B-143495, AUG. 10, 1960

B-143495, AUG. 10, 1960

TO MAJOR JOHN A. RAPP, DISBURSING OFFICER, UNITED STATES MARINE CORPS:

BY FIRST ENDORSEMENT DATED JULY 12, 1960, THE COMMANDANT OF THE MARINE CORPS FORWARDED YOUR LETTER OF JULY 7, 1960, WITH ENCLOSURES, IN WHICH YOU REQUEST AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYING RETAINER PAY ON AND AFTER JULY 8, 1960, TO SERGEANT SAMUEL B. REECE, 302538, UNITED STATES MARINE CORPS, UPON HIS TRANSFER TO THE FLEET MARINE CORPS RESERVE AND RELEASE FROM ACTIVE DUTY. YOUR REQUEST FOR DECISION HAS BEEN ASSIGNED SUBMISSION NO. DO-MC-514, BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE BASIC QUESTION IS WHETHER SERGEANT REECE WAS CONVICTED BY A SUMMARY COURT MARTIAL IN MAY 1951, OF AN OFFENSE WHICH SHOULD BE CONSIDERED A FELONY UNDER THE LAWS OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA WITHIN THE MEANING OF SECTION 1, CLAUSE (2) OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 2282, 1958 EDITION. HE WAS CONVICTED OF WILFULLY AND WITHOUT PROPER AUTHORITY APPLYING TO HIS OWN USE A MOTOR VEHICLE BELONGING TO THE UNITED STATES WHILE HE WAS ON A REGULARLY SCHEDULED RECRUITING DUTY TRIP, BY DRIVING SUCH VEHICLE EIGHT-TENTHS OF A MILE OFF THE SCHEDULED ROUTE FOR THE PURPOSE OF TRANSPORTING TWO CIVILIAN PASSENGERS. YOU STATE THAT THIS OFFENSE WAS SUBJECT TO PUNISHMENT BY A MAXIMUM SENTENCE OF CONFINEMENT FOR 5 YEARS UNDER ARTICLE 14 OF THE ARTICLES FOR THE GOVERNMENT OF THE NAVY, WHICH WAS IN EFFECT AT THE TIME OF THE OFFENSE, AND THAT ALTHOUGH THERE APPEARS TO BE NO CIVIL CRIMINAL OFFENSE SET FORTH IN TITLE 18, U.S.C. COMPARABLE TO THAT FOR WHICH HE WAS CONVICTED, SECTION 22-2204 OF THE DISTRICT OF COLUMBIA CODE SEEMS TO CONTAIN A COMPARABLE OFFENSE, THE MAXIMUM PERIOD OF IMPRISONMENT FOR WHICH IS 5 YEARS.

SECTION 1 OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 2282, THE SO CALLED "HISS ACT" PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"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 OR 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 * * *.'

ARTICLE 14 OF THE ARTICLES FOR THE GOVERNMENT OF THE NAVY, 34 U.S.C. 1200, ARTICLE 14 (1946 EDITION), PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"FINE AND IMPRISONMENT, OR SUCH OTHER PUNISHMENT AS A COURT-MARTIAL MAY ADJUDGE, SHALL BE INFLICTED UPON ANY PERSON IN THE NAVAL SERVICE OF THE UNITED STATES---

"EIGHTH (STEALING WRONGFULLY SELLING, ETC.)

"WHO STEALS, EMBEZZLES, KNOWINGLY AND WILLFULLY MISAPPROPRIATES, APPLIES TO HIS OWN USE OR BENEFIT, OR WRONGFULLY AND KNOWINGLY SELLS OR DISPOSES OF ANY ORDNANCE, ARMS, EQUIPMENTS, AMMUNITION, CLOTHING, SUBSISTENCE STORES, MONEY, OR OTHER PROPERTY OF THE UNITED STATES, FURNISHED OR INTENDED FOR THE MILITARY OR NAVAL SERVICES THEREOF; * * *"

SECTION 22-2204, DISTRICT OF COLUMBIA CODE (1951 EDITION), PROVIDES, AS FOLLOWS:

"ANY PERSON WHO, WITHOUT THE CONSENT OF THE OWNER, SHALL TAKE, USE, OPERATE, OR REMOVE, OR CAUSE TO BE TAKEN, USED, OPERATED, OR REMOVED FROM A GARAGE, STABLE, OR OTHER BUILDING, OR FROM ANY PLACE OR LOCALITY ON A PUBLIC OR PRIVATE HIGHWAY, PARK, PARKWAY, STREET, LOT, FIELD, INCLOSURE, OR SPACE, AN AUTOMOBILE OR MOTOR VEHICLE, AND OPERATE OR DRIVE OR CAUSE THE SAME TO BE OPERATED OR DRIVEN FOR HIS OWN PROFIT, USE, OR PURPOSE SHALL BE PUNISHED BY A FINE NOT EXCEEDING ONE THOUSAND DOLLARS OR IMPRISONMENT NOT EXCEEDING FIVE YEARS, OR BOTH SUCH FINE AND RISONMENT.'

IN B-127022 DATED MAY 11, 1956, WE HELD THAT A DETERMINATION AS TO WHETHER A MILITARY OFFENSE IS A FELONY UNDER THE LAWS OF THE UNITED STATES WITHIN THE MEANING OF THE ACT OF SEPTEMBER 1, 1954, INVOLVES (1) WHETHER THE OFFENSE IS PUNISHABLE BY DEATH OR CONFINEMENT EXCEEDING ONE YEAR AND (2) WHETHER THE OFFENSE IS OF A CIVIL NATURE. IN CASES WHERE THE SENTENCE IMPOSABLE FOR THE OFFENSE FOR WHICH THE INDIVIDUAL WAS CONVICTED EXCEEDS ONE YEAR, REFERENCE SHOULD BE MADE TO THE UNITED STATES CODE OR THE CODE OF THE DISTRICT OF COLUMBIA TO ASCERTAIN WHETHER THE PARTICULAR OFFENSE IS ANALOGOUS TO ONE OF A CIVIL NATURE. IF THE TWO REQUIREMENTS ARE MET, THE MILITARY OFFENSE PROPERLY MAY BE CONSIDERED A FELONY FOR PURPOSES OF THE ACT OF SEPTEMBER 1, 1954.

NO INFORMATION HAS BEEN FURNISHED WHICH SHOWS THAT SERGEANT REECE WAS SPECIFICALLY CHARGED WITH A VIOLATION OF ARTICLE 14 OF THE ARTICLES FOR THE GOVERNMENT OF THE NAVY. IF THE OFFENSE TO WHICH HE PLEADED GUILTY CONSTITUTED A VIOLATION OF ARTICLE 14--- A MATTER AS TO WHICH WE EXPRESS NO OPINION--- IT APPEARS THAT THE OFFENSE WAS ONE FOR WHICH THE IMPOSABLE SENTENCE COULD HAVE INCLUDED CONFINEMENT EXCEEDING ONE YEAR. SEE SECTION 457, NAVAL COURTS AND BOARDS, 1937 ED. HOWEVER, AS TO THE SECOND REQUIREMENT THAT THE OFFENSE BE ANALOGOUS TO ONE OF A CIVIL NATURE FOUND IN THE U.S.C. OR THE CODE OF THE DISTRICT OF COLUMBIA, WE MUST CONSIDER THE ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT STATUTES WHICH IMPOSE PENALTIES OR FORFEITURES ARE TO BE CONSTRUED STRICTLY. SEE 35 COMP. GEN. 302, 303. SECTION 22-2204 OF THE DISTRICT OF COLUMBIA CODE PROVIDES THAT "ANY PERSON WHO, WITHOUT THE CONSENT OF THE OWNER, SHALL TAKE," ETC. SERGEANT REECE WAS OPERATING THE GOVERNMENT VEHICLE WITH THE CONSENT OF THE OWNER AND ALTHOUGH HE DEVIATED FROM WHAT WAS STATED TO BE THE SCHEDULE ITINERANT RECRUITING DUTY ROUTE AND DID PICK UP PASSENGERS CONTRARY TO A RECRUITING DISTRICT ORDER, IT IS EXTREMELY DOUBTFUL THAT ANY PROSECUTION WOULD BE UNDERTAKEN OR A CONVICTION OBTAINED UNDER SECTION 22-2204 OF THE DISTRICT OF COLUMBIA CODE, IF A SIMILAR ACT WERE PERFORMED BY A CIVILIAN WITHIN THE JURISDICTIONAL LIMITS OF THE DISTRICT OF COLUMBIA BY DRIVING HIS EMPLOYER'S MOTOR VEHICLE EIGHT TENTHS OF A MILE FROM THE ROUTE HE WAS TOLD TO TRAVEL, FOR PERSONAL REASONS. IN THE ABSENCE OF A JUDICIAL PRECEDENT--- NONE HAS BEEN FOUND--- SHOWING A CONVICTION UNDER SUCH CIRCUMSTANCES, IT CANNOT BE CONCLUDED THAT THE CHARGE TO WHICH REECE PLEADED GUILTY INVOLVED AN OFFENSE OF A CIVIL NATURE. SINCE THE SECOND CONDITION NECESSARY TO A DETERMINATION THAT AN OFFENSE IS A FELONY WITHIN THE MEANING OF THE ACT OF SEPTEMBER 1, 1954, HAS NOT BEEN MET, THE MILITARY OFFENSE OF WHICH HE WAS CONVICTED, MAY NOT BE CONSIDERED A FELONY FOR PURPOSES OF THAT ACT. ACCORDINGLY, THIS OFFICE WILL NOT OBJECT TO OTHERWISE PROPER PAYMENTS OF RETAINER PAY TO HIM FOR THE PERIOD ON AND AFTER JULY 8, 1960.

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.