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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 ...' 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 ; 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 notary GATEs. p am sure the committee agrees with me, Mr. 1VerS. 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 Aiolo 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.
Admiral HollowAY. In the first place, Mr. Chairman, I would say that anything of this sort, if there was a modification of law, it should apply across the board for all the services, not just the Navy, and should be specific so as to make the disbursing officers, give them the protection which they must have in disbursal of Government funds. Our staff developed this thought: If the Congress holds any continuation of pay authority to be in order attention might be invited to the fact that there is currently under consideration in the Committee on Post Office and Civil Service, a proposal to liberalize extensively Public Law 769, the socalled Alger Hiss Act. This includes in its section 8, title 5, United States Code, section 740 (h), an authority for the President to drop from the rolls any member of the Armed Forces who is deprived of retired pay under the provisions of that act. Section 7, Public Law 769, title 5, United States Code, section 740 (i), now provides that the act shall not be construed as restricting authority under any other provision of law to deny or withhold benefits authorized by law. It might be submitted that there could be added to section 7 a further statement in the nature of a proviso that the provisions of the act shall, however, be exclusive as regards deprivation of retired pay. on account of conviction by civil authority, to any member of the Armed Forces not withstanding whether the individual concerned is dropped from the rolls or otherwise separated from his status as a member of the Armed Forces. Now, I admit, sir, that that is complicated, but our people offer it as a suggestion, and I might add that I have the Secretary's permission to offer a paper for the record which I recommended to him and in which he has concurred. It covers largely the technical position that we feel is sound on behalf of the Navy Department. (The paper referred to follows:) Pers—F2a–kp July 15, 1957 MEMORANDUM
From: Chief of Naval Personnel.
To: Secretary of the Navy.
Subject: Proposed departmental position on congressional investigation of dropping personnel from the rolls and depriving them of pay.
1. The Chief of Naval Personnel has received information that the Kilday subcommittee designated by the House Armed Services Committee to investigate the matter of dropping persons from the rolls for civil conviction of felony, is scheduled to commence hearings the week of July 15–19. A proposed departmental position has been developed, which is concurred in by the Commandant of the Marine Corps. An outline of this proposed position is as follows: I. It has been established for over a century that retired officers of the Navy remain officers of the Federal Government, entitled to certain privileges and perquisites as such, and under a corresponding duty to conduct themselves in a manner befitting the honor and dignity traditionally attaching to their offices. Since the acts of January 16, 1857, and August 3, 1861, statutes have provided that the names of retired officers shall continue in the Navy Register, in their respective grades, and that such officers shall be subject to rules for the government of the Navy and to trial by court-martial. Those provisions were contained in section 1457 of the Revised Statutes until the effective date of the Uniform Code of Military Justice. Since that time retired Regular officers have been included j. those persons who are at all times subject to the Uniform Code of Military ustice. Retired officers not on active duty are subject to such restrictive provisions of law as the Dual Employment Act (title 5, U. S. C., sec. 62); bribery and conflict
of interest statutes such as sections 216, 281, 283, and 284 of title 18, United States Code; and the provisions of section 6112 (b) of title 10, United States Code, stemming from an act of June 10, 1896, rendering retired officers of the Navy or Marine Corps ineligible for any payment from the United States while engaged in selling naval supplies or war materials to the Navy. II. For nearly 40 years statutory authority has existed for summary separation, by dropping from the rolls, of those officers who have been convicted in civil courts and finally sentenced to confinement in penitentiaries. The act approved April 12, 1918 (40 Stat. 501), authorized the President of the United States to drop from the rolls of the Navy or Marine Corps any officer who, having been found guilty by the civil authorities of any offense, was finally sentenced to confinement in a State or Federal penitentiary. The June 4, 1920 (41 Stat. 811), reenactment of the Articles of War provided in article 118, a somewhat differently worded authority to drop from the rolls those officers of the Army who had been absent in confinement in a prison or penitentiary for 3 months, after final conviction by a court of competent jurisdiction. In the same act, approved May 5, 1950, which enacted the Uniform Code of Military Justice, a provision was made in section 10, applicable to all Armed Forces, whereby the President might drop from the rolls any officer convicted and sentenced to confinement in a Federal or State penitentiary or correctional institution. In the codification, as title 10, United States Code, of various laws relating to the Armed Forces, approved August 10, 1956, the provisions of the 1950 legislation have been codified as section 1161 (b) and section 6408 (warrant officers, W–1, of the Navy or Marine Corps). Since the Naval Reserve Act of June 25, 1938, authority has existed for separating Reserve officers retired with pay who have been convicted of felony. Section 6 of the Reserve Act of 1938, former title 34, United States Code, section 853d, conferred discretion upon the Secretary of the Navy to discharge members of the Fleet Reserve and officers and enlisted men on various retired lists of the Naval Reserve, when such personnel had been sentenced by civil authority to confinement in a State or Federal penitentiary as a result of a conviction of a felony. The act of May 5, 1950, made members of the Fleet Reserve and Fleet Marine Corps Reserve subject to the Uniform Code of Military Justice, but did not make retired Reserve personnel so subject at times when they were not on active duty or receiving Federal hospitalization. The Armed Forces Reserve Act of 1952 excepted fleet reservists from the Reserve categories under the act. Section 249 (b) of that act authorized the dropping from the rolls of any reserve who had been sentenced to confinement in a Federal or State penitentiary or correctional institution after having been found guilty of an offense by a court other than a court-martial. This provision is now codified as section 1163 (b) of title 10, United States Code. III. Statutes relating to dropping from the rolls of persons convicted by civil authorities have consistently been regarded in the Navy as conferring discretionary powers upon the Secretary and the President. Naval officials in positions subordinate to the Secretary of the Navy have held themselves obliged under such statutes to make known to the Secretary and the President information received pertaining to civil convictions and sentences of officers of the naval service. This is done by preparing papers designed to effect the action of dropping from the rolls, and transmitting them to the Secretary and the President, with a full account of all available information pertaining to the circumstances, and recommendation thereon. IV. It is held essential that dropping from the rolls authority be continued as respects officers on active duty. therwise, no statutory authority would exist for separation of an officer convicted in a Federal district court and sentenced to confinement in a penal institution. Such an officer could not be subsequently tried by court-martial for the same offense. Even in the case of conviction by State authorities, where, in strict technicality, the same facts can subsequently be tried before court-martial, it is manifestly impracticable and undesirable to undertake a cumbersome second prosecution for the sole purpose of effecting a separation from service. The incongruity of continuing responsible officers in the service, and having them bear their titles, while in a penitentiary, and of then returning them to service upon release from confinement, hardly requires elaboration. V. As regards retired officers not on active duty, it is held highly desirable that authority be continued to separate them from their military status and title upon civil conviction of felony. As noted above, the retired officer is entitled so long as he remains such to wear the uniform and bear the title of his grade. It is definitely in derogation of the good name of the Armed Forces to have felons continue as officers of the military Service. VI. Concerning pay to which retired officers are entitled, in the absence of legislation specifically authorizing continuation of payments, Federal disbursing officers are compelled for their own protection to refuse to make any further payments of retired pay after receiving information that the status of the payee as a retired officer has been terminated. The Judge Advocates General of both the Army and the Navy have rendered opinions that the statutes authorizing dropping from the rolls contemplate deprivation of pay upon the accomplishment of such action. VII. Whether legislation should be enacted to authorize continuation of retired pay, notwithstanding termination of retired status through being dropped from the rolls, is a matter preeminently within the discretion of the £o: of the United States. The Department of the Navy, as a representative of the executive branch of Government, should neither propose nor oppose action in this regard. VIII. If the Congress holds that it should enact legislation to continue retired pay of officers dropped from the rolls for civil conviction, the following aspects of the matter should be submitted for its consideration: A. Consideration should be given to excepting from the continuation of pay statute, those persons convicted of offenses involving disloyalty to the United States or malfeasance in office, such as those for which stoppage of any form of retired pay is required by the provisions of Public Law 769, 83d Congress, approved September 1, 1954, title 5, United States Code, section 740 (b), and following sections. This is the so-called Alger Hiss Act, and it would be anomalous to enact a statute which would direct a disbursing officer to continue paying retired pay under the same circumstance wherein another statute directs him to stop such
pay. B. There should be excepted from any such continuation of pay authority any person whose separation has been pursuant to a court-martial conviction and sentence. Unlike a civil court, which may not even be aware of the military status and pay of a particular defendant, military courts-martial are necessarily conscious of the status and pay of persons before them, and deprivation of such status and pay is expressly made one of the permissible punishments upon conviction for major offenses. IX. If the Congress holds any continuation of pay authority to be in order, attention might be invited to the fact that there is currently under consideration in the Committee on Post Office and Civil Service a proposal to liberalize extensively Public Law 769, the so-called Alger Hiss Act. This act includes in its section 8, title 5, United States Code, section 740 (h), an authority for the President to drop from the rolls any member of the Armed Forces who is deprived of retired pay under the provisions of that act. Section 7 of Public Law 769, title 5, United States Code, section 740i, now provides that the act shall not be construed as restricting authority under any other provision of law to deny or withhold benefits authorized by law. It might be submitted that there could be added to section 7 a further statement in the nature of a proviso that the provisions of that act shall, however, be exclusive as regards deprivation of retired pay, on account of conviction by civil authority, to any member of the Armed Forces notwithstanding whether the individual concerned is dropped from the rolls, or otherwise separated, from his status as a member of the Armed Forces. X. Public Law 24, 85th Congress, authorizes the Administrator of Veterans' Affairs to discontinue payments of pensions (as distinguished from disability compensation) after pensioners have been imprisoned for 60 days. This act authorizes the allotment and continuation of pay, in the discretion of the Administrator of Veterans' Affairs, to necessitous dependents of the confined pensioner. A similar authority could be provided as respects continuing retired pay, and authorizing the secretary of the military department concerned to make payments thereof direct to dependents. It is held, however, that such authority would entail inordinate supervision and administration, as well as being a source of dissatisfaction and complaints from conflicting claimants to portions of the retired pay due convicts. # any provision respecting continuation of military retired pay is to be made, it is preferable that such be a blanket authority. In this way, the convict himself could turn his pay over to the dependents whom he desired to have it, or local courts could resolve issues of respective entitlements among persons claiming dependency, through established committeeship or guardianship proceedings.