B-144649, JANUARY 4, 1961, 40 COMP. GEN. 402

B-144649, JANUARY 4, 1961, 40 COMP. GEN. 402

MILITARY PERSONNEL - RETIRED PAY - EFFECT OF ACT OF SEPTEMBER 1, 1954, PROHIBITING PAYMENT TO PERSONS CONVICTED OF CERTAIN OFFENSES - RETIREMENTS APPROVED PRIOR TO SEPTEMBER 1, 1954 A CONVICTION OF A MARINE CORPS OFFICER BY A GENERAL COURT-MARTIAL FOR A THEFT OF CURRENCY IN THE AMOUNT OF $500 FROM A MARINE CORPS EXCHANGE, WHICH IS PUNISHABLE BY CONFINEMENT UP TO FIVE YEARS, IS ANALOGOUS TO THE CONVICTION OF A FELONY UNDER SECTION 22.2201 OF THE DISTRICT OF COLUMBIA CODE AND, THEREFORE, CONSTITUTES THE CONVICTION FOR A FELONY WITHIN CLAUSE 2 OF SECTION 1 OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 2282, WHICH PRECLUDES RETIRED PAY TO SUCH PERSON, AND THE CHARACTER OF THE OFFENSE IS NOT AFFECTED BY THE FACT THAT THE FUNDS INVOLVED WERE NONAPPROPRIATED FUNDS BELONGING TO THE MARINE CORPS EXCHANGE, AND SINCE AT THE TIME OF THE OFFENSE THE MEMBER WAS ASSIGNED AS ASSISTANT EXCHANGE OFFICER OF THE EXCHANGE FROM WHICH THE FUNDS RE STOLEN, THE OFFENSE MUST BE REGARDED AS HAVING BEEN COMMITTED IN THE EXERCISE OF THE MEMBER'S "AUTHORITY, INFLUENCE, POWER OR PRIVILEGES AS AN OFFICER" WITHIN THE MEANING OF THE 1954 ACT. UNDER THE PROVISION IN CLAUSE (3) OF SECTION 6 OF THE ACT OF SEPTEMBER 1, 1954, 5 U.S.C. 2281 (3), EXCLUDING MEMBERS WHO HAD BEEN AWARDED OR GRANTED RETIRED PAY PRIOR TO THE DATE OF ENACTMENT FROM THE PROHIBITION AGAINST DENIAL OF RETIRED PAY WHICH PROVISION WAS DESIGNED TO PREVENT THE CUT-OFF OF RETIRED PAY OF ANNUITIES WHICH WERE ALREADY VESTED RIGHTS, THE SECRETARIAL APPROVAL ON JUNE 21, 1954, OF A RETIREMENT OF A MEMBER CONVICTED OF AN OFFENSE WITHIN THE MEANING OF THE PROHIBITION TO BE EFFECTIVE ON OR ABOUT SEPTEMBER 1, 1954, MAY NOT BE REGARDED AS GIVING THE MEMBER A VESTED RIGHT PRIOR TO SEPTEMBER 1, 1954, AND, THEREFORE, RETIRED PAY ACCRUING TO SUCH MEMBER APPROVED PRIOR TO BUT EFFECTIVE ON AND AFTER SEPTEMBER 1, 1954, COMES WITHIN THE PROHIBITION.

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, JANUARY 4, 1961:

BY FIRST ENDORSEMENT DATED DECEMBER 14, 1960, THE COMMANDANT OF THE MARINE CORPS FORWARDED HERE YOUR LETTER OF DECEMBER 14, 1960, WITH ENCLOSURES, REQUESTING A DECISION WHETHER CHIEF WARRANT OFFICER JOSEPH M. WRAY, JR., 1010011, UNITED STATES MARINE CORPS, RETIRED, IS PRECLUDED FROM ENTITLEMENT TO RETIRED PAY BY REASON OF THE PROVISIONS OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1142, IN VIEW OF HIS CONVICTION BY GENERAL COURT-MARTIAL ON JUNE 30, 1952, OF VIOLATION OF ARTICLE 121 OF THE UNIFORMED CODE OF MILITARY JUSTICE, 10 U.S.C. 921. THE REQUEST FOR DECISION WAS ASSIGNED SUBMISSION NO. DO-MC-547 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS REPORTED THAT ONE OF THE SPECIFICATIONS FOR VIOLATION OF ARTICLE 121 WAS THAT THE MEMBER, WHILE ON DUTY AT HEADQUARTERS SQUADRON, UNITED STATES MARINE CORPS AIR STATION, EL TORO, IFORNIA,"DID AT SAID AIR STATION, ON OR ABOUT 7 DECEMBER 1951, STEAL CURRENCY OF THE UNITED STATES OF AMERICA, OF A VALUE OF $500.00, THE PROPERTY OF THE MARINE CORPS EXCHANGE AT THE SAID AIR STATION" AND THAT AT THE TIME THE MEMBER WAS ASSISTANT EXCHANGE OFFICER OF THE EXCHANGE FROM WHICH THE CURRENCY WAS STOLEN. IT IS FURTHER REPORTED THAT THE MEMBER WAS TRANSFERRED TO THE RETIRED LIST ON SEPTEMBER 1, 1954, UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, 34 U.S.C. 410 (B) (1952 USED.); THAT HIS REQUEST FOR RETIREMENT "EFFECTIVE ON OR ABOUT SEPTEMBER 1, 1954," WAS APPROVED BY THE SECRETARY OF THE NAVY ON JUNE 21, 1954, AND THAT HE HAS BEEN PAID RETIREMENT PAY FROM SEPTEMBER 1, 1954, THROUGH NOVEMBER 30, 1960.

SECTION 1 OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1142, 5 U.S.C. 2282, PROVIDES IN PART AS FOLLOWS:

* * * 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 * * *

CLAUSE (3) OF SECTION 6 OF THE 1954 LAW, 5 U.S.C. 2281 (3), PROVIDES THAT THE TERM "RETIRED PAY" DOES NOT INCLUDE THE RETIRED PAY OF ANY PERSON TO WHOM ANY SUCH PAY HAS BEEN AWARDED OR GRANTED PRIOR TO SEPTEMBER 1, 1954, INSOFAR AS CONCERNS THE CONVICTION OF SUCH PERSONS, PRIOR TO SUCH DATE, OF ANY OFFENSE SPECIFIED IN THE FIRST SECTION OF THE ACT, OR THE COMMISSION BY ANY SUCH PERSON, PRIOR TO SUCH DATE, OF ANY VIOLATION OF SECTION 2 OF THE ACT, 5 U.S.C. 2282 (2).

THE CONVICTION BY COURT-MARTIAL OF A MEMBER OF THE UNIFORMED SERVICES UNDER THE UNIFORMED CODE OF MILITARY JUSTICE OF AN OFFENSE WHICH IS OF A CIVIL NATURE AND IS PUNISHABLE BY DEATH OR BY 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 SENTENCE TO CONFINEMENT ACTUALLY IMPOSED OR SERVED IS IMMATERIAL. SEE 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 (1951 EDITION) PROVIDES A MAXIMUM CONFINEMENT OF NOT TO EXCEED FIVE YEARS FOR THE VIOLATION OF ARTICLE 121 OF THE UNIFORM CODE OF MILITARY JUSTICE. SECTION 22-2201 OF THE DISTRICT OF COLUMBIA CODE (1951 EDITION) PROVIDES THAT WHOEVER SHALL FELONIOUSLY TAKE AND CARRY AWAY ANYTHING OF THE VALUE OF $50 (NOW $100), INCLUDING THINGS SAVORING OF THE REALTY, SHALL SUFFER IMPRISONMENT "FOR NOT LESS THAN ONE NOR MORE THAN TEN YEARS.' IT FOLLOWS THAT THE OFFENSE FOR WHICH THE MEMBER WAS CONVICTED MUST BE REGARDED AS A FELONY WITHIN THE MEANING OF THAT TERM AS USED IN CLAUSE 2 OF SECTION 1 OF THE ACT OF SEPTEMBER 1, 1954. THE CHARACTER OF THE OFFENSE IS NOT AFFECTED BY THE FACT THAT THE FUNDS INVOLVED WERE NONAPPROPRIATED FUNDS BELONGING TO THE MARINE CORPS EXCHANGE. ALSO, SINCE YOUR LETTER INDICATES THAT AT THE TIME OF THE OFFENSE THE MEMBER WAS ASSIGNED AS THE ASSISTANT EXCHANGE OFFICER OF THE EXCHANGE FROM WHICH THE CURRENCY WAS STOLEN, WE FIND NO BASIS FOR CONCLUDING THAT THE OFFENSE WAS NOT COMMITTED IN THE EXERCISE OF HIS "AUTHORITY, INFLUENCE, POWER OR PRIVILEGES AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT.'

YOUR LETTER SUGGESTS AN ADDITIONAL QUESTION AS TO WHETHER PAYMENT OF RETIRED PAY IS BARRED BECAUSE THE PROHIBITION CONTAINED IN THE 1954 ACT DOES NOT APPLY IN THE CASE OF OFFENSES OF THE NATURE HERE INVOLVED WHERE THE RETIRED PAY "HAS BEEN AWARDED OR GRANTED PRIOR TO THE DATE OF ENACTMENT OF THIS ACT.' AS INDICATED ABOVE, THE MEMBER REQUESTED RETIREMENT TO BE EFFECTIVE ON OR ABOUT SEPTEMBER 1, 1954, AND RETIREMENT ON THE DATE MENTIONED WAS APPROVED BY THE SECRETARY OF THE NAVY ON JUNE 21, 1954. SECRETARIAL APPROVAL OF RETIREMENT EFFECTIVE ON A PARTICULAR DATE, HOWEVER, DOES NOT GIVE THE MEMBER CONCERNED ANY VESTED RIGHT TO RETIRED PAY PRIOR TO THAT EFFECTIVE DATE. THE PURPOSE OF THE EXCLUSION OF RETIRED PAY AWARDED OR GRANTED PRIOR TO THE DATE OF ENACTMENT OF THE 1954 ACT FROM THE PROHIBITION FEATURES OF THE ACT IS EXPLAINED IN HOUSE REPORT NO. 2488 TO ACCOMPANY H.R. 9909, 83D CONGRESS, 2D SESSION. SEE U.S.C. CONGRESSIONAL AND ADMINISTRATIVE NEWS, PAGE 3910. IN REFERRING TO THIS PARTICULAR FEATURE OF THE BILL, THE REPORT STATES THAT "1IT WILL NOT CUT OFF RETIRED PAY OR ANNUITIES WHICH ALREADY ARE VESTED RIGHTS ON THE DATE OF ENACTMENT, THAT IS, ANNUITIES OR RETIRED PAY WHICH PRESENTLY ARE BEING RECEIVED BY ANNUITANTS OR RETIRED PERSONS OR THEIR SURVIVORS.' IT MUST BE CONCLUDED, THEREFORE, THAT RETIRED PAY ACCRUING INCIDENT TO A RETIREMENT APPROVED PRIOR TO BUT EFFECTIVE ON OR AFTER THE DATE OF THE ACT IS WITHIN THE PROHIBITION PROVISIONS OF THE ACT.

ACCORDINGLY, WE MUST REACH THE CONCLUSION THAT, UNDER THE LAW AS IT NOW IS, PAYMENT OF RETIRED PAY TO CHIEF WARRANT OFFICER WRAY IS NOT AUTHORIZED.