
    412 F.2d 862
    HAROLD H. GEARINGER, AS EXECUTOR OF THE ESTATE OF ROYAL BARRY SHAW v. THE UNITED STATES
    [No. 489-54.
    Decided July 16, 1969]
    
      
      Robert H. Reiter, attorney of record, for plaintiff. Spauld-ing, Reiter ds Rose, of counsel.
    
      Charles M. Mwrmecke, with whom was Assistant Attorney General William D. Ruckelshaus, for defendant.
    
      Before Cowen, Chief Judge, Laramore, Dureee, Davis, ColliNs, Skelton, and Nichols, Judges.
    
   Davis, Judge,

delivered the opinion of the court:

About three years ago, the court held that Eoyal Barry Shaw was illegally discharged from the Navy in 1950 as a result of a court-martial conviction which was vitiated by a 'significant constitutional defect. Shaw v. United States, 174 Ct. Cl. 899, 857 F. 2d 949 (1966) We returned the case to the trial commissioner for computation of the amount of back pay and allowances due from the defendant. Commissioner Day, after further proceedings, reported the sum he believed to be owing. That aspect of the litigation was then briefed and argued to the judges (in December 1967), but before a decision could be rendered the Government filed, and the Supreme Court granted, a 'petition for certiorari (390 U.S. 1038 (1968)) to review our rulings in Augenblick v. United States, 180 Ct. Cl. 181, 377 F. 2d 586 (1967), and Juhl v. United States, 181 Ct. Cl. 210, 383 F. 2d 1009 (1967) — later, unrelated court-martial cases in which we had also invalidated the convictions. The Government asked us to suspend proceedings in the present action to await the Supreme Court’s decision, and we granted that prayer because the Government was urging the Court to hold that we had no power to pass upon the validity of courts-martial. After the Court reversed Augenblieh and Juhl, 393 U.S. 348 (1969), the defendant, relying on that determination, moved to dismiss this Shaw case entirely. In this opinion we dispose of that motion, as well as of the residue of the case which is still pending before us. We discuss, first, the issue of our jurisdiction to review Shaw’s court-martial conviction in the light of the reversal of our Augenblick and Juhl judgments (Part I, infra); second, the constitutional invalidity of Shaw’s conviction (Part II); and, third, the amount due his estate because of the conviction and his discharge from the service (Part III).

i.

In its Augembliek and Juhl opinion, the 'Supreme Court deliberately abstained from deciding, and left open, the question of whether this court now has jurisdiction to review judgments of courts-martial for constitutional invalidity. 393 TJ.S. at 351-52. There is therefore nothing in the Supreme Court’s recent decision which compels us to withhold our hand without even considering (or reconsidering) whether the defect in Shaw’s court-martial rose to constitutional level. In this posture of the matter, we reaffirm the conclusions in Part I of our earlier opinion in this case, 174 Ct. Cl. at 903-06, 357 F. 2d at 953-54, and hold again that the Court of Claims has the competence to pass upon Shaw’s claim that his court-martial was void because he was denied an important constitutional right. See also the discussion in Augenblick v. United States, supra, 180 Ct. Cl. at 140-44, 377 F. 2d at 591-93, and in Juhl v. United States, supra, 181 Ct. Cl. at 227, 228-29, 230, 234-35, 383 F. 2d at 1018, 1019, 1020, 1023.

It is appropriate, moreover, to repeat that Shaw’s case is not governed by the Uniform Code of Military Justice, nor in particular by its Article 76, 10 U.S.C. § 876 (1964) (the “finality” clause), on which the Government placed its argument in Augenbliek and Juhl that this court cannot review a court-martial even for constitutional invalidity. The then Articles for the Government of the Navy, 34 U.S.C. § 1200 (1946), which controlled Shaw’s military proceedings, contained no comparable “finality” provision. The chief arguments for precluding this court from evaluating courts-martial, which the Government pressed upon the Supreme Court in Augenbliek and Juhl and had earlier urged on this court in those cases, are inapplicable to Shaw’s litigation.

II.

In our earlier opinion we pointed out that, on the-Navy’s own factual findings, it had convicted Lieut. -Shaw of the crime of '“fail[ing] safely to keep” Navy funds when the Navy itself determined that he had no criminal intent to convert, did not convert, and was not negligent, inefficient, or careless. 174 Ct. Cl. at 906-10, 357 F. 2d at 954-57. To reach this result the Navy was required to, and did, impose upon him the burden of affirmatively proving that the loss was wholly attributable to another individual or circumstance. Proof of his own freedom from fault or negligence would not be, and was not, enough. In the absence of such affirmative demonstration that some other person or occurrence (e.g. fire) caused the loss, the accused was presumed to be guilty of negligence or fault, despite solid proof of 'his due care and lack of criminal intent. 174 Ct. Cl. at 908-10, 357 F. 2d at 956-57. We held that the Navy could not constitutionally establish that presumption. Our reason was that, under the principles of Tot v. United States, 319 U.S. 463, 467-68 (1943), and United States v. Romano, 382 U.S. 136 (1965), there was “no rational connection between the fact proved and the ultimate fact presumed” in the circumstances here. 174 Ct. Cl. at 911-19, 357 F. 2d at 958-62.

In its post-Augenblieh motion to dismiss, the Government appears to say either that the validity of such presumptions can raise no constitutional issue at all, or that the particular presumption employed in 'Shaw’s case was valid. The first proposition is plainly incorrect. Tot and Romano (as well as United States v. Gainey, 380 U.S. 63 (1965)) expressly treated the validity of challenged statutory presumptions as involving the Federal Constitution. Very recently the Supreme Court upset another federal presumption on constitutional grounds, repeating and applying the Tot-Gainey-Romano standards. Leary v. United States, 395 U.S. 6, 29-54 (1969).

As for the specific presumption invoked by the Navy in this instance, the Government does not offer any reason for onr earlier decision, and we know of none. In Leary v. United States, supra, the Supreme Court reformulated the rule in this way (395 U.S. at 36) : “* * * a criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary’, and hence unconstitutional, unless it can be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” (See, also, 395 U.S. at 45, 52-53.) For the reasons given in the original opinion (174 Ct. Cl. at 915-19, 357 F. 2d at 960-62), we are satisfied that the Navy’s presumption, as applied to Lieut. Shaw, fails this test with low marks. The defendant’s new motion to dismiss is denied.

III.

The amount of recovery must now be considered. We held Shaw “entitled to recover back pay and allowances, less appropriate offsets, from the date on which his pay was improperly withheld to the date of judgment.” 174 Ct. Cl. at 920, 357 F. 2d at 963. The defendant now asks the court to rule that Shaw would have probably been released or retired for various reasons at an earlier date than indicated by our prior holding. In that opinion, however, we expressly observed that the defendant had not proved or offered to prove that if the then plaintiff had been freed of the court-martial charge (as he should have been) the Navy would have separated him, adding that the court had no reason to believe that he would have been separated. 174 Ct. Cl. at 920, n. 22, 357 F. 2d at 963 n. 22. This then is the law of this case, and there is no good ground for recanvassing the point. 'Shaw was not separated or released by the Navy, except under the void court-martial charge.

The plaintiff, on the other hand, asks that the court, in effect, increase the amount of Shaw’s pay and allowances by reason of promotions which it is thought he would have received through the ranks to a top grade of captain. The short answer to this contention is found in Boruski v. United States, 140 Ct. Cl. 1, 7, 155 F. Supp. 320, 324 (1957):

We do not have the authority to advance him in rank, that is, to captain as of June 1, 1945; to major as of February 15,1951; nor do we have the authority to pay him at the rate of the higher office, as he seeks in his petition, if he is not the legal holder of that rank. The only way plaintiff could have received his captaincy or majority was by Presidential appointment with the advice and consent of the Senate. Since there was no such 'action, plaintiff is not entitled to the pay of those higher ranks ; however, he is entitled to the pay of the rank he 'held on July 23, 1945, first lieutenant, for the entire period. That is the office to which he was appointed and never dismissed until the action of the Judge Advocate General on August 28, 1951.

There is no showing that Lieut. Shaw would automatically or surely or probably have been promoted (or that he was entitled as a matter of law to promotion), but only that his name would have come up, in ordinary course, for consideration for promotion at certain times. We have no means of knowing, or even of guessing, whether he would in fact have been elevated.

The claimant has proffered the testimony of an Air Force Reserve officer who had been convicted by a court-martial and sentenced to a penal term, with forfeiture of pay and allowances, and dismissed from the service. Pursuant to action by the Air Force Board for the Correction of Records, the dismissal was expunged and the individual was raised in rank from major to lieutenant colonel, and finally to colonel. If the Air Force Correction Board, in a proper case, can do this, perhaps the Navy Correction Board could accomplish a similar action. But that is not now before us since no application was made to, or considered by, that tribunal since our decision that the court-martial conviction was void.

An unusual feature is the matter of medical expenses which Shaw was required to pay after his dismissal from the service. 'Since these are the kind of expenses to which he would not have 'been put if be were on active naval duty, it seems only fair that their amount be properly includable in the court’s judgment. These sums were adequately shown, in the situation here, by Shaw’s testimony. 'Plaintiff seeks, in addition, the costs of Shaw’s previous proceeding before the Navy Correction Board but that expense is not allowable. See Middleton v. United States, 175 Ct. Cl. 786 (1966).

'Some dust has been raised by both sides about the quarters allowance to which Shaw was entitled. Both agree that the trial commissioner calculated this on the basis of Shaw’s having been without dependents. Plaintiff now says that it should have been figured for the whole period on the basis of the allowance for an officer with a dependent, since Shaw was married. Defendant counters that he was divorced on June 1, 1951, and thereafter would only have received the allowance of an officer without dependents. We hold, however, that the commissioner’s figures are correct on the basis of the parties’ own stipulation which specifically said that “the computations set forth in the report of the General Accounting Office, dated November 28, 1966, may be accepted as the correct computations as indicated”, with irrelevant changes. See finding 6. (The GAO report stated on its face that it was using a “quarters allowance for an officer without dependents”.) The commissioner accepted the GAO figures, as he had every right to do under the stipulation. It is now far too late to reopen the record in this ancient case, at the plaintiff’s behest, to correct the stipulation to which the claimant expressly agreed. Though made aware of the seeming error, plaintiff has not even asked to be relieved of the stipulation or to have the record reopened.

The plaintiff is therefore entitled to recover an amount equal to the pay and allowances of a lieutenant junior grade of the Naval Reserve on active duty until the end of the month in which Shaw attained age 62, and thereafter an amount equal to the pay of a retired officer of that rank, until May 11,1967 (the date of his death), plus the medical, dental and eye-glass expenses which Shaw paid while improperly separated from the service- — less his interim earnings. Plaintiff is also entitled to recover any military benefits properly accruing to Shaw’s estate npon his death. In the findings we determine most of these components. To the extent left undetermined by this opinion, the exact amount of the recovery will be calculated under Rule 47 (c).

FINDINGS OP PACT

The court, having considered the evidence, the report of Trial Commissioner William E. Day, and the briefs and arguments of counsel, makes findings of fact as follows:

1. On March 18, 1966, the court decided that “* * * [the original] plaintiff is entitled to recover back pay and allowances, less appropriate offsets, from the date on which his pay was improperly withheld to the date of judgment.” Judgment was entered to the effect that $5,614.01 (the amount by which the plaintiff was short in his accounts) was, under 28 U.S.C. §§ 1496 and 2512, a loss without his fault or negligence.

2. The defendant, although obviously in possession of the original plaintiff’s pay records, did not produce them. Accordingly, the inference will be drawn that had they been produced, they would have been helpful to the plaintiff with respect to the time when the original plaintiff’s Navy pay and allowances stopped.

3. The original plaintiff was dismissed from the service on February 8, 1950. ITe died on May 11,1967.

4. Between February 8,1950 and the time when the court-martial proceedings against him were commenced (November 1948) there was withheld from his pay and allowances the sum of $5,614.01. Accordingly, this amount will be added to pay and allowances improperly withheld after February 8, 1950, the date which will be used for the beginning point in computing the amount of the court’s judgment.

5. On November 28, 1966, the General Accounting Office, by its Assistant General Counsel and pursuant to a motion for call, filed its response to such motion in the office of the clerk. Such response was submitted after the trial before the commissioner (held November 21, 1966) on the issue of damages, which had been previously scheduled for October 19, 1966, and thereafter postponed at the request of counsel.

6. Thereafter, the parties entered into a stipulation as to the computations of the original plaintiff’s pay and allowances, based on various theories of recovery. The two, apparently proposed by the original plaintiff, have a starting date of October 15, 1948 and extend to December 81, 1966. One of these assumes the rank of the original plaintiff to have continued as a lieutenant junior grade for the entire time. The other assumes that the original plaintiff would have been promoted through the ranks to and including the rank of captain. It was also stipulated, “That the computations set forth in the report of the General Accounting Office, dated November 28, 1966, may be accepted as the correct computations as indicated, subject to the following: * *

The conditions were that certain figures were to be altered and the stipulation did not apply as to that part relating to the correct amount due as retired pay, assuming that at various times under various theories, retirement would have been effected.

7. The computations contained in the General Accounting Office response are based upon three alternative theories. First, that the original plaintiff would have been released from active service on June 30,1951, and granted retired pay when he attained 60 years of age as a reserve officer. Second, that after 20 years of active service, he would have applied for and been placed on the retired list. Third, that the original plaintiff would have remained on active duty until the end of the month in which he would have attained his 62nd birthday, at which time he would have been retired.

8. The parties have also agreed that the original plaintiff’s date of birth was June 6,1901. He had 16 years, 11 months and 22 days of active naval service. There is no showing, and no adequate reason to believe, that the original plaintiff would have been promoted above the grade of lieutenant junior grade if lie had not been dismissed from the service as a result of the court-martial. It is found that if he had remairierl in the service he would have been retired by age 62.

9. From February 9, 1950 until June 30, 1963 (the end of the month in which the original plaintiff attained age 62) under the figures which the parties agreed are correct computations, the original plaintiff was entitled to be paid, as a lieutenant junior grade, the sum of $84,983.73, computed as follows:

A. Pay:

2-9-50 through 4-30-52 at $349.13 per month- $9,333.41

5-1-52 through 3-31-55 at $363.10 per month- 12, 708.50

4r-l-55 through 5-31-58 at $413.40 per month- 15,709.20

6-1-58 through 6-30-63 at $450.00 per month- 27,450.00

B. Basic allowance for subsistence:

2-9-50 through 4-30-52 at $42.00 per month_ 1,122.80

5-1-52 through 6-30-63 at $47.88 per month- 6,415.92

O. Basic allowance for quarters:

2-9-50 through 4-30-52 at $67.50 per month_ 1,804. 50

5-1-52 through 12-31-62 at $77.10 per month_ 9, 868. 80

1-1-63 through 6-30-63 at $95.10 per month- 570. 60

Total_$84,983.73

10. Upon reaching the retirement age of 62 on June 6,1963, the original plaintiff would have been retired, and therefore would have been entitled (from July 1, 1963 until December 31, 1966) to the equivalent of retired pay of $13,499.83, computed as follows:

Retirement pay:

7-1-63 through 9-30-63 at $256.50 per month_ $769. 50

10-1-63 through 8-31-65 at $320.63 per month_ 7,374.49

9-1-65 through 12-31-66 at $334.74 per month_ 5,355.84

Total _$13,499. 83

11. From February 9,1950, to December 31,1963, the outside earnings of the original plaintiff were approximately $320 per year. Rounding this off, such earnings for this period would total $4,480 ($320X14 years). For the year 1964, the original plaintiff’s earnings were $376. For the year 1965, the original plaintiff’s earnings were $1,124. The original plaintiff was unemployed during 1966. Accordingly, from February 9, 1950 to December 81, 1966, the original plaintiff’s outside earnings were $5,980.

12. The plaintiff expended since February 9, 1950 for medical expenses $1,200; for dental expenses, $80 and for eye glasses, $48.

13. (a) Pursuant to the court’s judgment of March 18, 1966, the plaintiff is entitled to recover the following amounts:

Active duty pay, 2-9-50 through 6-30-63_ $65,201.11

Basic subsistence allowance 2-9-50 through 6-30-63- 7, 538. 72

Basic quarters allowance 2-9-50 through 6-30-63_ 12,243. 90

Betirement pay, 7-1-63 through 12-31-66_ 13,499. 83

Medical, dental and eye glass expense_ 1,328. 00

Loss for which plaintiff’s pay was withheld_ 5,614. 01

Total _$105,425.57

Deduct outside earnings_ 5,980. 00

Total _ $99,445.57

(b) There should be added to this amount, from January 1, 1967 until May 11,1967, the sum of $334.74 per month, representing the amount of retirement pay the original plaintiff would receive pursuant to the court’s opinion and judgment of March 18, 1966.

(c) Plaintiff is also entitled to recover any military benefits accruing to the original plaintiff’s estate upon and as a result of his death, if there be any such.

CONCLUSION 03? LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover of and from the United States, the sum of $99,445.57, and, in addition, the stun of $334.74 per month from January 1, 1967, until May 11,1967, plus any military benefits accruing to plaintiff upon and as a result of the decedent’s death. The exact amount of recovery will be determined under Pule 47(c). 
      
       Shaw died on May 11, 1967, while this suit was In progress, and alter the trial commissioner’s report on the amount of recovery. The executor of his estate has been substituted as plaintiff.
     
      
       The Court decided that any errors in those two instances did not rise, on those facts, to the constitutional level. 393 U.S. at 351-52, 352-53, 353-56.
     
      
       Shaw’s court-martial was held in December 1948, and final action by higher authority occurred in 1949 and early 1950. The Court of Military Appeals held that it had no jurisdiction over the case because it pre-dated enactment of the uniform Code. See 174 Ct. Cl. at 902-03 & n. 2, 357 E. 2d at 952 & n. 2.
     
      
       Those Articles were in effect until May 31,1951.
     
      
      
         And therefore, under the Supreme Court’s ruling in United States v. Augenblieh and Juhlj supra, would not be cognizable by this court.
     
      
       It must be remembered, in this connection, that the invalid presumption •was not adopted by Congress itself but was simply read by the Navy into the federal statutes.
     
      
       In this part of the opinion, we are indebted to Trial Commissioner Day’s opinion from which we borrow freely.
     
      
       Plaintiff also contends that there Is no reason to believe that Shaw would have been retired at age 62 when he would have been eligible, but we think It highly probable, In all the circumstances, that relief from active duty would have occurred by that time.
     
      
       Tie basis of the GAO’s calculation of the quarters allowance became important when the defendant discovered, after Shaw’s death, that he had apparently been divorced on June 1, 1951. The court granted defendant’s “motion for leave to file” the divorce decree (together with Shaw’s will and the probate petition) but that motion did not request that the divorce decree be received in evidence or ask that the GAO computations be redone. Accordingly, the court’s order allowing the motion did not itself effect any reopening of the record or modification of the stipulation. (Plaintiff’s counsel emphasized, in his response to the motion, that it did not reopen the record.)
     
      
       If we were now to reopen the record for plaintiff’s benefit, we would have to do the same for the defendant which insists that Shaw was divorced on June 1,1951. See note 9, supra.
      
      We reject, likewise, the parties’ other exceptions to the trial commissioner’s findings.
     