B-130041, FEBRUARY 4, 1957, 36 COMP. GEN. 564

B-130041, FEBRUARY 4, 1957, 36 COMP. GEN. 564

MILITARY PERSONNEL - PAY - AFTER EXPIRATION OF ENLISTMENT - COURT MARTIAL SENTENCE - APPELLATE REVIEW AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHOSE ENLISTMENT EXPIRED DURING THE PERIOD HE WAS ORDERED TO RESUME REGULAR DUTIES PENDING APPELLATE REVIEW OF THAT PORTION OF A GENERAL COURT-MARTIAL WHICH PROVIDED A BAD CONDUCT DISCHARGE IS ENTITLED TO PAY AND ALLOWANCES UNTIL THE TERMINATION OF THE DUTY STATUS.

TO CAPTAIN L. W. HOPKINS, UNITED STATES MARINE CORPS, FEBRUARY 4, 1957:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 8, 1956, WITH ENCLOSURES, TRANSMITTED HERE BY FIRST ENDORSEMENT DATED DECEMBER 6, 1956, OF THE COMMANDANT OF THE MARINE CORPS, REQUESTING DECISION AS TO WHETHER PRIVATE JACK M. COPELAND, UNITED STATES MARINE CORPS, IS ENTITLED TO PAY AND ALLOWANCES ON AND AFTER SEPTEMBER 28, 1956, UNDER THE CIRCUMSTANCES APPEARING IN THE CASE.

IT APPEARS THAT ON JULY 5, 1956, THE ENLISTED MAN WAS FOUND GUILTY BY GENERAL COURT-MARTIAL AND WAS SENTENCED " TO BE DISCHARGED FROM THE SERVICE WITH A BAD CONDUCT DISCHARGE, TO FORFEIT ALL PAY AND ALLOWANCES, TO BE CONFINED AT HARD LABOR FOR TWO YEARS, AND TO BE REDUCED TO THE GRADE OF PRIVATE.' ON AUGUST 21, 1956, THE CONVENING AUTHORITY APPROVED ONLY SO MUCH OF THE SENTENCE AS PROVIDED FOR BAD CONDUCT DISCHARGE AND REDUCTION TO THE GRADE OF PRIVATE, BUT THE EXECUTION OF THE BAD CONDUCT DISCHARGE WAS SUSPENDED UNTIL COMPLETION OF APPELLATE REVIEW. PENDING COMPLETION OF THE APPELLATE REVIEW THE ENLISTED MAN WAS TO BE RETAINED IN THE 2D MARINE AIRCRAFT WING. UNDER ORDERS DATED AUGUST 22, 1956, FROM THE COMMANDING GENERAL, 2D MARINE AIRCRAFT WING, PRIVATE COPELAND WAS ORDERED TO PROCEED TO NEW RIVER, NORTH CAROLINA, REPORTING UPON ARRIVAL TO THE COMMANDING OFFICER, MARINE AIRCRAFT GROUP-26, FOR ASSIGNMENT. BY ENDORSEMENT TO THIS ORDER DATED AUGUST 29, 1956, COPELAND WAS ORDERED TO RESUME HIS "REGULAR DUTIES.'

THE ENLISTED MAN HAD REENLISTED IN THE UNITED STATES MARINE CORPS ON SEPTEMBER 28, 1950, FOR A PERIOD OF SIX YEARS, HIS ENLISTMENT EXPIRING ON SEPTEMBER 27, 1956.

WHERE, AS IN THIS CASE, THERE IS A RESTORATION TO REGULAR DUTY NOTWITHSTANDING THE SENTENCE BY A COURT-MARTIAL TO A BAD CONDUCT DISCHARGE, THE ENLISTED MAN IS ENTITLED TO PAY WHILE PERFORMING DUTY, PENDING DISPOSITION OF THE APPELLATE REVIEW, EVEN THOUGH, UPON APPELLATE REVIEW, THE SENTENCE OF BAD CONDUCT DISCHARGE IS ORDERED EXECUTED. SEE DECISION OF DECEMBER 30, 1953, 33 COMP. GEN. 281. ACCORDINGLY, PRIVATE COPELAND MAY BE PAID PAY AND ALLOWANCES SUBSEQUENT TO SEPTEMBER 27, 1956, THE DATE OF EXPIRATION OF HIS ENLISTMENT, TO THE DATE OF TERMINATION OF HIS DUTY STATUS.

IN THE ENDORSEMENT OF THE COMMANDANT OF THE MARINE CORPS IT IS STATED THAT OUR DECISIONS OF MAY 14, 1951, 30 COMP. GEN. 449; DECEMBER 30, 1953, 33 COMP. GEN. 281; JANUARY 30, 1953, B-113109; AND NOVEMBER 30, 1955, B- 124309, APPEAR TO RESULT IN ANOMALIES AND INEQUITIES IN THAT ALTHOUGH THE GOVERNMENT MAY RECEIVE THE BENEFIT OF SERVICE FROM MEMBERS WHO ARE RETAINED IN A DISCIPLINARY STATUS AFTER EXPIRATION OF THEIR ENLISTMENTS, CERTAIN MEMBERS RECEIVE PAY AND OTHERS ARE DENIED PAY.

IT SEEMS APPROPRIATE TO STATE THAT WHERE THE MEMBER HAS BEEN PAID, IN THE CIRCUMSTANCES DESCRIBED, HE HAS BEEN CONSIDERED TO HAVE BEEN IN A DUTY STATUS. IN SIMILAR CASES, WHERE THE MEMBER HAS NOT BEEN RESTORED TO DUTY OR OTHERWISE CONSIDERED IN A DUTY STATUS AFTER EXPIRATION OF HIS ENLISTMENT, AUTHORITY TO PAY HIM HAS NOT BEEN GRANTED.