[C. M. O. 77-1919]

tion of the original statute "in the least," and that said original statute applied "whenever the soldier dies while in the service generally, and submitting to its rules and regulations, from wounds or disease not the result of his own misconduct." In this decision the court did not cite the opinion of Attorney General Cushing, the decision of the U. S. Circuit Court of Appeals in which said opinion was expressly adopted, the long-established precedents of the War and Navy Departments and [P. 22] Pension Bureau, or the history of the legislative enactments, relating to line of duty. It should also be said that the death of Captain Moore, upon the facts as found by the Court of Claims, was clearly in line of duty under the principles enumerated by Attorney General Cushing, and no reversal of precedents was necessary to the allowance of the claim in that case.

The Navy Department has never adopted the remarks of the Court of Claims above quoted, but has continued to follow the opinions of the Attorney General, the decision of the Circuit Court of Appeals, and the established precedents of the Government which received legislative sanction in the amendments made to the death gratuity statutes, as above cited, and which had been previously brought to the attention of Congress in connection with the rulings of the Interior Department in pension cases. (See, for example, H. Doc. No. 5, vol. 3, 54th Cong., 2d sess., p. 74.)

It having now been recommended that the department's rulings be changed to conform to the remarks of the Court of Claims in the Moore case, Held, That such remarks of said court are not sufficient to override the established precedents and prior decisions on the subject; but advised that the question be submitted to the Attorney General for a ruling by him as to whether the opinion of his department requires modification or should be regarded as overruled by said decision of the Court of Claims; and that the action to be taken by this department be determined in accordance with the advice of the Attorney General (File 26250-1491: 1, J. A. G., Oct. 29, 1918).

The Secretary of the Navy does not concur in the foregoing recommendation of the Judge Advocate General that this question be submitted to the Attorney General. That Mr. Cushing's opinion of May 17, 1855, and the long line of precedents, both executive and judicial, in which said opinion was sustained, have been accepted by Congress is evidenced by its amending the former death gratuity laws in both the Army and the Navy, so as to provide that payment of the benefits thereunder could be made in the case of any person described therein whose death was "not the result of his own misconduct" instead of, as originally provided, whose death resulted "from wounds or disease contracted in line of duty." In other words, the phrase "line of duty" had by practice and decision acquired such a settled meaning that when Congress desired to extend the benefits of a particular statute to include all deaths not the result of misconduct, it deemed it necessary to enact a specific legislative provision to that effect. Under these circumstances the Secretary of the Navy cannot at this late date assent to the proposition that the phrase "line of duty" can by executive construction be given the meaning now advocated-viz, "that all deaths of officers or men should be considered as being incurred in the line of duty unless the proof is clear that they were [P. 23] caused through misconduct or inexcusable negligence." It is informally stated that the War Department has departed from its former precedents in line of duty cases, which precedents were based upon the Attorney General's opinion, and that the Bureau of War Risk Insurance of the Treasury Department has adopted a more liberal construction of this phrase than that put forward by the Attorney General and which has been followed in pension cases. It has not been considered necessary to verify this information, because, in any event, the Secre tary of the Navy would not authorize such a change in the precedents of this department without legislative sanction. Reference has also been made to a decision of the Court of Claims which is contrary to the Attorney General's opinion, as well as being opposed to judicial decision sustaining same, and it is in view of this decision of the Court of Claims that the Judge Advocate General, while entirely satisfied that the precedents of this department are in accordance with law, has recommended that the Attorney General be asked for a further opinion upon the question, particularly with reference to the effect which should be given the Court of Claims decision in view of the other authorities with which it conflicts. However, the Secretary of the Navy is entirely satisfied as to the correctness of the existing precedents, and does not

[C. M. O. 77-1919]

entertain any doubt in the matter, which the Attorney General has repeatedly stated is essential before the head of a department is authorized to require his opinion (File 26250-1372, Sec. Nav., Mar. 3, 1919).

MARK OF DESERTION: NOT REMOVED IN CASE OF DESERTER'S DEATH IN ACTION IN FRANCE, BUT FACT OF SUCH DEATH WAS ENTERED ON RECORD

Where a deserter from the Navy joined the Army and was killed in action in France, it was held that the department's records could not be changed so as to remove the mark of desertion, which was shown by the application to have been correctly entered, but the Bureau of Navigation was instructed to make appropriate notation upon the deceased's record showing his subsequent enlistment in the Army and death in action (File 26539-772:1, J. A. G., Mar. 6, 1919).

NAVAL RESERVE FORCE: ACCEPTANCE OF CERTAIN EMPLOYMENT BY MEMBERS OF. It is the opinion of the Judge Advocate General that the act of June 10, 1896 (29 Stat. 361; see C. M. O. 88, 1917, 16), does not apply to members of the Naval Reserve Force while on inactive duty; and also that section 113 of the Criminal Code (see C. M. O. 114, 1918, 39-40) is inapplicable under such circumstances. However, until there has been a judicial determination of these matters they cannot be regarded as settled, and such officers must determine for themselves whether or not they may accept civil employment of the character specified in the [P. 24] statutes cited. (See C. M. O. 114, 1918, 44.) The department is not empowered to "grant permission" to Naval Reserve officers on the inactive list to accept such employment, because if not prohibited by statute the department's permission is not required in such cases, and if prohibited by statute the department's permission would be nugatory (File 28550-788, J. A. G., Feb. 3, 1919).

NAVAL RESERVE FORCE: RETURN OF AMOUNTS CHECKED AGAINST ACCOUNTS UNDER I-4893 UPON BEING PLACED ON INACTIVE DUTY.

This office is of the opinion that members of the Naval Reserve Force who are relieved from active duty prior to the termination of their four-year enrollment are not entitled to refund of amounts checked against their accounts pursuant to sentences of courts martial, which were remitted subject to I-4893, Naval Instructions, 1913. Such refund can only be made upon disenrollment or discharge from the Naval Reserve Force or at the expiration of the terms of enrollment (File 26806–131: 62, J. A. G., Feb. 11, 1919).

NAVY MEDALS: AWARD OF, TO MEMBERS OF MILITARY FORCES OF ALLIED POWERS,

AND TO CIVILIANS.

The Judge Advocate General, in a recent opinion, held that, under the provisions of the Army appropriation act of July 9, 1918, the President is authorized to award any of the medals or decorations provided for in the Navy medal act of February 4, 1919 (Public, No. 253), to officers and enlisted men of the naval establishments of the countries concurrently engaged with the United States in the present war; that the President may, by regulations duly prescribed by him, provide for the conferring of such medals and decorations upon civilians who, while serving as officers or enlisted men in the naval establishments of the countries concurrently engaged with the United States in the present war, rendered services of such character as in his opinion may warrant such award; and that as to citizens of this country who rendered distinguished services "while in the naval service of the United States" of such character and at such times as to fulfill the requirements of the Navy medal act, the awarding to them of the medals and decorations provided for in said act after their resumption of a civilian status is clearly authorized by said Navy medal act (Public, No. 253; File 9644-48, J. A. G., Feb. 26, 1919).

{C. M. 0.88-1919]

OFFICER'S RECORDS: WHEN CERTIFICATE OF CREDITABILITY MAY BE CANCELED. While it has been held that when the record of a commissioned warrant officer with the required length of service has once been determined to be creditable within the meaning of the act of [P. 25] August 29, 1916 (39 Stat. 578), his right to the pay and allowances provided in the statute is thereby definitely fixed, “and, in the event of his record ceasing to be creditable, the same cannot be affected except by means of disciplinary action, as in the case of all officers" (see C. M. O. 33, 1916, 6; Naval Digest, 454), this opinion does not apply to a case where it is subsequently established by additional evidence, unknown to the department at the time the certificate of creditability was issued, that said certificate was clearly erroneous, and that in fact the officer's record was not creditable on the date thereof, because of serious offenses previously committed by him, but not reported and proved by general court-martial proceedings until after the issuance of the certificate. In the case noted in the Naval Digest it was stated that when a certificate of creditability had been issued "anything of a discreditable nature thereafter occurring should be disposed of by means of the disciplinary instrumentalities." In this case the offenses cannot be regarded as matters "thereafter occurring" within the meaning of the former opinion, and cancellation of the certificate was accordingly authorized (File 17789–27: 21, J. A. G., Feb. 28, 1919).

PROMOTION: IN U. 8. COAST GUARD.

A third lieutenant of engineers, U. S. Coast Guard, became eligible for promotion to a vacancy in the grade of second lieutenant of engineers on March 27, 1917, but he was found physically incapacitated for promotion by the board of medical officers who examined him. He was subsequently, on October 19, 1918, again examined and found physically qualified for promotion. In the meantime the original vacancy had been filled by the promotion of another officer, and thereafter, on September 26, 1918, another vacancy occurred which is to be filled by his promotion.

Opinion was requested as to the date of precedence of the officer in question after his contemplated promotion.

Held, that since the vacancy of March 27, 1917, was not held open, the officer in question would take precedence from September 28, 1918. The question of pay, although discussed, was not passed upon (File 28762-402:2, J. A. G. Feb. 8, 1919).

SERVICE OF PROCESS AND ADMINISTERING OATH OF SAME: BY AND ON PERSONS IN NAVY.

Under paragraph 18 of General Order No. 121 of September 17, 1914, commanding officers are authorized to permit service of process upon persons in the naval service and to grant leave of absence to persons upon whom such process has been served in order to permit them to appear at the trial, unless the public interests would be seriously prejudiced by their absence.

[P. 26] But for a commanding officer personally to make service or to select someone else to make such service, or to administed an oath that such service was made, would be contrary to the department's practice, and the administering of the oath of doubtful legality under the act of March 4, 1917 (39 Stat. 1171), which authorizes commanding officers to administer oaths only for naval purposes (File 26524–716, Sec. Nav., Feb. 12, 1919).

C. M. O. 88-1919

[P. 1] Gunner Helge C. Hermann, U. 8. Coast Guard, was tried by general court martial on February 14, 1919, at the Navy Yard, New York, by order of the Secretary of the Navy, and found guilty of the following charge:

Charge.—Culpable inefficiency in the performance of duty (one specification).

[C. M. O. 89-1919]

SENTENCE

"The court therefore sentences him, Helge C. Hermann, gunner, U. S. Coast Guard, operating as a part of the United States Navy, in accordance with law during time of war, to be dismissed from the U. S. Coast Guard and from the United States naval service."

RECOMMENDATION TO CLEMENCY

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

"The circumstances in this case are of an extenuating nature, in that the accused, due to rain on deck, where Lewis-gun drills were ordinarily held in good weather, was at first giving instructions in the armory without the use of live ammunition, and was, at the close of such instruction, requested by one of the listeners to explain more fully the operation of the magazine. As proper explanation really required the use of ammunition, the accused, in an unguarded moment, in his desire to illustrate, there being no dummy cartridges on board, used live ammunition, in the way stated, and with the unfortunate results that followed.

"In view of the manifest good faith in which he was acting at the time, his previous excellent record of 11 years' service, his recent excellent and zealous service for 16 months in the war zone, as testified to by Lieutenant Commander (sic) J. H. Cornell, U. S. Coast Guard, and the favorable impression produced upon us, we recommend Helge C. Hermaun, gunner, U. S. Coast Guard, to the clemency of the reviewing authority."

[P. 2] RECOMMENDATION OF THE COMMODORE COMMANDANT, U. S. Coast Guard

On March 8, 1919, the Commodore Commandant, U. S. Coast Guard, recommended that, in view of all the circumstances of the case, and the unanimous recommendation to clemency, all action be withheld in the foregoing case for a period of one year with a view to indefinitely withholding action should the conduct of the accused so warrant.

RECOMMENDATION OF THE JUDGE ADVOCATE GENERAL

On March 8, 1919, the Judge Advocate General recommended that action on the foregoing case of Helge C. Hermann, gunner, U. S. Coast Guard, be withheld for a period of one year, with a view to withholding action indefinitely should the conduct of the accused warrant such clemency, and that if at any time during said period the conduct of the accused, in the opinion of his commanding officer, is such as not to warrant further probation, a report be made to the department and final action then be taken upon the findings and sentence of the court. It was further recommended that the accused be released from arrest and restored to duty subject to the foregoing probation.

ACTION OF THE SECRETARY OF THE NAVY

The foregoing recommendations of the Judge Advocate General are approved.

C. M. O. 89-1919

[P. 1] Boatswain Francis Joseph, U. S. Naval Reserve Force, was tried by general court martial on February 6, 1919, at the Navy Yard, New York, by order of the Commander, Cruiser Force, Atlantic Fleet, and found guilty of the following charge:

Charge.-Drunkenness (one specification).

SENTENCE

"The court therefore sentences him, Boatswain Francis Joseph, U. S. Naval Reserve Force, to be dismissed from the United States naval service."

[C. M. O. 89-1919]

RECOMMENDATION TO CLEMENCY

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

"In consideration of his previous good record and the short length of time he has been in the naval service, and therefore the reasonable doubt that he has not become thoroughly imbued with the ideals and traditions of the discipline of the service, we recommend Francis Joseph, boatswain, U. S. Naval Reserve Force, to the clemency of the reviewing authority."

ACTION OF THE CONVENING AUTHORITY

On February 12, 1919, the convening authority approved the proceedings, findings, and sentence of the general court martial in the foregoing case of Boatswain Francis Joseph, U. S. Naval Reserve Force, and, in conformity with article 53 of the Articles for the Government of the Navy, referred the record to the Secretary of the Navy for transmission to the President.

OPINION AND RECOMMENDATION OF THE JUDGE ADVOCATE GENERAL

On February 25, 1919, the Judge Advocate General placed an endorsement on the record in the foregoing case expressing the [P. 2] opinion that the finding and sentence of the court should be set aside, and so recommending, in view of the grave irregularities disclosed by the record, and especially in view of the insufficient testimony offered by the prosecution and the very positive evidence produced by the defense. The record disclosed that the court, on motion of the accused, ruled that it was without jurisdiction to try him upon the charge and specification preferred, although later, without revoking this ruling, it proceeded with the trial, found the accused guilty, and sentenced him.

The confusion appears to have been caused by the action of the convening authority in preferring two sets of charges against the accused on the same day, one set being addressed to the judge advocate of a general court martial on board the U. S. S. Siboney, and the other to the judge advocate of the general court martial on board the U. S. S. Great Northern. The record shows that the accused was served with a copy of the first set, but that same was withdrawn by the convening authority in compliance with a letter addressed by him to the commanding officer of the U. S. S. Mongolia, who was directed at the same time to deliver a copy of the second set of charges for trial on board the U. S. S. Great Northern. It was upon this second set that the accused was tried, the record indicating that the accused was not served with a copy of the second set, although the law provides otherwise. (See art. 43, A. G. N.) The trial of the accused on the said second set of charges against him was had with his conditional consent, after the court had ruled against its jurisdiction in the case, the consent being "to proceed until these papers appeared at the trial," referring to the papers sent to the commanding officer of the U. S. S. Mongolia. The record did not disclose that the said papers ever appeared at the trial, although with the consent of the accused there was received, at the time of his said conditional consent to be tried, a copy of the letter of February 3, 1919, addressed by the convening authority to the commanding officer of the U. S. S. Mongolia.

The convening authority approved the proceedings, findings, and sentence of the court, thereby approving its action in sustaining the aforesaid motion of the accused and at the same time approving the remainder of the proceedings which were contrary to the aforesaid ruling.

Because of the fact, however, that the guilt of the accused was not legally established by the testimony in the case, it was [P. 3] not considered necessary to decide whether or not the proceedings of the court were entirely invalidated by the aforementioned irregularities.

CONCURRENCE OF THE BUREAU OF NAVIGATION

On March 3, 1919, the Bureau of Navigation concurred in the endorsement of the Judge Advocate General.