יז

HOSE OF US who operate under and administer the Uniform Code of Military Justice can insure an optimum of discipline with justice only if we are aware of the effects of the punitive measures available. Among those measures are the punitive discharges.' To judge the appropriateness of a sentence requires that the effects of the punitive discharges be fully understood.

The punitive discharges are more difficult to evaluate for severity than are most other authorized punishments. To some persons, a punitive discharge may have little or no meaning or effect; to others it may be among the most severe of the possible alternatives. Much of the effect of a punitive discharge, in this context, is subjective; but though subjective, it is nonetheless real.

A non-subjective general effect of a punitive discharge is that which is found in the public reaction to an individual who has been so separated from the service. That reaction is one of suspicion and results in severely restricted opportunity for the furtherance of formal education, for preferred employment and for a satisfying association with individuals or groups.

While the aforementioned two effects of punitive discharges are perhaps, in perspective, the more important, there is a third effect of a more tangible nature which also deserves consideration: it is the effect on the statutory rights and benefits of ex-service personnel. Such rights and benefits will be considered hereinafter under the administering agencies, as follows: (1) rights and benefits administered by the Veterans' Administration; (2) rights and benefits administered by the Military Departments; and (3) rights and benefits administered by other Federal agencies. A fourth division concerns the effects of such discharges upon a veteran's civil rights and citizenship.

LAWS ADMINISTERED BY THE VETERANS' ADMINISTRATION

These laws have been collected and codified in Title 38 of the United States Code." Section 3103 thereof provides:

*Lieutenant Donald J. Brown, USNR, is presently detailed to the General Affairs Branch of the Administrative Law Division in the Office of the Judge Advocate General. He attended Creighton University and graduated from the University of Iowa with the B.A. degree in 1956 and the J.D. from the College of Law in 1958. Lieutenant Brown is a member of the Iowa Bar and the bar of the U.S. Court of Military Appeals. He is a member of the Iowa State Bar Association, the American Bar Association, and Secretary of the Navy-Marine Corps Junior Bar Association. He is presently serving as a vice-chairman of the Military Service Committee of the Junior Bar Conference of the American Bar Association.

1. The dishonorable discharge and the bad conduct discharge adjudicated by general court-martial must both be differentiated from the bad conduct discharge adjudicated by special court-martial insofar as their effects are concerned.

2. 72 STAT. 1105 (1958).

(a) The discharge or dismissal by reason of the sentence of a general court-martial of any person from the armed forces, or the discharge of any such person on the ground that he is a conscientious objector or refused to perform military duty or refused to wear the uniform or otherwise to comply with lawful orders of competent military authority, or as a deserter, or of an officer by the acceptance of his resignation for the good of the service, or (except as provided in subsection (c)) the discharge of any individual during a period of hostilities as an alien, shall bar all rights of such person under laws administered by the Veterans' Administration based upon the periods of service from which discharged or dismissed.

(b) Notwithstanding subsection (a), if it is established to the satisfaction of the Administrator that, at the time of the commission of an offense leading to his court-martial, discharge, or resignation, any person was insane, such person shall not be precluded from benefits under laws administered by the Veterans' Administration based upon the period of service from which he was separated. (c) Subsection (a) shall not apply to any alien whose service was honest and faithful, and was not discharged on his own application or solicitation as an alien.

(d) This section shall not apply to any war risk insurance, Government (converted) or National Service Life Insurance policy.

The effect of a bad conduct discharge adjudged by a special court-martial, on the other hand, cannot be measured with certainty in all cases. The Servicemen's Readjustment Act of 1944* provided that a discharge or release from active service under "conditions other than dishonorable" should be a condition precedent to entitlement to benefits provided by that Act and by the Act of 20 March 1933. That provision vested discre

tion in the Veterans' Administration to determine, on a case to case basis, the entitlement to benefits of persons discharged with a bad conduct discharge pursuant to a special court-martial, since such a discharge was neither specifically honorable nor specifically dishonorable. IN 1956 THE President's Commission on Veterans' Pensions recommended that a bad conduct discharge, whether imposed by general or special court-martial, should render a veteran ineligible for any benefits based upon the period of service from which so discharged." Congress did not adopt that recommendation. The law controlling the entitlement of persons discharged pursuant to the sentence of a special court-martial, therefore, provides: "The term 'Veteran' means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 28 [Emphasis supplied]

The regulations of the Veterans' Administration implementing the law prior to the codification of Title 38 remain in effect under this provision. They provide that the authorization units and field adjudication activities of the Veterans' Administration are responsible for determining whether the character of a particular discharge is a bar to benefits. General guidance is provided by the following regulation:

The requirement of the words "dishonorable conditions" will be deemed to have been met when it is shown that the discharge or separation from active military or naval service was (1) for mutiny, (2) spying, or (3) for an offense involving moral turpitude or willful and persistent misconduct: Provided, however, that where service was otherwise honest, faithful and meritorious a discharge or separation other than dishonorable because of the commission of a minor offense will not be deemed to constitute a discharge or separation under dishonorable conditions.30

The phrase "moral turpitude or willful and persistent misconduct" is sufficiently indefinite that its application may vary among the different Veterans' Administration field activities and adjudication units. Unfortunate though it may be that no clear guidelines can be formulated concerning the effects of bad conduct discharges adjudicated by special courts-martial, existing regulations and legislation do possess the advan20. 38 USC 1501 et seq. 21. 38 USC 1601 et seq.

tage of flexibility in determining entitlement to benefits administered by the Veterans' Administration.

The remaining benefits administered by the Veterans' Administration relate to government life insurance with several variations in terms and coverage. The existence of incontestability and forfeiture provisions" renders the foregoing discussion of the circumstances in which benefits may be lost inapplicable to such insurance. Generally, a punitive discharge, as such, has no effect on these insurance benefits. Regardless of the kind of discharge, if any, all rights to National Service Life Insurance are forfeited when the insured is "guilty of mutiny, treason, spying, or desertion, or who, because of conscientious objections, refuses to perform service in the armed service of the United States or refuses to wear the uniform of such force . . ." 32 Further, no insurance is payable for death inflicted as a lawful punishment for crime or for military or naval offenses. Even in the latter case, however, the cash surrender value, if any, must be paid to the designated beneficiary." United States Government Life Insurance is lost in even fewer situations than National Service Life Insurance, discussed above.

33

37. 62 STAT. 1215 (1948), as amended, 24 USC 279a. 38. 60 STAT. 963 (1946), as amended, 37 USC 32 et seq. 39. Joint Travel Regulations, paras. 7011-5 and 8259-5. 40. 62 STAT. 234 (1948), 24 USC 281.

41. 10 USC 772 and 6297.

42. BuPers Manual Art. C-10508.

43. 10 USC 6249.

44. BuPers Manual Art. C-9209.

45. Joint Travel Regulations, para. 5300 and 5301. 46. 10 USC 6297; BuPers Manual Art. C-10315(5). 47. 10 USC 6297; BuPers Manual Art. C-10315(3). 48. 10 USC 1552.

There are numerous benefits for which veterans are eligible, which are administered neither by the Veterans' Administration nor by the Military Departments. The statutory bases for these benefits are scattered throughout the United States Code. A comprehensive listing is beyond the scope of this article. Those benefits which are lost upon the receipt of a puntive discharge, however, are noted. Certain bentfits such as eligibility for retirement with pay based upon time spent in service in addition to the time during which a non-civil service employee of a federal agency has spent with that agency, require extensive investigation of the regulations of each particular agency. Insofar as the determinations can be made without resort to the internal regulations of such agencies they will be indicated.

Any punitive discharge results in the loss of the following benefits:

(1) Homestead preferences in general; (2) Desert land preference;

52

51

(9) District of Columbia military service credit toward retirement benefits for policemen, firemen, and public school teachers.5

Other legislation makes benefits available to those who were discharged under "other than dishonorable" conditions. As in the case of the Veterans' Administration, this leaves to the agency which administers the benefit involved, discretion to determine what type of discharge is "other than dishonorable." Consequently, it cannot be determined in advance which of these benefits will be available and which will not. It may be that any discharge given by a general court-martial will re

49. 10 USC 1553.

50. 10 USC 1480 (b).

51. R. S. 2304 et seq., as amended; 43 USC 271 et seq.

52. 41 STAT. 1202 (1921), as amended; 43 USC 238, 331.

53. 58 STAT. 387 (1944), as amended, 5 USC 851.

54. 46 STAT. 468 (1930), as amended, 5 USC 2251(r).

55. 62 STAT. 614 (1948), as amended, 50 App. USC 459.

56. 66 STAT. 166 (1952), as amended, 8 USC 1101(d) (1); 66 STAT. 250 (1952), as amended, 8 USC 1440.

57. 45 STAT. 1063 (1928), as amended, 43 USC 617h.

58. 28 USC 755.

59. D. C. Code, sections 4-521 et seq. and 31-728.

CIVIL RIGHTS AND CITIZENSHIP

No discussion of rights and benefits would be complete without mention of the most important of such rights; citizenship and civil rights. While these rights are not directly affected by punitive discharges, they may be affected by court-martial conviction.

A distinction must be made between civil rights and citizenship. Occasionally, it is loosely stated that a person convicted on a charge of felony loses his citizenship or loses his civil rights, as though the two concepts were synonymous. Judge Holtzoff, in commenting on this phenomenon has stated:

Loss of citizenship means that a person loses his status as a citizen of the United States and becomes an alien. Such a far-reaching and devastating consequence does not flow from any conviction of a criminal charge, with two solitary exceptions. Conviction by a court-martial on a charge of desertion in time of war from a military or naval service of the United States, and conviction of a charge of treason or attempting by force to overthrow or bearing arms against the United States causes a loss of nationality. In no other instance does a conviction of a citizen of the United States on a criminal charge result in his losing his citizenship and becoming expatriated.7

(8) Deserting the military, air, or naval forces of the United States 60. 50 STAT. 888 (1937), as amended, 42 USC 1402 (14), 1410(g) and 1415(8).

61. 59 STAT. 260 (1945), 42 USC 1573.

62. 65 STAT. 303, 309 (1951), as amended, 42 USC 1592(a) and 1592n(h).

63. 50 STAT. 522 (1937), as amended, 7 USC 1001(b) (2).

64. 63 STAT. 435 (1949), as amended, 42 USC 1477.

65. 38 USC 2001-2009.

66. 64 STAT. 512 (1950), as amended, 42 USC 417(e) (4); see 20 CFR 404.1323 and 404.1361.

67. Holtzoff, Loss of Civil Rights by Conviction of Crime, Federal Probation, Volume 6, P. 18, April-June, 1942.

in time of war, if and when he is convicted thereof by court-martial and as a result of such conviction is dismissed or dishonorably discharged from the service of such military, air, or naval forces; .. (9) Committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any provision of section 2383 of Title 18, or willfully performing any act in violation of section 2385 of Title 18, or violating section 2384 of Title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the government of the United States, or to levy war against them, if and when he is convicted thereof by 8 court-martial or 8 court of competent jurisdiction;.68

Subsection (8) above was declared unconstitutional by the United States Supreme Court in Trop v. Dulles. Among the bases for the unconstitutionality of that subsection, was the conclusion that involuntary expatriation is a cruel and unusual punishment in violation of the United States Constitution" and can result only from the voluntary act of an individual in actually giving up his United States citizenship, or his voluntary adherence to another nation. Hence, conviction by a court-martial of desertion does not result in loss of citizenship.

Whether subsection (9) quoted above, is also unconstitutional is open to question. The rationale of the majority of the Supreme Court in Trop v. Dulles tends to support the conclusion that it is unconstitutional. A final determination of this question, however, will have to await a determination by the Court. Hence, with the possible exception of conviction of one of the offenses enumerated in subsection (9), above, in no case is citizenship lost by reason of conviction of a crime.

There are, however, certain rights of citizenship as distinguished from citizenship itself, that may be lost as a result of a conviction on a criminal charge. The phrase "loss of civil rights" ordinarily refers to the deprivation of any rights that accompany citizenship, as distinguished from the loss of citizenship status.

Civil rights accrue to citizens of the United States by reason of their citizenship and may be divided into two categories; first, those that are derived from the Constitution or laws of the United States; and, second, those that are derived from the state constitutions or laws. The rights comprised within the second of these two classes are by far the more numerous of the two. [No federal civil rights are] ever lost as a result of a conviction of crime, except the right to hold federal office, and even then in a very limited number of cases.71

74

77

ment; 7 withholding discharge papers by claim agent (barred from prosecuting any claim); " Army or Navy officers or other servicemen keeping or ordering troops at the polls; 75 intimidation of voters; theft by bank examiner (barred as a bank or FDIC examiner); " approval of bond or surety by postmaster (barred as a postmaster); 78 collecting or disbursing officer trading in public property; 7 disclosure of information by certain officials or employees (barred from that office); unauthorized fee for inspection of vessels (forfeits that office); lobbying with appropriated moneys (removed from office); concealment, removal or mutilation of records, etc.; treason; " rebellion or insurrection; * advocating the overthrow of the government (barred for five years); activities affecting the armed forces generally (advising insubordination, etc.) (barred for five years).$7

81

88

82

63

84

The statute, now determined to be unconstitutional, which purported to impose loss of citizenship is specifically based on court-martial conviction. The provisions concerning loss of civil rights appear in Title 18, which relate to Federal non-court-martial jurisdiction. Hence, these sanctions would appear to relate only to a federal district court criminal conviction. It seems therefore that a bad conduct or dishonorable discharge by reason of special or general court-martial results in no loss of federal civil rights.

The most important right of a citizen is probably the right of suffrage, because it is by its exercise that the citizen is able to participate in the government of his country. The right of suffrage, however, is derived not from the Constitution of the United States, but from state constitutions and law. It is a state rather than a federal right. ***

It should be observed, therefore, that if by reason of a conviction of a crime in a court of the United States [or by court-martial] the person loses his right of suffrage, or any other right of citizenship derived from the constitution or laws of a state, such a consequence is not dependent on any federal statute, but is the effect of a provision of a state constitution or law disqualifying from the exercise of the right in question any person who has been convicted of a felony or of any crime, as the case may be.88

In general, the punitive discharges adjudicated by a general court-martial tend to be of considerably greater severity, insofar as loss of rights and benefits is concerned than the puntive discharge adjudicated by a special court-martial. There is little difference, however, in the results of the two punitive discharges which may be adjudicated by a general court-martial.

73. 18 USC 281 and 282.

74. 18 USC 290. 75. 18 USC 592.

76. 18 USC 593.

77. 18 USC 655.

78. 18 USC 1732. 79. 18 USC 1901.

80. 18 USC 1905, 1907 and 1908. 81. 18 USC 1912. 82. 18 USC 1913. 83. 18 USC 2071. 84. 18 USC 2381. 85. 18 USC 2383. 86. 18 USC 2385.

87. 18 USC 2387.

88. Holtzoff, op. cit. supra, note 67.

JAG JOURNAL

U.S. GOVERNMENT PRINTING OFFICE: 1961