B-39976, APRIL 15, 1944, 23 COMP. GEN. 786

B-39976, APRIL 15, 1944, 23 COMP. GEN. 786

PAY - COAST GUARD - APPREHENSION FOR DESERTION AFTER EXPLANATION OF ENLISTMENT TERM THE PROVISION IN THE ACT OF DECEMBER 13, 1941, AUTHORIZING THE INVOLUNTARY EXTENSION OF ENLISTMENTS IN THE NAVY, MARINE CORPS, AND COAST GUARD FOR THE WAR PERIOD, DOES NOT OPERATE TO EFFECT AN INVOLUNTARY EXTENSION OF THE ENLISTMENT OF A MAN WHOSE ENLISTMENT TERM EXPIRES WHILE HE IS IN A DESERTION STATUS, AND, THEREFORE, WHERE A COAST GUARD ENLISTED MAN WAS IN A DESERTION STATUS ON THE DATE HIS ENLISTMENT TERM EXPIRED, THE PERIOD AFTER HIS ARREST AND WHILE AWAITING TRIAL BY GENERAL COURT MARTIAL, WHICH RESULTED IN CONVICTION, CONFINEMENT, AND DISHONORABLE DISCHARGE, MAY NOT BE REGARDED AS SERVICE UNDER HIS CONTRACT OF ENLISTMENT SO AS TO ENTITLE HIM TO ACTIVE DUTY PAY DURING SUCH PERIOD.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, APRIL 15, 1944:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 2, 1944, FORWARDING A LETTER FROM THE DISBURSING OFFICER, U.S. NAVAL PRISON, NAVY YARD, PORTSMOUTH, NEW HAMPSHIRE, DATED DECEMBER 29, 1943, WITH RELATED CORRESPONDENCE, CONCERNING THE RIGHT OF JAMES CLEMENT FRAZIER, APPRENTICE SEAMAN, U.S. COAST GUARD, TO ACTIVE DUTY PAY WHILE AWAITING TRIAL BY GENERAL COURT MARTIAL. YOU REQUEST DECISION WHETHER FRAZIER, NOW A GENERAL COURT MARTIAL PRISONER UNDERGOING CONFINEMENT AT THE UNITED STATES NAVAL PRISON, PORTSMOUTH, NEW HAMPSHIRE, IS ENTITLED TO ACTIVE DUTY PAY FOR THE PERIOD FEBRUARY 17, 1943, TO APRIL 26, 1943, UNDER THE CONDITIONS SET FORTH IN THE ENCLOSED CORRESPONDENCE.

IT APPEARS THAT JAMES CLEMENT FRAZIER ENLISTED IN THE COAST GUARD, FOR A PERIOD OF THREE YEARS, ON DECEMBER 16, 1939, THAT WHILE SERVING IN THIS ENLISTMENT HE ABSENTED HIMSELF FOR THE PERIOD NOVEMBER 2, 1941, TO FEBRUARY 17, 1943, AND THAT HE WAS DECLARED A DESERTER. THE DISBURSING OFFICER STATES THAT DURING THE SAID PERIOD OF DESERTION FRAZIER'S ENLISTMENT EXPIRED AND THAT, UPON APPREHENSION OR SURRENDER (PRESUMABLY FEBRUARY 17, 1943), HIS ACCOUNT WAS TAKEN UP AND HE WAS CARRIED IN A NON- PAY STATUS BY THE PAY OFFICER, COAST GUARD RECEIVING STATION, ELLIS ISLAND, NEW YORK, DURING THE PERIOD FEBRUARY 17 TO APRIL 26, 1943. FURTHER APPEARS THAT HE WAS DELIVERED TO THE RECEIVING STATION, HART'S ISLAND, NEW YORK, ON APRIL 27, 1943, FOR TRIAL BY GENERAL COURT MARTIAL AND THAT ON AUGUST 7, 1943, HE WAS CONVICTED BY GENERAL COURT MARTIAL OF DESERTION AND WAS ,SENTENCED TO TWENTY FOUR (24) MONTHS AND A DISHONORABLE DISCHARGE.'

IN FORWARDING THE LETTER OF THE DISBURSING OFFICER, THE COMMANDANT, U.S. COAST GUARD, RECOMMENDED, IN HIS FIRST INDORSEMENT OF JANUARY 10, 1944, THAT A DECISION BE OBTAINED AS TO WHETHER THE ENLISTMENT PERIOD OF AN ENLISTED MAN IN A DESERTION STATUS IS CONSIDERED TO HAVE BEEN EXTENDED UNDER THE PROVISIONS OF THE ACT OF DECEMBER 13, 1941, 55 STAT. 799, AND ALNAV 155, 1941, AND, IF SO, WHETHER PAY ACCRUES FOR THE PERIOD AWAITING THE TRAIL BY COURT MARTIAL WHICH RESULTED IN HIS CONVICTION AND CONFINEMENT, NOTWITHSTANDING THE FACT THAT THE PERIOD FOR WHICH HE HAD ENLISTED EXPIRED WHILE IN A DESERTION STATUS BUT SUBSEQUENT TO THE EFFECTIVE DATE OF ALNAV 155.

THE ACT APPROVED DECEMBER 13, 1941, 55 STAT. 799, PROVIDES:

THAT IN TIME OF WAR ALL ENLISTMENTS IN THE REGULAR NAVY MARINE CORPS, AND COAST GUARD, AND IN THE RESERVE COMPONENTS THEREOF AS APPLICABLE, MAY BE EXTENDED BY THE SECRETARY OF THE NAVY FOR SUCH ADDITIONAL TIME AS HE MAY DEEM NECESSARY IN THE INTEREST OF NATIONAL DEFENSE: PROVIDED, THAT ALL MEN WHOSE TERMS OF ENLISTMENT ARE EXTENDED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT SHALL CONTINUE DURING SUCH EXTENSIONS TO BE SUBJECT IN ALL RESPECTS TO THE LAWS AND REGULATIONS FOR THE GOVERNMENT OF THE NAVY: PROVIDED FURTHER, THAT MEN DETAINED IN SERVICE IN ACCORDANCE WITH THIS ACT, SHALL, UNLESS THEY VOLUNTARILY EXTEND THEIR ENLISTMENTS, BE DISCHARGED NOT LATER THAN SIX MONTHS AFTER THE TERMINATION OF THE CONDITION WHICH ORIGINALLY AUTHORIZED THEIR DETENTION.

ON DECEMBER 15, 1941, ALNAV 155, 1941, WAS ISSUED TO THE NAVAL SERVICE AND READS AS FOLLOWS:

ENLISTMENTS OF MEN IN REGULAR NAVY MARINE CORPS AND COAST GUARD WHO DO NOT VOLUNTARILY EXTEND OR REENLIST AND ALL ENLISTMENTS OF MEN IN RESERVE COMPONENTS THEREOF ARE HEREBY EXTENDED IN ACCORDANCE WITH ACT APPROVED DECEMBER 13, 1941 FOR A PERIOD NOT LATER THAN SIX MONTHS AFTER TERMINATION OF WAR X MEN SO DETAINED NOT ENTITLED TO ENLISTMENT ALLOWANCE X NO CHANGE PRESENT LAW GOVERNING PAYMENT ENLISTMENT ALLOWANCE MEN WHO VOLUNTARILY REENLIST OR EXTEND ENLISTMENT IN REGULAR NAVY MARINE CORPS AND COAST GUARD X PROVISIONS SECTION 1422 REVISED STATUTES SUSPENDED EFFECTIVE DECEMBER 13, 1941.

THE ACT OF JULY 30, 1937, 50 STAT. 547 (14 U.S.C. 35), PROVIDES IN PART AS FOLLOWS:

(A) ALL PERSONS COMPOSING THE ENLISTED FORCE OF THE COAST GUARD SHALL BE ENLISTED FOR A TERM NOT TO EXCEED THREE YEARS, IN THE DISCRETION OF THE SECRETARY OF THE TREASURY, WHO SHALL PREPARE REGULATIONS GOVERNING SUCH ENLISTMENTS AND FOR THE GENERAL GOVERNMENT OF THE SERVICE: PROVIDED, THAT AN ENLISTMENT IN THE COAST GUARD SHALL NOT BE REGARDED AS COMPLETE UNTIL THE ENLISTED MAN CONCERNED SHALL HAVE SERVED ANY TIME, IN EXCESS OF ONE DAY, LOST ON ACCOUNT OF UNAUTHORIZED ABSENCE FROM DUTY, OR INJURY, SICKNESS, OR DISEASE, RESULTING FROM HIS OWN INTEMPERATE USE OF DRUGS OR ALCOHOLIC LIQUORS, OR OTHER MISCONDUCT, OR WHILE IN CONFINEMENT UNDER SENTENCE, OR WHILE AWAITING TRIAL AND DISPOSITION OF HIS CASE IF THE TRIAL RESULTS IN CONVICTION.

FRAZIER'S DEFINITE PERIOD OF ACTUAL SERVICE REQUIRED BY HIS ENLISTMENT WAS FROM DECEMBER 16, 1939 TO DECEMBER 15, 1942. THE COAST GUARD PAY AND SUPPLY INSTRUCTIONS PROVIDE:

ARTICLE 150. (4) PAY ACCRUES FOR THE PERIOD UNDER ARREST AWAITING ACTION ON A COAST GUARD COURT, WHETHER CONFINED OR NOT, EXCEPT UNDER THE FOLLOWING CONDITIONS:

(B) AFTER EXPIRATION OF ENLISTMENT, IF THE TRIAL RESULTS IN CONVICTION.

THE TIME FROM FEBRUARY 17, 1943, WHILE AWAITING TRIAL, WHICH RESULTED IN CONVICTION, WAS NOT SERVICE MAKING GOOD TIME LOST UNDER HIS CONTRACT OF ENLISTMENT AND NO PAYMENT FOR SUCH PERIOD IS AUTHORIZED. 9 COMP. GEN. 323, 325, 11 ID. 342, 344; DECISION B-24767, DATED APRIL 21, 1942; DECISION B-34315 DATED OCTOBER 30, 1943.

DURING FRAZIER'S TERM OF ENLISTMENT, DECEMBER 16, 1939 TO DECEMBER 15, 1942, HE WAS ABSENT IN DESERTION FROM NOVEMBER 2, 1941 TO DECEMBER 15, 1942. THEREFORE, UNDER THE ACT OF JULY 30, 1937, HIS ENLISTMENT WOULD NOT BE COMPLETE UNTIL HE HAD SERVED THE NUMBER OF DAYS LOST BY DESERTION WHICH WERE REQUIRED TO BE MADE GOOD.

ALNAV 155 DIRECTS THAT ENLISTMENTS OF MEN IN THE REGULAR NAVY, MARINE CORPS, AND COAST GUARD ,1WHO DO NOT VOLUNTARILY EXTEND OR REENLIST * * * ARE HEREBY EXTENDED.'

A VOLUNTARY EXTENSION OF A PRE-EXISTING ENLISTMENT DOES NOT BECOME EFFECTIVE UNTIL THE SERVICE REQUIRED UNDER SUCH ENLISTMENT HAS BEEN COMPLETED; AND BOTH THE LANGUAGE AND PURPOSE OF THE ACT OF DECEMBER 13, 1941, AND THE ALNAV, ISSUED PURSUANT THERETO, CLEARLY INDICATE THAT THE INVOLUNTARY EXTENSION OF AN ENLISTMENT FOR THE DURATION OF THE WAR AND FOR SIX MONTHS THEREAFTER IS NOT CONTEMPLATED UNTIL TERMINATION OF THE CURRENT ENLISTMENT. OTHERWISE, THERE WOULD BE NO OPPORTUNITY ON THE PART OF THE MAN TO REENLIST, OR VOLUNTARILY TO EXTEND HIS ENLISTMENT, FOR A DEFINITE PERIOD, WHICH THE SAID LAW AND THE ALNAV SEEM TO CONTEMPLATE AND WHICH THE NAVY HERETOFORE HAS CONTENDED WAS AUTHORIZED UNDER THE PERMISSIVE PROVISION OF SAID STATUTE. SEE, IN THIS CONNECTION, THAT PART OF A LETTER OF THE SECRETARY OF THE NAVY, DATED JULY 24, 1942, QUOTED IN DECISION DATED DECEMBER 19, 1942, 22 COMP. GEN. 548, PAGES 552 AND 553, AND THAT PART OF SAID DECISION, PAGE 555, IN WHICH IT IS STATED---

* * * THAT THE ACT OF DECEMBER 13, 1941, AUTHORIZING THE INVOLUNTARY EXTENSION OF ENLISTMENTS FOR THE WAR PERIOD DID NOT INTEND TO STOP DISCHARGES AND VOLUNTARY REENLISTMENTS (OR VOLUNTARY EXTENSIONS OF ENLISTMENT/--- FOR TERMS WHICH MIGHT EXTEND YEARS BEYOND THE WAR * * *. THEREFORE, SINCE THE ENLISTED MAN HERE INVOLVED DID NOT MAKE GOOD THE TIME LOST, THE ACT OF DECEMBER 13, 1941, AND ALNAV 155 COULD NOT OPERATE TO EFFECT AN INVOLUNTARY EXTENSION OF HIS ENLISTMENT. HENCE, THE PERIOD, FEBRUARY 17, TO APRIL 26, 1943, DURING WHICH HE WAS UNDER ARREST, WAS AFTER EXPIRATION OF ENLISTMENT, AND, AS THE TRIAL RESULTED IN CONVICTION, NO PAY ACCRUED THEREFOR. ACCORDINGLY, THE DISBURSING OFFICER IS NOT AUTHORIZED TO CREDIT THE MAN WITH ACTIVE DUTY PAY FOR THE PERIOD FEBRUARY 17, 1943 TO APRIL 26, 1943.