BELL v. UNITED STATES

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Argument of Robert E. Hannon

Chief Justice Earl Warren: Number 92, Otho G. Bell, et al, Petitioner versus United States.

Mr. Leonard, oh where is he, is there no one on the other side?

Mr. Robert E. Hannon: I am (Inaudible) moving party, Your Honors.

Chief Justice Earl Warren: Yes, yes.

Mr. Hannon.

Mr. Robert E. Hannon: Thank you Your Honor.

If the Court please.

This --

Chief Justice Earl Warren: -- talking about it.

I beg your pardon.

Mr. Robert E. Hannon: This involves the claim by three former Korean prisoners of war for pay which they claim as owed to them under two express federal statutes.

The first to these statutes is, the so-called Prisoner of War Pay Statute, the other is the Missing Persons Act.

I'd like, in commencing my argument, to read the Prisoner of War Act or Prisoner of War Pay Statute.

This statute is presently found in 37 U.S.C. 242.

However, at the time of filing the petition, it was in 10 U.S.C. 846.

This particular statute provides that, "Every noncommissioned officer and private of the Regular army and every officer, noncommissioned officer and private of the militia or volunteer corps in the service of the United States who was captured by the enemy, shall be entitled to receive during his captivity, notwithstanding the expiration of his term of enlistment the same pay, subsistence, and allowance to which he may be entitled while in the actual service of the United States.

This provision shall not be construed to entitle any prisoner of war of such militia corps to any pay or compensation after the date of his parole, except the traveling expenses allowed by law."

That is the statute in its entirety.

That statute, as I mentioned is currently subsisting legislation.

In the incident case we're speaking of three former prisoners of war by the facts admitted in the pleadings by the stipulation of facts submitted to the Court of Claims and by the findings of the lower court, the following have been conclusively established.

First of all, that each of the petitioners enlisted in the Army; that is the Regular Army in 1949.

Each of the prisoners was captured by enemy forces in Korea in 1950 and 1951.

Subsequent to their capture while they were still prisoners of war, they were, by the Army, promoted to corporal.

They were confined as prisoners of war from the date of their capture until August 23rd of 1953.

This is the admission from the defendant's answer.

It is our contention that they were confined as prisoners of war until their dishonorable discharges in January of 1954.

During this period of confinement, the plaintiffs misconducted themselves.

They were ultimately dishonorably discharged January of 1954.

In 1955, they returned to the United States.

They were arrested by the Army and held pending trials by General Court-martial for violation of Article 104 which is misconduct by a prisoner of war, and Article 105 which is aiding the enemy.

The District Court in California issued a writ of habeas corpus, ruling that they could not be tried by the Army as the Army had lost jurisdiction because of the dishonorable discharge in line with the Toth case.

However, the District Court did not rule that they could not be tried.

They had only ruled that they could not be tried by Court-martial.

The petitioners then and now could still be tried in the Federal District Court in San Francisco or any other Federal District Court where they're located on the charge of treason.

The Army or the Government to date has not seen fit to bring these persons to trial in a civilian court with a civilian jury.

Justice Potter Stewart: How did they -- did they commit treason in San Francisco?

Mr. Robert E. Hannon: My understanding of the law, Justice Stewart, is that a person guilty of treason or suspected of Treason can be tried in any Court wherever he's located, regardless of where the act was committed.

We -- in our brief at page -- from pages 10 to 16 in our opening brief, we have pointed out line by line how these -- the facts of this case fully comply with all of the conditions of 10 U.S.C. 846.

The petitioners have full complied with all of the requirements of the statute.

However, when they made their demand to their back pay, the Army refused to pay them.

I should now like to point out that we are asking not only for the pay from the date of their capture to the date of their discharge, but we are also asking for accrued regular pay and accrued combat pay which they earned prior to the date of their capture.

The Army has refused to pay any of this pay and I feel that --

Chief Justice Earl Warren: Is that -- pardon -- is that fairly before us?

Mr. Robert E. Hannon: I believe it is Your Honor in the initial letter from Co-Counsel Harold Brown in this case, he demanded all of the back pay.

And those are the words that he used.

Second, the statute that is the Missing Persons Act, 50 U.S.C. 1002 provides all pay due at the time of capture.

I raised it in my opening brief on pages 8 to 15.

That was the opening brief to the Court of Claims.

The Court of Claims had before it the findings of the commissioner.

It had before the stipulation of facts attached as an exhibit to the commissioner's report where the pay records or the accounting of the General Accounting Office and it's clearly spelled out there that we were asking for pay.

I argued to the Court of Claims that we were asking for combat and regular pay accrued prior to capture.

Chief Justice Earl Warren: Do you -- do you concede that this comes under the Missing Persons Statute?

Mr. Robert E. Hannon: Yes, Your Honor.

I feel the -- they're equally entitled under both statutes.

I feel both statutes are in full force and effect and under both statutes, the plaintiffs are entitled to their prayer.

Justice Charles E. Whittaker: (Inaudible)

Mr. Robert E. Hannon: That's the debate -- the -- there is no specified date as to when repatriation was refused other than that it was after the August 8th in 1953.

However, it is our contention that is a matter of law, these men were members of the Army from the day of their mustering into the Army until their date of discharge from the Army.

And there's a long line of presidents cited in the briefs to the effect that military -- that as long as a person is mustered into the Army and not mustered out of the Army, he is entitled of the pay of the office unless forfeited by some means known to law which is by the sentence of a Court-martial.

Justice Charles E. Whittaker: Do you (Inaudible) prisoners of war (Inaudible)

Mr. Robert E. Hannon: I believe the defendants had admitted elsewhere in their answers that they where prisoners of war until they were remit -- until they were dishonorably discharged.

Justice Potter Stewart: What if -- what if during this period they joined the foreign army?

Mr. Robert E. Hannon: Had they joined a foreign army, I don't feel that under this particular or either of these particular statutes, they would be excluded for this reason, if I might continue?

They are entitled to the pay so long as they are in the office.

As soon as they're discharged, they're out of the office or out of the status.

Now, if they were tried for example for treason, the District Court trying them for treason could forfeit all that pay, but they have not been tried for treason and therefore they're presumed not to be guilty of treason which is the same as joining a foreign army, they're presumed not to -- they're presumed to be innocent therefore presumed not to be guilty of treason.

Therefore, I feel that we have a meaningless situation until such time as it is established conclusively that they did join the foreign army, it must be presumed that they did not.

Justice Potter Stewart: Well, let's assume that facts are not too dissimilar perhaps for the facts that are actually here, that these men were missing and that they disappeared and presumed they were captured and were presumably, so far as our Army knew, were being held as prisoners of war.

Then two years later, it turned out that the -- instead of that, they have the -- they had deserted and had joined a foreign army.

And they then, they're brought back and not until then -- not until that is ascertained are they -- do they receive technically a piece of paper giving them a dishonorable discharge from our Army.

Isn't what your position be that until that discharge came they were entitled pay from our Army, although they've been fighting in another army?

Mr. Robert E. Hannon: Unless forfeited by some means known to law which would be either by Court-martial or trial in the Federal District Court.

The alternative to this is, would be the other equal.

Suppose the Army suspected them of joining a foreign army in a unilaterally, administratively, without a hearing, without any opportunity to be heard and based on the supposition that they had forfeited pay.

It supposed to turn out but they didn't, but -- while we're saying is that there should be a hearing on this.

Some type of hearing before they forfeit pay.

Chief Justice Earl Warren: But wouldn't be joining an enemy Army be a desertion?

Mr. Robert E. Hannon: It could be if it was so charged.

However --

Chief Justice Earl Warren: If it was -- if it was desertion, it wouldn't be -- it wouldn't be under the -- they wouldn't be entitled to anything under the Missing Persons Act?

Mr. Robert E. Hannon: There's an exception in the Missing Persons Act providing that person is absent from post, which is one of the four types of unauthorized absence is not entitled under the Act.

However, the accused in this case or the accused, the petitioners in this case have not and could not be guilty of unauthorized absence because they were prisoners of war.

Chief Justice Earl Warren: I didn't mean to apply it to your people.

I was just asking you --

Mr. Robert E. Hannon: Well, throughout its brief, the Counsel for the Government raises this question of desertion and unauthorized absence.

They are totally irrelevant to the facts of this case because these men were not and could not, legally could not be guilty of absence.

Chief Justice Earl Warren: No.

I'm not trying to apply it in --

Mr. Robert E. Hannon: But in -- in that situation, if a person were guilty of absence, the prisoner of war were guilty of absence, then there's an express exclusion under the Act, under the Missing Persons Act, excluding them from entitlement.

Justice Charles E. Whittaker: Is it true that the (Inaudible)

Mr. Robert E. Hannon: I believe that statute is precisely and directly in point with the --

Justice Charles E. Whittaker: But it's specifically (Inaudible)

Mr. Robert E. Hannon: Yes, Your Honor.

Justice Charles E. Whittaker: I really want the right (Inaudible)

Mr. Robert E. Hannon: Yes, Your Honor.

Justice Charles E. Whittaker: Because (Inaudible)

Mr. Robert E. Hannon: Yes, Your Honor, we would and if in --

Justice Charles E. Whittaker: So, if it happened with the (Inaudible) which involved?

Mr. Robert E. Hannon: We defend them so that we admitted this fact by their pleadings Your Honor.

Justice Charles E. Whittaker: (Inaudible)

Mr. Robert E. Hannon: Defendants have admitted this fact by their pleadings.

Justice Charles E. Whittaker: Right, so what is the whole -- I mean, what is the case pleading on the (Inaudible)

Mr. Robert E. Hannon: I believe the August, if my recollection serves me correct Your Honor, the August repatriation dealt with sick and wounded.

The other non-sick and wounded repatriates were repatriated at some time between August, the last one is coming through in January of 1954.

All we know is that during some period there, but I call the Court's attention to the first affirmative defense in the defendant's answer.

They -- and that saved a position -- and that affirmative defense admits that the plaintiffs were prisoners of war at the time of their discharge, in captivity, as they use the term release from prison as prisoners of war.

I believe it's the direct terminology that they use.

Chief Justice Earl Warren: There is a stipulation, is there not, as to the amount of money that's involved?

Mr. Robert E. Hannon: Yes, Your Honor.

There's a stipulation provided -- it was made from accounting -- from the General Accounting Office.

This accounting is attached and as an exhibit to the commissioner's report.

This accounting provides specifically for combat or regular pay amongst other things earned prior to date of capture.

Justice Charles E. Whittaker: (Inaudible)

Mr. Robert E. Hannon: No, Your Honor.

It's computed entirely on a one page accounting which shows credits and debits from the General Accounting Office.

There's one page of accounting applicable to each of the petitioners.

If the Court please, if I may proceed very briefly here, I feel that the true significance of this case is not whether or not these particular plaintiffs are paid.

I feel that in the circumstances and in relative sense that is relatively unimportant.

I feel that the true significance, the true importance of this case is the effect that the unilateral administrative retroactive forfeiture of military pay will have on the future servicemen.

I feel that any servicemen before his pay is forfeited should at least, be entitled to argue to Court, should be entitled to a hearing, should be entitled confrontation, should be entitled a notice.

I feel he should be entitled across examine his accusers.

The pay of a military man is extremely important.

It's one of the most important rights of the servicemen.

It's one of the major morale factors of servicemen and I don't feel that this right should be taken away from them unilaterally, administratively and retroactively.

The prior decisions of the Court of Claims have been that it takes the sentence of a Court-martial to forfeit military pay.

Now, the defendant's first argument is that this is not a forfeiture or an administrative forfeiture because there was a de novo hearing in the Court of Claims.

I submit to the Court that one of the findings of the Court of Claims was that the administrative finding was conclusive.

The Court of Claims says, well the Army administratively determined that they were not entitled to pay.

That is conclusive under the Missing Persons Act, and therefore, we can't consider it.

Certainly, this is not a hearing in a sense of giving a person a hearing.

The second point, in the Court of Claims --

Chief Justice Earl Warren: If that is in this transcript, is that transcript attached to that finding? Is that finding in the transcript of records?

Mr. Robert E. Hannon: Yes.

In the Court of Claims' decision they cite the case of -- I can't recall it but they cite their prior case which holds that -- that the administrative determination on the Department of the Army is conclusive.

The second point, insofar as this de novo hearing, providing the hearing with the -- soldier should have is this burden of proof lies with the soldier.

In other words, the Army administratively forfeits pay for misconduct and then tells the soldier to come in and prove in the Court of Claims that he was not guilty of misconduct.

I don't feel this is the type of hearing that the Court has in mind.

The second argument the defendants raise is that it's not a forfeiture because it's not accrued pay.

Well, this requires that you, the members of the Court to interpolate into 10 U.S.C. 846 the requirement of good conduct.

You can interpolate into any statute.

If you take the regular pay of military, the statute that provides regular military pay and interpolate into that good conduct can say any soldier who does not conduct himself well has not accrued pay.

He hasn't earned the pay.

This is contrary again with all the prior cases of the Court of Claims.

The holding of the lower court and the defendant's arguments is that, "The essence of things.

These men were not in captivity."

This is contrary to the statement, its finding.

It's contrary to all of the prior rulings of this Court to the effect that status -- that is the status of serviceman cannot be unilaterally abandoned.

I think I've deviated here.

The Court of Claims held that in the essence of things, these men were not in the service of the United States.

Justice Felix Frankfurter: What does that mean, the essence of things?

Mr. Robert E. Hannon: Well, that's the terminology that the Court used based upon these alleged acts of misconduct in the essence of things, they were not in the service of the United States.

Justice Felix Frankfurter: How did -- what was their status?

Mr. Robert E. Hannon: Their status until January 24th --

Justice Felix Frankfurter: The period in question.

Mr. Robert E. Hannon: The period of question was at members of the Regular Army of the United States confined as prisoners of war.

The --

Justice Felix Frankfurter: Well -- but that is contradicted in the contemplation of those who use the phrase that you just used.

In the essence of things, they were not in the service.

Mr. Robert E. Hannon: That is what the Court of Claims held Your Honor, in the essence of things; they were not in the service.

This is for the contrary to the prior holdings of this Court relative to status of servicemen.

The -- there are three prior cases on this point plus many others In Re Grinly and In Re Morrison and Wilson versus the United States have all held that when a person is in the service, his status – when a citizen is enlisted in the service, he acquires a status, the status cannot be unilaterally abandoned.

Justice Felix Frankfurter: How - how is it terminated?

By what's that --

Mr. Robert E. Hannon: By the only way of status of the service -- of being in the service can be terminated is by a discharge.

Justice Felix Frankfurter: And -- on the basis of what can the discharge be --

Mr. Robert E. Hannon: Discharge can be based on -- you have three types of administrative discharges, two types of punitive discharges.

Punitive discharges must be given by Court-martial and those are dishonorable and bad conduct.

This is a dishonorable discharge case –

Justice Felix Frankfurter: Do you -- do you assume that a man -- the status maybe terminated by the administrative discharge?

Mr. Robert E. Hannon: It can, Your Honor.

Justice Felix Frankfurter: What's the basis for saying that?

Mr. Robert E. Hannon: Well, an honorable discharge is an administrative discharge.

It can be terminated upon expiration of enlistment or upon anyone of various other things.

Justice Felix Frankfurter: But the dishonorable discharge is something else?

Mr. Robert E. Hannon: The dishonorable discharge is a punitive discharge and can only be given by a Court-martial.

Justice Felix Frankfurter: Was there (Inaudible)

Mr. Robert E. Hannon: No, there was no Court-martial here but there was a dishonorable discharge.

That's the --

Justice Felix Frankfurter: And you agree, you admit that dishonorable discharge can be given administratively?

Mr. Robert E. Hannon: We -- we don't express opinion on it Your Honor.

Justice Felix Frankfurter: Well isn't that -- why don't you?

Mr. Robert E. Hannon: Well, I don't' feel it's relevant.

We have a --

Justice Felix Frankfurter: And why isn't relevant because if it couldn't be administratively -- if he couldn't be administratively dishonorably discharged if he is still in the service, and then your case is clear.

Mr. Robert E. Hannon: No, we're not -- we're not asking for any pay after the discharge, Your Honor.

We're only asking for pay prior to the discharge and no pay was forfeited at the time of giving discharge.

There was no forfeiture pay at that time.

Chief Justice Earl Warren: Mr. Leonard.

Argument of George S. Leonard

Mr. George S. Leonard: Mr. Chief Justice, it maybe of some assistance if I refer somewhat more definitely to the statutes which were involved here.

This is basically a military pay case.

It could occur under virtually any circumstances, but it did in Korea is not particularly changing of the law in that, the problem first that the Government has before it or rather in this case, the petitioner has before him is to prove his right to basic pay.

Now, it will have occurred to the Court that there have been a great many statements here made that this pay continues to be accrue to an enlisted man, regardless of any condition.

Now, of course there has been no citation on this argument or in the briefs to the pay statutes, only to the prisoner of war statute which continue such pay as will otherwise be owing.

There is a basic pay statute.

It is not based upon the status of being an enlisted man at all.

It is effective to every person in the uniformed services of which must had it in myself as it so happens they're also members and if maybe that neither representative are going to pay at the present time.

The basic pay statute is found in 37 U.S.C. 232.

Justice Hugo L. Black: Is that in your brief?

Mr. George S. Leonard: 37 The United States Code

Justice Hugo L. Black: Is that in your brief?

Mr. George S. Leonard: That is not in our brief

Justice Hugo L. Black: Not in it.

Mr. George S. Leonard: This is basically -- we have argued in the brief merely that there is no basic pay right shown by the petitioner.

I thought I would bring to the Court's attention this specific statute in --

Chief Justice Earl Warren: What does it say?

What does that statute say?

Mr. George S. Leonard: I quote from 232 which is now Subsection D and was at the time Subsection A, "All members of the uniformed services, when on the active list, when on active duty or when participating in full time training, training duty with pay or other full time duty," and I skip, "are entitled by law to receive from the Federal Government," now where am I, I'm sorry, get down to, "shall be entitled to receive the basic pay of the pay grade to which assigned."

Now, these are the conditions.

First, the active list, second, active duty, third, full time training, fourth, training duty with pay, fifth, other full time duty.

Chief Justice Earl Warren: You say that is or is not applicable?

Mr. George S. Leonard: That is not applicable.

In other words, the plaintiffs in this particular case, the plaintiffs in the court below, come under no one of those categories.

They were not on the active list.

They were not on active duty.

They were not participating in training and they were not other full time duty.

Chief Justice Earl Warren: Well counsel argued here that they did come under it?

Mr. George S. Leonard: Yes, Your Honor.

Chief Justice Earl Warren: Oh did he?

Mr. George S. Leonard: He is arguing that they have a basic right to pay and allowances which is continued as a prisoner of war.

Chief Justice Earl Warren: Well, I thought he was relying on 37 U.S.C. 242 --

Mr. George S. Leonard: That is correct.

Chief Justice Earl Warren: -- which says, "Every noncommissioned officer and private of the Regular Army in the service of the United States who was captured by the enemy shall be entitled to receive during his captivity, notwithstanding the expiration of his term of service the same pay, subsistence, and allowance to which he may be entitled while in the actual service of the United States."

Mr. George S. Leonard: Well, in the actual service in the United States.

Chief Justice Earl Warren: The same as --

Mr. George S. Leonard: Precisely.

In other words, I may go ahead on that statute Your Honor.

There were two --

Chief Justice Earl Warren: I just -- what I want to know, does this apply or not?

Mr. George S. Leonard: Yes, Your Honor.

Chief Justice Earl Warren: This one does, alright.

Mr. George S. Leonard: In other words, he gets the same pay and allowances as if excluding the prisoner of war status, he has to do these things whatever conduct was taken care of in his normal status of an enlisted soldier.

Is he entitled to pay?

Now, it is the Government's position in this, the pay in the military services is given only and the decisions to this Court will support me, only when there has not been a voluntary abandonment of a military obligation.

And to illustrate that, I will first take up the fundamental case in this Court which is the Kelly case, that shortly after the civil war.

Kelly was a soldier in the Union Army who deserted for two months as a result of a family situation, came back voluntarily, turned himself in, was never tried for desertion and agreed as the condition not to be tried, that he would serve an additional two months and make up the time that was involved.

He was given an honorable discharge at the end of his service.

He sued for bounty pay which was denied and then this Court gave him the bounty pay and this Court tells that he had come back and he had made up his time.

However, this Court, speaking three years later and referring to the Kelly case made it perfectly clear that in the earlier Kelly case, and I will read this Court's language, "It was not pretended that his honorable discharge subsequently granted, gave him a right to pay during the period of his absence from service."

Now in Landers itself, the man came in who had deserted for a period of almost a year and was brought back by the military instead of coming back otherwise, but sued for his pay during the period of desertion i.e the period when he was not serving the United States.

This Court carefully pointed out that as to back pay as opposed to future pay, the question of whether service had been granted to the United States under the military obligation was one for the Court to determine.

This was a question of fact whether in fact, the service for which he was being pay -- paid was being rendered.

Now, this has also been the rule in the Court of Claims and I will refer first to the two cases which involve a somewhat similar situation.

When a soldier is arrested civilly and in essence he is a prisoner in a jurisdiction which the military cannot reach.

And the cases in the Court of Claims, there have been pay cases which have considered whether or not he gets pay during the time he is absent without leave and those cases fall into two categories.

First, if he was absent without leave at the time he was arrested even though he is cleared of any charge thereafter, he is not paid to the time of his absence.

On the other hand, if he was on proper leave or in the course of military duty, so that his absence from -- by civil arrest is involuntary in his case, he is entitled to his pay even though he had no military authority to be away during that period of time.

So, again, we reach this voluntary concept, namely, that there is a service obligation to be performed.

Two other cases, which illustrate this almost directly, are Walsh and Carrington in the Court of Claims.

Here, officers were ordered to await a trial by Court-martial after misconduct and they spent some period of time awaiting it.

They sued for pay and they were rewarded pay upon the grounds that while they did nothing, their status was subject to orders.

In this connection, I call attention to the fact that a prison in a -- an enlisted man in a hospital, on leave or otherwise is always acting according to orders.

Whatever his status may be, he is in an order or duty position and the active list self in terms of pay is availability for duty.

It is defined militarily in terms of either being on duty or available to duty.

Now, that is the point at which this case departs on the facts and that is also the point on which these statutes, very clearly make a distinction.

I would like to take those statutes.

In the first place, the basic pay statute as I have read it indicates an obligation of service, of duty --

Chief Justice Earl Warren: Where is that?

Mr. George S. Leonard: -- as a condition for pay.

That is 232, which I was reading.

Chief Justice Earl Warren: Where is -- is it in your brief?

Mr. George S. Leonard: No, it is not in the brief.

We -- we contend that they have not proven the basic right to pay at all.

They do not refer to the basic pay statute.

They make the statement only that they're entitled to it.

It's our argument that they haven't proven that.

We have stated in our brief and they have contested it that -- let me put it this way.

In their reply brief on page 17, they complain of our assertion, our argument that they never became entitled to pay and their argument -- I read now from page 17, “Military pay is accrued daily and paid by monthly unless there is some condition in addition to putting in time.”

And what I am now arguing for the Government as is my fundamental proposition is that there is a condition in addition to putting in time, and that is faithful service.

It doesn't mean you have to work.

You maybe on leave, you maybe in the country, you maybe at home, but whatever condition you are, you are in a military status of obedience to orders.

You've been given leave, you've been allowed to go to the hospital, you've been sent somewhere, you're in a travel status, you've been given a year off to study, but whatever it maybe, you are as these men who were awaiting court-martial were in obedience to a given organizational order.

In other words, they are subject to their military obligation and performing it.

Actual work of course is not necessary.

Now, in this sense, a prisoner of war performs service also.

A prisoner of war is obligated under the various parts of the -- of the Uniform Code of Military Justice and the regulations of the army to be responsive to senior officer present in the military camp.

He is obligated to assist his comrades wherever he can.

There are various obligations and military law has always continued through a period of imprisonment.

Now, I can show that.

We have been talking here about 242 and I would like to call the Court's attention to 243 and 244, which came a few years later than 242, in order to cover the Navy in the same way that 242 referred to the army and I think the Navy here has somewhat of a more expressive statute.

First, we have the condition where a Navy ship is lost or shipwrecked and the statement is as follows, “When the crew of any vessel of the United States are separated from such vessel by means of a wreck, loss, or destruction, the pay and the emoluments of such of the officers and men, they shall appear to the Secretary of the Navy by the sentence of a court-martial or by a court of inquiry, or by other status factory evidence to have done their utmost to preserver and after said wreck, loss or destruction to have behaved themselves agreeably to the discipline of the Navy, shall go on and be paid until their discharge or death.”

In 244, they considered the fact that the Navy became prisoners of war as well and their ships were captured and the language is roughly similar and it comes down to this, “That if it'd be shown that they have done their utmost to preserve and defend their vessel, and after the taking thereof to have behaved themselves agreeably to the discipline of the Navy shall go on and be paid.”

Now, here you have in carrying material, statutes which show in essence what is meant by the word captivity in 242.

It is this condition of being agreeable to the discipline of the Navy, agreeable to the discipline of the Army, subjection to the senior officer present, carrying out of his orders, none aid to the enemy, non-communication with the enemy, in other words, no breach of the fundamental military obligation.

Chief Justice Earl Warren: Isn't that a two-edged argument if Congress had intended it under these other statutes wouldn't it had said so or couldn't it have said so?

Mr. George S. Leonard: It has -- it has in effect.

Chief Justice Earl Warren: If it did say so in those two statutes, but did it say so in the one that governs these people.

Mr. George S. Leonard: Your Honor, it is not at all clear in the statutory history how these three particular parts which were not passed as part of the general chapter here came to be repeated after the Missing Persons Act had been passed which takes in all uniformed services and all prisoners of war and specifically as to prisoners of war since they was a question about that before.

In other words, 50 -- in 50 Appendix 1002 which is part of the Missing Persons Act, it specifically has captured by a hostile force and continues in that status.

So the Missing Persons Act covers for all uniformed services in a uniform manner exactly this problem of capture by a hostile force and retention in captivity and the pay that will be owing.

I may say that the Missing Persons Act is interesting in that it goes beyond the military itself and applies equally to “active federal service performed by civilian officers”.

In other words, this active service concept which I am now presenting as a basis for pay under these statutes goes entirely through the cases first the legislation as well.

So that under 1002, which is the Missing Persons Act, it is our feeling that the two statutes can be construed together, 1288 and the Missing Persons Act simply because 1288 speaks in terms of service and it speaks in terms of captivity.

Now, it has been stated here that it has been admitted that these people were confined as prisoners of war.

It has been found as a matter of fact by the court below, by the commissioner below, unobjected to and in fact, stipulated that these men came and went in the prison camp at their own will, that they wore uniforms of the opposing army that they used the PX which was not available to any of the other men and that they communicated within and without the camp.

And it is purely on the basis of this stipulation of fact that this question of captivity, if it's physical in its nature has been found against the claimants first by the army and then secondly by the Court of Claims acting de novo.

So that they were not confined in the same sense as any of the others, they were not prisoners in that sense.

Now this goes back to the earlier question of Mr. Justice Whittaker, namely, what happened after their renunciation of repatriation.

Well, the claim that is now before this Court is for combat pay following they're going to China and working for the Chinese and live in Korea whenever that may have been as well as basic pay and allowances while they were in fact working in China and not in any camp or otherwise from which they were repatriated later and it includes this entire period as being a single thing.

Now, had it been broken up into the period when they were prisoners of war before these particular acts started, the precapture pay which I may say purely technically is not in this case because it's denied in the petition and the Court itself note no amendment has ever been put in.

Pre-capture pay is not in the case.

Actually, it's de minimus, it's really of no concern whether it's to be paid or not.

The Army has never denied pre-capture pay.

It has denied post capture pay.

If we take the post capture period and assume that up until some date, they acted as prisoners of war under the discipline of the United States Army, then we have a very interesting question, the one that was dealt with by this Court in Landers whether you should go beyond the period of faithful service and forfeit as well by judicial, not court-martial, not military or administrative, but by judicial finding of desertion early amounts which had in fact accrued.

Now, my entire argument has been made on the basis that nothing accrued under any of the statutes.

However, the second point here for the Government is clearly that under the Missing Persons Act, it is provided that no person maybe paid who is “officially determined absent from his post of duty without authority.”

Well, now, a prisoner has a post of duty in spite of the general remark which was made by counsel for the petitioner -- counsel for the petitioners because this statute only deals with persons who are missing or captured, or are otherwise in a status which can be continued.

Every person under orders has a post of duty.

It may have been in the prison camp, it may have been where the senior officer present wanted them to be, but whatever it was, there is a post of duty and that duty continued whether on a prisoner status or not.

Therefore there could and was in fact found by the court below a total absence from the post of duty of these particular petitioners.

Justice William J. Brennan: Mr. Leonard, on that approach, I gather that acceptance or refusal of repatriation is not really significant, is it?

Mr. George S. Leonard: No, Your Honor.

Justice William J. Brennan: If they had accepted repatriation, I gather your argument would mean they still would not have been compensable for (Inaudible)

Mr. George S. Leonard: Had they accepted, repatriation pay would have picked out immediately at that point, they would have become subject to orders again immediately you see.

Justice William J. Brennan: But for the period before that, when did you say they were in fact workers for Chinese?

Mr. George S. Leonard: Well, the period before, that could be divided into two parts - One, when they were not working for the Chinese, and two, when they were.

Now, our argument is that no pay could accrue during the second of those periods.

As to the first to those periods, whether or not you can reach back to them --

Justice William J. Brennan: Just as a matter of curiosity, is this kind of inquiry made on repatriation (Inaudible)?

I take it this was a -- rather spectacular --

Mr. George S. Leonard: But there were several others.

This was a rather spectacular instance as I think it's -- I think it bears directly on your point of that this dishonorable discharge being given administratively that probably nothing in the Army would like better at the moment to find out that those were improper discharges and these three gentlemen are still enlisted men subjected to military law.

Justice Felix Frankfurter: Well, you think that's not a relevant question?

Mr. George S. Leonard: That was brought up in connection with the effort of the military.

As I understand that there was some argument made at the time it was finally decided that you couldn't -- the United States would not go behind the Secretary it was the administrative action and of course it's quite clear that the plaintiffs were not going to go behind it.

Justice Felix Frankfurter: I know but -- but when you say United States wouldn't go behind it, that doesn't establish that he -- that he is -- that he has equal power to exercise (Inaudible).

Mr. George S. Leonard: I'm -- I'm not clear on what the record was made in that particular case.

It was decided that they could not be court-martialed based upon those particular.

So that has been held and that is now behind us.

Justice Felix Frankfurter: Well, held where?

Mr. George S. Leonard: That was held by the District Court in Los Angeles I believe or on the west coast somewhere.

And that was made and there was -- there was a writ of habeas corpus issued on the basis of that these -- these discharges were held valid and the men were held not subject to military law.

That is quite important.

Justice William J. Brennan: And the Government didn't seek to review that I gather.

Mr. George S. Leonard: The Government did not seek review.

Justice Felix Frankfurter: Am I wrong in thinking that there was a ruling by the judge advocate general to the contrary?

Mr. George S. Leonard: I do not recall it sir.

It could have been -- it could have been.

Justice Felix Frankfurter: Well, is that a matter not relevant to this question?

If they were -- if they were --

Mr. George S. Leonard: Let me put it this way, Your Honor.

If they are still unlisted men, they would not have been entitled to any pay or allowances for the period when they were not serving as enlisted men, in other words, when they were not rendering service.

That would be true whether they are still enlisted man or not.

Justice Felix Frankfurter: That's interesting that it is subject of notion that although they're enlisted men, they're not in service.

It goes in that further.

Mr. George S. Leonard: Ordinarily this problem does not come up Your Honor for this reason.

If an enlisted man ceases his military obligation in any way, let's say commits a fault of some kind, that cannot last over sufficient period of time before he's picked up militarily you see unless it's an absence or desertion type where you have to go find him.

That is why this loss of pay by absence or desertion is essentially the only one you keep running into, but you can desert theoretically your duty in your mind not within the military term of desertion but within the contract theory of desertion.

And this -- this Court very carefully put in the Landers case the contract interpretation upon the pay obligation.

I'm not talking now about the military obligation but the pay obligation.

They are two different things.

The status as an enlisted man continues and I can take as an analogy of there a marriage which creates both the status and a contract.

There is an obligation contractual or otherwise in marriage, the support, but if you have an abandonment of the marriage relationship, you cannot have a unilateral breaking of the status but you can have by that act a loss of the support right, am I correct?

In the contract --

Justice Felix Frankfurter: Pardon.

Mr. George S. Leonard: On the contract --

Justice Felix Frankfurter: I don't think whether the parties himself or herself can determine whether --

Mr. George S. Leonard: It can't change the relationship but they can lose the right to support.

Now that is true here.

They could never cease to be enlisted men by anything they did under any circumstances, but they could lose their right to collect pay by what they do.

Chief Justice Earl Warren: If the statute says so perhaps.

Mr. George S. Leonard: No.

First, if the statute gives it to them which is our first point.

Secondly, is there not in the status determined under the Missing Persons Act.

Justice Felix Frankfurter: Are you -- are you telling us that this Court has ruled that although a man is indisputably an enlisted man has a status of an enlisted man indeed (Inaudible), purportedly and dishonorably discharged -- dishonorably discharged beyond the power of discharging officer.

Are you telling us although he's still has a status of an enlisted man, you can administratively determine whether he ceased to give service from the value received and therefore doesn't get the value received and that's the finding of the Court?

Mr. George S. Leonard: Yes, Your Honor.

There are many people still in the military service today, who are prisoners of war in Korea and whose status was determined administratively with regard to their pay and -- pay and allowances, that -- that I see no reason why during the course of a military relationship, there can't be various administrative determinations from time to time as to the status of the individual concern does on duty or not.

Justice Felix Frankfurter: I don't see any constitutional difficulty but as Chief Justice's question suggests it implied that all this within the control of the Pentagon?

Mr. George S. Leonard: No, Your Honor.

Justice Felix Frankfurter: -- whether they should or should get paid?

Mr. George S. Leonard: Not at all Your Honor, only these particular status elements which are found in the Missing Persons Act.

That's what this Court -- this Court has held as a matter of fact in the Kingsley case that had a determination administrative of status of character, a character of the soldier is -- is (Inaudible)

Justice Felix Frankfurter: The starting point of our colloquy is that he -- he retains the status, we assume that he still has the status.

What I want to know whether statute or inherent power of the military enables them to determine administratively what the pay consequences are?

Mr. George S. Leonard: Only by special statutory authority.

In other words --

Justice Felix Frankfurter: Unless you have to go back -- but you have to go back in the line of the statute which allowed --

Mr. George S. Leonard: Precisely.

Justice Felix Frankfurter: -- the Department to do it.

Mr. George S. Leonard: It allows the Department to do it and that is in the Missing Persons Act.

Chief Justice Earl Warren: Where is it?

Just what does it say in that regard?

Mr. George S. Leonard: It says there shall be no entitlement to pay allowances for any period during which sets first, maybe officially determined, absent from his post of duty without authority, and it is provided that the Head of the Department concerned or such subordinate he may designate shall have authority to make all the determinations necessary of the administration of this Act -- I'm reading from Section 1009 and for the purposes of this Act, determination so made shall be conclusive as to death or finding of death and as to any other status dealt with by this Act.

Now, in the Marino case in the Court of Claims, the question of a status directly under this Military Persons Act and the -- its administrative determination was held to be properly conclusive and less completely arbitrary.

The court below feeling that there might be a question that this had been an arbitrary determination did in fact reviewed de novo although upholding the administrative right to make a conclusive determination that the status of captivity and subjection to military obligation had not continued in the case of these claimants.

Thank you Your Honor.

Justice William O. Douglas: One question that bothers me, Section 10 U.S. Code 857, 10 U.S. Code Section 857, governing the penalties that maybe imposed by a court-martial, makes the deprivation of -- of the back pay effective only as I read it from that time on and not retroactively.

Mr. George S. Leonard: My understanding is that the Uniform Code of Military Justice limits itself to a forfeiture of future pay.

In other words -- and any (Inaudible) future is punishable.

Justice William O. Douglas: How -- how do you reconcile your argument with that?

Mr. George S. Leonard: Back pay has all – back pay if any has been forfeited regularly as the administrative matter and by the courts.

And I can --

Justice William O. Douglas: That was the provision I think that Judge Maddely relied on below, was it not, indicating congressional policy that –

Mr. George S. Leonard: That's right Your Honor.

Justice William O. Douglas: -- back pay was not to be forfeited.

Mr. George S. Leonard: Well, he used the general statement that pay should not be forfeited without a court-martial which of course failed to distinguish between the punishment aspect of the forfeiture of future pay and the administrative forfeiture or judicial forfeiture of what amounts to an amount owing upon the ground that the service for which it was paid has not in fact then performed as (Inaudible) the Court and this Court in the Landers case specifically considered the difference between these two -- two matters.

If I may read for one moment, it does not appear from the record before us whether this forfeiture was imposed by order of the commander of the forces from which he deserted or by the judgment of the court-martial.

Forfeiture of pay and loans is up to the time of desertion follows from conditions of the contract of enlistment which is for faithful service.

Justice William O. Douglas: That's Field's -- Field's opinion?

Mr. George S. Leonard: That's Judge Field's opinion.

Chief Justice Earl Warren: Mr. Hannon.

Rebuttal of Robert E. Hannon

Mr. Robert E. Hannon: If the Court please, first of all in regard to whether or not the plaintiffs have claimed or what statutes the plaintiffs -- plaintiffs have to claim under a cite the Court to page 3 of my petition that page point it says paragraph IX that these claims are made based upon Section 323 of Title 37.

We've claimed under -- not only both of the POW statutes that is the Missing Persons statute, the POW statute but also under the general pay statute.

They're shown in paragraph 9 of the petition.

The Government argues that pay for services condition of entitlement, but it does not specify the procedure so what is to be the procedure?

The administrative -- the dispersing officer decides that this particular soldier has not rendered faithful service.

So, he unilaterally and administratively forfeits retroactively that pay.

Who was to check the dispersing officer's accuracy?

There must be some type of hearing to check the accuracy of this dispersing officer or to determine whether or not the man has been guilty of misconduct.

The man certainly should be entitled to be heard as to whether or not he's guilty of misconduct.

Let's say for example that they make this a condition of flight pay.

Suppose good and faithful service is a condition of flight pay or to parallel to the Court of Claims' finding that the military or dispersing officer might say, “Yes, this man was flying an airplane” but in the essence of things, he was not flying.

Therefore, they can make an administrative determination that in the essence of things, he was not flying and he is not entitled to his flight pay and that administrative determination according to the Court of Claims is conclusive.

The man cannot argue the point.

He must just blindly accept their word for it --

Justice William O. Douglas: Or while that might help him, I don't see how a hearing help these people.

Mr. Robert E. Hannon: Your Honor --

Justice William O. Douglas: If that seem might be pretty well --

Mr. Robert E. Hannon: I think -- I think --

Justice William O. Douglas: Didn't we sustain a conviction for treason on -- on (Inaudible) the Japanese (Inaudible)

Mr. Robert E. Hannon: Yes indeed.

I'm not that familiar with the case Your Honor.

I just in fact -- I think the essence of the case here is whether or not you can have the unilateral breach of the contract.

Now I cite the Court's attention to -- again to page 32 of my rebuttal brief and not only citing the Grimley case, the Morrissey case, the Wilson case, but also listen to the words the Court of Military Appeals, an agreement to enlist in the armed services is often referred to as a contract (Inaudible) more than a contractual relationship is established.

What has really created is a status and as a result, no useful purpose is served by reviewing common law rules of contract.

(Inaudible) status, when a person was mustered into the service and has not been mustered out of the service, he's entitled -- he is in a status as member of the military; these men have not been mustered, (Inaudible) were not mustered out of the service from 1954.

We are only asking for pay up until the date that they were mustered out of the service.

The Court in the Court of Claims which I think is the preponderance of the basic rule and this says aside from this, it has been held by this Court in number of cases that the mere fact that an officer or soldier is under charge, does not deprive him of allowances and such forfeiture can only be imposed by way of lawful court-martial.

As above stated, the uniform decisions of this Court have been that it requires the decision of the court-martial to deprive an officer of his pay and many other cases cited along those same lines.

One other quick point that being the question of did we or did we ask for the come back pay.

I cite the Court's attention to pages 15 and 16 of my rebuttal brief where -- where the stipulation as to damages has laid out and the initial petition by all by demand by Mr. Brown for the back pay of these men, he asked for “all their back pay” which included combat regular pay.

In my opening brief at page 80, opening brief to the Court of Claims, I ask for the come back regular pay that's on page 85 -- 8 to 15 of my opening brief to the Court of Claims.

The stipulation of damages which was before the Court of Claims --

Justice William J. Brennan: Mr. Hannon do I understand that your permission basically is this that these men may not be deprive of this pay without a court-martial determination in connection with which there's an order of forfeiture of the pay

Mr. Robert E. Hannon: Or alternative (Inaudible), yes or alternatively, some other type of hearing.

Justice William J. Brennan: Now what -- what some other type?

Mr. Robert E. Hannon: Well, it's not provided for in the statutes, Your Honor because I don't see how they could have another type of forfeiture under the court-martial.

Justice William J. Brennan: Well then (Inaudible) what is your position in that?

Mr. Robert E. Hannon: That should be -- it would have to be by court-martial if possible.

One more alternative would be this fine assessment by a District Court in (Inaudible), they could find that in the District Court more than their back pay.

Justice William J. Brennan: That would be in connection with -- well that would just be a fine, would it not?

Mr. Robert E. Hannon: It wouldn't be a forfeiture.

The only way you have a forfeiture use from the technical sense is by a court-martial conviction and under the statute cited by Mr. Justice Douglas, this can only apply now to pay accruing on and after the date of (Inaudible).

I think that the proper way to dispose of this case is to refer to the Court I think the best long subject that's being left -- used by the Court of Claims in White versus the United States.

Practically, the same issue was before the Court there and the Court states that what we think be an almost proceedings to permit this (Inaudible) to the Court we ascertain whether under all of the various provisions with respect to pay and allowances of officers men of the Army, Navy and Marine Corps investigation should obtain to determine whether as a matter of fact, the soldier had by conscientious service earned that the statutory provision will allow it.

Again, I should like to repeat that I think the most significant effect of this case is the effect on future service men.

If the army can unilaterally, administratively and retroactively forfeit a truth pay whether they say the -- they're not in the status or whether they create a condition in the statute by interpolation we have put the man in a totally untenable position.

The dispersing officer said he's not entitled to pay and wasn't entitled to pay for the past four months.

The man then must go forward with insurmountable burden of establishing that he was not guilty of misconduct.

I think that again this is an unjust and inequitable burden to place upon any serviceman.

I think that the law is and has been that as long as the man is in service, he is in the status of being in the service and those persons from the status of being in the service are entitled to payment provided to the office.

The payment provided for the office in this situation, he is never in the service from the date of -- prior to their capture until the date of their -- dishonorable discharge.

I feel that that being the case they are entitled to pay of the office.

Thank you very much.