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 notwithstanding 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 among those persons who are at all times subject to the Uniform Code of Military Justice.

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.

Otherwise, 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 Congress 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. If 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.

Courts and welfare agencies of the local community are far better facilitated to handle matters of this kind than are the military departments.

Very respectfully,

J. L. HOLLOWAY, Jr.,
Vice Admiral, United States Navy.

Mr. KILDAY. I would like to know just exactly what that proposal would do and how it would work, Admiral.

Admiral WARD. Under that proposal, the authority of the service— that is, the President-to drop from the rolls would continue. In other words, you could preserve the morale and integrity of your officer corps and their reputation and esprit by dropping from the rolls any officer who was convicted of a scandalous offense. That would continue just as it is at present. But instead of the automatic stopping by the disbursing officer of payment of retired pay, the proviso that we suggest would operate so that unless the deprivationthe dropping from the rolls-was pursuant to a conviction of a violation of the Hiss Act, that he would continue to draw his pay. I think it would work out very simply.

Right now, as Mr. Blandford points out, there is no decision by any court or even the Comptroller General that dropping from the rolls results in deprivation of retired pay. As a practical matter, however, the disbursing officer would not continue to pay because obviously he would be taking a terrific risk.

If you insert this proviso you will clarify the law, and you will give recognition to the principle that retired pay is earned pay. You would be putting the members of the armed services with respect to their retired pay on the same level with holders of industrial retired pay for instance, you earn and obtain a vested right to a pension from United States Steel. A conviction in a court is not going to subject you to losing your retired pay, your vested right in retired pay. The corporation couldn't deprive you of it. The court couldn't deprive you of it.

Mr. RIVERS. Then the dropping from the rolls by the President or the Secretary would not deprive you of your right to vested pay? Admiral WARD. That is right; unless the dropping were for a Hiss Act offense, such as subversion, treason, and so on.

Mr. GUBSER. That would take care of Mr. Huddleston's case, wouldn't it?

Secretary GATES. Yes.

Mr. BLANDFORD. Under the Hiss Act you can be arrested for speeding in the District of Columbia and lose your retired pay, as a matter of fact. The point that Mr. Kilday raises is not covered in your suggestion, and I am not sure that you want to do this.

Mr. GUBSER. As I understand the Hiss Act, it applies only to Federal offenses. Therefore, you would not cover the situation involving any State offense. That raises a very interesting point. If you are convicted of murder in a Federal court, you lose your retired pay. If you are convicted of murder in a State court, you don't.

Admiral WARD. We prefaced our suggestion with the statement that Congress was considering liberalizing the Hiss Act to cut out a number of these things.

Mr. BLANDFORD. But the Congress could have-I doubt whether the Post Office and Civil Service Committee-now I don't know whether the Post Office and Civil Service Committee could or would go so far as to include State offenses or not.

I don't believe they could.

Admiral WARD. Assuming that Congress decided it was good policy to have retired pay continue as a vested right, we wouldn't want to prejudice that right by virtue of a conviction of a violation of a State statute.

In other words, we think that you don't want to put the Federal Government in the position of supporting traitors, people engaged in subversion who have defrauded the Federal Government-that is the land that is feeding them.

Mr. RIVERS. That is in their official capacity.
Admiral WARD. That is right, sir.

With that limitation we feel if Congress decides the pay should continue, this might be a good way of doing it.

Mr. BLANDFORD. Let me raise another interesting point, there. I am just raising these balloons for you to shoot down but nevertheless it raises this point: If we disenroll an officer and he continues to draw his retirement pay-I give a farfetched example-he is no longer an officer, therefore, the 1894 dual employment statute does not apply to him.

The Dual Compensation Act of 1932 doesn't apply to him. So by disenrolling him you might possibly be giving him a benefit he never expected to get. There are all sorts of factors involved in this thing. Admiral WARD. There is no easy answer, and certain advantages accrue to the man who has misbehaved. For one point, the retired officer who behaves himself and maintains his reputation as an officer and a gentleman is subject to recall to active duty upon war emergency, Well, here the man who misbehaves is dropped from the rolls and is not subject to recall and he can stay on the outside and make a lot of money where the good officers, the good citizens have to go back in the service.

Mr. PATTERSON. Mr. Chairman, I think there is one point that we are overlooking in this situation: From what I understand, conviction under State or Federal statute applies. I can see the United States would have jurisdiction over the officer in a number of cases, but how about a retired officer traveling abroad, and he is convicted of some crime in a foreign jurisdiction.

What is the status then?

Secretary GATES. We have never had one, I don't believe.

Mr. PATTERSON. I know you have never had one, but there is always that possibility. If you are going to start writing a law I think you should take into consideration all circumstances.

Admiral WARD. The Department of Defense has that under consideration, sir.

It is quite a substantial job. The law says, "or who having been found guilty by the civil authorities is finally sentenced to confinement in a Federal or State penitentiary."

Well, "State" probably refers to a State of the United States.
Mr. PATTERSON. I am talking about a foreign sovereign.

Mr. BLANDFORD. Correctional institution could well apply, to use the same argument the Admiral used with me

Mr. RIVERS. Under the philosophy of the Girard case, the State Department can give away rights.

Mr. PATTERSON. This is strictly a jurisdictional point, because there are points of appeal reserved to all Americans under the Constitution.