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[C. M. O. 157—1919]

[P. 35] PROMOTION: ELIGIBILITY FOR, OF FORMER PAY CLERK TO CHIEF PAY

CLERK.

On March 3, 1915, Eusign (T) ------, U. S. Navy, then a paymaster's clerk in the Navy, had completed approximately seven years' service as a paymaster's clerk and was, subject to examination, eligible for appointment as a chief pay clerk in accordance with the provisions of the act of March 3, 1915 (38 Stat. 942). He failed to qualify professionally on examination and his appointment as paymaster's clerk was revoked. At a later date he enlisted, and on October 24, 1917, was appointed as acting pay clerk in the Navy, and has recently been promoted to pay clerk to take rank from October 24, 1918.

Held: That in view of his previous service as a paymaster's clerk Ensigu (T) is now eligible for promotion to chief pay clerk upon qualifying on examination, in accordance with the following provision of the act of March 3, 1915 (38 Stat. 942) :

"That all pay clerks shall, after six years' service as such, be commissioned chief pay clerks and shall on promotion have the rank, pay, and allowances of chief boatswain: Provided, That in computing the six years' service herein provided for credit shall be given for all service in the Navy as pay clerk, acting pay clerk, and paymaster's clerk" (File 28554-135: 12, J. A. G., Apr. 3, 1919).

C. M. O. 156-1919

[P. 1] Ensign Raymond K. Bonsteel, Pay Corps, U. S. Naval Reserve Force, was tried by general court martial on February 13, 1919, on board the U. S. S. Leviathan by order of the Commander, Cruiser Force, Atlantic Fleet, and acquitted of the following charges:

Charge I.-Culpable inefficiency in the performance of duty (one specification). Charge II.-Neglect of duty (one specification).

RETURNED FOR REVISION

On February 15, 1919, the convening authority returned the record in the foregoing case to the court and directed that the court reconvene for the purpose of reconsidering its finding on the first charge and specification thereunder.

After a careful consideration the convening authority was of the opinion that the finding on the first charge and specification thereunder were not in accord with established precedents. The fact that the accused in this case was not given special instructions in his duties might have been grounds for recommendation to clemency but not for an acquittal.

ACTION IN REVISION

The court decided "respectfully to adhere to its former finding."

ACTION OF THE CONVENING AUTHORITY

On February 19, 1919, the convening authority approved the proceedings of the general court martial in the foregoing case of Ensign Raymond K. Bonsteel, Pay Corps, U. S. Naval Reserve Force, disapproved the findings and acquittal. and directed that he be released from arrest and restored to duty.

C. M. O. 157-1919

[P. 1] Lieutenant Commander Haldor Smith, U. S. Naval Reserve Force, was tried by general court martial on April 1, 1919, at the navy yard, Norfolk, Va., by order of the Secretary of the Navy, on the following charges:

Charge I-Assaulting and striking another person in the Navy (one specification).

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

[C. M. O. 160-1919]

FINDINGS

The court found the specification of the first charge "proved," and the accused "guilty" of the first charge; the first specification of the second charge "proved," the second, third, and fourth specifications of the second charge "not proved," and the accused "guilty" of the second charge.

SENTENCE

"The court therefore sentences him, Lieutenant Commander Haldor Smith, United States Naval Reserve Force, to be dismissed from the United States naval service."

OPINION AND RECOMMENDATION OF THE JUDGE ADVOCATE GENERAL

On April 22, 1919, the Judge Advocate General placed an endorsement on the record in the foregoing case in substance as follows:

The accused's counsel offered in evidence the sworn material testimony of two officers taken before a board of investigation and court of inquiry, respectively. These officers were the only persons other than the prosecuting witnesses who were eyewitnessess to the transactions alleged in the specification of charge I. One of the said officers was deceased at the time of the trial, and the other had been placed on the inactive list and was outside the jurisdiction of the court. The court refused to admit this testimony on the ground that to do so would restrict the punishment that might be adjudged on a finding of guilty.

[P. 2] In this the court erred, the testimony before the court of inquiry being admissible independently of article 60, Articles for the Government of the Navy (see Naval Courts and Boards, 1917, sec. 198 (e)), which states that the proceedings of a court of inquiry are admissible when offered in evidence by the accused in his own behalf, the right of the accused to be confronted by the witnesses against him being one which he may waive (Mullan v. United States, 212 U. S. 516). Having thus waived the restrictions of article 60, Articles for the Government of the Navy, the limitations as to punishments set out in that article do not apply.

The testimony under oath before the board of investigation was clearly admissible, article 60, Articles for the Government of the Navy, having no application to the proceedings of boards of investigation under the general rules of evidence. (See Naval Courts and Boards, 1917, secs. 198 (a) and 198 (b); Mullan v. United States, 212 U. S. 516.)

As the aforementioned testimony constituted the entire defense of the accused, it is recommended that the proceedings, findings, and sentence in the foregoing case be disapproved, and that the accused be released from arrest and restored to duty.

CONCURRENCE OF THE BUREAU OF NAVIGATION

On April 30, 1919, the Bureau of Navigation concurred in the endorsement of the Judge Advocate General.

ACTION OF THE SECRETARY OF THE NAVY

The proceedings, findings, and sentence of the general court martial in the foregoing case of Lieutenant Commander Haldor Smith, U. S. Naval Reserve Force, are disapproved. The above-named officer will be released from arrest and restored to duty.

C. M. O. 160-1919

[P. 1] Boatswain (T) Lewis Aufdemorte, U. S. Navy, was tried by general court martial on March 20, 1919, at the U. S. Submarine Base, Coco Solo, C. Z., by order of the Commandant, Fifteenth Naval District, and found guilty of the following charges:

Charge I-Conduct to the prejudice of good order and discipline (one specification).

Charge II.-Falsehood (one specification).

494611 42-Vol. 1- 27

[C. M. O. 163-1919]

SENTENCE

"The court therefore sentences him, Boatswain (T) Lewis Aufdemorte, U. S. Navy, to be dismissed from the United States naval service."

ACTION OF THE CONVENING AUTHORITY

On April 1, 1919, the convening authority approved the proceedings, findings, and sentence of the general court martial in the foregoing case of Boatswain (T) Lewis Aufdemorte, U. S. Navy, 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 April 28, 1919, the Judge Advocate General placed an endorsement on the record in the foregoing case expressing the opinion that as to charge I, and the specification thereunder, scienter on the part of the accused had been neither alleged nor proved. The court found the accused guilty of dancing with a woman of doubtful character in a resort of bad reputation. It was the opinion of the Judge Advocate General that the evidence adduced failed to prove that the accused knew that the woman in question was of doubtful character or that the place was a "resort of bad reputation," and, further, that it is no offense to dance with a woman of doubtful character. It was therefore recommended that the first charge, the specification thereunder, and the findings thereon be disapproved.

[P. 2] In view of all the circumstances in the case, it is recommended that the sentence be mitigated to the loss of twenty-five dollars ($25) per month of the accused's pay for a period of six (6) months.

CONCURRENCE OF THE BUREAU OF NAVIGATION

On May 1, 1919, the Bureau of Navigation concurred in the endorsement of the Judge Advocate General.

ACTION OF THE SECRETARY OF THE NAVY

The foregoing remarks and recommendations of the Judge Advocate General concurred in by the Bureau of Navigation are approved.

C. M. O. 163-1919

[P. 1] Lieutenant (Junior Grade) William C. Van Ness, U. S. Naval Reserve Force, was tried by general court martial on March 12, 1919, at the U. S. Naval Aviation Repair Base, Eastleigh, England, by order of the Commander, U. S. Naval Forces operating in European Waters, and found guilty of the following:

Charge. Neglect of duty (one specification).

SENTENCE

"The court therefore sentences him, Lieutenant (Junior Grade) William C. Van Ness, U. S. Naval Reserve Force, to be dismissed from the United States naval service."

ACTION OF THE CONVENING AUTHORITY

On March 25, 1919, the convening authority approved the proceedings, findings, and sentence in the foregoing case of Lieutenant (Junior Grade) William C. Van Ness, 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 April 25, 1919, the Judge Advocate General placed an endorsement on the record in the foregoing case expressing the opinion that the prosecution had

[C. M. O. 165-1919]

failed to prove the specification of the charge beyond a reasonable doubt and recommending that the proceedings, findings, and sentence of the general court martial in the foregoing case be disapproved and that the accused be released from arrest and restored to duty.

CONCURRENCE OF THE BUREAU OF NAVIGATION

On April 30, 1919, the Bureau of Navigation concurred in the endorsement of the Judge Advocate General.

[P. 2] ACTION OF THE SECRETARY OF THE NAVY

The foregoing recommendations of the Judge Advocate General concurred in by the Bureau of Navigation are approved.

C. M. O. 165-1919

[P. 1] Lieutenant (T) Philip A. Wilson, U. S. Navy, was tried by general court martial on March 10, 1919, on board the U. S. S. Arkansas, by order of the Commander in Chief U. S. Atlantic Fleet, and found guilty of the following charge:

Charge.-Drunkenness.

SENTENCE

"The court therefore sentences him, Lieutenant (T) Philip A. Wilson, United States Navy, 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 the fact that this offense was committed on November 11, 1918, a day of great celebration; that the liquor was pressed upon the accused by foreign officers; that the offense was unintentional, as far as known, and furthermore that it was observed that the liquor of Scotland seemed to possess greater toxicity, and the symptoms produced were more acute and violent than those due to the American liquors (these extraordinary results were shown in different cases during the stay of the American Squadron while in foreign waters) we recommend the accused, Lieutenant (T) Philip A. Wilson, (G), U. S. Navy, to the clemency of the reviewing authority."

ACTION OF THE CONVENING AUTHORITY

On March 22, 1919, the convening authority approved the proceedings, findings, and sentence of the general court martial in the foregoing case of Lieutenant (T) Philip A. Wilson (G), U. S. Navy, 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.

It was noted by the convening authority that the accused was promoted eleven days after the commission of the offense for [P. 2] which he was tried. As to the question of whether or not such promotion would operate as a constructive pardon, the convening authority was of the opinion that this case differed from the class of cases exemplified by C. M. O. 185-1918, in that there the Secretary of the Navy ordered the court martial and thereafter the officer was promoted, while here the officer was promoted, the Bureau of Navigation and the Secretary of the Navy having no knowledge whatsoever of the pending charges.

It being impossible for the convening authority to exercise his power of mitigation and at the same time provide an adequate punishment for the offense of which the accused was convicted, the convening authority added his own recommendation to clemency to that of the members of the court.

[C. M. O. 166-1919]

RECOMMENDATION OF THE BUREAU OF NAVIGATION

On May 3, 1919, the Bureau of Navigation recommended approval of the proceedings, findings, and sentence in the foregoing case.

It was further recommended that, in view of the unanimous recommendation to clemency and the remarks of the convening authority, that the sentence be mitigated to loss of fifty dollars ($50) per month of the accused's pay for a period of six (6) months.

ACTION OF THE SECRETARY OF THE NAVY

The foregoing recommendation of the Bureau of Navigation is approved. Lieutenant (T) Philip A. Wilson (G), U. S. Navy, will be released from arrest and restored to duty.

C. M. O. 166-1919

[P. 1] Acting Pay Clerk (T) Carlos J. Cox, U. S. Navy, was tried by general court martial on March 24, 1919, at the Submarine Base, Coco Solo, C. Z., by order of the Commandant Fifteenth Naval District, and found guilty of the following charge:

Charge. Conduct unbecoming an officer and a gentleman (two specifications).

SENTENCE

"The court therefore sentences him, Acting Pay Clerk (T) Carlos J. Cox, U. S. Navy, to be dismissed from the United States naval service."

RECOMMENDATION TO CLEMENCY

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

"In consideration of his previous excellent naval service and excellent character as established before the court, and because the court is absolutely convinced that the accused did not realize that he was committing any offense, and, furthermore, because the court is convinced that the accused is sincerely sorry and regrets his mistake, the court does therefore unanimously recommend Carlos J. Cox, acting pay clerk (T), U. S. Navy, the accused, to the clemency of the reviewing authority."

ACTION OF THE CONVENING AUTHORITY

On April 8, 1919, the convening authority approved the proceedings, findings, and sentence in the foregoing case of Acting Pay Clerk (T) Carlos J. Cox, U. S. Navy, 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 April 28, 1919, the Judge Advocate General placed an endorsement on the record in the foregoing case expressing the [P. 2] opinion that the evidence adduced at the trial failed to show that the accused had knowledge of the degraded character of the persons with whom he associated in public or that the place which he entered was a public bar of ill repute.

In view of the foregoing and the fact that the members of the court spread upon the record a unanimous recommendation for clemency on the ground that "the court was absolutely convinced that the accused did not realize that he was committing an offense," it was recommended that the charge, specifications thereunder, the findings, and the sentence be disapproved.

CONCURRENCE OF THE BUREAU OF NAVIGATION

On May 6, 1919, the Bureau of Navigation concurred in the endorsement of the Judge Advocate General.

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