B-143314, JULY 22, 1960, 40 COMP. GEN. 45

B-143314, JULY 22, 1960, 40 COMP. GEN. 45

MILITARY PERSONNEL - RETIRED PAY - EFFECT OF ACT OF SEPTEMBER 1, 1954, PROHIBITING PAYMENT TO PERSONS CONVICTED OF CERTAIN OFFENSES - COURT MARTIAL SENTENCES WHEN NO EVIDENCE IS PRESENTED AT A COURT-MARTIAL TRIAL BECAUSE THE MEMBER ENTERS A PLEA OF GUILTY BUT THE DOCUMENTS SUBMITTED BY THE DEFENSE IN ACCORDANCE WITH PRESENTENCING PROCEDURE SHOW THAT THE FELONY WAS COMMITTED IN THE EXERCISE OF SOME AUTHORITY WITHIN THE MEANING OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 2282, WHICH PROHIBITS PAYMENT OF RETIRED PAY TO INDIVIDUALS CONVICTED OF FELONIES, SUCH EVIDENCE MAY BE CONSIDERED, IF CONSISTENT WITH THE CHARGES; THEREFORE, EVIDENCE AT THE PRESENTENCING PROCEEDINGS OF A MEMBER WHICH SHOWS THAT WHILE PERFORMING DUTIES AS A MAIL CLERK HE STOLE A LETTER AND CHECK FROM THE MAILS AND FRAUDULENTLY ENDORSED THE CHECK--- OFFENSES FOR WHICH HE WAS CONVICTED- - BRINGS THE MEMBER WITHIN THE PROHIBITION OF THE 1954 ACT AND PRECLUDES RECEIPT OF RETIRED PAY.

TO THE SECRETARY OF THE ARMY, JULY 22, 1960:

REFERENCE IS MADE TO LETTER OF JUNE 22, 1960, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE ARMY (1FM), REQUESTING A DECISION WHETHER A SERGEANT FIRST CLASS, UNITED STATES ARMY, WILL BE PRECLUDED FROM ENTITLEMENT TO RETIRED PAY FROM THE ARMY BY REASON OF THE PROVISIONS OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1142, AS AMENDED, 5 U.S.C. 2281, ET SEQ., IN VIEW OF HIS CONVICTION BY A GENERAL COURT MARTIAL. IT IS STATED THAT THE REQUEST WAS ASSIGNED SUBMISSION NO. SS A-494 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE SERGEANT WAS CONVICTED BY A GENERAL COURT-MARTIAL FOR VIOLATIONS OF ARTICLES 121, 10 U.S.C. 921, LARCENY AND WRONGFUL APPROPRIATIONS, 123, 10 U.S.C. 923, FORGERY, AND GENERAL ARTICLE 134, 10 U.S.C. 934, OF THE UNIFORM CODE OF MILITARY JUSTICE. THE SPECIFICATION FOR THE VIOLATION OF ARTICLE 121 WAS THAT THE MEMBER "THEN SERGEANT, COMPANY A, AIRBORNE BATTALION, ST STUDENT REGIMENT, DID, AT FORT BENNING, GEORGIA," STEAL A UNITED STATES TREASURY CHECK OF A VALUE OF $137.10,"THE PROPERTY OF THE UNITED STATES GOVERNMENT.' THE SPECIFICATION FOR THE VIOLATION OF ARTICLE 123 WAS THAT THE MEMBER DID, WITH INTENT TO DEFRAUD, FALSELY MAKE THE SIGNATURES OF BARBARA A. WHITBECK AND SERGEANT LEIGH E. WHITBECK, AS ENDORSEMENTS TO A CERTAIN CHECK. THE SPECIFICATION FOR THE VIOLATION OF ARTICLE 134 WAS THAT THE MEMBER STOLE A CERTAIN LETTER ADDRESSED TO BARBARA A. WHITBECK,"WHICH SAID LETTER WAS THEN IN THE MAIL ROOM OF COMPANY A * * * BEFORE SAID LETTER WAS DELIVERED TO THE PERSON TO WHOM IT WAS DIRECTED.' THE PLEAS TO THE SPECIFICATIONS AND CHARGES WERE GUILTY. THE FINDINGS BY THE COURT OF THE SPECIFICATIONS AND CHARGES WERE GUILTY. THE REVIEWING AUTHORITY UPHELD THE CONVICTION.

IN VIEW OF THE MEMBER'S PLEAS OF GUILTY, NO EVIDENCE WAS INTRODUCED AT THE TRIAL BEFORE THE FINDINGS OF GUILTY. HOWEVER, AFTER THE FINDINGS IN PARAGRAPH 75 OF THE MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951, THE COURT RECEIVED EVIDENCE IN EXTENUATION OR MITIGATION OF THE OFFENSES FOR WHICH HE WAS CONVICTED. THIS EVIDENCE, AS PRESENTED BY THE DEFENSE, IS CONTAINED IN THE RECORD OF THE TRIAL AND SHOWS THAT THE OFFENSES OF WHICH THE MEMBER WAS CONVICTED WERE COMMITTED INCIDENT TO HIS DUTIES AS CHIEF MAIL CLERK, COMPANY A, AIRBORNE BATTALION, ST STUDENT REGIMENT, FORT BENNING, GEORGIA. IN ADDITION, IN CONNECTION WITH THE PRETRIAL INVESTIGATION PRESCRIBED BY ARTICLE 32 OF THE UNIFORMED CODE OF MILITARY JUSTICE, 10 U.S.C. 832, A STATEMENT, SIGNED BY THE MEMBER, WAS RECEIVED IN EVIDENCE, WHICH STATEMENT WAS TO THE SAME EFFECT AS HIS STATEMENT MADE IN CONNECTION WITH THE PRESENTENCING PROCEDURE. A DECISION IS REQUESTED, THEREFORE, WHETHER THE SIGNED STATEMENT MADE BY THE MEMBER DURING THE PRETRIAL INVESTIGATION AND THE STATEMENTS CONTAINED IN THE RECORD OF TRIAL AFTER THE FINDINGS OF GUILTY MAY BE USED IN DETERMINING THE APPLICABILITY OF THE ACT OF SEPTEMBER 1, 1954, IN HIS CASE.

SECTION 1 OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1142, 5 U.S.C. 2282, PROVIDES IN PART:

THAT THERE SHALL NOT BE PAID TO ANY PERSON CONVICTED PRIOR TO, ON, OR AFTER THE DATE OF ENACTMENT OF THIS ACT OF ANY OF THE FOLLOWING OFFENSES DESCRIBED IN THIS SECTION, OR TO THE SURVIVOR OF BENEFICIARY OF SUCH PERSON SO CONVICTED, FOR ANY PERIOD SUBSEQUENT TO THE DATE OF SUCH CONVICTION OR THE DATE OF ENACTMENT OF THIS ACT, 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:

(2) ANY OFFENSE (NOT INCLUDING ANY OFFENSE WITHIN THE PURVIEW OF SECTION 13 OF TITLE 18 OF THE UNITED STATES CODE) WHICH IS A FELONY UNDER THE LAWS OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA (A) COMMITTED IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT * * *

THE CONVICTION BY COURT-MARTIAL OF A MEMBER OF THE UNIFORMED SERVICES FOR AN OFFENSE UNDER THE UNIFORM CODE OF MILITARY JUSTICE, WHICH IS OF A CIVIL NATURE AND IS PUNISHABLE BY DEATH OR CONFINEMENT EXCEEDING ONE YEAR, IS A CONVICTION OF A "FELONY" UNDER THE LAWS OF THE UNITED STATES WITHIN THE MEANING OF THE ABOVE-QUOTED PORTION OF THE ACT OF SEPTEMBER 1, 1954. SEE, IN THIS CONNECTION, 35 COMP. GEN. 302; B 127022, MAY 11, 1956; 38 COMP. GEN. 310; B-125744, JULY 30, 1959. PARAGRAPH 127C OF THE MANUAL FOR COURTS-MARTIAL PROVIDES A MAXIMUM CONFINEMENT OF NOT TO EXCEED FIVE YEARS FOR A VIOLATION OF ARTICLE 121 OF THE UNIFORM CODE OF MILITARY JUSTICE, IF THE VALUE OF THE PROPERTY TAKEN IS MORE THAN $50, FOR VIOLATION OF ARTICLE 123, OF FOR A VIOLATION OF ARTICLE 134, INSOFAR AS THE THEFT OF MAIL MATTER IS CONCERNED.

THE PURPOSE OF THE ACT OF SEPTEMBER 1, 1954, IS TO BAR PAYMENT OF AN ANNUITY OR RETIRED PAY TO ANY PERSON CONVICTED OF COMMITTING AN ACT OR OFFENSE COMING WITHIN ITS PROVISIONS. 35 COMP. GEN. 302. SECTION 1, CLAUSE 2, OF THE ACT PROHIBITS SUCH PAYMENTS TO PERSONS CONVICTED OF ANY OFFENSE, WITH CERTAIN EXCEPTIONS, WHICH IS A FELONY UNDER THE LAWS OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA, IF COMMITTED UNDER CIRCUMSTANCES INVOLVING OR RELATING TO THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER OR PRIVILEGES AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT. IN 38 COMP. GEN. 310, IT WAS HELD THAT THE STATUTORY AND REGULATORY PROVISIONS INVOLVED CONTEMPLATE THAT THE ACCUSED HAVE AMPLE OPPORTUNITY TO HEAR AND ANSWER THE CHARGES RAISED AGAINST HIM, AN OPPORTUNITY ARISING IN CASES WHERE GUILTY PLEAS ARE ENTERED ONLY IF THE CHARGES AND SPECIFICATIONS SET FORTH CLEARLY AND CONCISELY AN OFFENSE CONTEMPLATED BY THE 1954 ACT. HOWEVER, ADMISSIONS ARE GENERALLY ADMISSIBLE AS ORIGINAL AND SUBSTANTIVE EVIDENCE OF THE TRUTH OF THE STATEMENTS MADE OR OF THE EXISTENCE OF ANY FACTS WHICH THEY HAVE A TENDENCY TO ESTABLISH AND THEIR ADMISSIBILITY IS NOT DEPENDENT ON ANY TENDENCY TO DISCREDIT THE PERSON BY WHOM THEY WERE MADE. THE NATURE OF THE ACTION OR PROCEEDINGS DOES NOT AFFECT THE ADMISSIBILITY OF SUCH ADMISSIONS. SEE 31 C.J.S., EVIDENCE, AT PAGES 1027 AND 1028. CLEARLY, WHERE THE RECORD INCLUDES AN ADMISSION VOLUNTARILY MADE BY THE ACCUSED ESTABLISHING THAT THE OFFENSE WAS COMMITTED IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER OR PRIVILEGES AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT, THERE CAN BE NO QUESTION OF VIOLATION OF ANY RIGHT OF REPUTATION THE ACCUSED MAY HAVE. THEREFORE, SUCH EVIDENCE, FREELY GIVEN BY THE ACCUSED, EVEN THOUGH NOT APPEARING IN THE CHARGES AND SPECIFICATIONS, PROPERLY MAY BE CONSIDERED IN THE DETERMINATION WHETHER THE ACCUSED WAS CONVICTED OF AN OFFENSE WITHIN THE SCOPE OF THE 1954 ACT. CF. 38 COMP. GEN. 817, 819.

IT IS OUR VIEW THAT, IN A CASE WHERE NO EVIDENCE IS PRESENTED AT THE TRIAL BECAUSE A PLEA OF GUILTY IS MADE, BUT THE PAPERS OR DOCUMENTS SUBMITTED BY THE DEFENSE, IN ACCORDANCE WITH THE PRESENTENCING PROCEDURE PRESCRIBED IN PARAGRAPH 75 OF THE MANUAL FOR COURTS-MARTIAL, SHOW THAT THE FELONY (ADMITTED BY THE DEFENDANT) WAS COMMITTED IN THE EXERCISE OF SOME OFFICE OR AUTHORITY WITHIN THE MEANING OF THE 1954 ACT, SUCH EVIDENCE PROPERLY MAY BE CONSIDERED IN THE DETERMINATION THAT THE ACCUSED WAS CONVICTED OF AN OFFENSE WITHIN THE SCOPE OF SECTION 1, CLAUSE 2, OF THE 1954 ACT, IF CONSISTENT WITH THE CHARGES AND SPECIFICATIONS.

SINCE THE OFFENSES FOR WHICH THE MEMBER WAS CONVICTED ARE SHOWN BY THE STATEMENTS SUBMITTED BY HIM TO HAVE BEEN COMMITTED IN THE EXERCISE OF HIS "AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES AS AN OFFICER OR EMPLOYEE, OF THE GOVERNMENT," WHICH STATEMENTS ARE CONSISTENT WITH THE CHARGES AND SPECIFICATIONS, HIS CASE COMES WITHIN THE PROHIBITION ON THE BASIS OF THE PRESENT RECORD. ACCORDINGLY, THE QUESTIONS PRESENTED ARE ANSWERED IN THE AFFIRMATIVE.

AS A MATTER OF INFORMATION, YOUR ATTENTION IS CALLED TO THE FACT THAT H. R. 4601, 86TH CONGRESS (A BILL TO LIMIT THE PROHIBITION IN THE ACT OF SEPTEMBER 1, 1954, AGAINST THE PAYMENT OF ANNUITIES AND RETIRED PAY, TO CASES INVOLVING THE NATIONAL SECURITY) WAS PASSED BY THE HOUSE OF REPRESENTATIVES ON APRIL 14, 1959, AND WAS FAVORABLY REPORTED TO THE SENATE, WITHOUT AMENDMENT, ON JUNE 10, 1960.