B-124802, AUG. 26, 1955

TO MRS. NELLIE D. HENRY:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 4, 1955, CONCERNING THE CLAIM OF YOU AND YOUR HUSBAND FOR ARREARS OF PAY AND THE SIX MONTHS' DEATH GRATUITY BELIEVED TO BE DUE IN THE CASE OF YOUR LATE SON, DAVID J. HENRY, INCIDENT TO HIS SERVICE AS AN ENLISTED MAN, UNITED STATES ARMY. THERE ALSO HAVE BEEN RECEIVED A LETTER DATED JULY 20, 1955, AND ENCLOSURES, FROM THE HONORABLE JOHN L. MCCLELLAN, UNITED STATES SENATE, RELATIVE TO THE MATTER.

THE RECORDS SHOW THAT YOUR SON ENLISTED IN THE ARMY ON APRIL 7, 1941, AND THAT HE WAS ABSENT WITHOUT LEAVE FROM SEPTEMBER 6 TO 8, 1941. HE AGAIN ABSENTED HIMSELF ON SEPTEMBER 12, 1941, AND TURNED IN TO THE STATE HOSPITAL, LITTLE ROCK, ARKANSAS, ON SEPTEMBER 16, 1941. HE REMAINED IN THE STATE HOSPITAL UNTIL DECEMBER 23, 1941, WHEN HE WAS PAROLED TO HIS OWN CUSTODY FOR THE DURATION OF THE CHRISTMAS HOLIDAYS. HE FAILED TO RETURN TO THE STATE HOSPITAL AND WAS CARRIED AS ABSENT WITHOUT LEAVE BY STATION HOSPITAL, CAMP JOSEPH T. ROBINSON, ARKANSAS, EFFECTIVE JANUARY 1, 1942. HE DIED ON JUNE 20, 1943, BY SELF-DESTRUCTION. ON JANUARY 27, 1955, THERE WAS RECEIVED IN OUR CLAIMS DIVISION FROM THE DEPARTMENT OF THE ARMY THE CLAIM OF YOU AND YOUR HUSBAND FOR PAY BELIEVED TO BE DUE THE DECEDENT FROM SEPTEMBER 1, 1941, THROUGH JUNE 20, 1943, AND FOR THE SIX MONTHS' DEATH GRATUITY. ACCOMPANYING THE CLAIM WAS A REPORT OF DEATH OF THE DECEDENT DATED OCTOBER 15, 1954, SHOWING THAT HE DIED WHILE MENTALLY UNSOUND. THE REPORT OF DEATH AND A FURTHER REPORT DATED JUNE 24, 1955, FROM THE DEPARTMENT OF THE ARMY ALSO SHOW THAT ALL CHARGES OF ABSENCE WITHOUT LEAVE HAVE BEEN ADMINISTRATIVELY REMOVED BY THE SECRETARY OF THE ARMY DUE TO THE MENTAL UNSOUNDNESS OF THE DECEDENT, AND THAT HIS DEATH OCCURRED NOT IN LINE OF DUTY, AND NOT DUE TO HIS OWN MISCONDUCT. THE CLAIM OF YOU AND YOUR HUSBAND WAS DENIED BY LETTER DATED MARCH 8, 1955, OF THE CLAIMS DIVISION FOR THE REASON THAT IT WAS NOT RECEIVED HERE WITHIN TEN YEARS SUBSEQUENT TO THE DEATH OF THE DECEDENT AS REQUIRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061.

IN YOUR LETTER OF APRIL 4, 1955, YOU QUOTE A LETTER DATED OCTOBER 29, 1954, TO YOU FROM THE SETTLEMENTS DIVISION, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, STATING, IN PART, THAT A FINAL REPORT OF DEATH HAD BEEN RECEIVED IN THE CASE OF YOUR SON CHANGING HIS STATUS FROM "AWOL TO DUTY AT TIME OF DEATH, THEREFORE, THE SIX MONTHS' GRATUITY AND ARREARS OF PAY ARE NOW PAYABLE.' YOU URGE THAT THE CLAIM BE ALLOWED ON THE BASIS THAT THE RIGHT TO PAYMENT DID NOT ACCRUE UNTIL OCTOBER 29, 1954, OR UNTIL THE CHARGE OF ABSENCE WITHOUT LEAVE WAS ADMINISTRATIVELY REMOVED.

CONTRARY TO THE ABOVE-QUOTED STATEMENT, BOTH THE REPORT OF DEATH AND THE REPORT DATED JUNE 24, 1955, FROM THE OFFICE OF THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, SHOW THAT YOUR SON'S DEATH DID NOT OCCUR IN LINE OF DUTY, HE BEING ABSENT FROM DUTY AT THAT TIME. THE ADMINISTRATIVE ACTION IN REMOVING FROM THE DECEDENT'S RECORD THE CHARGE OF ABSENCE WITHOUT LEAVE MERELY CONSTITUTED AN ADMINISTRATIVE DETERMINATION THAT, BECAUSE OF HIS MENTAL CONDITION, HE WAS NOT CRIMINALLY RESPONSIBLE FOR SUCH UNAUTHORIZED ABSENCE. THE REMOVAL OF SUCH CHARGE, HOWEVER, DID NOT OPERATE TO PLACE HIM IN A DUTY STATUS DURING THE PERIOD OF UNAUTHORIZED ABSENCE.

WHILE THE MENTAL CONDITION OF AN ENLISTED MAN DURING UNAUTHORIZED ABSENCES MAY HAVE BEEN SUCH AS TO ABSOLVE HIM FROM TRIAL AND PUNISHMENT BY COURT-MARTIAL FOR CRIMINAL RESPONSIBILITY, IT HAS BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT UNDER THE LAWS IN EFFECT AT THE TIME HERE INVOLVED HE IS NOT ENTITLED TO PAY FOR SUCH UNAUTHORIZED ABSENCES UNDER SUCH CIRCUMSTANCES. THE ESTABLISHED RULE IS THAT THE LAW GIVES NO RIGHT TO PAY FOR ANY PERIOD OF TIME DURING WHICH AN ENLISTED MAN IS ABSENT WITHOUT PROPER AUTHORITY WHETHER UNDER CONDITIONS OF RESPONSIBILITY OR IRRESPONSIBILITY. A MAN'S RIGHT TO PAY IS CONTINGENT UPON THE PERFORMANCE OF SERVICE AND DURING SUCH AN ABSENCE PAY DOES NOT ACCRUE BECAUSE, BY BEING ABSENT WITHOUT PROPER AUTHORITY, HE FAILS TO RENDER SERVICE DURING SUCH PERIOD. 4 COMP. GEN. 750; 7 ID. 812. CONSEQUENTLY, IRRESPECTIVE OF THE PROVISIONS OF THE ACT OF OCTOBER 9, 1940, NO PAY ACCRUED TO YOUR LATE SON DURING THE PERIODS OF HIS UNAUTHORIZED ABSENCES, THAT IS, FROM SEPTEMBER 6 TO 8, 1941, AND SEPTEMBER 12, 1941, TO JUNE 20, 1943.

IN OUR DECISION DATED NOVEMBER 12, 1947, 27 COMP. GEN. 269, TO THE SECRETARY OF THE NAVY, IT WAS HELD, QUOTING THE SYLLABUS, THAT:

"THE SIX MONTHS' DEATH GRATUITY AUTHORIZED TO BE PAID BY THE ACT OF JUNE 4, 1920, AS AMENDED, UPON A NAVY ENLISTED MAN'S DEATH AT THE RATE OF PAY RECEIVED AT THE DATE OF DEATH, IS NOT PAYABLE IN THE CASE OF AN ENLISTED MAN WHO COMMITTED SUICIDE WHILE IN A DESERTER STATUS WHEN HE WAS NOT RECEIVING OR ENTITLED TO PAY, NOTWITHSTANDING THE OPINION OF THE BUREAU OF MEDICINE AND SURGERY THAT SUCH MAN WAS INSANE FROM THE TIME HE COMMENCED HIS UNAUTHORIZED ABSENCE TO THE DATE OF ATH.'

THE RULING IN THE DECISION OF NOVEMBER 12, 1947, IS EQUALLY APPLICABLE TO ENLISTED MEN OF THE ARMY. SINCE YOUR SON WAS IN A NONPAY STATUS AT THE TIME OF HIS DEATH, PAYMENT OF THE CLAIM FOR SIX MONTH'S DEATH GRATUITY IS NOT AUTHORIZED.

REGARDING PAY FOR THE PERIODS SEPTEMBER 1 TO 5, 1941, AND SEPTEMBER 9 TO 11, 1941, THE RECORDS SHOW THAT DURING THOSE PERIODS PAY EARNED BY YOUR SON TOTALED $13.20. THE ADMINISTRATIVE REMOVAL OF THE CHARGES OF ABSENCE WITHOUT LEAVE HAD NO BEARING UPON, AND DID NOT AFFECT, THE PAY FOR THOSE PERIODS. ACCORDINGLY, SINCE CLAIM FOR SUCH PAY WAS NOT RECEIVED HERE UNTIL JANUARY 27, 1955, LONG AFTER THE EXPIRATION OF THE TEN-YEAR PERIOD PRESCRIBED BY THE ACT OF OCTOBER 9, 1940, THE ALLOWANCE OF YOUR CLAIM FOR THE PAY FOR THE PERIODS SEPTEMBER 1 TO 5, 1941, AND SEPTEMBER 9 TO 11, 1941, IS NOT AUTHORIZED.