A-32245, JULY 17, 1930, 10 COMP. GEN. 25

A-32245: Jul 17, 1930

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PAY - COURT-MARTIAL FORFEITURES - ARMY ENLISTED MEN WHERE AN ENLISTED MAN OF THE ARMY CHARGED WITH DESERTION WAS SENTENCED TO FORFEIT TWO-THIRDS OF HIS PAY PER MONTH FOR THREE MONTHS. IS CONSTRUED. IS LEGAL. THE NOTATIONS ON THE VOUCHER ARE AS FOLLOWS: PRIVATES. HE RETURNED TO MILITARY CONTROL DURING THE PERIOD OF HIS ENLISTMENT AND IS ENTITLED TO HAVE HIS PAY COMPUTED FROM DATE OF RETURN TO MILITARY CONTROL. JACKSON WAS TRIED BY GENERAL COURT-MARTIAL FOR VIOLATION OF THE FIFTY- EIGHTH ARTICLE OF WAR. - WHENEVER THE PUNISHMENT FOR A CRIME OR OFFENSE MADE PUNISHABLE BY THESE ARTICLES IS LEFT TO THE DISCRETION OF THE COURT- MARTIAL. IS FIXED BY SECTION 104C. PRESCRIBING THE MAXIMUM LIMITS OF PUNISHMENT OF SOLDIERS IS AMENDED.

A-32245, JULY 17, 1930, 10 COMP. GEN. 25

PAY - COURT-MARTIAL FORFEITURES - ARMY ENLISTED MEN WHERE AN ENLISTED MAN OF THE ARMY CHARGED WITH DESERTION WAS SENTENCED TO FORFEIT TWO-THIRDS OF HIS PAY PER MONTH FOR THREE MONTHS, THE FORFEITURE ADJUDGED, NOT BEING EXPRESSED IN DOLLARS AND CENTS, IS CONSTRUED, UNDER THE PROVISIONS OF THE EXECUTIVE ORDER OF JUNE 11, 1923, AND THE MANUAL FOR COURTS-MARTIAL, UNITED STATES ARMY, 1928, TO BE TWO-THIRDS OF THE SOLDIER'S BASE PAY PLUS PAY FOR LENGTH OF SERVICE.

COMPTROLLER GENERAL MCCARL TO CAPT. WARREN A. BUTLER, UNITED STATES ARMY, JULY 17, 1930:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 3, 1930, TRANSMITTING SUPPLEMENTARY PAY ROLL OF BAND, FOURTEENTH CAVALRY, CONSTITUTING THE CLAIM OF PVT. (FIRST CLASS) EDWARD N. JACKSON FOR PAY FROM NOVEMBER 19, 1929, DATE OF RETURN TO MILITARY CONTROL FOLLOWING DESERTION, TO APRIL 30, 1930, AND REQUESTING DECISION WHETHER THE SENTENCE OF GENERAL COURT-MARTIAL APPROVED JANUARY 18, 1930, DIRECTING FORFEITURE OF TWO THIRDS OF HIS PAY PER MONTH FOR THREE MONTHS, IS LEGAL, AND, IF SO, WHETHER HIS ACCOUNT SHOULD BE SETTLED IN CONFORMITY WITH THE RULES SET OUT IN 24 COMP. DEC. 622.

THE NOTATIONS ON THE VOUCHER ARE AS FOLLOWS:

PRIVATES, FIRST CLASS.--- JACKSON, EDWARD N. DESERTED THE SERVICE AT FT. DES MOINES, IOWA, SEPTEMBER 14, 1929. ACCTS. AT DATE OF DESERTION SETTLED ON VO. NO. 175 ACCTS. OF CAPT. W. A. BUTLER, FD MO DEC., 1929. UNSATISFIED INDEBTEDNESS. SURRENDERED TO M/C AT FT. BLISS, TEXAS, NOV. 19, 1929. TRIED AND CONVICTED OF DESERTION AND SENTENCED TO CONF. H/L FOR 3 MOS. AND TO FORF. TWO-THIRDS OF HIS PAY PER MO. FOR A LIKE PERIOD, GCMO NO. 9, HQ. 1ST CAV. DIV., FT. BLISS, TEXAS, JAN. 18, 1930. DUE US: TEL. $0.25, SC 259 P 921 A 4420-0; TRANS $42.25 FR EL PASO, TEXAS, TO DES MOINES, IOWA, FURN. BY J. W. VANN CAPT. QMC (CAC) T/R-WQ-527, 555, APR. 8, 1930, APPN. FD 700 P 5024 A 9-0; INCREASED COST OF SUB $4.50 FURN. MAJ. CARL HALLA, FD AT FT. BLISS, TEXAS, APRIL 8, 1930, APPN. QM 6 P 4619 A 3-0; TROOP FD. HQ. TR., 1ST CAV. DIV. FT. BLISS, TEX., $0.48. APPTD. PVT 1 CL. FR. PVT. AND RATED SP. 6CL 0 NO. 6, APRIL 14, 1930. DUE SOL. PAY FR. DATE OF RETURN TO M/C.

THE ADJUTANT GENERAL HAS INFORMALLY REPORTED THAT JACKSON ENLISTED JANUARY 30, 1929, FOR THREE YEARS. HE RETURNED TO MILITARY CONTROL DURING THE PERIOD OF HIS ENLISTMENT AND IS ENTITLED TO HAVE HIS PAY COMPUTED FROM DATE OF RETURN TO MILITARY CONTROL, SUBJECT, HOWEVER, TO SUCH FORFEITURE AS MAY BE LEGALLY IMPOSED BY COURT-MARTIAL. A-30275, JANUARY 30, 1930, 9 COMP. GEN. 323.

JACKSON WAS TRIED BY GENERAL COURT-MARTIAL FOR VIOLATION OF THE FIFTY- EIGHTH ARTICLE OF WAR, READING AS FOLLOWS:

DESERTION.--- ANY PERSON SUBJECT TO MILITARY LAW WHO DESERTS OR ATTEMPTS TO DESERT THE SERVICE OF THE UNITED STATES SHALL, IF THE OFFENSE BE COMMITTED IN TIME OF WAR, SUFFER DEATH OR SUCH OTHER PUNISHMENT AS A COURT -MARTIAL MAY DIRECT, AND, IF THE OFFENSE BE COMMITTED AT ANY OTHER TIME, ANY PUNISHMENT, EXCEPTING DEATH, THAT A COURT-MARTIAL MAY DIRECT.

ARTICLE OF WAR NO. 45, 41 STAT. 796, PROVIDES:

MAXIMUM LIMITS.--- WHENEVER THE PUNISHMENT FOR A CRIME OR OFFENSE MADE PUNISHABLE BY THESE ARTICLES IS LEFT TO THE DISCRETION OF THE COURT- MARTIAL, THE PUNISHMENT SHALL NOT EXCEED SUCH LIMIT OR LIMITS AS THE PRESIDENT MAY FROM TIME TO TIME PRESCRIBE: * * *

THE MAXIMUM PUNISHMENT FOR THE OFFENSE OF DESERTION, WHERE THE SOLDIER SURRENDERS AFTER AN ABSENCE OF MORE THAN 60 DAYS, IS FIXED BY SECTION 104C, MANUAL FOR COURTS-MARTIAL, UNITED STATES ARMY, 1928, AS DISHONORABLE DISCHARGE AND FORFEITURE OF ALL PAY AND ALLOWANCES DUE AND TO BECOME DUE, AND CONFINEMENT AT HARD LABOR NOT TO EXCEED ONE AND ONE-HALF YEARS.

EXECUTIVE ORDER NO. 3864, DATED JUNE 11, 1923, PROVIDES AS FOLLOWS:

1. UNDER AUTHORITY OF ARTICLE OF WAR NO. 45, AS AMENDED BY AN ACT OF CONGRESS APPROVED JUNE 4, 1920, THE EXECUTIVE ORDER OF DECEMBER 10, 1920, PRESCRIBING THE MAXIMUM LIMITS OF PUNISHMENT OF SOLDIERS IS AMENDED, EFFECTIVE SEPTEMBER 1, 1923, BY ADDING TO ARTICLE III THEREOF THE FOLLOWING SECTION:

SEC. 3. WITHIN THE MAXIMUM LIMITS PRESCRIBED HEREIN, A SENTENCE OF FORFEITURE WILL BE EXPRESSED IN EVEN DOLLARS, OR IF FOR A PERIOD LONGER THAN ONE MONTH, IN EVEN DOLLARS PER MONTH, BASED UPON THE SOLDIER'S BASE PAY AND PAY FOR LENGTH OF SERVICE. SHOULD THE SENTENCE CARRY A REDUCTION IN GRADE THE FORFEITURE WILL BE BASED ON THE PAY OF THE REDUCED GRADE.

EACH MONTHLY FORFEITURE WILL BE CHARGED AGAINST THE MONTHLY PAY OF THE SOLDIER, BEGINNING WITH THE FIRST DAY OF THE MONTH IN WHICH THE SENTENCE IS PROMULGATED, AND WILL BECOME AND REMAIN A FIXED INDEBTEDNESS TO THE UNITED STATES UNTIL SATISFIED.

II. BY VIRTUE OF THE POWERS IN ME VESTED AS PRESIDENT OF THE UNITED STATES OF AMERICA, AND PURSUANT TO ARTICLE 38 OF CHAPTER II OF AN ACT OF CONGRESS ENTITLED "AN ACT TO AMEND AN ACT ENTITLED "AN ACT FOR MAKING FURTHER AND MORE EFFECTUAL PROVISION FOR THE NATIONAL DEFENSE, AND FOR OTHER PURPOSES," APPROVED JUNE 3, 1916, AND TO ESTABLISH MILITARY JUSTICE," APPROVED JUNE 4, 1920 (41 STAT. 759), I HEREBY MODIFY AS SET OUT IN THE FOLLOWING CHANGES THE RULES OF PROCEDURE IN CASES BEFORE COURTS- MARTIAL AND COURTS OF INQUIRY IN THE ARMY OF THE UNITED STATES, CONTAINED IN THE MANUAL FOR COURTS-MARTIAL IN FORCE AND EFFECT ON AND AFTER FEBRUARY 4, 1921, AND PRESCRIBE THEM AS SO MODIFIED AND DIRECT THEM TO BE PUBLISHED FOR THE GOVERNMENT OF ALL CONCERNED. THESE CHANGES WILL BE IN FORCE ON AND AFTER SEPTEMBER 1, 1923.

APPENDIX 13. CHANGE FORMS 1, 2, 3, 4, AND 8 TO READ AS FOLLOWS:

1. TO HAVE ------------- DOLLARS OF HIS PAY DETAINED.

2. TO HAVE ------------- DOLLARS PER MONTH FOR ----------- MONTHS DETAINED.

3. TO FORFEIT ------------ DOLLARS OF HIS PAY.

4. TO FORFEIT ------------ DOLLARS PER MONTH FOR ------------ MONTHS.

8. TO BE CONFINED AT HARD LABOR, AT SUCH PLACE AS THE REVIEWING AUTHORITY MAY DIRECT, FOR --------- MONTHS AND TO FORFEIT ------------- - DOLLARS PER MONTH FOR A LIKE PERIOD.

THE REQUIREMENT, THUS MADE EFFECTIVE SEPTEMBER 1, 1923, PURSUANT TO LAW, IS THAT, WITHIN THE MAXIMUM LIMITS PRESCRIBED, A SENTENCE OF FORFEITURE WILL BE EXPRESSED IN EVEN DOLLARS, AND THE RULES OF PROCEDURE PRESCRIBE USE OF DEFINITE WORDS IN THE SENTENCE TO ACCOMPLISH SUCH RESULT. THESE CONDITIONS ARE INCORPORATED IN PARAGRAPH 104-C AND APPENDIX 9 OF MANUAL FOR COURTS-MARTIAL, UNITED STATES ARMY, 1928, PROMULGATED AS EXECUTIVE ORDER OF NOVEMBER 29, 1927, AND BY ARMY REGULATIONS 35-2460. THE SENTENCE OF THE COURT-MARTIAL IN QUESTION READS AS FOLLOWS:

TO BE CONFINED AT HARD LABOR AT SUCH PLACE AS THE REVIEWING AUTHORITY MAY DIRECT, FOR THREE (3) MONTHS, AND TO FORFEIT TWO-THIRDS OF HIS PAY PER MONTH FOR A LIKE PERIOD.

THE FORM OF SENTENCE PRESCRIBED FOR CONFINEMENT AT HARD LABOR AND FORFEITURE OF PAY IS SET OUT IN APPENDIX 9-8, READING:

TO BE CONFINED AT HARD LABOR, AT SUCH PLACE AS THE REVIEWING AUTHORITY MAY DIRECT, FOR --------- MONTHS AND TO FORFEIT ------------ DOLLARS PER MONTH FOR A LIKE PERIOD.

THE FORFEITURE ADJUDGED IS NOT EXPRESSED IN DOLLARS AND CENTS AS REQUIRED BY THE COURT-MARTIAL MANUAL, BUT UNDER THE RULE OF COMPUTATION ESTABLISHED BY PARAGRAPH 104-C THE AMOUNT ADJUDGED IS CONSTRUED TO BE TWO-THIRDS OF THE SOLDIER'S BASE PAY PLUS PAY FOR LENGTH OF SERVICE, BEING TWO-THIRDS OF $21, PAY OF PRIVATE SERVING IN FIRST ENLISTMENT, OR $14 PER MONTH FOR THREE MONTHS, A TOTAL FORFEITURE OF $42. UNDER THE LIMITATIONS FIXED IN THE PRESENT EXECUTIVE REGULATIONS THE DECISIONS WITH RESPECT TO FORFEITURES IMPOSED PURSUANT TO PRIOR EXECUTIVE REGULATIONS ARE NOT CONTROLLING. THE PRESENT PROVISIONS WERE DESIGNED TO SECURE CERTAINTY IN THE AMOUNT OF FORFEITURES AND WHERE THE LANGUAGE OF A SENTENCE DOES NOT FOLLOW THE PRESCRIBED FORM, IF THE SENTENCE, IN THE LANGUAGE USED, UNDER THE RULES NOW IN EFFECT IN THE MANUAL FOR COURTS-MARTIAL CAN BE MADE CERTAIN AS TO AMOUNT IN OPERATION AND IS OTHERWISE WITHIN THE LIMITS FIXED IT MUST BE GIVEN EFFECT. IN SUCH A CASE THE DEPARTURE FROM THE PRESCRIBED LANGUAGE IS A MATTER OF FORM NOT OF SUBSTANCE. ACCORDINGLY, YOU ARE ADVISED THAT THE COURT-MARTIAL CHECK AGE ON THE VOUCHER SHOULD BE MADE IN THE AMOUNT OF $42.