B-143525, SEPTEMBER 20, 1960, 40 COMP. GEN. 176

B-143525: Sep 20, 1960

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A CONVICTION UNDER 18 U.S.C. 1001 IS A CONVICTION OF A . FELONY" AS THAT TERM IS USED IN CLAUSE 2 OF SECTION 1 OF THE ACT OF SEPTEMBER 1. WHICH IS A FELONY. IS NOT RESTRICTED TO OFFENSES COMMITTED WHILE CARRYING OUT AN OFFICIAL DUTY BUT IS DIRECTED AGAINST ACTS PERFORMED WHILE IN THE ACTIVE SERVICE OF THE GOVERNMENT AS WELL AS AGAINST ACTS PERFORMED AFTER TERMINATION OF SERVICE SO THAT THE COMMISSION OF AN OFFENSE BY A MEMBER OF THE UNIFORMED SERVICES AFTER TRANSFER TO AN INACTIVE STATUS AS A MEMBER OF THE FLEET MARINE CORPS RESERVE OR AS A MEMBER ON THE INACTIVE RETIRED LIST IS COVERED BY THE ACT IF DIRECTLY CONNECTED WITH ACTIVE SERVICE. IS A PRIVILEGE DIRECTLY RELATED TO ACTIVE SERVICE.

B-143525, SEPTEMBER 20, 1960, 40 COMP. GEN. 176

MILITARY PERSONNEL - FALSE CLAIM SUBMITTED AFTER RETIREMENT - EFFECT OF ACT OF SEPTEMBER 1, 1954 THE PUNISHMENT FOR THE SUBMISSION OF FALSE STATEMENTS ON MATTERS WITHIN THE JURISDICTION OF DEPARTMENTS AND AGENCIES OF THE UNITED STATES, PRESCRIBED IN 18 U.S.C. 1001 BEING A FINE OF $10,000 OR IMPRISONMENT OF NOT MORE THAN FIVE YEARS, OR BOTH, BRINGS THE OFFENSE WITHIN THE DEFINITION OF FELONY IN 18 U.S.C. 1, WHICH DEFINES FELONY AS ANY OFFENSE PUNISHABLE BY DEATH OR IMPRISONMENT FOR A TERM EXCEEDING ONE YEAR; THEREFORE, A CONVICTION UNDER 18 U.S.C. 1001 IS A CONVICTION OF A ,FELONY" AS THAT TERM IS USED IN CLAUSE 2 OF SECTION 1 OF THE ACT OF SEPTEMBER 1, 1954, WHICH PRECLUDES PAYMENT OF AN ANNUITY OR RETIRED PAY TO PERSONS CONVICTED OF CERTAIN OFFENSES. THE ACT OF SEPTEMBER 1, 1954, WHICH PRECLUDES THE PAYMENT OF AN ANNUITY OR RETIRED PAY TO PERSONS CONVICTED OF AN OFFENSE, WHICH IS A FELONY, IF COMMITTED IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER OR PRIVILEGES AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT, IS NOT RESTRICTED TO OFFENSES COMMITTED WHILE CARRYING OUT AN OFFICIAL DUTY BUT IS DIRECTED AGAINST ACTS PERFORMED WHILE IN THE ACTIVE SERVICE OF THE GOVERNMENT AS WELL AS AGAINST ACTS PERFORMED AFTER TERMINATION OF SERVICE SO THAT THE COMMISSION OF AN OFFENSE BY A MEMBER OF THE UNIFORMED SERVICES AFTER TRANSFER TO AN INACTIVE STATUS AS A MEMBER OF THE FLEET MARINE CORPS RESERVE OR AS A MEMBER ON THE INACTIVE RETIRED LIST IS COVERED BY THE ACT IF DIRECTLY CONNECTED WITH ACTIVE SERVICE. THE RIGHT OF A RETIRED MEMBER OF THE MARINE CORPS TO SUBMIT A CLAIM FOR TRAVEL PERFORMED BY HIM AND HIS DEPENDENTS, INCIDENT TO HIS SELECTION OF A HOME FOLLOWING HIS TRANSFER TO THE FLEET MARINE CORPS RESERVE, IS A PRIVILEGE DIRECTLY RELATED TO ACTIVE SERVICE, EVEN THOUGH IT ACCRUES ONLY INCIDENT TO TERMINATION OF ACTIVE SERVICE, AS THE TERM PRIVILEGE IS USED IN SECTION 1, CLAUSE 2 OF THE ACT OF SEPTEMBER 1, 1954, WHICH PRECLUDES PAYMENT OF AN ANNUITY OR RETIRED PAY TO PERSONS CONVICTED OF CERTAIN OFFENSES; AND, THEREFORE, THE CONVICTION OF THE MEMBER UNDER 18 U.S.C. 1001 OF FALSIFYING VOUCHERS FOR SUCH TRAVEL IS A CONVICTION OF A FELONY COMMITTED IN THE EXERCISE OF THE MEMBER'S PRIVILEGES AS AN OFFICER OR EMPLOYEE OF THE UNITED STATES WITHIN THE ACT OF SEPTEMBER 1, 1954, SO THAT RETIREMENT PAY MAY NOT BE MADE.

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, SEPTEMBER 20, 1960:

BY FIRST ENDORSEMENT DATED JULY 15, 1960, THE COMMANDANT OF THE MARINE CORPS FORWARDED HERE YOUR LETTER OF JULY 11, 1960, WITH ENCLOSURES, REQUESTING A DECISION WHETHER A MASTER SERGEANT, UNITED STATES MARINE CORPS, RETIRED, WILL BE PRECLUDED FROM ENTITLEMENT TO RETIRED PAY FROM THE MARINE CORPS 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 ON JUNE 6, 1960, IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, ALEXANDRIA DIVISION. THE REQUEST FOR DECISION WAS ASSIGNED SUBMISSION NO. DO-MC 516 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE SERGEANT PLEADED GUILTY, WAS FOUND GUILTY AND CONVICTED OF A VIOLATION OF 18 U.S.C. 1001. THE CONVICTION WAS FOR KNOWINGLY AND WILLFULLY MAKING FALSE STATEMENTS TO THE UNITED STATES DEPARTMENT OF THE NAVY IN THAT HE SUBMITTED TO THE DEPARTMENT TRAVEL VOUCHERS NOS. 717191 AND 717191-A, BOTH DATED MARCH 14, 1958, IN THE AMOUNTS OF $184.74 AND $369.48, RESPECTIVELY, FOR TRAVEL FOR HIMSELF AND HIS DEPENDENTS FROM WASHINGTON D.C., AND ANNADALE, VIRGINIA, TO CAMPBELL, CALIFORNIA, DURING THE PERIOD FEBRUARY 7, 1958, THROUGH FEBRUARY 20, 1958,"WHEN HE THEN AND THERE WELL KNEW THAT SUCH VOUCHER WAS NOT TRUE. ( TITLE 18, SECTION 1001, U.S.C.).'

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 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, OR (B) COMMITTED AFTER THE TERMINATION OF HIS SERVICE AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT BUT DIRECTLY INVOLVING, DIRECTLY RESULTING FROM, OR RELATING TO, THE IMPROPER EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES DURING ANY PERIOD OF HIS SERVICE AS SUCH OFFICER OR EMPLOYEE; * * *

SECTION 1001, TITLE 18 OF THE U.S.C. READS AS FOLLOWS:

WHOEVER, IN ANY MATTER WITHIN THE JURISDICTION OF ANY DEPARTMENT OR AGENCY OF THE UNITED STATES KNOWINGLY AND WILLFULLY FALSIFIES, CONCEALS OR COVERS UP BY ANY TRICK, SCHEME, OR DEVICE A MATERIAL FACT, OR MAKES ANY FALSE FICTITIOUS OR FRAUDULENT STATEMENTS OR REPRESENTATIONS, OR MAKES OR USES ANY FALSE WRITING OR DOCUMENTS KNOWING THE SAME TO CONTAIN ANY FALSE, FICTITIOUS OR FRAUDULENT STATEMENT OR ENTRY, SHALL BE FINED NOT MORE THAN $10,000 OR IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH.

SECTION 1, TITLE 18 OF THE U.S.C. DEFINES A "FELONY" AS ANY OFFENSE PUNISHABLE BY DEATH OR IMPRISONMENT FOR A TERM EXCEEDING ONE YEAR. VIEW OF THE DEFINITION IT IS CLEAR THAT THE SERGEANT WAS CONVICTED OF A "FELONY" WITHIN THE MEANING OF THE TERM AS USED IN CLAUSE 2 OF SECTION 1 OF THE ACT OF SEPTEMBER 1, 1954.

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, WITH CERTAIN EXCEPTIONS, WHICH IS A FELONY, IF "COMMITTED IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER OR PRIVILEGES AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT.'

YOU STATE THAT IT IS QUESTIONABLE WHETHER THE OFFENSE PROPERLY COULD BE CONSIDERED AS HAVING BEEN COMMITTED IN THE EXERCISE OF A PRIVILEGE AS A RETIRED MEMBER, THE ISSUE BEING WHETHER THE WORD "PRIVILEGES" AS USED IN SECTION 1, CLAUSE 2, OF THE STATUTE INCLUDES THE RIGHT GIVEN TO THE SERGEANT BY LAW AND REGULATIONS TO SUBMIT A CLAIM FOR TRAVEL PERFORMED BY HIM AND HIS DEPENDENTS INCIDENT TO HIS SELECTION OF A HOME FOLLOWING HIS TRANSFER TO THE FLEET MARINE CORPS RESERVE, OR WHETHER IT IS RESTRICTED IN ITS APPLICATION TO PRIVILEGES PRIMARILY ASSOCIATED WITH OR DIRECTLY RELATING TO THE OFFICIAL FUNCTIONS OF THE OFFICE OR ASSIGNED DUTIES OF A MEMBER.

WHILE THE LEGISLATIVE HISTORY CONTAINS STATEMENTS THAT THE ACT IS DIRECTED AGAINST PERSONS WHO BREAK FAITH WITH THE GOVERNMENT IN CARRYING OUT THEIR OFFICIAL DUTIES, OR WHILE ACTING IN AN OFFICIAL CAPACITY, THE ACT IS NOT RESTRICTED TO OFFENSES COMMITTED WHILE CARRYING OUT AN OFFICIAL DUTY, BUT BY ITS TERMS IT IS DIRECTED AGAINST ACTS PERFORMED WHILE IN THE ACTIVE SERVICE OF THE GOVERNMENT, AS WELL AS AGAINST ACTS PERFORMED AFTER TERMINATION OF GOVERNMENT SERVICE. HENCE, THE COMMISSION OF AN ACT AFTER TRANSFER TO AN INACTIVE STATUS AS A MEMBER OF THE FLEET MARINE CORPS RESERVE OR AS A MEMBER ON THE INACTIVE RETIRED LIST IS COVERED BY THE ACT IF IT IS DIRECTLY CONNECTED WITH ACTIVE SERVICE. WE THINK THAT A RIGHT TO A TRANSPORTATION ALLOWANCE ACCRUING INCIDENT TO ACTIVE SERVICE IS A PRIVILEGE DIRECTLY RELATED TO ACTIVE SERVICE EVEN THOUGH IT ACCRUES ONLY INCIDENT TO TERMINATION OF ACTIVE SERVICE.

THE SERGEANT WAS CONVICTED UNDER 18 U.S.C. 1001, THE PROVISIONS OF WHICH, PRIOR TO THE 1948 CODIFICATION, WERE PART OF THE SAME SECTION OF THE CRIMINAL CODE AS THE PREDECESSOR PROVISION OF 18 U.S.C. 287 (SECTION 35A OF THE CRIMINAL CODE, 18 U.S.C. 80, 1940 USED.). SECTION 287 RELATES TO FALSE CLAIMS AND IS SPECIFICALLY ENUMERATED IN CLAUSE (1) OF SECTION 1 AS ONE OF THE OFFENSES FOR WHICH THE ACT REQUIRES LOSS OF RETIRED PAY.

THE LEGISLATIVE HISTORY OF THE STATUTE INDICATES A LEGISLATIVE INTENT TO COVER FALSE CLAIMS AGAINST THE GOVERNMENT INCIDENT TO GOVERNMENT EMPLOYMENT AND UNDER THE CIRCUMSTANCES IT WOULD SEEM THAT THE WORD "PRIVILEGES" WOULD BE SUBJECT TO THAT CONCEPT. SEE IN THAT CONNECTION B- 23845, MARCH 20, 1942. THOUGH LAWS, PENAL IN NATURE, ARE TO BE STRICTLY CONSTRUED, IT HAS BEEN HELD THAT THEY ARE NOT TO BE CONSTRUED SO STRICTLY AS TO DENY THE OBVIOUS INTENT OF THE CONGRESS. ARROYO V. UNITED STATES, 359 U.S. 419, 424. SINCE THE OFFENSES OF WHICH THE SERGEANT WAS CONVICTED ARE SHOWN BY THE CRIMINAL INFORMATION FILED AGAINST HIM TO HAVE BEEN COMMITTED INCIDENT TO THE EXERCISE OF HIS RIGHTS AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT, HIS CASE APPEARS TO BE ONE WITHIN THE PROHIBITION OF THE 1954 ACT. THEREFORE, HE IS NOT ENTITLED TO RECEIVE ANY RETIRED PAY.