B-124309, NOV. 30, 1955

B-124309, NOV. 30, 1955

TO CAPTAIN C. L. POST, JR., USMC, DISBURSING OFFICER, HEADQUARTERS, UNITED STATES MARINE CORPS:

THERE WAS RECEIVED BY FIRST INDORSEMENT DATED JUNE 7, 1955, OF THE COMMANDANT OF THE MARINE CORPS, YOUR LETTER OF MAY 22, 1955, WITH ENCLOSURES, REQUESTING DECISION WHETHER OR NOT SERGEANT QUINTEN P. JENKINS, 1178976, U.S. MARINE CORPS, IS ENTITLED TO PAY AND ALLOWANCES ON AND AFTER MAY 23, 1955, UNDER THE CIRCUMSTANCES APPEARING IN THE CASE.

IT APPEARS THAT ON JANUARY 17, 1955, THE ENLISTED MAN WAS CONVICTED OF A CRIME AGAINST THE LAWS OF JAPAN AND WAS SENTENCED TO EIGHT YEARS IN PRISON, BUT THAT THE SENTENCE WAS SUSPENDED PENDING THE RESULTS OF AN APPEAL TO COMMENCE MAY 24, 1955. IT IS STATED THAT HE REMAINED IN THE CUSTODY OF THE UNITED STATES FORCES IN A DUTY STATUS FROM THE DATE HE WAS ACCUSED OF THE CRIME, TO THE PRESENT TIME; THAT PAY AND ALLOWANCES WERE PAID TO HIM THROUGH MAY 22, 1955, DATE OF EXPIRATION OF HIS TERM OF ENLISTMENT; AND THAT THE COMMANDANT OF THE MARINE CORPS AUTHORIZED HIS RETENTION IN THE SERVICE AFTER THE EXPIRATION OF HIS ENLISTMENT, PENDING THE RESULTS OF HIS APPEAL. IT IS STATED FURTHER THAT HIS RETENTION IN THE SERVICE WAS FOR THE CONVENIENCE OF THE GOVERNMENT.

THE PURPOSE OF SECNAV INSTRUCTION NO. 1640.3, JANUARY 31, 1955, ENTITLED: "TREATMENT AND DISPOSITION OF UNITED STATES MILITARY PERSONNEL CONFINED IN FOREIGN PENAL INSTITUTIONS," WAS TO IMPLEMENT A POLICY OF THE DEPARTMENT OF DEFENSE SEEKING TO ASSURE, INSOFAR AS PRACTICABLE AND SUBJECT TO THE LAWS AND REGULATIONS OF THE COUNTRY CONCERNED AND THE PROVISIONS OF ANY AGREEMENTS THEREWITH, THAT MEMBERS OF THE ARMED FORCES OF THE UNITED STATES CONFINED IN FOREIGN PENAL INSTITUTIONS ARE ACCORDED THE SAME TREATMENT AND ARE ENTITLED TO ALL THE RIGHTS, PRIVILEGES AND PROTECTION AUTHORIZED BY SERVICE DIRECTIVES AND MANUALS FOR SUCH PERSONNEL CONFINED IN UNITED STATES MILITARY FACILITIES. AS AN AID TO THAT END IT IS DIRECTED IN PARAGRAPH 5 OF SUCH INSTRUCTION THAT:

"* * * THE ADMINISTRATIVE DISCHARGE OR SEPARATION OF MEMBERS OF THE ARMED FORCES CONVICTED BY FOREIGN TRIBUNALS SHALL NORMALLY BE EFFECTED IN THE UNITED STATES. THE SEPARATION OF SUCH PERSONNEL OUTSIDE THE UNITED STATES MAY BE ACCOMPLISHED IN INDIVIDUAL CASES ONLY WITH THE APPROVAL OF THE CHIEF OF NAVAL PERSONNEL OR THE COMMANDANT OF MARINE CORPS AS APPROPRIATE.'

THERE ARE OBVIOUSLY VALID CONSIDERATIONS OF PUBLIC POLICY IN SUPPORT OF THIS DIRECTIVE, CONTEMPLATING TEMPORARY RETENTION OF MEMBERS IN THE MILITARY SERVICE IN THE INTERESTS OF THE GOVERNMENT, AND WHERE, AS HERE, AN ENLISTED MAN, WITH HIS CONSENT, IS RETAINED IN THE SERVICE IN A DUTY STATUS FOR THE CONVENIENCE OF THE GOVERNMENT AFTER EXPIRATION OF HIS TERM OF ENLISTMENT AND THE GOVERNMENT RECEIVES THE BENEFIT OF SUCH SERVICE, PENDING THE RESULTS OF AN APPEAL, IT MAY BE REGARDED AS A TEMPORARY EXTENSION OF HIS ENLISTMENT CONTRACT AND HE MAY BE PAID THE PAY AND ALLOWANCES OF HIS GRADE UNTIL HIS DUTY STATUS ENDS.

SERGEANT JENKINS MAY BE PAID ACCORDINGLY FOR THE PERIOD SERVED AFTER MAY 22, 1955, IF HE IS OTHERWISE ENTITLED TO PAYMENT.