[Military Pay and Allowance Committee Action Number 557]

GAO was asked whether court-martialed enlisted personnel whose enlistments have expired are entitled to any of the appellate leave benefits authorized by 10 U.S.C. 706. The Military Justice Amendments of 1981 authorized payment of a lump-sum leave settlement to court-martialed service members sentenced to receive punitive discharges when they are involuntarily placed on appellate leave. That payment is based on the rate of basic pay to which they were entitled on the day before the appellate leave began. GAO was asked whether any payment could be made to court-martialed members who are in a nonpay status on that day because of the previous expiration of their enlistments. GAO has recognized that an enlisted member in a nonpay status nevertheless has a rate of basic pay, which is the full rate applicable to the particular enlisted grade he holds. Since the court-martialed personnel in question will retain an enlisted grade until their final discharge, they will have a rate of basic pay upon which the lump-sum leave settlement may be based regardless of the rate of basic pay actually payable to them for that day. No credit for pay and allowances accrues to a court-martialed enlisted member during periods after the expiration of his term of enlistment, unless he is restored to full-duty status or is found to have been held over in service for the convenience of the Government. Since court-martialed members are held over in military control by reason of their own misconduct, no pay and allowances can be considered to have accrued to their credit beyond the expiration of their enlistments except during periods when they have been returned to duty while awaiting trial. The lump-sum monetary leave settlement will then be based on the full rate of pay applicable to their enlisted grade on the day before they are placed on appellate leave. Because of punitive discharges included in their sentences, the members will be reduced to the lowest enlisted grade, and the rate of pay applicable in computing the lump-sum settlement will be the appropriate basic pay rate for the lowest enlisted grade. In the event an accused member does not elect to receive a lump-sum monetary settlement for his leave, he will be entitled to the military basic pay and allowances of his grade commencing on the day he is placed on appellate leave for as many days of accrued leave as he has to his credit.