B-137010, OCTOBER 16, 1958, 38 COMP. GEN. 310

B-137010: Oct 16, 1958

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PROHIBITING PAYMENT TO PERSONS CONVICTED OF CERTAIN OFFENSES - COURT MARTIAL SENTENCES THE TEST OF WHETHER A MILITARY OFFENSE IS A FELONY WITHIN THE SCOPE OF THE ACT OF SEPTEMBER 1. IS NOT THE ACTUAL PUNISHMENT IMPOSED. IT IS IMMATERIAL WHETHER THE COURT-MARTIAL BEFORE WHICH THE ACCUSED IS BROUGHT TO TRAIL HAS JURISDICTION TO IMPOSE THE MAXIMUM PUNISHMENT. IN THE DETERMINATION OF WHETHER THE OFFENSES OF WHICH A PERSON IS CONVICTED BY COURT-MARTIAL WOULD COME WITHIN THE SCOPE OF THE ACT OF SEPTEMBER 1. ONLY THE CHARGES AND SPECIFICATIONS ON WHICH THE ACCUSED IS TRIED AND CONVICTED AS SHOWN IN THE RECORD OF THE TRIAL MAY BE USED. UNLESS THE COURT-MARTIAL TRIAL RECORD SHOWS THAT THE ACCUSED WAS CHARGED AND CONVICTED OF AN OFFENSE WHICH IS PUNISHABLE BY DEATH OR CONFINEMENT IN EXCESS OF 1 YEAR AND WHICH IS ANALOGOUS TO ONE OF A CIVIL NATURE IT IS NOT WITHIN THE SCOPE OF THE ACT.

B-137010, OCTOBER 16, 1958, 38 COMP. GEN. 310

MILITARY PERSONNEL - RETIRED PAY - EFFECT OF ACT OF SEPTEMBER 1, 1954, PROHIBITING PAYMENT TO PERSONS CONVICTED OF CERTAIN OFFENSES - COURT MARTIAL SENTENCES THE TEST OF WHETHER A MILITARY OFFENSE IS A FELONY WITHIN THE SCOPE OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 740B, WHICH BARS ENTITLEMENT TO RETIRED PAY, IS NOT THE ACTUAL PUNISHMENT IMPOSED, BUT THE PUNISHMENT IMPOSABLE UNDER THE MANUAL FOR COURTS-MARTIAL, 1951, AND IT IS IMMATERIAL WHETHER THE COURT-MARTIAL BEFORE WHICH THE ACCUSED IS BROUGHT TO TRAIL HAS JURISDICTION TO IMPOSE THE MAXIMUM PUNISHMENT. IN THE DETERMINATION OF WHETHER THE OFFENSES OF WHICH A PERSON IS CONVICTED BY COURT-MARTIAL WOULD COME WITHIN THE SCOPE OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 740C (2), WHICH BARS ENTITLEMENT TO RETIRED PAY, ONLY THE CHARGES AND SPECIFICATIONS ON WHICH THE ACCUSED IS TRIED AND CONVICTED AS SHOWN IN THE RECORD OF THE TRIAL MAY BE USED, AND UNLESS THE COURT-MARTIAL TRIAL RECORD SHOWS THAT THE ACCUSED WAS CHARGED AND CONVICTED OF AN OFFENSE WHICH IS PUNISHABLE BY DEATH OR CONFINEMENT IN EXCESS OF 1 YEAR AND WHICH IS ANALOGOUS TO ONE OF A CIVIL NATURE IT IS NOT WITHIN THE SCOPE OF THE ACT.

TO THE SECRETARY OF DEFENSE, OCTOBER 16, 1958:

REFERENCE IS MADE TO LETTER DATED AUGUST 2, 1958, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING OUR DECISION ON CERTAIN QUESTIONS CONTAINED IN AN ENCLOSED COPY OF COMMITTEE ACTION NO. 244 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE. THE QUESTIONS ARE AS FOLLOWS:

1. IN VIEW OF THE MAXIMUM PUNISHMENT IMPOSABLE BY A SPECIAL COURT MARTIAL, IS A CONVICTION BY A SPECIAL COURT-MARTIAL OF AN OFFENSE WHICH WOULD OTHERWISE FALL WITHIN THE SCOPE OF THE SECTION 1, CLAUSE 2 OF THE ACT OF 1 SEPTEMBER 1954, 68 STAT. 1142; 5 U.S.C. 740B ET SEQ., CONSIDERED A CONVICTION OF A FELONY UNDER THE ABOVE ACT SO AS TO BAR ENTITLEMENT TO RETIRED PAY?

2. IF IN A GENERAL OR SPECIAL COURT-MARTIAL THERE IS A PLEA OF GUILTY, AND EITHER NO EVIDENCE OR SUFFICIENT EVIDENCE IS CONTAINED IN THE RECORD OF TRIAL, MAY EVIDENCE NOT A PART OF THE RECORD OF TRIAL BE USED IN DETERMINING WHETHER AN OFFENSE COMES WITHIN THE SCOPE OF SECTION 1, CLAUSE 2, ACT OF 1 SEPTEMBER 1954, SUPRA?

3. IF THE ANSWER TO THE FIRST QUESTION IS IN THE AFFIRMATIVE AND THE ANSWER TO THE SECOND QUESTION IS IN THE NEGATIVE, WOULD THERE BE A SUFFICIENT BASIS ON WHICH TO MAKE A DETERMINATION WHETHER AN OFFENSE COMES WITHIN THE SCOPE OF SECTION 1, CLAUSE 2 OF THE ACT OF 1 SEPTEMBER 1954, SUPRA?

IN 35 COMP. GEN. 302, WE HELD THAT A CONVICTION BY A COURT-MARTIAL OF AN OFFENSE WHICH IS A FELONY UNDER THE DEFINITION OF FELONY CONTAINED IN 18 U.S.C. 1, AND SUBPARAGRAPHS 213D (6), MANUAL FOR COURTS MARTIAL, 1951, CONSTITUTED A CONVICTION OF A FELONY "UNDER THE LAWS OF THE UNITED TATES" WITHIN THE MEANING OF SECTION 1, CLAUSE 2, OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 740C (2). SUBPARAGRAPH 213D (6) DEFINES A FELONY AS ANY OFFENSE OF A CIVIL NATURE PUNISHABLE UNDER AUTHORITY OF THE UNIFORM CODE OF MILITARY JUSTICE BY DEATH OR BY CONFINEMENT FOR A TERM EXCEEDING 1 YEAR. IN DECISION OF MAY 11, 1956, B-127022, WE SAID THAT THE TEST OF WHAT CONSTITUTES A FELONY FOR THE PURPOSES OF 35 COMP. GEN. 302 IS NOT THE ACTUAL PUNISHMENT IMPOSED BUT THE PUNISHMENT IMPOSABLE, AND THAT PARAGRAPH 127C OF THE MANUAL FOR COURTS-MARTIAL, 1951, WHICH SETS OUT A TABLE OF MAXIMUM PUNISHMENTS FOR OFFENSES UNDER THE CODE, PROVIDES AN ADEQUATE METHOD FOR DETERMINING WHETHER AN OFFENSE IS PUNISHABLE BY CONFINEMENT EXCEEDING 1 YEAR. SINCE UNDER THAT DECISION THE DETERMINING FACTOR IS THE MAXIMUM SENTENCE IMPOSABLE AND NOT THE ACTUAL PUNISHMENT IMPOSED, IT IS IMMATERIAL WHETHER THE COURT-MARTIAL BEFORE WHICH THE ACCUSED IS BROUGHT TO TRIAL HAS JURISDICTION TO IMPOSE THE MAXIMUM AUTHORIZED PUNISHMENT. QUESTION NO. 1 IS ANSWERED IN THE AFFIRMATIVE.

WITH RESPECT TO QUESTION NO. 2, ARTICLES 10 AND 30 OF THE UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. 810; ID. 830, REQUIRE THAT PERSONS WHO ARE BROUGHT TO TRIAL FOR VIOLATION OF THE CODE BE INFORMED OF THE CHARGE AGAINST THEM AND THE THE CHARGES AND SPECIFICATIONS BE SIGNED BY THE ACCUSER. PARAGRAPHS 27 AND 28 OF THE MANUAL FOR COURT-MARTIAL, 1951, PROVIDE, IN SUBSTANCE, THAT SUCH CHARGES AND SPECIFICATIONS SHALL SET OUT CLEARLY AND CONCISELY THE ARTICLE OF THE CODE WHICH THE PERSON IS ACCUSED OF VIOLATING AND THE FACTS CONSTITUTING THE OFFENSE. ARTICLE 54 OF THE CODE, 10 U.S.C. 854, PROVIDES THAT A WRITTEN RECORD BE KEPT OF COURT- MARTIAL TRIAL. UNDER THE PROVISIONS OF SUBPARAGRAPH 79E AND PARAGRAPHS 82 AND 83 OF THE MANUAL FOR COURTS-MARTIAL, 1951, SUCH WRITTEN RECORD WILL INCLUDE THE "CHARGE SHEET," REGARDLESS OF WHETHER THE TRIAL IS BY A GENERAL OR AN INFERIOR COURT-MARTIAL, AND THE REVIEW PROVISIONS OF THE CODE ( ARTICLES 59 THROUGH 76), 10 U.S.C. 859 876, AND THE MANUAL FOR COURTS-MARTIAL ( CHAPTERS 17 THROUGH 20) WOULD SEEM TO REQUIRE THAT THE RECORD OF THE TRIAL, WHETHER SUMMARIZED OR IN DETAIL, CONTAIN SUFFICIENT INFORMATION TO PERMIT AN APPROPRIATE REVIEW, EVEN THOUGH THE CHARGE IS MADE UNDER GENERAL ARTICLE 134 OF THE CODE, 10 U.S.C. 934, A GUILTY PLEA IS ENTERED, AND NO EVIDENCE IS TAKEN AT THE TRIAL.

IN THE LIGHT OF SUCH STATUTORY AND REGULATORY REQUIREMENTS AND HAVING IN MIND THAT PENAL STATUTES ARE TO BE STRICTLY CONSTRUED, IT IS OUR VIEW THAT THE DETERMINATION OF WHETHER THE OFFENSE OF WHICH A PERSON IS CONVICTED BY COURT-MARTIAL WOULD OTHERWISE FALL WITHIN THE SCOPE OF SECTION 1, CLAUSE 2, OF THE ACT OF SEPTEMBER 1, 1954, SHOULD BE BASED SOLELY ON THE CHARGES AND SPECIFICATIONS ON WHICH THE ACCUSED IS TRIED AND CONVICTED AS SHOWN IN THE RECORD OF THE TRIAL. QUESTION NO. 2 IS ANSWERED IN THE NEGATIVE. FOLLOWS THAT, UNLESS THE RECORD OF THE COURT-MARTIAL TRIAL SHOWS THAT THE ACCUSED WAS CHARGED WITH AND CONVICTED OF AN OFFENSE WHICH IS PUNISHABLE BY DEATH OR CONFINEMENT IN EXCESS OF 1 YEAR AND SUCH OFFENSE IS ANALOGOUS TO ONE OF A CIVIL NATURE, THERE WOULD BE NO BASIS FOR A CONCLUSION THAT THE OFFENSE CONCERNED COMES WITHIN SECTION 1, CLAUSE 2, OF THE ACT OF SEPTEMBER 1, 1954. QUESTION 3 IS ANSWERED IN THE NEGATIVE.