B-129029, OCT. 2, 1956

B-129029, OCT. 2, 1956

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF AUGUST 21, 1956, FROM THE JUDGE ADVOCATE GENERAL OF THE NAVY, FORWARDING A LETTER DATED JULY 16, 1956, FROM THE DISBURSING OFFICER, SPECIAL PAYMENTS DIVISION, U.S. NAVY FINANCE CENTER, WITH ENDORSEMENTS AND AN ENCLOSURE, IN WHICH A DECISION IS REQUESTED WHETHER CLARENCE H. SICLEY, SHIP'S SERVICEMAN, THIRD CLASS, IS ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR THE PERIOD FROM FEBRUARY 16 TO NOVEMBER 5, 1954, WHILE HELD BEYOND EXPIRATION OF HIS ENLISTMENT.

IT APPEARS THAT SICLEY'S ENLISTMENT CONTRACT TERMINATED ON FEBRUARY 15, 1954; THAT HE WAS NOT DISCHARGED, BUT WAS HELD FOR TRIAL BY COURT MARTIAL; THAT BY A GENERAL COURT-MARTIAL HELD ON JULY 1 AND 2, 1954, HE WAS FOUND GUILTY OF AN OFFENSE UNDER ARTICLE 121 OF THE UNIFORM CODE OF MILITARY JUSTICE (LARCENY AND WRONGFUL APPROPRIATION), NAMELY, THE OBTAINING FROM THE GOVERNMENT OF A SUM OF MONEY AS PURPORTED REIMBURSEMENT OF THE COST OF TRAVEL OF A DEPENDENT WHO ACTUALLY NEVER PERFORMED THE TRAVEL; THAT HE WAS SENTENCED TO A BAD-CONDUCT DISCHARGE; THAT ON JULY 27, 1954, THE CONVENING AUTHORITY APPROVED THE SENTENCE AND A BOARD OF REVIEW APPROVED THE FINDINGS AND SENTENCE ON OCTOBER 22, 1954.

IT FURTHER APPEARS THAT ON OCTOBER 28, 1954, THE ACCUSED RECEIPTED FOR A COPY OF THE BOARD'S DECISION AND REQUESTED AN IMMEDIATE DISCHARGE PURSUANT TO SECTION 0115 (CHANGE 4), NAVAL SUPPLEMENT 1951, MANUAL FOR COURTS- MARTIAL, 1951. ON NOVEMBER 5, 1954, THE BAD-CONDUCT DISCHARGE WAS EXECUTED. ALSO, IT APPEARS THAT SUBSEQUENTLY THE ACCUSED PETITIONED THE COURT OF MILITARY APPEALS FOR A REVIEW OF HIS CASE; THAT THE PETITION WAS GRANTED AND, AS A RESULT, THE COURT, ON SEPTEMBER 23, 1955, REVERSED THE BOARD OF REVIEW AND ORDERED A REHEARING (20 CMR 118). ON NOVEMBER 16, 1955, THE CHARGE AND SPECIFICATION OF WHICH SICLEY HAD BEEN FOUND GUILTY WERE DISMISSED BY THE CONVENING AUTHORITY PURSUANT TO ARTICLE 67 (F), UNIFORM CODE OF MILITARY JUSTICE, ON THE GROUND THAT A REHEARING WOULD BE IMPRACTICABLE. ON DECEMBER 14, 1955, SICLEY'S BAD-CONDUCT DISCHARGE WAS RETRACTED AND HE WAS AWARDED AN HONORABLE DISCHARGE DATED NOVEMBER 5, 1954. IT APPEARS THAT THE MONEY ERRONEOUSLY PAID TO SICLEY AS REIMBURSEMENT FOR ALLEGED COST OF TRAVEL HAS BEEN RECOVERED FROM HIM.

THE QUESTION PRESENTED IS WHETHER THE DISMISSAL BY THE CONVENING AUTHORITY OF THE CHARGE AND SPECIFICATION OF WHICH THE ENLISTED MAN HAD BEEN FOUND GUILTY BY THE COURT-MARTIAL CONSTITUTED AN ACQUITTAL WITHIN THE RULE APPEARING IN 30 COMP. GEN. 449.

CHANGE 4 TO SECTION 0115, NAVAL SUPPLEMENT, 1951, MANUAL FOR COURTS MARTIAL, 1951, STATES, IN PERTINENT PART, THAT AN ACCUSED MAY REQUEST IMMEDIATE EXECUTION OF A SENTENCE, AS AFFIRMED BY A BOARD OF REVIEW, WHICH INCLUDES AN UNSUSPENDED PUNITIVE DISCHARGE WITHOUT CONFINEMENT; THAT SUCH REQUEST MAY BE APPROVED IF THE ACCUSED DOES NOT HAVE AN APPEAL PENDING TO THE COURT OF MILITARY APPEALS AND DOES NOT INTEND TO MAKE SUCH AN APPEAL; BUT, NEVERTHELESS, THAT THE REQUEST FOR IMMEDIATE RELEASE DOES NOT AFFECT HIS RIGHT TO PETITION THE COURT OF MILITARY APPEALS.

ARTICLE 67 (F), UNIFORM CODE OF MILITARY JUSTICE, 64 STAT. 130, PROVIDES THAT:

"AFTER IT HAS ACTED ON A CASE, THE COURT OF MILITARY APPEALS MAY DIRECT THE JUDGE ADVOCATE GENERAL TO RETURN THE RECORD TO THE BOARD OF REVIEW FOR FURTHER REVIEW IN ACCORDANCE WITH THE DECISION OF THE COURT. OTHERWISE, UNLESS THERE IS TO BE FURTHER ACTION BY THE PRESIDENT, OR THE SECRETARY OF THE DEPARTMENT, THE JUDGE ADVOCATE GENERAL SHALL INSTRUCT THE CONVENING AUTHORITY TO TAKE ACTION IN ACCORDANCE WITH THAT DECISION. IF THE COURT HAS ORDERED A REHEARING, BUT THE CONVENING AUTHORITY FINDS A REHEARING IMPRACTICABLE, HE MAY DISMISS THE CHARGES.'

ARTICLE 75 (B), 64 STAT. 132, PROVIDES THAT:

"WHERE A PREVIOUSLY EXECUTED SENTENCE OF DISHONORABLE OR BAD-CONDUCT DISCHARGE IS NOT SUSTAINED ON A NEW TRIAL, THE SECRETARY OF THE DEPARTMENT SHALL SUBSTITUTE THEREFOR A FORM OF DISCHARGE AUTHORIZED FOR ADMINISTRATIVE ISSUANCE UNLESS THE ACCUSED IS TO SERVE OUT THE REMAINDER OF HIS ENLISTMENT.'

IN 30 COMP. GEN. 449, SUPRA, IT WAS SAID, AT PAGE 451, THAT THE PROVISIONS OF THE 16TH ARTICLE OF WAR AND OF SUBPARAGRAPH 19 (A), MANUAL FOR COURTS-MARTIAL, U.S. ARMY, 1949, DID NOT "REQUIRE ANY CHANGE IN THE RULE THAT THE PAY AND ALLOWANCES OF AN ENLISTED PERSON WHOSE TERM OF ENLISTMENT EXPIRES WHILE HE IS IN CONFINEMENT, AWAITING TRIAL BY COURT- MARTIAL, TERMINATE ON THE DATE OF THE EXPIRATION OF HIS TERM OF ENLISTMENT UNLESS HE IS ACQUITTED, IN WHICH EVENT PAY AND ALLOWANCES ACCRUE UNTIL HE IS DISCHARGED.'

ALTHOUGH SICLEY WAS NOT ACQUITTED AS A RESULT OF COURT-MARTIAL PROCEEDINGS, ADEQUATE AUTHORITY APPEARS IN ARTICLE 67 (F) OF THE UNIFORM CODE OF MILITARY JUSTICE, SUPRA, FOR DISMISSAL OF THE CHARGES AND SPECIFICATIONS BY THE CONVENING AUTHORITY, AND FOR PRACTICAL PURPOSES HIS STATUS THEREAFTER IS NO DIFFERENT RESPECTING HIS GUILT OR INNOCENCE THAN HAD THERE BEEN A SUBSEQUENT TRIAL WHICH RESULTED IN DISMISSAL OR A FINDING OF NOT GUILTY.

IN THE CIRCUMSTANCES, SICLEY IS ENTITLED TO THE ACTIVE DUTY PAY AND ALLOWANCES OF HIS GRADE TO THE DATE OF HIS DISCHARGE FROM THE NAVAL SERVICE.