B-100037, MAY 14, 1951, 30 COMP. GEN. 449

B-100037, MAY 14, 1951, 30 COMP. GEN. 449

PAY - ARMY - ENLISTED MAN AWAITING TRIAL AFTER EXPIRATION OF TERM OF ENLISTMENT NOTWITHSTANDING ARTICLE OF WAR 16 AND SUBPARAGRAPH 19A, MANUAL FOR COURTS -MARTIAL, 1949, PROVIDING, IN EFFECT, THAT A PRISONER WILL NOT FORFEIT PAY AND ALLOWANCES DURING A PERIOD OF CONFINEMENT PRIOR TO SENTENCE, THE PAY AND ALLOWANCES OF AN ENLISTED PERSON WHOSE TERM OF ENLISTMENT EXPIRES WHILE 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.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, MAY 14, 1951:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 11, 1950, REFERRING TO ARTICLE OF WAR 16 AND SUBPARAGRAPH 19A, MANUAL FOR COURTS MARTIAL, U.S. ARMY, 1949, AND, IN VIEW OF CERTAIN PROVISIONS THEREIN, REQUESTING A DECISION AS TO WHETHER OR NOT PAY AND ALLOWANCES OF AN ENLISTED PERSON WHOSE TERM OF ENLISTMENT EXPIRES WHILE HE IS IN CONFINEMENT AWAITING TRIAL BY COURT MARTIAL WILL TERMINATE ON THE DATE OF THE EXPIRATION OF HIS TERM OF ENLISTMENT; WILL ACCRUE UNTIL HIS SENTENCE IS ORDERED EXECUTED; OR, IN THE EVENT OF ACQUITTAL, WILL ACCRUE UNTIL HE IS DISCHARGED.

THE 16TH ARTICLE OF WAR (10 U.S.C., SUPP. III, 1487) PROVIDES IN PART AS FOLLOWS:

* * * NOR SHALL ANY DEFENDANT AWAITING TRIAL BE MADE SUBJECT TO PUNISHMENT OR PENALTIES OTHER THAN CONFINEMENT PRIOR TO SENTENCE ONCHARGES AGAINST HIM.

SUBPARAGRAPH 19A, MANUAL FOR COURTS-MARTIAL, U.S. ARMY, 1949, PROVIDES IN PART, AS FOLLOWS:

* * * NOR SHALL ANY ACCUSED WHO IS CONFINED WHILE AWAITING TRIAL BE MADE SUBJECT TO PUNISHMENTS OR PENALTIES OTHER THAN CONFINEMENT FOR ANY OFFENSE WITH WHICH HE STANDS CHARGED PRIOR TO EXECUTION OF AN APPROVED SENTENCE ON CHARGES AGAINST HIM ( A.W. 16). * * * AND THEY WILL NOT FORFEIT PAY OR ALLOWANCES DURING THE PERIOD OF CONFINEMENT EXCEPT PURSUANT TO SENTENCES ORDERED EXECUTED. SEE AR 600-375.

IN CONNECTION WITH THE QUESTION PRESENTED THERE IS QUOTED IN YOUR LETTER AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY AS FOLLOWS:

PRIOR TO 1 FEBRUARY 1949 AN ENLISTED PERSON WHO WAS HELD BEYOND THE TERM OF HIS ENLISTMENT WHILE AWAITING TRIAL AND WHOSE TRIAL RESULTED IN AN ACQUITTAL, WAS REGARDED AS HAVING BEEN RETAINED IN THE SERVICE FOR THE CONVENIENCE OF THE GOVERNMENT (SUBPAR. 6C (2), AR 615-360, 14 MAY 1947), AND ACCORDINGLY, WAS ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD IN QUESTION. IF HIS TRIAL RESULTED IN A CONVICTION HE WAS REGARDED AS NOT HAVING BEEN HELD BEYOND THE TERM OF HIS ENLISTMENT FOR THE CONVENIENCE OF THE GOVERNMENT AND ACCORDINGLY WAS NOT ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD IN QUESTION (11 COMP. GEN. 342). HOWEVER, IN VIEW OF THE PROVISIONS OF ARTICLE OF WAR 16 AND SUBPARAGRAPH 19A, MANUAL FOR COURTS- MARTIAL, 1949 (IN EFFECT THAT A PRISONER WILL NOT FORFEIT PAY AND ALLOWANCES DURING A PERIOD OF HIS CONFINEMENT PRIOR TO SENTENCE), IT IS BELIEVED THAT THE FACT THAT A PRISONER'S TRIAL ENDED EITHER IN CONVICTION OR ACQUITTAL WOULD NOT GOVERN HIS ENTITLEMENT TO PAY AND ALLOWANCES AND THAT IN EITHER CASE HE SHOULD BE REGARDED AS HAVING BEEN RETAINED IN THE SERVICE BEYOND THE TERM OF HIS ENLISTMENT FOR THE CONVENIENCE OF THE GOVERNMENT. ACCORDINGLY HE WOULD BE ENTITLED TO PAY AND ALLOWANCES FOR SUCH PERIOD. HOWEVER, IT WILL BE NOTED THAT AS THE QUESTION INVOLVES THE EXPENDITURE OF PUBLIC FUNDS AN AUTHORITATIVE RULING THEREON MAY BE MADE ONLY BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT.

BOTH THE SAID OPINION AND THE PROVISIONS OF THE ARMY REGULATIONS CITED THEREIN ARE INDICATIVE THAT PRIOR TO FEBRUARY 1, 1949, IT WAS THE PRACTICE WHERE AN ARMY ENLISTED PERSON WAS HELD BEYOND THE TERM OF HIS ENLISTMENT AND WAS IN CONFINEMENT AWAITING TRIAL TO REGARD THE RETENTION IN THE SERVICE AS BEING FOR THE CONVENIENCE OF THE GOVERNMENT IN CASE THE TRIAL RESULTED IN AN ACQUITTAL AND TO REGARD SUCH RETENTION AS NOT FOR THE CONVENIENCE OF THE GOVERNMENT IN THE EVENT THE TRIAL RESULTED IN A CONVICTION. IN THAT CONNECTION SEE 11 COMP. GEN. 342. ON THE BASIS OF THE SAID PRACTICE IT APPEARS THAT ANY ARMY ENLISTED PERSON WHO WAS ACQUITTED UNDER SUCH CIRCUMSTANCES WAS PAID HIS REGULAR PAY AND ALLOWANCES FOR THE FULL PERIOD OF HIS CONFINEMENT AND FOR THE PERIOD, IF ANY, FROM THE DATE OF HIS RELEASE FROM CONFINEMENT TO AND INCLUDING THE DATE OF HIS DISCHARGE FROM THE SERVICE. BUT A PERSON WHO WAS CONVICTED UNDER SUCH CIRCUMSTANCES WAS NOT PAID ANY PAY OR ALLOWANCES FOR ANY PERIOD AFTER THE DATE OF EXPIRATION OF HIS TERM OF ENLISTMENT ON THE BASIS THAT AN ENLISTED PERSON'S FULL DUTY STATUS TERMINATES AT THE EXPIRATION OF HIS CONTRACT OF ENLISTMENT AND HIS RIGHT TO PAY AND ALLOWANCES CEASES AT THAT TIME UNLESS HE IS HELD IN THE SERVICE FOR THE CONVENIENCE OF THE GOVERNMENT OR FOR THE PURPOSE OF MAKING GOOD TIME LOST. SEE 15 OP. ATTY. GEN. 152.

THIS OFFICE IS OF THE OPINION THAT THE ABOVE INDICATED PRINCIPLES AND PRACTICES WERE REASONABLY SOUND, NOTWITHSTANDING A CONTRARY VIEW MIGHT HAVE BEEN SUGGESTED BY CERTAIN OF ITS DECISIONS, INCLUDING 17 COMP. GEN. 103, AND THERE WOULD BE NO PRESENT DOUBT OF THE PROPRIETY OF CONTINUING TO FOLLOW SUCH PRINCIPLES AND PRACTICES AFTER FEBRUARY 1, 1949, WERE IT NOT FOR THE QUESTIONS WHICH YOU NOW PRESENT.

THE CONCLUSION WHICH THE JUDGE ADVOCATE GENERAL REACHED IN THE ABOVE QUOTED OPINION SEEMS TO REST ON THE PROPOSITION THAT NONPAYMENT WOULD INVOLVE A FORFEITURE OF PAY IN A CASE WHERE AN ENLISTED PERSON WAS HELD IN CONFINEMENT AFTER THE EXPIRATION OF HIS ENLISTMENT FOR THE PURPOSE OF STANDING TRIAL AND WAS CONVICTED AT THE TRIAL. HOWEVER, IT IS THE VIEW OF THIS OFFICE, AS INDICATED ABOVE, THAT PAY AND ALLOWANCES SIMPLY DO NOT ACCRUE TO AN ENLISTED PERSON AFTER THE EXPIRATION OF HIS ENLISTMENT, UNLESS HE IS HELD IN THE SERVICE FOR THE CONVENIENCE OF THE GOVERNMENT OR FOR THE PURPOSE OF MAKING GOOD TIME LOST, AND THAT THE NONPAYMENT OF PAY AND ALLOWANCES WHICH DO NOT ACCRUE DOES NOT CONSTITUTE A FORFEITURE OF PAY WITHIN THE MEANING OF THE ABOVE-QUOTED PROVISIONS OF SUBPARAGRAPH 19A, MANUAL FOR COURTS-MARTIAL, U.S. ARMY, 1949, OR ANY PUNISHMENT OR PENALTY OTHER THAN CONFINEMENT WITHIN THE MEANING OF THE PROVISIONS OF ARTICLE OF WAR 16, SUPRA. CF. 26 COMP. GEN. 702, 704. HENCE, IT IS CONCLUDED THAT THE SAID PROVISIONS DO NOT REQUIRE ANY CHANGE IN 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. YOUR QUESTION IS ANSWERED ACCORDINGLY.