B-143397, AUGUST 5, 1960, 40 COMP. GEN. 79

B-143397: Aug 5, 1960

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IS AT LEAST AN AMBIGUOUS SENTENCE. 1960: REFERENCE IS MADE TO YOUR LETTER OF MAY 18. AMONG THE ENCLOSURES IS A VOUCHER IN FAVOR OF HALE. THE SENTENCE WAS APPROVED AND ORDERED EXECUTED ON FEBRUARY 11. WERE AS FOLLOWS: CHART TITLE PAY GRADE MASTER SERGEANT . A MAN WHO WAS A SERGEANT FIRST CLASS. A MAN WHO WAS A MASTER SERGEANT. IT IS STATED THAT HALE WAS A MASTER SERGEANT. WAS AMENDED BY CHANGES NO. 1. (ADDED) NONCOMMISSIONED OFFICERS IN PAY GRADES E-7 AND E-6 ON 31 MAY 1958 ARE AUTHORIZED TO CONTINUE TO UTILIZE THE TITLES APPROPRIATE TO THOSE GRADES ON THAT DATE UNTIL 30 JUNE 1962 UNLESS INVOLVED IN PERSONNEL ACTIONS WHICH RESULT IN PROMOTION OR REDUCTION. WHEN HALE WAS SENTENCED HE WAS EITHER A PLATOON SERGEANT.

B-143397, AUGUST 5, 1960, 40 COMP. GEN. 79

MILITARY PERSONNEL - COURT-MARTIAL SENTENCES - AMBIGUITIES, ETC. A COURT-MARTIAL SENTENCE ISSUED ON JANUARY 22, 1959, WHICH REDUCED A MASTER SERGEANT, PAY GRADE E-7, TO THE "GRADE OF SERGEANT FIRST CLASS," WHICH TITLE AT THAT TIME CARRIED THE PAY GRADE OF E-7 BECAUSE OF THE CHANGES IN TITLES AND PAY GRADES EFFECTED BY THE ACT OF MAY 20, 1958, IS AT LEAST AN AMBIGUOUS SENTENCE, AND UNDER THE RULE THAT AN AMBIGUITY IN A COURT-MARTIAL SENTENCE SHOULD BE RESOLVED IN FAVOR OF THE ACCUSED, THE PURPORTED REDUCTION MUST BE REGARDED AS A NULLITY.

TO LIEUTENANT COLONEL H. A. MINER, DEPARTMENT OF THE ARMY, AUGUST 5, 1960:

REFERENCE IS MADE TO YOUR LETTER OF MAY 18, 1960, WITH ENCLOSURES, FORWARDED HERE UNDER D.O. NUMBER 512 (ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE), REQUESTING DECISION AS TO THE PROPER PAY GRADE OF ROBERT L. HALE, RA 35 648 729. AMONG THE ENCLOSURES IS A VOUCHER IN FAVOR OF HALE, REPRESENTING THE DIFFERENCE BETWEEN PAY IN PAY GRADE E-7 AND PAY IN PAY GRADE E-6 FOR THE PERIOD OF FEBRUARY 11, 1959, TO MAY 31, 1960. PRESUMABLY, HE HAS BEEN PAID THE PAY OF PAY GRADE E-6 SINCE FEBRUARY 11, 1959.

A GENERAL COURT-MARTIAL CONVENED AT FORT BRAGG, NORTH CAROLINA, IN THE CASE OF "1MASTER SERGEANT E-7 ROBERT L. HALE" IMPOSED THE FOLLOWING SENTENCE ON JANUARY 22, 1959: "TO BE REDUCED TO THE GRADE OF SERGEANT FIRST CLASS, AND TO FORFEIT $50.00 PER MONTH FOR THREE MONTHS.' THE SENTENCE WAS APPROVED AND ORDERED EXECUTED ON FEBRUARY 11, 1959.

ON MAY 31, 1958, THE ENLISTED GRADES IN THE ARMY, AS SET OUT IN PARAGRAPH 3 OF ARMY REGULATIONS 600-15, AUGUST 8, 1955, WERE AS FOLLOWS:

CHART

TITLE PAY

GRADE MASTER SERGEANT --------------------------------------------- E-7 SERGEANT FIRST CLASS ---------------------------------------- E-6 SERGEANT ---------------------------------------------------- E-5 CORPORAL -------- -------------------------------------------- E-4 PRIVATE FIRST CLASS ----- ------------------------------------ E-3 PRIVATE, E-2 -------------------- ---------------------------- E-2 PRIVATE, E-1 ---------------------------- -------------------- E-1

THE ACT OF MAY 20, 1958, STAT. 122, 123, 37 U.S.C. 232, ADDED TWO ENLISTED GRADES IN THE ARMY, E-8 AND E-9. THIS NECESSARILY REQUIRED ADJUSTMENT OF THE ENLISTED STRUCTURE OF THE ARMY, AND DEPARTMENT OF THE ARMY CIRCULAR 600-13, JUNE 23, 1958, ANNOUNCED THE ADJUSTMENT, EFFECTIVE AS OF JUNE 1, 1958, AS FOLLOWS:

CHART

TITLE PAY

GRADE SERGEANT MAJOR ------------------------------------- -------- E-9 FIRST SERGEANT OR MASTER SERGEANT ------------------ -------- E-8 PLATOON SERGEANT OR SERGEANT FIRST CLASS ------------ -------

E-7 STAFF SERGEANT ---------------------------------------------- E-6 SERGEANT ---------------------------------------------------- E-5 CORPORAL ---------------------------------------------------- E-4 PRIVATE FIRST CLASS ----------------------------------------- E-3 PRIVATE -------------- --------------------------------------- E-2 RECRUIT ---------------------- ------------------------------- E-1

THE ACT OF MAY 20, 1958, AND THE CIRCULAR OF JUNE 23, 1958, CHANGED THE TITLES OF POSITIONS HELD BY ENLISTED MEN ON MAY 31, 1958, TO THE TITLES OF THE NEW POSITIONS IN THE SAME PAY GRADES UNDER THE ACT OF MAY 20, 1958. THUS, A MAN WHO WAS A SERGEANT FIRST CLASS, E-6, ON MAY 31, 1958, DID NOT BECOME A SERGEANT FIRST CLASS, E-7, ON JUNE 1, 1958, BUT BECAME A STAFF SERGEANT, E-6, ON THAT DATE. LIKEWISE, A MAN WHO WAS A MASTER SERGEANT, E -7, ON MAY 31, 1958, BECAME A PLATOON SERGEANT, E-7, OR A SERGEANT FIRST CLASS, E-7, ON JUNE 1, 1958, DEPENDING UPON HIS ACTUAL DUTY POSITION. SEE PARAGRAPH 9 OF CIRCULAR 600-13. IT IS STATED THAT HALE WAS A MASTER SERGEANT, E-7, ON MAY 31, 1958. ACCORDINGLY, HE BECAME A PLATOON SERGEANT, E-7, OR A SERGEANT FIRST CLASS, E-7--- DEPENDING UPON HIS ACTUAL DUTIES--- ON JUNE 1, 1958.

PARAGRAPH 4 OF CIRCULAR 600-13, SUPRA, WAS AMENDED BY CHANGES NO. 1, AUGUST 12, 1958, AS OLLOWS:

C. (ADDED) NONCOMMISSIONED OFFICERS IN PAY GRADES E-7 AND E-6 ON 31 MAY 1958 ARE AUTHORIZED TO CONTINUE TO UTILIZE THE TITLES APPROPRIATE TO THOSE GRADES ON THAT DATE UNTIL 30 JUNE 1962 UNLESS INVOLVED IN PERSONNEL ACTIONS WHICH RESULT IN PROMOTION OR REDUCTION.

THUS, WHEN HALE WAS SENTENCED HE WAS EITHER A PLATOON SERGEANT, E-7, OR A SERGEANT FIRST CLASS, E-7, WITH THE TITLE OF MASTER SERGEANT, E 7. PURPORTEDLY WAS REDUCED TO THE GRADE OF SERGEANT FIRST CLASS. EXCEPT FOR MEN WHO HAD BEEN SERGEANTS FIRST CLASS, E-6, ON MAY 31, 1958, AND HAD RETAINED THEIR TITLES UNDER THE AMENDMENT OF AUGUST 12, 1958, TO CIRCULAR 600-13--- WHICH WAS NOT THE FACT IN HALE'S CASE--- THE ONLY PAY GRADE FOR A SERGEANT FIRST CLASS ON JANUARY 22, 1959, WAS E-7. IN ORDER TO REDUCE HALE FROM PAY GRADE E-7 TO PAY GRADE E-6, HE SHOULD HAVE BEEN SENTENCED TO BE REDUCED TO THE GRADE OF STAFF SERGEANT. THE FACT THAT THE COURT- MARTIAL ORDER IN THIS CASE REFERRED TO HIM AS A "1MASTER SERGEANT E7," A GRADE HE COULD HOLD ONLY UNDER THE AMENDMENT OF AUGUST 12, 1958, INDICATES THAT THE COURT WAS NOT UNAWARE OF SUCH REGULATIONS AND ITS ACTION IN SENTENCING HIM TO BE "REDUCED TO THE GRADE OF SERGEANT FIRST CLASS" AN E-7 PAY GRADE WAS AMBIGUOUS TO SAY THE LEAST.

A COURT-MARTIAL SENTENCE SHOULD BE CONSTRUED STRICTLY IN FAVOR OF THE ACCUSED AND HE SHOULD NOT BE SENTENCED BY INFERENCE OR IMPLICATION. UNITED STATES V. CAMPLIN, 7 CMR 193. AN AMBIGUITY IN A SENTENCE SHOULD BE RESOLVED IN FAVOR OF THE ACCUSED. UNITED STATES V. NOEL, 8 CMR 572. AND COMPARE, GENERALLY, UNITED STATES V. NICHOLSON, 27 CMR 260, WHERE IT WAS HELD THAT AN INTENDED REDUCTION TO A GRADE EQUIVALENT TO THAT OF PRIVATE FIRST CLASS IN THE MARINE CORPS, WHICH WAS STATED TO BE TO THE NONEXISTENT GRADE OF "DENTAL ASSISTANT" RATHER THAN TO THE EXISTING GRADE OF ,DENTAL APPRENTICE," WAS INEFFECTIVE AND COULD NOT BE REVISED TO REFLECT A REDUCTION TO THE LATTER GRADE.

IN CONFORMITY WITH THE SPIRIT OF THE HOLDINGS CITED IN THE ABOVE PARAGRAPH, WE THINK THAT FOR PAY PURPOSES THE PURPORTED REDUCTION IN HALE'S CASE WAS A NULLITY. ACCORDINGLY, PAYMENT ON THE VOUCHER TRANSMITTED WITH YOUR LETTER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.