B-236084, Jul 31, 1989

B-236084, Jul 31, 1989

MILITARY PERSONNEL - Pay - Retirement pay - Forfeiture DIGEST: A retired regular officer of the Marine Corps who is convicted of a criminal offense which requires forfeiture of office loses his office since the courts have held that a retired regular officer continues to hold office after retirement. Since, it appears that he has forfeited his office continued payment of retired pay for that office raises serious doubt as to his entitlement and should be discontinued.

Honorable Lawrence L. Lamade

General Counsel

Department of the Navy:

Your July 5 letter requests our views on the question of whether Lieutenant Colonel Oliver North, USMC (Retired), must forfeit his retired pay as a result of his conviction on a charge of violating subsection (b) of 18 U.S.C. Sec. 2071 (1982). This subsection provides that:

"Whoever, having the custody of any (government) record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined not more than $2,000 or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States."

We share your conclusion that Colonel North, as a retired regular officer of the Marine Corps, holds an office under the United States, at least for some purposes. Your letter cites the large body of precedent stretching back into the nineteenth century that supports this view. United States v. Tyler, 105 U.S. 244 (1881), is perhaps the most important of these precedents, but as your extensive analysis makes clear, it is by no means the only one.

We also share your view that this conclusion does not answer the question of whether a retired regular officer holds an office within the meaning of subsection 2071(b). As the Judge Advocate General says in his memorandum to the Secretary of the Navy which you enclosed with your letter, this is a question of first impression.

As you are aware, the Judge Advocate General has concluded that Colonel North does not hold an office within the meaning of subsection 2071(b) and his memorandum to the Secretary argues for this conclusion. Two of the arguments seem to us to have the most force.

First, the Judge Advocate General makes the point that the Attorney General formally has expressed the opinion that the purpose of forfeiture provisions like the one in subsection 2071(b) is not punishment, which is otherwise provided for, but protection of the public from any further official misconduct. 38 Op. Atty. Gen. 468 (1936). Arguably, retired officers have no official duties and therefore there is no reason to include them within the scope of the forfeiture provisions of subsection 2071(b) and similar statutes.

Second, the Judge Advocate General points out that neither reserve military officers nor civilian officials are considered still to hold an office under the United States after they retire. A reading of subsection 2071(b) that requires retired regular officers who violate it to forfeit their retired pay but imposes no such requirement on retired reservists or civilians is sufficiently anomalous to raise doubts as to whether Congress intended that result.

On the other hand, there is nothing in the language of subsection 2071(b) or its legislative history to suggest that Congress intended the term "office under the United States" as used there to have a more limited definition than the term is commonly given. Nor is there any suggestion of such an intent in any of the predecessors to the subsection.

More importantly, there is in our view a serious conceptual problem with the Judge Advocate General's position. As your letter points out, retired regular officers continue to be a part of their military service. They receive, not a pension for prior service as retired reserve officers and civilian officials do, but reduced pay in return for current reduced responsibilities and obligations, including possible recall to full active duty under certain circumstances.

It seems unlikely that a retired regular officer convicted of violating subsection 2071(b) could thereafter exercise any responsibilities as an officer of the United States and certainly the officer could not be recalled to active duty. Thus the Judge Advocate General's position requires somehow separating a retired regular officer's pay from the responsibilities and obligations for which he receives it. It is extremely difficult to see any basis for concluding that Congress, in enacting subsection 2071(b), intended this result which is so inconsistent with our fundamental understanding of the status of retired regular officers as it has been articulated over the past hundred years. See McCarty v. McCarty, 453 U.S. 210 (1981), and cases cited therein.

In the final analysis we think it is impossible to avoid the conclusion that there is serious doubt that a retired regular officer convicted of violating subsection 2071(b) continues to be entitled to retired pay. you know, it has long been the government's practice in such circumstances not to make payment, and this is essentially the course on which you already have embarked in suspending Colonel North's pay. The denial of payment gives Colonel North the right to sue for it. Should he do so, he and the government will obtain from the federal courts a conclusive determination of whether he is entitled to continue to be paid as a retired regular officer of the Marine Corps.