1. The Army Reorganization Act of June 4, 1920, should be
liberally construed to avoid unnecessary technical limitation upon
the military agencies which are to carry it into effect.
French
v. Weeks, 259 U. S. 326. P.
270 U. S.
160.
2. The requirement of the Act that an officer before a court of
inquiry shall be furnished with a full copy of the official records
upon
Page 270 U. S. 155
which his proposed classification as an officer who should not
be retained in the service is based was sufficiently complied with
to avoid invalidating the proceedings where the officer was
furnished, for his own keeping and use, a copy of everything
adverse to him in his record, and was given full opportunity in the
court of inquiry to consult his entire record. P.
270 U. S.
160.
3. A court of inquiry, under this statute, reported in favor of
an officer, but the final classification board, having before it
the record from the court of inquiry, decided otherwise, finally
classifying him as one who should not be retained in the service.
Held that the fact that the court of inquiry discouraged
the officer from adducing cumulative testimony in disproof of
charges which that court declined to consider because they had
never been presented to him did not invalidate the final
classification, since it was not to be presumed that the final
board would consider those charges under the circumstances, and
since the officer's counsel, if he deemed the evidence material and
important, would have insisted on its production before the court
of inquiry. Pp.
270 U. S.
161-162.
4. On an appeal from a judgment of the Court of Claims upholding
proceedings of military tribunals leading to claimant's retirement
from the Army, as to which it is objected that the record sent from
the court of inquiry to the final classification board was
defective, this Court derives its knowledge of the contents of such
record from the findings of the Court of Claims. P.
270 U. S.
162.
59 Ct.Cls. 464 affirmed.
Appeal from a judgment of the Court of Claims rejecting a claim
for additional pay made by a retired army officer upon the ground
that the order for his retirement was illegal and void.
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
Wilbur Rogers was a major of Field Artillery in the Regular Army
of the United States until January 26,
Page 270 U. S. 156
1921, when by an order of that date issued by the Secretary of
War, he was placed on the retired list, under ยง 24b of the Act of
June 4, 1920. On the ground that the order was illegal and void, he
brought this action in the Court of Claims to recover the
difference between the pay and allowances of a major of Field
Artillery on the active list from January 26, 1921, to January 26,
1922, and the retired pay for the same period which he actually
received; this difference amounting to about $4,300. A general
traverse was entered, and the issues were heard and findings of
fact made by the court.
The Act of June 4, 1920, c. 227, 41 Stat. 759, 773, commonly
called the Reorganization Act, provides:
"Sec. 24b. Classification of Officers. -- Immediately upon the
passage of this Act, and in September of 1921 and every year
thereafter, the President shall convene a board of not less than
five general officers, which shall arrange all officers in two
classes, namely: Class A, consisting of officers who should be
retained in the service, and class B, of officers who should not be
retained in the service. Until otherwise finally classified, all
officers shall be regarded as belonging to class A, and shall be
promoted according to the provisions of this Act to fill any
vacancies which may occur prior to such final classification. No
officer shall be finally classified in class B until he shall have
been given an opportunity to appear before a court of inquiry. In
such court of inquiry, he shall be furnished with a full copy of
the official records upon which the proposed classification is
based, and shall be given an opportunity to present testimony in
his own behalf. The record of such court of inquiry shall be
forwarded to the final classification board for reconsideration of
the case, and after such consideration, the finding of said
classification board shall be final, and not subject to further
revision except upon the order of the President. Whenever an
officer is placed in class B, a board of not less than three
Page 270 U. S. 157
officers shall be convened to determine whether such
classification is due to his neglect, misconduct, or avoidable
habits. If the finding is affirmative, he shall be discharged from
the Army; if negative, he shall be placed on the unlimited retire
list with pay,"
etc.
The Court of Claims found that the law had been complied with,
and dismissed the petition.
The grounds relied on by the petitioner for the appeal, as
stated in his brief, are:
First, that plaintiff was prevented by military law from going
forward before the court of inquiry with testimony which he desired
to give, which was necessary to meet the adverse charges in his
record which were before the court of inquiry and the
prima
facie case made out against him by the provisional
classification board.
Second, that the record of the court of inquiry was not a
complete record, as required by law, in that there is no mention of
the peremptory closing of the court, and nothing to show that the
new evidence which Major Rogers desired to give was excluded.
Third, that the court of inquiry made an error of law when it
assumed that it could arbitrarily exclude the testimony of Major
Rogers and other witnesses, once it had determined to recommend
that Major Rogers be retained on the active list, inasmuch as its
decision was not final, as shown by the case and provided by the
statute.
Fourth, that the Court of Claims made an error of law when it
made a finding of fact that Major Rogers was excused as a witness
and did not complete the testimony which he desired to give,
although he was not prevented from doing so by the court.
After the preliminary board of classification had classified the
plaintiff in class B, he applied for opportunity to appear before a
court of inquiry, which was duly appointed and convened at Chicago,
November 20, 1920. He was assisted by counsel. Lieutenant Colonel
Horace F.
Page 270 U. S. 158
Sykes, of the Infantry. The plaintiff was furnished with copies
from the official records of his service, which copies contained
only the unfavorable portions of his record, upon which the action
of the board was based. The plaintiff thereupon applied to the War
Department for the complete record of his service, but his request
was not granted. He was, however, permitted to read the complete
record of his service prior to the meeting of the court of inquiry
and during its proceedings. It was a complete record of plaintiff's
services as an officer of the Army from the date of his first
commission therein to the date of the convening of said court of
inquiry.
The plaintiff called to the attention of the court of inquiry
certain charges preferred against him by Colonel Harry C. Williams,
of the Field Artillery, as shown in the record. The court heard the
plaintiff upon these charges, but discouraged any further evidence
relative thereto upon the grounds stated by the president of said
court in his evidence before the Court of Claims that the court had
received instructions to disregard any charges against any officer
who had not been brought to trial on any charges, or to whom the
charges had not been read. The plaintiff had testified that he had
never been acquainted with these charges until he was notified that
he had been put in class B.
While the plaintiff was on the witness stand testifying in
reference to adverse reports in his record, the court, through its
president, stated, "That will be all," whereupon he was excused as
a witness, and did not complete the testimony which he desired to
give, although, as the Court of Claims finds, he was not prevented
from doing so by the court.
During the course of the hearing before the court of inquiry,
the presiding officer addressed plaintiff's counsel as follows: "It
is the suggestion of the court, merely a suggestion, you
understand, that counsel rest his case."
Page 270 U. S. 159
Counsel for the plaintiff thereupon stated to the court that he
had more evidence that he desired to submit, whereupon the
presiding officer stated: "I wish to repeat that it is the
suggestion of the court that counsel rest his case."
Thereupon the counsel for the plaintiff again stated to the
court that he had other evidence, and that there were six witnesses
in the building whom he desired to call, and a seventh witness who
was in the city and waiting to be called by telephone. The
presiding officer thereupon stated emphatically, striking his hand
forcibly on his desk: "I wish to reiterate that it is the
suggestion of the court that counsel rest his case."
The plaintiff thereupon closed his case. At the time plaintiff
had, in the same building wherein the court was sitting, six
witnesses, and a seventh witness, an army officer, waiting to be
notified by telephone to appear. These witnesses would have
testified as to the charges which the court had decided to ignore,
but were not called by the plaintiff. The Court of Claims finds
that the plaintiff made no protest to the court because they were
not called.
A copy of the official records was incorporated in the record of
the court of inquiry. The court ruled as a matter of law that a
favorable efficiency report could be discussed, but should not be
incorporated in the record of the court because these reports were
on file in the War Department and would be considered, as they
were, by the final board of classification.
At the conclusion of the hearing, the court of inquiry made the
following determination: "The court is of the opinion that Major
Wilbur Rogers should not be continued in class B."
It appears that the plaintiff, by mail, having received the
record of the court of inquiry, complained to the
Page 270 U. S. 160
recorder of the court that the record contained errors, but that
the recorder refused to rectify them.
The final classification board, after considering the record
received from the court of inquiry as additional evidence, finally
classified the plaintiff in class B.
It does not appear to us that there in anything in the findings
of the Court of Claims to show that the proceedings by which the
plaintiff was classified in class B. were rendered invalid. This
Court has had occasion to consider the Reorganization Act under
which this retirement was ordered. In the case of
French v.
Weeks, 259 U. S. 326, we
said:
"The Army Reorganization Act is intended to provide for a
reduction of the Army of the United States to a peace basis while
maintaining a standard of high efficiency. To contribute to this
purpose, Congress made elaborate provision in the act for retaining
in the service officers who had proved their capacity and fitness
for command, and for retiring or discharging those who for any
reason were found to be unfit. Every step of this process is
committed to military tribunals, made up of officers who by
experience and training should be the best qualified men in the
country for such a duty, but with their action all subject, as we
shall see, to the supervisory control of the President of the
United States."
"Not being in any sense a penal statute, the act should be
liberally construed to promote its purpose, and it is of first
importance that that purpose shall not be frustrated by
unnecessarily placing technical limitations upon the agencies which
are to carry it into effect."
It is conceded on behalf of the plaintiff that the procedure
required by the statute was followed in the organization of the
boards and the court of inquiry. It was objected in the court below
and in the assignments of error here that the plaintiff was not
furnished with a copy of the official records in the court of
inquiry upon
Page 270 U. S. 161
which the proposed classification was based. As a matter of
fact, he was furnished with a written copy for his own keeping and
use of everything that was adverse to him in his record, and he was
given in the court of inquiry a full opportunity to consult his
entire record. We do not think that the difference between what was
required by the statute and what was actually afforded him in the
matter was of sufficient substance to invalidate the
proceedings.
The chief complaint of plaintiff, when the briefs in his behalf
are analyzed, is that he was prevented by the court from
introducing additional evidence of cumulative character to disprove
charges which the court of inquiry, upon the statement in the
plaintiff's own evidence that he had never been presented with the
charges and never been called upon to answer them, completely
ignored. The court did so, as explained by the president of the
court of inquiry, in accordance with instructions received by the
court to disregard any charges against any officer who had not been
brought to trial on them, or to whom they had not been read. The
recommendation of the court of inquiry was that the plaintiff be
retained in class A. This was doubtless the reason why the court of
inquiry did not think it necessary to call additional witnesses,
especially in reference to a subject matter that could not affect
the standing of the officer. In the absence of any other
circumstances, and in the face of the presumption of regularity
that must obtain in proceedings of this sort, we cannot assume that
the final board of classification considered, as a basis for
putting the plaintiff in class B, charges which had never been
presented to him, charges which he denied, and charges which the
court of inquiry ignored.
It is claimed that the plaintiff was injured by the failure of
the recorder of the court to include in the record of the court of
inquiry the colloquy between the plaintiff and his
Page 270 U. S. 162
counsel, on the one hand, and the court of inquiry, on the
other, with reference to discontinuing the hearing. We do not think
that, if the colloquy had been put in the record, it would have
made any substantial difference in its effect. We have no means of
knowing exactly what the record of the court of inquiry as
forwarded to the board of final classification contained, except
from the finding of the Court of Claims, which shows that it
contained all that the plaintiff put in in the way of records and
documents and his evidence. In view of this, we cannot assume that
the complaint by the plaintiff that the record was defective was
well founded.
The Court of Claims found that the plaintiff was not prevented
from putting in the additional evidence on the charges which were
subsequently ignored. It is argued to us that the attitude of the
court was, in effect and as a matter of military law, a military
order preventing the submission of further evidence, and making it
a military offense for the plaintiff to have insisted on
introducing his witnesses. Were the matter important, we should
have difficulty in yielding to such a view. The Court of Claims
finds in effect that the action of plaintiff in not producing
further evidence was voluntary acquiescence by him in the
suggestion of the court. He had counsel who presumably knew his
rights under the statute, and, if such evidence was deemed material
and important, we must assume that the counsel would have asserted
his right and insisted on the production of the evidence.
Much of the briefs of counsel for the plaintiff in error is made
up of statements based on, and quotations from, the evidence before
the Court of Claims. We cannot consider this. We are limited to the
findings of the Court of Claims.
United States v. Smith,
94 U. S. 214;
Stone v. United States, 164 U. S. 380;
Crocker v. United States, 240 U. S.
74,
240 U. S. 78;
Brothers v. United States, 250 U. S.
88,
250 U. S.
93.
Page 270 U. S. 163
There is nothing in the record before us which would justify us
in holding the proceedings invalid. The judgment is
Affirmed.