B-125744, JUL. 30, 1959

B-125744, JUL. 30, 1959

TO THE SECRETARY OF DEFENSE:

REFERENCE IS MADE TO LETTER DATED JUNE 19, 1959, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), FORWARDING COMMITTEE ACTION NO. 244 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AND REQUESTING RECONSIDERATION OF THAT PART OF OUR DECISION DATED NOVEMBER 29, 1955, 35 COMP. GEN. 302, WHICH HELD, IN ANSWER TO QUESTION 3, THAT A CONVICTION BY A COURT-MARTIAL OF AN OFFENSE WHICH IS A FELONY AS DEFINED IN PARAGRAPH 213D (6) OF THE MANUAL FOR COURTS MARTIAL, 1951, 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, 68 STAT. 1142.

IN THE DISCUSSION IN COMMITTEE ACTION NO. 244 THERE IS QUOTED AN EXTRACT FROM WINTHROP, MILITARY LAW AND PRECEDENTS (2D ED., 1920) AT PAGE 108, WHICH READS AS FOLLOWS:

"IT IS FURTHER TO BE SAID OF THE OFFENSES WHICH ARE THE SUBJECTS OF THE ARTICLES OF WAR THAT THERE IS NO DISTINCTION BETWEEN THEM OF "FELONY" AND "MISDEMEANOR.' NONE OF THEM ARE FELONIES AND NONE OF THEM ARE MISDEMEANORS AT MILITARY LAW, BUT ALL ARE MERELY MILITARY CRIMES * * *. NO SENTENCE OF COURT-MARTIAL * * * CAN INVOLVE THE DISABILITY OR OTHER PENAL CONSEQUENCE ORDINARILY ATTACHING TO CONVICTION OF FELONY OR OTHER INFAMOUS CRIME.'

IT IS STATED IN THE COMMITTEE ACTION THAT, UNDER THIS VIEW, IT WOULD APPEAR TO FOLLOW THAT AN OFFENSE UNDER THE UNIFORM CODE OF MILITARY JUSTICE IS NOT AN OFFENSE "WHICH IS A FELONY UNDER THE LAWS OF THE UNITED STATES," SINCE NO OFFENSE UNDER MILITARY LAW COULD PROPERLY BE TERMED A ,FELONY.' IN SUPPORT OF THE RULE LAID DOWN BY WINTHROP, THERE ARE CITED KURTZ V. MOFFITT, 115 U.S. 487 (1885), AND UNITED STATES V. CLARK, 31 F. 710 (C.C.E.D. MICH., 1887). VARIOUS OTHER MATTERS ARE DISCUSSED WHICH ARE BELIEVED TO HAVE A BEARING ON THE QUESTION HERE INVOLVED.

AFTER OUR DECISION OF NOVEMBER 29, 1955, WAS WRITTEN, THIS MATTER WAS FURTHER CONSIDERED BY US IN RESPONSE TO A REQUEST OF A FORMER CHAIRMAN OF THE UNITED STATES CIVIL SERVICE COMMISSION FOR A DECISION WHICH WOULD ESTABLISH CRITERIA FOR DETERMINING WHETHER A MILITARY OFFENSE "IS A FELONY UNDER THE LAWS OF THE UNITED STATES" WITHIN THE MEANING OF SECTION 1, CLAUSE (2) OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1142. IN OUR DECISION DATED MAY 11, 1956, B-127022, WE ADHERED TO THE VIEWS EXPRESSED IN THE PRIOR DECISION AND ADVISED HIM, IN PERTINENT PART, AS FOLLOWS:

"ALTHOUGH MILITARY REGULATIONS WHEN CONSISTENT WITH EXISTING STATUTORY ENACTMENTS HAVE THE FORCE OF LAW, THEY CANNOT ABROGATE OR DEROGATE FROM THE FEDERAL STATUTES WHICH REMAIN IN FULL FORCE AND VIRTUE AS THE LAW OF THE LAND. 6 C.J.S. 348. THEREFORE,"FELONY" AS DEFINED IN THE FEDERAL STATUTES WOULD ALSO CONSTITUTE THE DEFINITION OF "FELONY" APPLICABLE TO MILITARY OFFENSES, NOTWITHSTANDING THAT THE DISTINCTION BETWEEN FELONIES AND MISDEMEANORS HAS NOT BEEN RECOGNIZED IN MILITARY LAW. SEE UNITED STATES V. CLARK, 31 FED. 710; WINTHROP MILITARY LAW (2D ED 1920 REPRINT) P. 108; OP.J.A.G.A. 1952/8326, 3 DIG.OPS., POSTS, ETC., SEC. 23.1. THUS, A DETERMINATION WHETHER ANY MILITARY OFFENSE IS A FELONY INVOLVES (1) WHETHER THE OFFENSE IS PUNISHABLE BY DEATH OR CONFINEMENT EXCEEDING ONE YEAR, AND (2) WHETHER THE OFFENSE IS OF A CIVIL NATURE.

"IN CASES WHERE THE SENTENCE IMPOSSIBLE FOR THE OFFENSE FOR WHICH THE APPLICANT WAS CONVICTED, EXCEEDS ONE YEAR, REFERENCE SHOULD BE MADE TO THE U.S.C. OR THE CODE OF THE DISTRICT OF COLUMBIA TO ASCERTAIN WHETHER THE PARTICULAR OFFENSE IS ANALOGOUS TO ONE OF A CIVIL NATURE. SEE UNITED STATES V. MOORE (NO. 5026), 18 CMR 311; OP.J.A.G., VOL. 2, 1918, P. 707. IF THE ABOVE TWO REQUIREMENTS ARE MET, THE MILITARY OFFENSE PROPERLY MAY BE CONSIDERED A FELONY FOR PURPOSES OF THE ACT OF SEPTEMBER 1, 1954.'

MOST OF THE MATTERS MENTIONED IN COMMITTEE ACTION NO. 244 WERE CONSIDERED AT THE TIME OUR DECISION OF NOVEMBER 29, 1955, WAS RENDERED AND WE FIND NOTHING IN THE SUBMISSION WHICH WOULD WARRANT ANY CHANGE IN THE CONCLUSION REACHED BY US IN THAT DECISION.