B-139988, AUG. 19, 1959

B-139988: Aug 19, 1959

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TO THE SECRETARY OF DEFENSE: REFERENCE IS MADE TO LETTER OF JUNE 18. IN WHICH DECISION IS REQUESTED ON TWO QUESTIONS RELATIVE TO THE APPLICABLE RATE OF PAY FOR A NON-COMMISSIONED OFFICER. WHO WAS TRIED AND CONVICTED BY COURT MARTIAL. THE QUESTIONS ARE AS FOLLOWS: "1. TO WHAT RATE OF PAY IS AN ENLISTED MAN ENTITLED WHO. WAS TRIED AND CONVICTED BY COURT- MARTIAL ON 21 FEBRUARY 1959 AND THE SENTENCE AS APPROVED BY THE CONVENING AUTHORITY ON 27 FEBRUARY 1959 INCLUDED: (1) DISHONORABLE OR BAD CONDUCT DISCHARGE. IT IS POINTED OUT THAT YOUR QUESTIONS AROSE AS A RESULT OF THE DECISION BY THE UNITED STATES COURT OF MILITARY APPEALS IN THE CASE OF UNITED STATES V. IT IS STATED IN THE SIMPSON CASE (QUOTING FROM HEADNOTE 3) THAT: "* * * PAR 126E.

B-139988, AUG. 19, 1959

TO THE SECRETARY OF DEFENSE:

REFERENCE IS MADE TO LETTER OF JUNE 18, 1959, FROM THE DEPUTY ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), IN WHICH DECISION IS REQUESTED ON TWO QUESTIONS RELATIVE TO THE APPLICABLE RATE OF PAY FOR A NON-COMMISSIONED OFFICER, WHO WAS TRIED AND CONVICTED BY COURT MARTIAL, IN VIEW OF THE MATTERS SET FORTH IN COMMITTEE ACTION NO. 243 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

THE QUESTIONS ARE AS FOLLOWS:

"1. TO WHAT RATE OF PAY IS AN ENLISTED MAN ENTITLED WHO, AS A NON COMMISSIONED OFFICER (STAFF SERGEANT), WAS TRIED AND CONVICTED BY COURT- MARTIAL ON 21 FEBRUARY 1959 AND THE SENTENCE AS APPROVED BY THE CONVENING AUTHORITY ON 27 FEBRUARY 1959 INCLUDED: (1) DISHONORABLE OR BAD CONDUCT DISCHARGE, (2) CONFINEMENT, OR (3) HARD LABOR WITHOUT CONFINEMENT?

"2. WOULD THE ANSWER BE THE SAME IF THE CONVICTION AND APPROVAL BY THE CONVENING AUTHORITY OCCURRED PRIOR TO 20 FEBRUARY 1959?

IN THE COMMITTEE ACTION DISCUSSION, IT IS POINTED OUT THAT YOUR QUESTIONS AROSE AS A RESULT OF THE DECISION BY THE UNITED STATES COURT OF MILITARY APPEALS IN THE CASE OF UNITED STATES V. SIMPSON, 10 USCMA 229, 27 CMR 303, DECIDED FEBRUARY 20, 1959. THE PRINCIPAL ISSUE IN THAT CASE INVOLVED THE VALIDITY OF THE AUTOMATIC REDUCTION PROVISION OF PARAGRAPH 126E OF THE MANUAL FOR COURTS-MARTIAL, 1951.

IT IS STATED IN THE SIMPSON CASE (QUOTING FROM HEADNOTE 3) THAT:

"* * * PAR 126E, MCM, 1951, AS AMENDED BY EO 10652, 10 JAN 1956, PROVIDING FOR AUTOMATIC REDUCTION TO THE LOWEST PAY GRADE UPON APPROVAL OF A COURT-MARTIAL SENTENCE INCLUDING EITHER A PUNITIVE DISCHARGE, CONFINEMENT, OR HARD LABOR WITHOUT CONFINEMENT, WAS INTENDED TO BE AN INTEGRAL PART OF THE REVIEW OF A SENTENCE ADJUDGED BY A COURT-MARTIAL. THE PROVISION IS SO INTERWOVEN WITH THE COURTS MARTIAL PROCESS THAT IT CANNOT BE REGARDED AS ANYTHING BUT JUDICIAL IN PURPOSE AND EFFECT. AS A JUDICIAL ACT, IT OPERATES IMPROPERLY TO INCREASE THE SEVERITY OF THE SENTENCE OF THE COURT-MARTIAL. THEREFORE, THAT PROVISION IS INVALID. ACCORDINGLY, THE ACTION BY THE CONVENING AUTHORITY REDUCING THE ACCUSED IN GRADE MUST BE SET ASIDE.'

WE NOTE THAT THE COURT OF MILITARY APPEALS HAS FOLLOWED THE CONCLUSION AS TO THE INVALIDITY OF PARAGRAPH 126E, AS AMENDED, IN THE FOLLOWING RECENT CASES: UNITED STATES V. LITTLEPAGE, 10 USCMA 245, 27 CMR 319, DECIDED FEBRUARY 27, 1959; UNITED STATES V. LANE, 10 USCMA 241, 27 CMR 315, DECIDED FEBRUARY 20, 1959; UNITED STATES V. CHATMAN, 10 USCMA 262, 27 CMR 336, DECIDED MARCH 6, 1959; AND UNITED STATES V. HARE, 10 USCMA 309, 27 CMR 383, DECIDED MARCH 27, 1959.

WE BELIEVE THAT THE AUTOMATIC REDUCTION PROVISION OF PARAGRAPH 126E IS ADMINISTRATIVE RATHER THAN JUDICIAL IN CHARACTER AND APPARENTLY WAS INCLUDED IN RECOGNITION OF A PRACTICE AND POLICY FOLLOWED BY THE ARMY AND AIR FORCE FOR MANY YEARS TO THE EFFECT THAT A NON-COMMISSIONED OFFICER CONVICTED OF AN OFFENSE CARRYING A SENTENCE OF A CERTAIN SEVERITY, HAS DEMONSTRATED HIS UNFITNESS TO CONTINUE IN THAT GRADE AND THUS FOR ADMINISTRATIVE REASONS, AS DISTINGUISHED FROM JUDICIAL PUNISHMENT FOR AN OFFENSE, SHOULD BE REDUCED TO THE LOWEST PAY GRADE. SEE, IN THIS CONNECTION THE PAMPHLET, LEGAL AND LEGISLATIVE BASIS MANUAL FOR COURTS- MARTIAL, UNITED STATES, 1951 (A HISTORY OF THE PREPARATION AND PROCESSING OF THE MANUAL FOR COURTS-MARTIAL), WHICH STATES AT PAGES 177-178, WITH REFERENCE TO PARAGRAPH 126E, THAT:

"PARAGRAPH 126E CONTAINS A MODIFICATION OF THE NAVY PROCEDURE CONCERNING THE REDUCTION TO THE LOWEST ENLISTED GRADE BY CERTAIN SENTENCES. IN ARMY AND AIR FORCE PROCEDURE, THE RULE IS FIRMLY ESTABLISHED THAT IN THE CASE OF AN ENLISTED PERSON OF OTHER THAN THE LOWEST PAY GRADE A SENTENCE, WHICH AS ORDERED EXECUTED OR AS FINALLY APPROVED AND SUSPENDED, INCLUDES EITHER PUNITIVE DISCHARGE, CONFINEMENT, OR HARD LABOR WITHOUT CONFINEMENT, IMMEDIATELY UPON BEING ORDERED EXECUTED OR UPON BEING FINALLY APPROVED AND SUSPENDED REDUCES THE ENLISTED PERSON TO THE LOWEST ENLISTED PAY GRADE. THE BASIS FOR THIS RULE IS THAT THE STATUS OF A PRISONER SENTENCED TO PUNITIVE DISCHARGE, CONFINEMENT, OR HARD LABOR IS INCOMPATIBLE WITH THE HONORABLE STATUS OF A NONCOMMISSIONED OFFICER AND THAT IT IS PREJUDICIAL TO DISCIPLINE THAT AN ENLISTED MAN SHOULD BE SUBJECTED TO A DEGRADING PUNISHMENT WHILE STILL HOLDING THE OFFICE OF A NONCOMMISSIONED OFFICER.'

THE PRESIDENT, AS COMMANDER-IN-CHIEF OF THE ARMED FORCES, HAS AN INHERENT RIGHT TO DETERMINE APPROPRIATE STANDARDS OF CONDUCT TO WHICH MEMBERS OF THE SERVICE ARE EXPECTED TO CONFORM. HIS AUTHORITY TO REDUCE TO THE LOWEST PAY GRADE, A NON-COMMISSIONED OFFICER WHO HAS BEEN CONVICTED OF AN OFFENSE OF A SERIOUS NATURE, IS NOT OPEN TO QUESTION. IT DOES NOT NECESSARILY FOLLOW THAT BY PROVIDING FOR SUCH REDUCTION IN AN EXECUTIVE ORDER WHICH CONSTITUTES THE MANUAL FOR COURTS MARTIAL, THE PRESIDENT HAS ATTEMPTED TO USURP A JUDICIAL FUNCTION BY ADDING AN ADDITIONAL PUNISHMENT FOR AN OFFENSE WHICH THE COURT-MARTIAL FAILED TO IMPOSE. WE AGREE WITH THE VIEWS EXPRESSED BY JUDGE LATIMER IN HIS WELL-REASONED AND VIGOROUS DISSENT IN THE SIMPSON CASE THAT THE AUTOMATIC REDUCTION PROVISION OF SECTION 126E IS ADMINISTRATIVE IN NATURE AND THAT THE REDUCTION IN GRADE IS NOT ACCOMPLISHED AS PUNISHMENT FOR CONVICTION OF AN OFFENSE, BUT FOR OTHER REASONS DEEMED ADEQUATE BY THE PRESIDENT.

THE RECENT SIMPSON LINE OF CASES IN THE COURT OF MILITARY APPEALS APPEARS TO BE THE SOLE AUTHORITY FOR THE VIEW THAT THE AUTOMATIC REDUCTION PROVISION OF PARAGRAPH 126E OF THE MANUAL FOR COURTS-MARTIAL, 1951, IS INVALID. IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO THE FACT THAT THERE IS NOW PENDING BEFORE THE COURT OF CLAIMS THE CASE OF JOHNSON V. UNITED STATES, C.CLS. NO. 234-59, FILED MAY 28, 1959, IN WHICH THE COURT WILL BE REQUIRED TO DETERMINE THE CORRECT RATE OF PAY FOR A MEMBER AUTOMATICALLY REDUCED UNDER THE CITED PARAGRAPH 126E. THE PLAINTIFF THEREIN CITES THE SIMPSON CASE AS AUTHORITY FOR CLAIMING THE PAY AND ALLOWANCES OF THE NONCOMMISSIONED RANK FROM WHICH HE WAS REDUCED BY VIRTUE OF THE AUTOMATIC REDUCTION OF PARAGRAPH 126E. HIS CLAIM COVERS A PERIOD PART OF WHICH IS PRIOR TO FEBRUARY 20, 1959. SINCE THE QUESTIONS YOU HAVE PRESENTED ARE INVOLVED IN THE PENDING LITIGATION AND SINCE WE HAVE ADVISED THE ATTORNEY GENERAL AS TO OUR VIEWS ON THE LEGAL QUESTIONS INVOLVED, ALONG THE LINES INDICATED ABOVE, YOU ARE ADVISED THAT MEMBERS COMING WITHIN THE SCOPE OF YOUR QUESTIONS SHOULD BE PAID AT THE RATE APPLICABLE TO THE REDUCED GRADE PENDING A DECISION BY THE COURT OF CLAIMS.