B-144910, MARCH 3, 1961, 40 COMP. GEN. 487

B-144910: Mar 3, 1961

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WAS SERVING AS A TRUCKMASTER. MUST BE REGARDED AS HAVING COMMITTED THE OFFENSES- - FOR WHICH HE WAS SUBSEQUENTLY CONVICTED COURT-MARTIAL. POWER OR PRIVILEGES" AS A NONCOMMISSIONED OFFICER OF THE MARINE CORPS AS THOSE TERMS ARE USED IN SECTION 1. WHICH ARE OFFENSES ANALOGOUS TO THOSE IN SECTION 22-2204 OF THE DISTRICT OF COLUMBIA CODE AND 18 U.S.C. 499. 1961: REFERENCE IS MADE TO LETTER OF JANUARY 20. REQUESTING DECISION AS TO WHETHER UPON SUCH TRANSFER HE WILL BE PRECLUDED FROM ENTITLEMENT TO RETAINER PAY BY REASON OF THE PROVISIONS OF THE ACT OF SEPTEMBER 1. THE CASE IS DISCUSSED IN THE NEXT TO LAST PARAGRAPH OF THE LETTER OF JANUARY 20. AS FOLLOWS: THE MAXIMUM PERIODS OF CONFINEMENT IMPOSABLE FOR THE OFFENSES OF WHICH STAFF SERGEANT GRANT WAS CONVICTED UNDER ARTICLES 121 AND 134 WERE TWO AND THREE YEARS.

B-144910, MARCH 3, 1961, 40 COMP. GEN. 487

MILITARY PERSONNEL - RETIRED PAY WITHHOLDING - EFFECT OF ACT OF SEPTEMBER 1, 1954 - OFFENSE WITHIN MEMBER'S AUTHORITY AND INFLUENCE - ENLISTED MEMBER A MARINE CORPS ENLISTED MEMBER WHO, AT THE TIME OF WRONGFULLY APPROPRIATING A GOVERNMENT VEHICLE, WAS SERVING AS A TRUCKMASTER, WHICH GAVE HIM READY ACCESS TO AND FACILITATED HIS TAKING OF THE VEHICLE AND ENABLED HIM TO FALSELY AND FRAUDULENTLY WRITE A DOCUMENT PURPORTED TO BE AN OFFICIAL PASS, MUST BE REGARDED AS HAVING COMMITTED THE OFFENSES- - FOR WHICH HE WAS SUBSEQUENTLY CONVICTED COURT-MARTIAL--- WHILE IN THE EXERCISE OF HIS "AUTHORITY, INFLUENCE, POWER OR PRIVILEGES" AS A NONCOMMISSIONED OFFICER OF THE MARINE CORPS AS THOSE TERMS ARE USED IN SECTION 1, CLAUSE 2 (A) OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 2282, PROHIBITING A MEMBER CONVICTED OF SUCH OFFENSES, WHICH ARE OFFENSES ANALOGOUS TO THOSE IN SECTION 22-2204 OF THE DISTRICT OF COLUMBIA CODE AND 18 U.S.C. 499, FROM RECEIVING RETAINER PAY IN THE EVENT OF TRANSFER TO THE FLEET MARINE CORPS RESERVE.

TO THE SECRETARY OF THE NAVY, MARCH 3, 1961:

REFERENCE IS MADE TO LETTER OF JANUARY 20, 1961, FROM THE UNDER SECRETARY OF THE NAVY, STATING THAT STAFF SERGEANT LEWIS C. GRANT, 259464, U.S. MARINE CORPS, HAS ASKED THAT HE BE TRANSFERRED TO THE FLEET MARINE CORPS RESERVE UNDER THE PROVISIONS OF 10 U.S.C. 6330 (B), AND REQUESTING DECISION AS TO WHETHER UPON SUCH TRANSFER HE WILL BE PRECLUDED FROM ENTITLEMENT TO RETAINER PAY BY REASON OF THE PROVISIONS OF THE ACT OF SEPTEMBER 1, 1954 (68 STAT. 1142, 5 U.S.C. 2281-2288), IN VIEW OF HIS CONVICTION BY SUMMARY COURT-MARTIAL OF VIOLATIONS OF ARTICLES 121 AND 134, 10 U.S.C. 921 AND 934, OF THE UNIFORMED MILITARY CODE OF JUSTICE. THE REQUEST FOR DECISION HAS BEEN ASSIGNED SUBMISSION NO. SS-N/MC/-566 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE CASE IS DISCUSSED IN THE NEXT TO LAST PARAGRAPH OF THE LETTER OF JANUARY 20, 1961, AS FOLLOWS:

THE MAXIMUM PERIODS OF CONFINEMENT IMPOSABLE FOR THE OFFENSES OF WHICH STAFF SERGEANT GRANT WAS CONVICTED UNDER ARTICLES 121 AND 134 WERE TWO AND THREE YEARS, RESPECTIVELY. (SEE PARAGRAPH 127C OF THE MANUAL FOR COURTS- MARTIAL, PAGES 223 AND 226.) THESE OFFENSES APPEAR TO BE ANALOGOUS TO THOSE FOUND IN SECTION 22-2204 OF THE DISTRICT OF COLUMBIA CODE AND SECTION 499 OF TITLE 18 OF THE UNITED STATES CODE. IT IS QUESTIONABLE, HOWEVER, WHETHER STAFF SERGEANT GRANT COMMITTED THE OFFENSES IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER OR PRIVILEGES AS A MEMBER OF THE MARINE CORPS WITHIN THE CONTEMPLATION OF SECTION 1 OF THE 1954 ACT. THIS, THEN, IS THE MATTER FOR RESOLUTION.

IT IS SHOWN THAT STAFF SERGEANT GRANT, WHILE ON DUTY WITH HEADQUARTERS AND SERVICE COMPANY, 7TH MARINES, ST MARINE DIVISION (1REINFORCED), FLEET MARINE FORCE, IN THE FIELD, KOREA, WAS CONVICTED BY A SUMMARY COURT- MARTIAL OF VIOLATION OF ARTICLE 121 (1LARCENY AND WRONGFUL APPROPRIATION) AND OF VIOLATION OF ARTICLE 134 (1GENERAL ARTICLE) OF THE UNIFORMED CODE OF MILITARY JUSTICE. THE SPECIFICATIONS FOR SUCH VIOLATIONS WERE THAT HE DID, ON OR ABOUT FEBRUARY 15, 1954,"WRONGFULLY APPROPRIATE A 1/4 TON 4 X 4 TRUCK, OF A VALUE OF ABOUT $2160.00, THE PROPERTY OF 7TH MARINE MOTORS TRANSPORT SECTION," AND THAT HE DID, AT THE SAME TIME,"WRONGFULLY AND FALSELY MAKE, USE, AND HAVE IN HIS POSSESSION WITH INTENT TO DECEIVE, A CERTAIN INSTRUMENT PURPORTING TO BE AN OFFICIAL PASS (1DD 110, TRIP TICKET, FORM) THE SAID SERGEANT GRANT, THEN WELL KNOWING THE SAME TO BE UTHORIZED.'

IT APPEARS FROM THE RECORD OF THE COURT-MARTIAL THAT SERGEANT GRANT TESTIFIED THAT UNTIL A WEEK BEFORE THE TIME INVOLVED HE HAD BEEN REGIMENTAL DISPATCHER FOR ABOUT THREE MONTHS; THAT AT THE TIME INVOLVED HE ENTERED THE DISPATCHER'S OFFICE AND FOUND HIM ABSENT; THAT WHILE THE DISPATCHER WAS SO ABSENT HE ANSWERED A TELEPHONE CALL FOR A JEEP TO BE SENT TO A CERTAIN DESTINATION; AND THAT HE WROTE OUT A TRIP TICKET AND AUTHORIZED ANOTHER ENLISTED MAN (OF INFERIOR RANK) TO DELIVER THE JEEP TO THAT DESTINATION. IT FURTHER APPEARS THAT SUCH ENLISTED MAN, ACCOMPANIED BY SERGEANT GRANT, HAD DRIVEN ONLY A SHORT DISTANCE WHEN THE JEEP BECAME ENTANGLED IN THE BARBED WIRE WHICH WAS ACROSS THE ROAD. TESTIMONY OF WITNESSES FOR THE PROSECUTION WAS TO THE EFFECT THAT NO TELEPHONE CALL HAD BEEN MADE REQUESTING THE DISPATCH OF THE JEEP IN QUESTION AND, FURTHER, THAT SERGEANT GRANT WAS THEN TRUCKMASTER AND HAD NO AUTHORITY TO WRITE TRIP TICKETS. THE COURT FOUND HIM GUILTY OF ALL CHARGES AND SPECIFICATIONS. THE REVIEWING AUTHORITY UPHELD THE CONVICTION AND HE WAS SENTENCED TO BE REDUCED TO THE GRADE OF CORPORAL.

SECTION 1 OF THAT ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 2282, PROVIDES IN PART THAT---

THERE SHALL NOT BE PAID TO ANY PERSON CONVICTED PRIOR TO, ON, OR AFTER SEPTEMBER 1, 1954, 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 SEPTEMBER 1, 1954, 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) 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 * * *

IT IS OUR VIEW THAT SERGEANT GRANT'S OFFENSE OF WRONGFULLY APPROPRIATING THE MOTOR VEHICLE WAS COMMITTED IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES AS A NONCOMMISSIONED OFFICER OF THE U.S. MARINE CORPS. THAT VIEW IS PREMISED ON THE ASSUMPTION THAT HIS BEING A MEMBER OF THE MILITARY SERVICE, PARTICULARLY HIS BEING TRUCKMASTER, GAVE HIM READY ACCESS TO AND THUS FACILITATED HIS USE OF THE VEHICLE. FOR THE SAME REASON IT IS ALSO OUR VIEW THAT THE OTHER OFFENSE OF WHICH HE WAS FOUND GUILTY LIKEWISE WAS COMMITTED AS A RESULT OF SUCH AUTHORITY, INFLUENCE, POWER OR PRIVILEGES. ACCORDINGLY, IT IS CONCLUDED THAT SERGEANT GRANT'S CASE WOULD COME WITHIN THE PROHIBITION OF THE 1954 ACT AND THAT IF HE WERE TRANSFERRED TO THE FLEET MARINE CORPS RESERVE HE WOULD NOT BE ENTITLED TO RECEIVE ANY RETAINER PAY.