[C. M. O. 67—1917]

may be included in any redistribution of the commissioned personnel in the various ranks and grades as authorized by the acts of Congress approved August 29, 1916, and May 22, 1917 (File No. 26521–221, J. A. G., Oct. 12, 1917).

ESCAPE OF CIVIL PRISONER.

A prisoner lawfully confined by a military government may be held by the use of such measures as may be reasonable and necessary. The imposition of punishment, as a result of trial for escaping or attempting to escape, is a measure recognized by the United States Army (Manual of Interior Guard Duty. (P. 17] U. S. Army, 1914, par. 279) and also by the Navy. It is a matter within the sound discretion of the proper officers of the military government whether that government will punish prisoners properly within its custody through the intervention of a judicial tribunal for attempting to escape, or whether it will punish them by more summary proceedings for such attempt, or whether it will award no punishment whatever, but instead will depend upon the deterrent effect of the risk of injury while in flight, all or any of these measures being resorted to only in connection with jurisdiction acquired by lawful custody and to the end of preserving custody through the effect of example or as an adjunct to the enforcement of internal discipline. The head of a military government may establish provost courts and confer jurisdiction as he deems proper (File No. 16870-47: 90, J. A. G., 8 Oct., 1917).

FLEET NAVAL RESERVE: SERVICE INCLUDED FOR TRANSFER TO.

Under the act of May 22, 1917, enlisted men of the Navy and Marine Corps who have served as temporary warrant or commissioned officers, upon reverting to enlisted status, are entitled to count the time they have served as temporary commissioned or warrant officers in computing the service required under the act of August 29, 1916, to entitle them to transfer to the Fleet Naval Reserve (File No. 7657-445: 2, Sec Nav., Oct. 5, 1917).

GENERAL COURT-MARTIAL PRISONERS: RESTORATION TO DUTY ON PROBA

TION.

The Department has issued the following instructions to commanding officers of naval prisons:

1. The attention of commanding officers of all naval prisons is directed to article 121 of the "Manual for the Government of United States Naval Prisons," as amended by the change of June 16, 1917, providing as follows:

In the case of men allowed to return to duty on probation the remainder of the prison sentence and the dishonorable discharge will be held in abeyance to be executed by their commanding officers at any time within the probationary period, provided their conduct is not satisfactory in every respect.

2. In order that men who are restored to duty on probation in accordance with the article quoted may not, upon reconfinement in case of misconduct while on probation, be deprived of the "good-time allowance" to which they became entitled under article 126 of the prison manual, commanding officers of prisons are directed to keep a careful and accurate conduct record of prisoners, to the end that such record may be noted by appropriate entry in current enlistment record showing the total [P. 18] period of approved confinement and the total period actually served in confinement together with good-time allowance forfeited, if any. If a prisoner has earned “a restoration" of any "portion of lost good time," the amount thereof will also be shown. In other words, it is desired that probationers who misconduct themselves and are returned to a naval prison will serve in confinement not longer than would have been the case had the confinement in the first instance been continuous and unbroken, it being the Department's intention that, where the conduct in prison is excellent, the prisoner should serve not longer that two-thirds of the approved confine

[C. M. O. 67—1917]

ment. Accordingly, should a prisoner who has served with excellent conduct two-thirds of his approved confinement be restored to duty on probation, notation will be made upon the current enlistment record in such a case to show that his sentence has been fully executed so far as confinement is concerned.

3. The foregoing instructions are issued for the information and guidance of commanding officers in order that the cases of prisoners who are restored to duty on probation may, in case of reconfinement for misconduct, be uniformly dealt with in the administration of the article first above quoted (File No. 26267-178: 20, Sec. Nav., Nov. 7, 1917).

NAVAL DIGEST, 1916: ERROR IN.

Naval Digest, page 547, subparagraph 28, headed "Laws relating to retirement of officers of the Navy," cites an incorrect reference. The citation should be File No. 5460-32: 17, J. A. G., February 7, 1912, instead of File 26260-874, J. A. G., June 3, 1910, page 5.

The matter set forth under this heading is an excerpt from an opinion of the Judge Advocate General and must, in order to insure a complete understanding, be read in conjunction with the remainder of the context. The excerpt in question was quoted as being a part of an argument advanced to support the proposition that the laws "do not require that an officer must have served 45 years before he can be retired for age, but, on the contrary, indicate that there may be retirement for the single reason that an officer has attained the age of 62 years."

It is unfortunate that the excerpt from the above opinion which appears in the digest, standing by itself, would appear to support the further proposition that 45 years' service is, in itself and irrespective of age, a sufficient requirement for retirement.

The latter proposition was not sustained and is not sustainable.

It is regretted that Naval Digest, 1916, conveys an erroneous conclusion in the premises.

[P. 19] NAVAL RESERVE FORCE: PROMOTION WITHOUT EXAMINATION.

An enrolled member of the Naval Reserve Force who has been given a provisional rank may thereafter, either with or without being confirmed in such provisional rank, be given a higher provisional rank without examination. While the provisions of the act of August 29, 1916, requiring a particular kind of formal examination for those "appointed or commissioned" as officers of the Naval Reserve Force, or "promoted" to a higher rank therein, might, if standing alone, be broad enough to cover provisional assignments, yet when read in connection with the other provisions they clearly connote only permanent appointments (Op. Atty. Gen., Oct 20, 1917; File No. 28550-123:4, Sec. Nav., Oct 23, 1917).

PROBATION: MEN RESTORED FROM PRISON ON.

An action restoring a man to duty on probation with his return to prison to serve the unexecuted part of his sentence, or his summary dishonorable discharge, or both, hanging over him, does not preclude the man's trial by court martial for an offense committed while on probation, in case such appears preferable. Attention invited to C. M. O. No. 46, 1917, page 24.

PROMOTION: TEMPERAMENTAL QUALIFICATIONS FOR.

The fitness reports of an officer recently examined for promotion indicated that he "is irritable," that he "scolds and nags enlisted men," and that in dealing with enlisted men he "habitually expresses ill temper in his speech and manner." The Department took occasion to remark, in its action on the record of the examining board as follows:

"Such temperamental characteristics are most seriously detrimental to success and efficiency, both of the individual and of the organization to

[C. M. O. 68-1917]

which attached. They are regarded by the Department as strong evidence of disqualification for promotion, unless subsequent reports indicate their correction by the officer."

Inasmuch as the latter situation appeared to the Department to be true in the case of the officer being examined, the findings and recommendations of the board (that he be promoted) in this case were approved (File No. 262605156).

QUARTERS: assignment of.

Article 4511 (1), Navy Regulations, requires that the quarters permanently designated in accordance with its terms be occupied by the officers specified. The regulation is to be construed in the light of service conditions and admits of a temporary shift of duties or an assignment to an acting office, as the exigencies of the service may require, without necessitating confusing and impractical changes of quarters (File No. 26806–147, J. A. G., Oct. 23, 1917).

[P. 20] RETIRED NAVAL OFFICER: EMPLOYMENT OF, BY COMPANY MAKING NAVAL SUPPLIES.

A retired officer of the Navy may not act as director of a company furnishing naval supplies or war material to the Government, such employment coming within the prohibition of the act of June 10, 1896, 29 Stat. 361 (File No. 973670, Sec. Nav., Oct. 19, 1917).

SELECTIVE SERVICE LAW: EXEMPTION UNDER, CEASES WHEN.

One who, having been posted by the local board of the community in which he registered under the selective service law of May 18, 1917, secures exemption in due form because of his employment at the time of posting as a mechanic in the Naval Gun Factory, and who thereafter quits his employment in said factory and enlists in the Navy, will be discharged therefrom and will be instructed to report to his local board in order that he may fulfill his obligations under the law aforesaid, his said exemption ceasing to be effective when the cause therefor is removed (File No. 28798–202, J. A. G., Oct. 31, 1917).

C. M. O. 68-1917

[P. 1] Ensign Timothy F. O'Keefe, United States Naval Reserve Force, was tried by general court martial, on October 15, 1917, at the United States Navy Aeronautic Station, Pensacola, Fla., by order of the Secretary of the Navy, and found guilty of the following charges:

Charge I-Conduct to the prejudice of good order and discipline (three specifications).

Charge II-Drunkenness (three specifications).

Charge III-Absence from station and duty without leave (three specifications).

SENTENCE

"The court therefore sentences him, Ensign Timothy F. O'Keefe, U. S. Naval Reserve Force, to be dismissed from the United States naval service."

RECOMMENDATION TO CLEMENCY

The following unanimous recommendation to clemency was spread upon the record:

"In view of his inexperience in the service and of the need of trained officers in time of war, we recommend Ensign Timothy F. O'Keefe, U. S. Naval Reserve Force, to the clemency of the revising authority, and further

[C. M. O. 69-1917]

recommend that sentence be suspended for a period of one year, depending on his good conduct."

ACTION IN REVISION

The convening authority, on October 20, 1917, returned the record in the foregoing case with the statement that the findings of the court were not properly recorded in that the entire findings were not in the handwriting of the Judge advocate, and directed that the court reconvene for the purpose of properly completing the record. On October 27, 1917, the court reconvened and complied with the directions of the convening authority.

ACTION OF THE SECRETARY OF THE NAVY

The record in the foregoing case was referred to the Chief of the Bureau of Navigation, who recommended the approval of the proceedings, findings, and sentence.

The proceedings, findings, and sentence of the general court martial in the foregoing case of Ensign Timothy F. O'Keefe, [P. 2] U. S. Naval Reserve Force, were approved, and in conformity with article 53 of the Articles for the Government of the Navy (section 1624 of the Revised Statutes), the record was submitted to the President of the United States, with the recommendation that the sentence be confirmed.

ACTION OF THE PRESIDENT

On November 2, 1917, the President of the United States confirmed the sentence of the court in the foregoing case.

C. M. O. 69-1917

[P. 1] Assistant Surgeon Edward K. Tullidge, United States Naval Reserve Force, was tried by general court martial on September 4, 1917, on board the U. S. S. Sacramento, by order of the Commander Patrol Force, United States Atlantic Fleet, on the following charges:

Charge I.-Scandalous conduct tending to the destruction of good morals (nine specifications).

Charge II.-Conduct to the prejudice of good order and discipline (two specifications).

FINDINGS

The court found the first, second, third, and fourth specifications of the first charge "proved in part"; the fifth and ninth specifications of the first charge "not proved"; the sixth, seventh, and eighth specifications of the first charge "proved"; and the accused "guilty" of the first charge; the first specification of the second charge "not proved"; the second specification of the second charge "proved"; and the accused "guilty" of the second charge.

SENTENCE

"The court therefore sentences him, Assistant Surgeon Edward K. Tullidge, United States Naval Reserve Force, to be dismissed from the United States naval service and to be imprisoned in such prison or penitentiary as the Secretary of the Navy may designate for a period of five (5) years, and to perform hard labor during such confinement."

ACTION OF THE CONVENING AUTHORITY

On September 26, 1917, the convening authority placed an endorsement on the record, mentioning irregularities in the record as follows: (1) That in three instances it failed to affirmatively show that "neither the court, judge advocate, nor [P.2] the accused (counsel) had any further questions to ask the witness." (2) That it did not state for which party a member of the court was

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[C. M. O. 71-1917]

called as a witness, but that, not having been called as the first witness and the record sufficiently guaranteeing that he was a witness for the defense, this error lay in the keeping of the record and not in the actual facts of the case. (3) That it did show that one of the witnesses was asked to identify the accused. The endorsement of the convening authority further stated:

"Although the instances above are irregular they are not illegal. Under other circumstances the record might properly be returned to the court for proceedings in revision to correct the above-mentioned minor errors to conform with standard instructions for the keeping of the record. The errors do not indicate a carelessly kept record, however, as in such a long trial there were many chances to err, and the percentage of errors is agreeably small. In view of the small number of irregularities, in view of the importance of the case, and in view of the seriousness of the facts found proved the convening authority is of the opinion that every effort consistent with law and justice should be made to speedily bring these proceedings to the attention of the reviewing authority.

"The proceedings, findings, and sentence in the foregoing case of Assistant Surgeon E. K. Tullidge, United States Naval Reserve Force, are approved and in conformity with the provisions of article 53, Articles for the Government of the Navy, the record is respectfully referred to the Secretary of the Navy for transmission to the President."

ACTION OF THE SECRETARY OF THE NAVY

The Judge Advocate General referred the record in the foregoing case to the Chief of the Bureau of Navigation, with the opinion that the proceedings, findings, and sentence were legal. The Chief of the Bureau of Navigation concurred in the action taken by the convening authority.

On November 8, 1917, the proceedings, findings, and sentence of the general court martial in the foregoing case of Assistant Surgeon Edward K. Tullidge, United States Naval Reserve Force, were approved, and the New Hampshire State Prison, at Concord, N. H., was designated as the place for the execution [P. 3] of so much of the sentence as relates to confinement at hard labor. In conformity with article 53 of the Articles for the Government of the Navy (section 1624 of the Revised Statutes) the record was submitted to the President of the United States with the recommendation that the sentence be confirmed.

ACTION OF THE PRESIDENT

On November 10, 1917, the President of the United States confirmed the sentence of the court in the foregoing case.

C. M. 0.71—1917

[P. 1] Assistant Surgeon Roscoe C. Carnal, United States Naval Reserve Force, was tried by general court martial on October 19, 1917, at the Navy Yard, Norfolk, Va., by order of the Secretary of the Navy, and found guilty of the following charge:

Charge.-Drunkenness on duty (one specification).

SENTENCE

"The court therefore sentences him, Roscoe C. Carnal, assistant surgeon United States Naval Reserve Force, to be put at the foot of the list of assistant surgeons of the United States Naval Reserve Force on the date of the approval of this sentence, and to lose fifty (50) dollars of his pay each month for a period of six (6) months."

RETURNED FOR REVISION

The convening authority on November 7, 1917, returned the record of the proceedings in the foregoing case to the court and directed that the court reconvene for the purpose of reconsidering its sentence, which in the Department's opinion was totally inadequate for the very serious nature of the offense found proved.