B-106353, NOV. 2, 1964

B-106353, NOV. 2, 1964

TO MR. ALFONSO L. SANDOVAL:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 24, 1964, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR PAY WHICH YOU BELIEVE TO BE DUE YOU INCIDENT TO YOUR SERVICE AS AN ENLISTED MAN IN THE UNITED STATES NAVY.

THE RECORDS SHOW THAT YOU REENLISTED IN THE NAVY ON FEBRUARY 8, 1946, FOR A PERIOD OF TWO EARS; THAT YOU ENTERED INTO A STATUS OF ABSENCE WITHOUT LEAVE ON APRIL 24, 1947; THAT, AFTER YOUR PERIOD OF ENLISTMENT HAD EXPIRED ON FEBRUARY 7, 1948, YOU RETURNED TO NAVAL JURISDICTION ON FEBRUARY 14, 1950; AND THAT YOU RECEIVED AN HONORABLE DISCHARGE ON AUGUST 16, 1950. THE RECORDS FURTHER SHOW THAT THE MARK OF DESERTION FOR THE PERIOD APRIL 24, 1947, TO FEBRUARY 13, 1950, WAS REMOVED FROM YOUR SERVICE RECORD BECAUSE OF THE FACT THAT YOU WERE TRIED BY GENERAL COURT-MARTIAL ON JULY 6, 1950, AND WERE ACQUITTED. IN OUR DECISION OF NOVEMBER 28, 1951, B- 106353, COPY ENCLOSED, WE HELD THAT YOU WERE NOT ENTITLED TO PAY FOR THE PERIOD APRIL 24, 1947, TO FEBRUARY 7, 1948, SINCE IT APPEARED THAT YOU WERE ABSENT WITHOUT LEAVE DURING ALL OF THAT PERIOD AND THAT SUCH ABSENCE WAS NOT EXCUSED AS UNAVOIDABLE. YOU URGE, HOWEVER, THAT YOU ARE ENTITLED TO SUCH PAY UNDER THE RECENT RULING OF THE SUPREME COURT IN THE CASE OF BELL V. UNITED STATES, 366 U.S. 393 (1961).

THE SUPREME COURT HELD IN THE BELL CASE THAT SERVICEMEN WHO COLLABORATED WITH THE ENEMY AFTER HAVING BEEN TAKEN PRISONERS WERE ENTITLED, UNDER THE PROVISIONS OF 37 U.S.C. 242 AND THE MISSING PERSONS ACT, 50 U.S.C. APP. 1002, TO ACTIVE DUTY PAY WHILE PRISONERS. IN THE PRINTED REPORT OF THE CASE AT PAGE 401, THE COURT POINTED OUT THAT IF A SOLDIER'S CONDUCT FALLS BELOW A SPECIFIED LEVEL HE IS SUBJECT TO DISCIPLINE, AND THAT HIS PUNISHMENT MAY INCLUDE THE FORFEITURE OF FUTURE PAY. IT THEN MADE THE GENERAL STATEMENT THAT A SOLDIER, NO MATTER HOW IGNOBLE A SOLDIER HE MAY BE, WHO HAS NOT RECEIVED SUCH A PUNISHMENT FROM A DULY CONSTITUTED COURT- MARTIAL IS ENTITLED TO THE STATUTORY PAY AND ALLOWANCES OF HIS GRADE AND STATUS, BUT QUALIFIED SUCH STATEMENT BY ADDING IN A FOOTNOTE (NUMBERED 13 AND SHOWN ON PAGE 402) THE FOLLOWING: "UNLESS HE IS ABSENT WITHOUT LEAVE OR A DESERTER * * *.' SINCE YOU WERE ABSENT WITHOUT LEAVE FROM APRIL 24, 1947, TO FEBRUARY 7, 1948, THE COURT'S HOLDING IN THE BELL CASE DOES NOT FURNISH A BASIS FOR FAVORABLE CONSIDERATION OF YOUR CLAIM FOR THAT PERIOD. WE FIND NOTHING IN YOUR LETTER OF SEPTEMBER 24, 1964, WHICH WOULD WARRANT ANY MODIFICATION OR REVISION OF OUR PRIOR ACTION ON YOUR CLAIM FOR SUCH PERIOD. ALTHOUGH YOU HAVE MADE OTHER ARGUMENTS WHICH ARE NOT SPECIFICALLY DISCUSSED HERE, WE HAVE CONSIDERED THOSE ARGUMENTS AND WE REGRET TO INFORM YOU THAT THEY PROVIDE NO BASIS FOR PAYING SUCH CLAIM.

HOWEVER, IN OUR DECISION OF DECEMBER 4, 1957, B-134151, 37 COMP. GEN. 380, IT WAS HELD:

"IT LONG HAS BEEN THE RULE THAT, REGARDLESS OF WHETHER THE ENLISTMENT CONTRACT EXPIRED WHEN AN ENLISTED MEMBER WAS ABSENT IN A STATUS OF ABSENCE WITHOUT LEAVE OR IN DESERTION, OR WHEN IN CONFINEMENT AWAITING TRIAL BY COURT-MARTIAL, PAY AND ALLOWANCES DO NOT ACCRUE TO THE ENLISTED MEMBER WHILE SUBJECT TO MILITARY CONTROL AFTER THE EXPIRATION OF HIS ENLISTMENT UNLESS HE IS ACQUITTED AND THEREFORE CONSIDERED TO HAVE BEEN HELD FOR THE CONVENIENCE OF THE GOVERNMENT, OR HE IS HELD TO MAKE GOOD TIME LOST, OR HE IS RESTORED TO DUTY.' IN VIEW OF THE FACT THAT YOUR COURT-MARTIAL RESULTED IN AN ACQUITTAL, IT IS CONSIDERED THAT YOU WERE HELD FOR THE CONVENIENCE OF THE GOVERNMENT FOR THE PERIOD FEBRUARY 14, 1950, TO AUGUST 16, 1950, AND THAT YOU WERE ENTITLED TO PAY AND ALLOWANCES FOR THAT PERIOD. SINCE YOUR PAY RECORD SHOWS THAT YOU WERE NOT PAID IN FULL FOR SUCH PERIOD, A SETTLEMENT IN YOUR FAVOR WILL BE ISSUED IN DUE COURSE FOR THE PROPER ADDITIONAL AMOUNT FOUND DUE.