The JAG JOURNAL is published by the Office of the Judge Advocate General of the Navy as an informal forum for legal matters of current interest to the naval service. The objective of the JAG JOURNAL is to acquaint naval personnel with matters related to the law and to bring to notice recent developments in this field.

The JAG JOURNAL publishes material which it considers will assist in achieving this objective, but views expressed in the various articles must be considered as the views of the individual authors, not necessarily bearing the endorsement or approval of the Department of the Navy, or the Judge Advocate General, or any other Agency or Department of Government.

Invitations to submit articles are extended to all persons, whether lawyers or laymen. Articles submitted should adopt an objective rather than an argumentative approach and should be written in a manner readily understandable by the lay reader. The JOURNAL will return unpublished manuscripts if so requested, but responsibility for safe return cannot be assumed. No

compensation can be paid for articles accepted and published.

Issuance of this periodical approved in accordance with Department of the Navy Publications and Printing Regulations, NAVEXOS P-35.

REAR ADMIRAL JOSEPH B. McDEVITT, JAGC, USN Judge Advocate General of the Navy

REAR ADMIRAL ROBERT H. HARE, JAGC, USN Deputy Judge Advocate General of the Navy

LIEUTENANT COMMANDER R. L. SLATER, JAGC, USN Editor

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RETIRED OR RETAINER PAY-No Authority for Involuntary Withholding by Navy to Collect Debt Arising from Member's Malfeasance in Federal Civilian Employment

● The Judge Advocate General recently considered the question whether retainer pay could be withheld by the Navy, at the request of the Post Office Department, under 5 U.S.C. 5511, in the absence of the consent of the Fleet Reservist in question to such withholding, to satisfy the Fleet Reservist's indebtedness to the Government arising from his malfeasance in the performance of his duties as an employee of the Post Office Department. Section 5511 of title 5, U.S. Code provides as follows:

"(a) Except as provided by subsection (b) of this section, the earned pay of an employee removed for cause may not be withheld or confiscated.

"(b) If an employee indebted to the United States is removed for cause, the pay accruing to the employee shall be applied in whole or in part to the satisfaction of any claim or indebtedness due the United States."

The Judge Advocate General expressed the opinion that the quoted section relates only to the accrued civilian salary of a civil employee who is removed from his civilian position for cause and does not afford any authority for an involuntary withholding from military retired or retainer pay. The Judge Advocate General

also observed that he was not aware of any other provision of law which would permit the requested withholding, in the absence of consent thereto by the Fleet Reservist concerned. He recommended, however, that the question be referred to the Comptroller General of the United States, the final administrative authority upon matters affecting military pay. (JAG ltr JAG:134: WEN:evs Ser: 8096 of 30 August 1967). This was done. The Comptroller agreed with the conclusion reached by the Judge Advocate General and observed:

"As a general rule, retired or retainer pay is not subject to administrative setoff without the debtor's consent. See Baker v. McCarl, 24 F. 2d 897 (1928). Where Congress has intended that current pay be subject to involuntary withholding by the Government in payment of an indebtedness, it has provided specific statutory authority for that purpose. See 5 U.S.C. 5512, 5513 and 5514, none of which sections are applicable to the case

"It is our view that 5 U.S.C. 5511 is applicable only to the final pay due Mr. F . . . in his civilian position. Accordingly, on the basis of the present record, we find no legal basis for withholding [Fleet Reservist's] retainer pay as requested by the Post Office Department." (Comp. Gen. Decision B-163159 of January 14, 1968.) (Continued on page 96)

*Captain Headley is currently assigned to the General Affairs Branch, Administrative Law Division, Office of the Judge Advocate General. He received his B.A. Degree in political science in 1962 from Denison University and his LL.B. Degree in 1965 from Fordham Law School, where he served as a member of the editorial board of the Fordham Law Review. Captain Headley is a member of the New York State Bar and admitted to practice before the U.S. Court of Military Appeals.

1. 81 Stat. 221 (1967), 29 U.S.C.A. 601–607 (Supp. 1967). Provisions for the certificates were originally enacted by Pub. Law 89-690 and formerly included in chapter 80 of title 10, U.S. Code, Armed Forces (10 U.S.C. 1571-1577). Inasmuch as the law is administered by the Secretary of Labor, it was not considered appropriate for retention in title 10 (1967 U.S.C. Cong. and Admin. News 2181).

2. Hearings on H.R. 16646 and H.R. 105053 before the Special Subcommittee on Discharges and Dismissals of the House Armed Services Committee, 89th Cong., 2d Sess., 10287 (1966). These figures are based upon undesirable, bad conduct, and dishonorable discharges-excluding, therefore, the honorable and general discharge. A statistical table of all discharges during the period 1957-1965 may be found in Hearings on H.R. 16646 before the Senate Armed Services Committee, 89th Cong., 2d Sess. 23 (1966).

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small figures, they do represent a considerable manpower problem in that ex-servicemen with less than an honorable discharge often find it difficult to secure meaningful employment. Of additional significance is recognition of the fact many of these persons receive such discharges as a result of misconduct when they are young and not sufficiently aware of the consequences of their actions. For several years, Members of Congress have been concerned with providing a means of mitigating the adverse consequences of military discharges under less than honorable conditions "without impairing military discipline and without detracting from the value of a discharge under honorable conditions." By authorizing the Secretary of Labor to award an exemplary rehabilitation certificate, Congress has not attempted to "eliminate a properly imposed penalty for improper behavior," but has provided the means whereby an individual can establish that he has rehabilitated his repu

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3. A chronology of the bills aimed at relieving the "stigma" attached to a less than honorable discharge is contained in Hearings on H.R. 16646 before the Special Subcommittee, supra note 2, at 10286.

4. S. Rep. No. 1669, 89th Cong., 2d Sess. 2 (1966); 1966 U.S.C. Cong. and Admin. News 3522.

5. The Department of Defense took the position that an exemplary rehabilitation certificate should "most appropriately be issued by a civilian agency whose primary functions are in the area of welfare and social adjustment of members of the civilian community, and whose staff is trained to evaluate these matters," S. Rep. No. 1669, supra note 4, at 4; 1966 U.S.C. Cong. and Admin. News 3523.

6. Hearings on H.R. 16646 before the Special Subcommittee, supra note 2, at 10287.

tation. The concomitant salutary practical objectives include removal of the "stigma" of a less than honorable discharge and anticipated increased employment opportunity.

OTHER THAN HONORABLE DISCHARGE

An exemplary rehabilitation certificate may be awarded to any person discharged or dismissed from the Armed Forces under conditions other than honorable, or who received a general discharge. Provision for inclusion of the general discharge was inserted by Senate amendment.' This amendment was drafted to permit a person who has received a general discharge-considered a discharge under honorable conditionsto apply for an exemplary rehabilitation certificate, and confirms recognition that there may be special circumstances in which a person who received a general discharge would find it useful to establish that his post-service conduct has been exemplary. Although inclusion of the general discharge may give the appearance that Congress considered a general discharge to be comparable to a discharge under conditions other than honorable, pertinent legislative history clearly reveals only an intention to extend the availability of the certificate to those persons who have received a general dischargenotwithstanding the fact that the sections which implement issuance of the certificates do not refer to a general discharge, but refer only to persons discharged or dismissed under conditions other than honorable.

NO CHANGE IN ORIGINAL DISCHARGE Initially, it is important to recognize that issuance of a certificate will not affect, change, or supersede the discharge originally issued," nor will it allow benefits under any laws of the United States (including but not limited to those relating to pensions, compensation, hospitalization, military pay and allowances, education, loan guarantees, retired pay, or other benefits based upon military service) unless entitlement to those benefits would accrue under the original

7. S. Rep. No. 1669, supra note 4, at 1; 1966 U.S.C. Cong. and Admin. News 3521.

8. Ibid.

9. H.R. Rep. No. 1826, 89th Cong., 2d Sess. 1-2 (1966). It should be pointed out that there have been legislative efforts to authorize a board (outside of the Department of Defense) to review the post-service conduct of a person discharged from the armed services under conditions other than honorable with a view toward cancelling the discharge and issuing in lieu thereof a discharge under honorable conditions (H.R. 935, 90th Cong., 1st Sess. 1967). Objections to such legislation might include the lack of incentive to work for an honorable discharge and the resulting erosion of disciplinary control.

discharge or dismissal.10 For those who feel that an error or injustice has been committed in the character of their original discharge, Congress has separately recognized the need for procedures whereby an individual may petition for a change, correction, or modification of that discharge.11

REQUIREMENTS

In order to qualify for an exemplary rehabilitation certificate, it must be established to the satisfaction of the Secretary of Labor that the person concerned has rehabilitated himself by his post-service conduct-that his character is good and his conduct, activities and habits since discharge, before or after enactment of the law, have been exemplary for at least three years prior to the date of his application.1 Regulations establishing procedure and policy for administration of the act have been published in the Federal Register.13 For the purposes of establishing rehabilitation, oral and/or written evidence may be used. Any person making application may appear in person or by counsel,15 either in Washington, D.C., or at the nearest regional office of the U. S. Department of Labor.16 The application requires that the applicant:

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(a) Submit the prescribed form to his present employer, if employed, to be completed with regard to the applicant's general reputation and employment record, notarized or witnessed and returned by the applicant;

10. 81 Stat. 221 (1967), 29 U.S.C.A. 604 (Supp. 1967). It is noted that a person with a general discharge is entitled, under existing law, to all the benefits administered by the Veterans' Administration.

11. The Secretary of the Navy, acting through the Board for Correction of Naval Records (10 U.S.C. 1552) (NAVEXOS P-473 (Rev. 12-2-61)) and Navy Discharge Review Board (10 U.S.C. 1553) (NAVEXOS P-70 (1-62)), may change the type and character of a discharge when warranted by the circumstances. BCNR. composed of civilians, may recommend to the Secretary the carrection of a record whenever it appears that such action is necessary to correct an error or remove an injustice. NDRB has jurisdiction to review all discharges, except separations by reason of the sentence of a general court-martial, to determine whether the original discharge was improperly or inequitably issued under reasonable standards of naval law and discipline existing at the time of such original separation, or under such standards differing therefrom in the petitioner's favor which subsequent to his separation were made expressly retroactive to the separation had by petitioner, so as to warrant a change, a correction or modification. 12. 81 Stat. 221 (1967), 29 U.S.C.A. 602 (Supp. 1967). 13. 32 F.R. 7206 (1967).

14. Application forms may be obtained from and should be filed with the Bureau of Employment Security, U.S. Department of Labor, Washington, D.C. 20210, att: XRC.

15. 81 Stat. 221 (1967), 29 U.S.C.A. 603 (Supp. 1967). 16. 32 F.R. 7207 (1967).