B-116132, JUL 29, 1953

B-116132, JUL 29, 1953

PRECIS-UNAVAILABLE

WALTER NORBLAD, HOUSE OF REPRESENTATIVES:

REFERENCE IS MADE TO YOUR LETTER OF JULY 15, 1953, QUOTING A LETTER FROM MR. ROBERT W. BEEM, IN REGARD TO HIS CLAIM FOR THE DIFFERENCE BETWEEN THE PAY OF A MASTER SERGEANT AND THE PAY OF THE LOWER GRADES HELD BY HIM AS THE RESULT OF A SUMMARY COURT-MARTIAL SENTENCE DURING THE PERIOD FROM JULY 20, 1943, TO SEPTEMBER 10, 1945, INCIDENT TO HIS SERVICE IN THE UNITED STATES ARMY. THE SAID CLAIM WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED APRIL 30, 1948, FOR THE REASON THAT DURING SUCH PERIOD NO ACTION WAS TAKEN TOWARD REAPPOINTING HIM A MASTER SERGEANT AND FOR THE REASON THAT THERE WAS NO SHOWING THAT HE PERFORMED THE DUTIES OF A MASTER SERGEANT OR THAT HE WAS CONSIDERED ADMINISTRATIVELY AS AN ENLISTED MAN OF THAT GRADE. YOU ASK THAT THE FACTS IN THIS CASE BE REVIEWED AND THAT YOU BE ADVISED FULLY IN REGARD THERETO.

IT APPEARS THAT, ON OR ABOUT JUNE 21, 1943, MR. BEEM WAS TRIED BY A SUMMARY COURT AT KUNMING, CHINA, FOR VIOLATION OF THE 61ST ARTICLE OF WAR IN THAT HE FAILED TO REPAIR AT THE FIXED TIME TO THE PROPERLY APPOINTED PLACE OF DUTY. HE WAS FOUND GUILTY AND SENTENCED BY THE COURT TO FORFEIT $102 AND TO BE REDUCED FROM THE GRADE OF MASTER SERGEANT TO PRIVATE. THE SENTENCE AS APPROVED AND EXECUTED WAS TO FORFEIT $40 AND THE REDUCTION WAS SUSPENDED. ON JULY 20, 1943, AS A RESULT OF BECOMING INVOLVED IN A FIGHT, THE SUSPENSION OF THE REDUCTION WAS ORDERED VACATED AND HE WAS REDUCED TO PRIVATE.

DURING THE PERIOD INVOLVED THERE WERE IN EFFECT THE PROVISIONS OF THE "MANUAL FOR COURTS-MARTIAL, U. S. ARMY, 1928," PARAGRAPH 16 OF WHICH WAS AS FOLLOWS:

"16. COURTS-MARTIAL - JURISDICTION OF SUMMARY COURTS-MARTIAL - PERSONS AND OFFENSES. - SUMMARY COURTS-MARTIAL SHALL HAVE POWER TO TRY ANY PERSON SUBJECT TO MILITARY LAW, EXCEPT AN OFFICER, A MEMBER OF THE ARMY NURSE CORPS, A WARRANT OFFICER, AN ARMY FIELD CLERK, A FIELD CLERK QUARTERMASTER CORPS, A CADET (I.E., CADET OF THE UNITED STATES MILITARY ACADEMY), OR A SOLDIER HOLDING THE PRIVILEGES OF A CERTIFICATE OF ELIGIBILITY TO PROMOTION, FOR ANY CRIME OR OFFENSE NOT CAPITAL (SEE 14) MADE PUNISHABLE BY THE ARTICLES OF WAR: PROVIDED, THAT NONCOMMISSIONED OFFICERS SHALL NOT, IF THEY OBJECT THERETO, BE BROUGHT TO TRIAL BEFORE A SUMMARY COURT-MARTIAL WITHOUT THE AUTHORITY OF THE OFFICER COMPETENT TO BRING THEM TO TRIAL BEFORE A GENERAL COURT-MARTIAL: PROVIDED FURTHER, THAT THE PRESIDENT MAY, BY REGULATIONS, EXCEPT FROM THE JURISDICTION OF SUMMARY COURTS-MARTIAL ANY CLASS OR CLASSES OF PERSONS SUBJECT TO MILITARY LAW. (A. W. 14.)

"UNDER THE AUTHORITY OF A. W. 14, PERSONS OF ACTUAL, RELATIVE, OR ASSIMILATED RANK ABOVE THAT OF PRIVATE, FIRST CLASS, IN THE ARMY ARE HEREBY EXCEPTED FROM THE JURISDICTION OF SUMMARY COURTS-MARTIAL, PROVIDED THAT NONCOMMISSIONED OFFICERS OF ACTUAL, RELATIVE, OR ASSIMILATED RANK BELOW THAT OF TECHNICAL SERGEANT IN THE ARMY MAY BE TRIED BY SUMMARY COURT -MARTIAL EITHER, IF THEY DO NOT OBJECT, OR IF SUCH TRIAL IS AUTHORIZED BY THE OFFICER COMPETENT TO BRING THEM TO TRIAL BEFORE A GENERAL COURT- MARTIAL."

MR. BEEM WAS A MASTER SERGEANT AT THE TIME OF THE TRIAL IN QUESTION AND AS SUCH HE WAS NOT SUBJECT TO THE JURISDICTION OF A SUMMARY COURT MARTIAL EITHER WITH OR WITHOUT HIS CONSENT. CONSEQUENTLY, IT APPEARS THAT HIS REDUCTION IN GRADE ON JULY 20, 1943, WAS INCIDENT TO A VOID SUMMARY COURT- MARTIAL. BEING VOID, THE SENTENCE OF THE SUMMARY COURT WAS A NULLITY AND FOR PAY PURPOSES MR. BEEM MUST BE CONSIDERED AS RETAINING THE STATUS HE OCCUPIED PRIOR TO THE SUMMARY COURT-MARTIAL UP TO THE DATE OF HIS DISCHARGE ON SEPTEMBER 10, 1945.

SETTLEMENT FOR THE ADDITIONAL AMOUNT DUE MR. BEEM ON SUCH BASIS FOR THE PERIOD FROM JULY 20, 1943, TO SEPTEMBER 10, 1945, WILL ISSUE PROMPTLY UPON THE RECEIPT OF A LETTER FROM HIM OVER HIS OWN SIGNATURE GIVING HIS PRESENT ADDRESS. SUCH LETTER SHOULD BE SENT TO THE GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION, WASHINGTON 25, D. C., REFERRING TO CLAIM NO. 2911553.

I TRUST THAT THE FOREGOING WILL SERVE THE PURPOSE OF YOUR INQUIRY.