B-117743, APR 23, 1954

B-117743, APR 23, 1954

PRECIS-UNAVAILABLE

THE SECRETARY OF DEFENSE:

REFERENCE IS MADE TO LETTER DATED NOVEMBER 13, 1953, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), ENCLOSING A COPY OF COMMITTEE ACTION NO. 74, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AND REQUESTING DECISION WHETHER (1) AN ENLISTED MEMBER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES, WITH DEPENDENTS, (2) AN ENLISTED MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES, WITH DEPENDENTS, SERVING ON ACTIVE DUTY, (3) AN ENLISTED MEMBER OF A RESERVE COMPONENT OF THE UNIFORMED SERVICES, WITH DEPENDENTS, SERVING ON ACTIVE DUTY FOR A SPECIFIED PERIOD OF TIME, AND (4) A PERSON WITH DEPENDENTS, WHO IS INDUCTED INTO THE UNIFORMED SERVICES FOR A SPECIFIED PERIOD OF TIME UNDER THE PROVISIONS OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, AS AMENDED, ARE ENTITLED TO BASIC ALLOWANCE FOR QUARTERS SUBSEQUENT TO EXPIRATION OF ENLISTMENT, OR SUBSEQUENT TO SUCH SPECIFIED PERIOD OF ACTIVE DUTY OR SPECIFIED PERIOD OF TIME, WHILE IN CONFINEMENT PURSUANT TO A COURT -MARTIAL SENTENCE, IF OTHERWISE ENTITLED UNDER THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 794. IN CASE OF A NEGATIVE ANSWER WITH RESPECT TO ANY OF THOSE FOUR CATEGORIES, DECISION IS REQUESTED AS TO WHETHER UNDER THE PROVISIONS OF SECTION 5 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, THE SECRETARIES OF THE DEPARTMENTS CONCERNED MAY PRESCRIBE A PERIOD OF TIME AFTER EXPIRATION OF TERM OF SERVICE DURING WHICH THE BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS MAY BE CONTINUED WHILE THE MEMBER CONCERNED IS IN CONFINEMENT PURSUANT TO A COURT-MARTIAL SENTENCE.

IT HAS BEEN HELD THAT AN ENLISTED MAN RETAINED IN THE SERVICE BEYOND THE TERM OF HIS ENLISTMENT AWAITING TRIAL WAS HELD FOR THE CONVENIENCE OF THE GOVERNMENT IN CASE THE TRIAL RESULTED IN AN ACQUITTAL AND THAT SUCH RETENTION WAS NOT FOR THE CONVENIENCE OF THE GOVERNMENT IN THE EVENT THE TRIAL RESULTED IN A CONVICTION. UNLESS THE RETENTION IS FOR THE CONVENIENCE OF THE GOVERNMENT, PAY AND ALLOWANCES DO NOT ACCRUE AFTER EXPIRATION OF ENLISTMENT. SEE 11 COMP. GEN. 342. AND, NOTWITHSTANDING ARTICLE OF WAR 16, AS AMENDED BY THE ACT OF JUNE 24, 1948, 62 STAT. 630, AND SUBPARAGRAPH 19A, MANUAL FOR COURTS-MARTIAL, U. S. ARMY, 1949, PROVIDING IN EFFECT THAT A PRISONER WILL NOT FORFEIT PAY AND ALLOWANCES DURING A PERIOD OF CONFINEMENT, EXCEPT PURSUANT TO SENTENCE ORDERED EXECUTED, IT WAS HELD IN 30 COMP. GEN. 449, THAT PAY AND ALLOWANCES DO NOT ACCRUE TO AN ENLISTED MEMBER AFTER THE EXPIRATION OF HIS ENLISTMENT, UNLESS HE IS HELD IN 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. THE PRESENT PROVISIONS REGARDING THE FORFEITURE OF PAY AND ALLOWANCES DURING PERIODS OF CONFINEMENT, CONTAINED IN ARTICLES 57 AND 71 OF THE UNIFORM CODE OF MILITARY JUSTICE, 64 STAT. 126, AND 131, AND SUBPARAGRAPH 126H(5), MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, DO NOT REQUIRE ANY DIFFERENT CONCLUSION. AND NO BASIS IS PERCEIVED FOR A DIFFERENT HOLDING SIMPLY BECAUSE THE DURATION OF THE EXPIRED TERM OF ACTIVE SERVICE WAS FIXED BY MEANS OTHER THAN A CONTRACT OF ENLISTMENT IN A REGULAR OR RESERVE COMPONENT. COMPARE B-115784, DECEMBER 30, 1953.

ACCORDINGLY, SUBJECT TO THE DISCUSSION AND ANSWER RESPECTING THE FINAL QUESTION, BELOW, NONE OF THE MEMBERS IN THE FOUR CATEGORIES ENUMERATED ABOVE IS ENTITLED TO CREDIT OF BASIC ALLOWANCE FOR QUARTERS SUBSEQUENT TO EXPIRATION OF HIS TERM OF SERVICE.

SECTION 5 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 796, PROVIDES THAT:

"NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE BASIC ALLOWANCE FOR QUARTERS TO WHICH AN ENLISTED MEMBER MAY BE ENTITLED AS A MEMBER WITH DEPENDENTS SHALL NOT, FOR SUCH PERIOD AS THE SECRETARY CONCERNED MAY PRESCRIBE, BE CONTINGENT ON THE RIGHT OF SUCH MEMBER TO RECEIVE PAY."

SUCH SECTION IS SOMEWHAT SIMILAR TO SECTION 110 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 384, AS AMENDED, 37 U.S.C. 210, AND THE LEGISLATIVE HISTORY OF THE SAID SECTION 5 SHOWS THAT, AS IN THE CASE OF THE PRIOR LAW, ITS PURPOSE IS TO PROVIDE A MEANS WHEREBY THE DEPENDENTS OF AN ENLISTED MEMBER MAY CONTINUE TO RECEIVE, FOR SUCH PERIOD AS THE SECRETARY CONCERNED MAY PRESCRIBE, A MEASURE OF SUPPORT, "EVEN THOUGH THE ENLISTED MEMBER'S PAY IS FORFEITED OR DOES NOT ACCRUE BECAUSE OF UNAUTHORIZED ABSENCE, DISCIPLINARY REASONS, MISCONDUCT, OR OTHER REASONS." SEE THE ANALYSIS OF THE SECTION AT PAGE 5 OF SENATE REPORT NO. 2372, 81ST CONGRESS, 2D SESSION, AUGUST 21, 1950, TO ACCOMPANY S.4071, AND AT PAGE 6 OF HOUSE OF REPRESENTATIVES REPORT NO. 2982, 81ST CONGRESS, 2D SESSION, AUGUST 22, 1950, TO ACCOMPANY H. R. 9477. IN SUCH CIRCUMSTANCES AND THERE BEING NOTHING TO REQUIRE THAT THE AUTHORITY CONFERRED UPON THE SECRETARIES BY THE SAID SECTION BE CONSIDERED AS RESTRICTED TO THE DURATION OF THE TERM OF SERVICE OF AN ENLISTED MEMBER IN CASES WHERE THE MEMBER IS NOT DISCHARGED AT THE EXPIRATION OF HIS TERM OF SERVICE, THE FINAL QUESTION IS ANSWERED IN THE AFFIRMATIVE.