that an individual who is retired may be disenrolled but draw retirement pay, should the Congress in the same breath say that an individual convicted of a crime while serving on active duty will be entitled to draw that same amount of retired pay that he would have been entitled to draw had he retired, except for the fact that he was convicted?

Secretary GATES. You had better let my lawyer answer that question.

Admiral WARD. I would like to point out that in any similar problem, there must be a time at which you consider a right vests and it is awfully tough luck for someone to be prevented from completing service whoch would enable him to have obtained a vested right. But we have to draw the line somewhere, there has to be finality at some point, and that point, most conveniently to the Government, and for the administration of the service, is upon retirement.

Now, we all regard retired pay as earned pay and the right should vest at that point, and if he doesn't quite make it, it is awfully tough luck, but that is the way it has to fall.

Mr. WILSON. On the other hand, it is conceivable that he could still be on active duty and still be in a retirement bracket. Mr. BLANDFORD. Oh, yes; that is the problem I pose.

Secretary GATES. That is the point.

Mr. BLANDFORD. The commander has already had enough years to qualify for retirement and presumably could have retired, but he has been convicted of a crime.

Mr. WILSON. Because he is on active duty, he doesn't have the vested right.

Mr. BLANDFORD. So long as this is an informal discussion, there is one possible compromise position. I was intrigued with the casesfor example, converting to his own use Government property cases. Those are cases that have been discovered. I remember reading about somebody who had a fire up in Pennsylvania and they discovered half of the material from a World War I warehouse in his attic, or someplace, which indicated something took place back in 1918 or 1919. But if we were to take the position that an individual would be entitled to his retired pay, even though disenrolled because it vested in him on the day that he retired, subject, however, to this condition, that if he is convicted of a crime for an act which he performed while serving on active duty, that he would lose his retired pay, which would put him in the same category as the individual on active duty who might have a reasonable compromise in the two positions.

Mr. KILDAY. Rueger would have been subject to court-martial if he was on active duty, would he not?

Secretary GATES. Yes, sir.

Admiral WARD. There you get into the problem of the statute of limitations which is generally considered to be a beneficial statute. How far back should you go?

Mr. RIVERS. Now, Mr. Chairman, the Judge Advocate General mentioned that you have to have a cutoff date somewhere. You don't consider Rueger as ever having had any vested, established right? Admiral WARD. Oh, yes.

Secretary GATES. We testified to that. We do.

Mr. RIVERS. On the philosophy that he was subject to recall and │ that he was

Secretary GATES. No; that he earned his retired pay with faithful service.

Mr. RIVERS. That he was subject to recall, that he could wear his uniform.

Secretary GATES. Subject to court-martial.

Mr. RIVERS. He was subject to court-martial and could be called commander or captain or whatever rank he had. That is the theory by which you disenrolled him, and cut off his vested benefits?

Admiral WARD. Sir, we are talking about two different things. We were discussing at one point what the law should be. The law as it is has the inevitable result that if we drop them from the rollsMr. RIVERS. He loses his vested interest.

Admiral WARD. The disbursing officer stops paying him, and it is felt that is a matter for the determination of Congress.

Mr. RIVERS. The law now as you interpret it is that at the moment he is disenrolled he doesn't have that vested interest, and it is up to Congress to determine it.

Secretary GATES. Yes, sir.

Mr. RIVERS. Now, what is your suggestion?
Secretary GATES. On how it could be done?
Mr. RIVERS. Yes.

Secretary GATES. Well, we have a suggestion.

Mr. HUDDLESTON. Before we get into that, I would like to bring my case to the attention of the committee, if I may.

Mr. KILDAY. Very well; go right ahead.

Mr. HUDDLESTON. I have been working on the case of Lieutenant Commander Gillem, United States Navy, retired, who is a constituent of mine, since January 14, 1955, when the case was called to my attention by Mr. John W. McIntosh, the United States probation officer for the northern district of Alabama Federal court.

Mr. McIntosh wrote me a letter in 1955 which I would like to read to the committee which will point up I think a case which indicates even more noticeably than the Rueger case the need for congressional action in this field.

He wrote me as follows:

The above-named boy from Birmingham was retired on disability from the Navy some time back. He was diagnosed repeatedly as having a severe personality disorder and a recent diagnosis at naval hospital in San Francisco had described him as psychotic with dementia praecox tendencies.

Mr. PATTERSON. Mr. Chairman, is this officer a Reserve officer? Mr. HUDDLESTON. This is a regular officer and former enlisted man. It is noticed that his behavior pattern in the past has included repeated flights. He has upon occasion abandoned his duty station or home to embark on these wandering flights, and has financed them by a series of fraudulent checks. He was tried in Federal court in San Francisco on June 15, 1954, on charges of violating the title 18, United States Code, section 13, drawing and uttering insufficient funds checks, and he was submitted to the custody of the Attorney General for 2 years, which sentence was suspended and he was placed on probation for a period of 5 years.

The subject then returned to Birmingham, where he has been under our supervision

that is, under the supervision of the probation officer attached to the Federal court in Birmingham.

He has gotten along fairly well until recently. However, the Navy has now advised him that they contemplate allowing him either to resign or be dropped from the rolls of the Navy on account of conviction in the Federal court at San Francisco on the charge of publishing an insufficient funds check.

It should be stated that the defendant did publish a good many insufficient funds checks, but apparently the same psychotic condition for which he was retired from the Navy caused the compulsion to resort to flight which he financed by these checks.

I observed the symptoms of his old behavior pattern returning and today sent him to the naval hospital at Pensacola, Fla.

I am wondering if there is anything you could do about the Navy's proposed disciplinary action in Washington, or if not, please advise me to whom I should make representation in his behalf.

The man has a wife and two children who needed retirement pay for support. Anything that you can do or tell me will be appreciated.

I contacted the Navy and they advised me that he was being dropped from the rolls pursuant to section 10, Public Law 506 of the 81st Congress, and that the discretion in the matter was rested with the President.

I wrote the President outlining the case, and with the indulgence of the committee, I would like to read the letter that I wrote the President because I think it is quite pertinent.

I wrote the President as follows:

The Department of the Navy has placed before you facts pertaining to the conviction of Lt. Comdr. Fred Gillen, Jr., United States Navy, retired, for issuing insufficient funds checks, and sentenced to a 2-year term of imprisonment.

In making your decision as to whether Lieutenant Commander Gillem should be dropped from the rolls of the Navy I would respcecfully urge you to consider the following:

Lieutenant Commander Gillem was given disability retirement from the Navy because of a psychotic condition. This mental condition apparently caused him to be under a compulsion to resort to flight and on several occasions he abandoned his duty station or home to embark on these wandering trips which were financed by negotiating the fraudulent checks. Mr. John W. McIntosh, United States probation officer, Birmingham, Ala., who has supervised the probationer since his conviction, informs me that the offense committed by him was apparently brought on by the same psychotic condition for which he was retired from the Navy.

I respectfully urge you to carefully consider this point, for if true it would in my opinion be an injustice to drop him from the rolls because of the commission of this offense. This is a tragic case. He has a wife and two children who need his retirement pay for support. Mr. McIntosh has advised me that after observhis old behavior pattern returning recently he sent him to the United States naval hospital at Pensacola, Fla. It appears, therefore, that the subject's mental condition has improved little, if any, and he will be able to contribute nothing to the support of his family.

His family would suffer greatly unless he remains on a disability retirement status.

That was referred to the Navy by the President, and Admiral Grenfell on December 3, 1955, wrote me and I will just read one paragraph of his letter-the most important part of the letter:

The probability that you have suggested that the mental illness which required retirement of Mr. Gillem may have also been in some measure a producing cause of his condition in transgression of penal statutory law which was perceived at the time, was initiated to drop the officer from the rolls of the Navy. It was considered, however, that under section 16 of the act of May 5, 1950 (64 Stat. 146, title 50, U. S. C., sec. 739), an affirmative determination of the mental responsibility of Mr. Gillem was implicit in the civil conviction which was a statutory condition precedent to dropping him from the rolls.

Now, it seems to me that it is definitely established in the eyes of the Navy that this officer is suffering from a mental disability. Yet they refuse to recognize the fact that that mental disability was

involved in the civil offense for which the officer was dropped from the rolls. It seems to me that it borders on being a farce to retire an officer from active duty because of a mental condition and then to deny the existence of that mental condition in dropping the officer from the rolls, based on a conviction in a civil criminal case.

Mr. KILDAY. Do you know whether the mental condition was urged as a defense in the trial?

Mr. HUDDLESTON. I don't have those facts. I don't even know whether he was represented by an attorney in San Francisco.

Admiral HOLLOWAY. Mr. Chairman, I must admit that I am not familiar with this case, and I have placed the Secretary in that position where I haven't briefed him on it. I would ask the chairman to bear with me and let me thoroughly personally investigate this and give the member of the committee, and you, sir, a complete résumé.

Mr. KILDAY. Would you do that, and furnish it to Mr. Huddleston? Admiral HOLLOWAY. I will be very glad to. I regret very much that I am not familiar with it.

Mr. WILSON. I can understand that the Navy would not like to continue on their rolls officers who are undesirable, and yet they are faced with a decision to make, whether in order to protect their retirement pay they have to continue convicted felons and other undesirable officers.

It seems to me we should be able, through statute, to give them something.

Mr. KILDAY. The situation to my mind is this:

Members of the military services are always proud of the fact that they are a member of the service, whether on active duty or retired, and we have always insisted, for instance, in having increases in pay applied to the retired as well as to the active-duty personnel, that the retired person of the service is still a full-fledged member of the service, the only distinction being that he is in retired status rather than active-duty status.

Now, you can't have it all one way when it is to your advantage, and all the other way when it is to your disadvantage. I know that the public generally expects a retired officer to live up pretty well to the same standard of conduct that they expect from an active-duty officer. I know that there is frequently deep resentment of any misconduct by a retired man, almost to the same extent as by an activeduty man. So that the question is not just an easy one to determine. It boils down, I think, to a question of the power to administratively disenroll an officer. In all of these cases with the exception of the man who is absent with intention to desert, it would be possible for the services to court-martial the man for conduct prejudicial to good order and military discipline, and that is the big thing that you want to accomplish.

When you did that, depending upon the gravity of the offense, the court could either eliminate him from the service, or impose some lesser punishment, and I would think that in some of these cases that the lesser punishment would be sufficient and adequate.

Now, in Mr. Huddleston's case, it might be a close question of law as to whether the mental condition had been adjudicated by the court which convicted him. Of course, he would not be liable to a civil penalty if he were not mentally competent, and did not understand the nature of his act.

So that I would think that what you need, here, in these cases, would be a court-martial.

Mr. BLANDFORD. In that case, wouldn't that be double jeopardy? Admiral WARD. It would be double jeopardy in the Rueger case. If a Federal court tries the person for the particular offense, there is no question that if we tried him by a court-martial later on, even though we alleged, or charged conduct unbecoming, if the specification has to set out the same offense which had already been the subject of a trial in the Federal court, it would be double jeopardy.

Now, if it were a State court who tried him, theoretically, no double jeopardy would be involved, but as a practical matter it would create substantial confusion and really depart from the principle of double jeopardy if we tried him again for the same thing.

Mr. KILDAY. It is a violation of State sovereignty.

Admiral WARD. It is not double jeopardy if tried by a State court, and then tried by a court-martial, but as a matter of policy it is pretty serious.

Mr. RIVERS. Then I think you run into Navy's hard-and-fast rule that any trouble he gets into, you have discretionary power to kick him out of the service.

Admiral WARD. No, sir; the President has it.

Mr. RIVERS. Well, that is the way it works.

Then you get into the area of moral turpitude, the intent, whether he is capable of following an intent, as brought out by the gentleman from Alabama, but in all cases it looks like the Navy reserves the right to take him off in case of any kind of conviction.

Secretary GATES. Well, it has only been used 7 times in 45 years. It is pretty rare.

Mr. RIVERS. And what we want to do, I want to hear the Navy's suggestion so that we can work this thing out together.

Admiral WARD. I would like to suggest, sir, just before Admiral Holloway makes the suggestion, that although the Secretary has stated that he considers it to be entirely a matter of policy for Congress as to whether retired pay would continue the Secretary wants to continue the authority to drop from the rolls

Secretary GATES. I am sure the committee agrees with me, Mr. Rivers.

Admiral WARD. As to one element of loss of retired pay, cert inly we would not want the retired pay to continue in the case of an officer who had engaged in treason, subversion, or any of the Hiss Act type of crimes.

In other words, if he had embezzled money from the Government we think there also-I mean, using this official status, his position, to defraud the Government, we wouldn't want him to continue to draw retired pay. So that works in very nicely with the suggestion that Admiral Holloway has worked out, in case you gentlemen decide as a matter of policy that something should be done.

Mr. KILDAY. I would like to hear the admiral's suggestion on that. I doubt if we would ever be able to pass through Congress a law which would say that notwithstanding the fact that the man is guilty of murder and is disenrolled, he should continue to draw his retired pay. It would be a little hard to get that passed.

Secretary GATES. I think this looks to us like a rather ingenious suggestion. It may not be thought so by your committee.