B-144279, DECEMBER 13, 1960, 40 COMP. GEN. 364

B-144279: Dec 13, 1960

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SINCE THE OFFENSE OF USING A GOVERNMENT MOTOR VEHICLE FOR PERSONAL PURPOSES FOR WHICH A MEMBER OF THE UNIFORMED SERVICES WAS CONVICTED BY COURT-MARTIAL MUST BE REGARDED. IT IS ANALOGOUS TO A CIVIL OFFENSE PUNISHABLE UNDER SECTION 22-2204 OF THE DISTRICT OF COLUMBIA CODE AND IS THEREFORE THE CONVICTION OF AN OFFENSE WITHIN THE PURVIEW OF THE ACT OF SEPTEMBER 1. YOUR REQUEST FOR ADVANCE DECISION WAS FORWARDED UNDER DO NO. 537. IT APPEARS THAT COLONEL MARTIN WAS PLACED ON THE RETIRED LIST EFFECTIVE SEPTEMBER 1. IT IS STATED THAT DOUBT EXISTS AS TO WHETHER HE MAY BE PAID RETIRED PAY SINCE HE WAS CONVICTED BY A GENERAL COURT-MARTIAL OF A FELONY WHICH MAY COME WITHIN THE PURVIEW OF THE ACT OF SEPTEMBER 1.

B-144279, DECEMBER 13, 1960, 40 COMP. GEN. 364

MILITARY PERSONNEL - RETIRED PAY - EFFECT OF ACT OF SEPTEMBER 1, 1954, PROHIBITING PAYMENT TO PERSONS CONVICTED OF CERTAIN OFFENSES. SINCE THE OFFENSE OF USING A GOVERNMENT MOTOR VEHICLE FOR PERSONAL PURPOSES FOR WHICH A MEMBER OF THE UNIFORMED SERVICES WAS CONVICTED BY COURT-MARTIAL MUST BE REGARDED, IN VIEW OF THE ADMISSIONS CONTAINED IN A SIGNED STIPULATION INTRODUCED IN EVIDENCE IN THE PROCEEDINGS, AS AN OFFENSE COMMITTED AS A RESULT OF THE AUTHORITY, INFLUENCE OR POWER EXERCISED BY THE INDIVIDUAL AS A MILITARY OFFICER AND SINCE THE OFFENSE CONSTITUTED AN UNLAWFUL TAKING OF A MOTOR VEHICLE WITHOUT THE ACTUAL OR IMPLIED CONSENT OF THE OWNER, IT IS ANALOGOUS TO A CIVIL OFFENSE PUNISHABLE UNDER SECTION 22-2204 OF THE DISTRICT OF COLUMBIA CODE AND IS THEREFORE THE CONVICTION OF AN OFFENSE WITHIN THE PURVIEW OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 2281, WHICH PROHIBITS THE PAYMENT OF RETIRED PAY TO THE MEMBER.

TO LIEUTENANT COLONEL R. H. MACPHERSON, DEPARTMENT OF THE ARMY, DECEMBER 13, 1960:

BY FIRST ENDORSEMENT OF OCTOBER 18, 1960, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, REFERRED TO THIS OFFICE YOUR LETTER OF OCTOBER 4, 1960, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER TOTALING $503.75 IN THE CASE OF LIEUTENANT COLONEL CHESTER L. MARTIN, 10404844, REPRESENTING RETIRED PAY FOR THE MONTH OF SEPTEMBER 1960. YOUR REQUEST FOR ADVANCE DECISION WAS FORWARDED UNDER DO NO. 537, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT COLONEL MARTIN WAS PLACED ON THE RETIRED LIST EFFECTIVE SEPTEMBER 1, 1960, UNDER THE PROVISIONS OF 10 U.S.C. 3911. IT IS STATED THAT DOUBT EXISTS AS TO WHETHER HE MAY BE PAID RETIRED PAY SINCE HE WAS CONVICTED BY A GENERAL COURT-MARTIAL OF A FELONY WHICH MAY COME WITHIN THE PURVIEW OF THE ACT OF SEPTEMBER 1, 1959, 68 STAT. 1142, 5 U.S.C. 2281.

COLONEL MARTIN WAS CHARGED WITH VIOLATIONS OF ARTICLES 121 AND 134 OF THE UNIFORMED CODE OF MILITARY JUSTICE. HE PLEADED GUILTY TO ALL CHARGES AND SPECIFICATIONS, WAS FOUND GUILTY OF ALL AND WAS SENTENCED TO AN OFFICIAL REPRIMAND AND TO FORFEIT $200 PER MONTH OF HIS PAY FOR A PERIOD OF 12 MONTHS. THE SENTENCE WAS ADJUDGED ON DECEMBER 3, 1957, AND APPROVED ON JANUARY 11, 1958. IT IS FURTHER STATED THAT THE JUDGE ADVOCATE GENERAL OF THE ARMY, UPON REVIEW OF THIS CASE, RENDERED THE OPINION THAT THE EVIDENCE OFFERED IN MITIGATION AND EXTENUATION BY THE DEFENSE WAS INSUFFICIENT TO INDICATE THAT THE OFFICER HAD BEEN CONVICTED TO AN OFFENSE WITHIN THE PURVIEW OF THE ABOVE ACT AND IN THAT CONNECTION REFERENCE IS MADE TO 38 COMP. GEN. 817. IT IS FURTHER STATED TO BE THE OPINION OF THE LEGAL OFFICERS OF THE DEPARTMENT OF THE ARMY THAT THE ONLY FELONY OF WHICH COLONEL MARTIN WAS CONVICTED WAS CONTAINED IN SPECIFICATION 4 OF ADDITIONAL CHARGE II WHICH CHARGED HIM WITH WRONGFULLY APPROPRIATING A "1REO 2 1/2-TON EARTHBORING AND POLE SETTING TRUCK.' YOU STATE FURTHER THAT SINCE THE ACCUSED PLEADED GUILTY TO ALL SPECIFICATIONS AND CHARGES, NO EVIDENCE CAN BE FOUND IN THE RECORD OF THE TRIAL TO SUPPORT THIS SPECIFICATION. YOU REFER TO VARIOUS STATEMENTS OF WITNESSES AT A PRETRIAL INVESTIGATION OF CHARGES UNDER ARTICLE 32, UNIFORMED CODE OF MILITARY JUSTICE, 10 U.S.C. 832, AND REQUEST ADVICE WHETHER SUCH STATEMENTS OR ANY OTHER MATTER CONTAINED IN THE RECORD OF TRIAL ARE SUFFICIENT TO DETERMINE THAT COLONEL MARTIN HAS BEEN CONVICTED OF A FELONY WITHIN THE PURVIEW OF THE ACT OF SEPTEMBER 1, 1954, AND WHETHER HIS RETIRED PAY SHOULD BE DENIED UNDER THAT ACT.

GENERALLY, THE CONVICTION BY A COURT-MARTIAL OF A MEMBER OF THE UNIFORMED SERVICES FOR AN OFFENSE UNDER THE UNIFORMED CODE OF MILITARY JUSTICE WHICH IS OF A CIVIL NATURE AND IS PUNISHABLE BY DEATH OF CONFINEMENT EXCEEDING ONE YEAR IS A CONVICTION OF A "FELONY" UNDER THE LAWS OF THE UNITED STATES WITHIN THE MEANING OF SECTION, CLAUSE 2, OF THE ACT OF SEPTEMBER 1, 1954, AND IF THE OFFENSE WAS COMMITTED IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES AS AN OFFICER OF THE GOVERNMENT, THAT ACT PROHIBITS THE PAYMENT OF RETIRED PAY TO HIM. SEE 35 COMP. GEN. 302; 38 COMP. GEN. 310; 38 COMP. GEN. 817. HAVING PLEADED GUILTY AND HAVING BEEN CONVICTED OF AN OFFENSE WHICH IS A FELONY UNDER PARAGRAPHS 127C AND 213D (6) OF THE MANUAL FOR COURTS-MARTIAL, 1951, COLONEL MARTIN MAY NOT BE PAID RETIRED PAY IF THE OFFENSE IS OF A CIVIL NATURE UNDER THE LAWS OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA AND WAS COMMITTED IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE OR POWER AS A MILITARY OFFICER.

AFTER THE COURT-MARTIAL ENTERED ITS FINDINGS OF GUILTY TO THE CHARGES AGAINST THE OFFICER, THE PROSECUTION, WITH THE CONSENT OF THE ACCUSED, INTRODUCED IN EVIDENCE AS PROSECUTION EXHIBIT NO. 1, A STIPULATION SIGNED BY THE ACCUSED AND HIS COUNSEL, IN WHICH IT IS STATED THAT:

DURING THE MONTHS OF JUNE THROUGH OCTOBER 1956, THE ACCUSED BY ORDERS TO ENLISTED PERSONNEL UNDER HIS SUPERVISION OR CONVEYED TO THEM BY SUBORDINATES SECURED ENLISTED MEN UNDER HIS OPERATIONAL CONTROL TO PERFORM PERSONAL SERVICES FOR HIM ABOUT HIS PRIVATE RESIDENCE AT LUCRINO, ITALY, THESE SERVICES WERE PERFORMED DURING NORMAL DUTY HOURS AND UTILIZED THE PROPERTY OF ALLIED FORCES SOUTHERN EUROPE. * * * DURING THE PERFORMANCE OF THESE SERVICES THE PROPERTY OF ALLIED FORCES SOUTHERN EUROPE DESCRIBED IN SPECIFICATION 1, 2 AND 4 OF ADDITIONAL CHARGE II WAS EITHER USED AT OR INCORPORATED INTO ACCUSED'S PRIVATE HOME.

THE ADMISSIONS CONTAINED IN THE STIPULATION ARE PROPERLY FOR CONSIDERATION IN THIS MATTER (DECISION OF JULY 22, 1960, 40 COMP. GEN. 45) AND THEY CLEARLY SHOW THAT THE OFFENSE OF WRONGFULLY APPROPRIATING THE MOTOR VEHICLE DESCRIBED IN SPECIFICATION 4 OF ADDITIONAL CHARGE II, WAS COMMITTED AS A RESULT OF THE AUTHORITY, INFLUENCE OR POWER EXERCISED BY COLONEL MARTIN AS A MILITARY OFFICER.

AS TO THE REQUIREMENT THAT THE OFFENSE BE ANALOGOUS TO ONE OF A CIVIL NATURE UNDER THE LAWS OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA, SECTION 22-2204 OF THE DISTRICT OF COLUMBIA CODE PROVIDES:

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, PARKWAY, STREET, LOT, FIELD, ENCLOSURE, 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 $1,000 OR IMPRISONMENT NOT EXCEEDING FIVE YEARS, OR BOTH SUCH FINE OR IMPRISONMENT.

WHILE IT MAY BE THAT COLONEL MARTIN HAD, BY REASON OF HIS DUTIES AND RANK, SOME CONTROL OVER THE VEHICLE INVOLVED, SUCH CONTROL DID NOT PERMIT ITS USE FOR PERSONAL PURPOSES AND THE ACTION TAKEN BY HIM IN SECURING ITS USE AT HIS HOME CONSTITUTED AN UNLAWFUL TAKING WITHOUT THE ACTUAL OR IMPLIED CONSENT OF THE OWNER. THE OFFENSE COMMITTED BY HIM IS VERY SIMILAR TO THAT PUNISHABLE UNDER THE ABOVE-QUOTED PROVISIONS OF LAW AND THUS APPEARS TO BE AN OFFENSE OF A CIVIL NATURE.

ACCORDINGLY, IT IS CONCLUDED THAT COLONEL MARTIN'S CASE COMES WITHIN THE PROHIBITION OF THE 1954 ACT AND THAT HE IS NOT ENTITLED TO RECEIVE ANY RETIRED PAY. THE VOUCHER SUBMITTED WITH YOUR LETTER WILL BE RETAINED HERE.

YOUR ATTENTION IS INVITED 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. IT WAS NOT ENACTED INTO LAW.