B-96411, DECEMBER 11, 1950, 30 COMP. GEN. 232

B-96411, DECEMBER 11, 1950, 30 COMP. GEN. 232

PAY - DISCHARGES AND DISMISSALS - SUBSEQUENT REINSTATEMENT UNDER THE ARTICLES OF WAR A SPECIAL COURT MARTIAL MAY SENTENCE A SOLDIER TO A BAD CONDUCT DISCHARGE BUT THE SENTENCE MUST BE REVIEWED BY A BOARD OF REVIEW AND THE JUDGE ADVOCATE GENERAL BEFORE IT LEGALLY MAY BE EXECUTED, SO THAT A SOLDIER WHO WAS SO SENTENCED FOR AN ABSENCE WITHOUT LEAVE IN VIOLATION OF ARTICLE OF WAR 61 AND DISCHARGED PRIOR TO VACATION OF THE SENTENCE BY THE REVIEWING AUTHORITIES, WHICH VACATION MADE THE DISCHARGE VOID, AND WHO WAS GIVEN THE RIGHT TO ELECT EITHER TO RETURN TO DUTY IN AN HONORABLE STATUS OR TO BE FURNISHED A GENERAL DISCHARGE FOR THE CONVENIENCE OF THE GOVERNMENT, IS ENTITLED, UPON RETURNING TO DUTY, TO THE PAY APPROPRIATE TO HIS RANK FOR THE PERIOD BETWEEN THE DATE OF DISCHARGE AND THE DATE OF RETURNING TO DUTY. 23 COMP. GEN. 740, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL YATES TO FIRST LT. J. L. SHROYER, DEPARTMENT OF THE/1ARMY, DECEMBER 11, 1950:

BY ENDORSEMENT FROM THE CHIEF OF FINANCE, DATED JUNE 26, 1950, THERE WAS RECEIVED YOUR LETTER OF MAY 25, 1950, WITH ENCLOSURES, REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A MILITARY PAY ORDER, TRANSMITTED THEREWITH, STATED IN FAVOR OF AN ARMY ENLISTED MAN FOR PAY AS A RECRUIT FOR THE PERIOD FROM JULY 23, 1949, TO NOVEMBER 2, 1949, INCLUSIVE.

IT APPEARS THAT THE SOLDIER WAS TRIED BY A SPECIAL COURT MARTIAL ON FEBRUARY 23, 1949, FOR ABSENCE WITHOUT LEAVE FROM HIS STATION FOR A PERIOD IN EXCESS OF SIX MONTHS IN VIOLATION OF ARTICLE OF WAR 61, 41 STAT. 801. THE COURT FOUND HIM GUILTY AND SENTENCED HIM TO BE DISCHARGED FROM THE SERVICE WITH A BAD CONDUCT DISCHARGE, TO FORFEIT ALL PAY AND ALLOWANCES TO BECOME DUE AFTER THE DATE OF THE ORDER DIRECTING EXECUTION OF THE SENTENCE, AND TO BE CONFINED AT HARD LABOR FOR SIX MONTHS. BY SPECIAL COURT MARTIAL ORDERS NO. 1, HEADQUARTERS, 5TH ARMY, DATED APRIL 15, 1949, THE SENTENCE WAS MODIFIED TO PROVIDE FOR A BAD CONDUCT DISCHARGE, CONFINEMENT AT HARD LABOR FOR SIX MONTHS, AND FORFEITURE OF $48 PAY PER MONTH FOR SIX MONTHS, AND AS MODIFIED THE SENTENCE WAS ORDERED EXECUTED, EXCEPT THAT THE EXECUTION OF THAT PORTION ADJUDGING THE BAD CONDUCT DISCHARGE WAS SUSPENDED UNTIL HIS RELEASE FROM CONFINEMENT AT THE POST GUARDHOUSE, FITZSIMONS GENERAL HOSPITAL, DENVER, COLORADO. PURSUANT TO THE ABOVE ORDERS, HEADQUARTERS, FITZSIMONS GENERAL HOSPITAL, BY PARAGRAPH 18, SPECIAL ORDER NO. 193, DATED JULY 12, 1949, RELEASED THE PRISONER FROM CONFINEMENT AND DISCHARGED HIM WITH A BAD CONDUCT DISCHARGE ON JULY 22, 1949. MEANWHILE, THE BOARD OF REVIEW, WITH THE CONCURRENCE OF THE JUDGE ADVOCATE GENERAL, UPON REVIEW, UNDER AUTHORITY OF PARAGRAPH 3 (E), ARTICLE OF WAR 50, HELD THE RECORD "TO BE LEGALLY INSUFFICIENT TO SUPPORT SO MUCH OF THE SENTENCE AS IS IN EXCESS OF CONFINEMENT AT HARD LABOR FOR SIX MONTHS AND FORFEITURE OF $48 PAY PER MONTH FOR SIX MONTHS," AND DIRECTED VACATION OF SO MUCH OF THE SENTENCE AS WAS IN EXCESS THEREOF, RESTORING ALL PRIVILEGES AND PROPERTY OF WHICH THE ACCUSED WAS DEPRIVED BY VIRTUE OF THAT PORTION OF THE SENTENCE VACATED. HEADQUARTERS, 5TH ARMY, BY SPECIAL COURT MARTIAL ORDERS NO. 12, DATED JULY 25, 1949, VACATED SO MUCH OF THE SENTENCE AS PERTAINED TO THE BAD CONDUCT DISCHARGE IN ACCORDANCE WITH THE HOLDING OF THE BOARD OF REVIEW, ALTHOUGH, AT THIS TIME, THE SOLDIER HAD BEEN DISCHARGED AND HAD DEPARTED FITZSIMONS GENERAL HOSPITAL FOR HIS HOME. UNDER DATE OF OCTOBER 5, 1949, THE ADJUTANT GENERAL OF THE ARMY ADVISED THE COMMANDING GENERAL OF THE ARMY THAT IT HAD BEEN DETERMINED THAT THE BAD CONDUCT DISCHARGE GIVEN THE SOLDIER WAS "VOID AB INITIO, AND THAT HE WAS NOT CONSTRUCTIVELY DISCHARGED FROM HIS STATUS AS AN ENLISTED MAN BY VIRTUE THEREOF.' THEREUPON, THE SOLDIER WAS NOTIFIED OF THE CANCELLATION OF THE BAD CONDUCT DISCHARGE AND BY LETTER DATED OCTOBER 17, 1949, OF THE COMMANDING GENERAL, FITZSIMONS GENERAL HOSPITAL, HE WAS ADVISED THAT HE COULD ELECT TO RETURN TO THAT STATION IN AN HONORABLE DUTY STATUS, OR BE FURNISHED A GENERAL DISCHARGE FOR THE CONVENIENCE OF THE GOVERNMENT IN PLACE OF THE BAD CONDUCT DISCHARGE PREVIOUSLY ISSUED. THE SOLDIER ELECTED TO RETURN TO DUTY AND REPORTED AT THE FITZSIMONS GENERAL HOSPITAL ON NOVEMBER 3, 1949. LATER, THE OFFICE OF THE JUDGE ADVOCATE GENERAL CONSIDERED THE MATTER AND UNDER DATE OF MARCH 27, 1950, ADVISED THE ADJUTANT GENERAL THAT IT WAS THE OPINION OF THAT OFFICE THAT THE SOLDIER WAS IN A DUTY STATUS FROM JULY 23, 1949, TO DATE OF RESTORATION.

PROVISIONS OF THE ARTICLES OF WAR AS AMENDED BY TITLE II OF THE ACT OF JUNE 24, 1948, 62 STAT. 627, 630, 634, 637 (10 U.S.C. 1484, 1518, 1521), PERTAINING TO THE AUTHORITY OF A SPECIAL COURT MARTIAL TO IMPOSE A SENTENCE OF BAD CONDUCT DISCHARGE, ARE AS FOLLOWS:

ART. 13. SPECIAL COURTS-MARTIAL. * * *

SPECIAL COURTS-MARTIAL SHALL NOT HAVE POWER TO ADJUDGE DISHONORABLE DISCHARGE OR DISMISSAL, OR CONFINEMENT IN EXCESS OF SIX MONTHS, NOR TO ADJUDGE FORFEITURE OF MORE THAN TWO-THIRDS PAY PER MONTH FOR A PERIOD OF NOT EXCEEDING SIX MONTHS: PROVIDED, THAT SUBJECT TO APPROVAL OF THE SENTENCE BY AN OFFICER EXERCISING GENERAL COURT-MARTIAL JURISDICTION AND SUBJECT TO APPELLATE REVIEW BY THE JUDGE ADVOCATE GENERAL AND APPELLATE AGENCIES IN HIS OFFICE, A SPECIAL COURT-MARTIAL MAY ADJUDGE A BAD-CONDUCT DISCHARGE IN ADDITION TO OTHER AUTHORIZED PUNISHMENT: PROVIDED FURTHER, THAT A BAD-CONDUCT DISCHARGE SHALL NOT BE ADJUDGED BY A SPECIAL COURT- MARTIAL UNLESS A COMPLETE RECORD OF THE PROCEEDINGS OF AND TESTIMONY TAKEN BY THE COURT IS TAKEN IN THE CASE.

ART. 47. * * *

D. APPROVAL.--- NO SENTENCE OF A COURT-MARTIAL SHALL BE CARRIED INTO EXECUTION UNTIL THE SAME SHALL HAVE BEEN APPROVED BY THE CONVENING AUTHORITY: PROVIDED, THAT NO SENTENCE OF A SPECIAL COURT-MARTIAL INCLUDING A BAD-CONDUCT DISCHARGE SHALL BE CARRIED INTO EXECUTION UNTIL IN ADDITION TO THE APPROVAL OF THE CONVENING AUTHORITY THE SAME SHALL HAVE BEEN APPROVED BY AN OFFICER AUTHORIZED TO APPOINT A GENERAL COURT-MARTIAL.

ART. 50. APPELLATE REVIEW. * * *

E. ACTION BY BOARD OF REVIEW IN CASES INVOLVING DISHONORABLE OR BAD CONDUCT DISCHARGES OR CONFINEMENT IN PENITENTIARY.--- NO AUTHORITY SHALL ORDER THE EXECUTION OF ANY SENTENCE OF A COURT-MARTIAL INVOLVING DISHONORABLE DISCHARGE NOT SUSPENDED, BAD-CONDUCT DISCHARGE NOT SUSPENDED, OR CONFINEMENT IN A PENITENTIARY UNLESS AND UNTIL THE APPELLATE REVIEW REQUIRED BY THIS ARTICLE SHALL HAVE BEEN COMPLETED AND UNLESS AND UNTIL ANY CONFIRMING ACTION REQUIRED SHALL HAVE BEEN COMPLETED. EVERY RECORD OF TRIAL BY GENERAL OR SPECIAL COURT-MARTIAL INVOLVING A SENTENCE TO DISHONORABLE DISCHARGE OR BAD-CONDUCT DISCHARGE, WHETHER SUCH DISCHARGES BE SUSPENDED OR NOT SUSPENDED, AND EVERY RECORD OF TRIAL BY GENERAL COURT- MARTIAL INVOLVING A SENTENCE TO CONFINEMENT IN A PENITENTIARY, OTHER THAN RECORDS OF TRIAL EXAMINATION OF WHICH IS REQUIRED BY PARAGRAPH (D) OF THIS ARTICLE, SHALL BE EXAMINED BY THE BOARD OF REVIEW WHICH SHALL TAKE ACTION AS FOLLOWS:

(3) IN ANY CASE IN WHICH THE BOARD OF REVIEW HOLDS THE RECORD OF TRIAL LEGALLY INSUFFICIENT TO SUPPORT THE FINDINGS OF GUILTY AND SENTENCE, IN WHOLE OR IN PART, AND THE JUDGE ADVOCATE GENERAL CONCURS IN SUCH HOLDING, THE FINDINGS AND SENTENCE SHALL THEREBY BE VACATED IN WHOLE OR IN PART IN ACCORD WITH SUCH HOLDING, AND THE RECORD SHALL BE TRANSMITTED BY THE JUDGE ADVOCATE GENERAL TO THE CONVENING AUTHORITY FOR REHEARING OR SUCH OTHER ACTION AS MAY BE APPROPRIATE.

PARAGRAPH (B) (1) OF ARTICLE OF WAR 51, 62 STAT. 638, PROVIDES IN PART THAT THE UNEXECUTED PORTION OF A SENTENCE MAY BE MITIGATED, REMITTED, OR SUSPENDED AND ANY ORDER OF SUSPENSION MAY BE VACATED, IN WHOLE OR IN PART, BY THE MILITARY AUTHORITY COMPETENT TO APPOINT, FOR THE COMMAND, A COURT OF THE KIND THAT IMPOSED THE SENTENCE, AND THERE FURTHER EXPRESSLY PROVIDES "THAT NO ORDER OF SUSPENSION OF A SENTENCE TO DISHONORABLE DISCHARGE OR BAD CONDUCT DISCHARGE SHALL BE VACATED UNLESS AND UNTIL ACTION HAS BEEN COMPLETED AS REQUIRED BY ARTICLES 48 AND 50.'

UNDER THE SAID PROVISIONS, IT APPEARS THAT WHILE A SPECIAL COURT MARTIAL MAY ADJUDGE A BAD CONDUCT DISCHARGE IN THE CASE OF AN ENLISTED PERSON, SUCH SENTENCE MUST BE APPROVED BY AN OFFICER AUTHORIZED TO APPOINT A GENERAL COURT MARTIAL AND BE REVIEWED BY THE JUDGE ADVOCATE GENERAL AND A BOARD OF REVIEW AS AUTHORIZED IN ARTICLE OF WAR 50 BEFORE THE SENTENCE TO BAD CONDUCT DISCHARGE LEGALLY MAY BE EXECUTED. IT IS NOTED THAT ARTICLE 50 PROVIDES THAT NO AUTHORITY SHALL ORDER THE EXECUTION OF ANY SENTENCE INVOLVING BAD CONDUCT DISCHARGE "NOT SUSPENDED" UNTIL THE APPELLATE REVIEW SHALL HAVE BEEN COMPLETED. READING SUCH PROVISION IN CONJUNCTION WITH ARTICLE 51, SUPRA, HOWEVER, MAKES IT REASONABLY CLEAR THAT A SUSPENSION UNTIL RELEASE FROM CONFINEMENT, AS IN THIS CASE, OR FOR SOME OTHER FIXED PERIOD OF TIME, NOT REQUIRING A VACATING ORDER TO RESTORE THE SENTENCE, IS NOT THE CHARACTER OF SUSPENSION CONTEMPLATED BY ARTICLE 50. OTHERWISE THE PROHIBITION AGAINST DISCHARGE UNTIL AFTER REVIEW, WHICH CANNOT BE SET AT NAUGHT BY VACATING AN INDEFINITE SUSPENSION UNDER ARTICLE 51, COULD BE SET BY NAUGHT BY A SUSPENSION FOR A FIXED PERIOD NOT REQUIRING A VACATING ORDER. IT IS NOT TO BE BELIEVED THAT THE CONGRESS INTENDED ANY SUCH ANOMALY, AND SUCH DOUBT AS THERE MAY BE ON THAT PHASE OF THE MATTER MAY BE RESOLVED IN CONSONANCE WITH THE ADMINISTRATIVE CONCLUSIONS. IT FOLLOWS THAT IN THE PRESENT CASE THE APPELLATE ACTION, AS REQUIRED BY THE ARTICLES OF WAR, HAD NOT BEEN COMPLETED AT THE TIME THE SOLDIER WAS RELEASED FROM CONFINEMENT AND GIVEN A BAD CONDUCT DISCHARGE AND SINCE IT HAS BEEN DETERMINED BY THE DEPARTMENT OF THE ARMY, IN ACCORDANCE WITH THE APPLICABLE ARTICLES OF WAR, THAT THE RECORD OF THE TRIAL LEGALLY IS INSUFFICIENT TO SUPPORT THE SENTENCE OF A BAD CONDUCT DISCHARGE AND SINCE THAT PORTION OF THE SENTENCE HAS BEEN VACATED, IT IS CONCLUDED THAT THE ORDER DIRECTING HIS BAD CONDUCT DISCHARGE WAS PROHIBITED BY LAW AND THAT THE DISCHARGE WAS UNAUTHORIZED AND VOID. IN SUCH CIRCUMSTANCES THE SOLDIER IS CONSIDERED TO BE ENTITLED TO PAY APPROPRIATE TO HIS RANK FOR THE PERIOD FROM JULY 23, 1949, TO NOVEMBER 2, 1949, IN ACCORDANCE WITH THE ADMINISTRATIVE DETERMINATIONS IN THE CASE.

THE FACTS IN THE CASE HERE INVOLVED ARE TO BE DISTINGUISHED FROM THE SITUATION CONSIDERED IN THE DECISION OF MARCH 31, 1944, REPORTED IN 23 COMP. GEN. 740, WHICH HELD--- QUOTING THE SYLLABUS---

WHERE, UPON THE SETTING ASIDE BY THE SECRETARY OF THE NAVY OF A COAST GUARD RESERVE ENLISTED MAN'S COURT-MARTIAL SENTENCE TO A BAD CONDUCT DISCHARGE, THE MAN WAS GIVEN THE OPTION OF RETURNING TO THE NAVAL SERVICE AND SURRENDERING HIS DISCHARGE OR OF RETURNING HIS DISCHARGE FOR REISSUE AS OF A CHARACTER WARRANTED BY HIS RECORD, PAYMENT OF THE PAY AND ALLOWANCES OF HIS RATING FOR THE INTERVENING PERIOD BETWEEN THE DATE OF HIS DISCHARGE AND THE DATE OF HIS RETURN TO DUTY IN ACCORDANCE WITH THE OPTION IS NOT AUTHORIZED. UNDER THE LAWS THEN APPLICABLE TO THE NAVY AND COAST GUARD, THE COURT-MARTIAL SENTENCE LEGALLY COULD BE (AND WAS) CARRIED INTO EXECUTION AND COMPLETED PRIOR TO THE ACTION OF THE SECRETARY OF THE NAVY, WHO HAD AUTHORITY TO SET ASIDE SUCH SENTENCE. IN THE PRESENT MATTER, AS INDICATED ABOVE, THE SENTENCE OF BAD CONDUCT DISCHARGE, AS ADJUDGED BY THE SPECIAL COURT MARTIAL, COULD NOT LEGALLY BE EXECUTED UNTIL AFTER APPELLATE REVIEW HAD BEEN COMPLETED.

THE MILITARY PAY ORDER AND SUPPORTING PAPERS SUBMITTED WITH YOUR LETTER ARE RETURNED HEREWITH, PAYMENT BEING AUTHORIZED IF IT IS OTHERWISE CORRECT.