Presidential Authority to Act in the Case of Eddie Slovik

September 9, 1977
78-84 MEMORANDUM FOR THE COUNSEL
TO THE PRESIDENT
Presidential Authority— Slovik Case—
Constitutional Law—Posthumous Pardons—
Review of Sentence (10 U.S.C. § 1552)
You have asked for our opinion regarding the President’s authority to act in
the case of the late Eddie D. Slovik, who was sentenced to death by a
court-martial for desertion and subsequently executed on January 31, 1945. For
reasons stated hereafter, we conclude that: (1) the President has no power to
review or overturn the August 12, 1977, decision o f the Secretary of the Army;
and (2) even assuming that the President might issue a posthumous pardon, its
issuance would not remove the disability imposed by statute on his widow,
Antoinette Slovik, receiving the proceeds o f the life insurance that she seeks to
collect.
I. Background
Slovik left a widow, who, until recently, apparently made no attempt to
collect on the National Service Life Insurance (NSLI) policy o f $10,000 that
had been in force on Mr. Slovik during his brief military service.1
The disbursement o f NSLI benefits is entrusted by statute to the Veterans’
Administration. See 38 U .S.C . § 701 et seq. Under 38 U .S.C . § 711:
Any person guilty o f mutiny, treason, spying, or desertion, or
who, because o f conscientious objections, refuses to perform service
in the Armed Forces . . . shall forfeit all rights to [NSLI], No
insurance shall be payable for death inflicted as a lawful punishment
for crime or for military . . . offense . . . .
Mrs. Slovik, apparently anticipating that the VA would deny a claim by her
because o f § 711,2 filed an application with the Army Board for Correction of
’The allotm ent from M r. S lovik's pay that paid for this insurance was discontinued on Decem ber
31, 1944, one month prior to his execution.
2M rs. Slovik also asked the Board to assist in having M r. Slovik’s rem ains rem oved from their
present burial site in an "unm arked dishonored place in France, to a more suitable resting place.”
2JQ (Continued)
Military Records (Board), advancing several arguments as to why his military
record should be “ corrected” in such a way that § 711 would no longer be a
bar. The Board, after proceedings held on June 15 and 29, 1977, at which Mrs.
Slovik was represented by counsel, recommended to the Secretary of the Army
that Mrs. Slovik’s application be denied. On August 12, 1977, that recommen­
dation was approved and the application was denied by the Secretary o f the
Army.
II. The President’s Power of Review
Any review of the Secretary of the A rm y’s decision on the application of
Mrs. Slovik is governed in the first instance by 10 U .S.C . § 1552, which
authorizes such applications to be entertained and establishes to a limited extent
the procedures under which they are to be processed. The more detailed
procedures actually employed are, under § 1552, promulgated by the several
Service Secretaries after approval by the Secretary of Defense.
Section 1552 does not explicitly grant or deny the President the power to
review decisions made by the Service Secretaries or Boards established
pursuant to its provisions. It does, however, state explicitly that “ a correction
under this section is final and conclusive on all officers o f the United States.”
§ 1552(a). This language would arguably prevent the President from overturning
a decision favorable to an applicant,3 but it does not address a situation where,
as here, the decision of the Board and Secretary has gone against an applicant.
Section 1552 does, however, require decisions made on applications to be
made “ under procedures established by [the several Service Secretaries] and
approved by the Secretary o f Defense . . . . ” We think that, at a minimum, this
means that all such decisions are to be made with some semblance of
procedural regularity. The Secretary of the Army has adopted procedures to this
end. See 32 CFR § 581.3.
Under 32 CFR § 581.3(f)(2) the Secretary of the Army possesses final
authority, subject only to judicial review, to grant or deny an application for
correction. As pointed out in a recent case, the Secretary could, by regulation
having the approval of the Secretary of Defense, give final decisionmaking
authority to the Board itself, thereby preventing even the Secretary of the Army
from reviewing the decision o f the Board so long as the regulation was in force.
See, Biddle v. United States, 186 Ct. Cl. 87 (1968). In addition, a number of
cases have indicated that the Secretary himself may not reverse a “ decision” of
the Board where the Board’s findings are supported by the record. See, e .g .,
Weiss v. United States, 408 F. (2d) 416, 422 (Ct. Cl. 1969); Nelson v. M iller,
373 F. (2d) 474, 478 (3d Cir. 1967).
(Continued)
The Board found this issue to be beyond its jurisdiction, stating that " 3 6 U .S .C . 121 provides the
American Battle M onum ents Com m ission with responsibility for m aintaining m ilitary cem eteries
in foreign countries. . . . ”
^ h e scant legislative history o f the provision indicates that Congress intended to “ make the .
Findings o f the boards not subject to review by other Governm ent departm ents.” S. Rept. No. 788,
82d C ong., 1st sess. 2 (1951).
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In these circumstances, we think that the President lacks the power of review
over a decision made by the Secretary o f the Army because § 581.3(0(2)
effectively precludes him from doing so.4 It is a generally accepted principle
that courts will review and set aside actions taken by the military not in accord
with their own regulations. See, e .g ., P eavy v. Warner, 493 F. (2d) 748, 750
(5th Cir. 1974). Although a departure inuring to the benefit of Mrs. Slovik
would probably not be subject to judicial review, we believe that the general
principle is fully applicable.5
Concluding, as we do, that the President may not exercise review over the
Slovik case, the question arises whether he might nevertheless request the
Secretary of the Army to reconsider his decision or to remand the case to the
Board for further consideration. It is certainly arguable that the President’s
general supervisory power over the execution of the laws under Art. II, § 3, of
the Constitution, as well as his power as Commander-in-Chief, would be
sufficient to sustain his taking some position in this matter. We do not,
however, think that this supervisory power is sufficient to permit him to order
reconsideration o f the matter so long as 32 CFR § 581.3(f)(2) is effective. We
reach this result because such an order would effectively constitute Presidential
intrusion into a quasi-adjudicatory procedure different only in degree from his
attempting to review the Secretary’s decision on the merits.
The President is, o f course, free at any time to comment on the merits of
decisions made by his subordinates. W hether to do so in a specific situation
does not pose a legal question p e r se, but we tend to doubt the propriety of his
making any statement on the merits of the Secretary’s decision that would in
any way compromise possible defense o f that decision by this Department in
connection with any judicial review that might be sought by Mrs. Slovik. Our
review o f the case, limited to an analysis of the Board’s opinion, indicates to us
that its decision could easily withstand judicial review under the narrow scope
of review given to courts in these m atters.6 The President would not be
precluded from expressing sympathy for Mrs. Slovik’s situation, which was
expressed by the Board itself.
III. The Pardon Power
Another source o f authority potentially available to the President is the
pardon power vested in the President under Art. II, § 2, cl. 1, o f the
Constitution. In the circumstances o f this case, a threshold question arises as
4W e do not address the question w hether the Secretary o f the Arm y m ight am end the governing
regulation so as to provide for Presidential review of som e or all of these cases.
3W e note that were the President thought to have the pow er to review such decisions, a procedure
to effect it would most probably have to be established to avoid raising grave questions concerning
judicial review. This is so because courts will not review decisions that are thereafter subject to
revision by the Executive branch. See, Chicago & Southern Air Lines, Inc. v. Waterman S.S.
Corp., 333 U .S. 103, 113-14 (1948). An established procedure would have to assure reviewing
courts that a decision before them for review was no longer subject to revision by the President.
^ h e articulated standard of review o f such m atters is for arbitrariness or capriciousness. See.
Weiner v. United Slates, 148 Ct. Cl. 445 (I960).
372
to whether the President may issue a pardon posthumously. Because this
question has never been resolved judicially and the power has been exercised
posthumously only on one occasion (apparently inadvertently), we think it
prudent to dispose o f the question o f its use in this case on a narrower ground.7
Thus, we turn to the question whether, assuming the President were to pardon
Slovik, the effect of that pardon would be to restore to Mrs. Slovik the right to
payment of her late husband’s insurance policy despite 38 U .S.C . § 711.
Prior Attorneys General have generally taken the position that, while a
pardon relieves the offender of all disabilities imposed by way of punishment, it
does not relieve an offender o f disabilities that attend a conviction. Thus,
Acting Attorney General Davis concluded that a statute forbidding the
appointment as a naval officer of any person previously dismissed from the
naval service by sentence o f a court-martial did not impose a punishment on
such an officer but rather should be viewed as a qualification for appointment
that could not be affected by an exercise o f the pardon power. 31 Op. A .G.
225, 226-30 (1918). See also 39 Op. A .G . 132, 134-35 (1938); 36 Op. A .G .
193 (1930); 22 Op. A .G . 36 (1898).
Applying the reasoning of these prior opinions to the present case, it is our
opinion that § 7 1 1 , insofar as it prevents the payment of insurance proceeds
where the insured was executed pursuant to a criminal sentence8 does not
constitute a punishment. Rather, as copiously detailed in Simmons v. U nited
States, 120 F. Supp. 641 (D. Pa. 1954), the denial of insurance benefits to
persons executed as punishment for crimes represents nothing more than
Congress’ recognition o f a longstanding public policy in commercial insurance
of excluding from risks covered by life insurance the risk that the insured will
be executed for crime. In Simmons, a beneficiary of an NSLI policy sought to
recover where the insured had been executed by a State for murder. The court,
in our view, correctly described the applicable provision of what is now § 711
as involving a contractual exclusion o f risk in recognition of prevailing public
policy in this area o f the law. We do not think that the pardon power reaches an
exclusion or disability that is imposed not as punishment for crime committed
but to fulfill a readily identifiable public policy.
L eon U lm an
D eputy A ssistan t A ttorney G eneral
Office o f L egal Counsel
’Recently, the D eputy Attorney G eneral advised the Counsel to the President that the Departm ent
o f Justice did not think the President could grant a posthum ous pardon. O ur own research indicates
that there are conflicting internal departm ental m em oranda on this question and that none can be
said to resolve the question definitively.
8W e do not address the question w hether denial o f such benefits to a deserter would constitute a
punishm ent because it is unnecessary to do so to dispose o f this case.
373