B-78839, NOVEMBER 16, 1948, 28 COMP. GEN. 316

B-78839: Nov 16, 1948

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DOES NOT LIMIT OR RESTRICT THE AUTHORITY OF MILITARY TRIBUNALS IN IMPOSING SENTENCES IN COURT-MARTIAL CASES INVOLVING INFRACTIONS OF THE ARTICLES OF WAR BY CIVIL PERSONNEL WHO ARE WITHOUT TERRITORIAL JURISDICTION OF THE UNITED STATES. SO THAT A COURT -MARTIAL SENTENCE IMPOSED UNDER ARTICLE (2) (D) OF THE ARTICLES OF WAR WHICH REQUIRED A FORMER EMPLOYEE SERVING IN THE EUROPEAN THEATER "TO FORFEIT ALL PAY ALLOWANCES DUE OR TO BECOME DUE" WILL NOT BE QUESTIONED. IS TO BE REGARDED AS INCLUDING A LUMP-SUM LEAVE PAYMENT DUE UPON SEPARATION UNDER THE ACT OF DECEMBER 21. THE WITHHOLDING OF SUCH LUMP SUM FROM A FORMER EMPLOYEE PURSUANT TO A COURT-MARTIAL SENTENCE DIRECTING THE FORFEITURE OF ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE WILL BE CONSIDERED AS HAVING BEEN CORRECT.

B-78839, NOVEMBER 16, 1948, 28 COMP. GEN. 316

COURTS MARTIAL - CIVILIAN EMPLOYEES - PAY AND ALLOWANCE FORFEITURES THE ACT OF FEBRUARY 24, 1931, PROHIBITING THE WITHHOLDING OF EARNED PAY, SALARY, OR EMOLUMENT OF ANY CIVIL EMPLOYEE REMOVED FOR CAUSE EXCEPT FOR INDEBTEDNESS TO THE UNITED STATES, DOES NOT LIMIT OR RESTRICT THE AUTHORITY OF MILITARY TRIBUNALS IN IMPOSING SENTENCES IN COURT-MARTIAL CASES INVOLVING INFRACTIONS OF THE ARTICLES OF WAR BY CIVIL PERSONNEL WHO ARE WITHOUT TERRITORIAL JURISDICTION OF THE UNITED STATES, SO THAT A COURT -MARTIAL SENTENCE IMPOSED UNDER ARTICLE (2) (D) OF THE ARTICLES OF WAR WHICH REQUIRED A FORMER EMPLOYEE SERVING IN THE EUROPEAN THEATER "TO FORFEIT ALL PAY ALLOWANCES DUE OR TO BECOME DUE" WILL NOT BE QUESTIONED. THE TERM "ALLOWANCES," WHEN USED IN CONNECTION WITH COURT-MARTIAL SENTENCES INVOLVING FORFEITURES OF PAY AND ALLOWANCES OF CIVIL PERSONNEL SUBJECT TO THE MILITARY LAW AND PROPERLY UNDER THE JURISDICTION OF MILITARY TRIBUNALS, IS TO BE REGARDED AS INCLUDING A LUMP-SUM LEAVE PAYMENT DUE UPON SEPARATION UNDER THE ACT OF DECEMBER 21, 1944, AND, THEREFORE, THE WITHHOLDING OF SUCH LUMP SUM FROM A FORMER EMPLOYEE PURSUANT TO A COURT-MARTIAL SENTENCE DIRECTING THE FORFEITURE OF ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE WILL BE CONSIDERED AS HAVING BEEN CORRECT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE ARMY, NOVEMBER 16, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 23, 1948, INVOLVING THE CASE OF A FORMER CIVILIAN EMPLOYEE OF THE WAR DEPARTMENT (NOW DEPARTMENT OF THE ARMY) SERVING UNDER A ONE-YEAR APPOINTMENT IN THE EUROPEAN THEATER WHO WAS DISMISSED FOR CAUSE PRIOR TO THE EXPIRATION OF SUCH TERM OF EMPLOYMENT AS A RESULT OF GENERAL COURT-MARTIAL PROCEEDINGS IN WHICH HE WAS SENTENCED TO DISMISSAL, CONFINEMENT AT HARD LABOR FOR TWO YEARS, AND "TO FORFEIT ALL PAY AND ALLOWANCES DUE OR TO BECOME DUE.' WHILE IT APPEARS THAT THE MATTER PRESENTLY BEFORE YOUR DEPARTMENT IS THE CLAIM OF THE FORMER EMPLOYEE CONCERNED FOR LUMP-SUM PAYMENT FOR ANNUAL LEAVE NOT PAID TO HIM AT THE TIME OF HIS DISMISSAL FROM THE SERVICE, THE QUESTION IS PRESENTED IN YOUR LETTER AS TO WHETHER THE ABOVE-QUOTED PORTION OF THE COURT-MARTIAL SENTENCE IS CONTRARY TO THE ACT OF FEBRUARY 24, 1931, 5 U.S.C. 46A, WHICH PROVIDES THAT---

FROM AND AFTER FEBRUARY 24, 1931, THERE SHALL BE NO WITHHOLDING OR CONFISCATION OF THE EARNED PAY, SALARY, OR EMOLUMENT OF ANY CIVIL EMPLOYEE OF THE UNITED STATES REMOVED FOR CAUSE: PROVIDED, THAT IF AT THE TIME OF SUCH REMOVAL ANY SUCH EMPLOYEE IS INDEBTED TO THE UNITED STATES ANY SALARY, PAY, OR EMOLUMENT ACCRUING TO SUCH EMPLOYEE COMING WITHIN THE PROVISIONS OF THIS SECTION SHALL BE APPLIED IN WHOLE OR IN PART TO THE SATISFACTION OF ANY CLAIM OR INDEBTEDNESS DUE TO THE UNITED STATES.

THE PURPOSE OF THE ABOVE-QUOTED STATUTE IS CLEARLY INDICATED IN THE HOUSE AND SENATE REPORTS ON SUCH MEASURE. IT WAS STATED IN HOUSE OF REPRESENTATIVES REPORT NO. 2301 OF THE 71ST CONGRESS, 3RD SESSION, UNDER THE TITLE " PURPOSE OF LEGISLATION" THAT---

THE COMPTROLLER GENERAL HAS RULED THAT UPON REMOVAL FOR CAUSE A FEDERAL EMPLOYEE FORFEITS ANY EARNED SALARY THEN DUE, WHETHER ACTUAL INDEBTEDNESS TO THE GOVERNMENT IS SHOWN OR NOT. THIS OPINION IS PREDICATED ON AN ANCIENT ENGLISH RULE, THERE BEING NO CONTROLLING FEDERAL STATUTE. YOUR COMMITTEE BELIEVES THAT THE APPLICATION OF THIS RULE IS UNJUST WHEN THE ONLY POINT INVOLVED IS BREACH OF CONTRACT, AND THE PURPOSE OF THIS BILL IS TO SET ASIDE THE RULING OF THE COMPTROLLER GENERAL IN SUCH CASES, WHICH ARE COMPARATIVELY RARE. THE FISCAL INTERESTS OF THE GOVERNMENT WILL REMAIN PROTECTED WHEN ANY INDEBTEDNESS IS INVOLVED, AND YOUR COMMITTEE DOES NOT BELIEVE THAT THE GOVERNMENT SHOULD DEMAND THE SACRIFICE OF ACCRUED SALARY SINCE THE LAST PAY DAY WHEN AN EMPLOYEE IS DISCHARGED FOR CAUSES THAT HAVE NO ASCERTAINABLE MONETARY VALUE. LANGUAGE OF SIMILAR IMPORT LIKEWISE IS CONTAINED IN SENATE REPORT NO. 559, 71ST CONGRESS, 2ND SESSION, ON SUCH MEASURE.

THE FORMER EMPLOYEE INVOLVED IN YOUR SUBMISSION APPARENTLY WAS TRIED, CONVICTED, AND SENTENCED IN GENERAL COURT-MARTIAL PROCEEDINGS UNDER THE AUTHORITY OF ARTICLE 2 (D) OF THE ARTICLES OF WAR, ACT OF JUNE 4, 1920, CHAPTER 2, 10 U.S.C. 1473 (D), WHICH PROVIDES:

THE FOLLOWING PERSONS ARE SUBJECT TO THESE ARTICLES AND SHALL BE UNDERSTOOD AS INCLUDED IN THE TERM "ANY PERSON SUBJECT TO MILITARY LAW," OR "PERSONS SUBJECT TO MILITARY LAW," WHENEVER USED IN THESE ARTICLES * *

(D) ALL RETAINERS TO THE CAMP AND ALL PERSONS ACCOMPANYING OR SERVING WITH THE ARMIES OF THE UNITED STATES WITHOUT THE TERRITORIAL JURISDICTION OF THE UNITED STATES, AND IN TIME OF WAR ALL SUCH RETAINERS AND PERSONS ACCOMPANYING OR SERVING WITH THE ARMIES OF THE UNITED STATES IN THE FIELD, BOTH WITHIN AND WITHOUT THE TERRITORIAL JURISDICTION OF THE UNITED STATES, THOUGH NOT OTHERWISE SUBJECT TO THESE ARTICLES * * *. ( ITALICS SUPPLIED.)

IN VIEW OF THE APPARENT PURPOSE OF THE ACT OF FEBRUARY 24, 1931, SUPRA, AS EVIDENCED BY THE REFERRED-TO COMMITTEE REPORTS, IT IS NOT CONSIDERED THAT IT WAS THE INTENT OF THE CONGRESS IN ENACTING SUCH STATUTE TO LIMIT OR RESTRICT IN ANY WAY THE AUTHORITY OF DULY CONSTITUTED MILITARY TRIBUNALS IN THE MATTER OF IMPOSING SENTENCES IN COURT-MARTIAL CASES, INVOLVING INFRACTIONS OF THE ARTICLES OF WAR, OTHERWISE PROPERLY UNDER THE JURISDICTION OF SUCH TRIBUNALS.

THE QUESTION REMAINS, HOWEVER, AS TO WHETHER A LUMP-SUM PAYMENT FOR ANNUAL LEAVE AUTHORIZED UNDER THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, FALLS WITHIN THE CATEGORY OF "PAY AND ALLOWANCES" AS USED IN THE COURT- MARTIAL SENTENCE CONCERNED. BY THE SPECIFIC WORDING OF THE SAID 1944 STATUTES THE LUMP-SUM PAYMENT FOR ANNUAL LEAVE IS NOT COMPENSATION AND NEITHER MAY IT PROPERLY BE REGARDED AS "PAY," A TERM GENERALLY CONSIDERED SYNONYMOUS WITH THE TERM "SALARY" OR "COMPENSATION" IN THE CONSTRUCTION OF PERSONNEL STATUTES. SEE 10 COMP. GEN. 302, 304. HOWEVER, THE TERM "ALLOWANCES," WHEN USED IN CONNECTION WITH COURT MARTIAL SENTENCES INVOLVING FORFEITURES OF PAY AND ALLOWANCES OF MILITARY PERSONNEL, HAS BEEN HELD TO BE ALMOST ALL-INCLUSIVE, EMBRACING EVERYTHING THAT MAY BE RECOVERED FROM THE GOVERNMENT BY A SOLDIER IN CONSIDERATION OF HIS ENLISTMENT AND SERVICE, EXCEPT THE STIPULATED MONTHLY COMPENSATION DESIGNATED AS PAY. UNITED STATES V. LANDERS, 92 U.S. 77, 80-81. WHILE THE TERM "ALLOWANCES" IS NOT SUSCEPTIBLE OF EXACT DEFINITION WHEN APPLIED TO CIVILIAN EMPLOYEES, IT REASONABLY APPEARS THAT THE SAME BROAD SCOPE MAY BE ATTRIBUTED TO THE TERM WHEN USED IN COURT-MARTIAL SENTENCES INVOLVING FORFEITURES OF PAY AND ALLOWANCES OF CIVILIAN EMPLOYEES SUBJECT TO MILITARY LAW AND PROPERLY UNDER THE JURISDICTION OF MILITARY TRIBUNALS--- AT LEAST TO THE EXTENT THAT IT COVERS THE LUMP-SUM LEAVE PAYMENTS.

THEREFORE, THE ACTION TAKEN BY THE WAR DEPARTMENT (NO DEPARTMENT OF THE ARMY) IN WITHHOLDING THE LUMP-SUM LEAVE PAYMENT UPON SEPARATION FROM SERVICE OF THE FORMER EMPLOYEE CONCERNED IS CONSIDERED TO HAVE BEEN CORRECT, AND THE CLAIM OF SUCH FORMER EMPLOYEE PRESENTLY BEFORE THE DEPARTMENT OF THE ARMY FOR ADJUDICATION SHOULD BE SETTLED ACCORDINGLY.