B-147704, JAN. 16, 1962

B-147704: Jan 16, 1962

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

AGERTON: REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 27. THAT LETTER WILL BE CONSIDERED AN APPEAL TO SETTLEMENT DATED SEPTEMBER 29. WE ALSO HAVE YOUR LETTER DATED DECEMBER 2. THE RECORD DISCLOSES THAT YOU WERE TRIED BEFORE A GENERAL COURT MARTIAL CONVENED APRIL 29. YOU WERE FOUND GUILTY AS CHARGED AND SENTENCED TO BE DISHONORABLY DISCHARGED FROM THE SERVICE. THE SENTENCE WAS ADJUDGED MAY 8. TOTAL FORFEITURES AND CONFINEMENT AT HARD LABOR FOR 20 YEARS WAS APPROVED AND ORDERED EXECUTED. YOU SAY THAT WHILE YOU WERE CONFINED AWAITING DISPOSITION OF YOUR CASE. YOU ARE ENTITLED TO YOUR PAY AS A SOLDIER UNTIL YOUR COURT-MARTIAL SENTENCE WAS APPROVED. THE PROVISION OF LAW UPON WHICH YOU RELY IS ARTICLE 57 (A) OF THE UNIFORM CODE OF MILITARY JUSTICE.

B-147704, JAN. 16, 1962

TO MR. THOMAS M. AGERTON:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 27, 1961, ADDRESSED TO THE ADJUTANT GENERAL OF THE ARMY CONCERNING PAY ALLEGED TO BE DUE YOU INCIDENT TO YOUR SERVICE IN THE UNITED STATES ARMY UNDER SERIAL NO. RA 12260392. THAT LETTER WILL BE CONSIDERED AN APPEAL TO SETTLEMENT DATED SEPTEMBER 29, 1950, WHICH DISALLOWED YOUR CLAIM FOR PAY FOR THE PERIOD APRIL 1 TO 30, 1947. WE ALSO HAVE YOUR LETTER DATED DECEMBER 2, 1961, RELATIVE TO THE SAME SUBJECT MATTER.

THE RECORD DISCLOSES THAT YOU WERE TRIED BEFORE A GENERAL COURT MARTIAL CONVENED APRIL 29, 1947, ON THE CHARGE OF VIOLATION OF THE 92D ARTICLE OF WAR, AND AS INDICATED BY GENERAL COURT-MARTIAL ORDERS NO. 51, DATED AUGUST 15, 1947, HEADQUARTERS SIXTH INFANTRY DIVISION, APO 6, YOU WERE FOUND GUILTY AS CHARGED AND SENTENCED TO BE DISHONORABLY DISCHARGED FROM THE SERVICE, TO FORFEIT ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE, AND TO BE CONFINED AT HARD LABOR AT SUCH PLACE AS THE REVIEWING AUTHORITY MAY DIRECT. THE SENTENCE WAS ADJUDGED MAY 8, 1947, AND ONLY SO MUCH THEREOF AS PROVIDED FOR DISHONORABLE DISCHARGE, TOTAL FORFEITURES AND CONFINEMENT AT HARD LABOR FOR 20 YEARS WAS APPROVED AND ORDERED EXECUTED.

YOU SAY THAT WHILE YOU WERE CONFINED AWAITING DISPOSITION OF YOUR CASE, YOU SIGNED FOR YOUR PAY FOR THE MONTH OF APRIL, 1947, BUT DID NOT RECEIVE SUCH PAY. YOU NOW CLAIM THAT PAY ON THE BASIS THAT UNDER THE MANUAL FOR COURTS-MARTIAL, 1951, YOU ARE ENTITLED TO YOUR PAY AS A SOLDIER UNTIL YOUR COURT-MARTIAL SENTENCE WAS APPROVED.

THE PROVISION OF LAW UPON WHICH YOU RELY IS ARTICLE 57 (A) OF THE UNIFORM CODE OF MILITARY JUSTICE, 64 STAT. 126, 10 U.S.C. 857 (A), AS FOLLOWS:

"WHENEVER A SENTENCE OF A COURT-MARTIAL AS LAWFULLY ADJUDGED AND APPROVED INCLUDES A FORFEITURE OF PAY AND ALLOWANCE IN ADDITION TO CONFINEMENT NOT SUSPENDED, THE FORFEITURE MAY APPLY TO PAY AND ALLOWANCES BECOMING DUE ON OR AFTER THE DATE THE SENTENCE IS APPROVED BY THE CONVENING AUTHORITY. FORFEITURE MAY EXTEND TO ANY PAY OR ALLOWANCES ACCRUED BEFORE THAT DATE.'

AN EXAMINATION OF THE LEGISLATIVE HISTORY DISCLOSES THAT ARTICLE 57 WAS NEW LEGISLATION SINCE FORMERLY AN ARMY COURT-MARTIAL SENTENCE COULD FORFEIT SUCH EARNINGS.

THE UNIFORM CODE OF MILITARY JUSTICE BECAME EFFECTIVE MAY 31, 1951, OR ON THE LAST DAY OF THE TWELFTH MONTH AFTER MAY 5, 1950, DATE OF APPROVAL OF THE ACT, IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 140, SECTION 5. THE ACT CONTAINS NO PROVISION GIVING IT RETROACTIVE EFFECT AND THE DELAY OF 12 MONTHS BEFORE ALLOWING IT TO BECOME EFFECTIVE NEGATIVES ANY IMPLIED INTENT BY THE CONGRESS TO MAKE THE ACT APPLY RETROACTIVELY. SINCE YOU WERE COURT -MARTIALED IN 1947, THE ACT AND THE MANUAL FOR COURTS-MARTIAL, 1951, EFFECTIVE MAY 31, 1951, HAVE NO BEARING UPON YOUR CASE. AT THE TIME OF YOUR TRIAL, THE MANUAL FOR COURTS-MARTIAL, 1928, IN EFFECT FROM APRIL 1, 1928, TO FEBRUARY 1, 1949, GOVERNED THE PROCEEDINGS IN YOUR CASE. UNDER THE LAW AND REGULATIONS THEN IN EFFECT, IT WAS HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT, WHERE A SOLDIER WAS SENTENCED BY A GENERAL COURT MARTIAL TO FORFEIT ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE, ALL AMOUNTS DUE THE SOLDIER AS PAY AND ALLOWANCES AT THE DATE OF APPROVAL OF THE COURT-MARTIAL WERE EMBRACED IN THE FORFEITURE SO LONG AS THEY ACCRUED UNDER THE ENLISTMENT THEN CURRENT. THUS, THE SENTENCE IN YOUR CASE TO FORFEIT ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE, CONTAINED IN GENERAL COURT-MARTIAL ORDERS NO. 51, REACHED THE PAY DUE YOU FOR THE MONTH OF APRIL 1947 WHICH REMAINED UNPAID AT THE DATE OF APPROVAL OF THE SENTENCE TO TOTAL FORFEITURES. ACCORDINGLY, SETTLEMENT DATED SEPTEMBER 29, 1950, WAS CORRECT, AND UPON REVIEW, MUST BE SUSTAINED.