Credits Vouchers paid and submitted for credit with Form 1655, dated Sept. 6, 1940--- Form 6599, Certificate of Deposit_ Vouchers paid but unscheduled.. Total_ $3,040.00 Amount of shortage of cash account--- $4,896. 60 430.00 It appears that you were tried April 25, 1941, under an indictment charging embezzlement, in the United States District Court for the Southern District of Florida, Miami Division, and the following is quoted from a certified copy of the court minutes of April 25, 1941: MB 22, page 356 Miami, Florida, April 25, 1941. No. 522 K. W. UNITED STATES OF AMERICA v. THOMAS R. TERWILLIGER Comes now into open Court the Assistant U. S. Attorney, and counsel for the above-named defendant being also present, and the defendant having been tried before a jury of twelve good and lawful men on the offense charged in the indictment filed herein, and said jury having rendered a verdict of Not Guilty by reason of insanity at the time of the alleged offense, whereupon on motion of the Assistant United States Attorney without opposition, it was ordered by the Court that the defendant, Thomas R. Terwilliger be, and he is hereby discharged from Custody. You claimed pay and allowances from date to which last paid, November 2, 1940, to include April 24, 1941, on the theory that you had been withdrawn from service December 11, 1940, to April 24, 1941, inclusive, by the civil authorities for an offense of which you were found not guilty. The settlement made by this office February 5, 1942, allowed you pay from November 2 to December 10, 1940, withheld therefrom the amount of the shortage in your accounts, $430, and disallowed your claim for pay and allowances for the period December 11, 1940, to April 24, 1941, on the basis that you were responsible for your absence in the hands of the civil authorities during this period, and that the finding of the jury that you were "Not Guilty by reason of insanity at the time of the alleged offense" was not an acquittal but a finding that because of insanity you were not criminally responsible for the offense charged in the indictment. The letter quoted above questions this action and requests a reconsideration, or review, thereof. You were a fiduciary, an assistant disbursing officer. The shortage in your accounts fell under one or another of sections 87 to 91, inclusive, of the Criminal Code, 35 Stat. 1105. Section 87 is as follows: Whoever, being a disbursing officer of the United States, or a person acting as such, shall in any manner convert to his own use, or loan with or without interest, or deposit in any place or in any manner, except as authorized by law, any public money intrusted to him; or shall, for any purpose not prescribed by law, withdraw from the Treasurer or any assistant treasurer, or any authorized depositary, or transfer, or apply, any portion of the public money intrusted to him, shall be deemed guilty of an embezzlement of the money so converted, loaned, deposited, withdrawn, transferred, or applied, and shall be fined not more than the amount embezzled, or imprisoned not more than ten years, or both. Section 1766, Revised Statutes, provides: No money shall be paid to any person for his compensation who is in arrears to the United States, until he has accounted for and paid into the Treasury all sums for which he may be liable. Your theory apparently is that whether the shortage in your accounts developed piecemeal over a relatively long period of time or occurred in a single incident, the finding of the jury is that you were insane when the defalcation or defalcations occurred as you were not guilty of embezzlement. But the verdict of the jury was on the indictment charging embezzlement and the indictment was undoubtedly drawn as of the date you abandoned the vessel. Whether and to what extent accumulating shortages led to your apparent insanity at the time of abandoning the vessel is not covered by the verdict of the jury. As above indicated, you were a fiduciary, an assistant disbursing officer, an acting pay clerk, and there was a deficiency in your money accounts for which you were responsible, sane or insane. Indictment for the offense was required in the circumstances of your case, and the defense of insanity, which was accepted by the jury in the criminal trial, does not establish that you were not responsible for the shortage which led to your indictment. It appears you performed your duties as acting pay clerk up to the time you abandoned the vessel and the accounts seemed to have been correct except for the shortage. When or how the shortage occurred is not covered by the verdict of the jury. That verdict. covers only the offense of embezzlement as charged in the indictment. A fiduciary who is absolved from criminal liability for the offense of embezzlement is not, by that fact, absolved from responsibility for his acts that may have led to the shortage in his money accounts. The act of August 29, 1916, 39 Stat. 578, provides that warrant officers of the Navy "shall be allowed such leave of absence, with full pay, as is now or may hereafter be allowed other officers of the United States Navy." The Coast Guard is assimilated to the Navy for pay and allowances, section 8, act of May 18, 1920, 41 Stat. 603; and officers of the Navy, by section 13 of the act of March 3, 1899, 30 Stat. 1007, were assimilated to the Army for pay and allowances. Under that assimilation the Army leave laws became applicable to officers of the Navy. The Army leave laws contained in section 1265, Revised Statutes, are a restriction on pay (1 Comp. Gen. 454); they provide for absence not exceeding in the aggregate 30 days in 1 year with full pay (extended by the act of July 29, 1876, 19 Stat. 102, to 60 days in 2 years, 90 days in 3 years and 120 days in 4 years); and conclude: "When absent without leave, they shall forfeit all pay during such absence, unless the absence is excused as unavoidable." When an officer is absent from duty because of indictment by the civil authorities, that constitutes absence without leave unless the acquittal is without qualification. Where he is in fact responsible for the absence, even though not guilty of the criminal offense narrowly charged in the indictment, the absence is not unavoidable and is in fact absence without leave for which no pay is payable under the statute. While the rule as to enlisted men is very similar it is not exactly the same. The Court of Claims in the case of Merwin v. United States, 78 Ct. Cls. 561, considered the question of whether a warrant officer in the Army who had been found insane at the time of the offense charged against him and, therefore, not guilty by reason of insanity was "acquitted." That was a California case. Merwin was charged with murder and entered his plea of "not guilty" and "not guilty by reason of insanity." In accordance with the laws of the State of California the defendant was first tried on his plea of "not guilty." During this proceeding his insanity was not a matter for consideration-by law he was conclusively presumed to be sane. See People v. Troche, 206 Cal. 35, 273 P. 767, appeal dismissed and certiorari denied, 280 U. S. 524; People v. Hickman, 204 Cal. 470, 268 P. 909. The jury in that trial found Merwin guilty of murder in the second degree. Thereafter, he was tried upon his plea of "not guilty by reason of insanity" and the jury in that trial found that he was insane at the time of the offense and, therefore, "not guilty by reason of insanity." With these facts before it the Court of Claims held that Merwin was not entitled to pay and allowances for the period of his detention by civil authorities, and it is stated in the opinion that The act which was committed was responsible, as the judgments of the court attest, for the loss of his individual liberty for the time confined: and we believe that, notwithstanding the pathetic and distressing affliction of insanity, where a soldier sets in motion a legal procedure that takes him from the Army and places him within the jurisdiction of the civil courts, and such courts in pursuance of law retain jurisdiction and control because of the commission of the act, during that time he is not entitled to pay and allowances provided by law. The regulation, we think, was not intended to award pay under the above conditions. It is contended that the present case is "totally different," apparently because you were not found guilty by legal process of the crime alleged. But at your trial it was not necessary for the jury to assume that you were sane and determine whether, based upon that assumption, you were guilty of the crime charged. The jury was not restricted by law as was the jury in the Merwin case. The question of your sanity was placed in issue and it was not necessary that it be determined whether you would have been guilty had the jury determined that you were sane. You set in motion the conditions which eventually resulted in your indictment and you were civilly liable for the shortage in your accounts even though you were acquitted of the criminal offense of embezzlement because of "insanity at the time of the alleged offense" as charged in the indictment. You were not acquitted, without qualification, of the shortage which resulted in your indictment. Your case falls clearly within the rule in the Merwin case and the action of the Claims Division of this office in disallowing your claim for pay and allowances for the period stated must be and is sustained. Attention has been invited to decisions reported in 2 Comp. Dec. 584; 3 id. 249; 7 Comp. Gen. 496; and 8 id. 635, but nothing is found therein which warrants a contrary conclusion. (B-13249) PAY-ADDITIONAL-OVER 12 MONTHS' SERVICE-COAST GUARD In determining whether former members of the Lighthouse Service who were enlisted in the Coast Guard under authority of section 4 (b) of the Act of August 5, 1939, are entitled to the $10 additional pay authorized by section 8 of the Service Extension Act of 1941 for each month of service in excess of 12, there may not be included prior service in the Lighthouse Service. The total annual compensation and allowances of civilian employees of the former Lighthouse Service which is saved to them under section 7 of the act of August 5, 1939, upon their enlistment in the Coast Guard under authority of section 4 (b) of said act if the total pay and allowances of their enlisted rating is less is not subject to variation, and, therefore, such enlisted men are not entitled to the $10 additional pay authorized by section 8 of the Service Extension Act of 1941, for each month of service in excess of 12. Assistant Comptroller General Elliott to the Secretary of the Navy, March 9, 1942: There has been considered your letter of January 12, 1942, as follows: In the Comptroller General's decision to the Secretary of the Treasury of November 19, 1940, B-13249, it was stated: "Section 8 of the Service Extension Act of 1941 (approved August 18, 1941) 55 Stat. 627, quoted in your letter, authorizes payment, during the period of the unlimited emergency declared by the President on May 27, 1941, in addition to amounts otherwise payable, of $10 per month, inter alia, to any enlisted personnel of the Regular Army for each month of military service rendered by him after August 18, 1941, and after his total military service (rendered before or after such date) exceeds 12 months. While this additional payment was referred to in the congressional debates on the Service Extension Act of 1941 in various terms such as bonus, bounty, pay, etc., it accrues periodically to those within the terms of the enactment and for the purposes of the provisions of law last above quoted is an item of the pay of enlisted men of the Army and therefore accrues also to enlisted men of the Regular Navy and Marine Corps." In a decision rendered to the Secretary of the Navy, October 29, 1941, B-19904 [21 Comp. Gen. 392], the Comptroller General stated: "Where legislation has not specifically provided pay or allowances for members of the Coast Guard (as is done in the Joint Service Pay Act of June 10, 1922, 42 Stat. 625) the members of the Coast Guard are entitled to the benefits, and subject to the restrictions, imposed by section 8 of the act of May 18, 1920, quoted in your letter, and, therefore, the last sentence of section 12 (a) of the act of September 16, 1940, is applicable to enlisted men of the Coast Guard to the same extent that it is applicable to enlisted men of the Navy." Under the law as construed by the Comptroller General in the above-quoted decisions, the U. S. Coast Guard has assumed that the $10 additional monthly pay authorized for enlisted personnel of the Army under Section 8 of the Service Extension Act of 1941, approved August 18, 1941 (Public Law 213-77th Cong.), extends to enlisted men of the Coast Guard who have completed 12 months' service in the Coast Guard or the Navy. There are a number of enlisted men of the Coast Guard who, immediately prior to enlistment, were employees of the former Lighthouse Service and who were enlisted men of the Coast Guard pursuant to the provisions of Section 4 (b) of the Act approved August 4 [5], 1939 (53 Stat. 1217), which provides: “Under such regulations as he may prescribe the Secretary is hereby authorized to appoint or cause to be enlisted, in the Coast Guard, in warrant grades or enlisted ratings appropriate to their qualifications, experience, and lengths of service, such personnel of the Lighthouse Service as, on June 30, 1939, met the requirements for section 6 of the Act approved June 20, 1918, as amended and supplemented." Your decision is requested as to whether these enlisted men of the Coast Guard may include their prior service in the former Lighthouse Service in the computation of the necessary 12 months' service under Section 8 (a) of the Service Extension Act of 1941 to entitle them to additional pay at the rate of $10 per month. Section 7 of the Act of August 5, 1939, supra, provides, in part, as follows: "No person commissioned, appointed, or enlisted in the Coast Guard pursuant to this Act shall suffer any reduction in the total of the annual compensation and allowances which he was receiving on the date of his commission, appointment, or enlistment. * * * "" There are at the present time a number of enlisted men of the Coast Guard whose pay is saved to them under the provisions of Section 7, as quoted above. Your further decision is requested as to whether these enlisted men, whose pay is thus saved, may be credited with the addiional pay of $10 per month provided in the Act of August 18, 1941, if qualified in all other respects. The quotations and citations of the two decisions of this office do not appear to coincide, but when transposed, are correct. The language of section 4 (b) of the act of August 5, 1939, 53 Stat. 1217, differs slightly from that quoted in your letter, said section providing: (b) Under such regulations as he may prescribe the Secretary is hereby authorized to appoint or cause to be enlisted, in the Coast Guard, in warrant grades or enlisted ratings appropriate to their qualifications, experience, and lengths of service, such personnel of the Lighthouse Service as, on June 30, 1939, met the requirements for retirement (except those relating to age and period of service) of section 6 of the Act approved June 20, 1918, as amended and supplemented. Section 8 (a) of the Service Extension Act of 1941, approved August 18, 1941, 55 Stat. 627, provides: Any person inducted into the land or naval forces of the United States for active training and service, under section 3 (b) of the Selective Training and Service Act of 1940 shall, in addition to the amounts otherwise payable to such person with respect to such training and service, be entitled to receive the sum of $10 for each month of such training and service in excess of twelve. The provisions of this section shall also apply (1) to any enlisted personnel of the National Guard of the United States or of any other reserve component of the Army of the United States ordered into the active military service under the authority of Public Resolution Numbered 96, approved August 27, 1940, or section 37a of the National Defense Act of 1916, as amended, for any such service so rendered by any such personnel in excess of twelve months, and (2) to any enlisted personnel of the Regular Army for each month of military service rendered by him after the date of enactment of this joint resolution, and after his total military service (rendered before or after such date) exceeds twelve months. [Italics supplied.] |