Selected Opinions - Military Affairs, J.A.G.S. Text No. 9
434
SELECTED OPINIONS-MILITARY AFFAIRS J A. G. S. TEXT NO.9 The Judge Advocate General's School ANN ARBOR, MICHIGAN
Transcript of Selected Opinions - Military Affairs, J.A.G.S. Text No. 9
Selected Opinions - Military Affairs, J.A.G.S. Text No. 9The Judge Advocate General's School
ANN ARBOR, MICHIGAN
SELECTED OPINIONS-MILITARY AFFAIRS
U5, The
of
Prepared for instructional purposes only,
JAGS TEXT No • 1
JAGS TEXT No. 2
*JAGS TEXT No. 6
JAGS mT No. '7
MILITARY JUSTICE Comments on common errors and irregulirities in court-martial procedure.
MILITARY AFFAIRS S,elected materials in the bibliography ~ proce dure and substantive law of military affairs.
WAR POWERS AND MILITARY JURISDICTION Introduction to military jurisdiotion and 1ul orientation in the field of military l~~.
GOVERNMENT CONTRACTS The prinoiples and praotioe relating to govern ment oontraots.
CASEBOOK • GOVERNMENT CONTRACTS A companion volume to JAGS TEXT No. 5 oont~ining edited oases on government oontraots.
LAW OF LAND WA:RF~lll Oommentary on tHe rules of land warfare.
CLAIMS B¥AND AGAINSrr THE GO'VlIRNMENT Prinoiples, statutory provisions and prooedure relating to Army tort ola1msq
SELEO~D OPINIONS " MILITARY AFFAIRS' Companion volume to JAGS TElCT No.3, oonta'ining current seleoted opinions of the Military Affairs DiviSion, Off1oe of The Judge Advocate General.
Publioation disoontinued.
TERMINATION OF GOVERNMENT CONTRACTS Legal, prooedural and fisoal prinoiples involved in the termination of government contracts', (In oourse of preparation.)
stUdents while in attendanoe.
'FOREWORD
This text is a collection of op~m.ons of the Military Affairs Division, Office of The Judge Advocate General, which are currently used in the progrrum of instruction in Military Affairs at this School. The opinions have been selected to illustrate the practical application of certain substantive principles discussed in the textbook on Military Affairs, JAGS Text No.3, and the eoUeetion constitutes a supplemental volume. The opinions are arranged in progressive order. The subjects covered and the scheme of development are indicated in the Table of Contents whieh follows.
The use made of these op~n~ons is believed to be unique and to offer advantages not found in the methods of case study usually employed in law schools. Problems based on the opinions are assigned to the students for individual research and prepara tion of solution. The solutions are presented orally in seminar groups, several different problems relating to the same general subject matter being presented by different students at one sem inar session. Following seminar discussion by the students, the opinions are distributed as approved solutions.
The saminar method has the advantage of giving the student more' of a working fruniliarit-y with the statutes, Army regula tions and digests, than could be derived from studying the opinions alone. At the same time, it affords actual experience in the solution of problems with the tools avai lable to judge advocates in the field.
The group of opinions used for seminar purposes is not static. ~lliile many of the older opinions are retained because of' the valuable discussion of' fundamental principles contained therein, recent opinions of the Military Affairs Division are constantly addod to roflect thG problems currently arising in the field. Becauso of the changing character of the collection, distribution of tho solected opinions is limited to students attending the 8chool.
EDWARD H. YOUNG, Colonol, JAGD,
Commandant.
The Judge Advocate General's School Uni ted 8ta te s Army Ann Arbor, Michigan 1 February 1944.
SELECTED OPINIONS IN JvIILITARY AFFAIRS
TABLE OF CONTENTS
PimT I - ARl'1Y PERSONiTEL
Appointment - acceptance and oath of office entry on active duty. ' SFJGA 2100L~51,
14 Se;'tembeT 1942
Appointment - constructive accentanoe - substantial com:'Jliance with orders o SFJGfi 1943/4045, 2 5 ~1arch 1943
Authority to ap;Joint - President and -Congress. SPJru~ 1943/4619, 1 April 1943
Posthumous appointment (act 28 July 1943) - comple tion of course of training - action by Secretary of Hal' on recommendation. SPJGA 210 41,0
8 September 1942
Posthu.rnous appointment (act 28 July 1942) - persons in military or naval service. SPJGk .333.5, 10 September 1942
Appointment in Officers Reserve Corps and AUS without component - active duty service S8rvlce Extension Act of 1942, SFJGA 1943/4798, 10 lipri1 1943.
Appointments in Air Corps Reserve - Flight Officer Rct of 1942. SPJGA 1942/5961, 18 December 1942.
De ~ officer - entry on active duty in erron eous grade. SFJGA 1942/5673, 1 December 1942.
A-ODointment in l""US wit'hout component - general officer-s - a--'pointment not vacHted by relief from active ciuty. SPJGh 210./i-51, 8 July 1942.
Relative rank - factors for determining when date of TallJe is the Sa!'18. SPJGA 210/725, 21 Augupt 1942.
'JAGS 9/1 ,
I"lll. 102/2
Nfl. 106/2
Ell. 112/2
I:1A 111/2
Hl~ 110/2
HI,. 124/2
Nih 108/2
MP. 113/2
w~ 120/2
.Mi~ 107/2
-----""" JAGS 9/2
Date of rank - previous service in'same or higher grade- Re~lar Army officers recalled to active duty. SPJGli. 210.725, 11 June 1942. Mil. 117/2
Promotion - acceptance and execution of oath .. act 14 October 1942 .. vacation of original appoint ment. SPJGA 1942/4845, Ih October. 1942. , MA 3L/3
Q~ . '
~ promotion - assumption of advanced rank on mistake of fact. SPJGA 1943/7783, 11 June 1943 . MA 173/2
De facto promotion - color of title, SPJGA i943/8114 19 June 1943. MA.174/2
C. COIn!lllssio!1ed offic.ers .;.. separation from service.
Retirement of Regular Army officers - application for retiremeItt after thirty years' .servi'ce - executed retirement orders. SPJGL 210.85, 14 May 1942 MA'105/2
Retirement of Regular Army officers - advanced rank on retl!rement. SFJGli. 210.851, 12 Hay 1943. NiL 114/2. .
Retirement pay benefits - office~~s of AUS other than Regular .J~rmy officers.,.. incapacity for unlimited activ!i3 duty but not for limited 'active duty' 'with supply arms and services. SPJGA 210.455, 2 September 1942. MA 113/2
Discharge - summary discharge w:itl;lOut honor power of President. 'SPJGA 210.801, 31 August 1942. r!J1. 116/2
Discharge '- Reserve officers .. inefficiency (sec~ 74£, AR 140~5) - executed order of discharge. S?JGL 326.21, 4 May 1942. . r·tIA 100/2
Resignation - limitations (In right to I'dthdraw prior to acceptance. SPJGA 1943/7488, 5 June 1943. Ill<. 165/3
Withdrawal of Federal recognition" National Gu~rd officers. SPJGL 1943/8291, ~6 June 1943 ~~ 166/2
-" )
Resignation ,for the good of the service - dismissal. SPJill, 1943/16195, 3 November 1943.
D. Enlisted men - enlistment------_ .._--.---.-~..--. Enlistment - oath of enlistment. SPJGt 342t28,
28 May 1942.
Constructive enlistment ~ submission to and exercise of military control, SPJG 220.451, 2 April 1942.
Constructive enlistment ~ submission to military control illegally exercised. .SPJGl. 325.34, 18 July 1942.
Enlistment of minors under age - consent of parents - discbarges of minors over e:tghteen suspended (act 16 September 1940). SPJG1. 1943/19499, 3 January 1944,
Induction - SeJ.ective Training and Service Lct of 1940 - point at which military jurisdiction is acquired.SPJGL 1942/5148, 4 November 1942,
Constructive enlistment - reporting for induction under mistake - amending records. 'SPJGL 1943/11007, 31 July 1943.
Registration for induction - Selective Training and Service Act of 1940. SFJGL 1943/3672, 12 MpTch 1943.
Inductees under Selective Training and Service L.ct . of 1940 - status•. SPJG;~ 1943/3052, 26 February
1943.
Authority to promote - posthumous promotions (act 28 July 1942-). SPJGl. 1943/2382, 7 February 1943.
Reduction - inefficiency - plenary power of com manding officer. SFJGL 220.26, 8 i~pril 1942
Reduction ... absence due to sickness j.ncurred in line of duty - illegal reduction. SPJGL 1943/368, 14 January 1943.
JAGS 9/3
MA 187/2
r.1Th 121/2
Mi~ 32/2
ML 33/2
Hi. 188/2
ML 177/2
Ml';. 96/2
Wi. 38/2
H:~ 123/2
ML 101/2
Mi. 118/2
F. En1.:!:st.?d mm.L'::-_J~LE.'J.?ara:tiCL1l. from SfLY;Cf,.
Retirement for length of service - executed retire ment orders. SPJGh 220.85, 1 September 1942 .. H:~ 104/~
Discharge - plenar;y q-nd limited, power.s ,of com manding officer. SPJGL 1943/7721;., 28 May 191,3.
Discharge - constructive discharge by acceptance of commission. SPJGF 1943/9781, 20 July 1943. HI. 176/2
Discharge - actual or constructive notice SPuGAo
1943/365, 12 January 1943" ." iv1'. -103/2 . I
G. En~isted F.len - Enlisted Reserve 8o~M
Enlistment -transfer of inductees under Selective Training and Service "'~ct of 1940.. SPJGJl. 2.20.456, 24 f..pril 1942. MIl. 126/2
Routine transfer of enlisted persoru1el prior to appointment in commissioned grade' ,.. statutory limitations., SPJGL 1943/10932, 5 ;·ugust 1943 .. , Nli~ 179/2
Warrant officers - duties to which,assignab1e. SPJG:. 1943/7729, 5 June 1943. rM~ 170/2
Lrmy NUrses - assimilated rank to that of commis .. sioned officers.· SPJili. 1944/54, 10 January 1944. - MI., 189/2
Warrant officers - Women's "'_rmy Corps - no author ity to appoint. - SPJGL 194.3/11276, lO,"·.ugust 191+3. VL 180/2
Enlisted specialists - pilots - effect of court martial sentence, on rating. SPJG/~ 1942/4.333, 19 September 1942. ML 122/2
PLRT II. - Pil.Y .:.lJD L~LOVl1.NC~$
Entitlement - acceptance of pay - unenforceability of waiver. SPJG:. 19Le3/.3861, 17 March 1943. NL~ 183/2
Ldditiona1 pay - aerial flights - authority compe-: tent to order, SPJG.". .241.19, 1 ., ugust 1942 •
.i·.dditione1 pay - parachute jumping - assignment in capacity requiring. SFJG:. 1942/6175, . 28 December 1942,
Ldditiona1pay soldier's medal continuity. SFJG:. 242.19, 3 September 1942.
Retirement pay - benefits extended to officers other than Regular ;_rm~T officers. SPJG.i·~" 1942/5913, 16 December 191,,2.
Leave of absence - entitlement. SFJG;. 1943/13735, 28 September 19/+3~ ,"
Forfeitures - sentence of court-martial - officer absent without leave (R.S •.0"1265) - absence due to venereal disease.' (act 17 Hay 1926). SFJGi. 1943/4171, 23" r:larch 1943. . "
ForfeitUTes - confinement and restoration to duty under suspended sentence of' dishonorable dis~ charge. SPJG"". 1943/6012, 21 .'.pri1 194.3'.
Forfeitures .. enlisted man absent vVlthout leave voluntary and culpable absence. SPJG"·. 242.2," 14 July 1942.
Forfeitures - monthly pay of company officers by. certain commanding bffice~s in time of war' ('1;] 104). SPJG~"o 1942/5987, 19 Decer'lber 1942.
Stoppages - ovorpa¥fficnts received on disallowance in General 'ccounting Office (act 26 May 1936) arrears to the United States (R.S. 1766). " SPJG£. 1943/6035, 17L.pri1 1943
.. "
, . ",
- \' .' . Allowances - rental.- what constitutes adequate.
quarters. SP.JGA: 1943/6585, 10 May 194.3. . ,'jw. i32/;
Allowances - uniform - entitlement. SPJGA 1943/13270, 17 September 1943.
Allowances _ travel - travel with troops'~ SPJGA 245.6, 11 September 1942•.
·l?P,.RT .'III - PERSONAL AFFAIRS
A. Dependents ot'enlisted men .. Servibemen's DeRendents A110~ Act (act 23 June 191*2). . ' .
Entitlement"" waiver of benefits. SPJGA"i9~2/4407, 24 Septembe~ 1942 • .. 'NIb. 140/~....
Termination of benefits - .. deeertion,- admjnistra tive determination. SPJGA 1943/j049, .27 Febr1.l ary 1943. !,,1ft 137/~..
Termination of benefits - imprisonment under .sen: terice of court-martial - sentence to bedishonor~ . ably discharged suspended. SPJGA~l942/4332".
'. .:, '
Dependent,s -,members of armed forces ~,vi0J,:¢., .SPJGi. . , .354.01, 4 August 1942.': .• ,.:.:. :MI~ 52/2
. "; :': :.... '. Dependents - Class A dependents - infideiit; of',·
wife - effective date of pavments. ..SFJGA., , ' 1943/928, ?lJ~nuaiY.19.4J-•. v . ,: ,,' :fum.' 138/2
Dependents .. Cl~ss k depend.ents det~'rmlriation of: , disputed marital status. SPJGA 291.1,28 July
1~42. M/i. 139/2 . . .. ..
Penalties - per.jury - accepting paYIri~h~·sto whi.6li ,"., not entitled .. jurisdiction of Department of' .. '. Justice. SPJGA 1942/5552, 24 November 1942. MA 141/2
JAGS 9/7
B. Dependents of commissioned officers - dishonorable' evasion oLJ·egaJ_ ;;d~j@L.;;f~12.1.ig:~tlQ.Ds 1JVI 2"3):--
Dey!ia1 of' marital relE,tionship .. duty to investi gate for improper receipt of allowance (;.,W 94). SPJGL 1943/3928, 26 March 1943,
Stepchildren - mOTa1 obligations. SPJGL 1943/2750, 12 Fobruary 1943.
Missing persons - transportation of effects (act 7 March 1942) - sa1~'unauthorized" SPJGf. 1943/ 3444, 9 March 19L~3,
~11issing persons - a1iotmonts of pay (act 7 I"larch 1942) - allotments of pay general1y~ SPJGL 1942/6062, 22 December 1942.
Deceased persons - delivory of effects to legal representativo (:.Td 112) - grant of letters. SPJGL 220.8'1l .• 22 Juno 19L~2.
Doceasec. pm·sons - delivery of effects to widow Cl:7 112) - burden of proof. SFJGi. 210.871, 22 ,~pri1 1942.,
Deceased persons - delivery of effects to widovf C.W 112) - conditions justifying withholding SPJGL 1943/3153, 3 March 1943.
Death gratuity (act 17 December 1919) - designa tion of beneficiaries - rights of wife and child. SPJG,'. 1942/4738 ~ 11 Octobor 1942.
Death gr8,tuity (act 17 December 1919) - rights of wife - waiver. SPJG;'. 247~ 4 September 1942.
Death gratuity (act 17 December 1919) - rights of child - designation of trustee - rights of' guardian. SPJGI. 1943/6639, 17 May 1943.
Deceased person.s - inquests (AW 113) and other administrative procecllrres - jurisdictions. SPJG;. 1942/4616, 6 October 1942.
ML 143/2
P;~RT IV '. LINE OF DUTY ;~rm OTHER BOLRD DETERMINLTIONS
Self-inflicted death - presumption against miscon duct ~ facts not wholely precluding alternative possibility. SPJGi~ 220..46,' 29 July 1942. N!.'). 70/3
Self-inflicted death - presumption against suicide gross misconduct. SPJGL 1943/653, 13'· January 194.3" IiI!'. 158/2
Self-inflicted .death - presumption against suicide mental .unsoundnoss ~ inactive duty status. SPJill. 194.3/6502,19·lt~ay 19i1-.3. M:. 154/2
Violation of civil law- la'ViT~ notdir,ectec1. toward individual safety- negligence" SPJGL 220.46, 2 June 1942.' M;~ 71/2
Violation of military orders - proximate cause. SPJGi. 1943/526, 8 January 1943-.
Violation of military ordors - deviation fr@~ proscribed route fOT private purposes - proxi mate causo. SPJGL 1942/5817, 11 December 1942, Mi. 75/.3
Disordorly conduct - engaging in affray - resisting arrest. SPJGf. 220.46, 12 IvJay 1942 • r,i!Il. 72/2
.\bsence without leave - not in 1:i,.rie of duty but not misconduct. SPJG;·. 220.46, 25 July 1942. Mi). 78/2
Relations unconnected with the service - rivalry over affections of woman. SPJGf. 210.46, 14 September 1942.
B. Roti!'ing Boards . Constitution of board ... mombership - proportion
of lino ahd modical offieers - members of previous illegally bonstituted board. SPJGL 334.6, .30 JunG 1942. NL 82/2
Lction by Presidont (R~ S" 1250) - approval of finding9 of board before dirocting retiroment app~_~_cc.donto officers other than of Rogular
i·..rillY. 0PJG;~ 210~85, 8 j~u8Ust 1942; SPJGA 1943/9514.0 14 J'uly 1943.. . Mil. 80/2,
4
7
Constitution of board - reconvened board - addi tion of new member. SPJGA 334.6, 24 July 1942.
Right to appear before board - waiver - setting aside approved findings. SPJGA 1942/4671, 8 October 1942; SPJGA 1942/4779, 14 October 1942.
Rights of officer ordered before board -'right to inspect records prior to hearing. SPJGA 1942/ 5555, 25 November 1942.
Disposition board - advisory character of findings. SPJGA 1942/5699, 3 December 1942.
Improper disbursement of public funds - finance officer - mistake of law. SPJGA 1943/3685, 1~ Mnrch 1943.
Loss of property of enlisted men delivered for safe-keeping - means of enforcing individual liability. SPJGli. 1943/6333, 14 Hay 1943.
Disability incurred in combat with enemy of the United States ... defining combat with enemy. SPJGA 1943/4880, 17 April 1943.
JAGS 9/9
DilA. 85/3
Mit 81/3,
MA 83/3
MA 87/3
HA 162/2
NIA 164/2
Nih 163/2
MEMORANDUM for 'fhe Judge Advocate General. .'
Subject; Right to decline o.ppointntent as officer in Army of the Un!ted ,~t6.tqs ,ufter entelZ iug upon ·duties .of office.'
1. By disposition form (AG 201 B:oone, Robert M.) dated Septem ber 4, 1942~ certain papers reh:.tive to the ntt~mpt of qaptain Robert 1\1[. Boone, 0...103687, ;to decline his appointment in the Army fbf the United I::>tntes after entering uponllcti'l1'e ,duty, were ,refor~ red for decision as to his present status.
2. It appears that RobertM,! :f'pp:n,ewas'appointed a captain in the Army of th® United Statesdn JW,lB 23,1942; that he entered upon active duty on J\U1e30, :t942,'and reported at Fort Benjamin Harrison, Indiana, 0.):). the followirlg day pursuant to' special orders of tho War Department datedJ~pe . ~'l ~ :t9~~ ~ that" upon arrival at that fort, he Was assigneq to. the FinapCE) Officer Replacement Pool for tra.ining, whe re he' r(3mainEld 1ll1tH ,Ju+y +7, ,On July 13, 1942, the War Department wr'8to (AG'I"20l:Boone" Robert Martin (6...23-42 )RQ) Captain Boone .. in :pertinent part, as follows:
. ,
Upon receipt .f this letter~ Captain Boone formally advised The Adjutat\,t General by letter dated July 17, 1942, and :i,nformally ad vised his commanding officer, that he was unable to accept his appointment because of his physical conditio!}. I:t appears that Captain Boone's or~gina1 application for appointment was a~tod upon, unfa,vorably because his physical e'xamina.tion· indicated that his l)eart action was very tapi~, that, at his own requ3st, he 1,11[0.5
'bV'ri:c~ :r(:wxamined, and that on bO,th ~occasi-ons his heart Section wa's found, t~ be,. nqrmal. 'iNpen he reported for duty on July 1, 1942, he signed a. statement tho,t he had not suffered s.ny illness or injury .since June 9, 1942, when he successfully passed his ,last final 'type physical'Etxamination• .An intervening physical examinationrnnde on July 1 indicated no physical defect or heart disease. A notation dated July 14, 1942, on his physical record nt Fort Benjamin Har ,rison, indicates' tlk"\. t an e Ie ctrocard:l.ogrDJll was tnkG:p on ,that date and thnt 4e we.s· orcJ,er,ed to' d~ty. It o.ppe[',rs that Captain Boone has not executeq an O[1~th of office ~nd thq.t hE!. ret~rJ;led his travel allowance to the Govermnent on July 1'7" 1942,.
I
-- I -_ -'
\ . "
"H' acts ,,' t he perf orm1S :).on reporting for quty G.nd ance -of official\du,tie~pur:s1.Ml-nt~to" pr-b,per orders. effectcda valid' O)ocoptancoby cOhd.:uct. Thl:3 written d0claratibn' 'of; his'-:int,,)ntibm, 'not';to:"tr-:ke -the .oath of 6ffi 00 could have no, .effoot upon' the' v(\.lidity' of his
-.,"1:.•
, I
, , (act-'Mo.y H5,: 1884';, .23 Stn.'t. 22;'5 1J'~S.G. '16,):' 'such .. execution 1s not tt,' c'ondiUO'h. procUdSrit- tbthe aocep
tance of the_ appointinon;t,'iI: * *.". ,. - '_'" In an o:i?i}iion (JAG 210:.451) dated April' 11, 1'923, it Wf'.S held that a lawful appointment ~annl)t be revoked by the appoiritee or the War Dop~:t":rtinept' Qf~r valid" Q.ccop'tance. "In thiit casoa. oiviIian waS . appointed and oormnis,sioned a $eoond '1 ie::ut'Emant' -in the Army on Octo ber 22" 1918
1 and rdPprted faT duty' on thn t date. - On' October 30 A
1918.. ~o stnted that ho could not accept his cornmiss~on. ,Aycording .1~,,~~o yvar 'Dopar'tme ~tpurported ~tb ie·Qnc.e'l' his "'appbin'tmont and com" ~~ssion. Tho -Judge 'Ad;vbco.te Gendrc'ct'-s o-pirlion 'ste,ted, in portinont
-~p,b.rt':<' -' !. - -, " " ' ',- - - - . - ' ..... ; .. . '\: . ~, ; .. ' ~ ...: . ,~
11 * * : * it appo_ar s tn'ci* v,pp;-intm(3nt \~~s ¥~e ,dn .O'~tober 2'2, :and thattfridor' that dPpchntn1ont)lr.O'No!ll.
, ro por'toa to tho COrmpD.ndini: G0nen~1 n.t Camp _K'oarney( :..~ . '.Cn~:iforn:l:a', for duty. -In' ,consequenco ,thebffico veste'd
'" ~" > '
. ! • ( r. _- ' ,~ ~ ,
- - (., '
-
MA 1~/4
4. I conclude that CLlpte>.in BoonG's appointment was accepted by his entry upon activo duty on June 30 and that. consequently, his later attempt to decline such appointrrent WEtS ineffective. For the' srune reason, the 1ettGr dat3d July 13, 1942, by which Cap tain Boone was directed to notify the War Dqm.rtment in the event he did not desire the appointment, cannot be construed as a rOVOCQ t~on'of the or~ginal appointment or as an indicntion thnt it had not .ecome effective.. It is my view that the c,ppointmcnt in this case rmy not lawf.ully be se~ aside on anythcory oi' i'rc,ud or mutual mistake beoo.usc it appears that o.t the time oi' his fI.ppointmont,both the Government and Captcdn Boono were oognizant ai" his physical oondi tion. ,
5. It is therei'ore rooommondod thElt thesepcpcrs be returned to The Adjutant Genoral by disposition i'orm antry, propared i'or tho signature of the Chief' of Division.. skting:
It is the opinion of this offico the t Captain Robo-rt Martin Boono, .-103687, is an officor in tho Army of' tho
Unitod ~tatGs by virtue of' his entry upon active duty on June 30, 1942, becf.\use such entry consti tutod an acceptnncc of' his appointment. It appoars f'rom tho ,inclosed pflpers and from the off'icors 201 file that flt tho time of' Boone's appointment. both…
ANN ARBOR, MICHIGAN
SELECTED OPINIONS-MILITARY AFFAIRS
U5, The
of
Prepared for instructional purposes only,
JAGS TEXT No • 1
JAGS TEXT No. 2
*JAGS TEXT No. 6
JAGS mT No. '7
MILITARY JUSTICE Comments on common errors and irregulirities in court-martial procedure.
MILITARY AFFAIRS S,elected materials in the bibliography ~ proce dure and substantive law of military affairs.
WAR POWERS AND MILITARY JURISDICTION Introduction to military jurisdiotion and 1ul orientation in the field of military l~~.
GOVERNMENT CONTRACTS The prinoiples and praotioe relating to govern ment oontraots.
CASEBOOK • GOVERNMENT CONTRACTS A companion volume to JAGS TEXT No. 5 oont~ining edited oases on government oontraots.
LAW OF LAND WA:RF~lll Oommentary on tHe rules of land warfare.
CLAIMS B¥AND AGAINSrr THE GO'VlIRNMENT Prinoiples, statutory provisions and prooedure relating to Army tort ola1msq
SELEO~D OPINIONS " MILITARY AFFAIRS' Companion volume to JAGS TElCT No.3, oonta'ining current seleoted opinions of the Military Affairs DiviSion, Off1oe of The Judge Advocate General.
Publioation disoontinued.
TERMINATION OF GOVERNMENT CONTRACTS Legal, prooedural and fisoal prinoiples involved in the termination of government contracts', (In oourse of preparation.)
stUdents while in attendanoe.
'FOREWORD
This text is a collection of op~m.ons of the Military Affairs Division, Office of The Judge Advocate General, which are currently used in the progrrum of instruction in Military Affairs at this School. The opinions have been selected to illustrate the practical application of certain substantive principles discussed in the textbook on Military Affairs, JAGS Text No.3, and the eoUeetion constitutes a supplemental volume. The opinions are arranged in progressive order. The subjects covered and the scheme of development are indicated in the Table of Contents whieh follows.
The use made of these op~n~ons is believed to be unique and to offer advantages not found in the methods of case study usually employed in law schools. Problems based on the opinions are assigned to the students for individual research and prepara tion of solution. The solutions are presented orally in seminar groups, several different problems relating to the same general subject matter being presented by different students at one sem inar session. Following seminar discussion by the students, the opinions are distributed as approved solutions.
The saminar method has the advantage of giving the student more' of a working fruniliarit-y with the statutes, Army regula tions and digests, than could be derived from studying the opinions alone. At the same time, it affords actual experience in the solution of problems with the tools avai lable to judge advocates in the field.
The group of opinions used for seminar purposes is not static. ~lliile many of the older opinions are retained because of' the valuable discussion of' fundamental principles contained therein, recent opinions of the Military Affairs Division are constantly addod to roflect thG problems currently arising in the field. Becauso of the changing character of the collection, distribution of tho solected opinions is limited to students attending the 8chool.
EDWARD H. YOUNG, Colonol, JAGD,
Commandant.
The Judge Advocate General's School Uni ted 8ta te s Army Ann Arbor, Michigan 1 February 1944.
SELECTED OPINIONS IN JvIILITARY AFFAIRS
TABLE OF CONTENTS
PimT I - ARl'1Y PERSONiTEL
Appointment - acceptance and oath of office entry on active duty. ' SFJGA 2100L~51,
14 Se;'tembeT 1942
Appointment - constructive accentanoe - substantial com:'Jliance with orders o SFJGfi 1943/4045, 2 5 ~1arch 1943
Authority to ap;Joint - President and -Congress. SPJru~ 1943/4619, 1 April 1943
Posthumous appointment (act 28 July 1943) - comple tion of course of training - action by Secretary of Hal' on recommendation. SPJGA 210 41,0
8 September 1942
Posthu.rnous appointment (act 28 July 1942) - persons in military or naval service. SPJGk .333.5, 10 September 1942
Appointment in Officers Reserve Corps and AUS without component - active duty service S8rvlce Extension Act of 1942, SFJGA 1943/4798, 10 lipri1 1943.
Appointments in Air Corps Reserve - Flight Officer Rct of 1942. SPJGA 1942/5961, 18 December 1942.
De ~ officer - entry on active duty in erron eous grade. SFJGA 1942/5673, 1 December 1942.
A-ODointment in l""US wit'hout component - general officer-s - a--'pointment not vacHted by relief from active ciuty. SPJGh 210./i-51, 8 July 1942.
Relative rank - factors for determining when date of TallJe is the Sa!'18. SPJGA 210/725, 21 Augupt 1942.
'JAGS 9/1 ,
I"lll. 102/2
Nfl. 106/2
Ell. 112/2
I:1A 111/2
Hl~ 110/2
HI,. 124/2
Nih 108/2
MP. 113/2
w~ 120/2
.Mi~ 107/2
-----""" JAGS 9/2
Date of rank - previous service in'same or higher grade- Re~lar Army officers recalled to active duty. SPJGli. 210.725, 11 June 1942. Mil. 117/2
Promotion - acceptance and execution of oath .. act 14 October 1942 .. vacation of original appoint ment. SPJGA 1942/4845, Ih October. 1942. , MA 3L/3
Q~ . '
~ promotion - assumption of advanced rank on mistake of fact. SPJGA 1943/7783, 11 June 1943 . MA 173/2
De facto promotion - color of title, SPJGA i943/8114 19 June 1943. MA.174/2
C. COIn!lllssio!1ed offic.ers .;.. separation from service.
Retirement of Regular Army officers - application for retiremeItt after thirty years' .servi'ce - executed retirement orders. SPJGL 210.85, 14 May 1942 MA'105/2
Retirement of Regular Army officers - advanced rank on retl!rement. SFJGli. 210.851, 12 Hay 1943. NiL 114/2. .
Retirement pay benefits - office~~s of AUS other than Regular .J~rmy officers.,.. incapacity for unlimited activ!i3 duty but not for limited 'active duty' 'with supply arms and services. SPJGA 210.455, 2 September 1942. MA 113/2
Discharge - summary discharge w:itl;lOut honor power of President. 'SPJGA 210.801, 31 August 1942. r!J1. 116/2
Discharge '- Reserve officers .. inefficiency (sec~ 74£, AR 140~5) - executed order of discharge. S?JGL 326.21, 4 May 1942. . r·tIA 100/2
Resignation - limitations (In right to I'dthdraw prior to acceptance. SPJGA 1943/7488, 5 June 1943. Ill<. 165/3
Withdrawal of Federal recognition" National Gu~rd officers. SPJGL 1943/8291, ~6 June 1943 ~~ 166/2
-" )
Resignation ,for the good of the service - dismissal. SPJill, 1943/16195, 3 November 1943.
D. Enlisted men - enlistment------_ .._--.---.-~..--. Enlistment - oath of enlistment. SPJGt 342t28,
28 May 1942.
Constructive enlistment ~ submission to and exercise of military control, SPJG 220.451, 2 April 1942.
Constructive enlistment ~ submission to military control illegally exercised. .SPJGl. 325.34, 18 July 1942.
Enlistment of minors under age - consent of parents - discbarges of minors over e:tghteen suspended (act 16 September 1940). SPJG1. 1943/19499, 3 January 1944,
Induction - SeJ.ective Training and Service Lct of 1940 - point at which military jurisdiction is acquired.SPJGL 1942/5148, 4 November 1942,
Constructive enlistment - reporting for induction under mistake - amending records. 'SPJGL 1943/11007, 31 July 1943.
Registration for induction - Selective Training and Service Act of 1940. SFJGL 1943/3672, 12 MpTch 1943.
Inductees under Selective Training and Service L.ct . of 1940 - status•. SPJG;~ 1943/3052, 26 February
1943.
Authority to promote - posthumous promotions (act 28 July 1942-). SPJGl. 1943/2382, 7 February 1943.
Reduction - inefficiency - plenary power of com manding officer. SFJGL 220.26, 8 i~pril 1942
Reduction ... absence due to sickness j.ncurred in line of duty - illegal reduction. SPJGL 1943/368, 14 January 1943.
JAGS 9/3
MA 187/2
r.1Th 121/2
Mi~ 32/2
ML 33/2
Hi. 188/2
ML 177/2
Ml';. 96/2
Wi. 38/2
H:~ 123/2
ML 101/2
Mi. 118/2
F. En1.:!:st.?d mm.L'::-_J~LE.'J.?ara:tiCL1l. from SfLY;Cf,.
Retirement for length of service - executed retire ment orders. SPJGh 220.85, 1 September 1942 .. H:~ 104/~
Discharge - plenar;y q-nd limited, power.s ,of com manding officer. SPJGL 1943/7721;., 28 May 191,3.
Discharge - constructive discharge by acceptance of commission. SPJGF 1943/9781, 20 July 1943. HI. 176/2
Discharge - actual or constructive notice SPuGAo
1943/365, 12 January 1943" ." iv1'. -103/2 . I
G. En~isted F.len - Enlisted Reserve 8o~M
Enlistment -transfer of inductees under Selective Training and Service "'~ct of 1940.. SPJGJl. 2.20.456, 24 f..pril 1942. MIl. 126/2
Routine transfer of enlisted persoru1el prior to appointment in commissioned grade' ,.. statutory limitations., SPJGL 1943/10932, 5 ;·ugust 1943 .. , Nli~ 179/2
Warrant officers - duties to which,assignab1e. SPJG:. 1943/7729, 5 June 1943. rM~ 170/2
Lrmy NUrses - assimilated rank to that of commis .. sioned officers.· SPJili. 1944/54, 10 January 1944. - MI., 189/2
Warrant officers - Women's "'_rmy Corps - no author ity to appoint. - SPJGL 194.3/11276, lO,"·.ugust 191+3. VL 180/2
Enlisted specialists - pilots - effect of court martial sentence, on rating. SPJG/~ 1942/4.333, 19 September 1942. ML 122/2
PLRT II. - Pil.Y .:.lJD L~LOVl1.NC~$
Entitlement - acceptance of pay - unenforceability of waiver. SPJG:. 19Le3/.3861, 17 March 1943. NL~ 183/2
Ldditiona1 pay - aerial flights - authority compe-: tent to order, SPJG.". .241.19, 1 ., ugust 1942 •
.i·.dditione1 pay - parachute jumping - assignment in capacity requiring. SFJG:. 1942/6175, . 28 December 1942,
Ldditiona1pay soldier's medal continuity. SFJG:. 242.19, 3 September 1942.
Retirement pay - benefits extended to officers other than Regular ;_rm~T officers. SPJG.i·~" 1942/5913, 16 December 191,,2.
Leave of absence - entitlement. SFJG;. 1943/13735, 28 September 19/+3~ ,"
Forfeitures - sentence of court-martial - officer absent without leave (R.S •.0"1265) - absence due to venereal disease.' (act 17 Hay 1926). SFJGi. 1943/4171, 23" r:larch 1943. . "
ForfeitUTes - confinement and restoration to duty under suspended sentence of' dishonorable dis~ charge. SPJG"". 1943/6012, 21 .'.pri1 194.3'.
Forfeitures .. enlisted man absent vVlthout leave voluntary and culpable absence. SPJG"·. 242.2," 14 July 1942.
Forfeitures - monthly pay of company officers by. certain commanding bffice~s in time of war' ('1;] 104). SPJG~"o 1942/5987, 19 Decer'lber 1942.
Stoppages - ovorpa¥fficnts received on disallowance in General 'ccounting Office (act 26 May 1936) arrears to the United States (R.S. 1766). " SPJG£. 1943/6035, 17L.pri1 1943
.. "
, . ",
- \' .' . Allowances - rental.- what constitutes adequate.
quarters. SP.JGA: 1943/6585, 10 May 194.3. . ,'jw. i32/;
Allowances - uniform - entitlement. SPJGA 1943/13270, 17 September 1943.
Allowances _ travel - travel with troops'~ SPJGA 245.6, 11 September 1942•.
·l?P,.RT .'III - PERSONAL AFFAIRS
A. Dependents ot'enlisted men .. Servibemen's DeRendents A110~ Act (act 23 June 191*2). . ' .
Entitlement"" waiver of benefits. SPJGA"i9~2/4407, 24 Septembe~ 1942 • .. 'NIb. 140/~....
Termination of benefits - .. deeertion,- admjnistra tive determination. SPJGA 1943/j049, .27 Febr1.l ary 1943. !,,1ft 137/~..
Termination of benefits - imprisonment under .sen: terice of court-martial - sentence to bedishonor~ . ably discharged suspended. SPJGA~l942/4332".
'. .:, '
Dependent,s -,members of armed forces ~,vi0J,:¢., .SPJGi. . , .354.01, 4 August 1942.': .• ,.:.:. :MI~ 52/2
. "; :': :.... '. Dependents - Class A dependents - infideiit; of',·
wife - effective date of pavments. ..SFJGA., , ' 1943/928, ?lJ~nuaiY.19.4J-•. v . ,: ,,' :fum.' 138/2
Dependents .. Cl~ss k depend.ents det~'rmlriation of: , disputed marital status. SPJGA 291.1,28 July
1~42. M/i. 139/2 . . .. ..
Penalties - per.jury - accepting paYIri~h~·sto whi.6li ,"., not entitled .. jurisdiction of Department of' .. '. Justice. SPJGA 1942/5552, 24 November 1942. MA 141/2
JAGS 9/7
B. Dependents of commissioned officers - dishonorable' evasion oLJ·egaJ_ ;;d~j@L.;;f~12.1.ig:~tlQ.Ds 1JVI 2"3):--
Dey!ia1 of' marital relE,tionship .. duty to investi gate for improper receipt of allowance (;.,W 94). SPJGL 1943/3928, 26 March 1943,
Stepchildren - mOTa1 obligations. SPJGL 1943/2750, 12 Fobruary 1943.
Missing persons - transportation of effects (act 7 March 1942) - sa1~'unauthorized" SPJGf. 1943/ 3444, 9 March 19L~3,
~11issing persons - a1iotmonts of pay (act 7 I"larch 1942) - allotments of pay general1y~ SPJGL 1942/6062, 22 December 1942.
Deceased persons - delivory of effects to legal representativo (:.Td 112) - grant of letters. SPJGL 220.8'1l .• 22 Juno 19L~2.
Doceasec. pm·sons - delivery of effects to widow Cl:7 112) - burden of proof. SFJGi. 210.871, 22 ,~pri1 1942.,
Deceased persons - delivery of effects to widovf C.W 112) - conditions justifying withholding SPJGL 1943/3153, 3 March 1943.
Death gratuity (act 17 December 1919) - designa tion of beneficiaries - rights of wife and child. SPJG,'. 1942/4738 ~ 11 Octobor 1942.
Death gr8,tuity (act 17 December 1919) - rights of wife - waiver. SPJG;'. 247~ 4 September 1942.
Death gratuity (act 17 December 1919) - rights of child - designation of trustee - rights of' guardian. SPJGI. 1943/6639, 17 May 1943.
Deceased person.s - inquests (AW 113) and other administrative procecllrres - jurisdictions. SPJG;. 1942/4616, 6 October 1942.
ML 143/2
P;~RT IV '. LINE OF DUTY ;~rm OTHER BOLRD DETERMINLTIONS
Self-inflicted death - presumption against miscon duct ~ facts not wholely precluding alternative possibility. SPJGi~ 220..46,' 29 July 1942. N!.'). 70/3
Self-inflicted death - presumption against suicide gross misconduct. SPJGL 1943/653, 13'· January 194.3" IiI!'. 158/2
Self-inflicted .death - presumption against suicide mental .unsoundnoss ~ inactive duty status. SPJill. 194.3/6502,19·lt~ay 19i1-.3. M:. 154/2
Violation of civil law- la'ViT~ notdir,ectec1. toward individual safety- negligence" SPJGL 220.46, 2 June 1942.' M;~ 71/2
Violation of military orders - proximate cause. SPJGi. 1943/526, 8 January 1943-.
Violation of military ordors - deviation fr@~ proscribed route fOT private purposes - proxi mate causo. SPJGL 1942/5817, 11 December 1942, Mi. 75/.3
Disordorly conduct - engaging in affray - resisting arrest. SPJGf. 220.46, 12 IvJay 1942 • r,i!Il. 72/2
.\bsence without leave - not in 1:i,.rie of duty but not misconduct. SPJG;·. 220.46, 25 July 1942. Mi). 78/2
Relations unconnected with the service - rivalry over affections of woman. SPJGf. 210.46, 14 September 1942.
B. Roti!'ing Boards . Constitution of board ... mombership - proportion
of lino ahd modical offieers - members of previous illegally bonstituted board. SPJGL 334.6, .30 JunG 1942. NL 82/2
Lction by Presidont (R~ S" 1250) - approval of finding9 of board before dirocting retiroment app~_~_cc.donto officers other than of Rogular
i·..rillY. 0PJG;~ 210~85, 8 j~u8Ust 1942; SPJGA 1943/9514.0 14 J'uly 1943.. . Mil. 80/2,
4
7
Constitution of board - reconvened board - addi tion of new member. SPJGA 334.6, 24 July 1942.
Right to appear before board - waiver - setting aside approved findings. SPJGA 1942/4671, 8 October 1942; SPJGA 1942/4779, 14 October 1942.
Rights of officer ordered before board -'right to inspect records prior to hearing. SPJGA 1942/ 5555, 25 November 1942.
Disposition board - advisory character of findings. SPJGA 1942/5699, 3 December 1942.
Improper disbursement of public funds - finance officer - mistake of law. SPJGA 1943/3685, 1~ Mnrch 1943.
Loss of property of enlisted men delivered for safe-keeping - means of enforcing individual liability. SPJGli. 1943/6333, 14 Hay 1943.
Disability incurred in combat with enemy of the United States ... defining combat with enemy. SPJGA 1943/4880, 17 April 1943.
JAGS 9/9
DilA. 85/3
Mit 81/3,
MA 83/3
MA 87/3
HA 162/2
NIA 164/2
Nih 163/2
MEMORANDUM for 'fhe Judge Advocate General. .'
Subject; Right to decline o.ppointntent as officer in Army of the Un!ted ,~t6.tqs ,ufter entelZ iug upon ·duties .of office.'
1. By disposition form (AG 201 B:oone, Robert M.) dated Septem ber 4, 1942~ certain papers reh:.tive to the ntt~mpt of qaptain Robert 1\1[. Boone, 0...103687, ;to decline his appointment in the Army fbf the United I::>tntes after entering uponllcti'l1'e ,duty, were ,refor~ red for decision as to his present status.
2. It appears that RobertM,! :f'pp:n,ewas'appointed a captain in the Army of th® United Statesdn JW,lB 23,1942; that he entered upon active duty on J\U1e30, :t942,'and reported at Fort Benjamin Harrison, Indiana, 0.):). the followirlg day pursuant to' special orders of tho War Department datedJ~pe . ~'l ~ :t9~~ ~ that" upon arrival at that fort, he Was assigneq to. the FinapCE) Officer Replacement Pool for tra.ining, whe re he' r(3mainEld 1ll1tH ,Ju+y +7, ,On July 13, 1942, the War Department wr'8to (AG'I"20l:Boone" Robert Martin (6...23-42 )RQ) Captain Boone .. in :pertinent part, as follows:
. ,
Upon receipt .f this letter~ Captain Boone formally advised The Adjutat\,t General by letter dated July 17, 1942, and :i,nformally ad vised his commanding officer, that he was unable to accept his appointment because of his physical conditio!}. I:t appears that Captain Boone's or~gina1 application for appointment was a~tod upon, unfa,vorably because his physical e'xamina.tion· indicated that his l)eart action was very tapi~, that, at his own requ3st, he 1,11[0.5
'bV'ri:c~ :r(:wxamined, and that on bO,th ~occasi-ons his heart Section wa's found, t~ be,. nqrmal. 'iNpen he reported for duty on July 1, 1942, he signed a. statement tho,t he had not suffered s.ny illness or injury .since June 9, 1942, when he successfully passed his ,last final 'type physical'Etxamination• .An intervening physical examinationrnnde on July 1 indicated no physical defect or heart disease. A notation dated July 14, 1942, on his physical record nt Fort Benjamin Har ,rison, indicates' tlk"\. t an e Ie ctrocard:l.ogrDJll was tnkG:p on ,that date and thnt 4e we.s· orcJ,er,ed to' d~ty. It o.ppe[',rs that Captain Boone has not executeq an O[1~th of office ~nd thq.t hE!. ret~rJ;led his travel allowance to the Govermnent on July 1'7" 1942,.
I
-- I -_ -'
\ . "
"H' acts ,,' t he perf orm1S :).on reporting for quty G.nd ance -of official\du,tie~pur:s1.Ml-nt~to" pr-b,per orders. effectcda valid' O)ocoptancoby cOhd.:uct. Thl:3 written d0claratibn' 'of; his'-:int,,)ntibm, 'not';to:"tr-:ke -the .oath of 6ffi 00 could have no, .effoot upon' the' v(\.lidity' of his
-.,"1:.•
, I
, , (act-'Mo.y H5,: 1884';, .23 Stn.'t. 22;'5 1J'~S.G. '16,):' 'such .. execution 1s not tt,' c'ondiUO'h. procUdSrit- tbthe aocep
tance of the_ appointinon;t,'iI: * *.". ,. - '_'" In an o:i?i}iion (JAG 210:.451) dated April' 11, 1'923, it Wf'.S held that a lawful appointment ~annl)t be revoked by the appoiritee or the War Dop~:t":rtinept' Qf~r valid" Q.ccop'tance. "In thiit casoa. oiviIian waS . appointed and oormnis,sioned a $eoond '1 ie::ut'Emant' -in the Army on Octo ber 22" 1918
1 and rdPprted faT duty' on thn t date. - On' October 30 A
1918.. ~o stnted that ho could not accept his cornmiss~on. ,Aycording .1~,,~~o yvar 'Dopar'tme ~tpurported ~tb ie·Qnc.e'l' his "'appbin'tmont and com" ~~ssion. Tho -Judge 'Ad;vbco.te Gendrc'ct'-s o-pirlion 'ste,ted, in portinont
-~p,b.rt':<' -' !. - -, " " ' ',- - - - . - ' ..... ; .. . '\: . ~, ; .. ' ~ ...: . ,~
11 * * : * it appo_ar s tn'ci* v,pp;-intm(3nt \~~s ¥~e ,dn .O'~tober 2'2, :and thattfridor' that dPpchntn1ont)lr.O'No!ll.
, ro por'toa to tho COrmpD.ndini: G0nen~1 n.t Camp _K'oarney( :..~ . '.Cn~:iforn:l:a', for duty. -In' ,consequenco ,thebffico veste'd
'" ~" > '
. ! • ( r. _- ' ,~ ~ ,
- - (., '
-
MA 1~/4
4. I conclude that CLlpte>.in BoonG's appointment was accepted by his entry upon activo duty on June 30 and that. consequently, his later attempt to decline such appointrrent WEtS ineffective. For the' srune reason, the 1ettGr dat3d July 13, 1942, by which Cap tain Boone was directed to notify the War Dqm.rtment in the event he did not desire the appointment, cannot be construed as a rOVOCQ t~on'of the or~ginal appointment or as an indicntion thnt it had not .ecome effective.. It is my view that the c,ppointmcnt in this case rmy not lawf.ully be se~ aside on anythcory oi' i'rc,ud or mutual mistake beoo.usc it appears that o.t the time oi' his fI.ppointmont,both the Government and Captcdn Boono were oognizant ai" his physical oondi tion. ,
5. It is therei'ore rooommondod thElt thesepcpcrs be returned to The Adjutant Genoral by disposition i'orm antry, propared i'or tho signature of the Chief' of Division.. skting:
It is the opinion of this offico the t Captain Robo-rt Martin Boono, .-103687, is an officor in tho Army of' tho
Unitod ~tatGs by virtue of' his entry upon active duty on June 30, 1942, becf.\use such entry consti tutod an acceptnncc of' his appointment. It appoars f'rom tho ,inclosed pflpers and from the off'icors 201 file that flt tho time of' Boone's appointment. both…
