A-6401, JUNE 9, 1925, 4 COMP. GEN. 1021

A-6401: Jun 9, 1925

Additional Materials:

Contact:

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

 

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

THE SENTENCE OF A GENERAL COURT-MARTIAL OF AN ENLISTED MAN OF THE NAVY TO CONFINEMENT AND LOSS OF PAY IS CARRIED INTO EXECUTION UPON THE APPROVAL OF THE CONVENING AUTHORITY AND THE SENTENCE IS SUBSEQUENTLY SET ASIDE UNDER THE ACT OF FEBRUARY 16. THE ENLISTED MAN IS ENTITLED TO PAYMENT FROM APPROPRIATIONS CURRENT WHEN THE CHECK AGE WAS MADE OF THE SUMS CHECKED AGAINST HIS PAY PRIOR TO THE SENTENCE BEING SET ASIDE. 1 COMP. WHEREIN WAS DISALLOWED THE CLAIM OF WILLIAM LAWRENCE DAVIS. WHICH SENTENCE WAS SET ASIDE BY THE SECRETARY OF THE NAVY ON SEPTEMBER 22. THE CLAIM OF THE ENLISTED MAN FOR REFUND OF THE DEDUCTION WAS DISALLOWED ON THE GROUND THAT THE SETTING ASIDE OF THE SENTENCE OF THE GENERAL COURT-MARTIAL DID NOT OPERATE TO RESTORE THE CHECK AGES THERETOFORE ACCOMPLISHED WHILE YOU CONTEND THAT IT SO OPERATED AND SUBMIT IN SUPPORT OF YOUR CONTENTION THE ARGUMENT AND OPINION.

A-6401, JUNE 9, 1925, 4 COMP. GEN. 1021

NAVY PAY - REFUND OF COURTS-MARTIAL FORFEITURES WHERE, UNDER ARTICLE 53 FOR THE GOVERNMENT OF THE NAVY, SECTION 1624, REVISED STATUTES, THE SENTENCE OF A GENERAL COURT-MARTIAL OF AN ENLISTED MAN OF THE NAVY TO CONFINEMENT AND LOSS OF PAY IS CARRIED INTO EXECUTION UPON THE APPROVAL OF THE CONVENING AUTHORITY AND THE SENTENCE IS SUBSEQUENTLY SET ASIDE UNDER THE ACT OF FEBRUARY 16, 1909, 35 STAT. 621, BY THE SECRETARY OF THE NAVY, THE ENLISTED MAN IS ENTITLED TO PAYMENT FROM APPROPRIATIONS CURRENT WHEN THE CHECK AGE WAS MADE OF THE SUMS CHECKED AGAINST HIS PAY PRIOR TO THE SENTENCE BEING SET ASIDE. 1 COMP. GEN. 609; 2 ID. 445; 3 ID. 342; ID. 627; ID. 660, OVERRULED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JUNE 9, 1925:

THERE HAS BEEN RECEIVED YOUR REQUEST DATED NOVEMBER 15, 1924, FOR REVIEW OF SETTLEMENT NO. N-157124, DATED FEBRUARY 8, 1922, WHEREIN WAS DISALLOWED THE CLAIM OF WILLIAM LAWRENCE DAVIS, BOATSWAIN'S MATE, SECOND CLASS, FOR $158 CHECKED AGAINST HIS PAY PURSUANT TO THE SENTENCE OF A GENERAL COURT- MARTIAL APPROVED AUGUST 27, 1921, BUT THE COMMANDER OF THE MINE FORCE, ATLANTIC FLEET, BUT WHICH SENTENCE WAS SET ASIDE BY THE SECRETARY OF THE NAVY ON SEPTEMBER 22, 1921. THE CLAIM OF THE ENLISTED MAN FOR REFUND OF THE DEDUCTION WAS DISALLOWED ON THE GROUND THAT THE SETTING ASIDE OF THE SENTENCE OF THE GENERAL COURT-MARTIAL DID NOT OPERATE TO RESTORE THE CHECK AGES THERETOFORE ACCOMPLISHED WHILE YOU CONTEND THAT IT SO OPERATED AND SUBMIT IN SUPPORT OF YOUR CONTENTION THE ARGUMENT AND OPINION, DATED MAY 8, 1924, OF THE ATTORNEY GENERAL THAT YOU HAVE AUTHORITY TO SET ASIDE AND MODIFY THE SENTENCES OF NAVY GENERAL COURTS-MARTIAL, BUT THAT THE QUESTION AS TO THE PAY ACTUALLY DUE IN SUCH A CASE IS FOR THE DETERMINATION OF THIS OFFICE. IN VIEW OF YOUR CONTENTIONS, CONCURRED IN BY THE ATTORNEY GENERAL, THE ENTIRE MATTER WILL BE CONSIDERED HEREIN ON ITS MERITS.

DAVIS WAS TRIED BY A GENERAL COURT-MARTIAL ABOARD THE U.S.S. SAN FRANCISCO, FOUND GUILTY BY THE SPECIFICATION OF ASSAULTING AND STRIKING ANOTHER PERSON IN THE NAVY, AND SENTENCED TO BE CONFINED FOR A PERIOD OF TWO MONTHS AND TO FORFEIT $237 IN PAY. THE PROCEEDINGS, FINDINGS, AND SENTENCE WERE APPROVED AUGUST 27, 1921, BY THE COMMANDER OF THE MINE FORCE OF THE ATLANTIC FLEET, BUT THE LOSS OF PAY WAS REDUCED TO $158. THE SENTENCE AS APPROVED AND REDUCED WAS CARRIED INTO EFFECT AND THE PROCEEDINGS FORWARDED TO THE NAVY DEPARTMENT, WHERE THE SECRETARY OF THE NAVY SET ASIDE THE PROCEEDINGS, FINDINGS, AND SENTENCE. IN THE MEANTIME THE SUM OF $158 HAD BEEN CHECKED AGAINST THE PAY OF THE ENLISTED MAN AND THE OBJECT OF THE REQUEST FOR REVIEW IS TO SECURE THE RESTORATION OF SAID AMOUNT.

ARTICLE 53 FOR THE GOVERNMENT OF THE NAVY, SECTION 1624, REVISED STATUTES, PROVIDES THAT WITH THE EXCEPTION OF SENTENCES EXTENDING TO THE LOSS OF LIFE OR DISMISSAL OF A COMMISSIONED OR WARRANT OFFICER, ALL SENTENCES OF A GENERAL COURT-MARTIAL MAY BE CARRIED INTO EXECUTION ON CONFIRMATION OF THE COMMANDER OF THE FLEET OR OFFICER ORDERING THE COURT. THE ACT OF FEBRUARY 16, 1909, 35 STAT. 621, AUTHORIZES THE CONVENING OF A GENERAL COURT-MARTIAL BY THE PRESIDENT, SECRETARY OF THE NAVY, THE COMMANDER IN CHIEF OF A FLEET OR SQUADRON, OR BY THE COMMANDING OFFICER OF ANY STATION BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES. THE GENERAL COURT-MARTIAL WAS PROPERLY CONVENED, AND UNDER THE ARTICLES FOR THE GOVERNMENT OF THE NAVY HAD JURISDICTION OF THE OFFENSE CHARGED IN THIS CASE; THAT IS, OF STRIKING ANOTHER PERSON IN THE NAVY. IT FOLLOWS, THEREFORE, THAT THE SENTENCE IN THIS CASE WAS NOT SUBJECT TO COLLATERAL REVIEW. SEE GIVENS V. ZERBST, 255 U.S. 11; COLLINS V. MCDONALD, 258 ID. 416. IT APPEARS THAT SUBSEQUENT TO THE ACT OF JUNE 8, 1880, 21 STAT. 164, ESTABLISHING THE OFFICE OF JUDGE ADVOCATE GENERAL OF THE NAVY, WHERE, UNDER THE DIRECTION OF THE SECRETARY OF THE NAVY, WERE RECEIVED, REVISED, AND RECORDED THE PROCEEDINGS OF GENERAL COURTS-MARTIAL, THE PROCEDURE GREW UP, WITHOUT ANY EXPRESS STATUTORY AUTHORITY, TO ACTUALLY MITIGATE OR SET ASIDE SENTENCES WHERE THERE HAD BEEN AN ABUSE OF POWER, EITHER IN THE COURT MARTIAL OR IN THE COMMANDING OFFICER. SEE LAWS RELATING TO THE NAVY (ANNOTATED), PAGE 1042, NOTE. IN OTHER WORDS, ABUSES OF POWER LED TO THE ASSUMPTION OF REVIEW NOT AUTHORIZED BY LAW, AND AS THE RESULT THE ACT OF FEBRUARY 16, 1909, 35 STAT. 621, MADE PROVISION FOR AUTOMATIC REVIEW OF SENTENCES OF NAVAL GENERAL COURTS-MARTIAL IN LANGUAGE AS FOLLOWS:

* * * THE SECRETARY OF THE NAVY MAY SET ASIDE THE PROCEEDINGS OR REMIT OR MITIGATE, IN WHOLE OR IN PART, THE SENTENCE IMPOSED BY ANY NAVAL COURT- MARTIAL CONVENED BY HIS ORDER OR BY THAT OF ANY OFFICER OF THE NAVY OR MARINE CORPS.

THERE CAN BE NO QUESTION AS TO SENTENCES OF GENERAL COURT-MARTIAL INVOLVING LOSS OF LIFE OR SEPARATION OF A COMMISSIONED OR WARRANT OFFICER FROM THE SERVICE, FOR SUCH SENTENCES CAN NOT BE CARRIED INTO EXECUTION WITHOUT CONFIRMATION BY THE PRESIDENT. THE QUESTION ARISES WITH REFERENCE TO SENTENCES OF GENERAL COURTS-MARTIAL INVOLVING DISCHARGE OF ENLISTED MEN AND LOSS OF PAY OR CONFINEMENT OR BOTH OF OFFICERS AND ENLISTED MEN WHICH MAY BE CARRIED INTO EFFECT UPON APPROVAL OF THE SENTENCE BY THE CONVENING AUTHORITY BUT WHICH ARE SUBJECT TO THE SUBSEQUENT REVIEW OF THE SECRETARY OF THE NAVY. UNLESS THERE HAS BEEN A DISCHARGE FROM THE SERVICE IN THE CASE OF ENLISTED MEN, IT IS UNQUESTIONABLY TRUE THAT THE SUBSEQUENT SETTING ASIDE OF THE SENTENCE BY THE SECRETARY OF THE NAVY UNDER THE PROVISION IN THE ACT OF FEBRUARY 16, 1909, SUPRA, FOR HIS AUTOMATIC REVIEW OF ALL SENTENCES OF NAVAL COURTS-MARTIAL OPERATES TO RELIEVE THE OFFICER OR ENLISTED MAN FROM THE UNEXECUTED FINES AND PENALTIES; THAT IS, THE REMAINDER OF THE SENTENCE OF CONFINEMENT AND THE UNACCRUED AND UNCHECKED FORFEITURES OF PAY. IT IS OBVIOUS, HOWEVER, THAT THE SUBSEQUENT SETTING ASIDE OF A SENTENCE OF CONFINEMENT CAN NOT BLOT OUT THE SERVED IMPRISONMENT; THAT IS, RESTORE PHYSICAL FREEDOM FORA PERIOD THAT HAS PASSED, AND THE QUESTION HERE IS WHETHER SUCH SETTING ASIDE IS EQUALLY IMPOTENT AS TO THE ACCRUED AND CHECKED FORFEITURES OF PAY.

THERE IS AUTHORITY FOR THE PROPOSITION THAT THE RESULT OF THE DELIBERATION, FINDINGS, AND SENTENCE OF A COURT-MARTIAL IS IN THE NATURE OF A RECOMMENDATION TO THE REVIEWING AUTHORITY AND THAT A SENTENCE OF A COURT-MARTIAL IS INTERLOCUTORY AND INCHOATE UNTIL APPROVED BY THE REVIEWING AUTHORITY. IN RE BRODIE, 128 FED.REP. 665. HERE THERE ARE TWO REVIEWING AUTHORITIES--- THE OFFICER CONVENING THE COURT-MARTIAL AND THE SECRETARY OF THE NAVY. THE EFFECT OF THE APPROVAL OF THE FIRST REVIEWING AUTHORITY MUST BE TO AUTHORIZE THE CARRYING OF THE SENTENCE INTO EXECUTION SUBJECT TO SETTING ASIDE OR MODIFICATION BY THE SECRETARY OF THE NAVY. SEE UNITED STATES V. FLETCHER, 148 U.S. 84. THE ACCRUED FORFEITURES AND CHECK AGES OF PAY PURSUANT TO THE SENTENCE OF GENERAL COURTS-MARTIAL ARE NOT CARRIED TO THE GENERAL FUND OF THE TREASURY, FROM WHENCE, UNDER ARTICLE I, SECTION 9, OF THE CONSTITUTION, THEY COULD NOT BE WITHDRAWN SAVE IN CONSEQUENCE OF AN APPROPRIATION MADE BY LAW, BUT EVENTUALLY ARE CREDITED TO THE NAVAL HOSPITAL FUND, REVISED STATUTES, SECTION 4809. SEE 1 COMP. GEN. 291; 23 COMP. DEC. 340; 12 ID. 276. AS A PRACTICABLE MATTER, THEREFORE, WHEN A SENTENCE OF A GENERAL COURT-MARTIAL IS SUBSEQUENTLY SET ASIDE UPON REVIEW, THERE IS NO INSUPERABLE OBSTACLE TO DEBITING THE APPROPRIATION WITH THE ACCRUED AND CHECKED FORFEITURES, AND THE VIEW MAY BE ADOPTED THAT THE INTENT OF THE HEREINBEFORE-QUOTED PROVISION OF THE ACT OF FEBRUARY 16, 1909, SUPRA, IS THAT WHEN THE SECRETARY OF THE NAVY SETS ASIDE THE SENTENCE OF A NAVAL COURT-MARTIAL THE OFFICER OR ENLISTED MAN, IN SO FAR AS PAY IS CONCERNED, SHALL BE RESTORED, AS NEARLY AS MAY BE, TO THE CONDITION HE WOULD HAVE BEEN IN HAD THERE BEEN NO SENTENCE OF HIM BY A COURT MARTIAL. SEE LECORCHICK V. UNITED STATES, DECIDED DECEMBER 1, 1924, BY THE COURT OF CLAIMS. SO MUCH OF THE DECISIONS IN 1 COMP. GEN. 609; 2 ID. 45; 3 ID. 342, 627, 660, AS CONFLICT WITH THE VIEWS HEREIN EXPRESSED WILL NOT BE FOLLOWED HEREAFTER.

UPON REVIEW, THE SUM OF $158 CHECKED AGAINST THE PAY OF DAVIS DURING THE FIRST QUARTER, 1922, IS CERTIFIED DUE HIM, CHARGEABLE TO THE APPROPRIATION FOR THE PAY OF THE NAVY THEN CURRENT; APPROPRIATE ADJUSTMENT OF THE NAVAL HOSPITAL FUND OF THE AMOUNT HEREIN AUTHORIZED TO BE REFUNDED WILL ALSO BE MADE.