B-131232, APR. 24, 1957

B-131232, APR. 24, 1957

TO MR. CYRUS B. HANNAH:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 27, 1957, AND PRIOR CORRESPONDENCE CONCERNING YOUR CLAIM FOR PAY AND ALLOWANCES DURING THE PERIOD DECEMBER 3, 1954, TO APRIL 5, 1956, AS A BASIC AIRMAN, U.S. AIR FORCE.

IT APPEARS THAT WHILE YOU WERE A PATIENT IN THE PSYCHIATRIC SECTION OF THE 3650TH U.S. AIR FORCE HOSPITAL, SAMPSON AIR FORCE BASE, NEW YORK, RECEIVING TREATMENT FOR A MENTAL ILLNESS--- IT IS STATED THAT YOU WERE CONSIDERED TO BE MENTALLY COMPETENT--- WITH SCHEDULED DATE OF DISCHARGE FROM THE SERVICE ON OR ABOUT DECEMBER 7, 1954, YOU WERE TAKEN INTO CUSTODY BY THE CIVILIAN AUTHORITIES ON DECEMBER 1, 1954, AND CHARGED WITH THE COMMISSION OF A CRIME AT THE HOSPITAL. THE RECORD SHOWS THAT YOU WERE INDICTED BY A GRAND JURY, BUT THE CHARGES WERE DROPPED AND YOU WERE COMMITTED TO THE BUFFALO STATE HOSPITAL, BUFFALO, NEW YORK, WHERE YOU REMAINED UNTIL YOU WERE TRANSFERRED TO THE VETERANS ADMINISTRATION HOSPITAL, CANANDAIGUA, NEW YORK, ON OCTOBER 18, 1955; AND THAT YOU WERE RETURNED TO THE SAMPSON AIR FORCE BASE HOSPITAL ON JANUARY 17, 1956.

BY ORDERS ISSUED AT THE LATTER HOSPITAL UNDER DATE OF FEBRUARY 18, 1956, YOU WERE DIRECTED TO PROCEED TO YOUR PRESENT ADDRESS AND REMAIN THERE TO AWAIT FURTHER ORDERS IN CONNECTION WITH PHYSICAL EVALUATION BOARD PROCEEDINGS, CREDITABLE LEAVE TO BE CHARGED AGAINST THE PERIOD WHILE AWAITING ORDERS. IT IS REPORTED THAT YOU WERE DISCHARGED ON APRIL 5, 1956, FOR PHYSICAL DISABILITY UNDER THE PROVISIONS OF THE LAST PROVISO OF SECTION 402 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 817, AND ENTITLED TO SEVERANCE PAY AS PROVIDED IN SECTION 403 OF THAT ACT, IT APPEARING THAT YOU HAD LESS THAN 8 YEARS OF ACTIVE SERVICE AS DEFINED IN SECTION 412 OF THE ACT. THE DATE OF NORMAL EXPIRATION OF YOUR TERM OF ENLISTMENT WAS JULY 24, 1955. THE RECORD SHOWS THAT YOUR ABSENCE FOR THE PERIOD DECEMBER 1, 1954, THROUGH JANUARY 16, 1956, WAS EXCUSED AS UNAVOIDABLE AND THAT YOU WERE RETAINED IN THE SERVICE 251 DAYS FOR THE CONVENIENCE OF THE GOVERNMENT.

WHILE YOU PERFORMED NO MILITARY DUTY AND WERE NOT IN THE DIRECT CUSTODY OF THE AIR FORCE FOR A PERIOD OF OVER A YEAR, SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS ADDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, DOES NOT REQUIRE FORFEITURE OF PAY AND ALLOWANCES WHEN A MEMBER IS ABSENT WITHOUT LEAVE IF SUCH ABSENCE IS "EXCUSED AS UNAVOIDABLE.' THE RECORD SHOWS THAT YOUR ABSENCE DURING THE PERIOD INVOLVED HAS BEEN EXCUSED AS UNAVOIDABLE.

ALTHOUGH YOUR TERM OF ENLISTMENT HAD EXPIRED DURING YOUR ABSENCE FROM MILITARY CUSTODY, PAY AND ALLOWANCES ACCRUE TO AN ENLISTED MAN AFTER EXPIRATION OF ENLISTMENT IF HE IS HELD IN THE SERVICE FOR THE CONVENIENCE OF THE GOVERNMENT OR IS RETAINED WITH HIS CONSENT FOR MEDICAL CARE OR HOSPITALIZATION UNDER THE ACT OF DECEMBER 12, 1941, 55 STAT. 797. COMP. GEN. 449; 35 COMP. GEN. 366. AT THE TIME YOUR ENLISTMENT HAD EXPIRED, IT APPEARS THAT YOU WERE RECEIVING TREATMENT FOR THE SAME MENTAL ILLNESS WHICH RESULTED IN YOUR EARLIER HOSPITALIZATION AT THE SAMPSON AIR FORCE BASE HOSPITAL AND SUBSEQUENT DISCHARGE FROM THE SERVICE WITH SEVERANCE PAY, AND WHILE YOU THEN WERE RECEIVING TREATMENT IN A STATE HOSPITAL AND LATER WERE TRANSFERRED TO A VETERANS ADMINISTRATION HOSPITAL, IT IS REASONABLE TO ASSUME THAT THE AIR FORCE WAS FULLY AWARE OF YOUR ILLNESS AND AT LEAST CONSTRUCTIVELY CONSENTED TO YOUR TREATMENT IN THOSE INSTITUTIONS. IN THE CIRCUMSTANCES, IT APPEARS PROPER TO REGARD YOU AS HAVING BEEN RETAINED IN THE CONSTRUCTIVE CUSTODY OF THE AIR FORCE AFTER EXPIRATION OF YOUR ENLISTMENT FOR THE PURPOSE OF RECEIVING MEDICAL CARE AND HOSPITALIZATION FOR A DISEASE INCIDENT TO SERVICE, NOT BECAUSE OF MISCONDUCT, WITHIN THE MEANING OF THE ACT OF DECEMBER 12, 1941, FOR THE PERIOD JULY 25, 1955, TO FEBRUARY 13, 1956.

ACCORDINGLY, YOU ARE ENTITLED TO PAY AND ALLOWANCES FROM THE TIME WHEN YOU WERE LAST PAID TO FEBRUARY 13, 1956, AND THEREAFTER TO APRIL 5, 1956, WHILE YOU WERE IN AN AWAITING ORDERS STATUS IN CONNECTION WITH PHYSICAL EVALUATION PROCEEDINGS AS AUTHORIZED IN SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED. ALSO, YOU ARE ENTITLED TO COUNT SUCH PERIODS IN THE COMPUTATION OF YOUR ACCRUED LEAVE AND SEVERANCE PAY. INASMUCH AS YOU HELD THE GRADE OF BASIC AIRMAN AT THE TIME OF DISCHARGE AND SINCE IT HAS BEEN DETERMINED BY THE SECRETARY OF THE AIR FORCE THAT YOU DID NOT SATISFACTORILY SERVE IN ANY HIGHER GRADE, YOUR SEVERANCE PAY IS FOR COMPUTATION ON THE BASIS OF THE GRADE HELD AT TIME OF DISCHARGE.

A SETTLEMENT ALLOWING THE PROPER AMOUNT FOUND DUE ON THE BASIS INDICATED ABOVE WILL ISSUE IN DUE COURSE.