B-79777, OCTOBER 8, 1948, 28 COMP. GEN. 233

B-79777: Oct 8, 1948

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WHEREIN YOU REQUEST DECISION ON THE FOLLOWING QUESTION: WHEN A NAVY COURT-MARTIAL IS ATTENDED VOLUNTARILY BY A CIVILIAN WITNESS WHO RESIDES OUTSIDE THE STATE BUT WITHIN THE NAVAL DISTRICT IN WHICH THE COURT SITS. THE FEES OF SUCH WITNESSES ARE PAID AT THE RATES PROVIDED FOR WITNESSES IN U.S. THE PERTINENT PROVISIONS OF LAW GOVERNING THE ORGANIZATION AND PROCEDURE OF NAVAL COURTS ARE CONTAINED IN ARTICLE 42 OF THE ARTICLES FOR THE GOVERNMENT OF THE NAVY (34 U.S.C. 1200) WHICH PROVIDES FOR THE SUBPOENAING OF PERSONS TO APPEAR BEFORE A NAVAL COURT MARTIAL OR COURT OF INQUIRY AND AUTHORIZES THAT THERE BE PAID SUCH WITNESSES FEES AND MILEAGE AT THE RATES PROVIDED FOR WITNESSES IN THE UNITED STATES DISTRICT COURT FOR THE STATE.

B-79777, OCTOBER 8, 1948, 28 COMP. GEN. 233

COAST GUARD - COURTS MARTIAL - CIVILIAN WITNESS FEES AND MILEAGE UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF MAY 26, 1906, AS MADE APPLICABLE TO THE COAST GUARD BY SECTION 1 OF THE ACT OF JANUARY 28, 1915, ESTABLISHING COAST GUARD COURTS TO BE GOVERNED IN THEIR ORGANIZATION AND PROCEDURE SUBSTANTIALLY IN ACCORDANCE WITH NAVAL COURTS, A CIVILIAN WITNESS WHO VOLUNTARILY ATTENDS A COAST GUARD COURT MARTIAL AT THE INSTANCE OF SUCH COURT MAY BE REIMBURSED THE FEES AND MILEAGE PROVIDED FOR WITNESSES ATTENDING NAVAL COURTS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, OCTOBER 8, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 24, 1948, WHEREIN YOU REQUEST DECISION ON THE FOLLOWING QUESTION:

WHEN A NAVY COURT-MARTIAL IS ATTENDED VOLUNTARILY BY A CIVILIAN WITNESS WHO RESIDES OUTSIDE THE STATE BUT WITHIN THE NAVAL DISTRICT IN WHICH THE COURT SITS, SUCH WITNESS MAY LAWFULLY BE PAID HIS FEES AND MILEAGE, EVEN THOUGH ATTENDANCE COULD NOT BE COMPELLED. (SECTION 247, NAVAL COURTS AND BOARDS). THE FEES OF SUCH WITNESSES ARE PAID AT THE RATES PROVIDED FOR WITNESSES IN U.S. DISTRICT COURTS. (ARTICLE 42 (C), ARTICLES FOR THE GOVERNMENT OF THE NAVY). MAY THE COAST GUARD PAY SIMILAR WITNESS FEES AND MILEAGE UNDER LIKE CIRCUMSTANCES?

SECTION 3 OF THE ACT OF MAY 26, 1906, 34 STAT. 200, MADE APPLICABLE TO THE COAST GUARD BY SECTION 1 OF THE ACT OF JANUARY 28, 1915, 38 STAT. 800, 14 U.S.C. 143, PROVIDES, IN PERTINENT PART, THAT---

OFFENSES AGAINST THE DISCIPLINE OF THE COAST GUARD TOO GRAVE IN CHARACTER TO BE ADEQUATELY DEALT WITH DIRECTLY BY THE COMMANDING OFFICER, AS HEREINBEFORE PROVIDED, MAY BE PUNISHED BY COAST GUARD COURTS, TO BE CONVENED BY OR UNDER DIRECTION OF THE SECRETARY OF THE TREASURY. SUCH COURTS SHALL CONSIST OF NOT LESS THAN THREE COMMISSIONED OFFICERS OF THE COAST GUARD, AND SHALL, UNDER RULES APPROVED BY THE SECRETARY OF THE TREASURY, BE GOVERNED IN THEIR ORGANIZATION AND PROCEDURE SUBSTANTIALLY IN ACCORDANCE WITH NAVAL COURTS * * *.

THE PERTINENT PROVISIONS OF LAW GOVERNING THE ORGANIZATION AND PROCEDURE OF NAVAL COURTS ARE CONTAINED IN ARTICLE 42 OF THE ARTICLES FOR THE GOVERNMENT OF THE NAVY (34 U.S.C. 1200) WHICH PROVIDES FOR THE SUBPOENAING OF PERSONS TO APPEAR BEFORE A NAVAL COURT MARTIAL OR COURT OF INQUIRY AND AUTHORIZES THAT THERE BE PAID SUCH WITNESSES FEES AND MILEAGE AT THE RATES PROVIDED FOR WITNESSES IN THE UNITED STATES DISTRICT COURT FOR THE STATE, TERRITORY, OR DISTRICT (OF COLUMBIA) IN WHICH SUCH COURT MARTIAL OR COURT OF INQUIRY IS HELD. WHILE WITNESSES WHO RESIDE BEYOND THE STATE, TERRITORY, OR DISTRICT (OF COLUMBIA) IN WHICH THE COURT MARTIAL IS HELD MAY NOT BE COMPELLED TO ATTEND, IF THEY VOLUNTARILY ATTEND THEY LAWFULLY MAY BE PAID THEIR FEES AND MILEAGE. SEE SECTION 247, NAVAL COURTS AND BOARDS, 1937.

ALTHOUGH A COURT MARTIAL IS NOT A COURT IN THE FULL SENSE OF THE TERM, OR AS THE SAME IS UNDERSTOOD IN CIVIL PHRASEOLOGY, ITS PROCEEDINGS ARE JUDICIAL IN NATURE, AND IT IS RECOGNIZED THAT THE ATTENDANCE OF WITNESSES WHOSE TESTIMONY MAY BE MATERIAL TO THE PROPER DISPOSITION OF THE CASE ON TRIAL IS AN ESSENTIAL PART OF THEIR OPERATION. CF. DECISION OF JANUARY 31, 1931, A-34743. UNDOUBTEDLY, IT WOULD TEND TO IMPEDE THE ATTENDANCE OF WITNESSES WHO DO NOT RESIDE AT THE PLACE OF TRIALIF THEY ARE REQUIRED TO APPEAR AT PERSONAL EXPENSE. HOWEVER, NO PROVISION OF LAW HAS BEEN FOUND WHICH EXPRESSLY AUTHORIZES THE PAYMENT OF FEES AND MILEAGE TO WITNESSES ATTENDING COAST GUARD COURTS MARTIAL; HENCE, IF ANY SUCH AUTHORITY EXISTS IT MUST BE FOUND IN THE SAID SECTION 3 OF THE ACT OF MAY 26, 1906, 34 STAT. 200.

THE LANGUAGE USED IN SUCH SECTION IS NOT SUCH AS GENERALLY IS USED IN AN ASSIMILATION STATUTE. HOWEVER, IT WOULD APPEAR NECESSARY TO CONCLUDE THAT THE PURPOSE OF THAT SECTION WAS TO ACCOMPLISH--- AT LEAST TO THE EXTENT DEEMED PRACTICABLE--- AN ASSIMILATION OF THE ORGANIZATION AND PROCEDURES OF COAST GUARD COURTS TO THOSE PROVIDED BY LAW FOR THE OPERATION OF NAVAL COURTS, THE PHRASE "SUBSTANTIALLY IN ACCORDANCE WITH NAVAL COURTS" APPARENTLY HAVING BEEN USED IN RECOGNITION OF THE FACT THAT INHERENT DIFFERENCES IN THE TWO SERVICES MIGHT PRECLUDE A COMPLETE ASSIMILATION. ASIDE FROM THE QUESTION OF WHETHER SUCH ASSIMILATION WOULD AUTHORIZE A COAST GUARD COURT MARTIAL TO COMPEL THE ATTENDANCE OF A WITNESS, THE CONCLUSION APPEARS WARRANTED THAT SUCH WITNESSES AS VOLUNTARILY ATTEND AT THE INSTANCE OF SUCH COURT MAY BE REIMBURSED THE FEES AND MILEAGE PROVIDED FOR WITNESSES ATTENDING NAVAL COURTS. SUCH EXPENDITURES APPEAR TO HAVE BEEN CONTEMPLATED BY ARTICLES 114 AND 116, COAST GUARD COURTS AND BOARDS, 1935, WHICH SET FORTH THE PROCEDURES TO BE FOLLOWED IN CASES WHERE THE ATTENDANCE OF WITNESSES INVOLVING TRAVEL AT GOVERNMENT EXPENSE IS INVOLVED.

IN VIEW OF THE FOREGOING, THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.