MAY 1, 1922, 1 COMP. GEN. 609

MAY 1, 1922, 1 COMP. GEN. 609

SUMMARY COURT-MARTIAL SENTENCES - DISAPPROVAL OF AFTER DISCHARGE UNDER THE ACTION OF THE SECRETARY OF THE NAVY IN SETTING ASIDE A SUMMARY COURT- MARTIAL SENTENCE, PURSUANT TO WHICH SENTENCE AN ENLISTED MAN WAS GIVEN A BAD-CONDUCT DISCHARGE BY HIS COMMANDING OFFICER, DOES NOT ALTER THE FACT THAT BY REASON OF SUCH DISCHARGE THE MAN WAS PLACED IN A NONSERVICE STATUS; NOR DOES THE SECRETARY'S ACTION IN SETTING ASIDE THE SENTENCE OPERATE TO RESTORE THE MAN TO A SERVICE STATUS SO AS TO ENTITLE HIM TO PAY BETWEEN DATE OF DISCHARGE AND DATE HE REPORTED FOR DUTY PURSUANT TO THE SECRETARY'S DIRECTION. 1 COMP. GEN., 293, ADHERED TO.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, MAY 1, 1922:

I HAVE YOUR LETTER OF MARCH 14, 1922, REQUESTING A RECONSIDERATION OF REVIEW NO. 393, DATED DECEMBER 6, 1921, OF THE CLAIM OF ALBERT D. SCOTT, W.STD., UNITED STATES NAVY, FOR REFUND OF AMOUNT CHECKED ON ACCOUNT OF SUMMARY COURT-MARTIAL SENTENCE, AND APPEAL NO. 37616, DATED DECEMBER 1, 1921, OF CLAIM OF RAY CHARLES TANNER, SEA. 2C., UNITED STATES NAVY, FOR PAY DURING PERIOD HE WAS NOT ACTUALLY PERFORMING DUTY BY REASON OF A SUMMARY COURT-MARTIAL SENTENCE, IN VIEW OF A RECENT DECISION BY THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT, IN DETERMINING THE STATUS OF AN ENLISTED MAN IN A SIMILAR CASE.

THE CASE BEFORE THE COURT WAS THAT OF WILLIAM ROBERT HARRIS, AN ENLISTED MAN IN THE NAVY WHO WAS TRIED BY A SUMMARY COURT-MARTIAL, CONVICTED, AND SENTENCED TO A BAD-CONDUCT DISCHARGE. THE PROCEEDINGS, FINDINGS, AND SENTENCE WERE APPROVED BY THE CONVENING AUTHORITY AND THE IMMEDIATE SUPERIOR IN COMMAND, AND HARRIS WAS DISCHARGED FROM THE NAVY WITH A BAD- CONDUCT DISCHARGE ON MARCH 25, 1920. THE SECRETARY OF THE NAVY SUBSEQUENTLY DISAPPROVED THE SENTENCE AND DIRECTED THAT HARRIS REPORT FOR DUTY UNDER HIS CONTRACT OF ENLISTMENT. HE DID SO UNDER PROTEST, BUT SUBSEQUENTLY RETURNED TO HIS HOME, WAS CHARGED WITH DESERTION, SURRENDERED TO THE NAVAL AUTHORITIES, AND WHILE WAITING TRIAL ON CHARGE OF DESERTION SECURED HIS RELEASE THEREFROM BY MEANS OF A WRIT OF HABEAS CORPUS ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK WHICH WAS HEARD IN APPEAL BY THE CIRCUIT COURT FOR THE SECOND DISTRICT, WHICH COURT REVERSED THE ORDER OF THE COURT BELOW ON THE GROUND THAT THE SUMMARY COURT-MARTIAL WAS WITHOUT JURISDICTION BECAUSE HARRIS WAS NOT LEGALLY CHARGED WITH THE COMMISSION OF AN OFFENSE AND THE DISCHARGE AN ABSOLUTE NULLITY AB INITIO.

THE HOLDING IN THE TANNER CASE WAS TO THE EFFECT THAT THE ACTION OF THE SECRETARY OF THE NAVY IN SETTING ASIDE THE COURT-MARTIAL SENTENCE DID NOT ALTER THE FACT THAT TANNER HAD BEEN DISCHARGED AND PUT OUT OF THE SERVICE AND DID NOT RESTORE HIM TO SERVICE SO AS TO ENTITLE HIM TO PAY PRIOR TO THE DATE HE REPORTED FOR DUTY PURSUANT TO THE SECRETARY'S DIRECTION.

THE COURT'S DECISION IN THE HARRIS CASE WAS TO THE EFFECT THAT THE NAVAL AUTHORITIES DID NOT LOSE JURISDICTION OVER HARRIS BY REASON OF THE COURT- MARTIAL SENTENCE. IT WAS NOT A DETERMINATION OF HIS PAY STATUS FOR THE PERIOD WHILE OUT OF THE SERVICE BY REASON OF THE COURT MARTIAL DISCHARGE.

THE QUESTION IN THE TANNER CASE WAS WHETHER HE WAS ENTITLED TO PAY FOR THE PERIOD FROM DATE OF DISCHARGE ON OCTOBER 25, 1920, PURSUANT TO THE COURT-MARTIAL SENTENCE TO APRIL 13, 1921, DATE HE REPORTED FOR DUTY PURSUANT TO DIRECTION OF THE SECRETARY OF THE NAVY IN REVIEW OF THE COURT- MARTIAL PROCEEDINGS. IF THE COMMANDING OFFICER PURSUANT TO SUMMARY COURT- MARTIAL SENTENCE WAS AUTHORIZED TO DISCHARGE THE MAN, SUCH DISCHARGE PLACED HIM IN A NONSERVICE STATUS, AND HE DID NOT AGAIN COME INTO A SERVICE STATUS UNTIL HE REPORTED FOR DUTY PURSUANT TO THE SECRETARY'S DIRECTION. THAT FACT DETERMINED HIS PAY STATUS.

THE COURT'S DECISION IN THE HARRIS CASE DOES NOT AFFECT THE DECISION IN THE TANNER CASE. AS STATED IN MY LETTER OF JANUARY 21, 1922, THERE RESTS WITH THE SECRETARY OF THE NAVY AUTHORITY TO REVIEW AND TO SET ASIDE THE PROCEEDINGS AND SENTENCE OF SUMMARY COURTS-MARTIAL, BUT SUCH AUTHORITY CAN NOT BE REMEDIAL TO THE EXTENT OF REMOVING THE FACT OF AN EXECUTED SENTENCE AND CAN NOT GIVE RIGHTS COMPENSATORY OF SUCH EXECUTED SENTENCE. THE SECRETARY'S ACTION IN SETTING ASIDE THE SENTENCE DID NOT GIVE TANNER RIGHT TO PAY FOR THE PERIOD WHEN BY FORCE OF THE COURT-MARTIAL SENTENCE HE WAS NOT IN A SERVICE STATUS.

THE PRINCIPLES GOVERNING IN THE TANNER CASE WERE APPLIED TO SCOTT'S CLAIM, AND THEREFORE I SEE NO REASON WHY THE CONCLUSION OF THAT REVIEW SHOULD BE MODIFIED BY REASON OF THE COURT'S DECISION IN THE HARRIS CASE.

HOWEVER, IT APPEARS THAT THE SUMMARY COURT-MARTIAL SENTENCE BY WHICH SCOTT WAS SENTENCED TO LOSE $181.50 OF HIS PAY WAS APPROVED SEPTEMBER 11 AND DISAPPROVED OCTOBER 2, 1920. ALTHOUGH THE ENTIRE AMOUNT WAS CHECKED AGAINST HIS ACCOUNT, IT APPEARS THAT HIS ACCRUED PAY PRIOR TO OCTOBER 2 WAS NOT EQUAL TO THE AMOUNT SO CHECKED, AND THEREFORE ALL OF THE ADJUDGED LOSS OF PAY WAS NOT EXECUTED ON DATE THE SENTENCE WAS DISAPPROVED. JULY 1 HE HAD A BALANCE DUE OF $73.43; HIS PAY FROM JULY 1 TO OCTOBER 1, INCLUSIVE, AMOUNTED TO $239.63, A TOTAL OF$313.06. THERE WAS CHARGEABLE AGAINST THAT AMOUNT $9.90 INSURANCE, $0.61 HOSPITAL FUND, $45 ALLOTMENT, $8 CLOTHING AND SMALL STORES, AND $125 MONEY, A TOTAL OF $188.51, LEAVING $124.55 TO APPLY ON THE SENTENCE. ACCORDINGLY, ONLY $124.55 OF THE ADJUDGED LOSS OF PAY WAS EXECUTED WHEN THE SENTENCE WAS DISAPPROVED, AND THEREFORE CLAIMANT IS ENTITLED TO A REFUND OF $181.50 LESS $124.55, OR $56.95.

THE SETTLEMENT IS MODIFIED, AND INSTEAD OF $68.95 FOUND DUE THE UNITED STATES THEREIN, $12 IS DUE THE UNITED STATES.

SINCE THE AMOUNT FORFEITED BY THE SENTENCE IS SUBJECT TO REMISSION ACCORDING TO ARTICLE 4893 N.I., THAT PART ACTUALLY EXECUTED MAY BE REFUNDED ON FINAL DISCHARGE AS PROVIDED IN THAT ARTICLE.