B-68640, SEP 19, 1947

B-68640, SEP 19, 1947

PRECIS-UNAVAILABLE

COLONEL JOHN L. SCOTT, F. D., U.S. ARMY:

CHIEF OF FINANCE

WAR DEPARTMENT

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 28, 1947, AS FOLLOWS:

"1. THERE IS INCLOSED A VOUCHER FOR WILLIAM D. BACH, PRIVATE, 6662806 CLAIMING FINAL PAY FOR THE PERIOD 23 MARCH 1946 TO 21 APRIL 1947, SUBMITTED FOR PAYMENT TO THE UNDERSIGNED, A DISBURSING OFFICER U.S. ARMY.

"2. IT IS REQUESTED THAT THE CLAIM BE FORWARDED TO THE COMPTROLLER GENERAL FOR ADVANCE DECISION AS TO THE LEGALITY OF PAYMENT.

"3. PRIVATE BACH WAS SENTENCED TO BE DISHONORABLY DISCHARGED THE SERVICE, TO FORFEIT ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE, AND TO BE CONFINED TO HARD LABOR FOR FIVE YEARS, IN ACCORDANCE WITH GENERAL COURT-MARTIAL ORDER NO. 35, HEADQUARTERS 104TH INFANTRY DIVISION, CAMP CARSON, COLORADO, DATED 11 MAY 1944. UNDER GENERAL COURT-MARTIAL ORDER NO. 1381, HEADQUARTERS SEVENTH SERVICE COMMAND, OMAHA, NEBRASKA, DATED 11 SEPTEMBER 1944, THAT PORTION OF THE SENTENCE WHICH REFERRED TO CONFINEMENT WAS REMITTED TO TWO AND ONE-HALF YEARS. ADJUTANT GENERAL'S OFFICE LETTER, DATED 15 MARCH 1946, REMITTED THAT PORTION OF THE SENTENCE WHICH PERTAINED TO DISHONORABLE DISCHARGE AND AUTHORIZED THAT PRIVATE BACH BE FURNISHED A DISCHARGE CERTIFICATE, WD AGO FORM NO. 53 56 (BLUE) UPON EXPIRATION OF HIS SENTENCE OF CONFINEMENT. LETTER DATED 18 APRIL 1947 FROM THE ADJUTANT GENERAL'S OFFICE STATES THAT SUBJECT ENLISTED MAN WAS ERRONEOUSLY HELD IN CONFINEMENT FROM 23 MARCH 1946 (DATE OF EXPIRATION OF CONFINEMENT), AND THAT IT APPEARS THIS PRISONER WAS IN A PAY STATUS FROM THAT DATE UNTIL DATE OF DISCHARGE.

"4. INASMUCH AS GENERAL COURT-MARTIAL ORDER NO. 35 ORDERED THAT PRIVATE BACH FORFEIT ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE AND THIS PORTION OF THE SENTENCE WAS NEVER REMITTED, THE UNDERSIGNED IS IN DOUBT AS TO WHETHER PAYMENT OF THE ATTACHED VOUCHER IS PROPER."

SECTION 2 OF THE ACT OF DECEMBER 13, 1941, 55 STAT. 800, PROVIDES AS FOLLOWS:

"THE PERIODS OF SERVICE, TRAINING AND SERVICE, ENLISTMENT, APPOINTMENT, OR COMMISSION, OF ALL MEMBERS OF THE ARMY OF THE UNITED STATES NOW OR HEREAFTER IN OR SUBJECT TO ACTIVE MILITARY SERVICE OF THE UNITED STATES ARE EXTENDED FOR THE PERIOD STATED IN THE PRECEDING SECTION (DURING THE EXISTENCE OF ANY WAR IN WHICH THE UNITED STATES IS ENGAGED, AND DURING THE SIX MONTHS IMMEDIATELY FOLLOWING THE TERMINATION OF ANY SUCH WAR): PROVIDED, THAT NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PREVENT THE PRESIDENT FROM TERMINATING SUCH PERIODS OF SERVICE, TRAINING AND SERVICE, ENLISTMENT, APPOINTMENT, OR COMMISSION AT AN EARLIER DATE IN ANY CASE."

SEE, ALSO, SECTION 55 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 54 STAT. 53.

UNDER SUCH PROVISIONS OF LAW MR. BACH'S TERM OF SERVICE NORMALLY WOULD NOT HAVE EXPIRED UNTIL SIX MONTHS IMMEDIATELY FOLLOWING THE WAR - A DATE NOT YET REACHED-- UNLESS HE WAS SOONER DISCHARGED. NO DISCHARGE WAS ISSUED TO HIM UNTIL APRIL 21, 1947, APPROXIMATELY THIRTEEN MONTHS AFTER THE PERIOD OF THE CONFINEMENT TO WHICH HE WAS SENTENCED IS STATED TO HAVE ENDED. ACCORDINGLY, DURING THE PERIOD MARCH 24, 1946, TO APRIL 21, 1947, HE CONTINUED TO BE AN ENLISTED MAN OF THE ARMY.

IN A SOMEWHAT SIMILAR CASE INVOLVING AN ENTITLED MAN OF THE NAVY, CONSIDERED BY THE COMPTROLLER OF THE TREASURY IN DECISION OF DECEMBER 19, 1906, 13 COMP. DEC. 409, IT WAS HELD THAT THE FORFEITURE OF ALL PAY "DURING HIS TERM OF CONFINEMENT" IMPOSED BY THE COURT MARTIAL SENTENCE CEASED UPON THE DAY THAT THE TERM OF CONFINEMENT SO IMPOSED ENDED, AND IT WAS STATED:

"*** THERE IS NO RESERVATION AFTER THE FORFEITURE HAS CEASED, AND, THEREFORE, IF MURRAY WAS ENTITLED TO ANY PAY AFTER THE TERMINATION OF HIS TWO YEARS' CONFINEMENT HE WAS ENTITLED TO FULL PAY, AGAINST WHICH PAYMASTER MEL'S PAYMENT ($3 PER MONTH PRISON EXPENSE) COULD BE CHARGED.

"THE TWO YEARS'S TERM OF CONFINEMENT TO WHICH MURRAY WAS SENTENCED ENDED SEPTEMBER 10, 1905. HE WAS NOT DISCHARGED FROM THE SERVICE UNTIL NEARLY TWO MONTHS THEREAFTER, AND DURING THAT TIME HIS FOUR YEARS' TERM OF ENLISTMENT WAS RUNNING AND WOULD NOT EXPIRE UNTIL MARCH 29, 1907. THE SENTENCE OF THE COURT-MARTIAL TO DISHONORABLE DISCHARGE WAS NOT SELF- EXECUTING; IT REQUIRED THE ACTION OF THE PROPER OFFICER, WHO SHOULD, IN OBEDIENCE TO THE SENTENCE OF THE COURT, FORMALLY DISCHARGE THE MAN FROM THE SERVICE. MURRAY MIGHT LEGALLY HAVE BEEN DISCHARGED AT THE END OF THE TERM OF IMPRISONMENT, WHETHER HE WAS AT THE TIME IN THE HOSPITAL OR ELSEWHERE. IF NOT ENTITLED TO PAY DURING THE TWO MONTHS HE WAS HELD AND WHILE HE WAS AN ENLISTED MAN OF THE NAVY HIS CONDITION WAS WORSE THAN WHILE SERVING OUT THE SENTENCE.

"IT HAS BEEN HELD BY THE ACCOUNTING OFFICERS THAT, IN THE CASE OF A SHORT DELAY IN DISCHARGING A COURT-MARTIAL PRISONER, SUCH A DELAY AS WAS NECESSARY AND INCIDENT TO THE DISCHARGE, THE MAN WOULD NOT BE ENTITLED TO PAY DURING THE DETENTION, ALTHOUGH HIS ENLISTMENT HAS NOT EXPIRED. BUT IN A CASE LIKE THIS, WHERE THE DETENTION WAS NEARLY TWO MONTHS, I AM OF OPINION THAT THE RIGHT TO THE PROPER PAY OF HIS GRADE REVIVED UPON THE TERMINATION OF THE IMPRISONMENT IMPOSED BY THE SENTENCE."

THE SAME RULE WOULD APPEAR TO BE APPLICABLE HERE. WHILE THE FORFEITURES OF PAY UNDER THE SENTENCE OF COURT-MARTIAL IN THE CASE CONSIDERED IN THE DECISION WERE TO RUN CONCURRENTLY WITH THE TERM OF THE CONFINEMENT, WHEREAS UNDER THE SENTENCE IN THE PRESENT CASE THE SOLDIER WAS TO FORFEIT "ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE," IT SEEMS CLEAR THAT THE PURPOSE AND INTENT OF THE PENALTY WAS TO INVOKE FORFEITURES ONLY CONCURRENTLY WITH THE ADJUDGED TERM OF CONFINEMENT. THAT IS TO SAY, THE SOLDIER WAS TO BE DISCHARGED FROM THE SERVICE UPON THE COMPLETION OF SUCH CONFINEMENT AND, HAD THE SENTENCE PROPERLY BEEN EXECUTED, NO PAY AND ALLOWANCES WOULD THEREAFTER BEEN ACCRUED; HENCE, IT IS CLEAR THAT NO FORFEITURES BEYOND THE DATE THE ADJUDGED CONFINEMENT EXPIRED WERE CONTEMPLATED. CF. 15 COMP.GEN. 646. ACCORDINGLY, SINCE THE CONFINEMENT TO WHICH MR. BACH WAS SENTENCED ENDED ON MARCH 23, 1946, THE FORFEITURE OF PAY TO BECOME DUE CEASED ON THAT DATE. THEREAFTER HE WAS ENTITLED TO FULL PAY UNTIL THE DATE OF HIS DISCHARGE. SEE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY REPORTED IN SECTION 410(3) OF THE BULLETIN OF THE JUDGE ADVOCATE GENERAL OF THE ARMY JANUARY-FEBRUARY 1947.

IT IS NOTED THAT IN THE VOUCHER SUBMITTED WITH YOUR LETTER IT IS PROPOSED TO PAY MR. BACH FOR THE PERIOD MARCH 23, 1946, TO APRIL 21, 1947. HOWEVER, HE DID NOT ACTUALLY ENTER A PAY STATUS UNTIL MARCH 24, THE DAY FOLLOWING THE SAY ON WHICH, IT IS STATED, HIS CONFINEMENT PROPERLY SHOULD HAVE BEEN TERMINATED. THE VOUCHER, WITH SUPPORTING PAPERS, IS RETURNED HEREWITH AND, IF IT IS REVISED ACCORDINGLY, PAYMENT THEREON IS AUTHORIZED, IF IT IS OTHERWISE CORRECT, IT BEING UNDERSTOOD THAT THERE SHALL BE TAKEN INTO CONSIDERATION ANY PAYMENTS OR GRATUITIES PAID TO MR. BACH ON DISCHARGE WHICH WOULD NOT HAVE BEEN PROPER HAD IT THEN BEEN KNOWN THAT HE WAS IN A PAY STATUS.