B-139835, JULY 23, 1959, 39 COMP. GEN. 53

B-139835: Jul 23, 1959

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PRETRIAL AND MILITARY RECORDS TO APPRAISE THE MENTAL CONDITION OF THE ACCUSED MAY HAVE SUCH SERVICES REGARDED AS INCIDENT TO AND PREPARATORY FOR TESTIMONY AS AN EXPERT WITNESS AND WITHIN THE MEANING OF THE EMPLOYMENT CONTRACT WHICH PROVIDES FEES AT $100 PER DIEM WHILE PERFORMING IN A PROFESSIONAL CAPACITY AND AS A WITNESS. THE PSYCHIATRIST IS ENTITLED TO THE RATE OF $100 PER DAY FOR EACH DAY ANY SERVICE IS PERFORMED IN A PROFESSIONAL CAPACITY SUBJECT TO THE MAXIMUM LIMITATION OF $1. WILSON IS AUTHORIZED. WILSON WAS EMPLOYED AS AN EXPERT WITNESS IN CONNECTION WITH THE GENERAL COURT-MARTIAL OF SP-4 WILLIAM G. THAT YOU ARE AVAILABLE AND WILL ACCEPT. YOUR FEES HAVE BEEN FIXED BY CHIEF. YOUR TOTAL PROFESSIONAL AND WITNESS FEES ARE NOT TO EXCEED $1.

B-139835, JULY 23, 1959, 39 COMP. GEN. 53

EXPERT WITNESSES - COURTS-MARTIAL - SERVICES PRIOR TO THE TRIAL - PER DIEM FEE A PSYCHIATRIST EMPLOYED AS AN EXPERT WITNESS INCIDENT TO A GENERAL COURT- MARTIAL WHO PRIOR TO THE TRIAL INTERVIEWS THE FAMILY AND FRIENDS OF THE ACCUSED, CONSULTS WITH COUNSEL, REVIEWS THE CLINICAL, PRETRIAL AND MILITARY RECORDS TO APPRAISE THE MENTAL CONDITION OF THE ACCUSED MAY HAVE SUCH SERVICES REGARDED AS INCIDENT TO AND PREPARATORY FOR TESTIMONY AS AN EXPERT WITNESS AND WITHIN THE MEANING OF THE EMPLOYMENT CONTRACT WHICH PROVIDES FEES AT $100 PER DIEM WHILE PERFORMING IN A PROFESSIONAL CAPACITY AND AS A WITNESS; AND THE PSYCHIATRIST IS ENTITLED TO THE RATE OF $100 PER DAY FOR EACH DAY ANY SERVICE IS PERFORMED IN A PROFESSIONAL CAPACITY SUBJECT TO THE MAXIMUM LIMITATION OF $1,500 FIXED IN THE EMPLOYMENT CONTRACT.

TO LIEUTENANT COLONEL S. GADDIS, DEPARTMENT OF THE ARMY, JULY 23, 1959:

YOUR LETTER OF MAY 20, 1959, TRANSMITTED HERE BY CHIEF FIELD DIVISION, OFFICE OF THE CHIEF OF FINANCE, REFERENCE FINXE-A 248.7, REQUESTS OUR DECISION WHETHER UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER SET FORTH PAYMENT OF A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF DR. DAVID H. WILSON IS AUTHORIZED.

DR. WILSON WAS EMPLOYED AS AN EXPERT WITNESS IN CONNECTION WITH THE GENERAL COURT-MARTIAL OF SP-4 WILLIAM G. TEFFT. THE LETTER OF THE CHIEF KOREAN MILITARY ADVISORY GROUP, SEOUL, KOREA, COVERING THE EMPLOYMENT OF DR. WILSON READS IN PART AS FOLLOWS:

1. UPON REPRESENTATION OF GEORGE T. DAVID. ESQ., INDIVIDUAL DEFENSE COUNSEL FOR SPECIALIST FOUR WILLIAM G. TEFFT, THAT YOU ARE AVAILABLE AND WILL ACCEPT, THE CHIEF KMAG, AUTHORIZES YOUR EMPLOYMENT AS EXPERT TO EXAMINE AND MAKE PSYCHIATRIC EVALUATION OF SPECIALIST FOUR WILLIAM G. TEFFT AND TO TESTIFY AS TO YOUR FINDINGS AND OPINION AT HIS PENDING TRIAL BY GENERAL COURT-MARTIAL FIRMLY SCHEDULED FOR 1 DECEMBER 1958, AT TAEJON, KOREA.

2. YOUR FEES HAVE BEEN FIXED BY CHIEF, KMAG AT $100 PER DAY WHILE PERFORMING IN YOUR PROFESSIONAL CAPACITY AND AS A WITNESS AND FURTHER, YOUR TOTAL PROFESSIONAL AND WITNESS FEES ARE NOT TO EXCEED $1,500. * * *

UNDER THE AGREEMENT DR. WILSON WAS PAID FEES TOTALING $919.50. HE NOW CLAIMS ADDITIONAL FEES OF $100 EACH "WHILE PERFORMING IN MY PROFESSIONAL CAPACITY" ON NOVEMBER 12, 15, 17, 24, 25, 26, 27, AND 28. WHILE THE AMOUNT APPEARING ON THE VOUCHER ITSELF IS ONLY $400--- APPARENTLY COMPUTED UPON THE BASIS OF TOTAL HOURS WORKED DIVIDED BY EIGHT--- IT APPEARS FROM DR. WILSON'S LETTER OF FEBRUARY 20, 1959, THAT HE SIGNED THE VOUCHER FORM IN BLANK AND THAT THE AMOUNT CLAIMED THEREON WAS FILLED IN BY ADMINISTRATIVE OFFICIALS WHO DETERMINED HE WOULD BE ENTITLED TO NO MORE THAN $400 BASED UPON THE HOURS WORKED. HENCE, THE $400 FIGURE IS NOT VIEWED AS LIMITING THE AMOUNT ALLOWABLE TO DR. WILSON IF HE OTHERWISE IS ENTITLED TO A GREATER AMOUNT.

THE AUTHORITY FOR EMPLOYMENT OF EXPERT WITNESSES IN CONNECTION WITH COURT -MARTIAL PROCEEDINGS IS CONTAINED IN SECTION 116 OF MANUAL FOR COURTS- MARTIAL, UNITED STATES, 1951, WHICH WAS PROMULGATED BY THE PRESIDENT BY EXECUTIVE ORDER NO. 10214, FEBRUARY 8, 1951. SECTION 116 IS AS FOLLOWS:

EMPLOYMENT OF EXPERTS.--- WHEN THE EMPLOYMENT OF AN EXPERT IS NECESSARY DURING A TRIAL BY COURT-MARTIAL, THE TRIAL COUNSEL, IN ADVANCE OF THE EMPLOYMENT, WILL, ON THE ORDER OR PERMISSION OF THE COURT, REQUEST THE CONVENING AUTHORITY TO AUTHORIZE SUCH EMPLOYMENT AND TO FIX THE LIMIT OF COMPENSATION TO BE PAID THE EXPERT. THE REQUEST SHOULD, IF PRACTICABLE, STATE THE COMPENSATION THAT IS RECOMMENDED BY THE PROSECUTION AND THE DEFENSE. WHERE IN ADVANCE OF TRIAL THE PROSECUTION OR THE DEFENSE KNOWS THAT THE EMPLOYMENT OF AN EXPERT WILL BE NECESSARY, APPLICATION SHOULD BE MADE TO THE CONVENING AUTHORITY FOR PERMISSION TO EMPLOY THE EXPERT, STATING THE NECESSITY THEREFOR AND THE PROBABLE COST. IN THE ABSENCE OF SUCH PREVIOUS AUTHORIZATION, NO FEES, OTHER THAN ORDINARY WITNESS FEES, MAY BE PAID FOR THE EMPLOYMENT OF AN INDIVIDUAL AS AN EXPERT WITNESS.

THE SERVICES RENDERED BY DR. WILSON ON NOVEMBER 12, 15, 17, 24, 25, 26, 27, AND 28, CONSISTED OF INTERVIEWS WITH THE FAMILY AND THE FIANCEE OF THE ACCUSED, CONSULTATION WITH COUNSEL CONCERNING THE PSYCHIATRIC MATTERS INVOLVED AND REVIEW OF THE CLINICAL RECORDS, PRETRIAL INVESTIGATION AND MILITARY RECORDS PERTAINING TO THE ACCUSED. THE SERVICES RENDERED BY DR. WILSON ON THE DAYS ENUMERATED APPARENTLY WERE NECESSARY TO ENABLE HIM TO MAKE AN INFORMED APPRAISAL OF THE MENTAL CONDITION OF THE ACCUSED AND REASONABLY MAY BE REGARDED AS HAVING BEEN INCIDENT TO AND PREPARATORY FOR HIS TESTIMONY AS AN EXPERT WITNESS IN THE COURT-MARTIAL PROCEEDINGS. VIEW THEREOF THERE APPEARS LITTLE QUESTION BUT THAT SUCH SERVICES WERE RENDERED BY DR. WILSON WHILE PERFORMING IN HIS ,PROFESSIONAL CAPACITY," AND WE CONCLUDE THAT HE IS ENTITLED TO PAY THEREFOR. SEE 11 COMP. GEN. 504.

MOREOVER, WE ARE OF THE VIEW THAT THE FEE PAYABLE TO DR. WILSON FOR EACH DAY OF SERVICE IS THE SAME REGARDLESS OF THE DURATION OF HIS SERVICE ON ANY SUCH DAY. COMPARE 27 COMP. GEN. 776, INVOLVING EXPERTS APPOINTED FOR TEMPORARY PERIODS UNDER THE AUTHORITY OF SECTION 15 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 810, 5 U.S.C. 55A. IN THAT DECISION WE CONCLUDED:

* * * ACCORDINGLY, SUCH EMPLOYEES, IF EMPLOYED ON A PER DIEM BASIS, ARE ENTITLED, FOR EACH DAY OF SERVICE, TO THE PER DIEM RATE PRESCRIBED IN THEIR CONTRACTS OF EMPLOYMENT REGARDLESS OF THE TOTAL NUMBER OF HOURS WORKED OR THEIR DAILY RATE OF COMPENSATION. * * *

COMPARE ALSO 28 COMP. GEN. 211; ID. 328, 331. WE FEEL THAT THE PRINCIPLE ENUNCIATED IN THOSE DECISIONS HAS EQUAL APPLICATION IN DR. WILSON'S CASE AND THAT HE, THEREFORE, IS ENTITLED TO COMPENSATION AT THE RATE OF $100 FOR EACH DAY HE PERFORMED ANY SERVICE IN HIS PROFESSIONAL CAPACITY FOR WHICH HE HAS NOT ALREADY BEEN REIMBURSED EXCEPT THAT IN NO EVENT MAY THE AGGREGATE PAYMENTS MADE IN CONNECTION WITH HIS EMPLOYMENT AS AN EXPERT WITNESS IN THE TEFFT CASE EXCEED THE MAXIMUM LIMITATION OF $1,500. THE VOUCHER, WHICH IS RETURNED HEREWITH, SHOULD BE REVISED IN ACCORDANCE WITH THE FOREGOING AND PAYMENT SHOULD BE MADE THEREON.