B-146604, NOVEMBER 7, 1961, 41 COMP. GEN. 298

B-146604: Nov 7, 1961

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APPLICABLE TO ENLISTED PERSONNEL WHO ARE GIVEN COURT-MARTIAL SENTENCES WHICH INCLUDE A DISHONORABLE OR BAD CONDUCT DISCHARGE. WERE HELD TO BE INVALID BY THE UNITED STATES COURT OF MILITARY APPEALS IN THE SIMPSON CASE RENDERED ON FEBRUARY 20. THE ADMINISTRATIVE AUTHORITY TO INVOKE TH AUTOMATIC REDUCTION PROVISIONS OF PARAGRAPH 126E WAS RECOGNIZED IN COMPTROLLER GENERAL DECISION B-139988. INSOFAR AS PAY AND ALLOWANCES ARE CONCERNED FOR THOSE ENLISTED MEMBERS WHO WERE GIVEN SUCH SENTENCES AS THE RESULT OF COURT-MARTIAL TRIALS AND CONVICTION AFTER FEBRUARY 20. - THE PROVISIONS OF PARAGRAPH 126E ARE FOR APPLICATION. WERE ERRONEOUSLY PAID IN A HIGHER GRADE BECAUSE OF ADMINISTRATIVE FAILURE TO REDUCE THEM AS REQUIRED UNDER PARAGRAPH 126E.

B-146604, NOVEMBER 7, 1961, 41 COMP. GEN. 298

PAY - COURTS-MARTIAL SENTENCES - ENLISTED PERSONNEL - REDUCTION IN GRADE - EFFECT OF UNITED STATES V. SIMPSON--- PAY - COURTS-MARTIAL SENTENCES ENLISTED PERSONNEL - REDUCTION IN GRADE - EFFECT OF UNITED STATES V. SIMPSON EVEN THOUGH THE AUTOMATIC PAY GRADE REDUCTION PROVISIONS IN PARAGRAPH 126E OF THE MANUAL FOR COURTS-MARTIAL, 1951, APPLICABLE TO ENLISTED PERSONNEL WHO ARE GIVEN COURT-MARTIAL SENTENCES WHICH INCLUDE A DISHONORABLE OR BAD CONDUCT DISCHARGE, CONFINEMENT, OR HARD LABOR WITHOUT CONFINEMENT, WERE HELD TO BE INVALID BY THE UNITED STATES COURT OF MILITARY APPEALS IN THE SIMPSON CASE RENDERED ON FEBRUARY 20, 1959 (10 USCMA 229, 27 CMR 303), THE ADMINISTRATIVE AUTHORITY TO INVOKE TH AUTOMATIC REDUCTION PROVISIONS OF PARAGRAPH 126E WAS RECOGNIZED IN COMPTROLLER GENERAL DECISION B-139988, AUGUST 19, 1959, AND IN COURT OF CLAIMS OPINION IN JOHNSON V. UNITED STATES, CT.1CL. NO. 234-59, DECIDED MAY 28, 1959; THEREFORE, INSOFAR AS PAY AND ALLOWANCES ARE CONCERNED FOR THOSE ENLISTED MEMBERS WHO WERE GIVEN SUCH SENTENCES AS THE RESULT OF COURT-MARTIAL TRIALS AND CONVICTION AFTER FEBRUARY 20, 1959--- THE DATE OF THE SIMPSON CASE--- AND PRIOR TO JULY 20, 1960--- THE DATE OF ENACTMENT OF PUBLIC LAW 86-633 PROVIDING STATUTORY AUTHORITY FOR PAY REDUCTION--- THE PROVISIONS OF PARAGRAPH 126E ARE FOR APPLICATION. ENLISTED MEMBERS OF THE ARMY WHO AS A CONSEQUENCE OF THE SIMPSON DECISION OF FEBRUARY 20, 1959, 10 USCMA 229, 27 CMR 303, WERE ERRONEOUSLY PAID IN A HIGHER GRADE BECAUSE OF ADMINISTRATIVE FAILURE TO REDUCE THEM AS REQUIRED UNDER PARAGRAPH 126E, MANUAL FOR COURTS MARTIAL, 1959, MAY RETAIN PAYMENTS RECEIVED IN GOOD FAITH PRIOR TO OCTOBER 1, 1959, OR THE DATE ON WHICH THEIR RECORDS WERE ADJUSTED TO SHOW REDUCTION TO THE LOWEST GRADE, WHICHEVER IS EARLIER, NOTWITHSTANDING INSTRUCTIONS IN DEPARTMENT OF ARMY CIRCULARS 624-8 AND 64-24 AND DELAY IN ISSUING SUCH CIRCULARS AFTER THE DECISION OF THE COMPTROLLER GENERAL, B-139988, AUGUST 19, 1959, RECOGNIZING ADMINISTRATIVE AUTHORITY FOR INVOKING PARAGRAPH 126E, AND ANY PAYMENTS COLLECTED BY REASON OF THE CIRCULARS MAY BE REFUNDED; HOWEVER, THERE IS NO AUTHORITY TO PAY ANY MEMBER THE PAY AND ALLOWANCES OF A HIGHER GRADE AFTER HIS REDUCTION WAS ADMINISTRATIVELY EFFECTED UNLESS HE WAS ADVANCED TO SUCH HIGHER GRADE BY PROPER AUTHORITY.

TO THE SECRETARY OF DEFENSE, NOVEMBER 7, 1961:

ON AUGUST 3, 1961, THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTED OUR DECISION ON FIVE QUESTIONS REGARDING THE APPLICATION OF PARAGRAPH 126E OF THE MANUAL FOR COURTS-MARTIAL, 1951, TO AFFECTED ENLISTED PERSONNEL, FOR THE PERIOD FEBRUARY 20, 1959, THE DATE OF DECISION OF THE UNITED STATES COURT OF MILITARY APPEALS IN THE CASE OF UNITED STATES V. SIMPSON, TO JULY 12, 1960, THE DATE OF ENACTMENT OF PUBLIC LAW 86-633, 10 U.S.C. 858A. THE QUESTIONS FOR DECISION ARE SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 292, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

THE QUESTIONS ARE SEPARATELY QUOTED AND ANSWERED BELOW:

QUESTION 1

1. ARE THE PROVISIONS OF PARAGRAPH 126E, MCM 1951 FOR APPLICATION WHERE THE MEMBER WAS TRIED AND CONVICTED SUBSEQUENT TO 20 FEBRUARY 1959 AND PRIOR TO PASSAGE OF PUBLIC LAW 86-633, APPROVED 12 JULY 1960?

UNDER THE PROVISIONS OF PARAGRAPH 126E OF THE MANUAL FOR COURTS MARTIAL, 1951, UNLESS OTHERWISE PROVIDED BY REGULATION OF THE SECRETARY CONCERNED, AUTOMATIC REDUCTION TO THE LOWEST ENLISTED PAY GRADE IS EFFECTED WHEN THE COURT-MARTIAL SENTENCE INCLUDES (1) DISHONORABLE OR BAD-CONDUCT DISCHARGE; (2) CONFINEMENT; OR (3) HARD LABOR WITHOUT CONFINEMENT. PRIOR TO FEBRUARY 20, 1959, ACTION WAS TAKEN ADMINISTRATIVELY TO EFFECT THE REDUCTION IMMEDIATELY UPON THE ISSUANCE OF THE ORDER OF EXECUTION OF THE COURT- MARTIAL SENTENCE OR UPON ITS BEING FINALLY APPROVED OR SUSPENDED. HOWEVER, ON FEBRUARY 20, 1959, THE UNITED STATES COURT OF MILITARY APPEALS HELD IN THE CASE OF UNITED STATES V. SIMPSON, 10 USCMA 229, 27 CMR 303, THAT THE AUTOMATIC REDUCTION PROVISION IN PARAGRAPH 126E OF THE MANUAL FOR COURTS-MARTIAL, 1951, IS JUDICIAL IN PURPOSE AND EFFECT AND IS INVALID IN THAT IT OPERATES IMPROPERLY TO INCREASE THE SEVERITY OF THE SENTENCE OF THE COURT-MARTIAL.

IN OUR DECISION OF AUGUST 19, 1959, B-139988, TO YOU, WE SAID THAT WE BELIEVED THE AUTOMATIC REDUCTION PROVISION OF PARAGRAPH 126E TO BE ADMINISTRATIVE RATHER THAN JUDICIAL IN CHARACTER AND THAT MEMBERS SHOULD BE PAID AT THE RATE FOR THE LOWEST PAY GRADE PENDING DECISION OF THE COURT OF CLAIMS IN THE CASE OF JOHNSON V. UNITED STATES, CT.1CL. NO. 234-59, FILED MAY 28, 1959. IN THAT CASE THE PLAINTIFF, CITING THE SIMPSON CASE AS AUTHORITY, WAS CLAIMING THE PAY AND ALLOWANCES OF THE NONCOMMISSIONED RANK FROM WHICH HE WAS REDUCED PURSUANT TO THE AUTOMATIC REDUCTION PROVISIONS OF PARAGRAPH 126E. ON JULY 15, 1960, THE COURT OF CLAIMS DISMISSED JOHNSON'S PETITION HOLDING THAT THERE WAS AMPLE ADMINISTRATIVE AUTHORITY FOR THE REDUCTION AS PROVIDED IN PARAGRAPH 126E OF THE MANUAL. ON APRIL 17, 1961, THE UNITED STATES SUPREME COURT DENIED CERTIORARI IN THE JOHNSON CASE ( DOCKET NO. 665, MISC.). ALSO, ON JULY 12, 1960, THERE WAS ENACTED PUBLIC LAW 86-633 WHICH AMENDED THE UNIFORM CODE OF MILITARY JUSTICE, CHAPTER 47 OF TITLE 10, U.S.C. BY ADDING A NEW SECTION, 10 U.S.C. 858A, TO PROVIDE BY STATUTE FOR THE REDUCTION TO PAY GRADE E-1 UPON APPROVAL OF THE COURT MARTIAL SENTENCE OF AN ENLISTED MEMBER IN A PAY GRADE ABOVE E-1 THAT INCLUDES (1) A DISHONORABLE OR BAD-CONDUCT DISCHARGE; (2) CONFINEMENT; OR (3) HARD LABOR WITHOUT CONFINEMENT.

BASED ON THE FOREGOING, OUR VIEW IS THAT, SO FAR AS PAY AND ALLOWANCES ARE CONCERNED, THE PROVISIONS OF PARAGRAPH 126E ARE FOR APPLICATION IN CASES WHEN THE MEMBER WAS TRIED AND CONVICTED DURING THE PERIOD FEBRUARY 20, 1959, TO JULY 12, 1960. QUESTION 1 IS ANSWERED ACCORDINGLY.

QUESTION 2

2. IF THE ANSWER TO QUESTION 1 IS IN THE NEGATIVE, WHAT IS THE EFFECT OF DA CIRCULARS 624-8 DATED 13 APRIL 1960 AND 624-24 DATED 2 AUGUST 1960 AS TO REDUCTION OF THE MEMBER?

WHILE QUESTION 2 IS PREDICATED ON A NEGATIVE ANSWER TO QUESTION 1 WE DEEM IT PROPER TO CONSIDER THE EFFECT OF DA CIRCULARS 624-8 AND 624-24 SO FAR AS THEY RELATE TO THE PAY AND ALLOWANCES OF MEMBERS AFFECTED BY THE SIMPSON DECISION.

IT IS STATED IN COMMITTEE ACTION NO. 292 THAT INITIAL INSTRUCTIONS TO OPERATING PERSONNEL ON THE SIMPSON DECISION SPECIFIED THAT ON AND AFTER FEBRUARY 20, 1959, THE PROVISIONS OF PARAGRAPH 126E, MANUAL FOR COURTS- MARTIAL, 1951, WERE INVALID. BASED ON THE DECISION OF AUGUST 19, 1959, HOWEVER, THE DEPARTMENT OF THE ARMY ON APRIL 13, 1960, ISSUED CIRCULAR 624 -8. THE REASON WHY A DIRECTIVE IMPLEMENTING OUR DECISION WAS NOT ISSUED AT AN EARLIER DATE IS NOT STATED. THAT CIRCULAR REQUIRED THAT MEMBERS COMING WITHIN THE SCOPE OF PARAGRAPH 126E BE PAID AT THE REDUCED RATE PENDING DECISION BY THE COURT OF CLAIMS IN THE JOHNSON CASE. THE CIRCULAR WAS MADE RETROACTIVELY EFFECTIVE IN ALL CASES IN WHICH REDUCTION TO THE LOWEST GRADE HAD NOT BEEN ADMINISTRATIVELY AFFECTED BECAUSE OF THE SIMPSON DECISION. APPARENTLY AS A RESULT OF THAT CIRCULAR, MEMBERS WHOSE SENTENCES WERE EXECUTED OR APPROVED SUBSEQUENT TO FEBRUARY 20, 1959, AND WHO WERE NOT ADMINISTRATIVELY RECORDED AS REDUCED IN RANK BECAUSE OF THE DECISION OF THE COURT OF MILITARY APPEALS IN THE SIMPSON CASE WERE "REDUCED" RETROACTIVELY EFFECTIVE AS OF THE EFFECTIVE DATE OF THE COURT- MARTIAL SENTENCE AND COLLECTION ACTION WAS COMMENCED, AT LEAST IN SOME CASES, WITH THE VIEW TO HAVING SUCH MEMBERS REMIT THE HIGHER PAY AND ALLOWANCES PREVIOUSLY RECEIVED. SUBSEQUENTLY, ON AUGUST 2, 1960, THE DEPARTMENT OF THE ARMY ISSUED CIRCULAR NO. 624-24, WHICH PROVIDES, IN PART, THAT NO COLLECTION ACTION WILL BE TAKEN REGARDING PAYMENTS MADE PRIOR TO IMPLEMENTATION OF THAT CIRCULAR AND CIRCULAR NO. 624-8 THAT WERE OTHERWISE PROPER, PENDING DECISION BY OUR OFFICE.

BY DECISION OF TODAY, B-146614, 41 COMP. GEN. 293, TO YOU, RENDERED IN RESPONSE TO COMMITTEE ACTION NO. 293, MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, THE PAY AND ALLOWANCE CONSEQUENCES OF THE SERVICE OF CERTAIN AIRMEN NOT ADMINISTRATIVELY REDUCED TO THE LOWEST ENLISTED GRADE IN SITUATIONS ARISING FROM THE SIMPSON DECISION, ARE DISCUSSED. IN THAT DECISION WE CONCLUDED THAT THE SIMPSON DECISION AFFORDED COLOR OF AUTHORITY FOR CONTINUING THOSE MEMBERS, NOT ADMINISTRATIVELY REDUCED TO THE LOWEST ENLISTED GRADE, IN THE GRADE WHICH THEY HELD PRIOR TO THEIR SENTENCE AND THAT UNDER THE DE FACTO RULE THOSE MEMBERS WHO WERE NOT SO REDUCED AND WHO RECEIVED THE PAY AND ALLOWANCE OF THE HIGHER GRADE IN GOOD FAITH PRIOR TO THE DATE OF OUR DECISION OF AUGUST 19, 1959, B-139988, WERE ENTITLED TO RETAIN THE PAY AND ALLOWANCES WHICH THEY HAD RECEIVED. WE POINTED OUT THAT ON AND AFTER THE DATE OF OUR DECISION OF AUGUST 19, 1959, OR AT THE LATEST, THE END OF A REASONABLE PERIOD AFTER THAT DATE TO ALLOW FOR NOTICE OF SUCH DECISION TO REACH ALL ORGANIZATIONS AND PERSONS CONCERNED, THERE WAS NO COLOR OF AUTHORITY FOR PAYMENTS AT THE RATE OF THE HIGHER GRADE. WE SAID THAT A REASONABLE PERIOD FOR THE NOTIFICATION AND DISTRIBUTION OF OUR DECISION SHOULD BE CONSIDERED AS ENDING NOT LATER THAN SEPTEMBER 30, 1959, AND THAT WE WOULD NOT QUESTION OTHERWISE PROPER PAYMENTS OF THE TYPE THERE INVOLVED MADE PRIOR TO OCTOBER 1, 1959. IN LINE WITH THAT DECISION, ENLISTED MEMBERS OF THE ARMY WHO AS A CONSEQUENCE OF THE SIMPSON DECISION WERE ERRONEOUSLY PAID IN A HIGHER GRADE BECAUSE OF FAILURE TO ADMINISTRATIVELY REDUCE THEM AND WHO RECEIVED THE PAYMENTS IN GOOD FAITH MAY RETAIN SUCH PAYMENTS RECEIVED PRIOR TO OCTOBER 1, 1959, OR THE DATE ON WHICH THEIR RECORDS WERE ADJUSTED TO SHOW THEIR REDUCTION TO THE LOWEST GRADE, WHICHEVER IS EARLIER, NOTWITHSTANDING THE INSTRUCTIONS CONTAINED IN THE CITED CIRCULARS AND THE DELAY IN ISSUING THOSE CIRCULARS. ANY SUCH PAYMENTS COLLECTED FROM THE MEMBERS UNDER THE CIRCULARS MAY BE REFUNDED. THERE WOULD BE NO AUTHORITY, HOWEVER, TO PAY ANY MEMBER THE PAY AND ALLOWANCES OF A HIGHER GRADE AFTER HIS REDUCTION HAD BEEN ADMINISTRATIVELY EFFECTED UNLESS AND UNTIL HE WAS ADVANCED TO SUCH HIGHER GRADE BY PROPER AUTHORITY. SEE THE ANSWER TO QUESTION 2 IN B 146614. QUESTION 2 IS ANSWERED ACCORDINGLY.

QUESTIONS 3, 4, AND 5 ARE AS FOLLOWS:

3. IF THE ANSWER TO QUESTION 2 INDICATES THAT THE INDIVIDUALS SUBJECT TO THE PROVISIONS OF THE CIRCULARS WERE REDUCED ARE SUCH REDUCTIONS EFFECTIVE PRIOR TO THE DATES OF THE CIRCULARS?

4. WHAT COLLECTION ACTION, IF ANY, MUST BE TAKEN WITH REGARD TO ANY PAYMENTS (BASIC PAY, TRAVEL ALLOWANCES, REENLISTMENT BONUS, ETC.) MADE PRIOR TO IMPLEMENTATION OF B-139988, 19 AUGUST 1959, THAT WERE OTHERWISE PROPER?

5. WOULD THE ANSWER TO QUESTION 4 BE ANY DIFFERENT IF REDUCTION IN RATE OF PAY WAS NOT ACCOMPLISHED UNTIL ISSUANCE OF DA CIRCULAR 624-8 DATED 13 APRIL 1960?

IN VIEW OF THE ANSWERS TO QUESTIONS 1 AND 2 ABOVE, NO ANSWER IS REQUIRED TO QUESTIONS 3, 4 AND 5. ..END :