Bell v. United States (366 U.S. 393)/Opinion of the Court

The petitioners were enlisted men in the United States Army who were captured during the hostilities in Korea in 1950 and 1951. In the prison camps to which they were taken they behaved with utter disloyalty to their comrades and to their country. After the Korean Armistice in the summer of 1953 they refused repatriation and went to Communist China. They were formally discharged from the Army in 1954. In 1955 they returned to the United States. Later that year they filed claims with the Department of the Army for accrued pay and allowances. When these claims were denied they brought the present action in the Court of Claims for pay and allowances from the time of their capture to the date of their discharge from the Army. The Court of Claims decided against them, stating that '(n)either the light of reason nor the logic of analysis of the undisputed facts of record can possibly justify the granting of a judgment favorable to these plaintiffs.' 181 F.Supp. 668, 674. Judge Madden dissented. We granted certiorari to consider a seemingly important statutory question with respect to military pay. 363 U.S. 837, 80 S.Ct. 1612, 4 L.Ed.2d 1723.

The Court of Claims made detailed findings of fact with respect to the petitioners' conduct as prisoners of war, based upon a stipulation filed by the parties. These circumstances need not be set out in minute detail. They are adequately summarized in the opinion of the Court of Claims, as follows:

'(D)uring the period of their confinement each of the three     plaintiffs became monitors for the 'forced study groups,' the      sessions of which the prisoners were compelled to attend. Armed guards attended these sessions. The programs included     lectures picturing what were declared to be the bad aspects      of life in the United States as contrasted with idyllic life      under communism. As monitors, they procured and distributed     propaganda literature, and threatened to turn in names of any      prisoners who refused to read and discuss favorably these      propaganda handouts.

'Each of the plaintiffs made tape recordings which were used     as broadcasts and over the camp public address system. Each     of them wore Chinese uniforms and were permitted to attend      meetings outside the camp. The details of the plaintiffs'     consorting, fraternizing and cooperating with their captors      and the devious ways in which they sought favors for      themselves, thus causing hardship and suffering to the other      prisoners, are set out in our findings *  *  *.

'Two of Bell's recordings were broadcast over the Peiping     radio, stating among other things that on the orders of his      platoon leader, his men had killed North Korean prisoners of      war, and that President Truman was a warmonger. In written     articles for the camp newspaper he alleged that American      troops had committed atrocities and he personally had been      ordered to kill women and children and not to take prisoners of war, and that if given the opportunity he would      run a tank over the President's body.

'Bell was paid money to write these articles. He also     delivered lectures before his company and to the camp on      American aggression. He appeared voluntarily in a motion     picture and appeared in bi-monthly plays. He stated that if     given a weapon he would fight against the United States. He     sold food intended for the sick to other prisoners of war. By     making reports to the Chinese, he caused one man to be      bayonetted and others to be placed in solitary confinement.

'Cowart did many similar things, wrote propaganda articles     accusing American soldiers of atrocities and of using germ      warfare. He drew posters and cartoons for the enemy, acted in     plays, walked and talked with the Chinese officers, guards      and interpreters, lived part of the time at Chinese      regimental headquarters, stated he hated America, desired to      study in China and to return to the United States in five      years to help in the overthrow of the government.

'Griggs did many similar things, attended enemy parties,     visited Chinese headquarters frequently, referred to the      Chinese as comrades, was accorded special privileges, made      broadcasts, signed leaflets, wrote articles accusing the      American soldiers of atrocities and declared the United      States had used germ warfare.'

As stated in their brief, the petitioners do not admit to the alleged acts of dishonor contained in the Stipulation and the Findings of Fact, but rather demur to them on the grounds that such facts are irrelevant and immaterial in a civil action for military pay provided by statute.' The statute upon which the petitioners rely is an ancient one. It was first enacted in 1814 and has been reenacted many times. It provides:

'Every noncommissioned officer and private of the Regular     Army, and every officer, noncommissioned officer, and private      of any militia or volunteer corps in the service of the      United States who is 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; but 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.' 37      U.S.C. § 242, 37 U.S.C.A. § 242.

Although the plain language of this law appears to entitle the petitioners to their Army pay and allowances during their imprisonment in Korea, the Government has urged various grounds upon which we should hold that the provisions of the statute are inapplicable. We have concluded that none of the theories advanced by the Government can serve as a valid basis to circumvent the unabmiguous financial obligation which the law imposes.

The Army's refusal to pay the petitioners was based upon an administrative determination that all prisoners of war who had declined repatriation after the Korean Armistice 'advocate, or are members of an organization which advocates, the overthrow of the United States Government by force or violence.' In refusing to honor the petitioners' claims upon this ground, the Army was apparently relying upon a statute enacted in 1939 which made it unlawful to pay from funds appropriated by any Act of Congress the compensation of 'any person employed in any capacity by any agency of the Federal Government' who was a member of 'any political party or organization which advocates the overthrow of our constitutional form of government in the United States.' That this statute was the basis of the Army's decision is evident not only in the language employed in rejecting the petitioners' demands, but also in the pleadings filed in the Court of Claims. We need not, however, now decide the applicability of this statute to members of the Armed Forces, for the reason that the statute was repealed more than a year before the Army relied upon it in refusing to pay the petitioners.

Although this was the only ground ever advanced for the administrative denial of the petitioners' claims, the Government's brief in this Court, for understandable reasons, does not even mention this repealed statute. Instead, the Government now relies upon other grounds to avoid the provisions of 37 U.S.C. § 242, 37 U.S.C.A. § 242. It says that the petitioners violated their obligation of faithful service, and points to the principle of contract law that 'one who wilfully commits a material breach of a contract can recover nothing under it. 4 Williston, Contracts (1936 ed.) § 1022, pp. 2823-4; 5 Williston, Contracts (1936 ed.) § 1477; 5 Corbin, Contracts (1951 ed.) § 1127, pp. 564-5, see also Restatement Contracts, § 357(1)(a).'

In accord with this principle, the Government argues that in the Missing Persons Act, a statute first enacted in 1942, Congress provided a statutory basis for denying the petitioners' claims. We do not so construe that statute.

Preliminarily, it is to be observed that common-law rules governing private contracts have no place in the area of military pay. A soldier's entitlement to pay is dependent upon statutory right. In the Armed Forces, as everywhere else, there are good men and rascals, courageous men and cowards, honest men and cheats. If a soldier's conduct falls below a specified level he is subject to discipline, and his punishment may include the forfeiture of future but not of accrued pay. But a soldier who has not received such a punishment from a duly constituted court-martial is entitled to the statutory pay and allowances of his grade and status, however ignoble a soldier he may be.

This basic principle has always been recognized. It has been reflected throughout our history in numerous court decisions and in the opinions of Attorneys General and Judge Advocates General. 'Enlistment is a contract; but it is one of those contracts which changes the status; and, where that is changed, no breach of the contract destroys the new status or relieves from the obligations which its existence imposes. * *  * By enlistment the citizen becomes a soldier. His relations to the State and the public are changed. He acquires a new status, with correlative rights and duties; and although he may violate his contract obligations, his status as a soldier is unchanged.' In re Grimley, 137 U.S. 147, 151, 152, 11 S.Ct. 54, 55, 34 L.Ed. 636.

Almost a hundred years ago Attorney General Hoar rendered an opinion to the Secretary of War regarding the right to pay of a Major Herod, who had been 'charged with murder, arrested, tried by a court-martial, and sentenced to be hung.' The Attorney General stated:

'It was not expressly a part of the sentence that Herod     should forfeit his pay from the date of his arrest, and I      know of no statute imposing a forfeiture of pay from the date      of arrest in a case like this of Herod's. The sentence that he be hung necessarily      implied a dismissal from the service, but not, as it seems to      me, the forfeiture of back pay. I can find no authority for     the opinion of the Comptroller that, as Herod was withdrawn      from actual military service by his arrest made on account of      a crime committed by him, on the general principle that pay      follows services, he should not be paid for the time he was      under arrest. The monthly pay of officers of the Army is     prescribed by statute, and so long as a person is an officer      of the Army he is entitled to receive the pay belonging to      the office, unless he has forfeited it in accordance with the      provisions of law, whether he has actually performed military      service or not.' 13 Op.Atty.Gen. 103, 104.

A similar opinion was rendered by Attorney General Alphonso Taft a few years later. He rejected the theory of the Second Comptroller of the Treasury that '(i)f the man, by his misconduct and necessary withdrawal from service, does not perform his part of the contract, the Government cannot be held to the fulfillment of its part thereof.' The Attorney General said:

'The Comptroller has, I think, misconceived the true basis of     the right to (military) pay *  *  *. In the naval, as in the     military service, the right to compensation does not depend      upon, nor is it controlled by, 'general principles of law';      it rests upon, and is governed by, certain statutory      provisions or regulations made in pursuance thereof, which      specially apply to such service. These fix the pay to which     officers and men belonging to the Navy are entitled; and the      rule to be deduced therefrom is that both officers and men      become entitled to the pay thus fixed so long as they remain      in the Navy, whether they actually perform service or not,      unless their right thereto is forfeited or lost in some one of the modes      prescribed in the provisions or regulations adverted to.' 15      Op.Atty.Gen. 175, 176.

This principle has received consistent recognition in the Court of Claims. 'It would, we think, be an anomalous proceeding to permit resort to the courts to ascertain whether, under all the various provisions with respect to pay and allowances of officers and men of the Army, Navy, and Marine Corps, investigations should obtain to determine as a matter of fact whether the soldier involved had by conscientious service earned what the statutes allow him.' White v. United States, 72 Ct.Cl. 459, 468. '(Th e mere fact that an officer or soldier is under charges does not deprive him of his pay and allowances, * *  * such forfeiture can only be imposed by the sentence of a lawful court-martial.' Walsh v. United States, 43 Ct.Cl. 225, 231.

The statute upon which the petitioners rely applies this same principle to a specialized situation. A serviceman captured by the enemy and thus unable to perform his normal duties is nonetheless entitled to his pay. The rule has commanded unquestioned adherence throughout our history, as two cases will suffice to illustrate.

In 1807 a sailor named John Straughan was a member of the crew of the American frigate Chesapeake. After that vessel's ill-starred engagement with the British man-of-war Leopard off Hampton Roads, Straughan was taken aboard the Leopard and impressed into service in the British Navy. There he served for five years and nine days before he finally was repatriated. Years later his widow sued for his pay and rations as a member of the United States Navy during the period he had been held by the British. The Court of Claims ruled that, even though we had not been at war in 1807, the Chesapeake had nevertheless been 'taken by an enemy,' and that Straughan's widow was entitled to the United States Navy pay and allowances that had accrued while he was serving with the British. Straughan v. United States, 1 Ct.Cl. 324.

In October, 1863, a lieutenant in the Union Army named Henry Jones was taken prisoner by Confederate guerrillas near Elk Run, Virginia. Jones was confined in Libby Prison until March 1, 1865, when he was exchanged and returned to the Union lines. Upon his return he found that he had been administratively dismissed from the service in November, 1863, because he had been in disobedience of orders at the time of his capture. When the Army for that reason refused his demand for pay and allowances, he filed suit in the Court of Claims. The court entered judgment in his favor, stating that '(t)he contrary would be to hold that an executive department could annul and defy an act of Congress at its pleasure.' Jones v. United States, 4 Ct.Cl. 197, 203.

It is against this background that we turn to the Government's contention that the Missing Persons Act authorized the Army to refuse to pay the petitioners their statutory pay and allowances in this case. The provisions of the Act which the Government deems pertinent are set out in the margin. Originally enacted in 1942 as temporary legislation, the Act was amended and reenacted several times, and finally was made permanent in 1957. So far as relevant here, this legislation provides that any person in active service in the Army 'who is officially determined to be absent in a status of * *  * captured by a hostile force' is entitled to payand allowances; that '(t)here shall be no entitlement to pay and allowances for any period during which such person may be officially determined absent from his post of duty without authority'; that the Secretary of the Army or his designated subordinate shall have authority to make all determinations necessary in the administration of the Act, ad  for purposes of the Act determinations so made as to any status dealt with by the Act shall be conclusive.

We are asked first to hold that '(s)ince the Missing Persons Act is later in time, is comr ehensive in scope, and includes within its provisions the whole subject matter of R.S. 1288 (the statute upon which the petitioners rely), any inconsistency consistency or repugnancy between the two statutes should be resolved in favor of the Missing Persons Act.' This step having been taken, we are asked to decide that the petitioners, because of their behavior after their capture, were no longer in the 'active service in the Army * *  * of the United States,' and that they were therefore not covered by the Act. It is also suggested, alternatively, that the Secretary of the Army might have determined that each of the petitioners after capture was 'absent from his post of duty without authority,' and therefore, not entitled to pay and allowances under the Act. We can find no support for these contentions in the language of the statute, in its legislative history, or in the Secretary's administrative determination.

The Missing Persons Act was a response to unprecedented personnel problems experienced by the Armed Forces in the early months after our entry into the Second World War. Originally proposed by the Navy Department, the legislation was amended on the floor of the House to cover the other services. As the Committee Reports make clear, the primary purpose of the legislation was to alleviate financial hardship suffered by the dependents of servicemen reported as missing.

To hold that the Missing Persons Act operated to repeal the statute upon which the petitioners rely would be a long step to take, for at least two reasons. In the first place, the record of the hearings of the Senate Committee on Naval Affairs clearly discloses that at the time the Missing Persons Act was being considered, the Committee was made fully aware of the 1814 statute, and manifested no inclination to disturb it. Secondly, it is not entirely accurate to say, as does the Government, that the Missing Persons Act is 'later in time.' After the original passage of that Act in 1942, the statute upon which the petitioners rely was recodified in 1952 and again in 1958.

But the question whether there was a repeal by implication is one that we need not determine here, for it is clear that under either statute the petitioners are entitled to the pay and allowances that accrued during their detention as prisoners of war. The Missing Persons Act unambiguously provides that any person 'in the active service * *  * officially determined to be absent in a status of *  *  * captured by a hostile force *  *  * (is) entitled to receive or to have credited to his account the same *  *  * pay (and allowances) to which he was entitled at the beginning of such period of absence *  *  * .' It affirmatively appears on this record that the petitioners were in the active service of the Army, that they were in fact captured by the enemy, and that they were later officially determined to be 'absent in a status of *  *  * captured by a hostile force.' The terms of the Missing Persons Act are therefore expressly applicable.

The argument that it was open to the Secretary of the Army to determine that the petitioners in the prison camps to which they were taken were thereafter not 'in the active service' cannot survive even cursory analysis. In the Armed Forces the term 'active service' has a precise meaning, a meaning not dependent upon individual conduct. 10 U.S.C. § 101, 10 U.S.C.A. § 101. Moreover, the verbal structure of the Act, re-enforced by common sense, clearly leads to the conclusion that 'active service' refers to a person's status at the time he became missing. Nothing in the legislative history of the original statute or of its many re-enactments offers support for any other construction. That history simply reflects a continuing purpose to widen the classes of persons to whom the benefactions of the law were to be extended, from the time those persons became missing.

The Government's alternative argument seems, as a matter of statutory construction, equally invalid. The legislative history discloses that the provision denying pay to a person officially determined to have been 'absent from his post of duty without authority' was enacted to cover the case of a person found to have been 'missing' in the first place only by reason of such unauthorized authorized absence. Moreover, desertion and absence without leave are technically defined offenses. 10 U.S.C. § 885, 10 U.S.C.A. § 885, 10 U.S.C. § 886, 10 U.S.C.A. § 886; see Manual for Courts-Martial, United States, p. 315 (1951). It is open to serious question whether the conduct of the petitioners after their capture could conceivably have been determined to be tantamount either to desertion or absence without leave. See Avins, Law of AWOL, p. 167 (1957); Snedeker, Military Justice under the Uniform Code, p. 562 (1953).

These are questions which we need not, however, pursue. We need not decide in this case that the Secretary of the Army was wholly without power under the statute to determine administratively that the petitioners after their capture were no longer in active service, or that they were absent from their posts of duty. Nor need we finally decide whether either such determination by the Secretary would have been valid as a matter of law. The simple fact is that no such administrative determination has ever been made. The only reason the Army ever advanced for refusing to pay the petitioners was its determination that they had 'advocated, or were members of an organization which advocated * *  * the overthrow of the United States Government by force or violence.' That determination has now been totally abandoned. The Army has never even purported to determine that the petitioners were not in active service or that they were absent from their posts of duty. The Army cannot rely upon something that never happened, upon an administrative determination that was never made, even if it be assumed that such a determination would have been permissible under the statute and supported by the facts. See Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403; Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012. For these reasons we hold that the petitioners were entitled under the applicable statutes to the pay and allowances that accrued during their detention as prisoners of war.

Throughout these proceedings no distinction has been made between the petitioners' pay rights while they were prisoners and their rights after the Korean Armistice when they voluntarily declined repatriation and went to Communist China. Since both the Army and the Court of Claims denied the petitioners' claims entirely, no separate consideration was given to the petitioners' status after their release as prisoners of war until the date of their administrative discharges. Nor did the petitioners in this Court address themselves to the question of the petitioners' rights to pay during that interval. Yet, it is evident that the petitioners' status during that period might be governed by considerations different from those which have been discuse d. Other statutory provisions and regulations would come into play. Accordingly we express no view as to the petitioners' pay rights for the period between the Korean Armistice and their administrative discharges, leaving that question to be fully canvassed in the Court of Claims, to which in any event this case must be remanded for computation of the judgments.

The disclosure of grave misconduct by numbers of servicemen captured in Korea was a sad aftermath of the hostilities there. The consternation and self-searching which followed upon that disclosure are still fresh in the memories of many thoughtful Americans. The problem is not a new one. Whether the solution to it lies alone in subsequent prosecution and punishment is not for us to inquire. Congress may someday provide that members of the Army who fail to live up to a specified code of conduct as prisoners of war shall forfeit their pay and allowances. Today we hold only that the Army did not lawfully impose that sanction in this case.

The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.