GEN. 173, IN WHICH WE HELD, QUOTING FROM THE FIRST SYLLABUS, THAT:

A MEMBER OF THE UNIFORMED SERVICES WHO IS CONFINED BY UNITED STATES MILITARY AUTHORITIES FOR TRIAL IN A JAPANESE CIVIL COURT, AS A RESULT OF APPREHENSION BY EITHER THE UNITED STATES MILITARY OR JAPANESE AUTHORITIES, IS REGARDED AS CONSTRUCTIVELY "ABSENT" FROM DUTY DURING THE PERIOD OF PRETRIAL CONFINEMENT AFTER CONVICTION, SO AS TO BE PRECLUDED FROM RECEIVING PAY AND ALLOWANCES DURING SUCH ABSENCE, UNLESS THE ABSENCE IS EXCUSED AS UNAVOIDABLE.

THAT IS TO SAY, THE RIGHT TO PAY AND ALLOWANCES OF A MEMBER WHO IS HELD BY THE MILITARY AUTHORITIES FOR INVESTIGATION AND TRIAL BY THE CIVIL AUTHORITIES AND IS FOUND GUILTY IS NOT TO BE DETERMINED ON THE BASIS OF ACTUAL CUSTODY ALONE. FROM THE TIME HE IS CONSIDERED TO BE UNDER THE EFFECTIVE CONTROL OF THE FOREIGN CIVIL OFFICERS HE IS CONSTRUCTIVELY ABSENT FROM DUTY AND IS NOT ENTITLED TO PAY AND ALLOWANCES FOR SUCH PERIOD EVEN THOUGH IN MILITARY CONFINEMENT UNLESS HE IS GRANTED LEAVE OR THE "ABSENCE" IS EXCUSED AS UNAVOIDABLE. THE CRITERION IN SUCH CASES, TO BE DETERMINED AFTER CONVICTION, IS WHETHER THE LOSS TO THE GOVERNMENT OF THE MEMBER'S SERVICES WAS THE DIRECT RESULT OF HIS COMMITTING THE CIVIL OFFENSE OR WHETHER IT MAY BE CONSIDERED THAT HIS CONFINEMENT OR ANY PART THEREOF WAS AFFECTED SOLELY IN CONNECTION WITH COURT-MARTIAL PROCEEDINGS.

PARAGRAPHS 3 AND 5 OF ARTICLE VII, NATO STATUS OF FORCES AGREEMENT SIGNED AT LONDON, JUNE 19, 1951, 4 UST 1800 PROVIDES:

3. IN CASES WHERE THE RIGHT TO EXERCISE JURISDICTION IS CONCURRENT THE FOLLOWING RULES SHALL APPLY:

(A) THE MILITARY AUTHORITIES OF THE SENDING STATE SHALL HAVE THE PRIMARY RIGHT TO EXERCISE JURISDICTION OVER A MEMBER OF A FORCE OR OF A CIVILIAN COMPONENT IN RELATION TO:

(I) OFFENCES SOLELY AGAINST THE PROPERTY OR SECURITY OF THAT STATE, OR OFFENCES SOLELY AGAINST THE PERSON OR PROPERTY OF ANOTHER MEMBER OF FORCE OR CIVILIAN COMPONENT OF THAT STATE OR OF A DEPENDENT;

(II) OFFENCES ARISING OUT OF ANY ACT OR OMISSION DONE IN THE PERFORMANCE OF OFFICIAL DUTY.

(B) IN THE CASE OF ANY OTHER OFFENCE THE AUTHORITIES OF THE RECEIVING STATE SHALL HAVE THE PRIMARY RIGHT TO EXERCISE JURISDICTION.

(C) IF THE STATE HAVING THE PRIMARY RIGHT DECIDES NOT TO EXERCISE JURISDICTION, IT SHALL NOTIFY THE AUTHORITIES OF THE OTHER STATE AS SOON AS PRACTICABLE. THE AUTHORITIES OF THE STATE HAVING THE PRIMARY RIGHT SHALL GIVE SYMPATHETIC CONSIDERATION TO A REQUEST FROM THE AUTHORITIES OF THE OTHER STATE FOR A WAIVER OF ITS RIGHT IN CASES WHERE THAT OTHER STATE CONSIDERS SUCH WAIVER TO BE OF PARTICULAR IMPORTANCE.

* * * * * * * * * * * * * * (TABLE OMITTED) * * * * * * * * * * * * * *

5--- (A) THE AUTHORITIES OF THE RECEIVING AND SENDING STATES SHALL ASSIST EACH OTHER IN THE ARREST OF MEMBERS OF A FORCE OR CIVILIAN COMPONENT OR THEIR DEPENDENTS IN THE TERRITORY OF THE RECEIVING STATE AND IN HANDING THEM OVER TO THE AUTHORITY WHICH IS TO EXERCISE JURISDICTION IN ACCORDANCE WITH THE ABOVE PROVISIONS.

(B) THE AUTHORITIES OF THE RECEIVING STATE SHALL NOTIFY PROMPTLY THE MILITARY AUTHORITIES OF THE SENDING STATE OF THE ARREST OF ANY MEMBER OF A FORCE OR CIVILIAN COMPONENT OR A DEPENDENT.

(C) THE CUSTODY OF AN ACCUSED MEMBER OF A FORCE OR CIVILIAN COMPONENT OVER WHOM THE RECEIVING STATE IS TO EXERCISE JURISDICTION SHALL, IF HE IS IN THE HANDS OF THE SENDING STATE, REMAIN WITH THAT STATE UNTIL HE IS CHARGED BY THE RECEIVING STATE.

ARTICLE 19 OF THE SUPPLEMENTARY AGREEMENT TO THE NATO STATUS OF FORCES AGREEMENT WITH RESPECT TO FORCES STATIONED IN THE FEDERAL REPUBLIC OF GERMANY SIGNED AT BONN AUGUST 3, 1959, 14 UST 552, PROVIDES IN PART THAT:

1. AT THE REQUEST OF A SENDING STATE, THE FEDERAL REPUBLIC SHALL, WITHIN THE FRAMEWORK OF SUB-PARAGRAPH (C) OF PARAGRAPH (3) OF ARTICLE VII OF THE NATO STATUS OF FORCES AGREEMENT, WAIVE IN FAVOUR OF THAT STATE THE PRIMARY RIGHT GRANTED TO THE GERMAN AUTHORITIES UNDER SUB PARAGRAPH (B) OF PARAGRAPH 3 OF THAT ARTICLE IN THE CASES OF CONCURRENT JURISDICTION, IN ACCORDANCE WITH PARAGRAPHS 2, 3, 4 AND 7 OF THIS ARTICLE.

2. SUBJECT TO ANY PARTICULAR ARRANGEMENTS WHICH MAY BE MADE UNDER PARAGRAPH 7 OF THIS ARTICLE, THE MILITARY AUTHORITIES OF THE SENDING STATES SHALL NOTIFY THE COMPETENT GERMAN AUTHORITIES OF INDIVIDUAL CASES FALLING UNDER THE WAIVER PROVIDED IN PARAGRAPH 1.

3. WHERE THE COMPETENT GERMAN AUTHORITIES HOLD THE VIEW THAT, BY REASON OF SPECIAL CIRCUMSTANCES IN A SPECIFIC CASE, MAJOR INTERESTS OF GERMAN ADMINISTRATION OF JUSTICE MAKE IMPERATIVE THE EXERCISE OF GERMAN JURISDICTION, THEY MAY RECALL THE WAIVER GRANTED UNDER PARAGRAPH 1 OF THIS ARTICLE BY A STATEMENT TO THE COMPETENT MILITARY AUTHORITIES WITHIN A PERIOD OF TWENTY-ONE DAYS AFTER RECEIPT OF THE NOTIFICATION ENVISAGED IN PARAGRAPH 2 OR ANY SHORTER PERIOD WHICH MAY BE PROVIDED IN ARRANGEMENTS MADE UNDER PARAGRAPH 7. THE GERMAN AUTHORITIES MAY ALSO SUBMIT THE STATEMENT PRIOR TO RECEIPT OF SUCH NOTIFICATION. ARTICLE 22 OF THAT AGREEMENT, 14 UST 556, PROVIDES:

1. (A) WHERE JURISDICTION IS EXERCISED BY THE AUTHORITIES OF A SENDING STATE, CUSTODY OF MEMBERS OF THE FORCE, OF THE CIVILIAN COMPONENT, OR DEPENDENTS SHALL REST WITH THE AUTHORITIES OF THAT STATE.

(B) WHERE JURISDICTION IS EXERCISED BY THE GERMAN AUTHORITIES, CUSTODY OF MEMBERS OF A FORCE, OF A CIVILIAN COMPONENT, OR DEPENDENTS SHALL REST WITH THE AUTHORITIES OF THE SENDING STATE IN ACCORDANCE WITH PARAGRAPHS 2 AND 3 OF THIS ARTICLE.

2. (A) WHERE THE ARREST HAS BEEN MADE BY THE GERMAN AUTHORITIES, THE ARRESTED PERSON SHALL BE HANDED OVER TO THE AUTHORITIES OF THE SENDING STATE CONCERNED IF SUCH AUTHORITIES SO REQUEST.

(B) WHERE THE ARREST HAS BEEN MADE BY THE AUTHORITIES OF A SENDING STATE, OR WHERE THE ARRESTED PERSON HAS BEEN HANDED OVER TO THEM UNDER SUB- PARAGRAPH (A) OF THIS PARAGRAPH, THEY

(I) MAY TRANSFER CUSTODY TO THE GERMAN AUTHORITIES AT ANY TIME;

(II) SHALL GIVE SYMPATHETIC CONSIDERATION TO ANY REQUEST FOR THE TRANSFER OF CUSTODY WHICH MAY BE MADE BY THE GERMAN AUTHORITIES IN SPECIFIC CASES.

(C)IN RESPECT OF OFFENCES DIRECTED SOLELY AGAINST THE SECURITY OF THE FEDERAL REPUBLIC, CUSTODY SHALL REST WITH THE GERMAN AUTHORITIES IN ACCORDANCE WITH SUCH ARRANGEMENTS AS MAY BE MADE TO THAT EFFECT WITH THE AUTHORITIES OF THE SENDING STATE CONCERNED.

3. WHERE CUSTODY RESTS WITH THE AUTHORITIES OF A SENDING STATE IN ACCORDANCE WITH PARAGRAPH 2 OF THIS ARTICLE, IT SHALL REMAIN WITH THESE AUTHORITIES UNTIL RELEASE OR ACQUITTAL BY THE GERMAN AUTHORITIES OR UNTIL COMMENCEMENT OF THE SENTENCE. THE AUTHORITIES OF THE SENDING STATE SHALL MAKE THE ARRESTED PERSON AVAILABLE TO THE GERMAN AUTHORITIES FOR INVESTIGATION AND CRIMINAL PROCEEDINGS (ERMITTLUNGSUND STRAFVERFAHREN) AND SHALL TAKE ALL APPROPRIATE MEASURES TO THAT END AND TO PREVENT ANY PREJUDICE TO THE COURSE OF JUSTICE (VERDUNKELUNGSGEFAHR). THEY SHALL TAKE FULL ACCOUNT OF ANY SPECIAL REQUEST REGARDING CUSTODY MADE BY THE COMPETENT GERMAN AUTHORITIES.

WHILE IT APPEARS THAT THE FEDERAL REPUBLIC OF GERMANY HAD THE PRIMARY RIGHT TO EXERCISE JURISDICTION OVER THE MEMBER IN THIS CASE, NO INFORMATION HAS BEEN FURNISHED AS TO THE ACTION, IF ANY, TAKEN BY THE GERMAN GOVERNMENT TO ASSUME JURISDICTION PRIOR TO THE TIME THE WAIVER OF JURISDICTION WAS RECALLED BY THE GERMAN OFFICIALS ON MAY 25, 1964. IF THE CIVIL AUTHORITIES DID NOT PARTICIPATE IN ANY WAY IN THE MEMBER'S ARREST AND INDICATED NO INTEREST IN HIS CONFINEMENT BEFORE MAY 25, 1964, WE FIND NO BASIS FOR QUESTIONING HIS RIGHT TO PAY AND ALLOWANCES BEFORE THAT DATE. HOWEVER, IT IS OUR VIEW THAT SUCH RESULT WOULD FOLLOW ONLY IF HIS ARREST AND CONFINEMENT WAS INSTIGATED AND ACCOMPLISHED SOLELY BY THE U.S. MILITARY AUTHORITIES; OTHERWISE, HIS SITUATION WOULD BE THE SAME AS THAT OF THE MEMBER INVOLVED IN OUR DECISION OF AUGUST 28, 1956, FROM THE DATE OF ARREST AND CONFINEMENT. SINCE THE WAIVER OF JURISDICTION WAS REQUIRED UNDER THE SUPPLEMENTARY AGREEMENT OF AUGUST 3, 1959, UPON RECEIPT OF A REQUEST THEREFOR, WE DO NOT VIEW SUCH WAIVER AND ITS RECALL AS AFFECTING THE MEMBER'S RIGHT TO PAY AND ALLOWANCES IN ANY WAY PRIOR TO SUCH RECALL.

IT APPEARING THAT LOGAN COMMITTED A CRIME PUNISHABLE UNDER CIVIL LAWS OVER WHICH THE GERMAN AUTHORITIES HAD PRIMARY JURISDICTION, IT IS CLEAR THAT HE WAS HELD FOR TRIAL UNDER SUCH LAWS ON AND AFTER THE DATE THE WAIVER OF JURISDICTION WAS RECALLED BY THE GERMAN OFFICIALS ON MAY 25, 1964, AND THAT HE WAS THEN CONSTRUCTIVELY ABSENT FROM HIS REGULARLY ASSIGNED DUTIES. HENCE, ON THE BASIS OF THE FACTS DISCLOSED, NO PAY AND ALLOWANCES SHOULD HAVE BEEN PAID TO HIM AFTER MAY 24, 1964.

ACCORDINGLY, THERE IS NOT AUTHORITY FOR PAYMENT OF ANY PART OF THE AMOUNTS CLAIMED FOR THE PERIOD MARCH 1 TO JUNE 23, 1965, AND THE MILITARY PAY VOUCHERS COVERING SUCH AMOUNTS ARE RETAINED HERE. APPROPRIATE COLLECTION OF THE OVERPAID AMOUNTS SHOULD BE INSTITUTED AT THE TIME LOGAN RETURNS TO MILITARY CONTROL.