B-177063, FEB 21, 1973, 52 COMP GEN 542

B-177063, FEB 21, 1973, 52 COMP GEN 542

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

TO MAJOR F. D. BRADY, UNITED STATES MARINE CORPS, FEBRUARY 21, 1973:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 6, 1972, WHICH WAS FORWARDED HERE BY LETTER DATED SEPTEMBER 18, 1972, OF HEADQUARTERS, UNITED STATES MARINE CORPS, REQUESTING A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT OF UNPAID PAY AND ALLOWANCES CREDITED TO THE PAY ACCOUNT OF FORMER PRIVATE FIRST CLASS JOHNNY L. DEAN, 542 58 25 98, UNITED STATES MARINE CORPS, UNDER THE CIRCUMSTANCES IN HIS CASE. YOUR REQUEST HAS BEEN ASSIGNED CONTROL NO. DO-MC-1170 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT ON OCTOBER 21, 1969, MR. DEAN WAS DECLARED A DELINQUENT BY LOCAL BOARD NO. 2, SELECTIVE SERVICE SYSTEM, ST. HELENS, OREGON, BECAUSE OF FAILURE TO KEEP THE BOARD INFORMED OF HIS CURRENT ADDRESS. CONCURRENT WITH BEING DECLARED A DELINQUENT, HE WAS RECLASSIFIED FROM III-A TO I-A. HE DID NOT RESPOND TO THE DELINQUENCY NOTICE NOR APPEAL HIS RECLASSIFICATION. ON NOVEMBER 26, 1969, HE WAS ORDERED TO REPORT FOR INDUCTION INTO THE ARMED FORCES ON DECEMBER 9, 1969. HE REPORTED AS ORDERED AND WAS INDUCTED INTO THE MARINE CORPS. HE WAS THEN 20 YEARS OF AGE, MARRIED AND HAD 2 CHILDREN. THE AUTHORITY FOR THE DRAFT BOARD'S ACTION IS STATED TO HAVE BEEN THEN CURRENT 32 CFR 1642 AND SECTIONS 1631.7, 1642.13 AND 1642.21 OF THOSE REGULATIONS.

OF THE 2 YEARS, 3 MONTHS AND 9 DAYS INCLUDED IN THE PERIOD OF MR. DEAN'S PURPORTED SERVICE IN THE MARINE CORPS, HE WAS ABSENT WITHOUT AUTHORITY AND IN A NONPAY STATUS FOR 1 YEAR, 7 MONTHS AND 13 DAYS. FOLLOWING HIS LAST PERIOD OF UNAUTHORIZED ABSENCE OF OVER A YEAR, HE WAS REFERRED TO TRIAL BY COURT-MARTIAL. HOWEVER, THE CHARGE AGAINST HIM WAS DISMISSED ON THE GRANTING OF A DEFENSE MOTION THAT THE MARINE CORPS HAD NEVER ACQUIRED JURISDICTION OVER HIM BECAUSE HIS INDUCTION WAS ILLEGAL. HE WAS SUBSEQUENTLY DISCHARGED UNDER HONORABLE CONDITIONS ON MARCH 17, 1972, BY REASON OF ERRONEOUS INDUCTION.

THE CONCLUSION THAT THE MARINE CORPS LACKED COURT-MARTIAL JURISDICTION WAS BASED ON THE DECISIONS IN GUTKNECHT V. UNITED STATES, 395 U.S. 295(1970), AND BREEN V. SELECTIVE SERVICE LOCAL BOARD NO. 16 ET AL., 396 U.S. 460(1970), HOLDING THAT THE SELECTIVE SERVICE DELINQUENCY REGULATIONS WERE VOID. ALSO CONSIDERED WERE ANDRE V. RESOR, 313 F.SUPP. 957(1970), AFFIRMED 443 F.2D 921(1970), WHICH EXPRESSLY HELD THAT THE DECISION IN GUTKNECHT SHOULD BE GIVEN RETROACTIVE APPLICATION AND BRADLEY V. LAIRD, 315 F.SUPP. 544(1970), HOLDING THAT A PERSON UNLAWFULLY INDUCTED UNDER THE DELINQUENCY REGULATIONS IS NOT LEGALLY WITHIN THE ARMED FORCES.

MR. DEAN WAS CREDITED WITH PAY AND ALLOWANCES FOR SO MUCH OF HIS PURPORTED SERVICE AS WAS PERFORMED IN A PAY STATUS BUT PAYMENT HAS ACTUALLY BEEN MADE TO HIM FOR ONLY PART OF THE PAY AND ALLOWANCES SO CREDITED. YOU EXPRESSED DOUBT AS TO WHETHER YOU ARE AUTHORIZED TO PAY HIM THE PAY AND ALLOWANCES THAT ACCRUED TO HIM THROUGH MARCH 17, 1972, THE DATE OF HIS RELEASE FROM MILITARY CONTROL, OR WHETHER HIS ENTITLEMENT IS LIMITED TO RETENTION OF PAY AND ALLOWANCES CURRENTLY PAID TO HIM.

IN THE GUTKNECHT CASE THE PLAINTIFF REFUSED TO BE INDUCTED AND IN THE BREEN CASE THE PLAINTIFF SOUGHT AN INJUNCTION AGAINST ANY POSSIBLE INDUCTION. HENCE, NEITHER PLAINTIFF WAS EVER IN THE ARMED FORCES. IN THE ANDRE AND BRADLEY CASES THE PLAINTIFFS SUBMITTED TO INDUCTION AND ACTUALLY SERVED IN THE ARMY AND EACH WAS GRANTED A WRIT OF HABEAS CORPUS ON THE GROUND THAT HE WAS ILLEGALLY IN THE ARMY AND WAS ORDERED TO BE DISCHARGED. THESE DECISIONS DID NOT VOID THE INDUCTION UNDER THE UNLAWFUL DELINQUENCY REGULATIONS BUT MERELY RENDERED THEM VOID UPON AFFIRMATIVE PLEAS OF ILLEGALITY.

MR. DEAN WAS ORDERED TO REPORT FOR INDUCTION, REPORTED AND WAS INDUCTED INTO THE MARINE CORPS. IT APPEARS THAT HE WAS FOUND TO BE FIT FOR MILITARY SERVICE; THAT ALL STEPS PRESCRIBED BY STATUTE AND REGULATION IN EFFECT AT THE TIME OF HIS INDUCTION WERE COMPLIED WITH; AND THAT HE WAS ACTUALLY INDUCTED INTO THE MARINE CORPS. THE ONLY DEFECT IN HIS INDUCTION, AS LATER DISCOVERED, WAS HIS BEING DECLARED A DELINQUENT AND DETERMINED TO BE SUBJECT TO IMMEDIATE INDUCTION. HENCE, HIS INDUCTION NEED NOT BE CONSIDERED AS VOID BUT MERELY VOIDABLE.

WE HAVE LONG RECOGNIZED CONSTRUCTIVE ENLISTMENTS IN THE MILITARY SERVICE WHERE PERSONS OTHERWISE QUALIFIED TO ENLIST ENTER UPON AND RENDER FULL MILITARY DUTY AND THE GOVERNMENT ACCEPTS SUCH SERVICE WITHOUT CONDITION AND WE HAVE STATED THAT SUCH CONSTRUCTIVE ENLISTMENTS MAY BE REGARDED AS DE JURE ENLISTMENTS. SEE 45 COMP. GEN. 218(1965). THE COURTS HAVE RECOGNIZED A CONSTRUCTIVE INDUCTION. SEE 33 COMP. GEN. 34, 35(1953) AND CASES THERE CITED.

IT IS OUR VIEW THAT SINCE MR. DEAN WAS ACTUALLY INDUCTED INTO THE ARMED FORCES AND THAT HE SERVED ON ACTIVE DUTY FOR A STATED PERIOD OF TIME, HE MAY BE CONSIDERED AS A DE JURE MEMBER OF THE MARINE CORPS UNTIL HIS DISCHARGE FOR PAY PURPOSES. ACCORDINGLY, HE IS ENTITLED TO THE FULL PAY AND ALLOWANCES CREDITED TO HIS ACCOUNT SUBJECT, OF COURSE, TO THE PROVISIONS OF 37 U.S.C. 503(A). YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.