DECEMBER 1, 1921, 1 COMP. GEN. 291

DECEMBER 1, 1921, 1 COMP. GEN. 291

FORFEITURES OF ARMY PAY COURT-MARTIAL FORFEITURES OF FUTURE ARMY PAY ARE COLLECTED AS THE PAY ACCRUES, EXCEPT AS TO LIQUIDATION OF INDEBTEDNESS, AND THE REMISSION OF THE UNEXECUTED PORTION OF THE SENTENCE DOES NOT OPERATE ON PAY SO COLLECTED.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 1, 1921:

THE CHIEF OF THE WAR DEPARTMENT DIVISION HAS SUBMITTED A MEMORANDUM DECISION ON THE CLAIM OF LEANDER W. TOURIGNY, PRIVATE, COMPANY B, THIRD BATTALION, UNITED STATES GUARDS, FOR THE AMOUNT WITHHELD FROM HIS PAY PURSUANT TO A COURT-MARTIAL SENTENCE REMITTED AFTER THE EXECUTION OF A PORTION THEREOF. THE ADJUTANT GENERAL OF THE ARMY REPORTS:

1. THE RECORDS OF THIS OFFICE SHOW THAT LEANDER W. TOURIGNY, PRIVATE, COMPANY B, 3RD BATTALION, U.S. GUARDS WAS TRIED BY GENERAL COURT-MARTIAL FOR VIOLATION OF THE 65TH ARTICLE OF WAR, AND WAS SENTENCED TO BE CONFINED AT HARD LABOR FOR TWO YEARS, AND TO FORFEIT TWO-THIRDS OF HIS PAY PER MONTH FOR A LIKE PERIOD. THE SENTENCE WAS APPROVED BUT WAS MITIGATED TO CONFINEMENT AT HARD LABOR FOR EIGHT MONTHS, AND FORFEITURE OF TWO-THIRDS OF HIS PAY EACH MONTH FOR A LIKE PERIOD.

2. PARAGRAPH 10, SPECIAL ORDERS NO. 288, HEADQUARTERS NORTHEASTERN DEPARTMENT, DECEMBER 11, 1918, STATES THAT SO MUCH OF THE SENTENCE IMPOSED BY GENERAL COURT-MARTIAL IN THE CASE OF PRIVATE LEANDER W. TOURIGNY, COMPANY B, 3RD BATTALION, U.S. GUARDS PUBLISHED IN GENERAL COURT-MARTIAL ORDER NO. 217, JULY 30, 1918, AS REMAINS UNEXECUTED THIS DATE, IS HEREBY REMITTED.

IT APPEARS THAT NO PAYMENTS WERE MADE TO CLAIMANT SUBSEQUENT TO JUNE 30, 1918, UNTIL HIS DISCHARGE FROM THE ARMY, DECEMBER 16, 1918, AND THAT ON HIS FINAL STATEMENT THERE WAS DEDUCTED THE FORFEITURE OF TWO-THIRDS OF HIS PAY PER MONTH TO DATE OF REMISSION OF THE SENTENCE. THE FIFTIETH ARTICLE OF WAR, CONTAINED IN SECTION 1342, REVISED STATUTES, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT., 658, PROVIDES:

THE POWER TO ORDER THE EXECUTION OF THE SENTENCE ADJUDGED BY A COURT MARTIAL SHALL BE HELD TO INCLUDE, INTER ALIA, THE POWER TO MITIGATE OR REMIT THE WHOLE OR ANY PART OF THE SENTENCE, BUT NO SENTENCE OF DISMISSAL OF AN OFFICER AND NO SENTENCE OF DEATH SHALL BE MITIGATED OR REMITTED BY ANY AUTHORITY INFERIOR TO THE PRESIDENT.

ANY UNEXECUTED PORTION OF A SENTENCE ADJUDGED BY A COURT-MARTIAL MAY BE MITIGATED OR REMITTED BY THE MILITARY AUTHORITY COMPETENT TO APPOINT, FOR THE COMMAND, EXCLUSIVE OF PENITENTIARIES AND THE UNITED STATES DISCIPLINARY BARRACKS, IN WHICH THE PERSON UNDER SENTENCE IS HELD, A COURT OF THE KIND THAT IMPOSED THE SENTENCE, AND THE SAME POWER MAY BE EXERCISED BY SUPERIOR MILITARY AUTHORITY; BUT NO SENTENCE EXTENDING TO THE DISMISSAL OF AN OFFICER OR LOSS OF FILES, NO SENTENCE OF DEATH, AND NO SENTENCE APPROVED OR CONFIRMED BY THE PRESIDENT SHALL BE REMITTED OR MITIGATED BY ANY OTHER AUTHORITY.

THE POWER OF REMISSION AND MITIGATION SHALL EXTEND TO ALL UNCOLLECTED FORFEITURES ADJUDGED BY SENTENCE OF A COURT-MARTIAL.

THE MEMORANDUM DECISION IS IN PART AS FOLLOWS:

THE SECOND PARAGRAPH OF THE NEW ARTICLE 50 IS NOT UNLIKE THE OLD ARTICLE 112 WITH THE CONSTRUCTION PLACED UPON IT BY THE COMPTROLLER IN PRIOR DECISIONS, 19 COMP. DEC., 60, UNDER WHICH THE POWER OF REMISSION WAS CONSTRUED TO EXTEND ONLY TO THE UNEXECUTED PORTION OF THE SENTENCE BOTH OF CONFINEMENT AND FORFEITURE, AND THE FORFEITURE WAS HELD TO BE EXECUTED AS THE PAY ACCRUED TO SOLDIER BY LENGTH OF SERVICE, THAT IS THE FORFEITURE EXECUTED ITSELF AS PAY ACCRUED.

THE THIRD PARAGRAPH OF THE NEW ARTICLE 50 IS ENTIRELY NEW AND STATES THAT THE POWER OF REMISSION "SHALL EXTEND TO ALL UNCOLLECTED FORFEITURES.' THIS SHOWS A PURPOSE OF GREATER LIBERALITY IN REGARD TO REMISSION OF FORFEITURES OF PAY THAN WAS POSSIBLE UNDER THE CONSTRUCTION PLACED UPON THE OLD ARTICLE 112, AND I AM OF THE OPINION THAT A FORFEITURE CAN NOT BE CONSIDERED COLLECTED UNTIL IT IS ACTUALLY CHARGED AGAINST A SOLDIER'S PAY ON A PAY ROLL WITH A STATEMENT OF HIS ACCOUNT SHOWING THE BALANCE TO DATE, EITHER CREDIT OR DEBIT, AND PAID TO SOLDIER OR CARRIED FORWARD FOR COLLECTION.

IN THE INSTANT CASE SOLDIER'S UNEXECUTED SENTENCE (OF JULY 30, 1918) WAS REMITTED DECEMBER 11, 1918. OF COURSE THE CONFINEMENT WAS EXECUTED TO THAT DATE AND THE BALANCE ONLY OF THAT PART OF SENTENCE CAN BE REMITTED. BUT, AS SOLDIER HAD NOT BEEN PAID SINCE THE DATE OF SENTENCE, AND AS HE CONTINUALLY HAD A BALANCE OF PAY DUE HIM, NO PART OF THE FORFEITURE HAD BEEN COLLECTED AND THE ENTIRE FORFEITURE, AS DEDUCTED, IS REMITTED.

THE ONE HUNDRED AND TWELFTH ARTICLE OF WAR IN EFFECT PRIOR TO AUGUST 29, 1916, PROVIDED:

EVERY OFFICER WHO IS AUTHORIZED TO ORDER A GENERAL COURT-MARTIAL SHALL HAVE POWER TO PARDON OR MITIGATE ANY PUNISHMENT ADJUDGED BY IT, EXCEPT THE PUNISHMENT OF DEATH OR OF DISMISSAL OF AN OFFICER. EVERY OFFICER COMMANDING A REGIMENT OR GARRISON IN WHICH A REGIMENTAL OR GARRISON COURT- MARTIAL MAY BE HELD, SHALL HAVE POWER TO PARDON OR MITIGATE ANY PUNISHMENT WHICH SUCH COURT MAY ADJUDGE.

THE POWER TO "PARDON" A "PUNISHMENT" GIVEN BY THIS ARTICLE WAS THE EQUIVALENT OF THE POWER TO REMIT, AND NOT THE POWER TO PARDON WHICH THE PRESIDENT HAS UNDER THE CONSTITUTION. SEE PARAGRAPH 716, WINTHROP'S MILITARY LAW AND PRECEDENTS, WHERE IT IS SAID:

THE EXERCISE OF THIS LIMITED POWER SIMPLY RELIEVES THE ACCUSED IN WHOLE OR IN PART FROM THE PUNISHMENT; THE GUILT OF THE OFFENDER AS FOUND, AND THE PENAL LIABILITIES, CONSEQUENT THEREUPON, REMAINING UNAFFECTED IN LAW. THUS A MERE REMISSION OF THE PUNISHMENT ADJUDGED A DESERTER WILL NOT RELIEVE HIM FROM THE CIVIL DISQUALIFICATION ATTACHED BY STATUTE TO HIS CONVICTION; * * * A PARDON OF THE OFFENDER BY THE PRESIDENT WILL BE NECESSARY TO RESTORE THE FORFEITED RIGHT.

IT HAS BEEN HELD THAT FORFEITURES OF PAY TO ACCRUE IN THE FUTURE, IMPOSED BY SENTENCE OF A COURT-MARTIAL, ARE SELF-EXECUTING; THAT IS, THE AMOUNT FORFEITED IS IN CONTEMPLATION OF LAW COLLECTED, I.E., RETURNED, AS IT ACCRUES FROM THE APPROPRIATION UNDER WHICH THE PAY ACCRUES TO THE GENERAL TREASURY, AND THAT THE GOVERNMENT IS RELEASED BY THE SENTENCE FROM ITS PROMISE TO PAY THE ACCRUING SALARY. 23 COMP. DEC., 340, 344; 12 ID., 276, 284. I AM OF OPINION THAT THE THIRD PARAGRAPH OF THE FIFTIETH ARTICLE OF WAR DOES NOT HAVE THE EFFECT OF ALTERING OR CHANGING THIS SELF-EXECUTING CHARACTERISTIC OF COURT MARTIAL FORFEITURES OF PAY, AND THAT FORFEITURES OF PAY TO ACCRUE IN THE FUTURE IMPOSED BY SENTENCES OF COURTS-MARTIAL ARE TO BE CONSIDERED AS COLLECTED FROM DAY TO DAY AS THE PAY ACCRUES; SUBJECT, HOWEVER, TO THE QUALIFICATION THAT THE FORFEITURES IMPOSED WILL BE DEFERRED UNTIL THE INDEBTEDNESS OF THE SOLDIER TO THE GOVERNMENT HAS BEEN LIQUIDATED. 24 COMP. DEC., 621; 14 ID., 490.