B-123767, JUL. 13, 1955

B-123767, JUL. 13, 1955

TO CAPTAIN V. E. OVERTURF, FC, DISBURSING OFFICER, DEPARTMENT OF THE ARMY:

BY FIRST INDORSEMENT DATED APRIL 26, 1955, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF MARCH 1, 1955, REQUESTING A DECISION AS TO THE PROPRIETY OF PAYING A VOUCHER, STATED IN FAVOR OF DOYLE T. COOK, COVERING AMOUNTS BELIEVED TO BE DUE HIM INCIDENT TO HIS SERVICE AS AN ENLISTED MAN, REGULAR ARMY, SERVICE NO. 14 371 364. THE PROPOSED PAYMENT IS BASED ON THE CORRECTION OF MR. COOK'S MILITARY RECORDS BY THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS, ESTABLISHED PURSUANT TO THE PROVISIONS OF SECTIONS 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 655, 5 U.S.C. 191A.

IT APPEARS THAT ON FEBRUARY 14, 1953, MR. COOK WAS TRIED AND CONVICTED BY A SUMMARY COURT MARTIAL FOR VIOLATION OF ARTICLE 86, UNIFORM CODE OF MILITARY JUSTICE, FOR ABSENCE WITHOUT LEAVE ON JANUARY 19 AND 20, 1953, AND THAT HE WAS SENTENCED TO BE REDUCED FROM THE GRADE OF SERGEANT TO THE GRADE OF CORPORAL AND TO FORFEIT $47 OF HIS PAY. IT FURTHER APPEARS THAT ON THE BASIS OF THE RECOMMENDATIONS OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS, THE SECRETARY OF THE ARMY ON AUGUST 16, 1954, ISSUED A "MEMORANDUM FOR: THE ADJUTANT GENERAL" READING, IN PERTINENT PART, AS FOLLOWS:

"1. THAT ALL OF THE DEPARTMENT OF THE ARMY RECORDS OF DOYLE T. COOK, INSOFAR AS THEY RELATE TO THE ERRONEOUS AND UNJUST FINDINGS AND SENTENCE OF THE SUMMARY COURT-MARTIAL OF 14 FEBRUARY 1953, BE CORRECTED BY ADDING THERETO BY REFERENCE THE FINDINGS AND CONCLUSIONS OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS, AND THE ACTION OF THE UNDERSIGNED THEREON.

"2. THAT ALL OF THE DEPARTMENT OF THE ARMY RECORDS OF DOYLE T. COOK, BE CORRECTED TO SHOW HIM RESTORED TO THE GRADE OF SERGEANT AS OF 14 FEBRUARY 1953, AND THAT HE BE REIMBURSED IN THE AMOUNT FORFEITED AS A RESULT OF THE SENTENCE OF THE SUMMARY COURT-MARTIAL ON 14 FEBRUARY 1953.

"3. THAT THE DEPARTMENT OF THE ARMY PAY TO DOYLE T. COOK, OR OTHER PROPER PERSON OR PERSONS, ALL MONEY FOUND TO BE DUE AS A RESULT OF HIS ERRONEOUS REDUCTION FROM SERGEANT TO CORPORAL, AND THE REPAYMENT OF THE FORFEITURES IMPOSED BY THE SUMMARY COURT-MARTIAL SENTENCE.'

YOU STATE THAT "PREVIOUS DECISIONS OF THE COMPTROLLER GENERAL HAVE HELD THAT WHERE THE CORRECTION OF THE RECORDS BY THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS DID NOT DELETE OR MODIFY THAT PORTION OF THE COURT- MARTIAL SENTENCE IMPOSING FORFEITURE OF PAY AND ALLOWANCES, THE INDIVIDUAL'S RIGHT TO SUCH PAY AND ALLOWANCES WOULD NOT BE AFFECTED AND HE WOULD NOT BE ENTITLED TO THE AMOUNTS SO FORFEITED," AND THAT "IN VIEW OF THESE PRIOR DECISIONS AND THE AMBIGUOUS WORDING OF THE MEMORANDUM FROM THE SECRETARY OF THE ARMY, DOUBT EXISTS AS TO THE PROPRIETY OF THE REPAYMENT OF THE FORFEITURE.'

IN OUR DECISION OF AUGUST 23, 1954, B-119423, 34 COMP. GEN. 93, IT APPEARED THAT PURSUANT TO A SPECIAL COURT-MARTIAL SENTENCE OF MARCH 2, 1944, AND A GENERAL COURT-MARTIAL SENTENCE OF MAY 11, 1944, THE ENLISTED MEMBER THERE INVOLVED WAS GIVEN A DISHONORABLE DISCHARGE AND ALL PAY AND ALLOWANCES ACCRUING TO HIS ACCOUNT AFTER FEBRUARY 1, 1944, WERE FORFEITED. THE SECRETARY'S MEMORANDUM OF MAY 21, 1948, TO THE ADJUTANT GENERAL DIRECTED THAT THE MEMBER'S MILITARY RECORD BE CORRECTED TO SHOW THAT HE HAD BEEN MEDICALLY SEPARATED FROM THE MILITARY SERVICE, IN LIEU OF DISHONORABLE DISCHARGE WHICH HAD BEEN PREVIOUSLY ISSUED. ON SEPTEMBER 5, 1952, THE SECRETARY ISSUED AN ADDITIONAL MEMORANDUM TO THE ADJUTANT GENERAL DIRECTING THAT THE DEPARTMENT OF THE ARMY PAY TO THE MEMBER ALL MONEY FOUND TO BE DUE AS THE RESULT OF THE CORRECTION OF THE MILITARY RECORD DIRECTED BY THE MEMORANDUM OF MAY 21, 1948, INCLUDING, BUT NOT LIMITED TO, PAY AND ALLOWANCES FORFEITED BY THE SPECIAL AND GENERAL COURT- MARTIAL SENTENCES. WHILE THE MEMORANDUM OF SEPTEMBER 5, 1952, DIRECTED PAYMENT OF THE FORFEITURE OF PAY AND ALLOWANCES, THE MEMORANDUM OF MAY 21, 1948, MERELY CORRECTED THE MEMBER'S MILITARY RECORDS AS INDICATED, NO REFERENCE BEING MADE TO THE COURT-MARTIAL SENTENCES IMPOSING FORFEITURE OF PAY AND ALLOWANCES.

IN THE PRESENT CASE, HOWEVER, THE SECRETARY'S MEMORANDUM TO THE ADJUTANT GENERAL DIRECTLY CONCERNED THE COURT-MARTIAL PROCEEDINGS HAD IN THE CASE AND EXPRESSLY DIRECTED THAT THE MEMBER'S MILITARY RECORDS "BE CORRECTED TO SHOW HIM RESTORED TO THE GRADE OF SERGEANT AS OF 14 FEBRUARY 1953, AND THAT HE BE REIMBURSED IN THE AMOUNT FORFEITURED AS A RESULT OF THE SENTENCE OF SUMMARY COURT-MARTIAL ON 14 FEBRUARY 1953.' THUS, THE ACTION TAKEN BY THE SECRETARY ON THE RECOMMENDATIONS OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS, IN EFFECT, REVERSED THE SENTENCE IMPOSED BY THE SPECIAL COURT MARTIAL AND THE MEMBER NOW IS ENTITLED TO THE DIFFERENCE BETWEEN THE PAY AND ALLOWANCES OF CORPORAL AND SERGEANT AND TO REFUND OF THE AMOUNT WHICH WAS FORFEITED BY SUCH COURT-MARTIAL SENTENCE.

ACCORDINGLY, PAYMENT ON THE VOUCHER PRESENTED, WHICH IS RETURNED, IS AUTHORIZED, IF CORRECT IN OTHER RESPECTS.