B-145097, MAY 8, 1961

B-145097: May 8, 1961

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WAS TRANSFERRED FROM THE REGULAR MARINE CORPS TO THE FLEET MARINE CORPS RESERVE UNDER 10 U.S.C. 6330 AND RELEASED FROM ACTIVE DUTY. REQUESTING A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT OF RETAINER PAY TO HIM AFTER JANUARY 31. IT APPEARS THAT SERGEANT MELTON WAS TRIED AND CONVICTED BY SUMMARY COURT- MARTIAL ON FEBRUARY 21. WHICH SAID CIGARETTES WERE PRESENTED AND CAUSED TO BE PRESENTED TO THE SAID INVENTORY TEAM KNOWINGLY. "OTHERWISE HE IS TO BE DISCHARGED WITH A BAD- CONDUCT DISCHARGE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 476. WERE APPROVED BY THE IMMEDIATE SUPERIOR IN COMMAND. SINCE SERGEANT MELTON WAS TRIED BY SUMMARY COURT-MARTIAL. NO CHARGE AS SUCH WAS PREFERRED.

B-145097, MAY 8, 1961

TO MAJOR JOHN A. RAPP, DISBURSING OFFICER:

BY FIRST ENDORSEMENT DATED FEBRUARY 14, 1961, THE COMMANDANT OF THE MARINE CORPS FORWARDED YOUR LETTER OF FEBRUARY 14, 1961, CDH/JR, STATING THAT ON JANUARY 31, 1961, MASTER SERGEANT LEONARD B. MELTON, JR., 275675, WAS TRANSFERRED FROM THE REGULAR MARINE CORPS TO THE FLEET MARINE CORPS RESERVE UNDER 10 U.S.C. 6330 AND RELEASED FROM ACTIVE DUTY, AND REQUESTING A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT OF RETAINER PAY TO HIM AFTER JANUARY 31, 1961, IN VIEW OF THE PROVISIONS OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1142, 5 U.S.C. 2281-2288. THE REQUEST FOR DECISION HAS BEEN ASSIGNED SUBMISSION NO. DO-MC-561 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT SERGEANT MELTON WAS TRIED AND CONVICTED BY SUMMARY COURT- MARTIAL ON FEBRUARY 21, 1949, OF THE FOLLOWING OFFENSE:

"SPECIFICATION. IN THAT LEONARD BRISCOE MELTON, JUNIOR, (275675), TECHNICAL SERGEANT, U.S. MARINE CORPS, ATTACHED TO AND WHILE SO SERVING WITH HEADQUARTERS AND SERVICE BATTALION, MARINE CORPS RECRUIT DEPOT, PARRIS ISLAND, SOUTH CAROLINA, AND WHILE REGULARLY ASSIGNED AS POST EXCHANGE CLERK IN CHARGE OF THE WEAPONS TRAINING BATTALION BRANCH OF THE POST EXCHANGE AT THE SAID DEPOT, DID, ON OR ABOUT JANUARY 6, 1949, KNOWINGLY PRESENT AND CAUSE TO BE PRESENTED TO THE POST EXCHANGE COUNCIL INVENTORY TEAM AT THE SAID DEPOT, THREE CASES OF CIGARETTES OF THE SELL VALUE OF ABOUT TWO HUNDRED TWENTY-FIVE DOLLARS ($225.00) AS MERCHANDISE REGULARLY INVOICED FROM THE POST EXCHANGE STOREROOM TO THE SAID BRANCH OF THE POST EXCHANGE; WHEREAS, IN TRUTH AND IN FACT, THE SAID CIGARETTES, OF THE QUANTITIES AND VALUES AFORESAID, HAD BEEN KNOWINGLY BORROWED BY HIM, THE SAID MELTON, FROM THE STOCK OF THE STAFF NONCOMMISSIONED OFFICERS' CLUB AT THE SAID DEPOT; WHICH SAID CIGARETTES WERE PRESENTED AND CAUSED TO BE PRESENTED TO THE SAID INVENTORY TEAM KNOWINGLY, WILFULLY, AND WITH INTENT TO CONCEAL A SHORTAGE IN THE ACCOUNTS OF THE SAID BRANCH OF THE POST EXCHANGE.'

THE RECORD OF THE COURT-MARTIAL SHOWS THAT SERGEANT MELTON PLEADED GUILTY TO THE SPECIFICATION AND THAT THE COURT THEN SENTENCED HIM TO LOSE $70 PER MONTH OF HIS PAY FOR A PERIOD OF 6 MONTHS, A TOTAL OF $420, AND TO BE DISCHARGED FROM THE UNITED STATES NAVAL SERVICE WITH A BAD-CONDUCT DISCHARGE. ON FEBRUARY 25, 1949, THE CONVENING AUTHORITY APPROVED THE SENTENCE IN THE CASE, BUT REMITTED THE BAD-CONDUCT DISCHARGE ON CONDITION THAT MELTON MAINTAIN A RECORD SATISFACTORY TO HIS COMMANDING OFFICER DURING A PERIOD OF 6 MONTHS,"OTHERWISE HE IS TO BE DISCHARGED WITH A BAD- CONDUCT DISCHARGE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 476, NAVAL COURTS AND BOARDS.' ON FEBRUARY 28, 1949, THE PROCEEDINGS, FINDINGS, AND SENTENCE, AS MITIGATED, WERE APPROVED BY THE IMMEDIATE SUPERIOR IN COMMAND.

YOU SAY THAT, UNLIKE PARAGRAPH 213D (6) OF THE MANUAL FOR COURT MARTIAL, 1951, THE PUBLICATION ENTITLED "NAVAL COURTS AND BOARDS" DID NOT DEFINE THE TERM "FELONY.' YOU ALSO SAY THAT, SINCE SERGEANT MELTON WAS TRIED BY SUMMARY COURT-MARTIAL, NO CHARGE AS SUCH WAS PREFERRED, AND THAT THE SPECIFICATION DID NOT STATE THAT THE OFFENSE WAS COMMITTED IN VIOLATION OF ANY PROVISION IN THE ARTICLES FOR THE GOVERNMENT OF THE NAVY OR IN BREACH OF ANY OTHER STATUTORY PROVISION. YOUR LETTER SHOWS THAT YOU HAVE FOUND NO PROVISION IN THE ARTICLES FOR THE GOVERNMENT OF THE NAVY WHICH SPECIFICALLY COVERS THE OFFENSE OF WHICH SERGEANT MELTON WAS CONVICTED AND THAT IT WOULD SEEM THAT THE SPECIFICATION WAS PREFERRED UNDER ONE OF THE GENERAL PROVISIONS OF SUCH ARTICLES. YOU INDICATE THAT THE GENERAL CHARGE OF "SCANDALOUS CONDUCT TENDING TO THE DESTRUCTION OF GOOD MORALS" UNDER ARTICLE 22 OR THE FIRST CLAUSE OF ARTICLE 8 COULD CONCEIVABLY BE CONSIDERED AS APPLICABLE OR THAT PERHAPS SERGEANT MELTON COULD SIMPLY BE CONSIDERED AS HAVING BEEN CONVICTED UNDER ARTICLE 22 OF AN OFFENSE STATED IN TITLE 18 OF THE U.S.C. SPECIFICALLY 18 U.S.C. 80 (1946 EDITION), THE SEEMINGLY PERTINENT PART OF WHICH IS NOW CODIFIED AS 18 U.S.C. 1001. YOU SAY THAT IF THE SPECIFICATION IN QUESTION WAS PREFERRED UNDER ANY OF SUCH PROVISIONS, IT WOULD APPEAR THAT THE MAXIMUM SENTENCE IMPOSABLE EXCEEDED 1 YEAR (ARTICLE 22 AND PARAGRAPH 1 OF ARTICLE 8, SECTION 457, NAVAL COURTS AND BOARDS), AND THAT THE OFFENSE WAS ANALOGOUS TO ONE OF A CIVIL NATURE (18 U.S.C. 80, 1946 EDITION).

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 * * *.'

IN OUR DECISION OF NOVEMBER 29, 1955, B-125744, 35 COMP. GEN. 302, WE POINTED OUT THAT THE PURPOSE OF THE ACT OF SEPTEMBER 1, 1954, IS TO BAR PAYMENT OF ANY ANNUITY OR RETIRED PAY TO ANY PERSON WHO COMMITS AN ACT OR AN OFFENSE COMING WITHIN ITS PROVISIONS AND THAT IT IS THUS A STATUTE WHICH IS MAINLY PENAL IN NATURE. ALSO, WE THERE STATED THAT IT IS AN ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT STATUTES WHICH IMPOSE PENALTIES OR FORFEITURES ARE TO BE CONSTRUED STRICTLY AND THAT THERE APPEARS TO BE NO REASON WHY THE ACT OF SEPTEMBER 1, 1954, SHOULD BE REGARDED AS BEING APPLICABLE TO SITUATIONS WHICH ARE NOT EXPRESSLY COVERED BY ITS PROVISIONS.

WE HAVE HELD, ALSO, THAT A DETERMINATION 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 1 YEAR AND (2) WHETHER THE OFFENSE IS OF A CIVIL NATURE. B-127022, MAY 11, 1956. IN CASES WHERE THE SENTENCE IMPOSABLE FOR THE OFFENSE FOR WHICH THE INDIVIDUAL WAS CONVICTED EXCEEDS 1 YEAR, REFERENCE SHOULD BE MADE TO THE UNITED STATES CODE OR TO 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 THE PURPOSES OF THE ACT OF SEPTEMBER 1, 1954. B-143495, AUGUST 10, 1960.

AN EXAMINATION OF NAVAL COURTS AND BOARDS, 1937, DOES NOT ESTABLISH PRECISELY THE CHARGE ON WHICH SERGEANT MELTON WAS CONVICTED. INFORMATION INFORMALLY OBTAINED FROM THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, HOWEVER, INDICATES THAT CONSIDERING THE SPECIFICATION INVOLVED A PROPER CHARGE COULD HAVE BEEN "FALSEHOOD" UNDER ARTICLE 8 OF THE ARTICLES FOR THE GOVERNMENT OF THE NAVY, FOR WHICH SECTION 457 OF NAVAL COURTS AND BOARDS PRESCRIBED A MAXIMUM PUNISHMENT OF CONFINEMENT FOR 6 MONTHS. THUS APPEARS THAT NOT ALL THE CHARGES WHICH COULD HAVE COVERED THE OFFENSE INVOLVED WERE PUNISHABLE BY CONFINEMENT FOR MORE THAN 1 YEAR SINCE IT REASONABLY APPEARS THAT THERE WAS A PROPER CHARGE COVERING THE OFFENSE INVOLVED FOR WHICH A MAXIMUM PUNISHMENT OF CONFINEMENT FOR 6 MONTHS WAS PRESCRIBED.

ACCORDINGLY, IT MUST BE CONCLUDED THAT THE RECORD FAILS TO ESTABLISH THAT SERGEANT MELTON WAS CONVICTED OF A FELONY WITHIN THE MEANING OF THE LAW. SEE 38 COMP. GEN. 310 AT 312. YOU ARE THEREFORE AUTHORIZED TO MAKE PAYMENT OF RETAINER PAY TO HIM AFTER JANUARY 31, 1961.