A-8037, JUNE 5, 1925, 4 COMP. GEN. 1014

A-8037: Jun 5, 1925

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OR OTHER CAUSES FOR WHICH PERSONS IN THE NAVAL SERVICE HAVE BEEN TRIED BY GENERAL COURT-MARTIAL. WILL NOT BE QUESTIONED. THE RULE LAID DOWN BY THIS DECISION WILL BE FOLLOWED ON AND AFTER THAT DATE. 1925: I HAVE YOUR LETTER OF FEBRUARY 14. ALL PAY ACCRUING TO THE ACCUSED DURING THE PERIOD PRESCRIBED IS TO BE APPLIED TO THE DISCHARGE OF HIS INDEBTEDNESS TO THE UNITED STATES AT DATE THE SENTENCE IS APPROVED. IS TO BE FORFEITED WITH THE EXCEPTION OF CERTAIN SPECIFIED AMOUNTS. THE LIQUIDATION OF HIS INDEBTEDNESS TO THE UNITED STATES IS THUS A MATTER OF BOOKKEEPING. THAT "IF THE GENERAL ACCOUNTING OFFICE CONTENDS THAT SUCH BALANCES ARE AVAILABLE TO LIQUIDATE ALL SUCH INDEBTEDNESS TO THE UNITED STATES.

A-8037, JUNE 5, 1925, 4 COMP. GEN. 1014

ACCOUNTING, SET-OFF - INDEBTEDNESS OF GENERAL COURT-MARTIAL PRISONERS TO THE UNITED STATES WHERE THE UNITED STATES HAS SUFFERED LOSS OF MONEY OR PROPERTY THROUGH EMBEZZLEMENT, THEFT, FORGERY, OR OTHER CAUSES FOR WHICH PERSONS IN THE NAVAL SERVICE HAVE BEEN TRIED BY GENERAL COURT-MARTIAL, CONVICTED, AND SENTENCED TO CONFINEMENT IN PRISON, THE AMOUNT THEREOF CONSTITUTES AN INDEBTEDNESS OF THE PRISONER TO THE UNITED STATES WHICH MUST BE LIQUIDATED FROM ACCRUED PAY, VIZ, THE BALANCE STANDING TO THE CREDIT OF THE PRISONER AT DATE OF APPROVAL OF SENTENCE AND PAY THAT MAY THEREAFTER ACCRUE BEFORE ANY FORFEITURE FOR CREDIT TO THE NAVAL HOSPITAL FUND CAN BEGIN TO RUN. PAYMENTS MADE BY DISBURSING OFFICERS PRIOR TO JULY 1, 1925, WILL NOT BE QUESTIONED, BUT THE RULE LAID DOWN BY THIS DECISION WILL BE FOLLOWED ON AND AFTER THAT DATE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, JUNE 5, 1925:

I HAVE YOUR LETTER OF FEBRUARY 14, 1925, AS FOLLOWS:

I AM ADVISED BY THE SUPPLY OFFICER, NAVAL PRISON, PORTSMOUTH, N.H., THAT CREDIT HAS BEEN SUSPENDED IN HIS ACCOUNTS FOR PAYMENTS ON DISCHARGE TO GENERAL COURT-MARTIAL PRISONERS WHO HAD BEEN CONVICTED OF "EMBEZZLEMENT, THEFT, FORGERY, AND OTHER CHARGES WHICH MIGHT RESULT IN AN INDEBTEDNESS TO THE GOVERNMENT.'

UNDER THE TERMS OF GENERAL COURT-MARTIAL SENTENCES INVOLVING CONFINEMENT, ALL PAY ACCRUING TO THE ACCUSED DURING THE PERIOD PRESCRIBED IS TO BE APPLIED TO THE DISCHARGE OF HIS INDEBTEDNESS TO THE UNITED STATES AT DATE THE SENTENCE IS APPROVED, AND THE BALANCE, IF ANY, IS TO BE FORFEITED WITH THE EXCEPTION OF CERTAIN SPECIFIED AMOUNTS. THE LIQUIDATION OF HIS INDEBTEDNESS TO THE UNITED STATES IS THUS A MATTER OF BOOKKEEPING. SHOULD THE PAY ACCRUING TO THE ACCUSED AFTER CONVICTION BE INSUFFICIENT TO DISCHARGE HIS INDEBTEDNESS, THEN AND THEN ONLY COULD THE QUESTION ARISE AS TO WHETHER BALANCE DUE HIM AT DATE OF CONVICTION SHOULD BE WITHHELD.

IN THIS CONNECTION IT WOULD APPEAR, AS STATED BY THE SUPPLY OFFICER, THAT

"IF THE GENERAL ACCOUNTING OFFICE CONTENDS THAT SUCH BALANCES ARE AVAILABLE TO LIQUIDATE ALL SUCH INDEBTEDNESS TO THE UNITED STATES, IT IS BELIEVED THAT CLAIMS SHOULD BE FORMULATED AND SET UP AGAINST THE PRISONER AS SOON AS THE INDEBTEDNESS SHALL HAVE BEEN ASCERTAINED WHILE THE PERSON IS UNDER NAVAL JURISDICTION RATHER THAN DELAY SUCH ACTION UNTIL AFTER THE PRISONER HAS BEEN DISCHARGED AFTER WHICH, IN MOST CASES, NO RECOURSE CAN BE HAD. IN THE MAJORITY OF THE CASES SUSPENDED IN MY ACCOUNT THE PRISONERS HAD SERVED SENTENCES AVERAGING A PERIOD OF TWO YEARS, WHICH IS BELIEVED TO HAVE BEEN SUFFICIENT TIME FOR FINAL DETERMINATION OF THE AMOUNT OF INDEBTEDNESS IN EVERY CASE.'

IN VIEW OF THE FOREGOING IT IS REQUESTED THAT THE SUSPENSIONS REFERRED TO BE REMOVED AND THAT APPROPRIATE INSTRUCTIONS BE ISSUED TO THE MILITARY DIVISION OF YOUR OFFICE FOR ITS GUIDANCE IN FUTURE CASES.

THE STANDARD FORM IN WHICH GENERAL COURTS-MARTIAL SENTENCES ARE STATED PROVIDES THAT THE PERSON FOUND GUILTY IS "TO SUFFER ALL THE OTHER ACCESSORIES OF SAID SENTENCE AS PRESCRIBED BY SECTION 883, NAVAL COURTS AND BOARDS.'

AS DEFINED BY SECTION 883,"ALL THE OTHER ACCESSORIES OF SAID SENTENCE" INCLUDES:

* * * AND AFTER HIS ACCRUED PAY * * * SHALL HAVE DISCHARGED HIS INDEBTEDNESS TO THE UNITED STATES AT THE DATE OF APPROVAL OF SUCH SENTENCE AND SUFFICIENT FUNDS HAVE ACCRUED TO HIS CREDIT TO DEFRAY THE COST OF TRANSPORTATION TO HIS HOME OR PLACE OF ENLISTMENT, SUBSISTENCE EN ROUTE, AND THE CIVILIAN CLOTHES TO BE FURNISHED UPON DISCHARGE, SHALL FORFEIT ALL PAY * * * THAT MAY BECOME DUE HIM DURING A PERIOD EQUIVALENT TO THE TERM OF SUCH CONFINEMENT * * * EXCEPT THE SUM OF $3 PER MONTH DURING SUCH CONFINEMENT FOR NECESSARY PRISON EXPENSES, AND IF DISHONORABLY DISCHARGED * * * PURSUANT TO SUCH SENTENCE A FURTHER SUM OF $20 TO BE PAID HIM WHEN DISCHARGED.

WITHIN THE MEANING OF THE TERM ANY BALANCE OF PAY STANDING TO THE CREDIT OF A PRISONER AT THE DATE OF APPROVAL OF HIS SENTENCE IS "ACCRUED PAY.' THIS TOGETHER WITH PAY CREDITED SUBSEQUENT TO THAT DATE IS BY THE TERMS OF THE SENTENCE FIRST TO BE APPLIED TO LIQUIDATE INDEBTEDNESS TO THE UNITED STATES.

THE IMPOSING OF A FORFEITURE OF PAY BY SENTENCE OF COURT-MARTIAL DEPRIVES THE INDIVIDUAL OF HIS PAY AS A PENALTY, NOT AS LIQUIDATION OF INDEBTEDNESS, AND BY SECTION 4809 OF THE REVISED STATUTES THE AMOUNTS THEREOF ARE TRANSFERRED TO AND MADE AVAILABLE FOR DISBURSEMENT FROM NAVAL HOSPITAL FUND. ALL PAY ACCRUING IS A CHARGE TO THE PAY APPROPRIATION, WHETHER APPLIED TO LIQUIDATE INDEBTEDNESS, CREDITED TO NAVAL HOSPITAL FUND, OR PAID TO THE PRISONER THROUGH EXEMPTIONS FROM FORFEITURE, AND THE IMPOSITION OF A FORFEITURE DOES NOT CHANGE THE SITUATION. THE TERMS OF GENERAL COURT-MARTIAL SENTENCES RELATIVE TO INDEBTEDNESS TO THE GOVERNMENT ARE THAT THE GOVERNMENT SHALL BE REIMBURSED FOR THOSE ITEMS OF COST, DISBURSEMENT, OR LOSS WHICH HAVE NOT BEEN LIQUIDATED AT DATE OF APPROVAL OF SENTENCE BEFORE FORFEITURE SHALL BEGIN TO RUN FOR CREDIT TO THE NAVAL HOSPITAL FUND.

IF FROM THE EMBEZZLEMENT, THEFT, OR FORGERY THE GOVERNMENT HAS SUFFERED A LOSS OF CASH OR PROPERTY, THE VALUE THEREOF IS DUE THE UNITED STATES AND SHOULD BE CONSIDERED AS AN "INDEBTEDNESS TO THE UNITED STATES" TO BE REIMBURSED FROM THE PAY APPROPRIATION THROUGH APPLICATION THERETO OF ACCRUED PAY BEFORE ANY FORFEITURE TO THE CREDIT OF NAVAL HOSPITAL FUND CAN BEGIN. AND IN ALL CASES OF CONVICTION UNDER THE FOURTEENTH ARTICLE FOR THE GOVERNMENT OF THE NAVY THE AMOUNT OF LOSS, IF ANY, SUSTAINED BY THE GOVERNMENT BY REASON OF THE WRONGFUL ACT OF THE MAN SHOULD BE DETERMINED AND SET UP AS A DEBIT ITEM IN THE MAN'S ACCOUNT.

IT APPEARS THAT THIS ELEMENT OF INDEBTEDNESS HAS NOT IN THE PAST BEEN TAKEN INTO CONSIDERATION, AND THAT SINCE THE DECISION OF THIS OFFICE OF JANUARY 20, 1923, 17 MS. COMP. GEN. 789 (PUBLISHED IN S. AND A. MEMO.NO. 246, P. 7067), BUT ONE SUPPLY OFFICER HAS APPLIED THIS DECISION TO A DISCHARGED PRISONER. THE MILITARY DIVISION OF THIS OFFICE REPORTS:

AS FAR AS THIS OFFICE IS ABLE TO DETERMINE, NO PAYMENTS OF THE KIND IN QUESTION HAVE BEEN MADE BY THE DISBURSING OFFICERS OF THE ABOVE MENTIONED PRISONS, SUBSEQUENT TO THE RECEIPT OF THEIR STATEMENT OF DIFFERENCES FOR THE FOURTH QUARTER, 1924.

CONSIDERING THE PRACTICE IN THE PAST BOTH AS TO DISBURSEMENTS AND AUDIT OF ACCOUNTS, AND THE FACT THAT THE DECISION OF JANUARY 20, 1923, WAS NOT SPECIFICALLY UPON A NAVAL COURT-MARTIAL CASE, THE ITEMS SUSPENDED ON THIS ACCOUNT IF OTHERWISE CORRECT, WILL BE PASSED TO THE CREDIT OF THE DISBURSING OFFICERS. IT ORDER TO GIVE THE NAVY DEPARTMENT AMPLE TIME IN WHICH TO GIVE NOTICE TO THE SERVICE OF THE PRESENT DECISION NO PAYMENTS BECAUSE OF THE QUESTION HEREIN INVOLVED MADE PRIOR TO JULY 1, 1925, WILL BE QUESTIONED ON THIS ACCOUNT. ON AND AFTER JULY 1, 1925, NO DISBURSING OFFICER SHOULD MAKE PAYMENT IN MONEY TO OR ON ACCOUNT OF ANY MAN SERVING SENTENCE IN CONFINEMENT UNDER GENERAL COURT-MARTIAL UNTIL THE AMOUNT OF HIS INDEBTEDNESS TO THE UNITED STATES, IF ANY, ARISING FROM THE OFFENSE FOR WHICH TRIED AND FOUND GUILTY, HAS BEEN DETERMINED, ENTERED AS A DEBIT IN HIS ACCOUNTS, AND THE ACCOUNT PROPERLY ADJUSTED.

IN THE EVENT, ON AND AFTER JULY 1, 1925, A PRISONER IS DUE FOR DISCHARGE, AND THE DETERMINATION HAS NOT THEN BEEN MADE AS TO WHETHER FROM THE NATURE OF THE OFFENSE HE IS LIABLE TO BE INDEBTED TO THE UNITED STATES OR THE AMOUNT THEREOF HAS AS YET NOT BEEN DETERMINED, NO PAYMENT IN MONEY OTHER THAN THE GRATUITY AUTHORIZED BY THE ACT OF FEBRUARY 16, 1909, 35 STAT. 622, SHOULD BE MADE TO HIM. TRANSPORTATION AND CIVILIAN CLOTHING MAY BE FURNISHED AS PRESCRIBED IN THE ACT OF MARCH 3, 1909, 35 STAT. 756, NOTATION OF THIS FACT BEING ENTERED ON THE PAY ACCOUNT AND THE PRISONER SHOULD BE INSTRUCTED TO FILE CLAIM WITH THIS OFFICE FOR ANY ARREARS OF PAY TO WHICH HE MAY CONSIDER HIMSELF ENTITLED.