B-147015, SEP. 6, 1961

B-147015: Sep 6, 1961

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WILL BE PRECLUDED FROM RECEIVING RETIRED PAY FROM THE ARMY UNDER SECTION 1 OF THE ACT OF SEPTEMBER 1. YOUR LETTER DISCLOSES THAT SPECIALIST VELO WAS CHARGED UNDER ARTICLE 121 OF THE UNIFORM CODE OF MILITARY JUSTICE. NEITHER THE CHARGE AND SPECIFICATIONS NOR THE STATEMENTS MADE AT THE TRIAL INDICATE THAT THE OFFENSE WAS "COMMITTED IN THE EXERCISE OF HIS AUTHORITY. IT IS STATED. THAT THE REPORT OF THE ARTICLE 32 INVESTIGATION INCLUDED A STATEMENT BY THE ACCUSED WHICH DISCLOSED THAT HE WAS THE MANAGER OF THE NONCOMMISSIONED OFFICERS' CLUB FROM WHICH HE TOOK THE MONEY. SINCE THE MEMBER'S STATEMENT MADE IN THE PRETRIAL INVESTIGATION WAS NOT INTRODUCED AS EVIDENCE AT THE TRIAL. DECISION IS REQUESTED AS TO WHETHER THAT STATEMENT MAY BE USED IN DETERMINING THE APPLICABILITY OF THE ACT OF SEPTEMBER 1.

B-147015, SEP. 6, 1961

TO THE SECRETARY OF THE ARMY:

BY LETTER OF AUGUST 19, 1961, YOU REQUESTED OUR DECISION AS TO WHETHER SPECIALIST FOUR ISHMAEL W. VELO, UNITED STATES ARMY, WILL BE PRECLUDED FROM RECEIVING RETIRED PAY FROM THE ARMY UNDER SECTION 1 OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1142, 5 U.S.C. 2282, IN VIEW OF HIS CONVICTION BY A GENERAL COURT-MARTIAL. THE REQUEST HAS BEEN ASSIGNED SUBMISSION NO. SS-A-591 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

YOUR LETTER DISCLOSES THAT SPECIALIST VELO WAS CHARGED UNDER ARTICLE 121 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 921, WITH STEALING $500 BELONGING TO THE FORT CARSON NONCOMMISSIONED OFFICERS' OPEN MESS. PLEADED GUILTY TO THE CHARGE. NEITHER THE CHARGE AND SPECIFICATIONS NOR THE STATEMENTS MADE AT THE TRIAL INDICATE THAT THE OFFENSE WAS "COMMITTED IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT" AS PROVIDED IN THE ACT OF SEPTEMBER 1, 1954. IT IS STATED, HOWEVER, THAT THE REPORT OF THE ARTICLE 32 INVESTIGATION INCLUDED A STATEMENT BY THE ACCUSED WHICH DISCLOSED THAT HE WAS THE MANAGER OF THE NONCOMMISSIONED OFFICERS' CLUB FROM WHICH HE TOOK THE MONEY. SINCE THE MEMBER'S STATEMENT MADE IN THE PRETRIAL INVESTIGATION WAS NOT INTRODUCED AS EVIDENCE AT THE TRIAL, DECISION IS REQUESTED AS TO WHETHER THAT STATEMENT MAY BE USED IN DETERMINING THE APPLICABILITY OF THE ACT OF SEPTEMBER 1, 1954, THAT IS, WHETHER IT MEETS THE TEST OF THE "FAIR OPPORTUNITY TO ANSWER" RULE FOUND IN 38 COMP. GEN. 817.

IN THE CASE CONSIDERED IN OUR DECISION OF JULY 22, 1960, 40 COMP. GEN. 45, WHERE NO EVIDENCE WAS PRESENTED AT THE TRIAL BECAUSE A PLEA OF GUILTY WAS ENTERED, EVIDENCE RECEIVED BY THE COURT IN ACCORDANCE WITH THE PRESENTENCING PROCEDURE PRESCRIBED BY PARAGRAPH 75 OF THE MANUAL FOR COURTS-MARTIAL AND A STATEMENT SIGNED BY THE MEMBER MADE DURING THE PRETRIAL INVESTIGATION PRESCRIBED BY ARTICLE 32 OF THE UNIFORM CODE OF MILITARY JUSTICE WERE CONSIDERED IN DETERMINING THE APPLICABILITY OF THE ACT OF SEPTEMBER 1, 1954, AND IT WAS STATED THAT:

"IN 38 COMP. GEN. 310, IT WAS HELD THAT THE STATUTORY AND REGULATORY PROVISIONS INVOLVED CONTEMPLATE THAT THE ACCUSED HAVE AMPLE OPPORTUNITY TO HEAR AND ANSWER THE CHARGES RAISED AGAINST HIM, 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. HOWEVER, ADMISSIONS ARE GENERALLY ADMISSIBLE AS ORIGINAL AND SUBSTANTIVE EVIDENCE OF THE TRUTH OF THE STATEMENTS MADE OR OF THE EXISTENCE OF ANY FACTS WHICH THEY HAVE A TENDENCY TO ESTABLISH AND THEIR ADMISSIBILITY IS NOT DEPENDENT ON ANY TENDENCY TO DISCREDIT THE PERSON BY WHOM THEY WERE MADE. THE NATURE OF THE ACTION OR PROCEEDINGS DOES NOT AFFECT THE ADMISSIBILITY OF SUCH ADMISSIONS. SEE 31 C.J.S., EVIDENCE, AT PAGES 1027 AND 1028. CLEARLY, WHERE THE RECORD INCLUDES AN ADMISSION VOLUNTARILY MADE BY THE ACCUSED ESTABLISHING THAT THE OFFENSE WAS COMMITTED IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER OR PRIVILEGES AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT, THERE CAN BE NO QUESTION OF VIOLATION OF ANY RIGHT OF REFUTATION THE ACCUSED MAY HAVE. THEREFORE, SUCH EVIDENCE, FREELY GIVEN BY THE ACCUSED, EVEN THOUGH NOT APPEARING IN THE CHARGES AND SPECIFICATIONS, PROPERLY MAY BE CONSIDERED IN THE DETERMINATION WHETHER THE ACCUSED WAS CONVICTED OF AN OFFENSE WITHIN THE SCOPE OF THE 1954 ACT. CF. 38 COMP. GEN. 817, 819.'

IN THE CASE OF A STATEMENT MADE BY THE ACCUSED INCIDENT TO A COURT- MARTIAL TRIAL OR PRETRIAL INVESTIGATION, NO QUESTION ABOUT A "FAIR OPPORTUNITY TO ANSWER" HIS OWN SELF-ACCUSATION OR VIOLATION OF HIS RIGHTS ARISES. THAT RULE APPLIES ONLY TO STATEMENTS MADE BY OTHER PERSONS.

ARTICLE 32 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 832, BY ITS VERY TERMS PROTECTS THE RIGHTS OF THE ACCUSED AND PROVIDES HIM FULL OPPORTUNITY TO PRESENT ANYTHING HE MAY DESIRE ON HIS OWN BEHALF. ANY STATEMENT OR EVIDENCE SO PRESENTED BY THE ACCUSED MAY PROPERLY BE CONSIDERED IN THE DETERMINATION THAT THE FELONY WITH WHICH HE IS CHARGED, TO WHICH HE PLEADS GUILTY AND OF WHICH HE IS CONVICTED, WAS COMMITTED IN THE EXERCISE OF HIS OFFICE OR AUTHORITY WITHIN THE MEANING OF THE 1954 ACT, IF CONSISTENT WITH THE CHARGES AND SPECIFICATIONS, EVEN THOUGH NOT INTRODUCED INTO EVIDENCE AT THE TRIAL. ACCORDINGLY, THE QUESTION PRESENTED IN YOUR SUBMISSION IS ANSWERED IN THE AFFIRMATIVE.