The Hiss Act and Its Application to the Military

Author:Captain Lee M. McHughes


Public Law i69 of the Eighty-third Congress was enacted on September 1, 1954.l It was a direct outgrowth of the famous Alger Hiss case,' and thereby became known as the Hiss Act.

Aleer Hiss was convicted in federal court on January 21, 19E0, an two counts of perjury.' He preriously had testified before a federal grand jury in December of 1948 that he had not seen the farmer Communist Whittaker Chambers after July 1, 1937. and that neither he nor his wife had turned oyer any documents of the federal government to Chambers or any other unauthorized person.* When that testimony, which related to a period during which he was in the service of the federal government, was proved false, his con.iction for perjury resulted.

If it were not for the Hiis Act, Alger Hiss would have eventually become eligible for an annuity based upon his past federal service.5 It was this possibility that seems to have triggered the congressional activity which resulted in enactment of the act. A majority of Congress was apparently united in the belief that it was intolerable to grant retirement benefits to federal officers and employees who brake faith with the Government. This senti'This article WBP adapted from B theais presented to The Judge Advocate General's School. U. S. Army, Charlatterville, Virginia, while the author was B member of the Kinth Career Course. The opinions and ~ondusion~ presented herein are those of the author and do not neewsmiiy representthe WBI of The Judge Advocate General's School or any other governmental agenes [Ediior's Sote. The reader should carefully note that thli article vas uriffen p n ~ r to the pssnage of the amendments to the Hian Act in the firs J ~ S P I D ~ of the 87th Cangre~~.

Pub L. 81-299. 87th Cang., 1st Seas. iSept. 26, 10611.1

** SAGC, U. S. Army; Judge Advocate Divimn. Paris Office, Headquarters United States Army, Communications Zone, Europe; LL.B, Loyala University (Sew Orleans) ; Member of the Louisiana Bar.

'68 Stat. 1142 (1954). as amended. 5 U.S C !I 2281-2288 i19581. 'Cook. The Cnflniihed Storr of Aizer Hiss 11968)

. .

'Hirs was tried in the United States District Court for the Southern District of New York. The canvietion was affirmed on appeal. United Statea Y. Hiss, 185 F.2d 822 (2d Or. 1950) A motion far B new trial was

denied in United States Y. Hmr, 101 F. Supp. 128 1S.D. K.Y.

1952). ard.

201 F.Zd 312 (2d Clr 1963).

'Cook, op. ait. ~apia

note 2. at 1-20,iHranngs on H R . 1289, 9901, 6299, 6940. 7001. 7582, 7415. 8081. 8547,and BliO Betow the H w s e Commtfier on Past Once ad Civil Srrvioe, 88d Cang., 2d Seal. 28 (1954).100

11618 67

ment is clearly set forth in the report an the bill ahlch became the Hias Act:

The purpo~e of this IeLiiIarion IS TO prahlblt Federal snnultm or retired pay to per~anr aha commit offenses which I" effect e~nsfi~ute

* I U I _ . .

In general, thir legislatian nil1 prohibit the award or grant. after date of enactment, of any Federal annuity or retired pay to any indi-vidual eanvieted of specified crimes 8s ret iarth ~n the Cr1rrm.1 Code istrict of Columbia Code It wli sl~od pa) for an) person uho reiuiei onon to appear, ieitifg, or produce anyre B Federal grand jury or court or before any cangreriianal committee with reaped to his prerent or former duties as an officer or employee of the United Ststea.

In B broader aenie, this legislatian will exercise the greatest pouer and influenee to clear the mora! climate in ahich The business of the Vnited States is transacted and to improve the ethical conduct of those individuals. both in and outride oi the Gassmmsnt, aha tranraet iuch burinerr , . .'

The legislative history of the Hiss 4ct indicates that Congress was thinking principally in terms of eib-ilisn officers and employ-ees. However, the act also was made apeeifically applicable to members of the Armed Forces.

Many problems have arisen concerning the circumstances under which the Hiss Act will operate to preclude payment of retired pay ta military personnel, particularly those convicted by courts-martial In addition, news articles concerning the act haw brought its existence and possible ramifications to the attention of most militsr- personnel, as a result of which, local judge advocates are beginning to receive numerona inquiries about the act.' However, most of the material concerning the act is not readily available to jiidge advocates; and there 1s no exhaustive study of the act to which reference can be made

It is the purpose of this article. therefore. to provide an analysis of the Hiss Act as it relates to military personnel who are con- 'H R. Rep Pa 2438, 83d Care, 2d Seis. 4 (1564)

.Examplei ai such srticlei may bp found in the Army Yaw Air Force Journal, June 13, 1960. p. 6, ed1. 1-4: Arrry Sevy Air Force Journal, Oet 22, 1960. p 1, ~01s. 3 and 4

.For B brief dincuinan of the act. see Kratochuil, The Appiieabiiity oi itme Xias Act to Person8 Canaicieci b? CaJAG Buiietm July 1565, Yo1 1. So. 3, p 368 *GO L:IIB


victed by courts-martial; and, also, to consider its validity as a public policy.


Only five of the ten sections of the Hi35 Act are Pertinent to this paper and will be discussed herein.0 The verbatim text of these sections are set forth in an appendix at the conclusion of the article.

Sections 1 and 2 of the Hiss Act specifically provide the circumstances under which federal annuities or retired pay will be denied. The basis for denial under section 1 i3 the conviction of any one of the various offenses enumerated in each of four subsections. The basis for denial under aection 2 is cammisaion or omission of m y one of several acts (not necessarily amounting to criminal offenses) specified therein. Each section provides, with one exception contained in section 2, that if the conviction of the offense or commission or omission of the act occurred ''prior to, on, or after" the date of enactment of the Hiss Act, neither the person concerned nor his survivor or benefician- shall receive any annuity or retired pay for the period subsequent to the Conviction or the cornmission or omisiian of the act, or the date of enactment of the act, whichever is later.

Section 4 provides that a person who is denied his annuity or retired pay under section 1 or 2 will again become entitled to receive such benefits upon the date the Preaident grants a pardon for such offense or act.

Section 6 defines the terms "officer or employee of the Govern-ment," "annuity" and "retired pay" a8 used in the Hiss Act.l'

Section 8 provides that a member of the military who is deprived of retired pay pursuant to the Hiss Act may be dropped

'Sections not dircusied are: section 3 (monies paid by perrons towards their retirement benefits shall be returned if the act is found to apply) : section 5 (accountable officere af the federal government are not rerpannihle for paymente made eantrarg to the act, d they wave made in duo eoum and without nepiiieneel i Section 7 (the act daeb not restrict authority under other lswe to deny OT withhold benefits) : aeetion 8 (standard separability provision); and Section 10 (amends the federal criminal statute af limits. tlans, 18 U.E.C. 6 3282 (1968))

from the roll8 by the Pre3ident."


Several decisions of the Comptroller General of the rnited States and numerous opinions of The Judge Advocates General of the Armed Forces (particularly the opinions of The Judge Advocate General of the Army) are the principal sour'ce~ of information concerning the Hiss .kt as I t relates to military personnel who are conricted by courts-martial. The Attorney General has, ta date, written no opinions on the act There has been, however, one federal court decision ohich involved section 2 of the act.'?

The Hiss Act prohibits the expenditure of appropriated funds under certain circumstances. Accordingly, under the provisions of the Budget and Accounting Act of 1921, the decisions of the Comptroller General are binding on the executive branch of the federal government.13

The term "snnuity" 18 50 defined as to relate only to endmn officer9 and employee?.

Horewr. the term "retired pay'' is defined as including "retired pay, retirement p8y. retainer p ~ y , m equivalent pay lother than any benefit3 provided vnder ISVI adminiatered by the Yeteians Adminisrrafionl. payable under rbe l a m of the rnmted State?" i o any of the perianr set forth in rhe woted part of the definitim af "officer or employee of the United Stare?, ' but that "the term 'retired pay' dcea not include the retired pa', retirement pas, retainer pau, or equivalent pau of any peraon to ahom any iueh pay hsr been awarded or grantee prm to enactment of the set innofar as II concerns the conviction of an offense or ~ o r m i s m n of an act ser forth in reetions 1 and 2 ahich occurred prior ro the enact-er.t of the art

The definition af "retired pay" doer not include ~ e ~ e r s n c i pay iuthariied

bI IO us c. 3 1212 ,1958). 36 DWS. comp. en. 293 (isw

The provismn concerning "retired PRY'' is the on15 provman of the Hi%% Act which specifically exempts certain per~anr from having the act apply to them. It contemalstei. for examde, a rerim uho wsi auarded or prantcdB federal anouw retired pay +or ro September 1. 1954, and who. aim prior to that date, committed an offense et forth ~r.seetion 1 af the act The ieeidative history of the act indicates rhir exception u z s made becalire svih pereons might be considered to have a vested right in their annuity or retlred pay and could not legally be degrived of it. Hearings on H R . 2235. 8801. 5egq mi0 7002 1981 7116 8092 6517 nnd 8712 Briore the H o u ~

C m m t -

-'Steinberg v United Stater 143 Ct Ci. 1, 163 F. Supp. 590 (18561.

Research has failed to disclose ahr ~ppl2e~nonfar a ,rat of esrtlararl TO the

Supreme Court of the Unitad States in rhii case

"62 Stat 20 11@21. as amended. 31 us C. e...

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