A-17964, MAY 11, 1927, 6 COMP. GEN. 730

A-17964: May 11, 1927

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PAY - REDUCTION - NAVY ENLISTED MAN WHERE AN ENLISTED MAN OF THE NAVY WAS REDUCED BY COURT-MARTIAL SENTENCE FROM THE RATING OF SEAMAN. THE SENTENCE TO DISRATING WAS SELF-EXECUTING AND THE DISRATING WAS EFFECTIVE FROM THE DATE OF APPROVAL OF THE SENTENCE AND NOTIFICATION THEREOF TO THE MAN. IS NOT ENTITLED TO CREDIT IN HIS ACCOUNTS FOR PAYMENTS MADE IN A RATING HIGHER THAN THAT LEGALLY HELD BY THE MAN. HE WAS TRIED BY GENERAL COURT-MARTIAL. WAS SENTENCED TO BE REDUCED TO THE RATING OF APPRENTICE SEAMAN. SENTENCE WERE APPROVED. THAT PORTION OF THE SENTENCE WHICH INVOLVED CONFINEMENT WITH CORRESPONDING ACCESSORIES WAS REMITTED. THE DISHONORABLE DISCHARGE WAS REMITTED ON CONDITION THAT THE ENLISTED MAN CONDUCT HIMSELF.

A-17964, MAY 11, 1927, 6 COMP. GEN. 730

PAY - REDUCTION - NAVY ENLISTED MAN WHERE AN ENLISTED MAN OF THE NAVY WAS REDUCED BY COURT-MARTIAL SENTENCE FROM THE RATING OF SEAMAN, FIRST CLASS, TO APPRENTICE SEAMAN, THE SENTENCE TO DISRATING WAS SELF-EXECUTING AND THE DISRATING WAS EFFECTIVE FROM THE DATE OF APPROVAL OF THE SENTENCE AND NOTIFICATION THEREOF TO THE MAN. A DISBURSING OFFICER, HAVING NOTICE OF A SENTENCE OF COURT-MARTIAL DISRATING AS ENLISTED MAN OF THE NAVY, IS NOT ENTITLED TO CREDIT IN HIS ACCOUNTS FOR PAYMENTS MADE IN A RATING HIGHER THAN THAT LEGALLY HELD BY THE MAN.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, MAY 11, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 29, 1927, REQUESTING REVIEW OF SETTLEMENT M-22844-N, DATED DECEMBER 22, 1926, DISALLOWING CREDIT FOR $28.60 IN THE ACCOUNTS OF LIEUT. S. P. VAUGHN, SUPPLY CORPS, UNITED STATES NAVY, BY REASON OF PAYMENT TO ROBERT H. STEARNS AS SEAMAN, FIRST CLASS, INSTEAD OF APPRENTICE SEAMAN FOR THE PERIOD OCTOBER 4 TO 29, 1925.

STEARNS ENLISTED IN THE NAVY OCTOBER 8, 1923, TO SERVE FOR FOUR YEARS. ON APRIL 10, 1925, HOLDING THEN THE RATING OF SEAMAN, FIRST CLASS, HE WAS TRIED BY GENERAL COURT-MARTIAL, AND FOUND GUILTY OF DESERTION, ABSENT FROM DECEMBER 21, 1923, TO MARCH 7, 1925, AND WAS SENTENCED TO BE REDUCED TO THE RATING OF APPRENTICE SEAMAN, TO BE CONFINED FOR A PERIOD OF EIGHT MONTHS, THEN TO BE DISHONORABLY DISCHARGED FROM THE UNITED STATES NAVAL SERVICE, AND TO SUFFER ALL OTHER ACCESSORIES OF SAID SENTENCE AS PRESCRIBED BY SECTION 883, NAVAL COURTS AND BOARDS. THE PROCEEDINGS, FINDING, AND SENTENCE WERE APPROVED, APRIL 14, 1925, BY THE CONVENING AUTHORITY BUT IN VIEW OF THE GOOD RECORD OF THE ACCUSED AND RECOMMENDATION TO CLEMENCY, THAT PORTION OF THE SENTENCE WHICH INVOLVED CONFINEMENT WITH CORRESPONDING ACCESSORIES WAS REMITTED, AND THE DISHONORABLE DISCHARGE WAS REMITTED ON CONDITION THAT THE ENLISTED MAN CONDUCT HIMSELF, DURING A PERIOD OF SIX MONTHS, IN SUCH A MANNER AS IN THE OPINION OF HIS COMMANDING OFFICER WOULD WARRANT HIS FURTHER RETENTION IN THE SERVICE, OTHERWISE TO BE DISHONORABLY DISCHARGED. BY REASON OF SUBSEQUENTLY REMAINING ABSENT OVER LIBERTY HE WAS TRANSFERRED FROM THE FIFTEENTH NAVAL DISTRICT TO THE RECEIVING SHIP AT SAN FRANCISCO, CALIF., WHERE HE WAS DISCHARGED, OCTOBER 29, 1925. NOTWITHSTANDING THE REDUCTION TO THE RATING OF APPRENTICE SEAMAN, IMPOSED BY SENTENCE OF COURT-MARTIAL, APPROVED BY THE CONVENING AUTHORITY, HE WAS CARRIED ON THE ROLLS AND PAID AS SEAMAN, FIRST CLASS, FOR THE REASON STATED THAT THE MAN'S COMMANDING OFFICER FAILED TO REDUCE HIM OR TO NOTIFY THE SUPPLY OFFICER CARRYING HIS ACCOUNTS OF HIS DISRATING.

THE VALIDITY OF THE COURT-MARTIAL SENTENCE THAT STEARNS BE REDUCED TO THE RATING OF APPRENTICE SEAMAN IS NOT QUESTIONED, BUT IT IS URGED THAT HAVING ACTUALLY RENDERED SERVICE IN THE RATING OF SEAMAN, FIRST CLASS, HE IS ENTITLED TO RETAIN THE PAY WHICH HE HAS RECEIVED ON THE GROUND THAT HE WAS A DE FACTO SEAMAN FIRST CLASS.

COURTS-MARTIAL ARE JUDICIAL TRIBUNALS CONSTITUTED BY STATUTE FOR THE PURPOSE OF ADMINISTERING MILITARY LAW, AND THE SENTENCES ADJUDGED THEREBY BECOME FINAL AND OPERATIVE WHEN APPROVED BY THE PROPER AUTHORITIES. LYON V. UNITED STATES, 48 CT.CLS. 30; WILLIAMS V. UNITED STATES, 24 CT.CLS. 306.

SECTION 1624, REVISED STATUTES, ENTITLED "ARTICLES FOR THE GOVERNMENT OF THE NAVY" PROVIDES:

ART. 8. (OFFENSES PUNISHABLE AT DISCRETION OF COURT-MARTIAL.) SUCH PUNISHMENT AS A COURT-MARTIAL MAY ADJUDGE MAY BE INFLICTED ON ANY PERSON IN THE NAVY---

FIRST. WHO * * *

TWENTY-FIRST. OR, IN TIME OF PEACE, DESERTS OR ATTEMPTS TO DESERT, OR AIDS AND ENTICES OTHERS TO DESERT: * * *

THE SENTENCE OF THE COURT THAT HE BE REDUCED TO APPRENTICE SEAMAN WAS DIRECTED TO THE ACCUSED, AND UPON APPROVAL, SUCH ORDER WAS SELF EXECUTING AND GAVE HIM FROM DATE OF NOTICE THEREOF THE LEGAL STATUS OF AN APPRENTICE SEAMAN. SEE WINTHROP'S MILITARY LAW AND PRECEDENTS, REGARDING COURT- MARTIAL SENTENCES OF DISMISSAL FROM THE SERVICE, AT PAGE 407, THAT---

THIS PUNISHMENT IS EXECUTED, BY OPERATION OF LAW, IMMEDIATELY UPON APPROVAL OR CONFIRMATION, AND NOTICE TO THE OFFICER. * * * AND REGARDING SENTENCE OF REDUCTION IN RATING OF ENLISTED MEN AT PAGE 432,

EXECUTION OF THE PUNISHMENT. THIS IS A PUNISHMENT WHICH, LIKE DISMISSAL IN THE CASE OF AN OFFICER, EXECUTES ITSELF, TAKING EFFECT, AS IT DOES, AT ONCE UPON THE APPROVAL OF THE SENTENCE AND NOTICE TO THE ACCUSED. * * *

THERE APPEARS NOTHING TO SHOW THAT THIS MAN WAS NOT APPRISED OF THE SENTENCE ON THE DATE OF ITS APPROVAL AND HIS LEGAL STATUS AND RIGHTS WERE FIXED BY SUCH COURT-MARTIAL SENTENCE; IT IS IMMATERIAL WHETHER NOTICE OF SUCH CHANGE IN RATING WAS COMMUNICATED BY HIS COMMANDING OFFICER TO THE SUPPLY OFFICER CARRYING HIS ACCOUNTS. 4 COMP. DEC. 95. BUT IN THE INSTANT CASE THE MAN WAS TRANSFERRED TO THE RECEIVING SHIP FOR DISCHARGE BY REASON OF THE COURT-MARTIAL SENTENCE WHICH REDUCED HIM IN RATING AND THE FACTS THEREOF RECORDED IN HIS SERVICE RECORD WERE SUFFICIENT NOTICE TO THE DISBURSING OFFICER TO SHOW THAT HE DID NOT HOLD THE RATING OF SEAMAN, FIRST CLASS.

THE LEGAL STATUS OF THE MAN HAVING BEEN DEFINITELY FIXED BY THE COURT- MARTIAL SENTENCE AS APPRENTICE SEAMAN, PAYMENT IN ANY OTHER RATING WAS SIMPLY A MISTAKE OF FACT, NEITHER ENTITLING THE MAN TO PAY IN THE HIGHER RATING NOR THE DISBURSING OFFICER TO CREDIT FOR SUCH ERRONEOUS PAYMENTS. STEARNS WAS DE JURE AN ENLISTED MAN OF THE NAVY, AND THE ASCERTAINMENT OF THE RATING IN WHICH HE WAS ENTITLED TO BE PAID WAS A MERE CLERICAL DUTY DEVOLVING UPON THE PAYMASTER WHO PAID HIM, A MISCONCEPTION BY THE LATTER OF THE LEGAL EFFECT OF THE SENTENCE OF THE COURT-MARTIAL RAISES NO QUESTION OF A DE FACTO STATUS IF, IN ANY CASE, THE DOCTRINE OF DE FACTO STATUS IS APPLICABLE TO THE RATINGS OF ENLISTED MEN. DECISION OF FEBRUARY 11, 1902, 20 MS. COMP. DEC. 492; 17 COMP. DEC. 489; DECISION OF JULY 7, 1926, A-14668, 59 MS. COMP. GEN. 241.