B-138586, MAR 19, 1959

B-138586, MAR 19, 1959

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL J. L. WHIPPLE, DEPARTMENT OF THE ARMY:

YOUR REQUEST FOR ADVANCE DECISION FORWARDED HERE UNDER D. O. NUMBER 394, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTS DECISION ON SEVERAL QUESTIONS REGARDING THE SETTLEMENT OF FIRST LIEUTENANT ROBERT P. BLOCK'S PAY ACCOUNT UNDER THE CIRCUMSTANCES INDICATED.

IT IS REPORTED THAT LIEUTENANT BLOCK, 01 935 302, SERVED AS AN ENLISTED MEMBER FROM SEPTEMBER 3, 1948, TO AUGUST 14, 1952, AND RECEIVED HIS COMMISSION AS SECOND LIEUTENANT, U.S. ARMY, ON AUGUST 15, 1952. HE WAS IN AN ABSENT WITHOUT LEAVE STATUS FROM AUGUST 18, 1956, UNTIL HIS RETURN TO MILITARY CONTROL, MAY 8, 1958, AND WAS SUBSEQUENTLY TRIED BY GENERAL COURT -MARTIAL AND SENTENCED BY GENERAL COURT-MARTIAL ORDER 76, HEADQUARTERS, SIXTH UNITED STATES ARMY, PRESIDIO OF SAN FRANCISCO, CALIFORNIA, DATED OCTOBER 9, 1958, TO BE DISMISSED FROM THE SERVICE, TO FORFEIT ALL PAY AND ALLOWANCES BECOMING DUE ON AND AFTER THAT DATE, AND TO BE CONFINED AT HARD LABOR FOR FIVE YEARS. DURING HIS ABSENCE, LIEUTENANT BLOCK WAS NOT DROPPED FROM THE ROLLS OF THE ARMY BY THE PRESIDENT, BUT THE PAY RECORD CLOSED AT ABSENCE INDICATES "DROPPED FROM ROLLS AS A DESERTER IN ACCORDANCE WITH AR-630-10, 16 SEP 56, A5071" AND "DUE OFFICER AT ABSENCE, $205.11, A5053." IT IS STATED THAT THE OFFICER'S CATEGORY WOULD HAVE EXPIRED ON FEBRUARY 28, 1957, HAD HE REMAINED IN A DUTY STATUS.

YOUR QUESTIONS ARE AS FOLLOWS:

"A. IF AN OFFICER IS RETURNED TO MILITARY CONTROL FROM EXTENDED AWOL STATUS, AND HIS CATEGORY WOULD HAVE EXPIRED DURING THE PERIOD OF AWOL, DO PAY AND ALLOWANCES ACCRUE FROM DATE OF RETURN TO MILITARY CONTROL?

"B. IF AN OFFICER IS RETURNED TO MILITARY CONTROL FROM EXTENDED AWOL STATUS AND WAS NEVER ADMINISTRATIVELY DROPPED FROM ROLLS, DO PAY AND ALLOWANCES ACCRUE FROM DATE OF RETURN TO MILITARY CONTROL?

"C. IS OFFICER ENTITLED TO PAY AND ALLOWANCES DUE ON ABSENCE ($205.11) AS INDICATED ON PHOTOSTATIC COPY OF MILITARY PAY RECORD CLOSED 17 AUGUST 1956?"

AFTER JULY 9, 1952, ALL APPOINTMENTS OF RESERVE OFFICERS ARE MADE BY THE PRESIDENT, CONTINUE FOR AN INDEFINITE TERM, AND ARE HELD DURING THE PLEASURE OF THE PRESIDENT. SEE SECTIONS 219, 221 AND 224, ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 487. SEE ALSO, 10 U.S.C. 593, AS ENACTED AUGUST 10, 1956, 70A STAT. 25, WHICH SUPERSEDED THESE SECTIONS. THE AUTHORITY TO DISMISS OR DISCHARGE RESERVE COMMISSIONED OFFICERS IS FOUND IN SECTIONS 1161, 1162, AND 1163 OF TITLE 10 OF THE UNITED STATES CODE, 70A STAT. 89. THE PERTINENT PROVISIONS ARE AS FOLLOWS:

"SECTION 1161. (B) THE PRESIDENT MAY DROP FROM THE ROLLS OF ANY ARMED FORCE ANY COMMISSIONED OFFICER (1) WHO HAS BEEN ABSENT WITHOUT AUTHORITY FOR AT LEAST THREE MONTHS ***.

"SECTION 1163. (A) AN OFFICER OF A RESERVE COMPONENT WHO HAS AT LEAST THREE YEARS OF SERVICE AS A COMMISSIONED OFFICER MAY NOT BE SEPARATED FROM THAT COMPONENT WITHOUT HIS CONSENT EXCEPT UNDER AN APPROVED RECOMMENDATION OF A BOARD OF OFFICERS CONVENED BY AN AUTHORITY DESIGNATED BY THE SECRETARY CONCERNED, OR BY THE APPROVED SENTENCE OF A COURT-MARTIAL. THIS SUBSECTION DOES NOT APPLY TO A SEPARATION UNDER SUBSECTION (B) OF THIS SECTION ***"

"(B) THE PRESIDENT OR THE SECRETARY CONCERNED MAY DROP FROM THE ROLLS OF THE ARMED FORCE CONCERNED ANY RESERVE (1) WHO HAS BEEN ABSENT WITHOUT AUTHORITY FOR AT LEAST THREE MONTHS ***."

10 U.S.C. 3633 PROVIDES:

"A COMMISSIONED OFFICER OF THE ARMY WHO IS DROPPED FROM THE ROLLS UNDER SECTION 1161(B) OF THIS TITLE FOR ABSENCE WITHOUT AUTHORITY FOR THREE MONTHS FORFEITS ALL PAY DUE OR TO BECOME DUE."

THE RECORD INDICATES THAT DESPITE THE LONG ABSENCE FROM MILITARY CONTROL, LIEUTENANT BLOCK WAS NOT DROPPED FROM THE ROLLS OF THE ARMY BY THE PRESIDENT OR THE SECRETARY OF THE ARMY. THE FACT THAT THE PAY RECORD CLOSED AT THE BEGINNING OF HIS ABSENCE, AUGUST 18, 1956, CONTAINED A NOTATION THAT HE WAS DROPPED FROM THE ROLLS AS A DESERTER IN ACCORDANCE WITH ARMY REGULATIONS 630-10, DID NOT AFFECT HIS STATUS, INASMUCH AS IT WAS STATED IN PARAGRAPH 1A OF THE REGULATIONS THAT THE PHRASE IS AN EXPRESSION OF AN ACCOUNTING PROCEDURE INVOLVING A COINCIDENT ADMINISTRATIVE DETERMINATION OF DESERTION, BUT WHICH DOES NOT EFFECT THE INDIVIDUAL'S SEPARATION FROM THE SERVICE.

SPECIAL REGULATIONS 135-215-5, DATED MAY 26, 1953, DEFINES THE WORD "CATEGORIES" AS CLASSIFICATIONS OF RESERVE OFFICERS ON EXTENDED ACTIVE DUTY, BASED UPON THE DURATION OF THE PERIODS OF SERVICE FOR WHICH THEY HAVE VOLUNTEERED OR ARE OBLIGATED. THESE CATEGORIES WERE SET UP FOR THE PURPOSES OF PERSONNEL ACCOUNTING AND DO NOT REPRESENT ANY DEFINITE TENURE OF ACTIVE SERVICE WHICH WOULD AFFECT AN OFFICER'S RIGHT TO PAY AND ALLOWANCES IF HELD BEYOND THE PERIOD IN WHICH HE HAD AGREED TO OR WAS REQUIRED TO BE ON ACTIVE DUTY.

IT HAS BEEN HELD IN THE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY, AS CITED IN 4 DIG OPS, PAY AND ALLOWANCES, SECTION 18.21, THAT -

"A RESERVE OFFICER HELD ON ACTIVE DUTY BEYOND THE DATE ON WHICH HE WOULD NORMALLY HAVE REVERTED TO AN INACTIVE STATUS PENDING THE OUTCOME OF A TRIAL BY COURT-MARTIAL IS ENTITLED TO PAY AND ALLOWANCES UNTIL THE DATE HE IS ACTUALLY RELIEVED FROM ACTIVE DUTY. (CITING SEC 241, ARMED FORCES RESERVE ACT OF 1952 (66 STAT. 492, 50 U.S.C. 972); MCM, 1951, SUBPAR 11D; JAGA 1954/1399, 29 JAN 1954.) JAGA 1954/7739. 14 SEPTEMBER 1954."

SEE ALSO, GENERALLY, PARAGRAPH 10-72B(1)(A) ARMY REGULATIONS 37-104, DATED DECEMBER 2, 1957. ACCORDINGLY, QUESTIONS (A) AND (B) ARE ANSWERED IN THE AFFIRMATIVE.

ARMY REGULATIONS 35-1030, DATED FEBRUARY 7, 1952, PROVIDES IN PARAGRAPH 4A THAT OFFICERS WHO ARE DROPPED BY THE PRESIDENT FROM THE ROLLS OF THE ARMY FOR ABSENCE FROM DUTY 3 MONTHS WITHOUT LEAVE, SHALL FORFEIT ALL PAY DUE OR TO BECOME DUE. PARAGRAPH 4B PERTAINING TO ENLISTED MEMBERS, PROVIDES FOR THE FORFEITURE OF PAY UPON DESERTION IF CONVICTED OR DISCHARGED ON ACCOUNT OF DESERTION. A SIMILAR PROVISION IS FOUND IN PARAGRAPH 1-92, ARMY REGULATIONS 37-104. SINCE THE OFFICER WAS NOT DROPPED FROM THE ROLLS OF THE ARMY BY THE PRESIDENT, HE DID NOT FORFEIT ANY PAY AND ALLOWANCES WHICH HAD ACCRUED AND REMAINED UNPAID AT DATE OF DESERTION. THEREFORE, THE OFFICER IS ENTITLED TO CREDIT IN THE AMOUNT OF $205.11 CARRIED FORWARD AS DUE HIM ON DATE OF DESERTION.

YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.