B-143997, DECEMBER 14, 1960, 40 COMP. GEN. 366

B-143997, DECEMBER 14, 1960, 40 COMP. GEN. 366

MILITARY PERSONNEL - PAY - ABSENCE WITHOUT LEAVE - EXCUSED - MENTALLY INCOMPETENT MEMBERS FOR AN ABSENCE WITHOUT LEAVE OF A MENTALLY INCOMPETENT ENLISTED MEMBER OF THE UNIFORMED SERVICES TO BE EXCUSED AS UNAVOIDABLE UNDER SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, 37 U.S.C. 33 (B), THE ABSENCE NOT ONLY MUST BE UNAVOIDABLE INSOFAR AS THE ENLISTED MAN IS CONCERNED BUT IT MUST BE UNAVOIDABLE INSOFAR AS THE GOVERNMENT IS CONCERNED, THE TEST BEING WHETHER THE ABSENCE COULD HAVE BEEN PREVENTED BY THE MEMBER OR BY THE MILITARY AUTHORITIES' EXERCISE OF DUE DILIGENCE IN ATTEMPTING TO DISCOVER, APPREHEND AND RETURN THE MEMBER TO MILITARY CONTROL; THEREFORE, WHEN AN UNAUTHORIZED ABSENCE OF A MENTALLY INCOMPETENT ENLISTED MEMBER COULD NOT HAVE BEEN PREVENTED BY THE MEMBER OR THE MILITARY AUTHORITIES AND IS EXCUSED AS UNAVOIDABLE, THE MEMBER IS ENTITLED TO PAY AND ALLOWANCES FOR THE EXCUSED LEAVE PERIODS.

TO THE SECRETARY OF DEFENSE, DECEMBER 14, 1960:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 15, 1960, FROM THE DEPUTY ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING DECISION ON TWO QUESTIONS (1) WHETHER UNDER THE ARMED FORCES LEAVE ACT THE SECRETARIES OF THE MILITARY DEPARTMENTS MAY EXCUSE, AS UNAVOIDABLE, UNAUTHORIZED ABSENCES OF ENLISTED MEMBERS WHO ARE FOUND TO BE MENTALLY INCOMPETENT, AND (2) WHETHER SUCH MEMBERS MAY BE PAID ACTIVE DUTY PAY AND ALLOWANCES DURING SUCH ABSENCES IF THE ABSENCE IS EXCUSED. THERE WAS ENCLOSED WITH THE LETTER OF SEPTEMBER 15, 1960, A COPY OF COMMITTEE ACTION NO. 270 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, DISCUSSING THE QUESTIONS PRESENTED.

SECTION 4 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED BY THE ACT OF AUGUST 4, 1947, 37 U.S.C. 33 (B), PROVIDES IN PERTINENT PART THAT:

* * * WHEN ABSENT WITHOUT LEAVE OR ABSENT OVER LEAVE, THEY (MEMBERS OF THE ARMED FORCES) SHALL FORFEIT ALL PAY AND ALLOWANCES DURING SUCH ABSENCE, UNLESS SUCH ABSENCE IS EXCUSED AS UNAVOIDABLE. * * *

OUR DECISION OF JUNE 26, 1957, B-131446, REFERRED TO IN COMMITTEE ACTION NO. 270, INVOLVED THE CASE OF AN ENLISTED MAN OF THE AIR FORCE WHO HAD BEEN ABSENT WITHOUT LEAVE FROM FEBRUARY 14, 1951, TO DECEMBER 26, 1955. IT SUBSEQUENTLY WAS DETERMINED THAT HE WAS MENTALLY INCOMPETENT DURING THAT PERIOD. IN CONNECTION WITH THE MATTER A DISBURSING OFFICER REQUESTED A DECISION WHETHER, IN VIEW OF THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946, AN ADMINISTRATIVE DETERMINATION THAT THE ABSENCE WITHOUT LEAVE WAS UNAVOIDABLE WOULD BE SUFFICIENT TO AUTHORIZE CREDITABLE SERVICE AND PAY AND ALLOWANCES FOR THE PERIOD OF ABSENCE.

WE ANSWERED THE QUESTION IN THE NEGATIVE, POINTING OUT THAT THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED, FOR EXCUSING UNAUTHORIZED ABSENCES AS UNAVOIDABLE DID NOT EMBODY ANY NEW CONCEPT OF MILITARY OR NAVAL LAW, SINCE SIMILAR PROVISIONS HAD BEEN CONTAINED IN PRIOR LAWS AND REGULATIONS BEGINNING WITH SECTION 1265, REVISED STATUTES; THAT PRIOR TO THE ENACTMENT OF THE AMENDMENT THE AUTHORITY TO EXCUSE APPARENTLY WAS USED SPARINGLY AND WITH RESPECT TO RELATIVELY SHORT PERIODS ONLY; AND THAT IT WAS DOUBTFUL THAT THE SUBJECT ENLISTED MAN'S ABSENCE COULD BE HELD TO BE UNAVOIDABLE, SINCE HE WAS AT HIS HOME DURING ALL OR NEARLY ALL OF THE PERIOD INVOLVED AND SHOULD HAVE BEEN APPREHENDED SOON AFTER THE BEGINNING OF HIS UNAUTHORIZED ABSENCE.

AS POINTED OUT IN COMMITTEE ACTION NO. 270 THERE WAS AN INFERENCE IN THE ABOVE DECISION THAT THE DILIGENCE OR NEGLIGENCE OF THE SERVICE ITSELF IN BRINGING THE ABSENTEE BACK TO MILITARY CONTROL MIGHT BE FOR CONSIDERATION IN THE DETERMINATION OF THE CHARACTER OF THE ABSENCE; THAT IS, WHETHER OR NOT IT WAS UNAVOIDABLE. AND THERE WAS AN INFERENCE IN THE DECISION THAT A RELATIVELY SHORT PERIOD OF ABSENCE MIGHT PROPERLY BE EXCUSED AS UNAVOIDABLE--- WITH THE CONSEQUENT RIGHT TO PAY- - UPON A FINDING OF MENTAL INCOMPETENCE DURING THAT PERIOD.

THE MERE DETERMINATION THAT AN ENLISTED MAN WAS MENTALLY INCOMPETENT DURING A PERIOD OF ABSENCE WITHOUT LEAVE WILL NEGATIVE THE IMPOSITION OF ANY PUNISHMENT FOR SUCH ABSENCE, BUT SUCH A DETERMINATION DOES NOT REMOVE THE REQUIREMENT TO COMPLY WITH THE CONTRACTUAL OBLIGATIONS OF HIS ENLISTMENT IN ORDER FOR HIM TO BE ENTITLED TO PAY. SEE 4 COMP. GEN. 750; B-5058, NOVEMBER 7, 1940; B-13711, DECEMBER 18, 1940; B 140250, AUGUST 21, 1959. COMPARE MERWIN V. UNITED STATES, 78 CT. CL. 561; 7 COMP. GEN. 812; 21 COMP. GEN. 845; 27 COMP. GEN. 269.

THE QUESTION THEN IS WHETHER THE EXCUSAL OF AN ENLISTED MEMBER'S ABSENCE WITHOUT LEAVE ON THE GROUND THAT IT WAS UNAVOIDABLE, BECAUSE HE WAS MENTALLY INCOMPETENT, CAN ENTITLE HIM TO PAY. APPARENTLY, THE DEPARTMENT OF THE NAVY HOLDS THAT SUCH AN EXCUSAL WOULD BE INEFFECTIVE, SINCE PARAGRAPH 1044254 OF THE CURRENT NAVY COMPTROLLER MANUAL PROVIDES THAT:

THE LAW GIVES NO RIGHT TO PAY OR ALLOWANCES TO A MEMBER FOR THE PERIOD OF TIME HE IS ABSENT WITHOUT AUTHORITY, WHETHER UNDER CONDITIONS OF RESPONSIBILITY OR IRRESPONSIBILITY. ACCORDINGLY, A MEMBER IN AN UNBALANCED MENTAL STATE WHO ABSENTS HIMSELF WITHOUT AUTHORITY IS NOT ENTITLED TO PAY OR ALLOWANCES FOR THE PERIOD OF SUCH ABSENCE.

WE DO NOT BELIEVE THAT THE LAW SUPPORTS THE VIEW THAT THERE ARE NO POSSIBLE CIRCUMSTANCES UNDER WHICH THE ABSENCE WITHOUT LEAVE OF A MENTALLY INCOMPETENT ENLISTED MEMBER COULD BE EXCUSED AS UNAVOIDABLE.'" UNAVOIDABLE" MEANS NOT AVOIDABLE; INCAPABLE OF BEING SHUNNED OR PREVENTED; INEVITABLE.' WEBSTER'S NEW INTERNATIONAL DICTIONARY. WHETHER A PARTICULAR UNAUTHORIZED ABSENCE WAS UNAVOIDABLE IS A QUESTION OF FACT AND AN ENLISTED MAN'S MENTAL COMPETENCY IS ONE FACT FOR CONSIDERATION IN DETERMINING THE CHARACTER OF HIS ABSENCE. IF, BECAUSE OF MENTAL INCOMPETENCY, AN ENLISTED MAN COULD NOT COMPREHEND THAT HE WAS ABSENT FROM HIS POST OF DUTY WITHOUT AUTHORITY, THAT FACT MAY JUSTIFY A CONCLUSION THAT SUCH ABSENCE, AS FAR AS THE ENLISTED MAN IS CONCERNED, WAS UNAVOIDABLE WITHIN THE SCOPE OF THE DEFINITION AND STATUTE MENTIONED. BELIEVE, HOWEVER, THAT BEFORE AN UNAUTHORIZED ABSENCE LEGALLY MAY BE EXCUSED AS UNAVOIDABLE UNDER THE STATUTE, THAT ABSENCE NOT ONLY MUST BE UNAVOIDABLE INSOFAR AS THE ENLISTED MAN IS CONCERNED, BUT ALSO MUST BE UNAVOIDABLE INSOFAR AS THE GOVERNMENT IS CONCERNED. IF AN ENLISTED MAN'S ABSENCE, AS IN THE CASE CONSIDERED IN OUR DECISION OF JUNE 26, 1957, COULD HAVE BEEN PREVENTED BY THE ADMINISTRATIVE AUTHORITIES THROUGH THE EXERCISE OF DUE DILIGENCE IN ATTEMPTING TO DISCOVER, APPREHEND, AND RETURN HIM TO MILITARY CONTROL, IT IS OUR VIEW THAT THE ABSENCE IS NOT UNAVOIDABLE. OTHER WORDS, THE ABSENCE IS NOT UNAVOIDABLE IF IT COULD HAVE BEEN PREVENTED BY THE MEMBER OR BY THE EXERCISE OF DUE DILIGENCE BY THE ADMINISTRATIVE AUTHORITIES.

WITHIN THE FRAMEWORK OUTLINED ABOVE, WE THINK THAT THE SECRETARY OF A DEPARTMENT, IN HIS DISCRETION, MAY EXCUSE AS UNAVOIDABLE ABSENCES OF ENLISTED MEMBERS WHILE MENTALLY INCOMPETENT. THE FIRST QUESTION PRESENTED IS ANSWERED ACCORDINGLY.

THE SECOND QUESTION IS ANSWERED BY SAYING THAT IT REASONABLY APPEARS THAT THE STATUTE CONTEMPLATES THE GRANTING OF PAY AND ALLOWANCES FOR PERIODS OF UNAUTHORIZED ABSENCE WHICH HAVE BEEN EXCUSED AS UNAVOIDABLE.