B-13216, MARCH 9, 1942, 21 COMP. GEN. 845

B-13216, MARCH 9, 1942, 21 COMP. GEN. 845

PAY - ABSENCES UNDER CIVIL ARREST - EFFECT OF ACQUITTAL BY REASON OF INSANITY A COAST GUARD WARRANT OFFICER WHO WAS RESPONSIBLE FOR HIS ABSENCE FROM DUTY IN THE HANDS OF CIVIL AUTHORITIES ON A WARRANT ALLEGING EMBEZZLEMENT OF THE MONEYS CONSTITUTING A SHORTAGE IN HIS ACCOUNTS IS NOT ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD OF SUCH ABSENCE, EVEN THOUGH HE WAS FOUND " NOT GUILTY BY REASON OF INSANITY AT THE TIME OF THE ALLEGED OFFENSE.'

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THOMAS R. TERWILLIGER, UNITED STATES COAST GUARD, MARCH 9, 1942:

THERE HAS BEEN CONSIDERED LETTER FROM YOUR ATTORNEY DATED FEBRUARY 11, 1942, AS FOLLOWS:

ON BEHALF OF THOMAS R. TERWILLIGER, CLAIMANT IN THE ABOVE STYLED CLAIM, PLEASE BE ADVISED THAT RECONSIDERATION OF THE CLAIM IS HEREBY REQUESTED ON THE GROUND THAT THE DISALLOWANCE OF PAY AND ALLOWANCES FOR THE PERIOD OF DEC. 11, 1940, TO APRIL 24, 1941, IS, IN MY OPINION, WHOLLY UNJUSTIFIED. THE CASE CITED AS AUTHORITY FOR THIS DISALLOWANCE IS MERWIN V. UNITED STATES, 79 CT.CLS. 561, BUT THAT CASE IS NOT IN POINT EITHER AS TO FACTS OR PRINCIPLE OF LAW.

IN THE MERWIN CASE THE DEFENDANT WAS FIRST TRIED ON A CHARGE OF MURDER AND FOUND GUILTY IN THE SECOND DEGREE. HE WAS THEN TRIED ON THE ISSUES OF INSANITY AND FOUND TO BE INSANE. HE WAS CONFINED TO AN INSTITUTION FOR A YEAR THEREAFTER. THE TERWILLIGER CASE IS TOTALLY DIFFERENT. MR. TERWILLIGER WAS ACQUITTED BY THE JURY "BY REASON OF INSANITY EXISTING AT THE TIME OF THE ALLEGED OFFENSE.' HE WAS NEVER FOUND GUILTY OF EMBEZZLEMENT OR ANY OTHER CRIME. HE WAS NOT ACQUITTED OF EMBEZZLEMENT OR ANY OTHER CRIME BY REASON OF INSANITY. IMMEDIATELY AFTER THE TRIAL HE WAS RETURNED TO DUTY. I AM AT A LOSS TO SEE ANY SIMILARITY BETWEEN THE TERWILLIGER CASE AND THE MERWIN CASE.

WILL YOU NOT THEREFORE, RECONSIDER THIS MATTER AT ONCE?

IT APPEARS FROM THE OFFICIAL RECORDS IN THIS OFFICE THAT WHILE SERVING AS AN ACTING PAY CLERK ON BOARD THE U.S. COAST GUARD CUTTER MOJAVE YOU WERE NOT ABOARD WHEN THE VESSEL DEPARTED FROM KEY WEST, FLA., SEPTEMBER 14, 1940; THAT YOU WERE BROUGHT ABOARD THE PANDORA BY CHIEF BOATSWAIN M. J. BRUCE; AND THAT AT 4 P.M. SEPTEMBER 15, YOU WERE ADMITTED TO THE MARINE HOSPITAL, KEY WEST, FLA. THE SECRETARY OF THE TREASURY REPORTED TO THIS OFFICE OCTOBER 5, 1940, THAT AN AUDIT OF YOUR ACCOUNTS WHILE STATIONED ON BOARD THE COAST GUARD CUTTER MOJAVE DISCLOSED A SHORTAGE IN YOUR ACCOUNTS OF $430. YOU WERE IN VARIOUS MARINE HOSPITALS AFTER SEPTEMBER 15, 1940. ON DECEMBER 11, YOU WERE DISCHARGED FROM THE MARINE HOSPITAL AT ELLIS ISLAND, IN THE CUSTODY OF AN ENLISTED MAN OF THE COAST GUARD, AND DELIVERED TO THE UNITED STATES MARSHAL AT MIAMI ON A WARRANT ALLEGING EMBEZZLEMENT. THE AUDIT OF YOUR MONEY ACCOUNTS ON THE MOJAVE SHOWED THE FOLLOWING:

DEBITS BALANCE DUE THE UNITED STATES AT CLOSE OF BUSINESS ON

AUG. 31, 1940 -------------------------------------------- $2,673.40 ADVANCES SUBSEQUENT TO AUG. 31, 1940:

CHECK NO. 240,635 ---------------------- $1,326.60

CHECK NO. 242, 344 --------------------- 1,326.60

2,653.20

TOTAL ------------------------------------------------ 5,326.60

CREDITS VOUCHERS PAID AND SUBMITTED FOR CREDIT WITH FORM 1655,

DATED SEPT. 6, 1940 ----------------------- $3,040.00 FORM 6599, CERTIFICATE OF DEPOSIT -------- 1,326.60 VOUCHERS PAID BUT UNSCHEDULED --- ----------- 448.79 CASH ON HAND -------------------- ---------- 81.21

TOTAL --------------------------------- $4,896.60

AMOUNT OF SHORTAGE OF CASH ACCOUNT ---------------------- 430.00

IT APPEARS THAT YOU WERE TRIED APRIL 25, 1941, UNDER AN INDICTMENT CHARGING EMBEZZLEMENT, IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, MIAMI DIVISION, AND THE FOLLOWING IS QUOTED FROM A CERTIFIED COPY OF THE COURT MINUTES OF APRIL 25, 1941: MB 22, PAGE 356 MIAMI, FLORIDA, APRIL 25, 1941.

NO. 522 K.W.

UNITED STATES OF AMERICA V. THOMAS R. TERWILLIGER

COMES NOW INTO OPEN COURT THE ASSISTANT U.S. ATTORNEY, AND COUNSEL FOR THE ABOVE-NAMED DEFENDANT BEING ALSO PRESENT, AND THE DEFENDANT HAVING BEEN TRIED BEFORE A JURY OF TWELVE GOOD AND LAWFUL MEN ON THE OFFENSE CHARGED IN THE INDICTMENT FILED HEREIN, AND SAID JURY HAVING RENDERED A VERDICT OF NOT GUILTY BY REASON OF INSANITY AT THE TIME OF THE ALLEGED OFFENSE, WHEREUPON ON MOTION OF THE ASSISTANT UNITED STATES ATTORNEY WITHOUT OPPOSITION, IT WAS ORDERED BY THE COURT THAT THE DEFENDANT, THOMAS R. TERWILLIGER BE, AND HE IS HEREBY DISCHARGED FROM CUSTODY.

YOU CLAIMED PAY AND ALLOWANCES FROM DATE TO WHICH LAST PAID, NOVEMBER 2, 1940, TO INCLUDE APRIL 24, 1941, ON THE THEORY THAT YOU HAD BEEN WITHDRAWN FROM SERVICE DECEMBER 11, 1940, TO APRIL 24, 1941, INCLUSIVE, BY THE CIVIL AUTHORITIES FOR AN OFFENSE OF WHICH YOU WERE FOUND NOT GUILTY. THE SETTLEMENT MADE BY THIS OFFICE FEBRUARY 5, 1942, ALLOWED YOU PAY FROM NOVEMBER 2 TO DECEMBER 10, 1940, WITHHELD THEREFROM THE AMOUNT OF THE SHORTAGE IN YOUR ACCOUNTS, $430, AND DISALLOWED YOUR CLAIM FOR PAY AND ALLOWANCES FOR THE PERIOD DECEMBER 11, 1940, TO APRIL 24, 1941, ON THE BASIS THAT YOU WERE RESPONSIBLE FOR YOUR ABSENCE IN THE HANDS OF THE CIVIL AUTHORITIES DURING THIS PERIOD, AND THAT THE FINDING OF THE JURY THAT YOU WERE " NOT GUILTY BY REASON OF INSANITY AT THE TIME OF THE ALLEGED OFFENSE" WAS NOT AN ACQUITTAL BUT A FINDING THAT BECAUSE OF INSANITY YOU WERE NOT CRIMINALLY RESPONSIBLE FOR THE OFFENSE CHARGED IN THE INDICTMENT. THE LETTER QUOTED ABOVE QUESTIONS THIS ACTION AND REQUESTS A RECONSIDERATION, OR REVIEW, THEREOF.

YOU WERE A FIDUCIARY, AN ASSISTANT DISBURSING OFFICER. THE SHORTAGE IN YOUR ACCOUNTS FELL UNDER ONE OR ANOTHER OF SECTIONS 87 TO 91, INCLUSIVE, OF THE CRIMINAL CODE, 35 STAT. 1105. SECTION 87 IS AS FOLLOWS:

WHOEVER, BEING A DISBURSING OFFICER OF THE UNITED STATES, OR A PERSON ACTING AS SUCH, SHALL IN ANY MANNER CONVERT TO HIS OWN USE, OR LOAN WITH OR WITHOUT INTEREST, OR DEPOSIT IN ANY PLACE OR IN ANY MANNER, EXCEPT AS AUTHORIZED BY LAW, ANY PUBLIC MONEY INTRUSTED TO HIM; OR SHALL, FOR ANY PURPOSE NOT PRESCRIBED BY LAW, WITHDRAW FROM THE TREASURER OR ANY ASSISTANT TREASURER, OR ANY AUTHORIZED DEPOSITARY, OR TRANSFER, OR APPLY, ANY PORTION OF THE PUBLIC MONEY INTRUSTED TO HIM, SHALL BE DEEMED GUILTY OF AN EMBEZZLEMENT OF THE MONEY SO CONVERTED, LOANED, DEPOSITED, WITHDRAWN, TRANSFERRED, OR APPLIED, AND SHALL BE FINED NOT MORE THAN THE AMOUNT EMBEZZLED, OR IMPRISONED NOT MORE THAN TEN YEARS, OR BOTH.

SECTION 1766, REVISED STATUTES, PROVIDES:

NO MONEY SHALL BE PAID TO ANY PERSON FOR HIS COMPENSATION WHO IS IN ARREARS TO THE UNITED STATES, UNTIL HE HAS ACCOUNTED FOR AND PAID INTO THE TREASURY ALL SUMS FOR WHICH HE MAY BE LIABLE. * * *

YOUR THEORY APPARENTLY IS THAT WHETHER THE SHORTAGE IN YOUR ACCOUNTS DEVELOPED PIECEMEAL OVER A RELATIVELY LONG PERIOD OF TIME OR OCCURRED IN A SINGLE INCIDENT, THE FINDING OF THE JURY IS THAT YOU WERE INSANE WHEN THE DEFALCATION OR DEFALCATIONS OCCURRED AS YOU WERE NOT GUILTY OF EMBEZZLEMENT. BUT THE VERDICT OF THE JURY WAS ON THE INDICTMENT CHARGING EMBEZZLEMENT AND THE INDICTMENT WAS UNDOUBTEDLY DRAWN AS OF THE DATE YOU ABANDONED THE VESSEL. WHETHER AND TO WHAT EXTENT ACCUMULATING SHORTAGES LED TO YOUR APPARENT INSANITY AT THE TIME OF ABANDONING THE VESSEL IS NOT COVERED BY THE VERDICT OF THE JURY. AS ABOVE INDICATED, YOU WERE A FIDUCIARY, AN ASSISTANT DISBURSING OFFICER, AN ACTING PAY CLERK, AND THERE WAS A DEFICIENCY IN YOUR MONEY ACCOUNTS FOR WHICH YOU WERE RESPONSIBLE, SANE OR INSANE. INDICTMENT FOR THE OFFENSE WAS REQUIRED IN THE CIRCUMSTANCES OF YOUR CASE, AND THE DEFENSE OF INSANITY, WHICH WAS ACCEPTED BY THE JURY IN THE CRIMINAL TRIAL, DOES NOT ESTABLISH THAT YOU WERE NOT RESPONSIBLE FOR THE SHORTAGE WHICH LED TO YOUR INDICTMENT. APPEARS YOU PERFORMED YOUR DUTIES AS ACTING PAY CLERK UP TO THE TIME YOU ABANDONED THE VESSEL AND THE ACCOUNTS SEEMED TO HAVE BEEN CORRECT EXCEPT FOR THE SHORTAGE. WHEN OR HOW THE SHORTAGE OCCURRED IS NOT COVERED BY THE VERDICT OF THE JURY. THAT VERDICT COVERS ONLY THE OFFENSE OF EMBEZZLEMENT AS CHARGED IN THE INDICTMENT. A FIDUCIARY WHO IS ABSOLVED FROM CRIMINAL LIABILITY FOR THE OFFENSE OF EMBEZZLEMENT IS NOT, BY THAT FACT, ABSOLVED FROM RESPONSIBILITY FOR HIS ACTS THAT MAY HAVE LED TO THE SHORTAGE IN HIS MONEY ACCOUNTS.

THE ACT OF AUGUST 29, 1916, 39 STAT. 578, PROVIDES THAT WARRANT OFFICERS OF THE NAVY "SHALL BE ALLOWED SUCH LEAVE OF ABSENCE, WITH FULL PAY, AS IS NOW OR MAY HEREAFTER BE ALLOWED OTHER OFFICERS OF THE UNITED STATES NAVY.' THE COAST GUARD IS ASSIMILATED TO THE NAVY FOR PAY AND ALLOWANCES, SECTION 8, ACT OF MAY 18, 1920, 41 STAT. 603; AND OFFICERS OF THE NAVY, BY SECTION 13 OF THE ACT OF MARCH 3, 1899, 30 STAT. 1007, WERE ASSIMILATED TO THE ARMY FOR PAY AND ALLOWANCES. UNDER THAT ASSIMILATION THE ARMY LEAVE LAWS BECAME APPLICABLE TO OFFICERS OF THE NAVY. THE ARMY LEAVE LAWS CONTAINED IN SECTION 1265, REVISED STATUTES, ARE A RESTRICTION ON PAY (1 COMP. GEN. 454); THEY PROVIDE FOR ABSENCE NOT EXCEEDING IN THE AGGREGATE 30 DAYS IN 1 YEAR WITH FULL PAY (EXTENDED BY THE ACT OF JULY 29, 1876, 19 STAT. 102, TO 60 DAYS IN 2 YEARS, 90 DAYS IN 3 YEARS AND 120 DAYS IN 4 YEARS); AND CONCLUDE: "WHEN ABSENT WITHOUT LEAVE, THEY SHALL FORFEIT ALL PAY DURING SUCH ABSENCE, UNLESS THE ABSENCE IS EXCUSED AS UNAVOIDABLE.'

WHEN AN OFFICER IS ABSENT FROM DUTY BECAUSE OF INDICTMENT BY THE CIVIL AUTHORITIES, THAT CONSTITUTES ABSENCE WITHOUT LEAVE UNLESS THE ACQUITTAL IS WITHOUT QUALIFICATION. WHERE HE IS IN FACT RESPONSIBLE FOR THE ABSENCE, EVEN THOUGH NOT GUILTY OF THE CRIMINAL OFFENSE NARROWLY CHARGED IN THE INDICTMENT, THE ABSENCE IS NOT UNAVOIDABLE AND IS IN FACT ABSENCE WITHOUT LEAVE FOR WHICH NO PAY IS PAYABLE UNDER THE STATUTE. WHILE THE RULE AS TO ENLISTED MEN IS VERY SIMILAR IT IS NOT EXACTLY THE SAME.

THE COURT OF CLAIMS IN THE CASE OF MERWIN V. UNITED STATES, 78 CT.CLS. 561, CONSIDERED THE QUESTION OF WHETHER A WARRANT OFFICER IN THE ARMY WHO HAD BEEN FOUND INSANE AT THE TIME OF THE OFFENSE CHARGED AGAINST HIM AND, THEREFORE, NOT GUILTY BY REASON OF INSANITY WAS "ACQUITTED.' THAT WAS A CALIFORNIA CASE. MERWIN WAS CHARGED WITH MURDER AND ENTERED HIS PLEA OF "NOT GUILTY" AND ,NOT GUILTY BY REASON OF INSANITY.' IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA THE DEFENDANT WAS FIRST TRIED ON HIS PLEA OF "NOT GUILTY.' DURING THIS PROCEEDING HIS INSANITY WAS NOT A MATTER FOR CONSIDERATION--- BY LAW HE WAS CONCLUSIVELY PRESUMED TO BE SANE. SEE PEOPLE V. TROCHE, 206 CAL. 35, 273 P. 767, APPEAL DISMISSED AND CERTIORARI DENIED, 280 U.S. 524; PEOPLE V. HICKMAN, 204 CAL. 470, 268 P. 909. THE JURY IN THAT TRIAL FOUND MERWIN GUILTY OF MURDER IN THE SECOND DEGREE. THEREAFTER, HE WAS TRIED UPON HIS PLEA OF "NOT GUILTY BY REASON OF INSANITY" AND THE JURY IN THAT TRIAL FOUND THAT HE WAS INSANE AT THE TIME OF THE OFFENSE AND, THEREFORE,"NOT GUILTY BY REASON OF INSANITY.' WITH THESE FACTS BEFORE IT THE COURT OF CLAIMS HELD THAT MERWIN WAS NOT ENTITLED TO PAY AND ALLOWANCES FOR THE PERIOD OF HIS DETENTION BY CIVIL AUTHORITIES, AND IT IS STATED IN THE OPINION THAT---

* * * THE ACT WHICH WAS COMMITTED WAS RESPONSIBLE, AS THE JUDGMENTS OF THE COURT ATTEST, FOR THE LOSS OF HIS INDIVIDUAL LIBERTY FOR THE TIME CONFINED; AND WE BELIEVE THAT, NOTWITHSTANDING THE PATHETIC AND DISTRESSING AFFLICTION OF INSANITY, WHERE A SOLDIER SETS IN MOTION A LEGAL PROCEDURE THAT TAKES HIM FROM THE ARMY AND PLACES HIM WITHIN THE JURISDICTION OF THE CIVIL COURTS, AND SUCH COURTS IN PURSUANCE OF LAW RETAIN JURISDICTION AND CONTROL BECAUSE OF THE COMMISSION OF THE ACT, DURING THAT TIME HE IS NOT ENTITLED TO PAY AND ALLOWANCES PROVIDED BY LAW. THE REGULATION, WE THINK, WAS NOT INTENDED TO AWARD PAY UNDER THE ABOVE CONDITIONS.

IT IS CONTENDED THAT THE PRESENT CASE IS "TOTALLY DIFFERENT" APPARENTLY BECAUSE YOU WERE NOT FOUND GUILTY BY LEGAL PROCESS OF THE CRIME ALLEGED. BUT AT YOUR TRIAL IT WAS NOT NECESSARY FOR THE JURY TO ASSUME THAT YOU WERE SANE AND DETERMINE WHETHER, BASED UPON THAT ASSUMPTION, YOU WERE GUILTY OF THE CRIME CHARGED. THE JURY WAS NOT RESTRICTED BY LAW AS WAS THE JURY IN THE MERWIN CASE. THE QUESTION OF YOUR SANITY WAS PLACED IN ISSUE AND IT WAS NOT NECESSARY THAT IT BE DETERMINED WHETHER YOU WOULD HAVE BEEN GUILTY HAD THE JURY DETERMINED THAT YOU WERE SANE.

YOU SET IN MOTION THE CONDITIONS WHICH EVENTUALLY RESULTED IN YOUR INDICTMENT AND YOU WERE CIVILLY LIABLE FOR THE SHORTAGE IN YOUR ACCOUNTS EVEN THOUGH YOU WERE ACQUITTED OF THE CRIMINAL OFFENSE OF EMBEZZLEMENT BECAUSE OF "INSANITY AT THE TIME OF THE ALLEGED OFFENSE" AS CHARGED IN THE INDICTMENT. YOU WERE NOT ACQUITTED, WITHOUT QUALIFICATION, OF THE SHORTAGE WHICH RESULTED IN YOUR INDICTMENT. YOUR CASE FALLS CLEARLY WITHIN THE RULE IN THE MERWIN CASE AND THE ACTION OF THE CLAIMS DIVISION OF THIS OFFICE IN DISALLOWING YOUR CLAIM FOR PAY AND ALLOWANCES FOR THE PERIOD STATED MUST BE AND IS SUSTAINED.

ATTENTION HAS BEEN INVITED TO DECISIONS REPORTED IN 2 COMP. DEC. 584; 3 ID. 249; 7 COMP. GEN. 496; AND 8 ID. 635, BUT NOTHING IS FOUND THEREIN WHICH WARRANTS A CONTRARY CONCLUSION.