B-137010, JUNE 5, 1959, 38 COMP. GEN. 817

B-137010, JUNE 5, 1959, 38 COMP. GEN. 817

MILITARY PERSONNEL - RETIRED PAY - EFFECT OF ACT OF SEPTEMBER 1, 1954, PROHIBITING PAYMENT TO PERSONS CONVICTED OF CERTAIN OFFENSES - COURT MARTIAL SENTENCES WHERE THE CHARGES AND SPECIFICATIONS IN A COURT-MARTIAL PROCEEDING FAIL TO SHOW THAT THE OFFENSE OF WHICH THE MEMBER IS ACCUSED WAS COMMITTED IN THE CAPACITY OF AN OFFICER OR EMPLOYEE OF THE GOVERNMENT BUT DURING THE TRIAL EVIDENCE IS DEVELOPED THAT THE OFFENSE WAS COMMITTED IN THE EXERCISE OF SOME OFFICE OR AUTHORITY AND THE ACCUSED HAS AN OPPORTUNITY TO HEAR AND ANSWER THE EVIDENCE PRIOR TO CONVICTION, SUCH EVIDENCE PROPERLY MAY BE CONSIDERED IN DETERMINING WHETHER THE MEMBER WAS CONVICTED OF AN OFFENSE WITHIN THE SCOPE OF SECTION 1, CLAUSE 2, OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 740C (2), WHICH PRECLUDES PAYMENT OF ANNUITY OR RETIRED PAY BENEFITS TO OFFICERS OR EMPLOYEES CONVICTED OF FELONIES COMMITTED UNDER CIRCUMSTANCES INVOLVING OR RELATING TO THE EXERCISE OF THEIR AUTHORITY, INFLUENCE, POWER OR PRIVILEGES AS AN OFFICER OR EMPLOYEE. IF, IN A COURT-MARTIAL TRIAL BECAUSE A PLEA OF GUILTY IS MADE, THERE IS NO EVIDENCE TO INDICATE WHETHER THE OFFENSE WAS COMMITTED IN THE CAPACITY OF AN OFFICER OR EMPLOYEE OF THE GOVERNMENT WITHIN THE SCOPE OF SECTION 1, CLAUSE 2 OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 740C (2), WHICH PRECLUDES PAYMENT OF ANNUITY OR RETIRED PAY BENEFITS TO OFFICERS OR EMPLOYEES CONVICTED OF FELONIES, THE QUESTION AS TO WHETHER OTHER ALLIED PAPERS SHOW SUFFICIENTLY THAT THE FELONY WAS COMMITTED IN THE EXERCISE OF SOME OFFICE OR AUTHORITY SHOULD BE SUBMITTED FOR DECISION WITH A COMPLETE STATEMENT OF FACTS.

TO THE SECRETARY OF DEFENSE, JUNE 5, 1959,*

REFERENCE IS MADE TO LETTER DATED FEBRUARY 11, 1959, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING OUR DECISION ON A QUESTION CONTAINED IN AN ENCLOSED COPY OF COMMITTEE ACTION NO. 230 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

IN DECISION OF OCTOBER 16, 1958, B-137010 (38 COMP. GEN. 310), IT WAS HELD THAT A DETERMINATION OF WHETHER AN OFFENSE OF WHICH THE ACCUSED IN A GENERAL OR SPECIAL COURT-MARTIAL PLEADS GUILTY FALLS WITHIN THE SCOPE OF THE PROVISIONS OF SECTION 1, CLAUSE 2, OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1142, 5 U.S.C. 740C (2), DENYING ANNUITY OR RETIRED PAY BENEFITS TO OFFICERS OR EMPLOYEES OF THE GOVERNMENT CONVICTED OF CERTAIN FELONIES COMMITTED UNDER CIRCUMSTANCES INVOLVING OR RELATING TO THE EXERCISE OF THEIR AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES AS AN OFFICER OR EMPLOYEE, SHOULD BE BASED SOLELY ON THE CHARGES AND SPECIFICATIONS AS SHOWN IN THE RECORD OF THE TRIAL. THE QUESTION STATED IN COMMITTEE ACTION NO. 230 IS AS TO WHETHER IN VIEW OF THAT HOLDING A DETERMINATION OF WHETHER A FELONY OF WHICH A PERSON IS CONVICTED WAS "COMMITTED IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT" MUST BE BASED SOLELY ON THE LANGUAGE OF THE CHARGES AND SPECIFICATIONS OF WHICH THE ACCUSED IS TRIED AND CONVICTED, OR WHETHER EVIDENCE CONTAINED IN THE RECORD OF TRIAL MAY BE USED AS A BASIS FOR THE DETERMINATION. IT IS POINTED OUT IN THAT CONNECTION THAT MILITARY PLEADING CONTAINS NO REQUIREMENT THAT THE ELEMENT INVOLVING THE COMMITTING OF THE OFFENSE IN THE CAPACITY OF OFFICER OR EMPLOYEE OF THE GOVERNMENT BE ALLEGED, AND THAT ONLY RARELY IN A COURT-MARTIAL WOULD IT APPEAR IN THE CHARGES AND SPECIFICATIONS, RESULTING IN THE SITUATION THAT A DETERMINATION OF THE PRESENCE OF THAT ELEMENT IN MOST CASES NECESSARILY WOULD HAVE TO BE MADE, IT AT ALL, FROM AN ANALYSIS OF THE EVIDENCE ADDUCED AT THE TRIAL. ALSO, IT IS SUGGESTED THAT IF A PLEA OF GUILTY IS ENTERED IN SUCH CASES UNDER CIRCUMSTANCES WHERE ALLIED PAPERS INDICATE THAT THE OFFENSE WAS COMMITTED IN THE EXERCISE OF SOME OFFICE OR AUTHORITY, BUT THE SPECIFICATIONS DO NOT SO INDICATE AND NO EVIDENCE IS SUBMITTED AT THE TRIAL, AN INCONGRUITY WOULD RESULT IN THAT NO PROPER BASIS WOULD EXIST UNDER THE CITED DECISION OF OCTOBER 16, 1958, FOR A DETERMINATION OF THE EXISTENCE OF AN OFFENSE WITHIN THE CONTEMPLATION OF SECTION 1, CLAUSE 2 OF THE 1954 ACT.

THE PURPOSE OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 740C, IS TO BAR PAYMENT OF ANY ANNUITY OR RETIRED PAY TO ANY PERSON CONVICTED OF COMMITTING AN ACT OR OFFENSE COMING WITHIN ITS PROVISIONS. SECTION 1, CLAUSE 2 OF THE ACT PROHIBITS SUCH PAYMENTS TO PERSONS CONVICTED OF ANY OFFENSE (WITH CERTAIN EXCEPTIONS) WHICH IS A FELONY UNDER THE LAWS OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA, BUT ONLY IF COMMITTED UNDER SPECIFIED CIRCUMSTANCES INVOLVING OR RELATING TO THE EXERCISE OF HIS OFFICE OR AUTHORITY AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT. THE CONCLUSION REACHED IN THE DECISION OF OCTOBER 16, 1958, HAD AS ITS BASIS A CONSIDERATION THAT THE STATUTORY AND REGULATORY PROVISIONS INVOLVED CONTEMPLATED AND REQUIRED THAT THE ACCUSED HAVE AMPLE OPPORTUNITY TO HEAR AND ANSWER THE CHARGES RAISED AGAINST HIM PRIOR TO HIS CONVICTION, AN OPPORTUNITY ARISING IN CASES WHERE GUILTY PLEAS ARE ENTERED ONLY IF THE CHARGES AND SPECIFICATIONS SET FORTH CLEARLY AND CONCISELY AN OFFENSE CONTEMPLATED BY THE 1954 ACT. IF, HOWEVER, A TRIAL IS HELD AND EVIDENCE THAT THE PARTICULAR FELONY INVOLVED WAS COMMITTED IN THE CAPACITY OF OFFICER OR EMPLOYEE OF THE GOVERNMENT IS FIRST DEVELOPED IN THE COURSE OF THE TRIAL, THE ACCUSED NEVERTHELESS WOULD HAVE AN OPPORTUNITY TO HEAR AND ANSWER THE EVIDENCE AGAINST HIM PRIOR TO HIS CONVICTION. IT IS OUR VIEW, THEREFORE, THAT SUCH EVIDENCE, EVEN THOUGH NOT APPEARING IN THE CHARGES AND SPECIFICATIONS, PROPERLY MAY BE CONSIDERED IN THE DETERMINATION THAT THE ACCUSED WAS CONVICTED OF AN OFFENSE WITHIN THE SCOPE OF SECTION 1, CLAUSE 2, OF THE 1954 ACT.

IF, IN A CASE WHERE NO EVIDENCE IS PRESENTED AT THE TRIAL BECAUSE A PLEA OF GUILTY IS MADE, A QUESTION ARISES AS TO WHETHER OTHER ALLIED PAPERS SHOW SUFFICIENTLY THAT THE FELONY ADMITTED WAS COMMITTED IN THE EXERCISE OF SOME OFFICE OR AUTHORITY WITHIN THE MEANING OF THE 1954 ACT, THAT CASE, WITH A COMPLETE STATEMENT OF FACTS, MAY BE SUBMITTED FOR DECISION.