B-128136, JUN. 22, 1956

B-128136: Jun 22, 1956

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CONTER WAS EMPLOYED BY AND AT THE REQUEST OF THE DEFENSE COUNSEL WITH THE APPROVAL OF THE COMMANDING GENERAL TO DETERMINE THE STATE OF MIND OF THE DEFENDANT IN A GENERAL COURT-MARTIAL PROCEEDING. IT WAS CONTEMPLATED THAT DR. THE PROCEEDINGS WERE DROPPED BEFORE ANY WITNESSES WERE CALLED. THE RECORD FURTHER INDICATES THAT PSYCHIATRIC SERVICES OF THE TYPE REQUIRED WERE NOT OTHERWISE AVAILABLE AT THE BASE AND. WHILE THEY WERE AVAILABLE AT THE VALLEY FORGE HOSPITAL. IT WAS NOT CONSIDERED FEASIBLE TO SEND THE DEFENDANT THERE BECAUSE SUCH ACTION WOULD ENTAIL THE USE OF GUARDS TO AND FROM VALLEY FORGE GENERAL HOSPITAL AND WOULD INVOLVE DELAY OF FROM 4 TO 6 WEEKS. GEN. 504 (QUOTING FROM THE SYLLABUS): "WHERE THE MENTAL CONDITION OF THE ACCUSED BEFORE A GENERAL COURT MARTIAL IS IN ISSUE AND THE DEFENSE JUDGE ADVOCATE (DEFENSE COUNSEL).

B-128136, JUN. 22, 1956

TO CAPTAIN C. E. PIGMAN, DISBURSING OFFICER, DEPARTMENT OF THE ARMY:

BY LETTER DATED MAY 17, 1956, YOUR REFERENCE PSF AND A 013.2 SUBMITTED THROUGH THE CHIEF OF FINANCE, YOU REQUEST AN ADVANCE DECISION AS TO WHETHER PAYMENT MAY BE MADE ON THE ATTACHED VOUCHER FOR PSYCHIATRIC SERVICES RENDERED BY DR. A. H. CONTER UNDER THE CIRCUMSTANCES DESCRIBED BELOW.

THE RECORD INDICATES THAT DR. CONTER WAS EMPLOYED BY AND AT THE REQUEST OF THE DEFENSE COUNSEL WITH THE APPROVAL OF THE COMMANDING GENERAL TO DETERMINE THE STATE OF MIND OF THE DEFENDANT IN A GENERAL COURT-MARTIAL PROCEEDING. IT WAS CONTEMPLATED THAT DR. CONTER WOULD BE CALLED AS AN EXPERT WITNESS IN THE PROCEEDING IF EITHER THE PROSECUTION OR THE DEFENSE DEEMED IT NECESSARY TO CALL HIM. AS A RESULT OF THE PSYCHIATRIC EXAMINATION, AT LEAST IN PART, THE PROCEEDINGS WERE DROPPED BEFORE ANY WITNESSES WERE CALLED. CONSEQUENTLY, WHILE DR. CONTER EXAMINED THE DEFENDANT AND CONFERRED WITH DEFENSE COUNSEL AND THE INVESTIGATING OFFICER, HE NEVER APPEARED AS AN EXPERT WITNESS.

THE RECORD FURTHER INDICATES THAT PSYCHIATRIC SERVICES OF THE TYPE REQUIRED WERE NOT OTHERWISE AVAILABLE AT THE BASE AND, WHILE THEY WERE AVAILABLE AT THE VALLEY FORGE HOSPITAL, PHOENIXVILLE, PENNSYLVANIA, IT WAS NOT CONSIDERED FEASIBLE TO SEND THE DEFENDANT THERE BECAUSE SUCH ACTION WOULD ENTAIL THE USE OF GUARDS TO AND FROM VALLEY FORGE GENERAL HOSPITAL AND WOULD INVOLVE DELAY OF FROM 4 TO 6 WEEKS.

WE HELD IN 11 COMP. GEN. 504 (QUOTING FROM THE SYLLABUS):

"WHERE THE MENTAL CONDITION OF THE ACCUSED BEFORE A GENERAL COURT MARTIAL IS IN ISSUE AND THE DEFENSE JUDGE ADVOCATE (DEFENSE COUNSEL), IN THE BELIEF THAT ARMY PSYCHIATRISTS WOULD NATURALLY BE PREJUDICED, SUBMITS REQUEST TO THE PROPER CONVENING AUTHORITY FOR THE EMPLOYMENT OF A CIVILIAN PSYCHIATRIST AND SUCH REQUEST IS APPROVED BY THE CONVENING AUTHORITY AS PROVIDED IN THE CONTROLLING REGULATIONS, SUCH CIVILIAN EXPERT MAY BE PAID FROM PUBLIC FUNDS A REASONABLE FEE FOR HIS SERVICES IN EXAMINING THE ACCUSED AND TESTIFYING BEFORE THE GENERAL COURT-MARTIAL WITH RESPECT THERETO. * * *"

WHILE DR. CONTER DID NOT TESTIFY BEFORE THE COURT-MARTIAL, HIS SERVICES IN EXAMINING THE ACCUSED AND RELATING HIS FINDINGS TO THE DEFENSE COUNSEL APPEAR TO HAVE BEEN A NECESSARY PRELIMINARY TO SUCH TESTIMONY, WHICH IT WAS CONSIDERED AT THE TIME THE EXPERT'S SERVICES WERE SECURED MIGHT BE NECESSARY. THE FACT THAT THE COURT-MARTIAL WAS NOT HELD WOULD NOT PRECLUDE PAYMENT AT THE AGREED-UPON OR REASONABLE RATE FOR SERVICES ACTUALLY RENDERED. THE AMOUNT CLAIMED ON THE VOUCHER APPEARS TO REPRESENT EITHER THE AMOUNT SPECIFICALLY AGREED UPON OR CHARGES AS TO THE REASONABLENESS OF WHICH NO QUESTION HAS BEEN RAISED. ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PAID IF OTHERWISE CORRECT.