B-143729, NOV. 10, 1960

B-143729, NOV. 10, 1960

TO COLONEL C. G. GEALTA, FC, FINANCE AND ACCOUNTING OFFICER, THROUGH CHIEF OF FINANCE, DEPARTMENT OF THE ARMY:

BY THIRD INDORSEMENT DATED AUGUST 5, 1960, THE OFFICE OF THE CHIEF OF FINANCE FORWARDED YOUR LETTER DATED JULY 22, 1960, (ASSIGNED D.O. NO. 521 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE), REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON AN ENCLOSED MILITARY PAY VOUCHER (DA FORM 2139) IN FAVOR OF JAMES R. MILLER FOR PAY AND ALLOWANCES AS AN ENLISTED MEMBER OF THE ARMY DURING THE PERIOD JULY 1, 1959, TO JULY 12, 1960.

THE SUBMITTED RECORD SHOWS THAT PRIVATE MILLER WAS INDUCTED INTO THE MILITARY SERVICE ON JULY 30, 1958. A PHYSICAL EVALUATION BOARD CONVENED AT BROOKE GENERAL HOSPITAL MAY 28, 1959, RECOMMENDED THAT HE BE SEPARATED FROM THE SERVICE WITHOUT ENTITLEMENT TO SEVERANCE PAY BY REASON OF A PHYSICAL DISABILITY DIAGNOSED AS DEMENTIA PRAECOX, MIXED TYPE, IN PARTIAL REMISSION. ON REVIEW OF THE CASE WITHIN HEADQUARTERS, DEPARTMENT OF THE ARMY, IT WAS FOUND THAT ON JULY 30, 1958, WHEN PRIVATE MILLER WAS INDUCTED INTO THE SERVICE, HE WAS MENTALLY INCAPABLE OF UNDERSTANDING THE EFFECT AND NATURE OF THE ACT OF INDUCTION. THEREUPON, THE PROCEEDINGS OF THE PHYSICAL EVALUATION BOARD WERE CANCELLED AND PRIVATE MILLER WAS DROPPED FROM THE MORNING REPORT OF BROOKE GENERAL HOSPITAL AS OF AUGUST 1, 1959. FURTHER REVIEW OF HIS CASE BY MEDICAL AND LEGAL AUTHORITIES WITHIN HEADQUARTERS, DEPARTMENT OF THE ARMY, RESULTED IN A FINDING THAT ON APRIL 30, 1959, HE HAD ATTAINED SUFFICIENT MENTAL CAPACITY TO UNDERSTAND THE ACT OF INDUCTION. DETERMINATION WAS MADE THAT THE ACTION TAKEN IN DROPPING HIM FROM THE ARMY ROLLS WAS IN ERROR AND HIS RECORDS WERE AMENDED TO SHOW THAT HE WAS CONSTRUCTIVELY INDUCTED INTO THE ARMY ON APRIL 30, 1959, AND THAT HE WAS IN ACTIVE MILITARY SERVICE FROM THAT DATE. THE RECORD FURTHER SHOWS THAT PRIVATE MILLER WAS AT HOME FROM JUNE 1, 1959, ON PERMANENT CHANGE OF STATION ORDERS UNTIL SPECIAL ORDERS NO. 104, DATED MAY 27, 1960, AS AMENDED BY SPECIAL ORDERS NO. 109, DATED JUNE 6, 1960, WERE ISSUED DIRECTING HIM TO REPORT TO IRELAND ARMY HOSPITAL, FORT KNOX, KENTUCKY, ON JUNE 1, 1960, ON ASSIGNMENT TO THE HOSPITAL HOLDING COMPANY, TROOP COMMAND, AT THAT STATION FOR PURPOSES OF MEDICAL EVALUATION. BY SPECIAL ORDERS NO. 132, DATED JUNE 8, 1960, HE WAS DIRECTED TO PROCEED TO HIS HOME OF RECORD FOR THE PURPOSE OF AWAITING FURTHER ORDERS PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS. SPECIAL ORDERS NO. 161, DATED JULY 14, 1960, ANNOUNCED PRIVATE MILLER'S DISCHARGE FROM THE SERVICE EFFECTIVE JULY 12, 1960, BY REASON OF PHYSICAL DISABILITY.

NO PERSON WHO IS INSANE MAY BE ENLISTED OR MUSTERED INTO THE ARMY. SEE 10 U.S.C. 3253. NO PERSON MAY BE INDUCTED INTO THE ARMED FORCES UNDER THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT UNLESS HIS ACCEPTABILITY IN ALL RESPECTS, INCLUDING HIS PHYSICAL AND MENTAL FITNESS, HAS BEEN SATISFACTORILY DETERMINED UNDER STANDARDS PRESCRIBED BY THE SECRETARY OF DEFENSE. 50 U.S.C. APP. 454 (A). CONSEQUENTLY, IT HAS BEEN CONSIDERED THAT NO RIGHT TO PAY AND ALLOWANCES ACCRUES TO PERSONS WHO ARE INSANE WHEN ENLISTED OR INDUCTED INTO THE SERVICE. WE HAVE HELD, HOWEVER, THAT IN THE ABSENCE OF A JUDICIAL DETERMINATION DECLARING A PERSON MENTALLY INCOMPETENT PRIOR TO HIS ENTRY ON ACTIVE DUTY, AND WHERE THERE WAS AN ADMINISTRATIVE FAILURE TO DISCOVER PRIOR TO ENLISTMENT OR INDUCTION THAT HIS MENTAL CONDITION WAS SUCH AS WOULD WARRANT HIS REJECTION FOR MILITARY SERVICE, THERE IS NO SUBSTANTIAL BASIS FOR REGARDING HIM AS AN INSANE PERSON WITHIN THE MEANING OF THE ABOVE-CITED PROVISION OF LAW, AND HE MUST BE CONSIDERED TO BE A MEMBER OF THE UNIFORMED SERVICES UNTIL HIS RELEASE FROM MILITARY CONTROL. 39 COMP. GEN. 742. ALSO, IT WAS STATED THERE THAT IT IS DOUBTFUL THAT A LATER DETERMINATION BY QUALIFIED MEDICAL DOCTORS OF THE SERVICE THAT AN INDIVIDUAL WAS MENTALLY INCOMPETENT FROM THE DATE OF HIS INDUCTION COULD OPERATE RETROACTIVELY OR PROSPECTIVELY TO CANCEL SUCH RIGHTS. ACCORDINGLY, UNDER THE CIRCUMSTANCES INVOLVED IT WOULD APPEAR PROPER TO CONSIDER THAT MR. MILLER WAS A MEMBER OF THE MILITARY SERVICE FROM THE TIME OF HIS INITIAL INDUCTION UNTIL JULY 12, 1960, THE EFFECTIVE DATE OF HIS DISCHARGE, AND ENTITLED TO MILITARY PAY AND ALLOWANCES TO THE EXTENT THAT THEY OTHERWISE WOULD HAVE ACCRUED TO HIM DURING THAT PERIOD.

AS AN INDUCTED MEMBER OF THE SERVICE MR. MILLER WAS SUBJECT TO THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, AS AMENDED, PRECLUDING THE PAYMENT OF PAY AND ALLOWANCES TO MEMBERS WHILE ON ORDINARY AUTHORIZED ABSENCE IN EXCESS OF THE NUMBER OF DAYS OF LEAVE STANDING TO THEIR CREDIT (SEE 37 U.S.C. 33 (B) ). SINCE ON JULY 1, 1959, THE FIRST DAY OF THE PERIOD HERE IN QUESTION, HE WAS AT HIS HOME EXCUSED FROM THE PERFORMANCE OF MILITARY DUTIES ON THE BASIS OF AN ASSUMPTION THAT HE HAD BEEN ERRONEOUSLY INDUCTED RATHER THAN ON ACCOUNT OF SICKNESS OR WOUNDS OR TO AWAIT ORDERS PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS, AND HE REMAINED AWAY FROM THE PERFORMANCE OF DUTIES UNTIL HE PROCEEDED TO THE IRELAND ARMY HOSPITAL UNDER THE ORDERS OF MAY 27, 1960, WE BELIEVE HE IS TO BE VIEWED AS COMING WITHIN THE PURVIEW OF SUCH PROHIBITION. ACCORDINGLY, CREDIT OF PAY AND ALLOWANCES FOR THE PERIOD OF SUCH ABSENCE IN EXCESS OF HIS ACCRUED LEAVE, IF ANY, IS NOT AUTHORIZED. HE IS, HOWEVER, ENTITLED TO PAY AND ALLOWANCES IN HIS ENLISTED CAPACITY FROM THE DATE HE COMMENCED TRAVEL TO THE IRELAND ARMY HOSPITAL UNTIL JULY 12, 1960, THE EFFECTIVE DATE OF HIS DISCHARGE FROM THE SERVICE, AND PAYMENT MAY BE MADE ON THE VOUCHER, RETURNED HEREWITH, ON THAT BASIS, IF OTHERWISE CORRECT.