A-9521, NOVEMBER 5, 1925, 5 COMP. GEN. 324

A-9521: Nov 5, 1925

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WILL NOT HEREAFTER BE FOLLOWED IN CASES WHERE THE SECRETARY OF THE NAVY IN REVIEWING COURT-MARTIAL SENTENCES REMITS THE LOSS OF PAY UNDER SECTION 9 OF THE ACT OF FEBRUARY 16. 1925: THERE WAS RECEIVED MAY 5. WAS TRIED JUNE 14. THAT THE SENTENCE WAS APPROVED BY THE CONVENING AUTHORITY JUNE 14. WAS CHECKED AGAINST MULLEN'S ACCOUNT IN JUNE. THAT THE SUM OF $23.10 WAS SUSPENDED IN THE DISBURSING OFFICER'S ACCOUNTS. WAS SENTENCED BY A COURT-MARTIAL TO BE DISMISSED FROM THE SERVICE. THE FINDINGS AND SENTENCE WERE APPROVED BY THE PRESIDENT. AFTER WHICH THE SENTENCE WAS CARRIED INTO EXECUTION. ITS RESTORATION IS BEYOND THE SCOPE OF THE PARDONING POWER. IN THE CASE BEFORE US THE GOVERNMENT WAS RELEASED BY THE SENTENCE FROM ITS PROMISE TO PAY THE ACCRUING SALARY OF THE CLAIMANT.

A-9521, NOVEMBER 5, 1925, 5 COMP. GEN. 324

NAVY PAY - COURT-MARTIAL CHECK AGES - REMISSION OF LOSS OF PAY THE ACTION OF THE SECRETARY OF THE NAVY IN REMITTING SO MUCH OF A SUMMARY COURT-MARTIAL SENTENCE OF AN ENLISTED MAN OF THE NAVY AS INVOLVES THE LOSS OF PAY RESTORES THE RIGHT TO THE ENLISTED MAN TO THE PAY WITHHELD IN EXECUTION OF THE SENTENCE PRIOR TO THE REMISSION. 19 COMP. DEC. 60 AND 3 COMP. GEN. 653, WILL NOT HEREAFTER BE FOLLOWED IN CASES WHERE THE SECRETARY OF THE NAVY IN REVIEWING COURT-MARTIAL SENTENCES REMITS THE LOSS OF PAY UNDER SECTION 9 OF THE ACT OF FEBRUARY 16, 1909, 35 STAT. 621.

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

THERE WAS RECEIVED MAY 5, 1925, YOUR REQUEST FOR REMOVAL OF THE SUSPENSION OF $23.10 IN THE ACCOUNTS OF A. S. FREEDMAN, LIEUTENANT (S.D.), UNITED STATES NAVY, FIRST QUARTER, 1925, BEING THE AMOUNT OF PAY FORFEITED BY JOHN J. MULLEN, QUARTERMASTER, THIRD CLASS, UNITED STATES NAVY, UNDER SENTENCE OF SUMMARY COURT-MARTIAL, PRIOR TO REMISSION BY THE SECRETARY OF THE NAVY OF SO MUCH OF THE SENTENCE AS INVOLVES LOSS OF PAY.

IT APPEARS THAT JOHN J. MULLEN, THEN QUARTERMASTER, SECOND CLASS, UNITED STATES NAVY, WAS TRIED JUNE 14, 1924, BY SUMMARY COURT-MARTIAL FOR ABSENCE OVER LEAVE FROM 7.30 A.M. MAY 8, 1924, TO 10.30 A.M. MAY 12, 1924, AND SENTENCED TO LOSE $33 OF HIS PAY PER MONTH FOR FOUR MONTHS, TOTAL $132; AND TO BE REDUCED TO THE NEXT LOWER RATING; THAT THE SENTENCE WAS APPROVED BY THE CONVENING AUTHORITY JUNE 14, 1924, AND BY THE IMMEDIATE SUPERIOR IN COMMAND JUNE 19, 1924; THAT ON JULY 10, 1924, THE SECRETARY OF THE NAVY DIRECTED THAT SO MUCH OF SAID SENTENCE AS INVOLVES LOSS OF PAY ,BE HEREBY REMITTED: " THAT THE LOSS OF PAY FOR THE FIRST MONTH, $33, WAS CHECKED AGAINST MULLEN'S ACCOUNT IN JUNE, 1924, AND SUBSEQUENTLY CREDITED TO HIM AS HAVING BEEN REMITTED; THAT THE SUM OF $23.10 WAS SUSPENDED IN THE DISBURSING OFFICER'S ACCOUNTS, AS ACCRUED AND COLLECTED FORFEITURE OF PAY FROM JUNE 19, 1924, THE EFFECTIVE DATE OF SENTENCE, TO JULY 9, 1924, THE DATE PRIOR TO THE DATE OF THE REMISSION, THE EXECUTED PORTION OF THE SENTENCE NOT BEING AFFECTED BY THE REMISSION.

IT HAS BEEN UNIFORMLY HELD THAT THE REMISSION OF COURT-MARTIAL SENTENCES DOES NOT OPERATE ON THE EXECUTED PORTION. SEE VANDERSLICE V. UNITED STATES, 19 CT.CLS. 480; 15 OP.ATTY.GEN. 290; 12 COMP. DEC. 276; 1 COMP. GEN. 291.

IN THE VANDERSLICE CASE, SUPRA, IT APPEARS THAT VANDERSLICE, AN ARMY OFFICER, WAS SENTENCED BY A COURT-MARTIAL TO BE DISMISSED FROM THE SERVICE, AND TO FORFEIT ALL PAY AND ALLOWANCES THEN DUE OR WHICH MAY BECOME DUE TO HIM. THE FINDINGS AND SENTENCE WERE APPROVED BY THE PRESIDENT, THE FINAL REVIEWING AUTHORITY, AFTER WHICH THE SENTENCE WAS CARRIED INTO EXECUTION. ABOUT SIX MONTHS LATER THE PRESIDENT REMITTED THE SENTENCE, AND REINSTATED THE OFFICER AS OF THE DATE OF HIS DISMISSAL.

THE COURT HELD AS TO THE PAY FORFEITED THAT AN ORDER OF THE PRESIDENT REVOKING HIS OWN APPROVAL OF THE SENTENCE OF A COURT-MARTIAL MAY OPERATE AS A PARDON, BUT DOES NOT REINVEST IN THE OFFICER A RIGHT TO FORFEITED PAY. THAT RIGHT BECAME VESTED IN THE GOVERNMENT, AND ITS RESTORATION IS BEYOND THE SCOPE OF THE PARDONING POWER.

AFTER REFERRING TO CERTAIN AUTHORITIES THE COURT SAID:

THE REASONING OF THESE CASES AND THE AUTHORITATIVE RULING OF THE SUPREME COURT ESTABLISH THE DOCTRINE THAT PROPERTY OR INTERESTS FORFEITED TO AND VESTED IN THE UNITED STATES CAN NOT BE RESTORED TO THE OFFENDER BY THE PRESIDENT'S PARDON.

IN THE CASE BEFORE US THE GOVERNMENT WAS RELEASED BY THE SENTENCE FROM ITS PROMISE TO PAY THE ACCRUING SALARY OF THE CLAIMANT, AND THE PARDON DID NOT REVIVE IT. CONGRESS GAVE THE ORIGINAL PROMISE, AND THAT BEING EXTINGUISHED, CONGRESS ALONE CAN RENEW IT. * * *.

THE ACT OF FEBRUARY 16, 1909, 35 STAT. 621, 623, PROVIDES:

SEC. 9. THAT 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.

SEC. 17. THAT ALL SENTENCES OF SUMMARY COURTS-MARTIAL MAY BE CARRIED INTO EFFECT UPON THE APPROVAL OF THE SENIOR OFFICER PRESENT. * * *

THE ACT OF AUGUST 29, 1916, 39 STAT. 586, PROVIDES:

NO SENTENCE OF A SUMMARY COURT-MARTIAL SHALL BE CARRIED INTO EXECUTION UNTIL THE PROCEEDINGS AND SENTENCE HAVE BEEN APPROVED BY THE OFFICER ORDERING THE COURT, OR HIS SUCCESSOR IN OFFICE, AND BY HIS IMMEDIATE SUPERIOR IN COMMAND: PROVIDED, THAT IF THE OFFICER ORDERING THE COURT, OR HIS SUCCESSOR IN OFFICE, BE THE SENIOR OFFICER PRESENT, SUCH SENTENCE MAY BE CARRIED INTO EXECUTION UPON HIS APPROVAL THEREOF. * * *

PRIOR TO THE ACT OF FEBRUARY 16, 1909, NO SENTENCE OF A SUMMARY COURT- MARTIAL INVOLVING THE LOSS OF PAY COULD BE CARRIED INTO EXECUTION UNTIL THE PROCEEDINGS AND SENTENCE HAD BEEN APPROVED BY THE SECRETARY OF THE NAVY. SEE ARTICLE 32, A.G.N., SECTION 1624, REVISED STATUTES.

UNDER AND SINCE THE ACT OF FEBRUARY 16, 1909, ALTHOUGH THE SENTENCE OFA SUMMARY COURT-MARTIAL INVOLVING THE LOSS OF PAY MAY BE CARRIED INTO EXECUTION UPON THE APPROVAL OF DESIGNATED OFFICERS, THE PROCEEDINGS AND SENTENCE ARE NOT FINAL, BUT ARE STILL SUBJECT TO FURTHER REVIEW BY THE SECRETARY OF THE NAVY. SEE HARRIS V. DANIELS, 279 FED.REP. 844; LECORCHICK V. UNITED STATES, DECIDED BY COURT OF CLAIMS, DECEMBER 1, 1924; OP.ATTY.GEN. MAY 8, 1924; 4 COMP. GEN. 1021. THE SENTENCE AS APPROVED BY THE DESIGNATED OFFICERS BEING CONDITIONAL, SO MUCH OF THE LOSS OF PAY ADJUDGED BY THE SENTENCE AS MAY BE WITHHELD IN EXECUTION THEREOF IS ALSO CONDITIONAL, AND DOES NOT VEST IN THE GOVERNMENT, BUT IS MERELY WITHHELD SUBJECT TO THE ACTION OF THE SECRETARY OF THE NAVY; AND WHEN HE, AS IN THIS CASE, REMITS SO MUCH OF THE SENTENCE AS INVOLVES THE LOSS OF PAY, THE RIGHT TO THE PAY SO CONDITIONALLY WITHHELD IS THEREBY RESTORED.

THIS CASE IS DISTINGUISHED FROM THE VANDERSLICE CASE IN THAT THE SENTENCE AS APPROVED BY THE PRESIDENT UNDER CONSIDERATION IN THAT CASE WAS FINAL, AND THE PAY FORFEITED THEREUNDER WAS VESTED IN THE GOVERNMENT.

THE SUSPENSION IN THE PRESENT MATTER WILL BE REMOVED.

IN 19 COMP. DEC. 60, AND 3 COMP. GEN. 653, THE PRINCIPLE OF THE VANDERSLICE CASE WAS APPLIED TO SENTENCES OF COURTS-MARTIAL IN WHICH THE LOSSES OF PAY WERE REMITTED BY THE SECRETARY OF THE NAVY UNDER SECTION 9 OF THE ACT OF FEBRUARY 16, 1909. THESE DECISIONS WILL NOT HEREAFTER BE FOLLOWED IN CASES WHERE THE SECRETARY OF THE NAVY ON REVIEW OF COURT- MARTIAL SENTENCES REMITS LOSS OF PAY UNDER THAT ACT.