[C. M. O. 1—1917]

RECOMMENDATION TO CLEMENCY

The members of the court spread upon the record the following unanimous recommendation to clemency:

"The court has felt compelled under its oath and in view of the nature of the offenses to adjudge the sentence of dismissal as an adequate punishment. The court feels, however, that the excellent record of the accused, clear of all previous offenses and showing a steadily increasing efficiency, indicates that the accused is a very valuable officer to the Navy. Moreover the court is of opinion that his record warrants the belief that the offense does not correctly indicate the true character of the accused, but rather that it is an isolated case in the career of an officer whose previous good conduct and record for efficiency entitles him to consideration.

"The court does, therefore, unanimously and most strongly recommend the accused to the clemency of the revising power.”

[P. 2] The convening authority on November 27, 1916, approved the proceedings, findings, and sentence in the foregoing case of Lieutenant (junior grade) Thomas M. Tipton, U. S. Navy, subject to the following remarks:

"After a thorough examination of the record in this case, and the consideration of all the evidence submitted, of the circumstances under which the offense was committed, and of the unanimous recommendation to clemency, the Commander in Chief is of the opinion that the clemency of the reviewing authority should be excercised in this case.

"It is therefore recommended that the execution of the sentence be held in abeyance for a period of one (1) year, and if at the end of that time favorable reports have been received as to the conduct of Lieutenant (junior grade) Thomas M. Tipton, U. S. Navy, that the sentence be mitigated to the loss of one hundred (100) numbers in his grade."

RECOMMENDATION OF THE CHIEF OF THE BUREAU OF NAVIGATION

"The Bureau has carefully considered the record of this case, together with the excellent previous record of the accused, and his statement before the court. This officer's record is clear of all previous offenses and he has been in the naval service for over twelve years. A perusal of his record shows that he is steadily increasing in efficiency, that he is interested in his profession and the naval service, that he is held in high esteem by his previous commanding officers, that he has just made 100 percent of hits with his turret and obtained an "E" for the practice, the score being the highest ever made with that type of turret.

"While the Bureau does not condone an offense of this nature, it is of the opinion that the clemency of the reviewing authority should be exercised in his case. This officer has been educated at a great expense to the Government and has now attained the rank and experience where his services are of real value, and the Bureau considers him a very valuable officer to the Navy.

"It is therefore recommended that the execution of the sentence be held in abeyance for a period of one (1) year, and if at the end of that time favorable reports have been received as to the conduct of Lieutenant (Junior grade) Thomas M. Tipton, U. S. Navy, that the sentence be mitigated to the loss of one hundred (100) numbers in his grade."

[P. 3] ACTION OF THE SECRETARY OF THE NAVY

The Department, after a careful consideration of all the circumstances of this case and after deliberating upon the aggravated nature of the offenses involved, could not concur in the foregoing recommendations and felt that no punishment less than dismissal from the service would be adequate. Accordingly, on December 21, 1916, the proceedings, findings, and sentence in the foregoing case of Lieutenant (junior grade) Thomas M. Tipton, U. S. Navy, were approved.

[C. M. O. 2-1917]

ACTION OF THE PRESIDENT

In conformity with the provisions of article 53, Articles for the Government of the Navy (section 1624 of the Revised Statutes) the record was submitted to the President of the United States, who, on January 3, 1917, confirmed the sentence of the court.

[P. 1]

C. M. O. 2-1917

DOCUMENTARY EVIDENCE: IMPROPERLY INTRODUCED.

Lieutenant (Junior grade) Edward C. Lange, United States Navy, was tried by general court martial on November 20, 1916, on board the U. S. S. Pennsylvania, at Hampton Roads, Va., by order of the Commander in Chief, U. S. Atlantic Fleet, and found guilty of the following charge, the specifications of which were "proved by plea."

Charge. Conduct to the prejudice of good order and discipline (two speciflcations alleging that the accused was, by reason of excessive use of intoxicating liquor, incapacitated for duty and in such condition as to necessitate his transfer to a hospital).

SENTENCE

"The court, therefore, sentences him, Lieutenant (junior grade) Edward C. Lange, U. S. Navy, to be dismissed from the United States naval service."

RECOMMENDATION TO CLEMENCY

The following recommendation to clemency, signed by four of the seven members of the court, was spread upon the record:

"In consideration of this officer's excellent character and service, as testified to by his immediate superior officers, we recommend the accused in this case to the clemency of the revising authority."

ACTION OF THE CONVENING AUTHORITY

The convening authority on November 21, 1916, approved the proceedings, findings, and sentence in the foregoing case of Lieutenant (Junior grade) Edward C. Lange, U. S. Navy, subject to the following remarks:

"After careful consideration of all the circumstances of this case, the evidence as to character presented to the court, the recommendation to clemency signed by four members of the court, and the service record of Lieutenant (junior grade) Edward C. Lange, U. S. Navy, as well as the voluntary pledge, a copy of which is attached to the proceedings of the court, the Commander in Chief is of the opinion that the exercise of clemency in this case would be justified and would result in saving to the Navy the services of a capable young officer.

"It is therefore recommended that the execution of the sentence be held in abeyance for one (1) year, at the end of that period, if his conduct has proved satisfactory, that the sentence [P. 2] be mitigated by the President, to the loss of one hundred (100) numbers in his grade."

RECOMMENDATION OF THE CHIEF OF THE BUREAU OF NAVIGATION

"The Bureau concurs in the endorsement hereon by the convening authority and recommends approval thereof."

ACTION OF THE SECRETARY OF THE NAVY

The Department, after a careful consideration of all the circumstances of this case and after considering the serious nature of the offense involved, and the fact that Lieutenant Lange was found guilty by a general court martial on a previous occasion of a similar offense involving drunkenness (C. M. O. 39, 1912), could not concur in the foregoing recommendations, and felt that no punishment less than dismissal from the service would be adequate. Accord

[C. M. O. 3-1917]

ingly, on January 5, 1917, the proceedings, findings, and sentence in the foregoing case of Lieutenant (junior grade) Edward C. Lange, U. S. Navy, were approved.

ACTION OF THE PRESIDENT

In conformity with the provisions of article 53, Articles for the Government of the Navy (section 1624 of the Revised Statutes), the record was submitted to the President of the United States, who on January 9, 1917, confirmed the sentence of the court.

REMARKS

It appears from the record that while the judge advocate was on the stand as witness for the defense:

"Counsel for the accused submitted a letter from the accused to the Navy Department and requested that it be read into the record by the Judge advocate.

"The court was cleared. When opened all parties to the trial entered, and the president announced that the request of counsel was granted. "The witness read the said letter, copy appended, marked "2.'"

It may be seen from the foregoing that, insofar as the record shows, the document in question was not identified, nor was it duly offered to the judge advocate and court in order to afford opportunity for objection to its introduction; nor does the record disclose that there was in fact no objection offered to its admission in evidence, as there might well have been on the ground that it was a self-serving statement.

The proper procedure for introducing documentary evidence has been set forth fully in C. M. O. 15, 1916, 3, and a repitition thereof is not deemed necessary.

C. M. O. 3-1917

[P. 4] SENTENCE: REMISSION OF WHEN SENTENCE INCLUDES A TERM OF CONFINEMENT TOGETHER WITH "ACCESSORIES," THE CONFINEMENT SHOULD NOT BE REMITTED WITHOUT REMITTING THE LOSS OF PAY IN WHOLE OR IN PART.

In the general court-martial case of Halford L. Hall, fireman third class, United States Navy, the court sentenced him "to be confined for a period of one year, then to be dishonorably discharged from the United States naval service, and to suffer all the other accessories of said sentence, as prescribed by the Navy Regulations." The "other accessories" of the sentence include loss of pay "during his current enlistment" except for a sum of $3 per month during confinement and $20 on discharge. (See Navy Regulations, 1913, R-816 (5).)

The convening authority, in acting upon this case, remitted the confinement and dishonorable discharge without at the same time remitting any part of the loss of pay. As this action, under the terms of the above sentence, would mean that Hall might be required to serve during the remainder of his enlistment without pay, the Secretary of the Navy remitted the loss of pay adjudged (G. C. M. Rec. No. 33050).

[P. 5] Aside from any consideration of the legality of the convening authority's action in the above case, the Department desires, as a matter of policy, that convening authorities, in acting upon general court-martial cases in which the sentence is in accordance with the form prescribed by Navy Regulations, 1913, R-816 (4), shall not remit the confinement without remitting the loss of pay in whole or in part (File 26262-2742:1).

TESTIMONY: VERIFICATION OF.

In a recent general court-martial case it appears from the record that a witness for the prosecution, at the completion of his examination, was duly directed to return to the court at a later date for the purpose of verifying his testimony. The subsequent proceedings of the court show that when it was desired to verify the above testimony the witness was not available.

[C. M. O. 3—1917]

The judge advocate stated that said witness was absent from his station on authorized leave and that his whereabouts were uncertain but that steps were being taken to locate and recall him. The judge advocate also cited to the court in this connection C. M. O. 44, 1909. in which the proceedings of a court were disapproved because witnesses were recalled, after the court had arrived at its findings and in the absence of the accused, and permitted to make material changes in their testimony while verifying same.

Counsel for the accused stated that the defense was willing to waive the reading and verification of this testimony in the present case.

The court decided that, owing to the exigencies of the service and in order to avoid undue delay, "the trial shall proceed-there being no objection."

Both the judge advocate and the counsel for the accused stated that there was no objection.

Accordingly the trial proceeded and the court arrived at its findings without verification of the aforesaid testimony (G. C. M. Rec. No. 33198).

The verification of the testimony of witnesses is not, as would appear from the foregoing, a matter to be waived at the discretion of a court, even in the absence of objection by either side. It does not appear in the above case that the recall of this witness would necessarily have resulted in undue delay and, even had such been found to be the case, the proper procedure would have been to report the circumstances to the convening authority and request instructions.

While irregular, it was not considered that, under the circumstances of the above case, this defect was fatal nor that it operated to invalidate the proceedings.

[P. 6] CIVIL PURSUITS: ENLISTED MEN ENGAGING THEREIN-CONSTRUCTION OF SECTION OF NATIONAL DEFENSE ACT OF JUNE 3, 1916, RELATING THERETO. Section 35 of the National Defense Act of June 3, 1916 (39 Stat. 188), reads as follows:

"Hereafter no enlisted man in the active service of the United States in the Army, Navy, and Marine Corps, respectively, whether a noncommissioned officer, musician, or private, shall be detailed, ordered, or permitted to leave his post to engage in any pursuit, business, or performance in civil life, for emolument, hire, or otherwise, when the same shall interfere with the customary employment and regular engagement of local civilians in respective arts, trades, or professions."

The question arose shortly after the passage of this act as to whether same prohibited enlisted men from leaving their posts "to engage in any pursuit, business, or performance in civil life," without remuneration. It was the opinion of the Judge Advocate General that it did not so prohibit (File 4924-435, J. A. G., June 20, 1916).

Upon the question being presented as to whether the above act prohibited the use of a naval band at a charity ball where the transportation and subsistence of the enlisted personnel of the band were to be furnished by those conducting the ball, the Judge Advocate General rendered an opinion that the furnishing of transportation and subsistence only, as proposed in this case, could not be construed as remuneration and was not in violation of law; and that the law does not prohibit enlisted men from engaging in any pursuit, business, or performance in civil life without remuneration, notwithstanding that same may "interfere with the customary employment and regular engagement of local civilians in the respective arts, trades, or professions" (File 4850-219, J. A. G., Jan. 16, 1917).

MISCONDUCT: ABSENCE FROM DUTY ON ACCOUNT OF SICKNESS OR DISEASE RESULT ING THEREFROM-CONSTRUCTION OF PROVISION OF ACT OF AUGUST 29, 1916, RELATING THERETO.

Referring to that clause of the act of August 29, 1916 (39 Stat. 580), which provides that:

“Hereafter no officer or enlisted man in the Navy or Marine Corps in active service who shall be absent from duty on account of sickness or disease resulting from his own intemperate use of drugs or alcoholic liquors, or other

[C. M. O. 3-1917]

misconduct, shall receive pay for the period of such absence, the time so absent and the cause thereof to be ascertained under such procedure and regulations as may be prescribed by the Secretary of the Navy: Provided, That an enlistment shall not be regarded as complete until the enlisted man shall have made good any time in excess of one day lost on account of sickness or disease resulting from his own intemperate use of drugs or alcoholic liquors or other misconduct."

[P. 7] (1) The Judge Advocate General rendered an opinion to the effect that a person in the Navy or Marine Corps should not be penalized in accordance with its terms "for misconduct committed prior to his entry into the service" (File 7657-394:21, J. A. G., Jan. 26, 1917).

(2) The Comptroller of the Treasury held that it "does not prohibit the receipt of pay by officers or men of the Navy or Marine Corps, on the sick list or otherwise, for time absent from duty on account of injury resulting from their own intemperate use of drugs or alcoholic liquors or other misconduct." That is, that the term "sickness or disease". as used in the above-quoted clause of the act of August 29, 1916, does not include "injury" (Comp. Dec. of Nov. 22, 1916). (In this connection see C. M. O. 33, 1916, 5-6, and 41, 1916, 6, for further construction of this clause of act of Aug. 29, 1916.)

PROMOTION BY SELECTION OF CERTAIN LINE OFFICERS: CONSTRUCTION OF PROVISION OF ACT OF AUGUST 29, 1916, RELATING THERETO.

Referring to that part of the act of August 29, 1916 (39 Stat. 578-579), which provides for the promotion by selection "to the grades of commander, captain, and rear admiral of the line of the Navy," it was the opinion of the Judge Advocate General:

That the act of June 18, 1878 (20 Stat. 165)-which limits the part of the record of officers, examined for promotion in accordance with laws in effect prior to August 29, 1916, to be considered by the examining board (see Navy Regulations, 1913, R-334 (2))—is not applicable to the different form of promotion established by the above-mentioned clause of the act of August 29, 1916; and accordingly, the entire records of officers eligible for promotion under the terms of this last-mentioned law should be transmitted to the Board of Selection for such promotion (File 26251-169, J. A. G., Nov. 28, 1916).

This opinion was sustained by the Attorney General in his opinion of January 13, 1917.

PROMOTION BY SELECTION OF OFFICERS OF THE STAFF CORPS.

(1) The Judge Advocate General rendered an opinion on the question of promotion by selection in the staff corps of the Navy under the following heads: (a) Advancement of staff officers in rank without change in office (grade). (b) Advancement of staff officers to higher offices with or without advancement in rank.

As to (a) the conclusion of this officer was that the advancement of staff officers in rank without change in office may be regulated by Congress, but that Congress has not enacted any statutory regulations on the subject other than as applicable only to the lower ranks in said corps; and, accordingly, that the President may in his discretion select any staff officer with the rank of captain for advancement to the rank of rear admiral in the same office, or may [P. 8] prescribe general rules governing such advancement in rank-the rank of rear admiral in the staff corps having been established by recent law without making any provision as to how advancements thereto shall be effected.

As to (b) consideration was given to the fact that from time immemorial the advancement of naval officers to higher offices has been made by seniority. This rule, however, was not established by Congress, but by the executive branch of the Government, although since its inception statutes have been enacted by Congress in recognition of the rule and even purporting to make the same obligatory. To this effect are sections 1458 and 1480 of the Revised Statutes providing for promotion by seniority and modified by subsequent statutory enactment only to the extent that the act of August 29, 1916, establishes a system of promotion by "selection" for certain line officers.