B-145575, APRIL 27, 1961, 40 COMP. GEN. 601

B-145575, APRIL 27, 1961, 40 COMP. GEN. 601

MILITARY PERSONNEL - RETIRED PAY - EFFECT OF ACT OF SEPTEMBER 1, 1954 - FELONY DETERMINATION THE MAXIMUM IMPOSABLE SENTENCE BY COURT-MARTIAL OF AN ENLISTED MEMBER CONVICTED OF USING UNAUTHORIZED MEANS OF COMMUNICATION TO EVADE CENSORSHIP BEING 6 MONTHS UNDER PARAGRAPH 127 (C) OF THE MANUAL FOR COURTS-MARTIAL, 1951, SUCH OFFENSE DOES NOT CONSTITUTE A FELONY UNDER 18 U.S.C. 1, WHICH SPECIFIES A PUNISHMENT OF DEATH OR IMPRISONMENT FOR A TERM EXCEEDING 1 YEAR; AND, THEREFORE, THE OFFENSE DOES NOT COME WITHIN SECTION 1, CLAUSE (2) OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 2282, SO AS TO PRECLUDE THE PAYMENT OF RETIRED PAY TO THE MEMBER.

TO THE SECRETARY OF THE AIR FORCE, APRIL 27, 1961:

REFERENCE IS MADE TO LETTER OF APRIL 6, 1961, WITH ENCLOSURES, FROM THE EXECUTIVE, CONGRESSIONAL INQUIRY DIVISION, OFFICE OF LEGISLATIVE LIAISON, DEPARTMENT OF THE AIR FORCE, REQUESTING A DECISION WHETHER SENIOR MASTER SERGEANT WILLIE G. LOPEZ, AF 6950336, WILL BE PRECLUDED FROM RECEIVING RETIRED PAY FROM THE AIR FORCE BY REASON OF THE PROVISIONS OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1142, 5 U.S.C. 2281, ET SEQ., IN VIEW OF HIS CONVICTION BY SUMMARY COURT-MARTIAL.

ON MARCH 14, 1961, THE ENLISTED MAN WROTE TO THE PRESIDENT OF THE UNITED STATES THAT HE WILL COMPLETE 20 YEARS' SERVICE IN JUNE 1961 AND THAT HE IS HIGHLY DESIROUS OF ESTABLISHING HIS ELIGIBILITY FOR RETIRED PAY PRIOR TO JUNE. THERE HAVE BEEN FURNISHED FOR OUR CONSIDERATION SERGEANT LOPEZ- LETTER, WITH ENCLOSURES, CONCERNING THE PERTINENT DETAILS OF THE MATTER.

FROM THE INFORMATION FURNISHED IT APPEARS THAT ON OCTOBER 24, 1943, SERGEANT LOPEZ WAS TRIED BY SUMMARY COURT-MARTIAL AND CONVICTED OF USING AN "UNAUTHORIZED MEANS OF COMMUNICATION TO EVADE CENSORSHIP," IN VIOLATION OF ARTICLE OF WAR 96, 10 U.S.C. 896. HE WAS SENTENCED TO THREE MONTHS' RESTRICTION TO HIS POST AND FORFEITURE OF $50. THE CONVENING AUTHORITY REDUCED THE SENTENCE TO ONE MONTH'S RESTRICTION AND FORFEITURE OF $25.

THE OFFENSE OF WHICH THE MEMBER WAS CONVICTED IS NOT SPECIFICALLY DESCRIBED UNDER ARTICLE OF WAR 96, MANUAL FOR COURTS-MARTIAL, 1928, AS IN EFFECT ON OCTOBER 24, 1943. HOWEVER, IT IS UNDERSTOOD THAT CENSORSHIP OF PRIVATE COMMUNICATIONS WAS NORMALLY IMPOSED BY SPECIFIC ORDER OF THE MEMBER'S SUPERIOR OFFICER. UPON THAT PREMISE, THE USE OF "UNAUTHORIZED MEANS OF COMMUNICATION TO EVADE CENSORSHIP" WOULD APPEAR TO HAVE BEEN CONSIDERED AS A FAILURE TO OBEY A LAWFUL ORDER OF A SUPERIOR OFFICER WHICH WAS CHARGEABLE AS A VIOLATION OF ARTICLE OF WAR 96. CONSIDERED AS SUCH A VIOLATION, THE MAXIMUM PERIOD OF CONFINEMENT AUTHORIZED FOR THE OFFENSE UNDER THE MANUAL FOR COURTS-MARTIAL, 1928, WAS SIX MONTHS.

SECTION 1 OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1142, 5 U.S.C. 2282, PROVIDES IN PART:

THAT THERE SHALL NOT BE PAID TO ANY PERSON CONVICTED PRIOR TO, ON, OR AFTER THE DATE OF ENACTMENT OF THIS ACT 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 THE DATE OF ENACTMENT OF THIS ACT, 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 OF THE UNITED STATES CODE) 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 35 COMP. GEN. 302 WE HELD THAT A CONVICTION BY A COURT-MARTIAL OF AN OFFENSE WHICH IS A FELONY UNDER THE DEFINITION OF FELONY CONTAINED IN 18 U.S.C. 1, AND SUBPARAGRAPH 213D (6), MANUAL FOR COURTS-MARTIAL, 1951, CONSTITUTED A CONVICTION OF A FELONY "UNDER THE LAWS OF THE UNITED TATES" WITHIN THE MEANING OF SECTION 1, CLAUSE (2), OF THE ACT OF SEPTEMBER 1, 1954. UNDER 18 U.S.C. 1, ANY OFFENSE PUNISHABLE BY DEATH OR IMPRISONMENT FOR A TERM "EXCEEDING ONE YEAR" IS A FELONY. SUBPARAGRAPH 213D (6) MANUAL FOR COURTS-MARTIAL, 1951, DEFINES A FELONY AS FOLLOWS:

ANY OFFENSE OF A CIVIL NATURE PUNISHABLE UNDER THE AUTHORITY OF THE CODE BY DEATH OR BY CONFINEMENT FOR A TERM EXCEEDING ONE YEAR IS A FELONY.

IN DECISION OF MAY 11, 1956, B-127022, WE SAID THAT THE TEST OF WHAT CONSTITUTES A FELONY FOR THE PURPOSE OF 35 COMP. GEN. 302 IS NOT THE ACTUAL PUNISHMENT IMPOSED, BUT THE PUNISHMENT IMPOSABLE, AND THAT PARAGRAPH 127C OF THE MANUAL FOR COURTS-MARTIAL, 1951, WHICH SETS OUT A TABLE FOR MAXIMUM PUNISHMENTS FOR OFFENSES IN COURT-MARTIAL CASES, PROVIDES AN ADEQUATE METHOD FOR DETERMINING WHETHER AN OFFENSE IS PUNISHABLE BY CONFINEMENT EXCEEDING ONE YEAR. APPLYING THE PRINCIPLE OF THAT DECISION HERE, IT FOLLOWS THAT, SINCE THE RECORD OF THE COURT MARTIAL TRIAL AVAILABLE TO US SHOWS THAT THE ACCUSED WAS NOT CHARGED WITH AND CONVICTED OF AN OFFENSE WHICH WAS PUNISHABLE BY DEATH OR CONFINEMENT IN EXCESS OF ONE YEAR, THERE WOULD BE NO BASIS FOR A CONCLUSION THAT THE OFFENSE CONCERNED COMES WITHIN SECTION 1, CLAUSE (2), OF THE ACT OF SEPTEMBER 1, 1954. CF. 38 COMP. GEN. 310, 312.

ACCORDINGLY, YOU ARE ADVISED THAT WE WILL NOT OBJECT TO OTHERWISE PROPER PAYMENTS OF RETIRED PAY TO SERGEANT LOPEZ BY REASON OF HIS CONVICTION BY SUMMARY COURT-MARTIAL ON OCTOBER 23, 1943.