B-125744, NOVEMBER 29, 1955, 35 COMP. GEN. 302

B-125744, NOVEMBER 29, 1955, 35 COMP. GEN. 302

UNIFORMED SERVICES - COURTS-MARTIAL - PROHIBITION IN ACT OF SEPTEMBER 1, 1954, AGAINST PAYMENT OF ANNUITIES SECTION 1, CLAUSE 1 OF THE ACT OF SEPTEMBER 1, 1954, WHICH ENUMERATES SPECIFIC OFFENSES (COGNIZABLE BY UNITED STATES COURTS) AND WHICH BARS PAYMENT OF RETIRED PAY OR AN ANNUITY TO ANY PERSON CONVICTED OF ONE OF THE OFFENSES DOES NOT BAR PAYMENT IN A CASE INVOLVING A CONVICTION BY A COURT- MARTIAL OF AN OFFENSE NOT ENUMERATED THEREIN EVEN THOUGH THE OFFENSE MAY BE SIMILAR TO ONE OF THOSE OFFENSES. SECTION 1, CLAUSE 1 OF THE ACT OF SEPTEMBER 1, 1954, WHICH ENUMERATES SPECIFIC OFFENSES (COGNIZABLE BY UNITED STATES COURTS) AND WHICH BARS PAYMENT OF RETIRED PAY OR AN ANNUITY TO ANY PERSON CONVICTED OF ONE OF SUCH OFFENSES DOES NOT OPERATE TO BAR PAYMENT IN A CASE INVOLVING A CONVICTION BY A COURT-MARTIAL UNDER ARTICLE 134, UNIFORM CODE OF MILITARY JUSTICE COMPARABLE TO ONE SO ENUMERATED. A CONVICTION BY A COURT-MARTIAL OF A MEMBER OF THE UNIFORMED SERVICES FOR AN OFFENSE UNDER THE UNIFORM CODE OF MILITARY JUSTICE WHICH IS A FELONY WITHIN THE DEFINITION OF THAT TERM IN 18 U.S.C. 1 AND THE MANUAL FOR COURTS-MARTIAL IS A CONVICTION OF A FELONY UNDER THE LAWS OF THE UNITED STATES WITHIN THE MEANING OF SECTION 1, CLAUSE 2 OF THE ACT OF SEPTEMBER 1, 1954, WHICH PROHIBITS THE PAYMENT OF ANY RETIRED PAY OR ANNUITY TO PERSONS CONVICTED OF FELONIES COMMITTED IN THE PERFORMANCE OF FUNCTIONS AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT. THE PHRASE " COURT OF THE UNITED STATES" IN THE ACT OF SEPTEMBER 1, 1954, WHICH PROHIBITS THE PAYMENT OF ANY ANNUITY OR RETIRED PAY TO PERSONS CONVICTED OF CERTAIN OFFENSES, HAS REFERENCE TO COURTS ESTABLISHED UNDER THE JUDICIAL POWER OF THE UNITED STATES IN ARTICLE III OF THE CONSTITUTION AND, THEREFORE, COURTS-MARTIAL OR MILITARY COURTS WHICH ARE ESTABLISHED UNDER ARTICLE I, SECTION 8, CLAUSE 14 OF THE CONSTITUTION, ARE NOT TO BE REGARDED AS A " COURT OF THE UNITED STATES" UNDER THE PENALTY STATUTE. A PERSON WHOSE MILITARY RECORD HAS BEEN CORRECTED TO REMOVE THE RECORD OF HIS CONVICTION OF AN OFFENSE UNDER THE UNIFORM CODE OF MILITARY JUSTICE IS NOT TO BE REGARDED AS HAVING BEEN CONVICTED OF AN OFFENSE WITHIN THE MEANING OF SECTION 1 OF THE ACT OF SEPTEMBER 1, 1954, WHICH PROHIBITS THE PAYMENT OF ANY ANNUITY OR RETIRED PAY TO PERSONS CONVICTED OF AN OFFENSE WITHIN THE MEANING OF SECTION 1 OF THE ACT OF SEPTEMBER 1, 1954, WHICH PROHIBITS THE PAYMENT OF ANY ANNUITY OR RETIRED PAY TO PERSONS CONVICTED OF CERTAIN OFFENSES.

TO THE SECRETARY OF DEFENSE, NOVEMBER 29, 1955:

REFERENCE IS MADE TO LETTER OF OCTOBER 7, 1955, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION ON CERTAIN QUESTIONS WHICH HAVE ARISEN IN THE ADMINISTRATION OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1142, AND ARE SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 128 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 740D, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THAT THERE SHALL NOT BE PAID TO ANY PERSON CONVICTED PRIOR TO, ON, OR AFTER THE DATE OF ENACTMENT OF THIS ACT OF ANY OF THE FOLLOWING OFFENSES DESCRIBED IN THIS SECTION, OR TO THE SURVIVOR OR BENEFICIARY OF SUCH PERSON SO CONVICTED, FOR ANY PERIOD SUBSEQUENT TO THE DATE OF SUCH CONVICTION OR THE DATE OF ENACTMENT OF THIS ACT, WHICHEVER IS LATER, ANY ANNUITY OR RETIRED PAY ON THE BASIS OF THE SERVICE OF SUCH PERSONS AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT:

(1) ANY OFFENSE DEFINED IN SECTION 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 216, 217, 218, 219, 220, 221, 222, OR 223 OF CHAPTER 11 (RELATING TO BRIBERY AND GRAFT), SECTION 281, 282, 283, 284, 285, 286, OR 287 OF CHAPTER 15 (RELATING TO CLAIMS AND SERVICES IN MATTERS AFFECTING GOVERNMENT), SECTION 434, 435, 436, 441, 442, OR 443 OF CHAPTER 23 (RELATING TO CONTRACTS), CHAPTER 37 (RELATING TO ESPIONAGE AND CENSORSHIP), SECTION 1700, 1702, 1703, 1704, 1705, 1706, 1707, 1708, 1709, 1711, OR 1712 OF CHAPTER 83 (RELATING TO OFFENSES INVOLVING THE POSTAL SERVICE), CHAPTER 105 (RELATING TO SABOTAGE), OR CHAPTER 115 (RELATING TO TREASON, SEDITION, AND SUBVERSIVE ACTIVITIES) OF TITLE 18 OF THE U.S.C. OR IN SECTION 10 OR 16 OF THE ATOMIC ENERGY ACT OF 1946 (42 U.S.C., SECS. 1810 AND 1816);

(2)ANY OFFENSE (NOT INCLUDING ANY OFFENSE WITHIN THE PURVIEW OF SECTION 13 OF TITLE 18 OF THE UNITED STATES CODE) WHICH IS A FELONY UNDER THE LAWS OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA (A) COMMITTED IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT, OR (B) COMMITTED AFTER THE TERMINATION OF HIS SERVICE AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT BUT DIRECTLY INVOLVING, DIRECTLY RESULTING FROM, OR DIRECTLY RELATING TO, THE IMPROPER EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES DURING ANY PERIOD OF HIS SERVICE AS SUCH AN OFFICER OR EMPLOYEE;

(3) PERJURY COMMITTED UNDER THE LAWS OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA * * * (B) IN FALSELY TESTIFYING BEFORE ANY FEDERAL GRAND JURY OR COURT OF THE UNITED STATES WITH RESPECT TO HIS SERVICE AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT, * * *;

SEC. 2. (A) THERE SHALL NOT BE PAID TO ANY PERSON WHO HAS FAILED OR REFUSED, OR FAILS OR REFUSES, PRIOR TO, ON, OR AFTER THE DATE OF ENACTMENT OF THIS ACT, UPON THE GROUND OF SELF-INCRIMINATION, TO APPEAR, TESTIFY, OR PRODUCE ANY BOOK, PAPER, RECORD, OR OTHER DOCUMENT, WITH RESPECT TO HIS SERVICE AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT OR WITH RESPECT TO ANY RELATIONSHIP WHICH HE HAS HAD OR HAS WITH A FOREIGN GOVERNMENT, IN ANY PROCEEDING BEFORE A FEDERAL GRAND JURY, COURT OF THE UNITED STATES, OR CONGRESSIONAL COMMITTEE, OR TO THE SURVIVOR OR BENEFICIARY OF SUCH PERSON, FOR ANY PERIOD SUBSEQUENT TO THE DATE OF SUCH FAILURE OR REFUSAL OF SUCH PERSON OR THE DATE OF ENACTMENT OF THIS ACT, WHICHEVER IS LATER, ANY ANNUITY OR RETIRED PAY ON THE BASIS OF THE SERVICE OF SUCH PERSON AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT.

THE FIRST QUESTION IS AS FOLLOWS:

DOES THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1142, PROHIBIT PAYMENT OF RETIRED PAY TO A MEMBER OF THE ARMED FORCES WHO IS CONVICTED BY A COURT MARTIAL OF AN OFFENSE UNDER THE UNIFORM CODE OF MILITARY JUSTICE WHICH IS SIMILAR TO ONE OF THE OFFENSES DEFINED IN TITLE 18, UNITED STATES CODE, AND ENUMERATED IN CLAUSE (1) OF THE FIRST SECTION OF THE ACT?

THE PURPOSE OF THE ACT OF SEPTEMBER 1, 1954, IS TO BAR PAYMENT OF ANY ANNUITY OR RETIRED PAY TO ANY PERSON WHO COMMITS AN ACT OR AN OFFENSE COMING WITHIN ITS PROVISIONS. IT THUS IS A STATUTE WHICH IS MAINLY PENAL IN NATURE. IT IS AN ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT STATUTES WHICH IMPOSE PENALTIES OR FORFEITURES ARE TO BE CONSTRUED STRICTLY (82 C.J.S. 924, NOTED 45 AND CASES THERE CITED) AND THERE APPEARS TO BE NO REASON WHY THE STATUTE HERE INVOLVED SHOULD BE REGARDED AS BEING APPLICABLE TO SITUATIONS WHICH ARE NOT EXPRESSLY COVERED BY ITS PROVISIONS. THE FIRST PART OF SECTION 1 OF THE ACT REFERS TO CONVICTIONS OF THE "FOLLOWING OFFENSES DESCRIBED IN THIS SECTION" AND CLAUSE "/1)" MENTIONS OFFENSES "DEFINED" IN THE SECTIONS OF THE UNITED STATES CODE SPECIFIED IN THAT CLAUSE. IT SEEMS REASONABLY CLEAR THAT IN USING SUCH LANGUAGE, THE CONGRESS INTENDED THAT SO FAR AS CLAUSE "/1)" IS CONCERNED, THE PENALTY PROVIDED IN THE ACT IS TO BE APPLIED ONLY WHEN THE PERSON CONCERNED HAS BEEN CONVICTED IN A UNITED STATES COURT OF ONE OF THE SPECIFIC OFFENSES COVERED BY THE ENUMERATED SECTIONS OF THE UNITED STATES CODE. A COURT-MARTIAL WOULD NOT HAVE JURISDICTION TO TRY A PERSON CHARGED WITH ONE OF SUCH OFFENSES. SEE 18 U.S.C. 3231 AND 50 U.S.C. 578-580. THE FACT THAT THE UNIFORM CODE OF MILITARY JUSTICE MAY INCLUDE ONE OR MORE OFFENSES WHICH ARE SIMILAR TO ONE OR MORE OF THE OFFENSES DEFINED IN TITLE 18 OF THE UNITED STATES CODE AND ENUMERATED IN CLAUSE (1) IS CONSIDERED TO BE IMMATERIAL. IT IS STATED ON PAGE 4 OF HOUSE REPORT NO. 2488, TO ACCOMPANY H.R. 9909 (LATER ENACTED INTO LAW AS THE ACT OF SEPTEMBER 1, 1954), THAT THE ACT APPLIES TO "ANY INDIVIDUAL CONVICTED OF SPECIFIED CRIMES AS SET FORTH IN THE CRIMINAL CODE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA CODE.' NO MENTION WAS MADE OF THE UNIFORM CODE OF MILITARY JUSTICE. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE.

QUESTION 2:

DOES THE ACT OF SEPTEMBER 1, 1954, SUPRA, PROHIBIT PAYMENT OF RETIRED PAY TO A MEMBER OF THE ARMED FORCES WHO IS CHARGED AND CONVICTED UNDER ARTICLE 134, UNIFORM CODE OF MILITARY JUSTICE, OF AN OFFENSE SET FORTH IN TITLE 18, U.S.C. AND ENUMERATED IN CLAUSE (1) IN THE FIRST SECTION OF THE ACT?

ARTICLE 134, UNIFORM CODE OF MILITARY JUSTICE, 50 U.S.C. 728, PROVIDES THAT:

THOUGH NOT SPECIFICALLY MENTIONED IN THIS CODE, ALL DISORDERS AND NEGLECTS TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE IN THE ARMED FORCES, ALL CONDUCT OF A NATURE TO BRING DISCREDIT UPON THE ARMED FORCES, AND CRIMES AND OFFENSES NOT CAPITAL, OF WHICH PERSONS SUBJECT TO THIS CODE MAY BE GUILTY, SHALL BE TAKEN COGNIZANCE OF BY A GENERAL OR SPECIAL OR SUMMARY COURT-MARTIAL, ACCORDING TO THE NATURE AND DEGREE OF THE OFFENSE, AND PUNISHED AT THE DISCRETION OF SUCH COURT.

IT IS STATED IN PARAGRAPH 213C, MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, THAT:

CRIMES AND OFFENSES NOT CAPITAL WHICH ARE REFERRED TO AND MADE PUNISHABLE BY ARTICLE 134 INCLUDE THOSE ACTS OR OMISSIONS, NOT MADE PUNISHABLE BY ANOTHER ARTICLE, WHICH ARE DENOUNCED AS CRIMES OR OFFENSES BY ENACTMENTS OF CONGRESS OR UNDER AUTHORITY OF CONGRESS AND MADE TRIABLE IN THE FEDERAL CIVIL COURTS.

AS STATED ABOVE, COURTS-MARTIAL ARE WITHOUT AUTHORITY TO TRY PERSONS ACCUSED OF A VIOLATION OF THOSE PROVISIONS OF THE U.S.C. WHICH ARE ENUMERATED IN CLAUSE (1), OF SECTION 1 OF THE 1954 ACT. WHILE THE ABOVE- QUOTED PROVISIONS OF THE UNIFORM CODE OF MILITARY JUSTICE AND THE MANUAL FOR COURTS-MARTIAL, MIGHT APPEAR TO PERMIT COURTS-MARTIAL TO TAKE COGNIZANCE OF ACTS WHICH ARE CRIMES TRIABLE IN FEDERAL CIVIL COURTS, THAT ACTION IS SANCTIONED ONLY BECAUSE SUCH ACTS, IN EFFECT, ARE MADE SEPARATE CRIMES UNDER MILITARY LAW. AS FAR AS CLAUSE (1) IS CONCERNED, IT IS CONVICTION OF A CIVIL CRIME WHICH INVOKES THE PENALTY OF THE STATUTE. QUESTION 2, THEREFORE, IS ANSWERED IN THE NEGATIVE.

QUESTION 3:

DOES THE PHRASE " ANY OFFENSE * * * WHICH IS A FELONY UNDER THE LAWS OF THE UNITED STATES * * " IN CLAUSE (2) OF THE FIRST SECTION OF THE ACT OF SEPTEMBER 1, 1954, SUPRA, INCLUDE ANY OFFENSE DEFINED IN THE UNIFORM CODE OF MILITARY JUSTICE?

THE "LAWS OF THE UNITED STATES" INCLUDE THE ACT OF MAY 5, 1950, 50 U.S.C. 551-736, AND THE UNIFORM CODE OF MILITARY JUSTICE WAS ENACTED INTO LAW AS A PART OF THAT ACT. WHILE NONE OF THE OFFENSES MENTIONED IN THE UNIFORM CODE OF MILITARY JUSTICE ARE DEFINED IN THAT CODE AS FELONIES, THE TERM "FELONY" IS DEFINED IN PARAGRAPH 213D (6) OF THE MANUAL FOR COURTS- MARTIAL, 1951, AND THAT DEFINITION IS SUBSTANTIALLY THE SAME AS THE GENERAL DEFINITION OF FELONY (UNDER THE LAWS OF THE UNITED STATES) CONTAINED IN 18 U.S.C. 1. IT IS CONCLUDED THAT A CONVICTION BY A COURT- MARTIAL OF AN OFFENSE WHICH IS A FELONY WITHIN SUCH DEFINITION WOULD BE A CONVICTION OF AN OFFENSE WHICH IS A FELONY "UNDER THE LAWS OF THE UNITED STATES," WITHIN THE MEANING OF THE ACT OF SEPTEMBER 1, 1954. QUESTION 3, THEREFORE, IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 4:

DOES THE PHRASE " COURT OF THE UNITED STATES" IN CLAUSE (3) OF THE FIRST SECTION AND IN SECTION 2 (A) OF THE ACT OF SEPTEMBER 1, 1954, SUPRA, INCLUDE COURTS-MARTIAL AND COURTS OF INQUIRY?

COURTS OF THE UNITED STATES ARE THOSE ESTABLISHED UNDER THE ARTICLE OF THE CONSTITUTION WHICH RELATES TO THE JUDICIAL POWER. CLINTON V. ENGLEBRECHT, 80 U.S. 434. COURTS-MARTIAL FORM NO PART OF THE JUDICIAL SYSTEM OF THE UNITED STATES. KURTZ V. MOFFITT, 115 U.S. 487, 500; DYNES V. HOOVER, 61 U.S. 65, 79; BURNS V. WILSON, 346 U.S. 137, 140; ALTMAYER V. SANFORD, 148 F.2D 161. THE CONGRESSIONAL POWER TO PROVIDE FOR TRAIL AND PUNISHMENT FOR MILITARY AND NAVAL OFFENSES UNDER THE FOURTEENTH CLAUSE OF ARTICLE 1, SECTION 8 OF THE UNITED STATES CONSTITUTION DEFINING THE JUDICIAL POWER OF THE UNITED STATES. EX PARTE POTENS, 53 F.1SUPP. 582. IN VIEW OF THE FOREGOING, IT APPEARS IMPROPER TO REGARD A COURT-MARTIAL OR A MILITARY COURT OF INQUIRY AS A "COURT OF THE UNITED STATES" AS THAT TERM IS USED IN THE STATUTE HERE INVOLVED. HENCE, QUESTION 4 IS ANSWERED IN THE NEGATIVE.

QUESTION 5:

IF ANY OF THE QUESTIONS ABOVE IS ANSWERED IN THE AFFIRMATIVE, IS THE PAYMENT OF RETIRED PAY AUTHORIZED TO A MEMBER OF THE ARMED FORCES WHOSE RECORD IS CORRECTED BY A BOARD CONVENED UNDER THE AUTHORITY CONTAINED IN SECTION 207 (A) OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 60 STAT. 812, SO AS TO REMOVE THE RECORD OF HIS CONVICTION OF AN OFFENSE WITHIN THE PURVIEW OF THE ACT OF SEPTEMBER 1, 1954, SUPRA?

THE CORRECTION OF A PERSON'S MILITARY RECORD TO REMOVE A RECORD OF HIS CONVICTION OF AN OFFENSE UNDER THE UNIFORM CODE OF MILITARY JUSTICE IS WITHIN THE AUTHORITY OF A BOARD CONVENED UNDER SECTION 207 (A) OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 5 U.S.C. 191A, AND IF APPROPRIATE ACTION IS TAKEN TO THAT EFFECT WITH THE APPROVAL OF THE SECRETARY CONCERNED, THE PERSON CONCERNED COULD NOT BE REGARDED AS HAVING BEEN "CONVICTED" OF AN OFFENSE WITHIN THE MEANING OF SECTION 1 OF THE ACT OF SEPTEMBER 1, 1954. ACCORDINGLY, QUESTION 5 IS ANSWERED IN THE AFFIRMATIVE.