MARCH 17, 1924, 3 COMP. GEN. 653

MARCH 17, 1924, 3 COMP. GEN. 653

NAVY PAY - COURT-MARTIAL CHECK AGES - MITIGATION OF SENTENCE BY THE SECRETARY OF THE NAVY THE ACTION OF THE SECRETARY OF THE NAVY IN MITIGATING SO MUCH OF A GENERAL COURT-MARTIAL SENTENCE AS INVOLVED THE LOSS OF PAY IS NOT EFFECTIVE SO AS TO RESTORE TO THE ENLISTED MAN THE RIGHT TO PAY FORFEITED PRIOR TO DATE OF THE SECRETARY'S ACTION.

COMPTROLLER GENERAL MCCARL TO LIEUT. J. E. FORD, UNITED STATES NAVY, MARCH 17, 1924:

I HAVE YOUR LETTER OF FEBRUARY 2, 1924, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE INITIAL PAYMENT OF ALLOTMENT ARISING BY REASON OF MITIGATION BY THE SECRETARY OF THE NAVY ON DECEMBER 20, 1923, OF A GENERAL COURT-MARTIAL SENTENCE IN CASE OF GEORGE E. KRETZ, APPRENTICE SEAMAN, UNITED STATES NAVY, AS FOLLOWS:

IN VIEW OF INFORMATION RECEIVED IN THE DEPARTMENT SHOWING THAT THE WIFE OF THE ABOVE-NAMED MAN IS IN DESTITUTE CIRCUMSTANCES, UNABLE TO WORK AND LIABLE TO BECOME A PUBLIC CHARGE, THE DEPARTMENT HEREBY MITIGATES SO MUCH OF THE SENTENCE IN HIS CASE INVOLVING LOSS OF PAY AS FOLLOWS:

AFTER SUFFICIENT PAY HAS ACCRUED TO MEET THE REQUIREMENTS AS SET FORTH IN SECTION NO. 883, NAVAL COURTS AND BOARDS, 1923, THERE IS REMITTED FROM THE LOSS OF PAY ADJUDGED THE SUM OF FIFTEEN ($15.00) DOLLARS PER MONTH UNTIL FURTHER ORDERS OF THE DEPARTMENT, PROVIDED THAT THIS PRISONER ALLOT THE FOREGOING TO HIS WIFE, MRS. GEORGE E. KRETZ, 15 TUTTLE ST., REVERE, MASS.

THE REQUIREMENTS SET FORTH IN SECTION 883, NAVAL COURTS AND BOARDS, 1923, ARE THAT AFTER THE MAN'S ACCRUED PAY SHALL HAVE DISCHARGED HIS INDEBTEDNESS TO THE UNITED STATES AT THE DATE OF APPROVAL OF SENTENCE AND SUFFICIENT FUNDS HAVE ACCRUED TO HIS CREDIT TO DEFRAY THE COST OF TRANSPORTATION TO HIS HOME OR PLACE OF ENLISTMENT, SUBSISTENCE EN ROUTE, AND THE CIVILIAN CLOTHES TO BE FURNISHED UPON DISCHARGE, HE SHALL FORFEIT ALL PAY THAT MAY BECOME DUE HIM DURING THE TERM OF CONFINEMENT EXCEPT $3 PER MONTH PRISON EXPENSES DURING SUCH CONFINEMENT AND A FURTHER SUM OF $20 TO BE PAID HIM ON DISCHARGE.

YOU STATE THAT ON DECEMBER 19, 1923, KRETZ HAD AN ACCRUED CREDIT OF $57.99 AGAINST WHICH IS CHARGEABLE A SUM OF $40.86 TO DEFRAY THE COST OF HIS TRANSPORTATION AND SUBSISTENCE TO HIS HOME, AND THAT HE IS EXEMPT FROM CHECK AGE FOR CIVILIAN OUTFIT ON DISCHARGE DUE TO THE SURRENDER OF HIS UNIFORMS. NO REFERENCE IS MADE TO OTHER AMOUNTS CHARGEABLE AGAINST SAID CREDIT. YOU REQUEST INSTRUCTIONS WHETHER THE LAW AUTHORIZES PAYMENT TO KRETZ'S WIFE OF $5.50 COVERING THE PRORATED AMOUNT DUE AS AN INITIAL PAYMENT OF ALLOTMENT. YOU DO NOT EXPLAIN JUST HOW SUCH PRORATED AMOUNT IS DETERMINED. HOWEVER, THE $5.50 APPARENTLY REPRESENTS AN AMOUNT SUPPOSED TO HAVE ACCRUED PRIOR TO DECEMBER 20, 1923, DATE ON WHICH THE MITIGATION OF THE SENTENCE WAS PROMULGATED, AND THE QUESTION IS WHETHER THE ACTION OF THE SECRETARY OF THE NAVY MITIGATING THE SENTENCE IS RETROACTIVE IN ITS EFFECT SO AS TO AUTHORIZE PAYMENT TO KRETZ BY WAY OF AN ALLOTMENT TO HIS WIFE OF AN AMOUNT WHICH BY THE ORIGINAL TERMS OF THE SENTENCE HAD BEEN FORFEITED WHEN THE MITIGATION ORDER WAS ISSUED.

SECTION 9 OF THE ACT OF FEBRUARY 16, 1909, 35 STAT., 621, PROVIDES:

THAT THE SECRETARY OF THE NAVY MAY SET ASIDE THE PROCEEDINGS OR REMIT OR MITIGATE, IN WHOLE OR IN PART, THE SENTENCE IMPOSED BY ANY NAVAL COURT- MARTIAL CONVENED BY HIS ORDER OR BY THAT OF ANY OFFICER OF THE NAVY OR MARINE CORPS.

THIS STATUTE CONFERS UPON THE SECRETARY OF THE NAVY AUTHORITY TO REMIT OR MITIGATE ANY PART OF A GENERAL COURT-MARTIAL SENTENCE THAT HAS NOT BEEN EXECUTED. A REMISSION OR MITIGATION IS IN THE NATURE OF A PARDON--- AN ACT OF GRACE OR LENIENCY--- AND DOES NOT PURPORT TO ESTABLISH THE DEGREE OF GUILT OR INNOCENCE OF THE PERSON AFFECTED. IT PRESUMES THAT WHAT HAS BEEN DONE IN THE EXECUTION OF THE SENTENCE HAS RIGHTFULLY BEEN DONE AND THAT THE OFFENDER HAS JUSTLY SUFFERED. IT MAY RELEASE THE OFFENDER FROM THE CONSEQUENCE OF THE OFFENSE FROM DATE OF ITS ISSUANCE, BUT IT CAN AFFORD NO RELIEF FROM WHAT THE OFFENDER HAS ALREADY SUFFERED BY EXECUTION OF THE SENTENCE PRIOR TO DATE THE REMISSION OR MITIGATION IS GRANTED. ITS EFFECT IS PROSPECTIVE ONLY AND SUCH PART OF THE SENTENCE AS HAS BEEN EXECUTED REMAINS UNAFFECTED THEREBY. SEE VANDERSLICE V. UNITED STATES, 19 CT.CLS., 480; 12 COMP. DEC., 276; 19 ID., 60.

APPARENTLY BY THE TERMS OF THE SENTENCE KRETZ WAS TO FORFEIT ALL PAY THAT MIGHT ACCRUE TO HIM EXCEPT CERTAIN AMOUNT AS PROVIDED IN SECTION 883, NAVAL COURTS AND BOARDS, AND THAT ON THE DATE OF THE SECRETARY'S ACTION MITIGATING SUCH LOSS OF PAY, THERE HAD ACCRUED TO HIS CREDIT $5.50 OVER AND ABOVE ITEMS EXCEPTED FROM FORFEITURE. SINCE ALL OF SUCH PAY WAS FORFEITED AS IT BECAME DUE AND SUCH FORFEITURE WAS EXECUTED WHEN THE SECRETARY ACTED ON DECEMBER 20, 1923, IT COULD NOT BE REMITTED.

ACCORDINGLY, YOU ARE ADVISED THAT NO PAY WHICH ACCRUED TO KRETZ PRIOR TO DECEMBER 20, 1923, MAY BE APPLIED ON PAYMENT OF AN ALLOTMENT MADE TO HIS WIFE PURSUANT TO THE SECRETARY'S ACTION MITIGATING THE COURT-MARTIAL SENTENCE. 1 COMP. GEN., 291, 2 ID., 445; 19 COMP. DEC., 60, AND CASES CITED THEREIN.