B-145086, APR. 17, 1961

B-145086: Apr 17, 1961

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RETIRED PAY BRANCH: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 9. IS PRECLUDED BY THE PROVISIONS OF THE ACT OF SEPTEMBER 1. HE WAS CONVICTED BY GENERAL COURT-MARTIAL OF A VIOLATION OF ARTICLE 121 OF THE UNIFORM CODE OF MILITARY JUSTICE IN 1953. THE CASE IS DISCUSSED IN THE THIRD AND FOURTH PARAGRAPHS OF YOUR LETTER. SERGEANT HALL WAS CONVICTED BY GENERAL COURT-MARTIAL OF VIOLATING ARTICLE 121 OF THE UNIFORM CODE OF MILITARY JUSTICE IN THAT HE STOLE PROPERTY OF THE UNITED STATES OF A VALUE OF ABOUT $68.61. THE SENTENCE WAS ADJUDGED ON 23 OCTOBER 1953 AND APPROVED ON 4 DECEMBER 1953. "THE MAXIMUM PERIOD OF CONFINEMENT IMPOSSIBLE FOR THE OFFENSE OF WHICH SERGEANT HALL WAS CONVICTED UNDER ARTICLE 121 WAS FIVE YEARS (SEE PARAGRAPH 127C OF MANUAL FOR COURTS-MARTIAL.

B-145086, APR. 17, 1961

TO MAJOR JOHN A. RAPP, DISBURSING OFFICER, RETIRED PAY BRANCH:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 9, 1961, FORWARDED HERE BY FIRST ENDORSEMENT FROM THE COMMANDANT OF THE MARINE CORPS UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-MC-560. YOU REQUEST A DECISION AS TO WHETHER SERGEANT JOHN L. HALL, 275153, IS PRECLUDED BY THE PROVISIONS OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 2281 -2288, FROM ENTITLEMENT TO RETAINER PAY FOLLOWING TRANSFER TO THE FLEET MARINE CORPS RESERVE UNDER 10 U.S. CODE 6330, WHICH TRANSFER OCCURRED ON JANUARY 31, 1961. HE WAS CONVICTED BY GENERAL COURT-MARTIAL OF A VIOLATION OF ARTICLE 121 OF THE UNIFORM CODE OF MILITARY JUSTICE IN 1953.

THE CASE IS DISCUSSED IN THE THIRD AND FOURTH PARAGRAPHS OF YOUR LETTER, AS FOLLOWS:

"AS EVIDENCED BY THE ATTACHMENT, SERGEANT HALL WAS CONVICTED BY GENERAL COURT-MARTIAL OF VIOLATING ARTICLE 121 OF THE UNIFORM CODE OF MILITARY JUSTICE IN THAT HE STOLE PROPERTY OF THE UNITED STATES OF A VALUE OF ABOUT $68.61. THE SENTENCE WAS ADJUDGED ON 23 OCTOBER 1953 AND APPROVED ON 4 DECEMBER 1953.

"THE MAXIMUM PERIOD OF CONFINEMENT IMPOSSIBLE FOR THE OFFENSE OF WHICH SERGEANT HALL WAS CONVICTED UNDER ARTICLE 121 WAS FIVE YEARS (SEE PARAGRAPH 127C OF MANUAL FOR COURTS-MARTIAL, PAGE 223.) THE OFFENSE IS COMPARABLE TO ONE FOUND IN SECTION 641 OF TITLE 18 OF THE UNITED STATES CODE. IT THUS SEEMS CLEAR THAT SERGEANT HALL HAS BEEN CONVICTED OF AN OFFENSE WHICH IS ANALOGOUS TO ONE OF A CIVILIAN NATURE AND WHICH MUST BE REGARDED AS A FELONY FOR THE PURPOSES OF SECTION 1 OF THE 1954 ACT. IT IS QUESTIONABLE, HOWEVER, WHETHER HE COMMITTED THE OFFENSE IN THE EXERCISE OF HIS "AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES AS A MEMBER OF THE MARINE CORPS WITHIN THE CONTEMPLATION OF THAT SECTION.'

IT IS SHOWN THAT SERGEANT HALL, WHILE ON DUTY AT RECEIVING AND CASUAL BATTALION, MARINE BARRACKS, CAMP PENDLETON, CALIFORNIA, WAS CONVICTED BY A GENERAL COURT-MARTIAL OF A VIOLATION OF ARTICLE 121 (LARCENY AND WRONGFUL APPROPRIATION) OF THE UNIFORM CODE OF MILITARY JUSTICE. THE PROPERTY STOLEN CONSISTED OF VARIOUS ITEMS OF FOOD WHICH WERE TAKEN BY HIM ON JUNE 17, 1953.

IT APPEARS FROM THE RECORD THAT ON JUNE 25 AND 26, 1953, SERGEANT HALL TOLD OFFICIALS WHO CONDUCTED AN INVESTIGATION INTO THIS MATTER THAT HIS DUTIES AS TRAINING NCO AT CASUAL COMPANY BROUGHT HIM IN CONTACT WITH A TECHNICAL SERGEANT JONES WHO WORKED AT THE MESS HALL WHERE THE FOOD WAS STORED AND WHO WAS ACCUSED OF GIVING SERGEANT HALL PERMISSION TO APPROPRIATE THE FOOD STUFFS, INASMUCH AS HE (SERGEANT HALL) HANDLED THE MESSMAN DETAIL; AND THAT IT WAS ONLY AFTER HE BECAME BETTER ACQUAINTED WITH SERGEANT JONES THAT HE BEGAN TO GET SMALL AMOUNTS OF FOOD FROM THAT MESS. HE ALSO STATED THAT HE USED A GOVERNMENT VEHICLE TO TRANSPORT THE FOOD FROM THE MESS HALL TO THE DUMP AREA WHERE HE CACHED THE FOOD. THE MARINE CORPS VEHICLE HE USED TO COMPLETE THE ACT OF LARCENY WAS OBTAINED FROM THE POST MOTOR TRANSPORT OFFICE AT CAMP PENDLETON, WHERE HE SECURED VEHICLES USED IN THE PERFORMANCE OF HIS USUAL DUTIES. IN THE CIRCUMSTANCES, IT APPEARS THAT HE WAS ABLE TO CARRY OUT THE LARCENY UNDETECTED AND UNCHALLENGED BECAUSE OF HIS APPEARANCE IN UNIFORM AND WHILE DRIVING AN OFFICIAL CAR. THE INVESTIGATIONS REPORT STATES THAT HE ADMITTED TO WALKING INTO THE GALLEY, LOCATION OF THE THEFT, AND TAKING WHATEVER HE WANTED WITHOUT BEING QUESTIONED, ALTHOUGH HE WAS UNKNOWN BY ANYONE IN THE GALLEY WITH THE EXCEPTION OF SERGEANT JONES WHO WAS ABSENT.

SECTION 1 OF THE 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 HALL'S OFFENSE WAS COMMITTED IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER OR PRIVILEGES AS A NONCOMMISSIONED OFFICER OF THE UNITED STATES MARINE CORPS. THAT VIEW IS BASED ON THE FACT THAT EXECUTION OF THE OFFENSE WAS MADE POSSIBLE BY HIS DUTY ASSIGNMENT, GIVING HIM CONTACT WITH OTHERS IN AUTHORITY AND GIVING HIM READY ENTRY WITHOUT QUESTION OR CHALLENGE TO THE MOTOR POOL WHERE HE OBTAINED A GOVERNMENT VEHICLE AND TO THE MESS HALLS AND SUPPLY STORAGE ROOMS FROM WHICH THE INVOLVED FOOD ITEMS WERE TAKEN. HE USED THE AUTHORITY ATTACHED TO HIS REGULARLY ASSIGNED DUTIES TO SECURE THE GOVERNMENT MOTOR VEHICLE WHICH MADE EXECUTION OF THE LARCENY POSSIBLE.

SINCE THE FACTS SET FORTH IN THE INVESTIGATIONS REPORT SHOW A MISUSE OF HIS "AUTHORITY, INFLUENCE, POWER OR PRIVILEGES" AS A MEMBER OF THE MARINE CORPS WITHIN THE CONTEMPLATION OF THE 1954 ACT, IT IS CONCLUDED THAT SERGEANT HALL'S OFFENSE COMES WITHIN THE PROHIBITION OF THAT ACT AND THAT AS A CONSEQUENCE, HE IS PRECLUDED FROM RECEIVING RETAINER PAY. SEE 38 COMP. GEN. 817.