B-147094, DECEMBER 12, 1961, 41 COMP. GEN. 399

B-147094: Dec 12, 1961

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REMITTED UPON EXPIRATION OF THE PERIOD OF CONFINEMENT MAY HAVE THE FORFEITURE PART OF THE SENTENCE REGARDED AS ONLY APPLICABLE TO THE PERIOD OF CONFINEMENT SO THAT THEREAFTER THE MEMBER MAY BE CONSIDERED TO HAVE REVERTED TO A RETIRED STATUS. ITS APPLICATION TO A RETIRED ENLISTED MEMBER IS TOO DOUBTFUL. AFTER THE MEMBER WAS ADVANCED ON THE RETIRED LIST UNDER 10 U.S.C. 3964 TO OFFICER GRADE HE IS ENTITLED TO INCREASED RETIRED PAY. THE REQUEST WAS ASSIGNED D.O. IT APPEARS THAT SERGEANT SCOTT WAS RETIRED OCTOBER 31. THAT HE WAS RECALLED TO ACTIVE MILITARY SERVICE FOR THE PERIOD NOVEMBER 1. THAT HE WAS PAID RETIRED PAY FROM JULY 1. HE WAS CONVICTED ( GENERAL COURT MARTIAL ORDER NO. 178. - WAS ORDERED EXECUTED BY GENERAL COURT-MARTIAL ORDER NO. 229.

B-147094, DECEMBER 12, 1961, 41 COMP. GEN. 399

PAY - RETIRED - COURTS-MARTIAL SENTENCES - FORFEITURE A RETIRED ENLISTED MEMBER WHO HAD THE DISHONORABLE DISCHARGE PORTION OF A COURT-MARTIAL SENTENCE OF DISHONORABLE DISCHARGE, FORFEITURE OF PAY AND ALLOWANCES, AND CONFINEMENT TO HARD LABOR FOR 3 YEARS, REMITTED UPON EXPIRATION OF THE PERIOD OF CONFINEMENT MAY HAVE THE FORFEITURE PART OF THE SENTENCE REGARDED AS ONLY APPLICABLE TO THE PERIOD OF CONFINEMENT SO THAT THEREAFTER THE MEMBER MAY BE CONSIDERED TO HAVE REVERTED TO A RETIRED STATUS; HOWEVER, IN VIEW OF THE BROAD LANGUAGE OF THE AUTOMATIC PAY REDUCTION PROVISIONS OF PARAGRAPH 126E OF THE MANUAL FOR COURTS-MARTIAL, ITS APPLICATION TO A RETIRED ENLISTED MEMBER IS TOO DOUBTFUL, IN THE ABSENCE OF A CLARIFICATION BY THE COURTS, TO PERMIT PAYMENT OF RETIRED PAY IN EXCESS OF THAT AUTHORIZED FOR PAY GRADE E-1, BUT AFTER THE MEMBER WAS ADVANCED ON THE RETIRED LIST UNDER 10 U.S.C. 3964 TO OFFICER GRADE HE IS ENTITLED TO INCREASED RETIRED PAY.

TO CAPTAIN S. NORTON, DEPARTMENT OF THE ARMY, DECEMBER 12, 1961:

BY FIRST ENDORSEMENT DATED AUGUST 29, 1961, THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF AUGUST 9, 1961, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER, IN THE GROSS AMOUNT OF $26,638.66, IN FAVOR OF MASTER SERGEANT CLARE L. SCOTT, RA 6 123 751, RETIRED, REPRESENTING RETIRED PAY FOR THE PERIOD OCTOBER 29, 1953, THROUGH JUNE 30, 1961. THE REQUEST WAS ASSIGNED D.O. NO. 602 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT SERGEANT SCOTT WAS RETIRED OCTOBER 31, 1951, UNDER THE PROVISIONS OF SECTION 4 OF THE ARMED FORCES VOLUNTARY RECRUITMENT ACT OF 1945, AS AMENDED, 10 U.S.C. 948 (1952 USED.); THAT HE WAS RECALLED TO ACTIVE MILITARY SERVICE FOR THE PERIOD NOVEMBER 1, 1951, THROUGH JUNE 30, 1953; AND THAT HE WAS PAID RETIRED PAY FROM JULY 1, 1953, THROUGH NOVEMBER 30, 1953. HE WAS CONVICTED ( GENERAL COURT MARTIAL ORDER NO. 178, DATED OCTOBER 29, 1953) OF A VIOLATION OF ARTICLE 121 OF THE UNIFORM CODE OF MILITARY JUSTICE (LARCENY AND WRONGFUL APPROPRIATION) AND THE SENTENCE--- DISHONORABLE DISCHARGE, FORFEITURE OF ALL PAY AND ALLOWANCES AND CONFINEMENT AT HARD LABOR FOR 3 YEARS--- WAS ORDERED EXECUTED BY GENERAL COURT-MARTIAL ORDER NO. 229, DATED DECEMBER 3, 1953, WITH FORFEITURE EFFECTIVE OCTOBER 29, 1953. THAT PART OF THE SENTENCE RELATING TO DISHONORABLE DISCHARGE WAS SUSPENDED FOR THE PERIOD OF CONFINEMENT WHEN, UNLESS SOONER VACATED, IT WAS REMITTED WITHOUT FURTHER ACTION. SERGEANT SCOTT WAS RELEASED FROM CONFINEMENT AT THE UNITED STATES DISCIPLINARY BARRACKS, FORT LEAVENWORTH, KANSAS, ON AUGUST 21, 1955, PURSUANT TO SPECIAL ORDERS NO. 160, HEADQUARTERS, UNITED STATES DISCIPLINARY BARRACKS, FORT LEAVENWORTH, KANSAS, DATED AUGUST 19, 55," AUTH: TELECON 19 AUG 55 BETWEEN COMDT THIS DB AND REPRESENTATIVE OF TJAGDA WASH DC.'

BY LETTER DATED NOVEMBER 4, 1955, THE ADJUTANT GENERAL OF THE ARMY-- BY ORDER OF THE SECRETARY OF THE ARMY--- ADVISED SERGEANT SCOTT THAT AT THE TIME OF THE EXPIRATION OF HIS PERIOD OF CONFINEMENT HE REVERTED TO HIS RETIRED STATUS IN THE GRADE OF MASTER SERGEANT (E-7) WITH ENTITLEMENT TO RECEIVE RETIRED PAY IN THAT GRADE. HOWEVER, PAYMENT OF RETIRED PAY HAS NOT BEEN MADE TO THE MEMBER FOR THE PERIOD SUBSEQUENT TO HIS RELEASE FROM CONFINEMENT DUE TO THE BELIEF THAT THE PROVISIONS OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1142, 5 U.S.C. 2282, WERE FOR APPLICATION IN THIS CASE.

YOU STATE THAT SERGEANT SCOTT WAS ADVANCED ON THE ARMY OF THE UNITED STATES RETIRED LIST TO THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED ON ACTIVE DUTY SATISFACTORILY (CAPTAIN) AS DETERMINED BY THE SECRETARY OF THE ARMY EFFECTIVE FEBRUARY 8, 1957, UNDER THE PROVISIONS OF 10 U.S.C. 3964.

BY PUBLIC LAW 87-299, APPROVED SEPTEMBER 26, 1961, 5 U.S.C. 2281 2288, THE ACT OF SEPTEMBER 1, 1954 (THE SO-CALLED " HISS ACT"), WAS AMENDED SO AS TO RETROACTIVELY REMOVE THEREFROM THOSE PROVISIONS OF THE STATUTE WHICH PROHIBITED PAYMENT OF ANNUITIES AND RETIRED PAY TO PERSONS WHO COMMIT OFFENSES, ACTS OR OMISSIONS WHICH DO NOT INVOLVE THE SECURITY OF THE UNITED STATES. SINCE THE OFFENSE OF WHICH SERGEANT SCOTT WAS CONVICTED IS NOT WITHIN THE PURVIEW OF THE ACT OF SEPTEMBER 1, 1954, AS AMENDED BY THE ACT OF SEPTEMBER 26, 1961, THE PROVISIONS OF THAT ACT NEED NOT BE CONSIDERED HERE.

THE PROPRIETY OF THE PROPOSED PAYMENT OF RETIRED PAY IS STATED TO BE IN DOUBT "SINCE IT IS NOT KNOWN IF FORFEITURE OF ALL PAY AND ALLOWANCES EFFECTIVE 29 OCTOBER 1953 ADJUDGED IN GENERAL COURT MARTIAL 229 WAS REMITTED UPON RELEASE FROM CONFINEMENT OR IF SUB-PARAGRAPH 126E, MANUAL FOR COURTS MARTIAL, UNITED STATES, 1951, AS AMENDED BY EXECUTIVE ORDER 10256, 23 JUNE 1951, RELATIVE TO REDUCTION IN GRADE, IS APPLICABLE.'

IF IT HAD BEEN INTENDED THAT THE COURT-MARTIAL SENTENCE OR FORFEITURE OF PAY AND ALLOWANCES WAS TO OPERATE BEYOND THE PERIOD OF THE MEMBER'S CONFINEMENT, SUCH INTENT COULD HAVE BEEN ACCOMPLISHED BY LEAVING UNDISTURBED THE SENTENCE OF DISHONORABLE DISCHARGE. IN REMITTING THAT PART OF THE SENTENCE UPON TERMINATION OF THE PERIOD OF CONFINEMENT, IT MUST HAVE BEEN INTENDED THAT THE FORFEITURES WERE TO BE APPLIED ONLY DURING THAT PERIOD. HENCE, WE AGREE WITH THE ADMINISTRATIVE CONCLUSION THAT THE MEMBER REVERTED TO A RETIRED STATUS (WITH APPROPRIATE RETIRED PAY) AT THE EXPIRATION OF HIS PERIOD OF CONFINEMENT. CF. 40 COMP. GEN. 79, 81, AND THE CASES THEREIN CITED.

UNDER THE PROVISIONS OF PARAGRAPH 126E OF THE MANUAL FOR COURTS MARTIAL, UNITED STATES, 1951, AS AMENDED BY EXECUTIVE ORDER NO. 10256, JUNE 23, 1951, AUTOMATIC REDUCTION TO THE LOWEST ENLISTED PAY GRADE WAS EFFECTED WHEN THE COURT-MARTIAL SENTENCE INCLUDED (1) DISHONORABLE OR BAD CONDUCT DISCHARGE, WHETHER OR NOT SUSPENDED, (2) CONFINEMENT OR (3) HARD LABOR WITHOUT CONFINEMENT. WHILE IT IS UNDERSTOOD THAT THE JUDGE ADVOCATE GENERAL OF THE ARMY IS OF THE OPINION THAT SUCH REGULATIONS ARE NOT APPLICABLE TO RETIRED ENLISTED MEN TRIED BY A COURT-MARTIAL WHILE IN A RETIRED STATUS, HE HAS EXPRESSED THE VIEW THAT THE MATTER IS NOT FREE FROM DOUBT. THE LANGUAGE USED IN THE REGULATIONS IS BROAD ENOUGH TO COVER THE SITUATION OF A RETIRED ENLISTED MAN SO TRIED AND IN THE CIRCUMSTANCES IT IS BELIEVED PROPER TO WITHHOLD PAYMENT OF RETIRED PAY TO AN ENLISTED MAN IN SERGEANT SCOTT'S POSITION, IN ANY AMOUNT IN EXCESS OF THAT AUTHORIZED ON THE BASIS OF PAY GRADE E-1, FROM THE DATE OF HIS RELEASE FROM CONFINEMENT (AND PRIOR TO THE DATE HE WAS ADVANCED ON THE RETIRED LIST) UNTIL THE MATTER HAS BEEN CLARIFIED BY THE COURTS. SEE IN THIS CONNECTION OUR DECISION OF NOVEMBER 7, 1961, B 146614, 41 COMP. GEN. 293. SEE ALSO, LONGWILL V. UNITED STATES, 17 CT.1CL. 288 AND CHARLES V. UNITED STATES, 19 CT.1CL. 316. IT IS OUR VIEW THAT SERGEANT SCOTT IS ENTITLED TO INCREASED RETIRED PAY, AS A CAPTAIN, FROM THE DATE OF HIS ADVANCEMENT TO THAT GRADE ON THE RETIRED LIST.

ACCORDINGLY, PAYMENT ON THE VOUCHER RECEIVED WITH YOUR LETTER IS NOT PROPER AND SUCH VOUCHER, WITH RELATED PAPERS, WILL BE RETAINED HERE. NEW VOUCHER MAY BE PREPARED IN ACCORDANCE WITH THIS DECISION AND, IF OTHERWISE CORRECT, PAYMENT MAY BE MADE THEREON.