
    GEORGE LECORCHICK v. THE UNITED STATES
    [No. C-372.
    Decided December 1, 1924]
    
      On the Proofs
    
    
      Navy pay; court martial; finding set aside by Secretary. — Where plaintiff, a private in the Marine Corps, was convicted by general court-martial and sentenced to imprisonment for a term of years and dishonorable discharge thereafter, and the findings and sentence of the said court were set aside by the Secretary of the Navy and the plaintiff restored to duty, plaintiff was entitled to his full pay during the time he was not on duty.
    
      
      The Reporter’s statement of the case:
    
      Mr. George A. King for the plaintiff. King & King were on the briefs.
    
      Mr. John G. Ewing, with whom was Mr. Assistant Attorney General Robert H. Lovett, for the defendant.
    The following are the facts as found by the court:
    I. The plaintiff, George Lecorchick, a private in the United States Marine Corps, was brought before a naval general court-martial at Managua, Nicaragua, during the month of February, 1922, charged with participating in a fatal attack upon certain members of the police force of that city. He was found guilty and sentenced to be confined for a period of eight years, after which he was to be dishonorably discharged from the naval service of the United States.
    July 5, 1922, the Secretary of the Navy set aside the findings and sentence of the general court-martial and directed that he be released from arrest and restored to duty. In accordance with said order of the Secretary of the Navy plaintiff was released from confinement on the 15th of July and restored to duty. He was honorably discharged October’*' 1, 1922, at the marine barracks, navy yard, Boston, Mass., by reason of the expiration of his term of enlistment, with character “ excellent.”
    II. From March 4, 1922, date of approval of sentence by the convening authority at Managua, Nicaragua, to July 4, 1922, he received only the prison allowance of $3 a month prescribed by Navy Regulations, 1920, sec. 1936.
    If paid his regular pay as a private in the Marine Corps during that period he would receive an additional sum of $108.09.
    The court decided that plaintiff was entitled to recover.'
   MEMORANDUM BX THE COURT

We fail to catch the force, of the defendant’s contention that if the sentence df the court-martial was voidable, then the plaintiff would hot be'entitled to pay, bút if void he would be entitled to pay. . It is said that the plaintiff was not on duty from the approval of the sentence of court-martial to the date of its disapproval by the Secretary. The same could be said with equal truth if the sentence had been void ab mitio. He was prevented from being on duty by the sentence of a court-martial which was declared to be erroneous by the Secretary of the Navy, who was the final authority to say whether the sentence should dr should not be final. The sentence having been declared erroneous, everything which was the consequence of it fell to the ground, and that part of it which forfeited the plaintiff’s pay was as erroneous as any other part of it. The status of the plaintiff by the action of the Secretary was restored; he was not legally absent from duty at any time; he can not therefore be legally deprived of his pay. Harris v. Daniels, 279 Fed. 844. See also the opinion of the Attorney General of May 8, 1924, Memoranda Bureau Supplies and Accounts No. 262, p. 8372.  