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Provision was also made for proportional payment to men enlisting after the beginning of the year and for men discharged before the close of the year. It was also held, 24 Comp. Dec., 1, that where organizations of the National Guard were called or drafted into Federal service before the expiration of the year 1917, the enlisted men thereof were to be regarded as having been discharged thereby within the meaning of the third proviso of section 110 and were entitled to be paid their proportional pay for attending drills of their organization prior to its call or draft into Federal service.
It therefore appears that were the claim as presented otherwise proper for consideration, evidence should have been presented showing that claimant was called or drafted into Federal service with his organization, or that he was discharged from the National Guard, 25 Comp. Dec., 946, making it impossible for him to attend the number of drills required—not less than the proportion of 24 to the ten months of 1917 subsequent to his muster out of Federal service February 28, 1917—as until such evidence is furnished he is not entitled to any pay for less than 20 drills attended.
It is also noted that payment was made under the appropriation “Pay etc., of the Army, 1917,” 39 Stat., 619, and “ Pay etc., of the Army, 1919.” The appropriation properly chargeable is “Arming, equipping and training the National Guard 1917," 39 Stat., 645. Payment having been made readjustment of the appropriations will not be made in view of what is hereafter said.
There is the further question in this case as to the proper procedure in payments of armory drill pay in view of the individual claims of members of the National Guard for armory drill pay. Sections 109 and 110 of the National Defense Act provide for armory drill pay for officers and enlisted men of the National Guard when not in Federal service, and the second paragraph of section 110, provides:
All amounts appropriated for the purpose of this and the last preceding section shall be disbursed and accounted for by the officers and agents of the Quartermaster Corps of the Army, and all disbursements under the foregoing provisions of this section shall be made as soon as practicable after the thirtyfirst day of December and the thirtieth day of June of each year upon pay rolls prepared and authenticated in the manner prescribed by the Secretary of War: * * *
The provisions of the act are such as to require that the pay roll of an organization for each semiannual period should contain the name of every member of the organization during that period. Individual claims indicate the omission of names and if the names of individual members have been omitted it results there was no proper determination of the payments on the roll, notably is this true with respect to company officers.
If claims are presented by individuals for armory drill pay, proper procedure requires the presentation to be to the War Department and it will be for the War Department to act thereon in the manner prescribed by the statute, and there must be a proper showing of the reason for the omission of the individual's name from the pay roll of the organization of which he was a member during the period covered by the claim.
The settlement heretofore made will not be disturbed, but the application for review is dismissed for the reason that claim should be filed with the War Department as herein indicated.
SUMMARY COURT-MARTIAL SENTENCES-DISAPPROVAL OF
AFTER DISCHARGE UNDER.
The action of the Secretary of the Navy in setting aside a sumnjary cnuit-martial
sentence, pursuant to which sentence an enlisted man was given a bad. conduct discharge by his commanding officer, does not alter the fact that by reason of such discharge the man was placed in a lionservice status; lor does the Secretary's action in setting asiile the senter.ce operate to restore the man to a service status so as to entitle hina to pay betweeli date of discharge and date he reported for duty pursuant to the Secretary's directiun.
1 Comp. Gen., 293, adhered to. Comptroller General McCarl to the Secretary of the Navy, May 1, 1922:
I have your letter of March 14, 1922, requesting a reconsideration of review No. 393, dated December 6, 1921, of the claim of Albert D. Scott, w. std., United States Navy, for refund of amount checked on account of summary court-martial sentence, and appeal No. 37616, dated December 1, 1921, of claim of Ray Charles Tanner, sea. 2c., United States Navy, for pay during period he was not actually performing duty by reason of a summary court-martial sentence, in view of a recent decision by the United States Circuit Court of Appeals for the Second Circuit, in determining the status of an enlisted man in a similar case.
The case before the court was that of William Robert Harris, an enlisted man in the Navy who was tried by a summary court-martial, convicted, and sentenced to a bad-conduct discharge. The proceedings, findings, and sentence were approved by the convening authority and the immediate superior in command, and Harris was discharged from the Navy with a bad-conduct discharge on March 25, 1920. The Secretary of the Navy subsequently disapproved the sentence and directed that Harris report for duty under his contract of enlistment. He did so under protest, but subsequently returned to his home, was charged with desertion, surrendered to the naval authorities, and while waiting trial on charge of desertion secured his release therefrom by means of a writ of habeas corpus issued by the United States District Court for the Eastern District of New York, which was heard in appeal by the Circuit Court for the Second District, which court reversed the order of the court below on the ground that the summary court-martial was without jurisdiction because Harris was not legally charged with the commission of an offense and the discharge an absolute nullity ab initio.
The holding in the Tanner case was to the effect that the action of the Secretary of the Navy in setting aside the court-martial sentence did not alter the fact that Tanner had been discharged and put out of the service and did not restore him to service so as to entitle him to pay prior to the date he reported for duty pursuant to the Secretary's direction.
The court's decision in the Harris case was to the effect that the naval authorities did not lose jurisdiction over Harris by reason of the court-martial sentence. It was not a determination of his pay status for the period while out of the service by reason of the court-martial discharge.
The question in the Tanner case was whether he was entitled to pay for the period from date of discharge on October 25, 1920, pursuant to the court-martial sentence to April 13, 1921, date he reported for duty pursuant to direction of the Secretary of the Navy in review of the court-martial proceedings. If the commanding officer pursuant to summary court-martial sentence was authorized to discharge the man, such discharge placed him in a nonservice status, and he did not again come into a service status until he reported for duty pursuant to the Secretary's direction. That fact determined his pay status.
The court's decision in the Harris case does not affect the decision in the Tanner case. As stated in my letter of January 21, 1922, there rests with the Secretary of the Navy authority to review and to set aside the proceedings and sentence of summary courts-martial, but such authority can not be remedial to the extent of removing the fact of an executed sentence and can not give rights compensatory of such executed sentence. The Secretary's action in setting aside the sentence did not give Tanner right to pay for the period when by force of the court-martial sentence he was not in a service status.
The principles governing in the Tanner case were applied to Scott's claim, and therefore I see no reason why the conclusion of that review should be modified by reason of the court's decision in the Harris case.
However, it appears that the summary court-martial sentence by which Scott was sentenced to lose $181.50 of his pay was approved September 11 and disapproved October 2, 1920. Although the entire amount was checked against his account, it appears that his accrued pay prior to October 2 was not equal to the amount so
checked, and therefore all of the adjudged loss of pay was not executed on date the sentence was disapproved. On July 1 he had a balance due of $73.43; his pay from July 1 to October 1, inclusive, amounted to $239.63, a total of $313.06. There was chargeable against that amount $9.90 insurance, $0.61 hospital fund, $45 allotment, $8 clothing and small stores, and $125 money, a total of $188.51, leaving $124.55 to apply on the sentence. Accordingly, only $124.55 of the adjudged loss of pay was executed when the sentence was disapproved, and therefore claimant is entitled to a refund of $181.50 less $124.55, or $56.95.
The settlement is modified, and instead of $68.95 found due the United States therein, $12 is due the United States.
Since the amount forfeited by the sentence is subject to remission according to article 4893 N. I., that part actually executed may be refunded on final discharge as provided in that article.
LEAVES OF ABSENCE-POSTAL CLERKS.
The act of June 5, 1920, 41 Stat., 1052, requiring that postal employees be
granted 15 days' leave with pay each fiscal year, makes it the duty of the department to see that the leave is granted if requested, but makes no provision for compensating the employee in case the authorized leave is not granted, and such leave is not cumulative beyond the year to which
it relates. Comptroller General McCarl to the Postmaster General, May 1, 1922:
I have your letter of April 13, 1922, as follows:
The act to reclassify postmasters and employees of the Postal Service and readjust their salaries and compensation on an equitable basis, approved June 5, 1920, provides:
“Employees in the Postal Service shall be granted fifteen days' leave of absence with pay, exclusive of Sundays and holidays, each fiscal year," 41 Stat., 1052, and that,
“The fifteen days' leave shall be credited at the rate of one and one-quarter days for each month of actual service.” 41 Stat., 1053.
Inasmuch as it has come to the department's attention that many carriers due either to the ignorance of the law on the part of themselves or their postmasters, or to some other reason, have not received during a fiscal year the full amount of leave of absence with pay to which they were entitled under the law quoted, it is desired that a decision be rendered as to whether the department is authorized to make any payment to the carriers in question, or to compensate them in any other way, for the leave of absence with pay which was not taken during a fiscal year.
There is no provision of law with reference to the 15 days' annual leave referred to in your letter making the leave cumulative beyond the year to which it relates. Neither is there any provision of law authorizing payment for such leave not taken.
The requirement that 15 days' leave of absence at the rate of 17 days for each month of actual service be granted each fiscal year makes it the duty of the department to see that said leave is granted if requested, but the law makes no provision for compensating the
employee in case the authorized leave be not granted. If there has been no action with respect to the leave, there is now no remedy, and the questions submitted are answered in the negative.
REWARD FOR APPREHENSION OF DESERTERS.
The reward for the apprehension and delivery of a deserter, where the deserter
is not delivered at a military post as required by the Army Regulations. should be reduced by the amount of the expenses for transportation and subsistence that the civil officer would have necessarily incurred had he
delivered the deserter to the nearest military post. Comptroller General McCarl to Capt. A. E. Sawyer, United States Army, May 1, 1922:
I have your indorsement of March 28, 1922, requesting decision whether you are authorized to pay voucher therewith submitted, stated in favor of Deputy Sheriff E. E. Boyd, The Hollow, Va., reward for the apprehension and delivery of John J. Tilley, R-1324485, a deserter from Battery F, Eighty-second Field Artillery.
It appears that Mr. Boyd arrested Tilley on instructions from the military authorities at Fort Bliss, Tex., that in an endeavor to deliver the prisoner to the military authorities he traveled with the prisoner to Danville, Va., and Greensboro, N. C.; and, that finding no one at those places with authority to receive the prisoner, returned with him to The Hollow to await further instructions from Fort Bliss. Subsequently, a guard was sent from Fort Monroe, Va., apparently the nearest military post, to Mount Airy, N. C., where Mr. Boyd delivered the prisoner.
The question is: What, if any, amount is payable to Mr. Boyd as a reward for the apprehension and delivery of a deserter under the limitations fixed by law, and regulations made pursuant thereto? The statutory authority for the payment of rewards for the apprehension and delivery of deserters is contained in the annual appropriations acts for the Army under “Incidental expenses, Quartermaster Corps," and for the current fiscal year, 42 Stat., 79, the provision is:
* * for the apprehension, securing, and delivering of deserters, including escaped military prisoners, and the expenses incident to their pursuit; and no greater sum than $50 for each deserter or escaped military prisoner shall, in the discretion of the Secretary of War, be paid to any civil officer or citizen for such services and expenses ;
Paragraph 121, Army Regulations, 1913, as amended by C. A. R. No. 67, January 31, 1918, so far as here material, provides :
A reward of $50 will be paid to any civil officer or civilian, except United States marshals, United States deputy marshals, and special agents of the Department of Justice, for the apprehension and delivery to the proper military authorities at a military post, of a deserter from the military service, * * * The reward will be paid by the Quartermaster Corps and will be in full satis