B-128487, AUGUST 22, 1956, 36 COMP. GEN. 137

B-128487, AUGUST 22, 1956, 36 COMP. GEN. 137

MILITARY PERSONNEL - PAY - REDUCTION - RESTORATION - EFFECTIVE DATE AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO IS REDUCED IN GRADE FOR MISCONDUCT OR INEFFICIENCY AND THEN RESTORED TO HIS FORMER GRADE IS ENTITLED TO RETROACTIVE RESTORATION IF THE REDUCTION WAS IMPOSED AS A PUNISHMENT WHICH WOULD ENTITLE THE MEMBER TO REDRESS UNDER ARTICLE 15 (D) OF THE UNIFORM CODE OF MILITARY JUSTICE, AUTHORIZING THE SETTING ASIDE OF ANY PUNISHMENT AND RESTORATION TO ALL RIGHTS AFFECTED BY THE PUNISHMENT, BUT IF THE REDUCTION IS A "WRONG" THE MEMBER'S REDRESS IS UNDER ARTICLE 138, WHICH MERELY REQUIRES THE SUPERIOR OFFICER TO TAKE MEASURES FOR REDRESSING THE WRONG AND DOES NOT AUTHORIZE RESTORATION TO ALL RIGHTS AFFECTED, AND THEREFORE THE RESTORATION TO THE HIGHER GRADE IS EFFECTIVE ONLY FROM THE DATE THE RESTORATION ACTION IS TAKEN.

TO THE SECRETARY OF DEFENSE, AUGUST 22, 1956:

REFERENCE IS MADE TO LETTER OF JUNE 30, 1956, WITH ENCLOSURE ( MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 145), FROM DECISION AS TO WHETHER AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO IS REDUCED IN GRADE FOR MISCONDUCT OR INEFFICIENCY AND WHO IS RESTORED TO HIS FORMER GRADE PURSUANT TO THE AUTHORITY CONTAINED IN ARTICLE 15 (D) OF ARTICLE 138 OF THE UNIFORM CODE OF MILITARY JUSTICE (50 U.S.C. 571 AND 734) MAY BE RESTORED TO HIS FORMER GRADE FOR PAY PURPOSES RETROACTIVE TO THE DATE OF HIS REDUCTION.

ARTICLE 15 AUTHORIZES COMMANDING OFFICERS TO IMPOSE CERTAIN NON JUDICIAL PUNISHMENTS, INCLUDING REDUCTION OF AN ENLISTED MEMBER TO THE NEXT INFERIOR GRADE, AS DISCIPLINARY PUNISHMENTS FOR MINOR OFFENSES WITHOUT THE INTERVENTION OF A COURT-MARTIAL. IF THE MEMBER DEEMS THE PUNISHMENT UNJUST OR DISPROPORTIONATE TO THE OFFENSE, HE MAY APPEAL TO THE NEXT SUPERIOR AUTHORITY. PENDING APPEAL THE MEMBER MAY BE REQUIRED TO UNDERGO THE PUNISHMENT ADJUDGED. RESPECTING REMISSION OF PUNISHMENT AND RESTORATION OF RIGHTS, ARTICLE 15 (D), 50 U.S.C. 571 (D), PROVIDES:

* * * THE OFFICER WHO IMPOSES THE PUNISHMENT, HIS SUCCESSOR IN COMMAND, AND SUPERIOR AUTHORITY SHALL HAVE POWER TO SUSPEND, SET ASIDE, OR REMIT ANY PART OR AMOUNT OF THE PUNISHMENT AND TO RESTORE ALL RIGHTS, PRIVILEGES, AND PROPERTY AFFECTED.

ARTICLE 138," COMPLAINTS OF WRONGS," PROVIDES:

ANY MEMBER OF THE ARMED FORCES WHO BELIEVES HIMSELF WRONGED BY HIS COMMANDING OFFICER, AND, UPON DUE APPLICATION TO SUCH COMMANDER, IS REFUSED REDRESS, MAY COMPLAIN TO ANY SUPERIOR OFFICER WHO SHALL FORWARD THE COMPLAINT TO THE OFFICER EXERCISING GENERAL COURT-MARTIAL JURISDICTION OVER THE OFFICER AGAINST WHOM IT IS MADE. THAT OFFICER SHALL EXAMINE INTO SAID COMPLAINT AND TAKE PROPER MEASURES FOR REDRESSING THE WRONG COMPLAINED OF; AND HE SHALL, AS SOON AS POSSIBLE, TRANSMIT TO THE DEPARTMENT CONCERNED A TRUE STATEMENT OF SUCH COMPLAINT, WITH THE PROCEEDINGS HAD THEREON.

ARTICLE 15 (D) PROVIDES AUTHORITY TO "SET ASIDE" ANY PART OR AMOUNT OF THE PUNISHMENT AND "TO RESTORE ALL RIGHTS, PRIVILEGES, AND PROPERTY AFFECTED.' ARTICLE 138 DOES NOT CONTAIN LIKE PROVISIONS SINCE, BASICALLY, IT MERELY REQUIRES THAT THE SUPERIOR OFFICER CONCERNED SHALL EXAMINE INTO A COMPLAINT AND "TAKE PROPER MEASURES FOR REDRESSING THE WRONG COMPLAINED OF.'

SECTION 9 OF THE ACT OF FEBRUARY 16, 1909, 35 STAT. 621, 50 U.S.C. 661, AUTHORIZED THE SECRETARY OF THE NAVY TO SET ASIDE THE SENTENCE OF ANY NAVAL COURT-MARTIAL. IT HAS BEEN HELD THAT THE ACTION OF THE SECRETARY OF THE NAVY IN SETTING ASIDE A COURT-MARTIAL SENTENCE AS ERRONEOUS UNDER THAT AUTHORITY RESTORES THE MEMBER TO THE STATUS HE OCCUPIED PRIOR TO THE SENTENCE OF THE COURT. LECORCHICK V. UNITED STATES, 60 C.1CLS. 78; 4 COMP. GEN. 1021.

SIMILARLY, ARTICLE OF WAR 53 (10 U.S.C., 1946 USED., SUPP. IV, 1525) CONFERRED AUTHORITY UPON THE JUDGE ADVOCATE GENERAL OF THE ARMY TO "VACATE A (COURT-MARTIAL) SENTENCE, (AND) RESTORE RIGHTS, PRIVILEGES, AND PROPERTY AFFECTED BY SUCH SENTENCE.' IN B-103330, JUNE 7, 1951, THERE WAS CONSIDERED A CASE WHERE AFTER COURT-MARTIAL SENTENCE OF DISHONORABLE DISCHARGE OF AN ENLISTED MEMBER OF THE ARMY, THE JUDGE ADVOCATE GENERAL, UNDER AUTHORITY OF ARTICLE OF WAR 53, 50 U.S.C. 658, CHANGED A COURT- MARTIAL FINDING OF DESERTION TO ONE OF ABSENT WITHOUT LEAVE, VACATED THE SENTENCE OF DISHONORABLE DISCHARGE AND FORFEITURE OF ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE, SUBSTITUTED A FORFEITURE OF $56 PAY PER MONTH FOR SIX MONTHS AND AN HONORABLE DISCHARGE, AND RESTORED ALL RIGHTS, PRIVILEGES, AND PROPERTY OF WHICH THE MEMBER HAD BEEN DEPRIVED BY VIRTUE OF THE FINDINGS AND SENTENCE AS VACATED AND MODIFIED BY THE JUDGE ADVOCATE GENERAL, THE MEMBER WAS ENTITLED TO THE PAY AND ALLOWANCES HE WOULD HAVE BEEN ENTITLED TO RECEIVE HAD THE MODIFIED SENTENCE BEEN PROMULGATED IN THE FIRST INSTANCE.

OBVIOUSLY, THE SETTING ASIDE OF A PUNISHMENT, OR THE RESTORATION OF RIGHTS, PRIVILEGES, AND PROPERTY AFFECTED BY A COURT-MARTIAL SENTENCE, OR BY A COMMANDING OFFICER'S NONJUDICIAL PUNISHMENT, MUST BE GIVEN RETROACTIVE EFFECT TO THE DATE OF THE REDUCTION IN GRADE WHERE SUCH A REDUCTION WAS INCLUDED IN THE PUNISHMENT. CLEARLY THE HIGHER GRADE AND THE PAY PROVIDED FOR IT ARE RIGHTS AND PROPERTY AFFECTED BY THE PUNISHMENT.

SUCH VIEW IS NOT INCONSISTENT WITH OUR HOLDING IN B-116767, MAY 11, 1954, WHERE WE HELD THAT MERE ADMINISTRATIVE ACTION PURPORTING TO RESCIND AND ANNUL PRIOR REDUCTION ORDERS RETROACTIVELY FROM DATE OF ISSUANCE IS EFFECTIVE TO RESTORE THE MEMBER TO THE HIGHER GRADE ONLY FROM THE DATE SUCH ACTION IS TAKEN. THERE THE REDUCTION IN GRADE WAS VALID AND THE SUBSEQUENT ACTION TAKEN ADMINISTRATIVELY TO RESTORE THE FORMER GRADE WAS NOT EXERCISED PURSUANT TO ANY AUTHORITY TO SET ASIDE THE PRIOR REDUCTION OR TO RESTORE ALL RIGHTS, PRIVILEGES, AND PROPERTY AFFECTED BY THE REDUCTION.

ARTICLE 138 OF THE UNIFORM CODE OF MILITARY JUSTICE, UNLIKE ARTICLE 15 (D), APPARENTLY CONTEMPLATES ADMINISTRATIVE ACTION WHICH WILL BE PROSPECTIVELY EFFECTIVE, RATHER THAN A SETTING ASIDE OF PUNISHMENT OR A RESTORATION OF RIGHTS AND PROPERTY AFFECTED. IT WILL BE NOTED THAT ARTICLE 138 RELATES TO "WRONGS" GENERALLY AND NOT PARTICULARLY TO THOSE RESULTING FROM THE IMPOSITION OF PUNISHMENTS, AS IN ARTICLE 15 (D). IF A REDUCTION IS GRADE IS IMPOSED AS PUNISHMENT, THE MEMBER MAY HAVE REDRESS UNDER ARTICLE 15 (D). IF IT IS NOT IMPOSED AS A PUNISHMENT, ARTICLE 15 (D) DOES NOT APPLY, BUT IF IT IS NEVERTHELESS A "WRONG" THE MEMBER MAY HAVE REDRESS UNDER ARTICLE 138. UNDER THAT ARTICLE, HOWEVER, ACTION BY SUPERIOR AUTHORITY IS AUTHORIZED ONLY IF THE COMMANDING OFFICER REFUSES REDRESS. IF THE COMMANDING OFFICER GRANTS THE REDRESS AND RESTORES THE HIGHER GRADE, SUCH ACTION IN THE ABSENCE OF ANY LANGUAGE IN ARTICLE 138, SUCH AS THAT IN ARTICLE 15 (D), EXPRESSLY AUTHORIZING THE RESTORATION OF "ALL RIGHTS, PRIVILEGES, AND PROPERTY AFFECTED," IS VIEWED AS EFFECTIVE ONLY FROM THE DATE THE ORDER ANNOUNCING THE RESTORATION IS ISSUED. THERE IS NOTHING IN THE LANGUAGE OF ARTICLE 138 TO SUGGEST THAT ACTION BY SUPERIOR AUTHORITY WOULD HAVE ANY DIFFERENT EFFECTIVE DATE. ACCORDINGLY, IT IS CONCLUDED THAT A RESTORATION TO A HIGHER GRADE MADE UNDER ARTICLE 138 IS EFFECTIVE ONLY FROM THE DATE THE RESTORATION ACTION IS TAKEN.