B-127022, MAY 11, 1956

B-127022: May 11, 1956

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REQUESTS A DECISION WHICH WOULD ESTABLISH CRITERIA FOR DETERMINING WHETHER A MILITARY OFFENSE "IS A FELONY UNDER THE LAWS OF THE UNITED STATES" WITHIN THE MEANING OF SECTION 1. INSOFAR AS IS HERE PERTINENT. THE ACT PROHIBITS PAYMENT OF ANNUITIES OR RETIRED PAY TO OFFICERS AND EMPLOYEES OF THE UNITED STATES WHO HAVE BEEN CONVICTED PRIOR TO. OR AFTER THE DATE OF ITS ENACTMENT OF ANY OFFENSE WHICH IS A FELONY UNDER THE LAWS OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA COMMITTED IN THE EXERCISE OF AUTHORITY. YOU CITED AN APPLICATION FOR AN ANNUITY UNDER THE CIVIL SERVICE RETIREMENT ACT SUBMITTED TO YOUR OFFICE BY AN INDIVIDUAL WHO WAS CONVICTED IN A UNITED STATES ARMY COURT-MARTIAL IN 1918.

B-127022, MAY 11, 1956

TO HONORABLE PHILIP YOUNG, CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION:

YOUR LETTER OF FEBRUARY 15, 1956, REQUESTS A DECISION WHICH WOULD ESTABLISH CRITERIA FOR DETERMINING WHETHER A MILITARY OFFENSE "IS A FELONY UNDER THE LAWS OF THE UNITED STATES" WITHIN THE MEANING OF SECTION 1, CLAUSE (2) OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1142. INSOFAR AS IS HERE PERTINENT, THE ACT PROHIBITS PAYMENT OF ANNUITIES OR RETIRED PAY TO OFFICERS AND EMPLOYEES OF THE UNITED STATES WHO HAVE BEEN CONVICTED PRIOR TO, ON, OR AFTER THE DATE OF ITS ENACTMENT OF ANY OFFENSE WHICH IS A FELONY UNDER THE LAWS OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA COMMITTED IN THE EXERCISE OF AUTHORITY, INFLUENCE, POWER, OR PRIVILEGE AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT. SPECIFICALLY, YOU CITED AN APPLICATION FOR AN ANNUITY UNDER THE CIVIL SERVICE RETIREMENT ACT SUBMITTED TO YOUR OFFICE BY AN INDIVIDUAL WHO WAS CONVICTED IN A UNITED STATES ARMY COURT-MARTIAL IN 1918.

YOU STATE THE CIRCUMSTANCES, AS FOLLOWS:

"THE INDIVIDUAL INVOLVED WAS A PRIVATE IN THE ARMY, ON MILITARY FURLOUGH FROM A POSITION IN THE POST OFFICE DEPARTMENT. WHILE DETAILED TO A MILITARY CAMP BRANCH OF A UNITED STATES POST OFFICE HE WAS ARRESTED, ARRAIGNED AND TRIED BY A GENERAL COURT-MARTIAL ON A CHARGE OF VIOLATING THE 96TH ARTICLE OF WAR. THE SPECIFIC CHARGE WAS THAT HE DID "UNLAWFULLY OPEN AND SECRETE TWO LETTERS RECEIVED THROUGH THE INCOMING UNITED STATES MAIL AT SAID POST OFFICE.' UPON TRIAL, A FINDING OF GUILTY AS CHARGED RESULTED, WITH A SENTENCE TO CONFINEMENT AT HARD LABOR FOR 10 YEARS, BUT THE SENTENCE WAS REDUCED TO 18 MONTHS. FOLLOWING CONVICTION AND SENTENCE, THE POST OFFICE DEPARTMENT PREFERRED CHARGES AGAINST HIM WITH A VIEW TO HIS REMOVAL FROM THE POSTAL SERVICE; SPECIFICALLY THE RIFLING OF ORDINARY FIRST-CLASS MAIL AT THE ARMY CAMP IN VIOLATION OF SECTION 1702 OF THE POSTAL LAWS AND REGULATIONS OF 1913. THE FILE DOES NOT INDICATE WHAT ACTION WAS TAKEN ON THE CHARGES. IN SUBSEQUENT YEARS THE APPLICANT RETURNED TO A POSITION IN THE CIVIL SERVICE UNDER THE RETIREMENT ACT.'

IN 35 COMP. GEN. 305, WE STATED THAT WHILE NONE OF THE OFFENSES MENTIONED IN THE UNIFORM CODE OF MILITARY JUSTICE ARE DEFINED IN THAT CODE AS FELONIES, THE TERM "FELONY" IS DEFINED IN PARAGRAPH 213D (6) OF THE MANUAL FOR COURTS-MARTIAL, 1951, AND THAT DEFINITION IS SUBSTANTIALLY THE SAME AS THE GENERAL DEFINITION OF FELONY CONTAINED IN 18 U.S.C. 1. WE CONCLUDED THAT A CONVICTION BY A COURT-MARTIAL OF AN OFFENSE WHICH IS A FELONY WITHIN SUCH DEFINITION WOULD BE A CONVICTION OF AN OFFENSE WHICH IS A FELONY "UNDER THE LAWS OF THE UNITED STATES," WITHIN THE MEANING OF THE ACT OF SEPTEMBER 1, 1954.

PARAGRAPH 213D (6), MANUAL FOR COURTS-MARTIAL, 1951, UNDER THE HEADING "MISPRISON OF A FELONY," DEFINES FELONY AS FOLLOWS:

"ANY OFFENSE OF A CIVIL NATURE PUNISHABLE UNDER THE AUTHORITY OF THE CODE BY DEATH OR BY CONFINEMENT FOR A TERM EXCEEDING ONE YEAR IS A FELONY.'

OFFENSES ARE CLASSIFIED AS FOLLOWS IN 18 U.S.C. 1:

"NOTWITHSTANDING ANY ACT OF CONGRESS TO THE CONTRARY:

(1) ANY OFFENSE PUNISHABLE BY DEATH OR IMPRISONMENT FOR A TERM EXCEEDING ONE YEAR IS A FELONY.

(2) ANY OTHER OFFENSE IS A MISDEMEANOR.'

ALTHOUGH MILITARY REGULATIONS WHEN CONSISTENT WITH EXISTING STATUTORY ENACTMENTS HAVE THE FORCE OF LAW, THEY CANNOT ABROGATE OR DEROGATE FROM THE FEDERAL STATUTES WHICH REMAIN IN FULL FORCE AND VIRTUE AS THE LAW OF THE LAND. 6 C.J.S. 348. THEREFORE,"FELONY" AS DEFINED IN THE FEDERAL STATUTES WOULD ALSO CONSTITUTE THE DEFINITION OF "FELONY" APPLICABLE TO MILITARY OFFENSES, NOTWITHSTANDING THAT THE DISTINCTION BETWEEN FELONIES AND MISDEMEANORS HAS NOT BEEN RECOGNIZED IN MILITARY LAW. SEE UNITED STATES V. CLARK, 31 FED. 710; WINTHROP MILITARY LAW (2D ED 1920 REPRINT) P. 108; OP.J.A.G.A. 1952/8326, 3 DIG.3PS., POSTS, ETC., SEC. 23.1. THUS, A DETERMINATION WHETHER ANY MILITARY OFFENSE IS A FELONY INVOLVES (1) WHETHER THE OFFENSE IS PUNISHABLE BY DEATH OR CONFINEMENT EXCEEDING ONE YEAR, AND (2) WHETHER THE OFFENSE IS OF A CIVIL NATURE.

THE FEDERAL AND GENERAL RULE USED IN DETERMINING WHAT CONSTITUTES A FELONY IS NOT BASED UPON THE ACTUAL PUNISHMENT IMPOSED BUT UPON THE TEST OF WHAT PUNISHMENT IS IMPOSABLE. CARTWRIGHT V. UNITED STATES, 146 F.2D 133. EACH OF THE COURTS-MARTIAL MANUALS CONTAINS A SECTION ON PUNISHMENTS. CHAPTER 25, MANUAL FOR COURTS-MARTIAL, 1951, SETS OUT A TABLE OF MAXIMUM PUNISHMENTS ALONG WITH GENERAL AND MISCELLANEOUS LIMITATIONS. PARAGRAPH 127C PROVIDES THAT "OFFENSES NOT LISTED IN THE TABLE, AND NOT INCLUDED WITHIN AN OFFENSE LISTED, OR NOT CLOSELY RELATED TO EITHER, REMAIN PUNISHABLE AS AUTHORIZED BY THE U.S.C. OR THE CODE OF THE DISTRICT OF COLUMBIA, WHICHEVER PRESCRIBED PUNISHMENT IS THE LESSER, OR AS AUTHORIZED BY THE CUSTOM OF THE SERVICE.' IT WOULD APPEAR THAT THE REGULATIONS PROVIDE AN ADEQUATE METHOD FOR DETERMINING WHETHER OR NOT AN OFFENSE IS PUNISHABLE BY CONFINEMENT EXCEEDING ONE YEAR.

IN CASES WHERE THE SENTENCE IMPOSABLE FOR THE OFFENSE FOR WHICH THE APPLICANT WAS CONVICTED, EXCEEDS ONE YEAR, REFERENCE SHOULD BE MADE TO THE U.S.C. OR THE CODE OF THE DISTRICT OF COLUMBIA TO ASCERTAIN WHETHER THE PARTICULAR OFFENSE IS ANALOGOUS TO ONE OF A CIVIL NATURE. SEE UNITED STATES V. MOORE (NO. 5026), 18 CMR 311; OP.J.A.G., VOL. 2, 1918, P. 707. IF THE ABOVE TWO REQUIREMENTS ARE MET, THE MILITARY OFFENSE PROPERLY MAY BE CONSIDERED A FELONY FOR PURPOSES OF THE ACT OF SEPTEMBER 1, 1954.

IN THE SPECIFIC CASE CITED, THE 96TH ARTICLE OF WAR, 39 STAT. 666, PROVIDED THAT "* * * ALL CRIMES AND OFFENSES NOT CAPITAL, OF WHICH PERSONS SUBJECT TO MILITARY LAW MAY BE GUILTY, SHALL BE TAKEN COGNIZANCE OF BY A GENERAL OR SPECIAL OR SUMMARY COURT-MARTIAL, ACCORDING TO THE NATURE AND DEGREE OF THE OFFENSE, AND PUNISHED AT THE DISCRETION OF SUCH COURT.' MANUAL FOR COURTS-MARTIAL, 1917, PARAGRAPH 446, III, STATES THAT ARTICLE OF WAR 96 EMBRACES NON-CAPITAL CRIMES COMMITTED IN VIOLATION OF PUBLIC LAW AS ENFORCED BY THE CIVIL POWER. PRESUMABLY, THE PUBLIC LAW VIOLATED WAS THE ACT OF MARCH 4, 1919, CHAPTER 321, SECTION 195, 35 STAT. 1125, WHICH PROVIDES,"WHOEVER, BEING A POSTMASTER OR OTHER PERSON EMPLOYED IN ANY DEPARTMENT OF THE POSTAL SERVICE, SHALL UNLAWFULLY * * * OPEN ANY LETTER * * * OR SHALL SECRETE * * * ANY SUCH LETTER * * * SHALL BE FINED NOT MORE THAN FIVE HUNDRED DOLLARS, OR IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH.' "FELONY" AT THAT TIME WAS DEFINED BY FEDERAL STATUTE AS "ALL OFFENSES WHICH MAY BE PUNISHED BY DEATH, OR IMPRISONMENT FOR A TERM EXCEEDING ONE YEAR.' ACT OF MARCH 4, 1909, CH. 321, SEC. 335, 35 STAT. 1152. SINCE THE PUNISHMENT IMPOSABLE EXCEEDED ONE YEAR AND THE OFFENSE WAS OF A CIVIL NATURE, THE INDIVIDUAL WAS CONVICTED OF AN "OFFENSE * * * WHICH IS A FELONY UNDER THE LAWS OF THE UNITED STATES" WITHIN THE PURVIEW OF THE ACT OF SEPTEMBER 1, 1954. ACCORDINGLY, PAYMENT OF THE ANNUITY WOULD BE PROHIBITED BY THAT ACT.