B-151708, AUG. 6, 1963, 43 COMP. GEN. 137

B-151708, AUG. 6, 1963, 43 COMP. GEN. 137

SOLDIERS' HOME, UNITED STATES - FUNDS - PAY FORFEITURES - NONJUDICIAL NONJUDICIAL FORFEITURES OF PAY WHICH COMMANDING OFFICERS ARE AUTHORIZED BY EXECUTIVE ORDER NO. 11081, DATED JANUARY 29, 1963, TO IMPOSE UPON WARRANT OFFICERS AND ENLISTED PERSONNEL OF THE UNIFORMED SERVICES ARE TO BE DISTINGUISHED FROM FORFEITURES OF PAY IMPOSED BY "SENTENCE OF COURTS- MARTIAL" AS SPECIFIED IN THE ACT OF MARCH 3, 1851, 24 U.S.C. 44, REQUIRING SUCH FORFEITURES TO BE DEPOSITED TO THE UNITED STATES SOLDIERS' HOME AND, THEREFORE, IN VIEW OF THE SPECIFIC REFERENCE TO SENTENCE OF COURTS-MARTIAL IN THE STATUTE, ONLY THOSE FORFEITURES OF PAY IMPOSED BY COURTS-MARTIAL SENTENCES ARE FOR CREDIT TO THE SOLDIERS' HOME AND NONJUDICIAL FORFEITURES IMPOSED BY COMMANDING OFFICERS SHOULD REMAIN IN THE APPROPRIATION.

TO THE SECRETARY OF THE ARMY, AUGUST 6, 1963:

REFERENCE IS MADE TO LETTER DATED MAY 29, 1963, FROM THE ASSISTANT SECRETARY OF THE ARMY (FINANCIAL MANAGEMENT), REQUESTING DECISION AS TO THE PROPER DISPOSITION OF NONJUDICIAL FORFEITURES OF PAY IMPOSED BY COMMANDING OFFICERS UPON REGULAR ARMY WARRANT OFFICERS AND REGULAR ARMY ENLISTED MEMBERS. THE REQUEST WAS ASSIGNED SUBMISSION NO. SS-A-706 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SECTION 7 OF THE ACT OF MARCH 3, 1851, CH. 25, 9 STAT. 596 (24 U.S.C. 44) PROVIDES THAT FOR THE SUPPORT OF THE MILITARY ASYLUM (NOW SOLDIERS' HOME) ESTABLISHED BY THE ACT THAT, AMONG OTHER FUNDS THERE DESIGNATED,"ALL STOPPAGES OR FINES ADJUDGED AGAINST SOLDIERS BY SENTENCE OF COURTS MARTIAL, OVER AND ABOVE ANY AMOUNT THAT MAY BE DUE FOR THE REIMBURSEMENT OF GOVERNMENT, OR INDIVIDUALS; ALL FORFEITURES ON ACCOUNT OF DESERTION * * *" SHALL BE SET APART AND APPROPRIATED.

BY EXECUTIVE ORDER NO. 11081, DATED JANUARY 29, 1963, PRESCRIBING VARIOUS AMENDMENTS OF THE MANUAL FOR COURTS-MARTIAL, UNITED STATES 1951, CERTAIN COMMANDING OFFICERS ARE AUTHORIZED TO IMPOSE NONJUDICIAL FORFEITURES OF PAY UPON WARRANT OFFICERS AND ENLISTED PERSONNEL OF THEIR COMMANDS. UNDER THAT AUTHORITY IT IS NOW POSSIBLE FOR COMMANDING OFFICERS TO IMPOSE FORFEITURES OF PAY WITHOUT A COURT-MARTIAL AND QUESTION IS RAISED AS TO WHETHER THESE FORFEITURES OF PAY SHOULD BE SET APART AND TRANSFERRED TO THE SOLDIERS' HOME PERMANENT FUND.

THE CONDITIONS WHICH PREVAILED AT THE TIME OF THE ESTABLISHMENT OF THE SOLDIERS' HOME WERE SUCH THAT THE CONGRESS DEEMED IT DESIRABLE TO PROVIDE A MEANS OF CARING FOR DISABLED AND AGED SOLDIERS WITHOUT IMPOSING ANY NEW BURDEN UPON THE TREASURY, SUCH AS THE ALLOWANCE OF EXTRAORDINARY PENSIONS. THUS, PROVISION WAS MADE THAT FUNDS APPROPRIATED FOR PAY OF THE ARMY WHICH WERE NOT OTHERWISE PAYABLE BECAUSE OF COURT-MARTIAL FINES AND FORFEITURES AND ALL FORFEITURES ON ACCOUNT OF DESERTION, WHICH WOULD NOT BE AVAILABLE FOR ANY OTHER USE, SHOULD BE SET APART IN PARTIAL SUPPORT OF THE HOME. THIS IS BORNE OUT BY THE STATEMENT APPEARING IN REPORT OF COMMITTEE NO. 227, 31ST CONGRESS, 2D SESSION, OF JANUARY 3, 1851, MADE BY MR. DAVIS OF MISSISSIPPI, WHICH STATED IN PART THAT "THE OTHER RESOURCES RELIED ON ARE THE HOSPITAL AND POST FUNDS, THE FINES, FORFEITURES, REVERSIONS, AND VOLUNTARY CONTRIBUTIONS OF THE ARMY.'

THE ASSISTANT SECRETARY'S LETTER STATES THAT THE IMPLICATION OF MR. DAVIS' REPORT IS THAT ALL FORFEITURES WILL BE USED TO BEAR THE COST OF OPERATING THE SOLDIERS' HOME SINCE THE TERM ,COURT-MARTIAL" DID NOT PRECEDE THE WORD "FORFEITURES" IN THE REPORT. THE DEPARTMENT OF THE ARMY APPARENTLY IS OF THE VIEW THAT NO DISTINCTION SHOULD BE MADE WITH RESPECT TO FORFEITURES OF PAY REGARDLESS OF WHETHER THE FORFEITURE WAS IMPOSED BY THE MEMBER'S COMMANDING OFFICER OR BY COURT-MARTIAL.

AT THE TIME THE MARCH 3, 1851 ACT WAS ENACTED THERE WAS NO LAW IN EXISTENCE WHICH AUTHORIZED A COMMANDING OFFICER TO IMPOSE NONJUDICIAL PUNISHMENT UPON PERSONS UNDER HIS COMMAND. THUS, NO INFERENCE MAY BE DRAWN FROM THE ABSENCE OF THE TERM "COURT-MARTIAL" IN THE REPORT ON THE BILL AS EXPLAINING OR ENLARGING THE PLAIN TERMS OF THE STATUTE. THE STATUTE CLEARLY SPECIFIES THE AMOUNTS WHICH ARE SET APART FOR THE SOLDIERS' HOME AND IT IS OUR VIEW, IN THE ABSENCE OF A FURTHER EXPRESSION OF INTENTION BY THE CONGRESS, THAT ONLY THOSE FORFEITURES OF PAY IMPOSED BY "SENTENCE OF COURTS-MARTIAL" ARE PROPERLY FOR CREDIT TO THE SOLDIERS' HOME PERMANENT FUND. NONJUDICIAL FORFEITURES OF PAY IMPOSED BY COMMANDING OFFICERS SHOULD REMAIN IN THE APPROPRIATION.