B-140390, SEP. 28, 1959

B-140390, SEP. 28, 1959

TO LIEUTENANT COLONEL J. L. WHIPPLE. FC:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 27, 1959, FORWARDED UNDER D.O. NO. 441 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTING AN ADVANCE DECISION ON AN ENCLOSED VOUCHER PROPOSING PAYMENT OF RETIRED PAY FOR THE PERIOD JUNE 1 THROUGH JUNE 30, 1959, IN THE AMOUNT OF $132 TO GEORGE A. ETHIER, SPECIALIST 5, RETIRED, RA 6 139 865.

SPECIALIST ETHIER PLEADED GUILTY, WAS FOUND GUILTY AND CONVICTED BY GENERAL COURT-MARTIAL ON DECEMBER 17, 1953, OF A VIOLATION OF THE UNIFORM CODE OF MILITARY JUSTICE, ARTICLES 121 AND 123. THIS CONVICTION WAS FOR LARCENY IN THE AMOUNT OF $2,421.58, PROPERTY OF THE UNITED STATES, BETWEEN JUNE 1, 1953 AND NOVEMBER 1, 1953, AND FORGERY OF REPORTS OF DEPOSITS BY ALTERING CERTAIN AMOUNTS SHOWN THEREON, JULY 3, AUGUST 4, SEPTEMBER 2, AND OCTOBER 10, 1953. HE WAS SENTENCED TO BE DISCHARGED FROM THE SERVICE WITH A BAD CONDUCT DISCHARGE, TO FORFEIT ALL PAY AND ALLOWANCES, AND TO BE CONFINED AT HARD LABOR FOR ONE YEAR. THE SENTENCE WAS ADJUDGED ON DECEMBER 17, 1953. THE PORTION OF THE SENTENCE ADJUDGING A BAD CONDUCT DISCHARGE WAS SUBSEQUENTLY SUSPENDED. THE PORTION OF THE SENTENCE ADJUDGING CONFINEMENT FOR ONE YEAR WAS ORDERED EXECUTED AND SPECIALIST ETHIER WAS CONFINED IN THE BRANCH UNITED STATES DISCIPLINARY BARRACKS, NEW CUMBERLAND, PENNSYLVANIA.

A CLASSIFICATION BOARD, CONVENED ON APRIL 13, 1954, RECOMMENDED THAT SPECIALIST ETHIER BE RESTORED TO DUTY. THE RECOMMENDATION WAS APPROVED BY THE DEPARTMENT OF THE ARMY. HE WAS RESTORED TO DUTY MAY 3, 1954, AND ASSIGNED TO THE RESTORATION TRAINING PROGRAM, UNITED STATES ARMY TRAINING CENTER, FORT GORDON, GEORGIA, FOR REHABILITATION. HE CONTINUED ON ACTIVE DUTY UNTIL RETIREMENT WAS GRANTED ON HIS OWN APPLICATION UNDER THE PROVISIONS OF 10 U.S.C. 3914 ON JUNE 1, 1959. RETIREMENT WAS ACCOMPLISHED BY PARAGRAPH 115, DEPARTMENT OF THE ARMY, SPECIAL ORDERS NO. 100, DATED MAY 21, 1959.

SECTION ONE OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1142, 5 U.S.C. 2282, THE SO-CALLED "HISS ACT" PROVIDES IN PART:

"* * * THAT THERE SHALL NOT BE PAID TO ANY PERSON CONVICTED PRIOR TO, ON, OR AFTER THE DATE OF ENACTMENT OF THIS ACT OF ANY OF THE FOLLOWING OFFENSES DESCRIBED IN THIS SECTION, OR TO THE SURVIVOR OR BENEFICIARY OF SUCH PERSON SO CONVICTED, FOR ANY PERIOD SUBSEQUENT TO THE DATE OF SUCH CONVICTION OR THE DATE OF ENACTMENT OF THIS ACT, WHICHEVER IS LATER, ANY ANNUITY OR RETIRED PAY ON THE BASIS OF THE SERVICE OF SUCH PERSON AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT:

"/2) ANY OFFENSE (NOT INCLUDING ANY OFFENSE WITHIN THE PURVIEW OF SECTION 13 OF TITLE 18 OF THE UNITED STATES CODE) WHICH IS A FELONY UNDER THE LAWS OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA (A) COMMITTED IN THE EXERCISE OF HIS AUTHORITY, INFLUENCE, POWER, OR PRIVILEGES AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT * * *.'

THE CONVICTION BY COURT-MARTIAL OF A MEMBER OF THE UNIFORMED SERVICES FOR AN OFFENSE UNDER THE UNIFORM CODE OF MILITARY JUSTICE WHICH IS OF A CIVIL NATURE AND IS PUNISHABLE BY DEATH OR CONFINEMENT EXCEEDING ONE YEAR IS A CONVICTION OF A FELONY UNDER THE LAWS OF THE UNITED STATES WITHIN THE MEANING OF THE ABOVE-QUOTED PORTION OF THE ACT OF SEPTEMBER 1, 1954. THE DURATION OF THE CONFINEMENT SENTENCE ACTUALLY IMPOSED OR SERVED IS IMMATERIAL. 35 COMP. GEN. 302; B 127022, MAY 11, 1956; B-137010, OCTOBER 16, 1958; B-125744, JULY 30, 1959. PARAGRAPH 127C OF THE MANUAL FOR COURTS-MARTIAL PROVIDES A MAXIMUM CONFINEMENT OF NOT TO EXCEED FIVE YEARS FOR VIOLATIONS OF ARTICLES 121 AND 123 OF THE UNIFORM CODE OF MILITARY JUSTICE, AND CIVIL CRIMINAL OFFENSES COMPARABLE TO THAT CHARGED UNDER ARTICLE 121 ARE FOUND IN SECTIONS 641 AND 643 OF TITLE 18, UNITED STATES CODE. IT FOLLOWS THAT SPECIALIST ETHIER MUST BE REGARDED AS HAVING BEEN CONVICTED OF A FELONY WITHIN THE MEANING OF THAT TERM AS USED IN CLAUSE TWO OF SECTION ONE OF THE ACT OF SEPTEMBER 1, 1954.

SINCE THE OFFENSES OF WHICH SPECIALIST ETHIER WAS CONVICTED APPEAR AS HAVE BEEN COMMITTED IN THE EXERCISE OF HIS "AUTHORITY, INFLUENCE, POWER OR PRIVILEGES AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT," HIS CASE COMES SQUARELY WITHIN THE PROHIBITION OF SECTION ONE, CLAUSE 2. ACCORDINGLY, HE IS NOT ENTITLED TO RECEIVE ANY RETIRED PAY AND THE SUBMITTED VOUCHER WILL BE RETAINED IN THIS OFFICE.