B-143657, OCTOBER 7, 1960, 40 COMP. GEN. 202

B-143657, OCTOBER 7, 1960, 40 COMP. GEN. 202

MILITARY PERSONNEL - COURT-MARTIAL SENTENCE OF DEATH - UNEXECUTED - ENLISTMENT EXPIRATION - DEATH GRATUITY, ETC., BENEFITS AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO DIES SUBSEQUENT TO THE EXPIRATION OF HIS ENLISTMENT AND WHILE A PRISONER IN CONFINEMENT PENDING APPELLATE REVIEW OF A COURT-MARTIAL SENTENCE OF DEATH, WHICH UNDER SUBPARAGRAPHS (A) AND (D) OF ARTICLE 71 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 871, REMAINED UNEXECUTED BECAUSE IT HAD NOT BEEN APPROVED BY THE PRESIDENT, IS A MEMBER WHOSE RIGHT TO PAY CEASED UPON EXPIRATION OF THE ENLISTMENT AND, SINCE DEATH OCCURRED DURING A NONPAY STATUS, THE SURVIVING PARENT IS NOT ENTITLED TO THE SIX MONTHS' DEATH GRATUITY AUTHORIZED UNDER 10 U.S.C. 1475 (A) (1), TO SURVIVORS OF A MEMBER WHO DIES WHILE ON ACTIVE DUTY OR WHILE PERFORMING AUTHORIZED TRAVEL TO OR FROM ACTIVE DUTY. AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO DIES SUBSEQUENT TO THE EXPIRATION OF HIS ENLISTMENT AND WHILE A PRISONER IN CONFINEMENT PENDING APPELLATE REVIEW OF AN UNEXECUTED COURT-MARTIAL SENTENCE IS REGARDED AS HAVING HIS ENLISTMENT EXPIRE BY OPERATION OF LAW RATHER THAN AS THE RESULT OF THE IMPOSITION OF THE COURT-MARTIAL SENTENCE THEN PENDING APPELLATE REVIEW, SO THAT THE ISSUANCE AFTER THE MEMBER'S DEATH OF A COURT-MARTIAL ORDER BY THE SECRETARY OF THE ARMY TO RESTORE THE RIGHTS, BENEFITS, PRIVILEGES AND PROPERTY OF WHICH THE DECEASED MAY HAVE BEEN DEPRIVED BY VIRTUE OF THE FINDINGS OF GUILTY AND SENTENCE COULD NOT HAVE THE EFFECT OF PLACING THE MEMBER IN A PAY STATUS AFTER THE EXPIRATION OF THE ENLISTMENT TO PERMIT PAYMENT OF ARREARS OF PAY FOR THE FOLLOWING PERIOD OF CONFINEMENT OR OF THE DEATH GRATUITY.

TO LIEUTENANT COLONEL R. H. MACPHERSON, DEPARTMENT OF THE ARMY, OCTOBER 7, 1960:

BY ST ENDORSEMENT DATED AUGUST 1, 1960, THE CHIEF OF FINANCE REFERRED TO THIS OFFICE YOUR LETTER OF JULY 12, 1960, REQUESTING ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF CLAIMS FOR SIX MONTHS' DEATH GRATUITY AND ARREARS OF PAY, SUBMITTED BY THE MOTHER IN CONNECTION WITH THE DEATH OF HER SON, A PRIVATE FIRST CLASS U.S. ARMY, RA 18 396 916. YOUR REQUEST FOR ADVANCE DECISION WAS FORWARDED UNDER D.O. NO. 519 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT THE SERVICEMAN, BY GENERAL COURT-MARTIAL SENTENCE ADJUDGED ON MARCH 12, 1953, AS APPROVED MARCH 20, 1953, BY THE CONVENING AUTHORITY, WAS SENTENCED TO BE PUT TO DEATH. THE CONVENING AUTHORITY FORWARDED TO RECORD OF TRIAL TO THE JUDGE ADVOCATE GENERAL OF THE ARMY FOR REVIEW BY A BOARD OF REVIEW AND THE COURT OF MILITARY APPEALS. PENDING COMPLETION OF APPELLATE REVIEW, THE ACCUSED WAS TRANSFERRED TO THE CUSTODY OF THE COMMANDING GENERAL, SECOND ARMY. PENDING SUCH TRANSFER THE ACCUSED WAS CONFINED IN THE USAREUR MILITARY PRISON, MANHEIM, GERMANY.

IT FURTHER APPEARS THAT ON JULY 20, 1953, THE BOARD OF REVIEW FOUND THE DEATH SENTENCE TO BE LEGAL, BUT CONCLUDED ON THE BASIS OF THE ENTIRE RECORD THAT IT WAS INAPPROPRIATE AND APPROVED ONLY SO MUCH OF THE SENTENCE AS PROVIDED FOR DISHONORABLE DISCHARGE AND CONFINEMENT AT HARD LABOR FOR LIFE. THE CASE WAS THEN CERTIFIED BY THE JUDGE ADVOCATE GENERAL TO THE UNITED STATES COURT OF MILITARY APPEALS FOR REVIEW. PENDING COMPLETION OF APPELLATE REVIEW THE ACCUSED WAS CONTINUED IN CONFINEMENT. HE DIED ON NOVEMBER 23, 1959, IN THE STATUS OF AN UNSENTENCED PRISONER AT THE MEDICAL CENTER FOR FEDERAL PRISONERS, SPRINGFIELD, MISSOURI. YOU STATE THAT IN ACCORDANCE WITH 37 COMP. GEN. 228, 30 COMP. GEN. 449, AND 11 COMP. GEN. 342, THE ACCUSED'S PAY AND ALLOWANCES WERE DISCONTINUED ON APRIL 9, 1954, DATE OF NORMAL TERMINATION OF TERM OF SERVICE, WHILE IN CONFINEMENT AWAITING THE APPELLATE REVIEW.

IT APPEARS FURTHER THAT UNDER DATE OF DECEMBER 29, 1959, THE SECRETARY OF THE ARMY PUBLISHED GENERAL COURT-MARTIAL ORDER NO. 36 STATING THAT THE SERVICEMAN "HAVING DIED PRIOR TO THE COMPLETION OF APPELLATE REVIEW, THE PROCEEDINGS ARE ABATED. ALL RIGHTS, PRIVILEGES AND PROPERTY OF WHICH THE ACCUSED MAY HAVE BEEN DEPRIVED BY VIRTUE OF THE FINDINGS OF GUILTY AND THE SENTENCE WILL BE RESTORED.' BASED UPON THIS BACKGROUND YOU STATE THAT THE FOLLOWING DETERMINATIONS ARE TO BE RESOLVED:

A. UNDER THE CIRCUMSTANCES DESCRIBED ABOVE, WHEREIN AN UNSENTENCED PRISONER DIES WHILE IN CONFINEMENT PAST THE DATE ON WHICH HIS TERM OF SERVICE WOULD NORMALLY EXPIRE AND WHILE AWAITING APPELLATE REVIEW, IS SIX MONTHS' DEATH GRATUITY PAYABLE?

B. UNDER THESE SAME CONDITIONS, IS PAYMENT TO BE MADE OF PAY AND ALLOWANCES FOR THE CONFINEMENT PERIOD WHICH BEGINS THE DAY FOLLOWING THE NORMAL EXPIRATION OF TERM OF SERVICE AND ENDS WITH THE DAY OF DEATH?

C. IF THE CLAIMS FOR DEATH GRATUITY AND ARREARS OF PAY ARE APPROVED, IS THE TIME SPENT IN CONFINEMENT RECOGNIZABLE AS CREDITABLE SERVICE FOR LONGEVITY PURPOSES?

SUBPARAGRAPHS (A) AND (D) OF ARTICLE 71 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 871, PROVIDE IN PERTINENT PART AS FOLLOWS:

(A) NO COURT-MARTIAL SENTENCE EXTENDING TO DEATH OR INVOLVING A GENERAL OR FLAG OFFICER MAY BE EXECUTED UNTIL APPROVED BY THE PRESIDENT. * * *

(D) ALL OTHER COURT-MARTIAL SENTENCES, UNLESS SUSPENDED, MAY BE ORDERED EXECUTED BY THE CONVENING AUTHORITY WHEN APPROVED BY HIM. * * *

THE SENTENCE HERE INVOLVED, BECAUSE OF ITS NATURE, COULD NOT BE EXECUTED PENDING THE REQUIRED APPELLATE REVIEW. THE STATUS OF THE ACCUSED DURING SUCH PERIOD MUST BE CONSIDERED FOR PAY PURPOSES THE SAME AS THAT OF A PRISONER IN CONFINEMENT AWAITING COURT-MARTIAL TRIAL.

THE SIX MONTHS' DEATH GRATUITY PROVIDED IN TITLE III OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT, APPROVED AUGUST 1, 1956, AS CODIFIED BY PUBLIC LAW 85-861, SEPTEMBER 2, 1958, 72 STAT. 1452, 10 U.S.C. 1475 (A) (1), IS AUTHORIZED TO BE PAID TO THE SURVIVOR OF A DECEASED MEMBER WHO "DIES WHILE ON ACTIVE DUTY OR WHILE PERFORMING AUTHORIZED TRAVEL TO OR FROM ACTIVE DUTY.'

IT LONG HAS BEEN THE RULE THAT THE PAY AND ALLOWANCES OF AN ENLISTED PERSON WHOSE TERM OF ENLISTMENT EXPIRES WHILE IN CONFINEMENT AWAITING TRIAL BY COURT-MARTIAL TERMINATE ON THE DATE OF THE EXPIRATION OF HIS TERM OF ENLISTMENT AND DO NOT ACCRUE TO THE MEMBER WHILE SUBJECT TO MILITARY CONTROL AND IN CONFINEMENT AFTER THE EXPIRATION OF HIS ENLISTMENT UNLESS HE IS ACQUITTED AND, THEREFORE, CONSIDERED TO HAVE BEEN HELD FOR THE CONVENIENCE OF THE GOVERNMENT. 11 COMP. GEN. 342; 17 COMP. GEN. 103; 30 COMP. GEN. 449; 33 COMP. GEN. 281; 34 COMP. GEN. 390; 37 COMP. GEN. 228; MOSES V. UNITED STATES, 137 CT.1CL. 374. SEE, ALSO, CHANGE 20, DATED SEPTEMBER 25, 1959, OF ARMY REGULATION 37-104, PARAGRAPH 1-95.

IT HAS BEEN CONSISTENTLY HELD THAT THE DEATH GRATUITY AUTHORIZED PRIOR TO TITLE III OF THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT (SEE 34 U.S.C. 943, 10 U.S.C. 903, 1952 EDITION) WAS NOT PAYABLE IN ANY CASE WHERE THE MEMBER WAS NOT IN A STATUS ENTITLING HIM TO PAY AT DATE OF DEATH UNLESS IT WAS OTHERWISE PROVIDED BY STATUTE. SEE 27 COMP. GEN. 269; 29 COMP. GEN. 294; 31 COMP. GEN. 645. WHERE THE CONGRESS INTENDED THAT THE GRATUITY SHOULD BE PAID IN THE CASES OF MEMBERS OR FORMER MEMBERS NOT IN A PAY STATUS AT THE TIME OF DEATH, SPECIFIC PROVISIONS HAVE BEEN MADE FOR PAYMENT OF THE DEATH GRATUITY BY CREATING, IN EFFECT, A CONSTRUCTIVE PAY STATUS. SEE THE ACT OF JUNE 20, 1949, 63 STAT. 201, 34 U.S.C. 855C-1 (1952 USED.), AND SECTION 240 OF THE ARMED FORCES RESERVED ACT OF 1952, 66 STAT. 492, 50 U.S.C. 971 (1952 USED.), CONSIDERED IN 33 COMP. GEN. 411. IT DOES NOT APPEAR THAT ANY CHANGE IN THAT INTERPRETATION OF THE LAW WAS INTENDED WHEN THE SERVICEMEN'S AND VETERANS' SURVIVOR BENEFITS ACT WAS ENACTED, SECTIONS 303 AND 304 (C) OF THAT ACT (CODIFIED IN 10 U.S.C. 1476 AND 1478) PROVIDING, IN EFFECT, FOR A CONSTRUCTIVE PAY STATUS UNDER SPECIFIED CIRCUMSTANCES. COMPARE 39 COMP. GEN. 858.

A MEMBER'S RIGHT TO BE DISCHARGED IS SUBJECT TO THE PARAMOUNT AUTHORITY OF THE GOVERNMENT TO HOLD HIM BEYOND THE NORMAL DATE OF EXPIRATION OF HIS ENLISTMENT FOR THE PURPOSE OF PUNISHMENT FOR OFFENSES COMMITTED, OR FOR TRIAL FOR OFFENSES FOR WHICH PROBABLE CAUSE EXISTS, AND FOR PUNISHMENT WHEN CONVICTED. WHEN HE IS SO HELD BEYOND THE EXPIRATION OF HIS TERM OF ENLISTMENT, HIS RIGHT TO PAY CEASES ON THAT DATE, SUBJECT TO SUBSEQUENT POSSIBLE ACQUITTAL OR RESTORATION TO DUTY, AND NO RIGHT TO A DEATH GRATUITY CAN ARISE IF DEATH OCCURS DURING SUCH NONPAY STATUS. THE SERVICEMAN'S ENLISTMENT HAVING EXPIRED BY OPERATION OF LAW AND NOT AS THE RESULT OF THE IMPOSITION OF THE COURT-MARTIAL SENTENCE THEN PENDING APPELLATE REVIEW, THE ACTION OF THE SECRETARY IN ISSUING COURT-MARTIAL ORDER NO. 36 ON DECEMBER 29, 1959, UNDER ARTICLE 75 (A), UNIFORMED CODE OF MILITARY JUSTICE, 10 U.S.C. 875 (A), TO RESTORE THE RIGHTS, BENEFITS, PRIVILEGES AND PROPERTY OF WHICH THE DECEASED MEMBER MAY HAVE BEEN DEPRIVED BY VIRTUE OF THE FINDINGS OF GUILTY AND THE SENTENCE COULD NOT HAVE THE EFFECT OF PLACING THE MEMBER IN A PAY STATUS AFTER APRIL 9, 1954, THE DATE OF EXPIRATION OF HIS ENLISTMENT, IN ORDER TO PERMIT PAYMENT OF ARREARS OF PAY FOR THE PERIOD FOLLOWING THAT DATE AND PAYMENT OF THE DEATH GRATUITY.

THEREFORE, BASED UPON THE PRESENT RECORD, QUESTIONS A AND B MUST BE ANSWERED IN THE NEGATIVE MAKING AN ANSWER TO QUESTION C UNNECESSARY.