* * * izing or directing the correction of a military or naval record, shall be received or considered in either the Senate or the House of Representatives." These two sections must be read together. They evidence an intention of the Congress to free itself from the burden of dealing with such matters by private bills and to provide a method for their disposition by administrative action. Of the private acts heretofore passed which might conceivably be said to relate to the correction of military or naval records a very large percentage have related to individuals who received discharges other than honorable. The act of April 4, 1944, c. 171, 58 Stat. (pt. 2) 976, is typical of most such enactments. It reads as follows: "That in the administration of any laws conferring rights, privileges, and benefits upon honorably discharged sailors John Joseph Defeo, late of the United States Navy, shall hereafter be held and considered to have been honorably discharged from the naval service of the United States as a member of the United States Navy on the 5th day of April, 1920: Provided, That no bounty, back pay, pension, or allowance shall be held to have accrued prior to the passage of this act." A few private acts have taken the form indicated by the act of September 27, 1944, c. 434, 58 Stat. (pt. 2) 1022, copied below: "That the Secretary of War be, and he is hereby, authorized and directed to (1) grant to Perley M. Silver an honorable discharge certificate showing that he was honorably discharged from the United States Army as a private, Battery A, Three Hundred and Eighth Regiment Field Artillery Seventy-eighth Division, on December 28, 1917, and (2) correct the military record of the said Perley M. Silver so that such record will show that he was honorably discharged on such date by reason of disability for service on account of missing teeth." Another group of private acts concerned the placement and advancement of officers on the retired list. The act of April 14, 1924, c. 104, 43 Stat. (pt. 2) 1362, copied below, may be cited as an example: "That the President be, and hereby is, authorized, by and with the advice and consent of the Senate, to appoint Ambrose I. Moriarty, second lieutenant, on the retired list of the Regular Army, a major on the retired list of the Regular Army, with retired pay from the date of said appointment, as now prescribed by law for a major of his length of service retired prior to July 1, 1922." There have been some private acts relating to the correction of military and naval records which might not fall within one of the categories illustrated by the foregoing examples but their number in recent years, at least, has been negligible. By the Servicemen's Readjustment Act of 1944 (approved June 22, 1944, c. 268, 58 Stat. 284, 286, as amended by the act of August 8, 1946, c. 882, 60 Stat. 932), the Congress took a long step toward freeing itself from the burden of dealing with these matters by private bills. Section 300 provided that certain discharges and dismissals, including those by reason of the sentence of a general court martial, shall not preclude entitlement to benefits under the laws administered by the Veterans' Administration in cases where the Administrator of Veterans' Affairs shall determine that the individual involved was insane at the time of the commission of the offense. Section 301 authorized the Secretary of War, the Secretary of the Navy and the Secretary of the Treasury, "after conference with the Administrator of Veterans' Affairs," to establish boards to review the type and nature of discharges granted to veterans and "to change, correct, or modify any discharge or dismissal, and to issue a new discharge in accord with the facts presented to the board"-excepting only a discharge or dismissal by reason of a sentence by a general court martial. Section 302 provided for the establishment of boards to review the decisions of retiring boards-subject to final "approval or disapproval and orders in the case" by the President. It follows from the foregoing that if section 207 of the Legislative Reorganization Act is to be given substantial effect as a substitute for the correction of military and naval records by private acts it must be held applicable to cases in which former servicemen have received discharges or dismissals by reason of a sentence of a general court martial. It may be pointed out in this connection that the President pro tempore of the Senate, with apparent acquiescence of all members present, has recently ruled that a private bill worded similarly to the act of April 4, 1944, supra, comes within the inhibition of section 131 of the Legislative Reorganization Act. He stated, in part : "It seems to the Chair that section 131 intends to put a definite termination to the introduction of private bills for the correction of military records, and it is the opinion of the Chair * * * that the bill proposed by the able Senator cannot be received." (Cong. Rec. Feb. 10, 1947.) Senator Langer, who had introduced the bill, stated that he had taken the matter up with the legislative counsel and that there would be no appeal from the decision of the Chair. Senator White made the following statement. "Mr. President, I express my complete approval of the ruling of the Chair with respect to the matter just referred to by him. The denial of the right to introduce such private special bills is one of the great savings of the time and energies and thought of individual Senators, and of the Senate itself, which it was believed would be brought about by the Reorganization Act. It lifted from the Senate a tremendous mass of detail. I approved the principle when it was written into the act, and, as I have indicated, I approve the ruling of the Chair with respect to it." (Cong. Rec. Feb. 10, 1947.) The language of section 207 is not so clear as might be desired, but I think it is adequate. If, for example, one is given a dishonorable discharge and it is later established that he should have been given an honorable discharge he has suffered an injustice. To change the record so as to show that (as now determined) he should have been given an honorable discharge can well come within the meaning of the words "to correct any * * * record" and "to correct an error or to remove an injustice." The statute does not provide in terms that a new discharge shall be issued in conformity with the correction. I feel, however, that the power to do so must be implied. The Congress has not usually directed the issuance of a new discharge when providing relief by private acts but, in view of the absence here of a provision relating to the laws conferring rights upon veterans (see act of April 4, 1944, and section 300 of the Servicemen's Readjustment Act, supra), a new discharge would seem necessary to insure that the correction is efficacious. Furthermore, the issuance of new discharges will accord with the more recent policy evidenced by section 301 of the Servicemen's Readjustment Act. On the other hand, the language of section 207 cannot be construed as permitting the reopening of the proceedings, findings, and judgments of courts martial so as to disturb the conclusiveness of such judgments, which has long been recognized by the courts. This conclusiveness of judgments of courts martial is indicated by the following excerpt from the opinion of the Supreme Court in Ex Parte Reed, 100 U. S. 13, 23: * * * "The court had jurisdiction over the person and the case. It is the organism provided by law and clothed with the duty of administering justice in this class of cases. Its judgments, when approved as required, rest on the same basis, and are surrounded by the same considerations which give conclusiveness to the judgments of other legal tribunals, including as well the lowest as the highest, under like circumstances." The correction of the record and the issuance of a new discharge may be regarded as acts of clemency, or in mitigation, precisely comparable in effect to a successful appeal to the Congress for relief by private act. Section 207 is a remedial provision and, therefore, to be liberally construed with a view to effecting the intended purpose. As a substitute for a disapproved system (relief by private acts) it should be so construed, if possible, as to make unnecessary further resort to the old method. Stewart v. Kahn, 11 Wall. 493, 504; Palmer v. Hoffman, 318 U. S. 109, 115. On the other hand, it should not be extended by construction so as to effect a result clearly beyond the purpose of the Congress. Furthermore, the words of the section, "under procedures set up by them" [the heads of the departments concerned] and "where in their judgment such action is necessary," appear to afford an adequate means for insuring that the application of the section is limited to its intended scope as a substitute for relief by private acts. I may add that I have no doubt that in considering the necessity and propriety of providing for relief under section 207 in any particular case or class of cases you are entitled to take into account the need for maintaining systems of courts martial which will provide effective disciplinary measures as well as insuring justice to the individual. It was clearly not the intention of the Congress to make mandatory, upon requests by interested parties, the indiscriminate and wholesale reexamination of discharges or dismissals by reason of sentences of general courts martial. The remoteness of the time of the sentence, the improbability in such a case that the equities could be more fairly determined upon a reexamination, and the practical efficacy or usefulness of a present extension of clemency are factors which may properly be considered. Furthermore, section 207 is not to be regarded as superimposing a further means of review, freely available, upon the procedures previously set up. For example, a soldier sentenced to death by court martial, whose sentence has been examined and approved by the Secretary of War and by the President, is not given by section 207 an automatic stay of execution or any right to further review. The regulations established under that section may, and in my opinion should, reflect these considerations. For the foregoing reasons it is my opinion that entries in naval and military records resulting from the actions of general courts martial come within the purview of section 207 of the Legislative Reorganization Act, at least to the extent hereinbefore indicated. I do not feel, however, that I should go beyond this or attempt to deal specifically with matters appertaining to the statutory boards mentioned in your letter except in particular cases as they may arise. In the consideration of any such cases I should wish to be fully informed regarding the facts, the practicability of granting the relief sought, and how (if at all) the Congress has previously dealt with petitions for legislative relief in similar matters. Sincerely yours, TOM C. CLARK. |