Mr. KILDAY. Is it the legal view of the Department that the power exists to forfeit the pay and allowances?

Mr. WALKUP. It is the legal view of all departments-all military departments, that when the retired status stops, the pay is necessarily attached to that status and also stops. Now, this same view seems to have been subsumed by the Court of Claims in the case of Allen v. the United States. That involved a Navy commander who had been dropped from the rolls. A retired Navy commander.

Mr. KILDAY. Do you have reference to that report in your statement, Commander?

Mr. WALKUP. Yes, sir. Well, I am not certain I do have the citation. However, I will supply it.

In the Navy we have been able to find records of 11 officers in a pay status, active or retired, who have been considered for dropping from the rolls by reason of civil conviction. One of these was an active list Regular officer who was convicted of murder. Three were retired Regular commissioned officers, one of which was a homicide case; the other two being property cases.

Two involved retired Regular chief warrant officers, one of which was a homicide, the other a property case. One involved a retired

Reserve chief warrant officer, a property case.

Now, the eighth and last of the group actually dropped from the rolls was a retired Reserve lieutenant commander dropped pursuant to section 8 of the act of September 1, 1954. That is the so-called Alger Hiss Act.

After, his retired pay was stopped for conviction in a Federal court for making fraudulent claim against the Federal Government. In the 3 remaining cases, in 2 of them it appeared that the retired officers had not been sentenced to confinement in a penitentiary within the meaning of the statute as it was then worded. The statute has since been amended to State penitentiary or correctional institution. This was prompted by those cases.

Mr. BLANDFORD. Mr. Chairman, may I interrupt at this point to ask one question?

It is the position of the Navy that for an officer of the Navy and a commissioned warrant officer to be entitled to retirement pay that he must actually occupy an office. In other words, the retirement pay does not attach to his service; it attaches to the office that he occupied.

Mr. WALKUP. Yes, sir. That is the position save in those cases of persons retired under specific, or entitled to retired pay under specific, provisions of law such as title 3 of Public Law 810.

Mr. BLANDFORD. When a man completes 20 years of Reserve service and resigns his commission and then attains the age of 60 and draws retirement pay as distinguished from retired pay, you cannot touch him?

Mr. WALKUP. That is right.

Mr. BLANDFORD. You, therefore, have this anomalous situation of a man who can qualify for Reserve retirement pay who resigns his commission the day before he attains the age of 60, or even afterwards as far as that is concerned, and you cannot touch him but everybody else can be dropped?

Mr. WALKUP. Yes, sir. In fact, the anomaly may be even worse, Mr. Blandford, because we could have this hypothetical situation

of two reservists, one of whom-both completing 20 years' satisfactory service, one resigning at that time, the other continuing on in Reserve and continuing to serve. Each of them, when they reach age 60, applies for the retired pay under title 3 of Public Law 810, and each gets it.

Then perhaps they join in committing some felony offense. The man who has stayed in the Reserve would be dropped and presumably lose his title 3 pay. The man who resigned could not lose his.

Mr. BLANDFORD. Unless he is smart enough to hire a good lawyer and resign fast.

Mr. WALKUP. Yes.

Mr. BATES. Is there anything in title 10 today that requires these people to be dropped?

Mr. WALKUP. There never has been anything that required it.
Mr. BATES. It is permissive?

Mr. WALKUP. Yes, sir.

Mr. BATES. So the President has wide discretion?

Mr. WALKUP. Yes, sir.

Mr. BATES. And, of course, if he exercises that discretion to retain somebody on the rolls, the problem does not arise?

Mr. WALKUP. Yes, sir.

Mr. BATES. Is your problem here the Hiss Act?

Mr. WALKUP. Well, that is one of the problems.

Mr. BATES. Is there anything in the Armed Services Code of Military Justice that would prevent the executive branch from settling these problems themselves?

Mr. WALKUP. With respect to future cases, perhaps not, but the difficulty seems to have been there that when these situations came to light, that there did seem to be a feeling that the discretionary power of the statute should be exercised.

Mr. BLANDFORD. May I interrupt? I think what Mr. Bates has in mind and this is the answer I think to the question that you have in mind, once the discretion is exercised by the Secretary of the President, the strange part of it is that once he is disenrolled, the President cannot reinstate him. There is nothing administratively that can be done for any of these 10 cases.

Mr. BATES. But it would have been done at the time?
Mr. BLANDFORD. Having taken the action, they cannot.
Mr. BATES. It can be done in the future?

Mr. WALKUP. Yes, sir.

Mr. BATES. Is the Navy Department in favor of this bill?

Mr. WALKUP. The position of the Navy Department and the Department of Defense on this will in principal, or I might say on the proposal, was stated by Mr. Secretary Gates when he appeared before this committee approximately a year ago, and that was that we feel the power to drop officers from the rolls is a very necessary authority, particularly with respect to active-duty officers.

In both of the situations where we drop them, absence or civil conviction, the officer is normally not available for court-martial trial which is the only other way we have of getting him out of the service. However, so far as it concerns any action to continue pay, to try to ameliorate the partial payment of dropping from the rolls, upon the individual concerned or his family, that is considered to be a matter of national policy determinable by the Congress.

20066-58-No. 92-2

Mr. BATES. However, the President has the authority to drop or not drop?

Mr. WALKUP. Yes, sir. But whether the pay is to be continued or not, the Congress has the authority to say whether or not the pay should be continued notwithstanding the dropping.

Mr. BATES. Of course, the question would not arise if the Navy Department decided to retain people.

Mr. BENNETT. They do not want to retain people. They want to drop them.

Mr. KILDAY. The thing I am wondering about is, you dropped 11. I am wondering how many were in as bad shape or worse that you did not drop.

Mr. WALKUP. We do not know how many; we did not receive information on their having been convicted, but I know of no caseactually, Mr. Chairman, we dropped only eight. Eight we dropped. Two we considered and did not drop because they did not meet the statutory conditions. One we have now pending determination in the Department.

Mr. KILDAY. You mean that all of those who were reported to the Department level were dropped?

Mr. WALKUP. Yes, sir, to the best of my knowledge.

Mr. KILDAY. There may have been many known to the authorities in the field but they did not see fit to take action and there is no way for you to know?

Mr. WALKUP. That is right.

Mr. KILDAY. A fellow with a good friend in court probably got by all right. The fellow who didn't, got slugged.

Mr. WALKUP. There may well have been several.

Mr. KILDAY. Without objection, you may read your entire statement into the record.

Mr. WALKUP. My name is Homer A. Walkup. I am a commander, United States Naval Reserve, serving in the Bureau of Naval Personnel, as Assistant Director and Legal Assistant, Officer Performance Division. The Officer Performance Division has initial administrative cognizance of sections 1161, 1163, and 6408 of title 10, United States Code, the statutes which authorize the dropping from the rolls of officers who have been finally convicted by civil authority and sentenced to confinement in a Federal or State penitentiary or correctional institution.

Concerning the background of the statutory provisions for dropping officers from the rolls, since the act of July 13, 1866 (14 Stat. 92), peacetime dismissals of military and naval officers have been forbidden otherwise than pursuant to sentence of general courts-martial.

In the act of July 15, 1870 (16 Stat. 315, 319), the qualification was introduced with respect to officers of the Army that the President might drop from the rolls of the Army for desertion any officer absent from duty 3 months without leave. This statute expressly provided that an officer so dropped from the rolls should forfeit all pay and allowances. Section 1229 of the Revised Statutes provided both the restriction upon dismissal and the authority for dropping from the rolls of officers of the Army; section 1266 contained the provision for forfeiture of pay by officers dropped from the rolls. Section 1624, article 36 of the Revised Statutes, contained the restriction upon dismissal of officers of the Navy.

The act of January 19, 1911 (36 Stat. 894), repeated the authorization to drop from the rolls any officer of the Army who might be absent without leave to 3 months, and for the first time added to the officers who might be dropped from the rolls one who had "been absent in confinement in a prison or penitentiary for more than three months." An act approved April 12, 1918 (40 Stat. 501), for the first time authorized the President to drop from the rolls of the Navy or Marine Corps any officer who was absent from duty without leave for 3 months or more, or who, having been found guilty by the civil authorities of any offense, is finally sentenced to confinement in a State or Federal penitentiary.

The 1918 act was codified as a part of article 36, Articles for the Government of the Navy, former title 34, United States Code, section 1200, article 36. In the June 4, 1920 (41 Stat. 811), reenactment of the Articles of War, article 118 (former title 10, U. S. C., sec. 1590) combined the restriction upon dismissal with the authority to drop from the rolls absentees without leave or in confinement.

In the act of May 5, 1950, which enacted the Uniform Code of Military Justice and supplanted the Articles of War and Articles for the Government of the Navy, section 10 set forth a provision common to all services restricting the dismissal of officers otherwise than in time of war, but authorizing the President to drop from the rolls any officer absent without authority for 3 months or more, "or who, having been found guilty by the civil authorities of any offense, is finally sentenced to confinement in a Federal or State penitentiary or correctional institution."

Section 249 of the Armed Forces Reserve Act of 1952, former section 992 of title 50, United States Code, made specific provisions for dropping from the rolls members of Reserve components absent without authority for 3 months or finally sentenced to confinement in a penitentiary or correctional institution.

A specific provision to that effect was required since the 1952 act repealed prior provisions of law making reservists generally subject to separation in the same manner as regulars while on active duty, and a specific provision relating to discharge of reservists retired with pay who are civilly convicted. The 1950 statute concerning the dropping of regulars from the rolls and the 1952 statute relating to reservists have been codified in the new title 10, United States Code, in sections 1161 and 1163, respectively.

One further statute which pertains to dropping persons from the rolls in section 8 of the act approved September 1, 1954. Section 1 of that act prohibits the payment of retired pay on account of service as an officer or employee of the Government to any person convicted of certain specified offenses or who has engaged in certain other prescribed conduct.

Section 8 authorizes the President to drop from the rolls any member of the Armed Forces, the Coast and Geodetic Survey, or the Public Health Service, who is deprived of retired pay under the provisions of that act.

No statute prior to the act of September 1, 1954, expressly stated that the dropping from the rolls authority was applicable to retired officers. Expression of that authority in the 1954 statute would appear to constitute a tacit recognition of such applicability, however, rather than an implied exclusion thereof. This is because the 1954 act

required stoppage of retired pay, regardless of whether the sentence upon conviction of the offenses specified extended to confinement in any penitentiary or correctional institution, and also required stoppage of pay in some instances wherein no criminal procesecution had taken place. In such situations, section 8 would supply an authority to separate the individual from his service status which otherwise would be lacking.

To complete the statutory background, the Navy had long construed the term "officer" to include the lowest grade of warrant officer. In article 1 of the Uniform Code of Military Justice, however, "officer" was defined, when used in "this code," as referring to a "commissioned officer," including a commissioned warrant officer.

Section 10 of the act of May 5, 1950, which contained the dropping from the rolls authority, was not technically a part of the Uniform Code of Military Justice which comprised section 1 of the same act. Hence the statement to the effect that "any officer" could be dropped from the rolls meant any commissioned or warrant officer in the Navy, but was considered by the Army and Air Force to mean only any commissioned officer.

In preparing title 10, United States Code, the Navy definition of "officer" was employed in subsection 101 (14); namely, commissioned or warrant officer, but to avoid having the codification enset new law for the Army and Air Force, it was necessary to limit the general dropping from the rolls authority in section 1161 to "any commissioned officers." This necessitated preparation of a new section. 6408, to provide for warrant officers, W-1-the lowest grade or socalled buck warrants-of the Navy and Marine Corps the same limitations on dismissal and liability to dropping from the rolls as obtained prior to the enactment of title 10.

One of the effects of passage of H. R. 9673 would be to eliminate this distinction between the Navy-Marine Corps and the Army-Air Force. Warrant officers in all services would be made subject to being dropped from the rolls in the same manner as commissioned officers.

As regards pay of officers dropped from the rolls, the original Army statute on the subject, the act of July 15, 1870, contained an express statement that an officer dropped from absence without leave should forfeit all pay due or to become due. This provision was carried in the Revised Statutes as section 1266; was section 849 in former title 10. United States Code; and is section 3633 of the new title 10, United States Code.

The 1911 Army statute, which added the authority for dropping from the rolls on civil conviction, did not contain an express provision for forfeiture of pay. The 1918 initial Navy and Marine Corps dropping from the rolls statute contained no provision for forfeiture of pay, and subsequent uniform statutes have been similarly silent.

Whatever may have been the original intent of the 1918 statute, the Navy has for over 30 years construed the statute as being equally applicable to active and retired officers so far as concerned dropping from the rolls for civil conviction. Section 10 of the Naval Reserve Act of February 28, 1925 (43 Stat. 1083), provided that reservists retired with pay should at all times be subject to the laws, regulations, and orders for the government of the Navy.