B-145448, MAY 22, 1961, 40 COMP. GEN. 635

B-145448: May 22, 1961

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OF MEMBER WHEN A COURT-MARTIAL RECORD DOES NOT ESTABLISH THAT A MEMBER OF THE UNIFORMED SERVICES WHO WAS CONVICTED ON THE BASIS OF A PLEA OF GUILTY. IT IS NEITHER NECESSARY NOR APPROPRIATE TO REQUEST THE MEMBER TO FURNISH INFORMATION CONCERNING THE CIRCUMSTANCES OF THE OFFENSE TO DETERMINE WHETHER IT WAS COMMITTED IN THE ABUSE OF HIS OFFICE OR POSITION. IN THE ABSENCE OF EVIDENCE IN THE RECORD THAT THE OFFENSE WAS COMMITTED IN THE EXERCISE OF THE MEMBER'S AUTHORITY. PAYMENT OF RETIRED PAY IS NOT PROHIBITED UNDER THE 1954 ACT. WHERE A MARINE CORPS ENLISTED MEMBER ASSIGNED TO DUTY AS A HORSE PATROLMAN WAS CONVICTED BY A COURT-MARTIAL. - AN OFFENSE WHICH IS A FELONY. - AND THE COURT-MARTIAL RECORD DOES NOT ESTABLISH THAT THE OFFENSE WAS COMMITTED "IN THE EXERCISE OF HIS AUTHORITY.

B-145448, MAY 22, 1961, 40 COMP. GEN. 635

MILITARY PERSONNEL - RETIRED PAY - EFFECT OF ACT OF SEPTEMBER 1, 1954 - OFFENSES WITHIN AUTHORITY, INFLUENCE, ETC; OF MEMBER WHEN A COURT-MARTIAL RECORD DOES NOT ESTABLISH THAT A MEMBER OF THE UNIFORMED SERVICES WHO WAS CONVICTED ON THE BASIS OF A PLEA OF GUILTY, OF AN OFFENSE COGNIZABLE AS A FELONY UNDER THE LAWS OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA, COMMITTED THE OFFENSE IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER OR PRIVILEGES AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT WITHIN THE MEANING OF SECTION 1, CLAUSE 2, OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 2282, IT IS NEITHER NECESSARY NOR APPROPRIATE TO REQUEST THE MEMBER TO FURNISH INFORMATION CONCERNING THE CIRCUMSTANCES OF THE OFFENSE TO DETERMINE WHETHER IT WAS COMMITTED IN THE ABUSE OF HIS OFFICE OR POSITION; THEREFORE, IN THE ABSENCE OF EVIDENCE IN THE RECORD THAT THE OFFENSE WAS COMMITTED IN THE EXERCISE OF THE MEMBER'S AUTHORITY, INFLUENCE, POWER OR PRIVILEGE, PAYMENT OF RETIRED PAY IS NOT PROHIBITED UNDER THE 1954 ACT. WHERE A MARINE CORPS ENLISTED MEMBER ASSIGNED TO DUTY AS A HORSE PATROLMAN WAS CONVICTED BY A COURT-MARTIAL, UPON A PLEA OF GUILTY, OF THE WRONGFUL APPROPRIATION OF A GOVERNMENT VEHICLE--- AN OFFENSE WHICH IS A FELONY--- AND THE COURT-MARTIAL RECORD DOES NOT ESTABLISH THAT THE OFFENSE WAS COMMITTED "IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER OR PRIVILEGES" AS A MARINE CORPS MEMBER, AS THAT PHRASE IS USED IN SECTION 1, CLAUSE 2, OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 2282, NOR SHOW ANY APPARENT RELATIONSHIP BETWEEN THE DUTY ASSIGNMENT AND THE OPPORTUNITY TO COMMIT THE OFFENSE, PAYMENT OF RETIRED PAY TO THE MEMBER UPON TRANSFER TO THE FLEET MARINE CORPS RESERVE IS NOT PROHIBITED BY THE ACT OF SEPTEMBER 1, 1954.

TO THE SECRETARY OF THE NAVY, MAY 22, 1961:

ON MARCH 25, 1961, THE UNDER SECRETARY OF THE NAVY REQUESTED OUR DECISION AS TO WHETHER A CERTAIN OFFENSE COMMITTED BY GUNNERY SERGEANT STEVE J. PRNJAT, 307028, UNITED STATES MARINE CORPS, WAS COMMITTED "IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER OR PRIVILEGES MEMBER OF THE MARINE CORPS, WITHIN THE CONTEMPLATION OF SECTION THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1142, 5 U.S.C. 2282. THE REQUEST IS STATED TO HAVE BEEN CLEARED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AND ASSIGNED SUBMISSION NO. SS-N-) MC/-566.

THE LETTER STATES THAT SERGEANT PRNJAT WAS CONVICTED BY SUMMARY COURT- MARTIAL ON APRIL 13, 1949, OF WILFULLY, KNOWINGLY, AND WITHOUT PROPER AUTHORITY APPLYING TO HIS OWN USE A MOTOR VEHICLE BELONGING TO THE UNITED STATES IN THAT HE TOOK THE VEHICLE FROM THE SAN MATEO BARRACKS, NORTHERN PATROL SECTOR OF CAMP PENDLETON, OCEANSIDE, CALIFORNIA, AND USED IT FOR THE PURPOSE OF CARRYING HIMSELF TO LOS ANGELES, CALIFORNIA. IT IS CONCEDED THAT IT IS CLEAR THAT SERGEANT PRNJAT WAS CONVICTED OF VIOLATING THE EIGHTH CLAUSE OF ARTICLE 14 OF THE ARTICLES FOR THE GOVERNMENT OF THE NAVY; THAT THE MAXIMUM PERIOD OF CONFINEMENT IMPOSABLE FOR THE OFFENSE OF WHICH HE WAS CONVICTED WAS FIVE YEARS; THAT THE OFFENSE IS COMPARABLE TO ONE FOUND IN SECTION 22 2204 OF THE DISTRICT OF COLUMBIA CODE (1940 EDITION); AND THAT HE WAS CONVICTED OF AN OFFENSE WHICH IS ANALOGOUS TO ONE OF A CIVIL NATURE AND WHICH MUST BE REGARDED AS A FELONY FOR THE PURPOSES OF SECTION 1 OF THE 1954 ACT.

DOUBT IN THE MATTER OF THE APPLICABILITY OF SECTION 1 OF THE ACT TO THE OFFENSE ARISES FROM THE CIRCUMSTANCES THAT HE PLEADED GUILTY AND THAT NO DETAILED INFORMATION WAS ADDUCED AT THE TRIAL TO SHOW THE MANNER IN WHICH HE COMMITTED THE OFFENSE. THE RECORDS DO NOT SHOW WHAT DUTIES, IF ANY, HE WAS ACTUALLY PERFORMING AT THE TIME THE OFFENSE WAS COMMITTED, HE HAVING BEEN ASSIGNED DUTIES AS A HORSE PATROLMAN AT THAT TIME.

THE QUESTIONS PRESENTED ARE, IN EFFECT, WHETHER THE DETERMINATION THAT THE OFFENSE WAS COMMITTED IN THE EXERCISE OF THE ACCUSED'S AUTHORITY, INFLUENCE, POWER OR PRIVILEGES MAY BE BASED SOLELY ON AVAILABLE COURT AND ALLIED RECORDS (PRETRIAL INVESTIGATIONS AND STATEMENTS IN MITIGATION), WHETHER THERE MUST ALSO BE CONSIDERED OTHER RECORDS, SUCH AS, FOR EXAMPLE, DAMAGE REPORTS IN THE MOTOR VEHICLE THEFT CASES, AND WHETHER STATEMENTS MUST BE OBTAINED FROM THE MEMBER OR ATTEMPTS MADE TO INVESTIGATE THE MATTER INDEPENDENTLY OF THE TRIAL RECORD.

THE PURPOSE OF THE ACT OF SEPTEMBER 1, 1954, IS TO BAR PAYMENT OF AN ANNUITY OR RETIRED PAY WITHIN ITS PROVISIONS. 35 COMP. GEN. 302. SECTION 1, CLAUSE 2, OF THE ACT PROHIBITS SUCH PAYMENTS TO PERSONS CONVICTED ANY OFFENSE, WITH CERTAIN EXCEPTIONS, WHICH IS A FELONY UNDER THE THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA, IF COMMITTED UNDER CIRCUMSTANCES INVOLVING OR RELATING TO THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT. WE HAVE HELD THAT THE ACT IS PENAL IN NATURE AND THEREFORE SHOULD BE STRICTLY CONSTRUED WITH THE RESULT THAT THE ACT SHOULD BE APPLIED ONLY IN CASES WHERE THE COURT-MARTIAL RECORD CLEARLY ESTABLISHES THAT THE MEMBER COMMITTED A FELONY OF THE CLASS COVERED BY THE ACT. 35 COMP. GEN. 302; 38 COMP. GEN. 310; 40 COMP. GEN. 45; 40 COMP. GEN. 364.

IN 38 COMP. GEN. 310 WE HELD IN EFFECT THAT WHERE THE MEMBER PLEADED GUILTY THERE WOULD BE NO BASIS FOR CONCLUDING THAT PAYMENT OF RETIRED PAY IS PROHIBITED BY THE 1954 ACT IF THE FORMAL CHARGES AND SPECIFICATIONS DO NOT SHOW THAT THE ACCUSED WAS CHARGED WITH AND CONVICTED OF A FELONY CONTEMPLATED BY THE 1954 ACT AND IF NO EVIDENCE OR INSUFFICIENT EVIDENCE IS CONTAINED IN THE TRIAL RECORD TO ESTABLISH THE COMMISSION OF SUCH A FELONY.

IN 38 COMP. GEN. 817 WE CONSIDERED THE QUESTION OF WHETHER A FELONY OF WHICH A PERSON WAS CONVICTED AS "COMMITTED IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES" AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT MUST BE BASED SOLELY ON THE LANGUAGE OF THE CHARGES AND SPECIFICATIONS OF WHICH THE ACCUSED WAS TRIED AND CONVICTED, OR WHETHER EVIDENCE CONTAINED IN THE RECORD OF TRIAL MAY BE USED AS A BASIS FOR DETERMINATION. CONSIDERATION WAS GIVEN TO THE FACT THAT MILITARY LAW DOES NOT REQUIRE THAT THE ELEMENT INVOLVING THE COMMISSION OF AN OFFENSE IN THE CAPACITY OF AN OFFICER OR EMPLOYEE OF THE GOVERNMENT BE ALLEGED AND THAT ELEMENT WOULD ONLY RARELY APPEAR IN THE CHARGES AND SPECIFICATIONS WITH THE RESULT THAT DETERMINATION OF THE PRESENCE OF SUCH ELEMENT IN MOST CASES WOULD HAVE TO BE MADE, IF AT ALL, FROM AN ANALYSIS OF THE EVIDENCE ADDUCED AT THE TRIAL. CONSIDERATION WAS ALSO GIVEN TO THE SUGGESTION THAT IF A PLEA OF GUILTY IS ENTERED IN SUCH CASES UNDER CIRCUMSTANCES WHERE ALLIED PAPERS INDICATE THAT THE OFFENSE WAS COMMITTED IN THE EXERCISE OF SOME OFFICE OR AUTHORITY, BUT THE SPECIFICATIONS DO NOT SO INDICATE AND NO EVIDENCE IS SUBMITTED, AN INCONGRUITY WOULD RESULT IN THAT NO PROPER BASIS WOULD EXIST UNDER OUR DECISION IN 38 COMP. GEN. 310 FOR A DETERMINATION OF THE ELEMENT OF ABUSE OF OFFICE, AUTHORITY, OR POSITION.

WE JUSTIFIED THAT DECISION ON THE BASIS THAT THE STATUTORY AND REGULATORY PROVISIONS INVOLVED CONTEMPLATED AND REQUIRED THAT THE ACCUSED HAVE AMPLE OPPORTUNITY TO HEAR AND ANSWER THE CHARGES RAISED AGAINST HIM PRIOR TO HIS CONVICTION, AN OPPORTUNITY ARISING IN CASES WHERE GUILTY PLEAS ARE ENTERED ONLY IF THE CHARGES AND SPECIFICATIONS SET FORTH CLEARLY AND CONCISELY AN OFFENSE CONTEMPLATED BY THE 1954 ACT. WE STATED FURTHER THEREIN THAT IF, HOWEVER, A TRIAL IS HELD AND EVIDENCE THAT THE PARTICULAR FELONY INVOLVED WAS COMMITTED IN THE CAPACITY OF AN OFFICER OR EMPLOYEE OF THE GOVERNMENT IS FIRST DEVELOPED IN THE COURSE OF THE TRIAL, THE ACCUSED, NEVERTHELESS, WOULD HAVE AN OPPORTUNITY TO HEAR AND ANSWER THE EVIDENCE AGAINST HIM PRIOR TO HIS CONVICTION. WE CONCLUDED THAT, EVEN THOUGH SUCH EVIDENCE DID NOT APPEAR IN THE CHARGES AND SPECIFICATIONS, THE TRIAL RECORD PROPERLY MAY BE CONSIDERED IN THE DETERMINATION THAT THE ACCUSED WAS CONVICTED OF AN OFFENSE WITHIN THE SCOPE OF SECTION 1, CLAUSE 2, OF THE 1954 ACT.

IT FOLLOWS FROM WHAT HAS BEEN SAID IN 38 COMP. GEN. 310 AND 38 COMP. GEN. 817 THAT THE RECORD WHICH MAY BE USED IN MAKING THE DETERMINATION HERE INVOLVED MUST NECESSARILY BE CONFINED TO THOSE OFFICIAL RECORDS MADE IN CONNECTION WITH THE COURT-MARTIAL TRIAL AND TO WHICH INFORMATION THE ACCUSED HAS BEEN AFFORDED AN OPPORTUNITY OF REBUTTAL. ACCIDENT REPORTS AND SIMILAR RECORDS (OTHER THAN OFFICIAL RECORDS SHOWING THE MEMBER'S DUTY ASSIGNMENT AND THE NATURE OF HIS DUTIES) COMPILED UNDER CIRCUMSTANCES WHERE THE MEMBER WAS NOT SHOWN THE WHOLE RECORD AND GIVEN AN OPPORTUNITY TO CROSS-EXAMINE ADVERSE WITNESSES AND PRESENT WITNESSES IN HIS OWN BEHALF SHOULD NOT BE CONSULTED, SINCE THEY MAY CONTAIN UNRELIABLE INFORMATION AND TO CONSIDER SUCH RECORDS WOULD VIOLATE THE FUNDAMENTAL RULES OF FAIRNESS THAT ARE BASIC TO OUR SYSTEM OF GOVERNMENT.

IN SUMMARY, WHERE THE COURT-MARTIAL RECORD AND STATEMENTS OF THE MEMBER INCIDENT TO THE COURT-MARTIAL TRIAL (SEE 40 COMP. GEN. 45 AND 40 COMP. GEN. 364) DO NOT CLEARLY AND AFFIRMATIVELY ESTABLISH THAT THE MEMBER COMMITTED THE OFFENSE IN THE EXERCISE OF THE AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT, PAYMENT OF RETIRED PAY IS AUTHORIZED. WE DO NOT THINK THAT IT IS EITHER NECESSARY OR APPROPRIATE TO REQUEST THE MEMBER TO FURNISH ANY STATEMENT CONCERNING THE CIRCUMSTANCES UNDER WHICH THE OFFENSE WAS COMMITTED WHERE THE RECORD DOES NOT CLEARLY ESTABLISH THAT IT WAS COMMITTED IN ABUSING HIS OFFICE OR POSITION.

NOTHING IN THE COURT-MARTIAL RECORD SUBMITTED IN THE INSTANT CASE CLEARLY ESTABLISHES THAT THE MEMBER COMMITTED THE OFFENSE HERE INVOLVED IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES AS A HORSE PATROLMAN, EVEN THOUGH, IF ALL THE PERTINENT FACTS WERE REFLECTED BY THE COURT-MARTIAL RECORD, IT MIGHT BE CLEAR THAT IT WAS SOLELY BY VIRTUE OF HIS DUTY ASSIGNMENT THAT HE HAD READY ACCESS TO, AND OTHERWISE THAT HE COULD NOT HAVE SUCCESSFULLY OBTAINED, THE VEHICLE HE USED UNLAWFULLY. THE FACT THAT AS A MEMBER OF THE MILITARY SERVICE HE HAD SOMEWHAT MORE READY ACCESS TO THE VEHICLE THAN WOULD A CIVILIAN OR STRANGER DOES NOT, IN OUR OPINION, IN ITSELF ESTABLISH OR TEND TO ESTABLISH THAT THE OFFENSE WAS COMMITTED IN THE EXERCISE OF HIS AUTHORITY, POWER, INFLUENCE, OR PRIVILEGES AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT. IN DECISIONS OF MARCH 3, 1961, 40 COMP. GEN. 487, AND APRIL 17, 1961, B-145086, THE COURT- MARTIAL RECORD AFFIRMATIVELY SHOWED THAT THE SPECIFIC DUTY ASSIGNMENT AND DUTIES PERFORMED BY THE MEMBERS PROVIDED THEM THE OPPORTUNITY TO AND FACILITATED THE COMMISSION OF THE OFFENSES INVOLVED. ABSENT AN IMMEDIATE RELATION TO THE MEMBER'S DUTY ASSIGNMENT READILY APPARENT FROM THE COURT- MARTIAL RECORD, WE THINK THAT THE MEMBER SHOULD BE PAID HIS RETIRED OR RETAINER PAY, AS THE CASE MAY BE.

ACCORDINGLY, SINCE THE COURT-MARTIAL RECORD IN THIS CASE DOES NOT CLEARLY AND AFFIRMATIVELY ESTABLISH THAT THE MEMBER COMMITTED THE OFFENSE HERE INVOLVED "IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES" AS A MEMBER OF THE MARINE CORPS, PAYMENT OF RETAINER PAY TO SERGEANT PRNJAT WILL BE AUTHORIZED UPON HIS TRANSFER TO THE FLEET MARINE CORPS RESERVE, IF OTHERWISE CORRECT.