B-146519, AUGUST 14, 1961, 41 COMP. GEN. 114

B-146519, AUGUST 14, 1961, 41 COMP. GEN. 114

PAY - RETIRED - EFFECT OF ACT OF SEPTEMBER 1, 1954, PROHIBITING PAYMENT TO PERSONS CONVICTED OF CERTAIN OFFENSES - OFFENSES WITHIN AUTHORITY, INFLUENCE, ETC., OF MEMBER AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO WAS CONVICTED BY COURT- MARTIAL OF FORGERY IN CONNECTION WITH THE RECEIPT OF A CASUAL PAYMENT, WHICH IS PAYMENT AUTHORIZED TO BE MADE WHERE NO REGULAR FINANCE SERVICE IS PROVIDED AND THE PERSONAL CIRCUMSTANCES OF THE MEMBER SHOW A NEED FOR SUCH PAYMENT, IS REGARDED AS HAVING COMMITTED AN OFFENSE WITHIN THE EXERCISE OF THE MEMBER'S ,PRIVILEGES" AS THAT TERM IS USED IN SECTION 1 OF CLAUSE 2 OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 2282, WHICH PRECLUDES THE RECEIPT OF RETIRED PAY BY MEMBERS CONVICTED OF CERTAIN OFFENSES, THE MEMBER HAVING A RIGHT TO APPLY FOR AND TO RECEIVE SUCH CASUAL PAYMENTS; THEREFORE, PAYMENT OF RETIRED PAY TO THE MEMBER IS NOT AUTHORIZED.

TO CAPTAIN S. NORTON, DEPARTMENT OF THE ARMY, AUGUST 14, 1961:

REFERENCE IS MADE TO YOUR LETTER OF JULY 13, 1961, FORWARDED UNDER D.O. NO. 592, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF THE VOUCHER ENCLOSED THEREWITH COVERING RETIRED PAY FOR THE MONTH OF JUNE 1961 IN THE CASE OF SERGEANT JAMES W. CASSENS, RA, RETIRED.

SERGEANT CASSENS WAS CONVICTED BY GENERAL COURT-MARTIAL IN 1954 OF A VIOLATION OF ARTICLE 123, UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 922, AS THE RESULT OF HIS FORGING THE SIGNATURE OF ARMAUND A. ROSE," CAPTAIN AIR FORCE EXECUTIVE OFFICER" TO A LETTER PREPARED " FOR THE COMMANDING OFFICER" AUTHORIZING THE FINANCE OFFICE TO MAKE A CASUAL PAYMENT OF $250 TO CASSENS. THE SENTENCE ADJUDGED AGAINST HIM INCLUDED CONFINEMENT AT HARD LABOR FOR 6 MONTHS ALTHOUGH THE MAXIMUM PUNISHMENT AUTHORIZED FOR THIS OFFENSE IN SUBPARAGRAPH 127C OF THE MANUAL FOR COURTS-MARTIAL, 1951, INCLUDES CONFINEMENT AT HARD LABOR FOR 5 YEARS. EFFECTIVE MARCH 31, 1955, HE WAS PLACED ON THE RETIRED LIST AT HIS OWN REQUEST HAVING COMPLETED MORE THAN 20 YEARS OF ACTIVE SERVICE.

YOU REQUEST A DECISION AS TO WHETHER SERGEANT CASSENS' FORGERY SHOULD BE REGARDED AS HAVING BEEN COMMITTED WITHIN THE EXERCISE OF HIS "PRIVILEGES" AS AN ENLISTED MAN THEREBY SUBJECTING HIS RETIRED PAY TO THE PROHIBITION CONTAINED IN THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1142, AS AMENDED, 5 U.S.C. 2281, ET SEQ.

SECTION 1 OF THE ABOVE-CITED ACT, 5 U.S.C. 2282, PROVIDES IN PART:

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, OR (B) COMMITTED AFTER THE TERMINATION OF HIS SERVICE AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT BUT DIRECTLY INVOLVING, DIRECTLY RESULTING FROM, OR DIRECTLY RELATING TO, THE IMPROPER EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES DURING ANY PERIOD OF HIS SERVICE AS SUCH AN OFFICER OR EMPLOYEE.

THE TERM "OFFICER OR EMPLOYEE OF THE GOVERNMENT," AS USED IN SECTION 2282, IS DEFINED IN SECTION 2281 AS INCLUDING MEMBERS AND FORMER MEMBERS OF THE ARMED FORCES OF THE UNITED STATES.

IT HAS BEEN HELD THAT A COURT-MARTIAL CONVICTION OF A MEMBER OF THE ARMED FORCES FOR A FELONY COMMITTED IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES CONSTITUTES A CONVICTION OF AN OFFENSE WITHIN THE PURVIEW OF SECTION 2282 (2). SEE 40 COMP. GEN. 364, AND CASES CITED THEREIN.

IT WAS HELD IN OUR DECISION OF SEPTEMBER 12, 1960, 40 COMP. GEN. 176, THAT THE RIGHT OF A MEMBER TO A TRANSPORTATION ALLOWANCE ACCRUING INCIDENT TO HIS ACTIVE SERVICE IS A "PRIVILEGE" DIRECTLY RELATING TO SUCH SERVICE AND THAT IF HE IS CONVICTED OF THE OFFENSE OF WILFULLY MAKING FALSE STATEMENTS IN A CLAIM FOR A TRAVEL ALLOWANCE SUBMITTED IN THE EXERCISE OF HIS RIGHTS AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT, HIS CASE APPEARS TO BE WITHIN THE PROHIBITION OF THE 1954 ACT. WE SEE NO REASON TO VIEW THE RIGHT OF AN ENLISTED MAN TO RECEIVE A CASUAL PAYMENT IN A DIFFERENT LIGHT WHEN CONDITIONS ARE APPROPRIATE FOR PAYMENT. CASUAL PAYMENTS ARE AUTHORIZED TO BE MADE UNDER CERTAIN CIRCUMSTANCES WHERE NO REGULAR FINANCE SERVICE IS PROVIDED AND THE PERSONAL NEEDS OF SERVICE MEMBERS SHOW A NEED FOR PAYMENT. THE RIGHT TO APPLY FOR, AS WELL AS THE RIGHT TO RECEIVE, SUCH A PAYMENT WOULD APPEAR TO COME WITHIN THE MEANING OF THE TERM "PRIVILEGES.' SINCE THE OFFENSE FOR WHICH SERGEANT CASSENS WAS CONVICTED WAS COMMITTED IN CONNECTION WITH, AND WAS A PART OF, HIS ATTEMPT TO OBTAIN SUCH A CASUAL PAYMENT, IT IS OUR VIEW THAT HIS OFFENSE WAS COMMITTED IN THE EXERCISE OF HIS "PRIVILEGES" WITHIN THE MEANING OF PARAGRAPH (2) OF SECTION 2282 QUOTED ABOVE.

ACCORDINGLY, PAYMENT OF RETIRED PAY IS NOT AUTHORIZED AND THE VOUCHER FORWARDED WITH YOUR LETTER WILL BE RETAINED HERE.