B-136919, SEP 17, 1958

B-136919, SEP 17, 1958

PRECIS-UNAVAILABLE

SECRETARY OF DEFENSE:

REFERENCE IS MADE TO LETTER DATED JULY 23, 1958, WITH ENCLOSURE, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION AS TO WHETHER PAY AND ALLOWANCES WOULD CONTINUE TO ACCRUE TO A PRISONER WHO IS SENT HOME ON WHAT WOULD BE KNOWN AS "COMMANDANT'S PAROLE." THE QUESTIONS AND A DISCUSSION OF THE MATTER ARE SET FORTH IN COMMITTEE ACTION NO. 215 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

THE FOLLOWING QUESTIONS ARE PRESENTED IN MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 215:

"1. DO PAY AND ALLOWANCES CONTINUE TO ACCRUE TO A PRISONER, WHILE HE IS ON COMMANDANT'S PAROLE, WHEN THE SENTENCE DOES NOT INCLUDE A TOTAL FORFEITURE OF PAY AND ALLOWANCES, TO BE APPLIED ON AND AFTER THE DATE THE CONVENING AUTHORITY APPROVED THE SENTENCE?

"2. IF THE ANSWER TO 1 ABOVE IS IN THE AFFIRMATIVE, WOULD IT BE LEGALLY OBJECTIONABLE TO PLACE AN UNSENTENCED PRISONER ON COMMANDANT'S PAROLE IN AN EXCESS LEAVE WITHOUT PAY STATUS?

"3. IF THE ANSWER TO QUESTION 2 IS IN THE NEGATIVE, MUST THE CONSENT OF THE MEMBER BE OBTAINED PRIOR TO PLACING HIM ON EXCESS LEAVE WITHOUT PAY?

"4. IF THE ANSWER TO QUESTION 2 IS IN THE NEGATIVE, MUST ACCRUED LEAVE BE USED BEFORE COMMENCEMENT OF EXCESS LEAVE WITHOUT PAY?"

SECTION 3663, TITLE 10, OF THE U.S.C. PROVIDES AS FOLLOWS:

"SEC. 3663. PAROLE; REMISSION OF SENTENCE; RESTORATION TO DUTY

(A) THE SECRETARY OF THE ARMY MAY PROVIDE A SYSTEM OF PAROLE FOR OFFENDERS WHO ARE CONFINED IN THE UNITED STATES DISCIPLINARY BARRACKS, AND WHO WERE AT THE TIME OF THEIR OFFENSES -

(1) MEMBERS OF THE ARMY;

(B) WHENEVER THE SECRETARY CONSIDERS THAT AN OFFENDER SENT TO THE DISCIPLINARY BARRACKS MERITS THAT ACTION, THE SECRETARY MAY REMIT THE UNEXECUTED PART OF HIS SENTENCE IF HE WAS AT THE TIME OF HIS OFFENSE -

(1) A MEMBER OF THE ARMY;

IF THE SECRETARY REMITS THE UNEXECUTED PART OF THE SENTENCE OF AN OFFENDER IN THE DISCIPLINARY BARRACKS WHO AT THE TIME OF HIS OFFENSE WAS AN ENLISTED MEMBER OF THE ARMY, THE SECRETARY MAY ORDER HIS HONORABLE RESTORATION TO ACTIVE DUTY IF HE HAS NOT BEEN DISCHARGED. IF HE HAS BEEN DISCHARGED, THE SECRETARY MAY AUTHORIZE HIS REENLISTMENT OR, UPON WRITTEN APPLICATION, ORDER HIS RESTORATION TO THE ARMY. SUCH AN ORDER REVIVES THE ENLISTMENT CONTRACT FOR A PERIOD EQUAL TO THAT NOT PREVIOUSLY SERVED UNDER IT. SO FAR AS IT RELATES TO HONORABLE RESTORATION TO ACTIVE DUTY, THIS SUBSECTION APPLIES TO GENERAL PRISONERS CONFINED ELSEWHERE WHO WERE AT THE TIME OF THEIR OFFENSES ENLISTED MEMBERS OF THE ARMY."

IN THE DISCUSSION APPEARING IN COMMITTEE ACTION NO. 215, MENTIONED ABOVE, IT IS STATED AS FOLLOWS:

"UNDER THE AUTHORITY OF TITLE 10, U.S.C. SECTION 3663, THE SECRETARY OF THE ARMY IS AUTHORIZED TO ESTABLISH A PAROLE SYSTEM FOR PRISONERS CONFINED IN DISCIPLINARY BARRACKS. THIS AUTHORITY HAS HERETOFORE BEEN EXERCISED ONLY FOR SENTENCED PRISONERS (THOSE WHOSE SENTENCES HAVE BEEN ORDERED EXECUTED). UNDER CURRENT REGULATIONS, A PRISONER CANNOT BE RELEASED ON PAROLE UNTIL HIS SENTENCE OR SENTENCES HAVE BEEN ORDERED INTO EXECUTION. THIS CIRCUMSTANCE MAY PLACE A PRISONER IN A POSITION OF CHOOSING BETWEEN HIS STATUTORY RIGHT TO PURSUE HIS APPEAL TO THE COURT OF MILITARY APPEALS AND THE OPPORTUNITY FOR RELEASE ON PAROLE. IN ORDER TO ELIMINATE ANY DIFFERENCES OF OPPORTUNITY FOR PAROLE BETWEEN AN UNSENTENCED PRISONER AND A SENTENCED PRISONER, IT IS NECESSARY TO PROVIDE SOME MEANS WHEREBY A PRISONER WHO IS PURSUING AN APPEAL OF HIS COURT-MARTIAL CONVICTION IN THE COURT OF MILITARY APPEALS CAN BE RELEASED FROM CONFINEMENT PENDING COMPLETION OF FINAL APPELLATE ACTION."

THE COMMITTEE FURTHER STATES THAT THE DEPARTMENT OF THE ARMY PROPOSES TO PUT INTO EFFECT A NEW POLICY CONCERNING THE PAROLING OF UNSENTENCED PRISONERS WHO ARE CONFINED IN DISCIPLINARY BARRACKS. CURRENT PAROLE REGULATIONS (PARAGRAPH 13AA), AR 633-20) PROVIDE THAT, EVEN THOUGH OTHERWISE ELIGIBLE, A PRISONER CANNOT BE RELEASED ON PAROLE "UNTIL HIS SENTENCE OR SENTENCES HAVE BEEN ORDERED INTO EXECUTION." IT IS STATED THAT THE NEW POLICY WOULD PROVIDE THAT UNSENTENCED PRISONERS CONFINED IN DISCIPLINARY BARRACKS MAY BE PAROLED PRIOR TO THEIR SENTENCES BEING ORDERED INTO EXECUTION AND THAT THIS IS TO BE KNOWN AS "COMMANDANT'S PAROLE." THE PROPOSED POLICY STATES THAT WHEN A PRISONER IS PLACED ON COMMANDANT'S PAROLE HE WILL REMAIN IN THE LEGAL CUSTODY AND UNDER THE CONTROL OF THE COMMANDANT OF THE DISCIPLINARY BARRACKS. WHEN THE SENTENCE IS ORDERED INTO EXECUTION, PRIOR TO COMPLETION OF THE SENTENCE TO CONFINEMENT, THE PAROLEE WILL BE RETURNED TO THE DISCIPLINARY BARRACKS FOR THE PURPOSE OF EXECUTING THE PUNITIVE TYPE DISCHARGE AND COMPLETION OF OTHER ADMINISTRATIVE REQUIREMENTS. AT THAT TIME HE WOULD BE PLACED ON ORDINARY PAROLE. IN THOSE CASES WHERE CONFINEMENT EXPIRES PRIOR TO THE SENTENCE BEING ORDERED INTO EXECUTION, A PRISONER WHO IS ON COMMANDANT'S PAROLE WOULD BE PLACED ON EXCESS LEAVE, WITHOUT PAY, UNTIL APPELLATE REVIEW IS COMPLETED AND HIS SENTENCE IS ORDERED INTO EXECUTION.

IN THE COMMITTEE ACTION, IT IS STATED THAT, IN THE EVENT A PRISONER IS PLACED ON COMMANDANT'S PAROLE WHEN THE COURT-MARTIAL SENTENCE PROVIDES EITHER (A) A TOTAL FORFEITURE OF PAY AND ALLOWANCES, TO BECOME EFFECTIVE THE DAY THE SENTENCE IS ORDERED INTO EXECUTION, OR (B) A PARTIAL FORFEITURE OF PAY, QUESTION ARISES CONCERNING HIS ENTITLEMENT TO PAY DURING THE PERIOD OF COMMANDANT'S PAROLE. THE CONCLUSION ADMINISTRATIVELY REACHED IS THAT DURING THE PERIOD THE PRISONER IS ON COMMANDANT'S PAROLE, IF THE FORFEITURE IS DEFERRED BY THE CONVENING AUTHORITY, HE WOULD BE ENTITLED TO FULL PAY AND ALLOWANCES AND THAT, IF A PARTIAL FORFEITURE OF PAY IS IMPOSED BY THE COURT-MARTIAL, HE WOULD BE ENTITLED TO THAT PORTION OF HIS PAY AND ALLOWANCES NOT FORFEITED BY THE SENTENCE.

WHILE HE IS ON COMMANDANT'S PAROLE, A PRISONER WOULD BE ABSENT FROM DUTY WITHIN THE MEANING OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, AS AMENDED. SECTION 3(A) OF THE STATUTE, AS AMENDED, 37 U.S.C. 31A, PROVIDES FOR THE ACCRUAL OF LEAVE AT THE RATE OF TWO AND ONE-HALF DAYS PER MONTH OF "ACTIVE SERVICE," EXCLUDING PERIODS OF (1) ABSENCE FROM DUTY WITHOUT LEAVE, (2) ABSENCE OVER LEAVE, AND (3) CONFINEMENT AS A RESULT OF A SENTENCE OF COURT MARTIAL. SECTION 4(B) OF THE STATUTE, AS AMENDED BY SECTION 1 OF THE ACT OF AUGUST 4, 1947, 61 STAT. 748, 37 U.S.C. 33(B), PROVIDES THAT MEMBERS AUTHORIZED TO BE ABSENT IN EXCESS OF THE NUMBER OF DAYS' LEAVE AUTHORIZED BY SECTION 3(A) SHALL NOT BE ENTITLED TO PAY OR ALLOWANCES DURING SUCH ABSENCE, EXCEPT WHEN THE ABSENCE IS ON ACCOUNT OF SICKNESS OR WOUNDS, OR WHILE AWAITING ORDERS PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS.

NOTHING HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OR IN THE LANGUAGE OF THE STATUTE TO AFFIRMATIVELY SUGGEST THAT IT WAS THE INTENT OF CONGRESS TO PERMIT APPLICATION OF THE EXCESS LEAVE PROVISION ON ANY BASIS OTHER THAN WITH THE MEMBER'S CONSENT.

UNDER THE PROVISIONS OF THE ARMED FORCES LEAVE ACT, AS AMENDED, AND THE REGULATIONS ISSUED PURSUANT THERETO, A MEMBER IS ENTITLED TO PAY AND ALLOWANCES WHILE ON AUTHORIZED LEAVE OF ABSENCE TO THE EXTENT THAT LEAVE HAS BEEN EARNED OR MAY BE ADVANCED TO HIM, SUBJECT IN THE LATTER CASE TO RECOUPMENT WHERE THE LEAVE IS ADVANCED IN EXCESS OF THAT SUBSEQUENTLY EARNED BY THE MEMBER. IT APPEARS THAT BOTH THE STATUTE AND THE REGULATIONS CONTEMPLATE THAT A MEMBER WILL BE PLACED ON "EXCESS LEAVE" ONLY WHEN HE HAS NO UNUSED ACCRUED LEAVE TO HIS CREDIT AND THERE IS NO AUTHORITY OF WHICH WE ARE AWARE FOR PLACING A MEMBER ON "EXCESS LEAVE", OR LEAVE WITHOUT PAY, IF HE HAS ACCRUED LEAVE TO COVER THE AUTHORIZED ABSENCE. IF A MEMBER IS PERMITTED TO BE ABSENT IN EXCESS OF THE LEAVE WHICH HAS ACCRUED TO HIM AND THAT WHICH IS ADVANCED TO HIM, EXCEPT WHEN THE ABSENCE IS ON ACCOUNT OF SICKNESS OR WOUNDS OR WHILE AWAITING ORDERS PENDING ACTION ON DISABILITY RETIREMENT PROCEEDINGS, HE IS NOT ENTITLED TO PAY OR ALLOWANCES WHILE SO ABSENT EVEN THOUGH NO OTHER ACTION MAY BE TAKEN TO PLACE HIM IN AN "EXCESS LEAVE" STATUS. THE LANGUAGE OF THE STATUTE WITH RESPECT TO "EXCESS LEAVE" SUGGESTS THAT ABSENCE ON EXCESS LEAVE (WITHOUT PAY) IS ABSENCE WITH THE MEMBER'S CONSENT AND WE KNOW OF NO AUTHORITY FOR PLACING A MEMBER OF THOSE CONTEMPLATED IN THE QUESTIONS HERE INVOLVED.

ACCORDINGLY, QUESTION 1 IS ANSWERED BY SAYING THAT PAY AND ALLOWANCES CONTINUE TO ACCRUE TO A MEMBER ON COMMANDANT'S PAROLE, IN THE CIRCUMSTANCES INVOLVED, TO THE EXTENT THAT THE MEMBER HAS UNUSED ACCRUED LEAVE TO HIS CREDIT. WHEN HE HAS BEEN PAID FOR THE PERIOD COVERED BY THE LEAVE GRANTED, HE WILL NO LONGER BE IN A PAY STATUS. IN VIEW OF THE PROVISIONS OF THE ARMED FORCES LEAVE ACT, OF COURSE, THIS ANSWER ALSO APPLIES IF THERE IS A PARTIAL FORFEITURE OR NO FORFEITURE OF PAY AND ALLOWANCES. SINCE PAY AND ALLOWANCES MUST BE RECOUPED WHERE LEAVE IS ADVANCED IN EXCESS OF THAT SUBSEQUENTLY EARNED, AND IN VIEW OF THE UNCERTAINTY WHETHER A MEMBER ON PAROLE WILL EARN SUFFICIENT LEAVE TO COVER AN ADVANCEMENT OF LEAVE, WE SUGGEST THAT THE REGULATIONS TO BE ISSUED COVERING COMMANDANT'S PAROLE PRECLUDE THE GRANTING OF ADVANCE LEAVE TO A MEMBER ON PAROLE.

WITH RESPECT TO QUESTION 2, AS INDICATED ABOVE, A MEMBER ON COMMANDANT'S PAROLE IS AUTOMATICALLY IN A LEAVE WITHOUT PAY STATUS IF HE HAS NO LEAVE TO HIS CREDIT. HENCE QUESTION 2 IS ANSWERED IN THE NEGATIVE. WITH RESPECT TO QUESTIONS 3 AND 4, IT IS OUR OPINION THAT A MEMBER MAY NOT BE PLACED IN AN EXCESS LEAVE STATUS (WITHOUT PAY AND ALLOWANCES) WHILE ON COMMANDANT'S PAROLE WITHOUT HIS CONSENT AND THAT ACCRUED LEAVE MUST BE USED BEFORE COMMENCEMENT OF THE EXCESS LEAVE. HENCE QUESTIONS 3 AND 4 ARE ANSWERED IN THE AFFIRMATIVE.