Potter Stewart

“ Since both the Army and the Court of Claims denied the petitioners' claims entirely, no separate consideration was given to the petitioners' status after their release as prisoners of war until the date of their administrative discharges. Nor did the petitioners in this Court address themselves to the question of the petitioners' rights to pay during that interval. Yet, it is evident that the petitioners' status during that period might be governed by considerations different from those which have been discuse d. Other statutory provisions and regulations would come into play. ”

“ It is also suggested, alternatively, that the Secretary of the Army might have determined that each of the petitioners after capture was 'absent from his post of duty without authority,' and therefore, not entitled to pay and allowances under the Act. We can find no support for these contentions in the language of the statute, in its legislative history, or in the Secretary's administrative determination.
The Missing Persons Act was a response to unprecedented personnel problems experienced by the Armed Forces in the early months after our entry into the Second World War. ”

“ Whether the solution to it lies alone in subsequent prosecution and punishment is not for us to inquire. [31] Congress may someday provide that members of the Army who fail to live up to a specified code of conduct as prisoners of war shall forfeit their pay and allowances. ”

“ 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. ”

“ It shall be unlawful for any person employed in any capacity by any agency of the Federal Government, whose compensation, or any part thereof, is paid from funds authorized or appropriated by any Act of Congress, to have membership in any political party or organization which advocates the overthrow of our constitutional form of government in the United States.↑ The 'Second Affirmative Defense' read in part as follows:↑ August 9, 1955, c. ”

“ In 1807 a sailor named John Straughan was a member of the crew of the American frigate Chesapeake. After that vessel's ill-starred engagement with the British man-of-war Leopard off Hampton Roads, Straughan was taken aboard the Leopard and impressed into service in the British Navy. ”

“ More than forty British prisoners of war were brought to trial for misconduct. See note, 56 Col.L.Rev. 709-721 (1956) .↑ Upon their return to the United States in July 1955, the petitioners were confined by the United States Army in San Francisco, California, to await trial by general court-martial for violation of Article 104 of the Uniform Code of Military Justice, 10 U.S.C.A. § 904. ”

“ The court entered judgment in his favor, stating that ' (t) he contrary would be to hold that an executive department could annul and defy an act of Congress at its pleasure.' Jones v. United States, 4 Ct.Cl. ”

“ Th e mere fact that an officer or soldier is under charges does not deprive him of his pay and allowances, * * * such forfeiture can only be imposed by the sentence of a lawful court-martial.' Walsh v. United States, 43 Ct.Cl. 225, 231. [14]
The statute upon which the petitioners rely applies this same principle to a specialized situation. A serviceman captured by the enemy and thus unable to perform his normal duties is nonetheless entitled to his pay. ”

“ The Court of Appeals approved a dismissal of the complaint, with the comment that ' (h) is rating fixed his status and his pay.' 158 F.2d at page 502.↑ The case was decided under a statute specifically applicable to naval personnel, originally enacted in 1800, 2 Stat. 45, now 37 U.S.C. § 244, 37 U.S.C.A. § 244. See note 32, infra.↑ '$x 1001. Definitions.↑ Act of March 7, 1942, 56 Stat. 143.↑ Act of December 24, 1942, 56 Stat. 1092; Act of July 1, 1944, 58 Stat. 679; § 4 (e) of Selective Service Act of 1948, 62 Stat. 608, 50 U.S.C.A.Appendix, 454 (e) ”