Bell v. United States
| Decision Date | 02 March 1960 |
| Docket Number | No. 547-56.,547-56. |
| Citation | 149 Ct. Cl. 248,181 F. Supp. 668 |
| Parties | Otho G. BELL, William A. Cowart and Lewie W. Griggs v. UNITED STATES. |
| Court | U.S. Claims Court |
Robert E. Hannon, Castro Valley, Cal., for plaintiffs.
Francis X. Daly, Washington, D. C., with whom was Asst. Atty. Gen., George Cochran Doub, for defendant. Sheldon J. Wolfe, Washington, D. C., was on the brief.
The plaintiffs sue for pay and allowances which they claim to be due them as prisoners of war from the dates of capture in 1950 and 1951 until their discharge from the Army on January 23, 1954.
They had enlisted in the United States Army at different dates in 1949. At the time of their capture they were privates, first class.
The applicable statutes are set out in the footnote.1 The plaintiffs claim that from the date of their capture until their actual discharge they were entitled under the statutes to the regular pay and allowances of soldiers of their classification.
The defendant alleges in the pleadings and it is not denied by the plaintiffs that they were among prisoners who were captured; that these three refused to be repatriated and return to the United States when they were released from prison; that instead they chose to remain with the Communists and in a communist country; that between the time of the plaintiffs' capture and the time of their dishonorable discharge each plaintiff adhered to, worked for, and collaborated with the enemy of the United States; that since they refused repatriation when they were released from prison and since they continued in their election until January 23, 1954, they were on that date dishonorably discharged from the Army.
These allegations are nowhere disputed.
The defendant asserts that because of these admitted facts the plaintiffs were guilty of a breach of the contracts of enlistment and of their oaths of faithful service; and that therefore each plaintiff abandoned his status as a soldier in the United States Army and forfeited all pay and allowances to which he might have been entitled otherwise.
The undisputed testimony shows that during 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 7 to 30, inclusive.
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 bimonthly 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.
These and many other acts of perfidy are abundantly proved by the record and are nowhere denied either in the pleadings or in the evidence. The record does not disclose any suggestion whatever of brainwashing. As a matter of fact, the record justifies the conclusion that at all times these men did these acts voluntarily for the purpose of helping themselves, in complete disregard of the effect it might have on the treatment of their fellow prisoners. The record does not indicate a touch of loyalty either to their compatriots or to their country after the period they were taken prisoners of war.
The defendant produced at the trials as witnesses certain Army staff officers who testified authoritatively that the United States did not authorize the use of germ warfare in Korea, did not ship any materials or equipment to Korea for that purpose, and received no requests for such materials or equipment. Rather than have this testimony remain in the record as evidence, the plaintiffs' counsel stipulated that neither the United States nor any of the United Nations forces engaged in germ warfare in Korea. In view of this stipulation and concession, the commissioner sustained plaintiffs' objection to this part of defendant's testimony but permitted it to remain in the record as defendant's offer of proof under Rule 41(c), 28 U.S.C.
In reference to plaintiff Bell's statement, as shown in finding 14, that the American troops had injected poison gas into the blood of communist prisoners of war on a ship, plaintiffs' counsel stipulated at the trial that this had not been done.
After the Korean armistice, which was signed July 27, 1953, and prisoner repatriation had begun on August 5, 1953, each of the plaintiffs refused repatriation and voluntarily elected to go to Communist China. After the plaintiffs were discharged on January 23, 1954, they filed this suit for their pay during the period indicated.
R.S. 1288, 10 U.S.C. § 846, supra, was enacted in 1814. Numerous statutes have been enacted and committee reports made since that time. These latter statutes, including sections 1002, 1006, and 1009, supra, of the legislation entitled the Missing Persons Act, as amended, cover the cases here presented. In fact, not only the language of the acts themselves, but the committee reports at the time these sections were enacted clearly show that but for this Missing Persons Act there would be no basis of a claim for compensation.2
It will be noted that section 1002, as quoted in the footnote, states in effect that any person determined to be "interned in a foreign country, captured by a hostile force, beleaguered or besieged shall, for the period he is officially carried or determined to be in any such status, be entitled" to pay and allowances. (Emphasis supplied.) Section 1006 states in effect that when it is officially reported that a person missing under the conditions specified is alive and in the hands of a hostile force or is interned in a foreign country he shall be paid.
Section 1009, which is a part of the same Act, states that (Emphasis supplied.)
This modification in the language of the law completely changes the original act, which was unconditional. These changes in the original act leave not the slightest doubt that it was the intention of the Congress to authorize the head of the department or his agent to determine not only the status but the entitlement to pay.
It is inconceivable that the plaintiffs should be paid in the circumstances disclosed by the undisputed facts in this record. The fact is that essentially they were not confined. They were permitted to go outside the camp, were given practical freedom and in the essence of things they were no longer in the status of prisoners.
The Department, in denying plaintiffs' claims, which were filed with the Department for pay, necessarily determined under the provisions and authority of the statute just quoted that during the period involved these plaintiffs did not have a status as prisoners, and were not entitled to pay under the quoted statutes. It was determined under the provisions of section 1009, quoted above, that they were not entitled to their pay. Such a finding was implicit in a determination that they should not be paid for the period following capture. This determination is fully...
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Bell v. United States, 92
...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.2 We granted certiorari to consider a seemingly important statutory question with respect to military pay. 363 U.S......
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The Bill of Rights and the military.
...the books away and just refused to pay them. It could have set before these confused young men a better example of government by law." 181 F. Supp. 668, 675 (Ct. Cl. 1960). We In similar vein have been the series of decisions concerning the conscription procedures of the Selective Service S......