A-11420, MARCH 1, 1926, 5 COMP. GEN. 671

A-11420: Mar 1, 1926

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

COURTS-MARTIAL - FORFEITURE OF ARMY PAY WHERE A NONCOMMISSIONED OFFICER OF THE ARMY WAS SENTENCED BY COURT MARTIAL ON MAY 2. WAS NOT SENTENCED TO BE REDUCED TO THE RANKS AS PROVIDED BY EXECUTIVE ORDER OF DECEMBER 10. THE SENTENCE WAS APPROVED. THE SENTENCE IS NOT INVALID BECAUSE OF FAILURE TO INFLICT THE ADDITIONAL PUNISHMENT OF REDUCTION TO THE RANKS. THE FORFEITURE OF PAY AND ALLOWANCES IS EFFECTIVE. BY WHICH WAS DISALLOWED HIS CLAIM FOR REFUND OF PAY FORFEITED BY COURT MARTIAL SENTENCE APPROVED MAY 16. THE RECORD OF CLAIMANT PERTINENT TO A CONSIDERATION OF THIS CASE IS AS FOLLOWS: ENLISTED APRIL 19. THE SENTENCE WAS APPROVED. THE CLAIMANT'S REQUEST FOR A REFUND OF THE PAY FORFEITED BY THE APPROVED COURT-MARTIAL SENTENCE IS BASED UPON THE FACT THAT HE WAS NOT REDUCED IN GRADE BY THE SENTENCE WHICH ADJUDGED CONFINEMENT AT HARD LABOR.

A-11420, MARCH 1, 1926, 5 COMP. GEN. 671

COURTS-MARTIAL - FORFEITURE OF ARMY PAY WHERE A NONCOMMISSIONED OFFICER OF THE ARMY WAS SENTENCED BY COURT MARTIAL ON MAY 2, 1921, TO BE DISHONORABLY DISCHARGED, TO FORFEIT ALL PAY AND ALLOWANCES, AND TO BE CONFINED AT HARD LABOR FOR TWO YEARS, BUT WAS NOT SENTENCED TO BE REDUCED TO THE RANKS AS PROVIDED BY EXECUTIVE ORDER OF DECEMBER 10, 1920, AND THE SENTENCE WAS APPROVED, EXECUTION OF THE DISHONORABLE DISCHARGE BEING SUSPENDED UNTIL SOLDIER'S RELEASE FROM CONFINEMENT, THE SENTENCE IS NOT INVALID BECAUSE OF FAILURE TO INFLICT THE ADDITIONAL PUNISHMENT OF REDUCTION TO THE RANKS, AND THE FORFEITURE OF PAY AND ALLOWANCES IS EFFECTIVE.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 1, 1926:

JOHN E. EIGENAUER, PRIVATE, SEVENTH INFANTRY, REQUESTED MARCH 6, 1925, A REVIEW OF SETTLEMENT NO. C-058866-W, DATED FEBRUARY 7, 1925, BY WHICH WAS DISALLOWED HIS CLAIM FOR REFUND OF PAY FORFEITED BY COURT MARTIAL SENTENCE APPROVED MAY 16, 1921.

THE RECORD OF CLAIMANT PERTINENT TO A CONSIDERATION OF THIS CASE IS AS FOLLOWS:

ENLISTED APRIL 19, 1920; APPOINTED SERGEANT MAY 14, 1920; STAFF SERGEANT JULY 23, 1920; MASTER SERGEANT NOVEMBER 11, 1920; A.W.O.L. MARCH 24 TO 28, 1921, AND IN CONFINEMENT MARCH 29, 1921 (VOU. 118, MAY 1921, ELY); TRIED AND FOUND GUILTY OF VIOLATION OF THE 61ST ARTICLE OF WAR, A.W.O.L., 96TH ARTICLE OF WAR, UNLAWFUL POSSESSION OF STOLEN PROPERTY, AND 89TH ARTICLE OF WAR, COMMITTING DEPREDATION ON AUTOMOBILE, AND SENTENCED MAY 2, 1921, TO BE DISHONORABLY DISCHARGED, TO FORFEIT ALL PAY AND ALLOWANCES DUE AND TO BECOME DUE, AND TO BE CONFINED AT HARD LABOR FOR TWO YEARS; THE SENTENCE WAS APPROVED, EXECUTION OF DISHONORABLE DISCHARGE SUSPENDED UNTIL SOLDIER'S RELEASE FROM CONFINEMENT, AND THE UNITED STATES DISCIPLINARY BARRACKS, FORT LEAVENWORTH, KANSAS, DESIGNATED AS PLACE OF CONFINEMENT, GENERAL COURT MARTIAL ORDER NO. 98, HQ. FIFTH DIVISION, CAMP JACKSON, S.C., MAY 16, 1921; PERIOD OF CONFINEMENT IN EXCESS OF ONE YEAR AND ONE DAY REMITTED BY ORDER OF THE PRESIDENT AUGUST 6, 1921; GRANTED HOME PAROLE TO PHILADELPHIA, PA., NOVEMBER 4, 1921; RESTORED TO DUTY AT U.S.D.B., FT. LEAVENWORTH AND ASSIGNED TO 60TH INFANTRY, MARCH 7, 1922, PER TELEGRAM A.G.O., MARCH 7, 1922, HONORABLY DISCHARGED AS PRIVATE, MARCH 8, 1922, FOR THE CONVENIENCE OF THE GOVERNMENT; LAST PAID TO FEBRUARY 28, 1921, VOU. 149, MARCH, 1921, ACCOUNTS E. J. ELY.

THE CLAIMANT'S REQUEST FOR A REFUND OF THE PAY FORFEITED BY THE APPROVED COURT-MARTIAL SENTENCE IS BASED UPON THE FACT THAT HE WAS NOT REDUCED IN GRADE BY THE SENTENCE WHICH ADJUDGED CONFINEMENT AT HARD LABOR.

ARTICLE IV OF THE EXECUTIVE ORDER OF THE PRESIDENT OF DECEMBER 10, 1920, CONTAINS THE FOLLOWING PROVISION IN REGARD TO NONCOMMISSIONED OFFICERS:

SECTION 1. NO COURT SHALL ADJUDGE CONFINEMENT AT HARD LABOR OR HARD LABOR WITHOUT CONFINEMENT AGAINST A NONCOMMISSIONED OFFICER UNLESS IN THE SAME SENTENCE REDUCTION TO THE GRADE OF PRIVATE SHALL ALSO BE ADJUDGED.

WHILE IT HAS BEEN HELD BY THE SUPREME COURT IN IN RE MILLS, 135 U.S. 263, THAT WHERE A DIFFERENT FORM OF PUNISHMENT THAN THAT PROVIDED BY STATUTE IS IMPOSED, THE SENTENCE IS IN VIOLATION OF THE STATUTE AND THE PRISONER IS ENTITLED TO A WRIT OF HABEAS CORPUS; AND THE REASONING OF THE SUPREME COURT WAS APPLIED IN SOME OF THE INFERIOR FEDERAL COURTS TO SENTENCES OF THE SAME GRADE OR CHARACTER BUT LESS THAN THAT PROVIDED BY STATUTE AS GROUND FOR RELEASE ON HABEAS CORPUS, IN RE JOHNSON, 46 FED.REP. 477, AND FOR REVERSAL OF JUDGMENT, HARMON V. UNITED STATES, 50 FED.REP. 921 (SEE ALSO WHITWORTH V. UNITED STATES, 114 FED.REP. 302, AND WOODRUFF V. UNITED STATES, 58 FED.REP. 766); THERE IS, HOWEVER, RESPECTABLE JUDICIAL OPINION OTHERWISE, SEE 16 C.J. 1311. IN BARTHALOMEW V. UNITED STATES, 177 FED.REP. 902, IT WAS HELD, QUOTING THE SYLLABUS:

A SENTENCE ON CONVICTION UNDER A STATUTE, WHICH PROVIDES THAT THE PUNISHMENT FOR ITS VIOLATION SHALL BE BY "FINE AND IMPRISONMENT," IS NOT INVALID BECAUSE IMPRISONMENT ONLY IS IMPOSED, NOT EXCEEDING THE TERM AUTHORIZED.

IT IS INTERESTING TO NOTE THAT CERTIORARI IN THIS CASE WAS DENIED. 217 U.S. 608.

IN THIS CASE THE STATUTE AUTHORIZED THE PRESIDENT TO PRESCRIBE THE MAXIMUM PUNISHMENT TO BE INFLICTED BY COURTS-MARTIAL. THE EXECUTIVE ORDER REQUIRED THAT WHERE A NONCOMMISSIONED OFFICER WAS SENTENCED TO HARD LABOR THE COURT SHOULD ALSO SENTENCE THE PRISONER TO REDUCTION TO THE RANKS. WAS POORLY EXPRESSED AND HAS SINCE BEEN MODIFIED TO PROVIDE THAT A SENTENCE OF A NONCOMMISSIONED OFFICER TO HARD LABOR SHALL OPERATE AS A REDUCTION TO THE RANKS. BUT THE FAILURE OF THE COURT-MARTIAL TO INFLICT THE ADDITIONAL PUNISHMENT OF REDUCTION TO THE RANKS, IN TERMS, DOES NOT INVALIDATE THAT PORTION OF ITS SENTENCE IMPOSING A FORFEITURE OF ALL PAY AND ALLOWANCES DUE AND TO BECOME DUE.