Lecorchick v. United States

60 Ct. Cl. 78, 1924 U.S. Ct. Cl. LEXIS 332, 1924 WL 2355

Opinion

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.