B-142314, MAY 4, 1960, 39 COMP. GEN. 741

B-142314: May 4, 1960

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BE DETERMINED IN A MANNER WHICH WILL RESULT IN THE LAST EXPENDITURE OF PUBLIC FUNDS SO THAT THE DAY A JURY RETURNS A VERDICT OF GUILTY. RATHER THAN A LATER DATE WHEN THE JUDGMENT IS ORDERED EXECUTED. " AS THAT TERM IS USED IN SECTION 1 OF THE ACT OF SEPTEMBER 1. WHICHEVER IS LATER. THAT JUDGMENT AND ORDER OF PROBATION WAS ENTERED ON JANUARY 29. THE TERM "CONVICTION" IS NOT AN EXACT ONE AND ITS CONSTRUCTION BY THE COURTS HAVE VARIED DEPENDING ON THE INTERPRETATION OF THE PARTICULAR LAW OR STATUTE UNDER CONSIDERATION. IN ITS ORDINARY LEGAL MEANING IT HAS BEEN HELD TO DESIGNATE THAT PARTICULAR STAGE OF A CRIMINAL PROSECUTION WHEN A PLEA OF GUILTY IS ENTERED IN OPEN COURT OR A VERDICT OF GUILTY IS RETURNED BY A JURY.

B-142314, MAY 4, 1960, 39 COMP. GEN. 741

MILITARY PERSONNEL - RETIRED PAY - FORFEITURE - EFFECT OF ACT OF SEPTEMBER 1, 1954, PROHIBITING PAYMENT TO PERSONS CONVICTED OF CERTAIN OFFENSES - EFFECTIVE DATE THE EFFECTIVE DATE OF A CONVICTION FOR STOPPAGE OF RETIRED PAY PURSUANT TO SECTION 1 OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 2822, SHOULD, IN THE ABSENCE OF AN AUTHORITATIVE JUDICIAL DECISION, BE DETERMINED IN A MANNER WHICH WILL RESULT IN THE LAST EXPENDITURE OF PUBLIC FUNDS SO THAT THE DAY A JURY RETURNS A VERDICT OF GUILTY, RATHER THAN A LATER DATE WHEN THE JUDGMENT IS ORDERED EXECUTED, SHOULD BE CONSIDERED THE TIME OF CONVICTION AND RETIRED PAY STOPPED THE FOLLOWING DAY.

TO THE SECRETARY OF THE NAVY, MAY 4, 1960:

ON MARCH 16, 1960, THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES) REQUESTED OUR DECISION CONCERNING THE EFFECTIVE DATE OF A "CONVICTION," AS THAT TERM IS USED IN SECTION 1 OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 2282, FOR THE PURPOSE OF WITHHOLDING RETIRED PAY.

SECTION 1 READS IN PERTINENT PART AS FOLLOWS:

THERE SHALL NOT BE PAID TO ANY PERSON CONVICTED PRIOR TO, ON, OR AFTER SEPTEMBER 1, 1954 OF ANY OF THE FOLLOWING OFFENSES DESCRIBED IN THIS SECTION, OR TO THE SURVIVOR OR BENEFICIARY OF SUCH PERSON SO CONVICTED, FOR ANY PERIOD SUBSEQUENT TO THE DATE OF SUCH CONVICTION OR SEPTEMBER 1, 1954, WHICHEVER IS LATER, ANY ANNUITY OR RETIRED PAY ON THE BASIS OF THE SERVICE OF SUCH PERSON AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT * * *.

THE ASSISTANT SECRETARY OF THE NAVY DIRECTS OUR ATTENTION TO THE CASE OF UNITED STATES V. GILLILAN, ET AL., IN THE UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF NEW YORK, AS BEING ILLUSTRATIVE OF THE PROBLEM INVOLVED. HE POINTS OUT THAT ON DECEMBER 2, 1959, THE JURY RENDERED A VERDICT FINDING REAR ADMIRAL CHARLES H. GILLILAN, SC, USN, RETIRED, GUILTY OF CONSPIRING TO VIOLATE 18 U.S.C. 281, AND THAT JUDGMENT AND ORDER OF PROBATION WAS ENTERED ON JANUARY 29, 1960. THE QUESTION THEREFORE ARISES AS TO WHETHER THE OFFICER'S RIGHT TO RETIRED PAY TERMINATED ON DECEMBER 2, 1959, OR JANUARY 29, 1960.

THE TERM "CONVICTION" IS NOT AN EXACT ONE AND ITS CONSTRUCTION BY THE COURTS HAVE VARIED DEPENDING ON THE INTERPRETATION OF THE PARTICULAR LAW OR STATUTE UNDER CONSIDERATION. IN ITS ORDINARY LEGAL MEANING IT HAS BEEN HELD TO DESIGNATE THAT PARTICULAR STAGE OF A CRIMINAL PROSECUTION WHEN A PLEA OF GUILTY IS ENTERED IN OPEN COURT OR A VERDICT OF GUILTY IS RETURNED BY A JURY. SEE 13 C.J. 906-907. IN A MORE STRICT TECHNICAL SENSE IT HAS BEEN DEFINED AS DENOTING THE FINAL JUDGMENT OF THE COURT. 13 C.J. 907- 909.

THE LEGISLATIVE HISTORY OF THE 1954 ACT CONTAINS NO POSITIVE INFORMATION WHICH THROWS ANY LIGHT ON THE LEGISLATIVE INTENT WITH RESPECT TO THE PROBLEM INVOLVED AND WE HAVE FOUND NO COURT DECISION WHICH HAS RULED ON THE MATTER OF THE EFFECTIVE DATE OF A "CONVICTION" FOR PURPOSES OF TERMINATING ENTITLEMENT TO RETIRED PAY PURSUANT TO 5 U.S.C. 2282. IN SUCH CIRCUMSTANCES AND PENDING AN AUTHORITATIVE JUDICIAL DECISION TO THE CONTRARY, IT IS BELIEVED PROPER TO ADOPT THAT INTERPRETATION OF THE LAW WHICH WILL RESULT IN THE LEAST EXPENDITURE OF PUBLIC FUNDS. THE EVIDENT PURPOSE OF THE STATUTE IS TO DENY PAYMENT OF ANNUITY OR RETIRED PAY TO ANY PERSON CONVICTED OF ANY OF THE LISTED OFFENSES OR TO THE SURVIVORS OR BENEFICIARY OF SUCH PERSON IS CONVICTED. STOPPAGE OF RETIRED PAY ON THE DAY AFTER A JURY RETURNS A VERDICT OF GUILTY IS CONSISTENT WITH SUCH PURPOSE AND WILL RESULT IN LESS EXPENDITURE OF PUBLIC FUNDS THAN IF PAYMENT IS CONTINUED UNTIL FORMAL ENTRY OF JUDGMENT BY THE COURT.

ACCORDINGLY, IT IS CONCLUDED THAT THE VERDICT OF GUILTY RETURNED BY THE JURY ON DECEMBER 2, 1959, RESULTED IN ADMIRAL GILLILAN'S "CONVICTION" UNDER THE FOREGOING STATUTORY PROVISION. HENCE, HE IS NOT ENTITLED TO PAYMENT OF RETIRED PAY AFTER THAT DATE UNLESS SUCH CONVICTION IS REVERSED ON APPEAL.