B-168623, FEB. 17, 1970

B-168623, FEB. 17, 1970

MILITARY--COURT-MARTIAL PROCEEDINGS--WITNESS FEES DECISION CONCERNING CLAIM OF DOCTOR FOR FEE FOR PSYCHIATRIC EVALUATION INCIDENT TO COURT-MARTIAL PROCEEDING. DOCTOR WHO FURNISHED PSYCHIATRIC EVALUATION DEPOSITION FOR USE IN COURT- MARTIAL WHICH DEPOSITION WAS NOT PURSUANT TO SUBPOENA OR PROPER ADMINISTRATIVE AUTHORIZATION MAY NOT BE PAID WITNESS FEES AND EXPENSES FOR SUCH SERVICES UNDER PAR. 116 OF THE MANUAL FOR COURTS-MARTIAL (1969). HOWEVER, CLAIM MAY BE PRESENTED TO MARINE CORPS FOR TIME FOR TAKING OF DEPOSITION, SUPPORTED BY AVAILABLE DOCUMENTS.

TO FRANCIS L. CLARK, JR; M.D.:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 1, 1969, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED NOVEMBER 14, 1969, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT OF $120 FOR PSYCHIATRIC EVALUATION INCIDENT TO COURT-MARTIAL PROCEEDINGS IN THE CASE OF RAY E. SULLIVAN, USMC.

IN YOUR LETTER OF JULY 17, 1969, PRESENTING YOUR CLAIM, YOU STATED THAT YOU WERE REQUESTED BY AN OFFICER OF THE STAFF OF THE JUDGE ADVOCATE, MARINE CORPS BASE, QUANTICO, VIRGINIA, TO DO A PSYCHIATRIC EVALUATION OF CORPORAL SULLIVAN, THE DEFENDANT IN A COURT-MARTIAL ACTION. YOU SAID THAT EVALUATIONS WERE MADE DURING TWO HOUR SESSIONS ON JUNE 28 AND AUGUST 13, 1968. YOU STATED FURTHER THAT IT WAS YOUR UNDERSTANDING THAT THE MEMBER WOULD PAY THE BILL, BUT IF HE SHOULD BE UNABLE TO MAKE THE PAYMENT, THE MARINE CORPS WOULD DO SO. YOU MENTIONED FURTHER THAT YOU WERE SUBSEQUENTLY ADVISED THAT THE OFFICER WHO WAS THE TRIAL COUNSEL FOR THE DEFENDANT HAD NOT APPLIED IN ACCORDANCE WITH MARINE CORPS PROCEDURE FOR PAYMENT FOR AN EXPERT WITNESS. ALSO, YOU SAID THAT YOU WERE NEVER SERVED WITH A SUBPOENA.

THE ADMINISTRATIVE REPORT IN THE MATTER STATED THAT YOU HAD BEEN A WITNESS FOR THE DEFENSE AT THE COURT-MARTIAL HELD AT MARINE CORPS BASE, QUANTICO, VIRGINIA. IT STATES FURTHER THAT A SEARCH OF THE RECORDS FAILS TO SHOW THAT YOUR SERVICES WERE REQUESTED IN ACCORDANCE WITH REGULATIONS PRESENTLY CONTAINED IN PARAGRAPH 116 OF THE MANUAL FOR COURTS-MARTIAL (1969), GOVERNING THE EMPLOYMENT OF AN EXPERT WITNESS. IT ADVISED THAT ORDINARY WITNESS FEES AT THE RATE OF $4 PER DAY ARE PAYABLE PURSUANT TO THE ISSUANCE OF A SUBPOENA PROPERLY SERVED PRIOR TO THE DATE OF THE TRIAL.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED NOVEMBER 14, 1969, FOR THE REASONS THEREIN STATED. IN YOUR LETTER OF DECEMBER 1, 1969, YOU STATE THAT INITIALLY YOU HAD BEEN REQUESTED TO EXAMINE THE DEFENDANT BY HIS ATTORNEY. YOU STATE FURTHER THAT FROM THE TRANSCRIPT OF THE MEMBER'S TRIAL, IT CAN BE DETERMINED THAT THREE UNIFORMED MILITARY PERSONNEL CAME FROM QUANTICO, VIRGINIA, TO GEORGETOWN UNIVERSITY TO TAKE A DEPOSITION IN YOUR OFFICE. THIS DEPOSITION, YOU SAY, WAS ACCEPTED INTO EVIDENCE BY THE COURT AND IT PLAYED AN IMPORTANT PART IN THE COURT'S DECISION.

YOU CONTEND THEREFORE THAT THE DEPOSITION WAS EVIDENCE THAT YOU SERVED AS AN EXPERT WITNESS AND ITS ACCEPTANCE AND USE IN THE TRIAL SHOULD CONSTITUTE AN AUTHORIZATION. YOU ALSO SAY THAT YOU WERE NOT ADVISED BY EITHER THE DEFENSE ATTORNEY OR THE PROSECUTOR OF THE NECESSITY FOR A FORMAL AUTHORIZATION AND YOU EXPRESS THE BELIEF THAT THE GOVERNMENT HAS AN OBLIGATION TO INFORM THE MEDICAL SPECIALISTS WHO ARE SOUGHT OUT BY IT FOR CONSULTATION, RELATIVE TO THE REQUIREMENTS FOR PAYMENT FOR PROFESSIONAL SERVICES.

THE AUTHORITY FOR EMPLOYMENT OF EXPERT WITNESSES IN CONNECTION WITH COURT -MARTIAL PROCEEDINGS AT THE TIME UNDER CONSIDERATION, IS CONTAINED IN PARAGRAPH 116 OF THE "MANUAL FOR COURTS-MARTIAL, UNITED STATES, 1951," WHICH WAS PROMULGATED BY THE PRESIDENT BY EXECUTIVE ORDER NO. 10214, DATED FEBRUARY 8, 1951, 16 F.R. 1303. THIS PARAGRAPH IS SUBSTANTIALLY IDENTICAL TO PARAGRAPH 116 CONTAINED IN THE 1969 EDITION OF THE MANUAL, AND PROVIDES AS FOLLOWS:

"EMPLOYMENT OF EXPERTS. -- WHEN THE EMPLOYMENT OF AN EXPERT IS NECESSARY DURING A TRIAL BY COURT-MARTIAL, THE TRIAL COUNSEL, IN ADVANCE OF THE EMPLOYMENT, WILL, ON THE ORDER OR PERMISSION OF THE COURT, REQUEST THE CONVENING AUTHORITY TO AUTHORIZE SUCH EMPLOYMENT AND TO FIX THE LIMIT OF COMPENSATION TO BE PAID THE EXPERT. THE REQUEST SHOULD, IF PRACTICABLE, STATE THE COMPENSATION THAT IS RECOMMENDED BY THE PROSECUTION AND THE DEFENSE. WHERE IN ADVANCE OF TRIAL THE PROSECUTION OR THE DEFENSE KNOWS THAT THE EMPLOYMENT OF AN EXPERT WILL BE NECESSARY, APPLICATION SHOULD BE MADE TO THE CONVENING AUTHORITY FOR PERMISSION TO EMPLOY THE EXPERT, STATING THE NECESSITY THEREFOR AND THE PROBABLE COST. IN THE ABSENCE OF SUCH PREVIOUS AUTHORIZATION, NO FEES, OTHER THAN ORDINARY WITNESS FEES, MAY BE PAID FOR THE EMPLOYMENT OF AN INDIVIDUAL AS AN EXPERT WITNESS."

SUPPLEMENTAL INSTRUCTIONS ARE CONTAINED IN SECTION 0131-J, MANUAL OF THE JUDGE ADVOCATE GENERAL, U.S. NAVY, DATED APRIL 6, 1965. THAT SUBSECTION PROVIDES IN PERTINENT PART THAT WHEN THE SERVICES OF AN EXPERT WITNESS ARE REQUIRED, THE CONVENING AUTHORITY SHALL INFORM THE JUDGE ADVOCATE GENERAL BY EXPEDITIOUS MEANS OF (1) THE DURATION OF THE EXPECTED TESTIMONY AND (2) THE RECOMMENDED DAILY COMPENSATION FOR SUCH EXPERT WITNESS. UPON RECEIPT OF SUCH INFORMATION, THE JUDGE ADVOCATE GENERAL, ACTING FOR THE SECRETARY OF THE NAVY, WILL ADVISE THE CONVENING AUTHORITY OF THE AMOUNT OF COMPENSATION AUTHORIZED. IT PROVIDES FURTHER THAT AFTER AN EXPERT WITNESS HAS TESTIFIED, THE CERTIFICATE OF A PROPER OFFICER INVOLVED IN THAT PROCEEDING, TOGETHER WITH A CERTIFIED COPY OF THE AUTHORIZATION OF THE JUDGE ADVOCATE GENERAL, WILL SUBSTANTIATE PAYMENT OF THE RECOMMENDED COMPENSATION BY A DISBURSING OFFICER.

AUTHORITY FOR TAKING OF DEPOSITIONS OF WITNESSES IN COURT-MARTIAL PROCEEDINGS IS PROVIDED IN ARTICLE 49, UNIFORM CODE OF MILITARY JUSTICE (1951), 10 U.S.C. 849, AND IN PARAGRAPH 117 OF THE COURT MARTIAL MANUAL. SUBSECTION A OF ARTICLE 49 PROVIDES IN PERTINENT PART THAT ANY PARTY TO A COURT-MARTIAL MAY AT ANY TIME AFTER CHARGES HAVE BEEN SIGNED, TAKE ORAL OR WRITTEN DEPOSITIONS UNLESS AN AUTHORITY COMPETENT TO CONVENE A COURT- MARTIAL FOR TRIAL OF THESE CHARGES FORBIDS IT FOR GOOD CAUSE. IT PROVIDES FURTHER THAT IF A DEPOSITION IS TO BE TAKEN BEFORE CHARGES ARE REFERRED FOR TRIAL, THE OFFICERS DESIGNATED BY SUCH AUTHORITY MAY BE AUTHORIZED TO TAKE THE DEPOSITION OF ANY WITNESS.

SECTION 0131-A OF THE MANUAL OF THE JUDGE ADVOCATE GENERAL, IMPLEMENTING ARTICLE 49 AND PARAGRAPH 117 OF THE MANUAL, PROVIDES IN PERTINENT PART THAT IN INSTANCES WHERE A DEPOSITION OF A CIVILIAN WITNESS HAS BEEN TAKEN, THE FEES AND MILEAGE WILL BE PAYABLE TO THAT WITNESS UPON THE PRESENTATION OF A PUBLIC VOUCHER, PROPERLY COMPLETED, SIGNED BY THE WITNESS AND CERTIFIED BY THE PROPER OFFICER, TOGETHER WITH THE SUBPOENA SERVED ON THAT WITNESS AND A CERTIFIED COPY OF THE ORDER APPOINTING THE COURT-MARTIAL.

IF A DEPOSITION IS TAKEN BEFORE CHARGES ARE REFERRED FOR TRIAL, FEES AND MILEAGE ARE PAYABLE UPON A PROPERLY COMPLETED PUBLIC VOUCHER ACCOMPANIED BY AN ORDER FROM THE OFFICER WHO AUTHORIZED THE TAKING OF THE DEPOSITION, SUBSCRIBED BY HIM AND DIRECTING THE DISBURSING OFFICER TO PAY THE FEES AND MILEAGE SUPPORTED BY THE PUBLIC VOUCHER. SUBSECTION I (1) OF THAT SECTION PROVIDES FOR PAYMENT TO A CIVILIAN WITNESS NOT IN GOVERNMENT EMPLOY, SUMMONED BEFORE A NAVAL TRIBUNAL OR AT A PLACE WHERE HIS DEPOSITION IS TO BE TAKEN FOR USE BEFORE SUCH COURT, A FEE OF $4 FOR EACH DAY'S ACTUAL ATTENDANCE AND FOR THE TIME NECESSARILY OCCUPIED IN GOING TO AND RETURNING FROM THE SAME PURSUANT TO SUCH SUMMONS, TOGETHER WITH 8 CENTS PER MILE FOR GOING FROM AND RETURNING TO HIS PLACE OF RESIDENCE, PROVIDED SUCH TRAVEL IS PERFORMED AS THE DIRECT RESULT OF BEING DULY SUMMONED TO APPEAR AS A WITNESS.

PARAGRAPH 116, MANUAL FOR COURTS-MARTIAL, QUOTED ABOVE, SPECIFICALLY REQUIRES THAT TO SUBSTANTIATE PAYMENT OF FEES OF EXPERT WITNESSES BY THE GOVERNMENT IN COURT-MARTIAL PROCEEDINGS, THE APPLICATION FOR THE EMPLOYMENT OF SUCH WITNESSES MUST BE APPROVED BY COMPETENT AUTHORITY IN ADVANCE OF THE EMPLOYMENT; OTHERWISE ONLY ORDINARY WITNESS FEES MAY BE PAID. SINCE THE RECORD SHOWS THAT AN APPLICATION FOR YOUR EMPLOYMENT AS AN EXPERT WITNESS WAS NOT SUBMITTED IN ACCORDANCE WITH PARAGRAPH 116, THERE IS NO AUTHORITY FOR THE PAYMENT OF THE FEE CLAIMED.

YOU SAY THAT YOU WERE NOT SUMMONED BY SUBPOENA TO APPEAR AS A WITNESS AT THE COURT-MARTIAL PROCEEDINGS. AND THE RECORD BEFORE US DOES NOT SHOW THE ADMINISTRATIVE AUTHORIZATION FOR TAKING YOUR DEPOSITION WITH RESPECT TO DEFENDANT SULLIVAN OR WHETHER YOU PERFORMED ANY TRAVEL IN THAT CONNECTION. THUS, THERE IS NO BASIS ON THE PRESENT RECORD FOR THE PAYMENT OF ORDINARY WITNESS FEES AND EXPENSES INCIDENT TO YOUR SERVICES. ACCORDINGLY, THE SETTLEMENT DATED NOVEMBER 14, 1969, IS SUSTAINED.

HOWEVER, YOU MAY PRESENT A CLAIM TO THE MARINE CORPS FOR ORDINARY WITNESS FEES FOR THE TIME NECESSARILY OCCUPIED IN THE TAKING OF YOUR DEPOSITION FOR USE AT THE COURT-MARTIAL PROCEEDINGS, SUBSTANTIATED BY ANY AVAILABLE SUPPORTING DOCUMENTS. IF SUCH A CLAIM IS NOT SATISFACTORILY ADJUSTED IT MAY BE REFERRED TO US FOR CONSIDERATION.

IT IS REGRETTED THAT YOU WERE NOT FURNISHED THE NECESSARY REGULATORY PROVISIONS PERTAINING TO YOUR EMPLOYMENT AS A MEDICAL EXPERT. HOWEVER, OUR OFFICE IS GOVERNED BY THE RULE STATED BY THE SUPREME COURT IN FEDERAL CROPS INS. CORP. V. MERRILL, 332 U.S. 380-384 (1947), AS FOLLOWS:

"* * * WHATEVER THE FORM IN WHICH THE GOVERNMENT FUNCTIONS, ANYONE ENTERING INTO AN ARRANGEMENT WITH THE GOVERNMENT TAKES THE RISK OF HAVING ACCURATELY ASCERTAINED THAT HE WHO PURPORTS TO ACT FOR THE GOVERNMENT STAYS WITHIN THE BOUNDS OF HIS AUTHORITY. THE SCOPE OF THIS AUTHORITY MAY BE EXPLICITLY DEFINED BY CONGRESS OR BE LIMITED BY DELEGATED LEGISLATION, PROPERLY EXERCISED THROUGH THE RULE-MAKING POWER. AND THIS IS SO EVEN THOUGH, AS HERE, THE AGENT HIMSELF MAY HAVE BEEN UNAWARE OF THE LIMITATIONS UPON HIS AUTHORITY." THE COURT STATED FURTHER THAT "JUST AS EVERYONE IS CHARGED WITH KNOWLEDGE OF THE UNITED STATES STATUTES AT LARGE, CONGRESS HAS PROVIDED THAT THE APPEARANCE OF RULES AND REGULATIONS IN THE FEDERAL REGISTER GIVES LEGAL NOTICE OF THEIR CONTENTS. 49 STAT. 502, 44 U.S.C. SEC. 307."