Bell v. United States, 92

• Decision Date: 22 May 1961
• Docket Number: No. 92,92
• Citation: 81 S.Ct. 1230,6 L.Ed.2d 365,366 U.S. 393
• Parties: Otho G. BELL et al., Petitioners, v. UNITED STATES
• Court: U.S. Supreme Court

366 U.S. 393

81 S.Ct. 1230

6 L.Ed.2d 365

Otho G. BELL et al., Petitioners,

v UNITED STATES.

No. 92.

Argued Jan. 11, 1961.

Decided May 22, 1961.

Mr. Robert E. Hannon, Castro Valley, Cal., for petitioners.

Acting Assistant Attorney General George S. Leonard, for respondent.

Mr. Justice STEWART delivered the opinion of the Court.

The petitioners were enlisted men in the United States Army who were captured during the hostilities in Korea in 1950 and 1951. In the prison camps to which they were taken they behaved with utter disloyalty to their comrades and to their country. After the Korean Armistice in the summer of 1953 they refused repatriation and went to Communist China. They were formally discharged from the Army in 1954. In 1955 they returned to the United States. Later that year they filed claims with the Department of the Army for accrued pay and allowances. When these claims were denied they brought the present action in the Court of Claims for pay and allowances from the time of their capture to the date of their discharge from the Army.¹ The Court of Claims decided against them, stating that '(n)either the light of reason nor the 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. 837, 80 S.Ct. 1612, 4 L.Ed.2d 1723.

The Court of Claims made detailed findings of fact with respect to the petitioners' conduct as prisoners of war, based upon a stipulation filed by the parties.³ These cir- cumstances need not be set out in minute detail. They are adequately summarized in the opinion of the Court of Claims, as follows:

'(D)uring 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 * * *.

'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 bi-monthly 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.'

As stated in their brief, the petitioners do not admit to the alleged acts of dishonor contained in the Stipulation and the Findings of Fact, but rather demur to them on the grounds that such facts are irrelevant and immaterial in a civil action for military pay provided by statute.' The statute upon which the petitioners rely is an ancient one. It was first enacted in 1814 and has been reenacted many times. It provides:

'Every noncommissioned officer and private of the Regular Army, and every officer, noncommissioned officer, and private of any militia or volunteer corps in the service of the United States who is captured by the enemy, shall be entitled to receive during his captivity, notwithstanding the expiration of his term of service, the same pay, subsistence, and allowance to which he may be entitled while in the actual service of the United States; but this provision shall not be construed to entitle any prisoner of war of such militia corps to any pay or compensation after the date of his parole, except the traveling expenses allowed by law.' 37 U.S.C. § 242, 37 U.S.C.A. § 242.⁴

Although the plain language of this law appears to entitle the petitioners to their Army pay and allowances during their imprisonment in Korea, the Government has urged various grounds upon which we should hold that the provisions of the statute are inapplicable. We have concluded that none of the theories advanced by the Government can serve as a valid basis to circumvent the unabmiguous financial obligation which the law imposes.

The Army's refusal to pay the petitioners was based upon an administrative determination that all prisoners of war who had declined repatriation after the Korean Armistice 'advocate, or are members of an organization which advocates, the overthrow of the United States Government by force or violence.'⁵ In refusing to honor the petitioners' claims upon this ground, the Army was apparently relying upon a statute enacted in 1939 which made it unlawful to pay from funds appropriated by any Act of Congress the compensation of 'any person employed in any capacity by any agency of the Federal Government' who was a member of 'any political party or organization which advocates the overthrow of our constitu- tional form of government in the United States.'⁶ That this statute was the basis of the Army's decision is evident not only in the language employed in rejecting the petitioners' demands, but also in the pleadings filed in the Court of Claims.⁷ We need not, however, now decide the applicability of this statute to members of the Armed Forces, for the reason that the statute was repealed more than a year before the Army relied upon it in refusing to pay the petitioners.⁸

Although this was the only ground ever advanced for the administrative denial of the petitioners' claims, the Government's brief in this Court, for understandable reasons, does not even mention this repealed statute. Instead, the Government now relies upon other grounds to avoid the provisions of 37 U.S.C. § 242, 37 U.S.C.A. § 242. It says that the petitioners violated their obligation of faithful service,⁹ and points to the principle of contract law that 'one who wilfully commits a material breach of a contract can recover nothing under it. 4 Williston, Contracts (1936 ed.) § 1022, pp. 2823—4; 5 Williston, Contracts (1936 ed.) § 1477; 5 Corbin, Contracts (1951 ed.) § 1127, pp. 564—5, see also Restatement Contracts, § 357(1)(a).'

In accord with this principle, the Government argues that in the Missing Persons Act,¹⁰ a statute first enacted in 1942,¹¹ Congress provided a statutory basis for denying the petitioners' claims. We do not so construe that statute.

Preliminarily, it is to be observed that common-law rules governing private contracts have no place in the area of military pay. A soldier's entitlement to pay is dependent upon statutory right. In the Armed Forces, as everywhere else, there are good men and rascals, courageous men and cowards, honest men and cheats. If a soldier's conduct falls below a specified level he is subject to discipline, and his punishment may include the forfeiture of future but not of accrued pay.¹² But a soldier who has not received such a punishment from a duly constituted court-martial is entitled to the statutory pay and allowances of his grade and status, however ignoble a soldier he may be.¹³

This basic principle has always been recognized. It has been reflected throughout our history in numerous court decisions and in the opinions of Attorneys General and Judge Advocates General. 'Enlistment is a contract; but it is one of those contracts which changes the status; and, where that is changed, no breach of the contract destroys the new status or relieves from the obligations which its existence imposes. * * * By enlistment the citizen becomes a soldier. His relations to the State and the public are changed. He acquires a new status, with correlative rights and duties; and although he may violate his contract obligations, his status as a soldier is unchanged.' In re Grimley, 137 U.S. 147, 151, 152, 11 S.Ct. 54, 55, 34 L.Ed. 636.

Almost a hundred years ago Attorney General Hoar rendered an opinion to the Secretary of War regarding the right to pay of a Major Herod, who had been 'charged with murder, arrested, tried by a court-martial, and sentenced to be hung.' The Attorney General stated:

'It was not...