[C. M. 0.4-1916] MISSING SHIP: SHOULD BE CHARGED UNDER "CONDUCT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE" AND NOT "MISSING SHIP." Charles Gilso, ordinary seaman, United States Navy, was tried by general court martial on January 7, 1916, on board the U. S. S. Wyoming, by order of the commander in chief, United States Atlantic Fleet, and found guilty of "Absence from station and duty without leave," and "Missing ship," the specifications of which were proved by plea. [P. 8] Index-Digest, 1914, page 2, provides that it is proper to charge an accused with both "Absence from station and duty without leave" and "Conduct to the prejudice of good order and discipline," where the unauthorized absence was with the manifest intention of evading some particular duty (as coaling ship or a landing party) or of service on some particular ship (as by missing ship). From this it will be seen that the accused in this case should have been charged with "Conduct to the prejudice of good order and discipline" rather than "Missing ship" (G. C. M. Rec. No. 31600). COMPTROLLER OF THE TREASURY: REQUEST FOR RECONSIDERATION OF DECISIONS-POLICY OF DEPARTMENT. It is not the policy of the Department to request the Comptroller of the Treasury to reconsider his decisions in individual cases unless such decisions tend to disturb the practice of the service, based on naval regulations or instructions issued pursuant to law (File 26254-1947, Sec. Navy, Jan. 19, 1916). PAY: ENLISTED MAN ON BAIL. An enlisted man of the naval service, released from the custody of the civil authorities on bail, who reports at his regular station for duty, is not to be deprived of his pay after so reporting simply because, due solely to the fact that he was on bail, no naval duty was assigned him (22 Comp. Dec. 374; see also File 9663-31). C. M. O. 4-1916 [P. 1] 1. SETTING ASIDE: PROCEEDINGS, FINDINGS, AND SENTENCE ILLEGAL— SPECIFICATION FAILING TO ALLEGE AN OFFENSE. 2. CONVENING AUTHORITY: ACTION OF, IN REVISION. 3. CHARGES AND SPECIFICATIONS: MIDDLE NAMES MAY BE INDICATED BY INITIAL LETTERS. Lt. (j. g.) Joseph S. Hulings, United States Navy, was tried by general court martial on November 18, 1915, on board the U. S. S. Maryland at San Francisco, Calif., by order of the Commander in Chief, United States Pacific Fleet, upon the following charge: Charge.-Fraud, in violation of article 14 of the Articles for the Government of the Navy. Specification.-In that Joseph Simpson Hulings, a lieutenant of the junior grade in the United States Navy, attached to and serving on board the U. S. S. Cleveland, then at the Navy Yard, Mare Island, Vallejo, Calif., did on or about the first day of October 1915, address to and issue upon Passed Assistant Paymaster Spencer E. Dickinson, United States Navy, attached to and serving on board the said ship Cleveland as pay officer, an order or draft payable to one F. L. Richmond of San Francisco, Calif., in words and figures substantially as follows, to wit: "From: Lt. J. S. Hulings, "SAN FRANCISCO, CALIFORNIA, October 1, 1915. "To: Paymaster S. E. Dickinson, U. S. S. Cleveland. "Please forward to Mr. F. L. Richmond, No. 434 Phelan Building, San Francisco, a salary pay check for ninety (90) dollars immediately. J. S. HULINGS." [C. M. O. 4—1916] he, the said Joseph Simpson Hulings, a lieutenant of the junior grade in the United States Navy, well knowing that said order or draft was false and fraudulent and in violation of article 14, of the Articles for the Government of the Navy, to wit: “Fine and imprisonment, or such other punishment as a court martial may adjudge, shall be inflicted upon any person in the naval service of the United States-who presents or causes to be presented to any person in the civil, military, or naval service thereof, for approval or payment, any claim against the United States or [P. 2] any officer thereof, knowing such claim to be false or fraudulent"; for upon the date of issue of said order or draft he was in debt to the Government of the United States to the extent of $220.80; said amount being remainder of advance pay drawn in accordance with article 4458, paragraph 1, of the United States Navy Regulations, to wit: "All officers of the Navy and Marine Corps, when ordered to duty at sea, or to shore duty outside the continental limits of the United States, or to Alaska, shall be entitled to an advance of not over 3 months' pay, provided they are not in debt to the Government for an advance previously paid them. All such officers returning from duty at sea, or on shore outside the continental limits of the United States, or in Alaska, shall be entitled, at the time of detachment, to an advance of not over 2 months' pay at the discretion of the senior officer present, afloat." And furthermore, that he, the said Joseph Simpson Hulings, a lieutenant of the junior grade in the United States Navy, well knew that said order or draft was irregular and unlawful, and not in accordance with United States Navy Regulations. FINDINGS The court found the specification "proved in part" and the accused "Guilty in a less degree than charged, guilty of 'Irregularity and carelessness in regard to discharge of pecuniary obligations.' SENTENCE "The court, therefore, sentences him, Lt. (j. g.) Joseph Simpson Hulings, United States Navy, to lose two (2) numbers in his grade." RETURNED FOR REVISION The convening authority, the Commander in Chief, United States Pacific Fleet, on November 23, 1915, returned the record of proceedings of the general court martial in this case with the direction that the court reconvene for the purpose of reconsidering its findings and sentence. FINDINGS IN REVISION, FORMER SENTENCE ADHERED TO The court in revision revoked its former findings in this case and found the specifications "proved in part" and that the accused, Lt. (j. g.) Joseph Simpson Hulings, [P. 3] United States Navy, is of the charge "Guilty in a less degree than charged, guilty of 'Conduct unbecoming an officer and a gentleman.'" The court decided respectfully to adhere to its former sentence. ACTION OF CONVENING AUTHORITY The convening authority, the Commander in Chief, United States Pacific Fleet, on December 31, 1915, approved the proceedings in revision in this case, but disapproved the finding and sentence in revision, for the reasons that the sentence was wholly inadequate for the offense of "Conduct unbecoming an officer and a gentleman," and directed that Lt. (j. g.) Joseph S. Hulings, United States Navy, be released from arrest and restored to duty. ACTION OF SECRETARY OF THE NAVY (1) The Department, on February 1, 1916, pronounced the proceedings, findings, and sentence in this case illegal, and set aside the same with the following remarks: The specification in this case is not in due form and technically correct, because it quotes therein both a public statute and a Navy regulation. Forms [C. M. O. 4-1916] of Procedure, 1910 (p. 137), provides that courts take judicial notice of "public statutes" and "the Navy Regulations," and that such "are not required either to be charged or proved." Also in the same publication (p. 83) it is provided that "in drawing up the charges and specifications, all extraneous matter is to be carefuly avoided." The specification in this case is not in accordance with the above provisions of Forms of Procedure and is also contrary to the Navy Regulations, 1913, R-712 (3). Aside from the irregular form of the specification, it does not allege an offense supporting the charge under which it appears nor any other charge cognizable by court martial. There are two broad classes of fraud, viz, fraud against the United States and fraud not against the United States. The first class is punishable under article 14, Articles for the Government of the Navy, and the other under article 8, Articles for the Government of the Navy. The accused certainly was not guilty of any fraud against the United States. Having no money to his credit, the pay officer could not have honored Hulings' draft without himself being guilty of embezzlement and being required to reimburse the Government under his bond. Furthermore, even had the accused money on the books, the pay officer would not have been authorized to pay such money to another on Hulings' order, as the law provides that assignment of claims against the United States shall be void, except under specified conditions (see sec. 3477, R. S.), and in certain cases of which [P. 4] this is not one. The "false" and "fraudulent" claims against the United States referred to in article 14, Articles for the Government of the Navy, evidently contemplate claims false or fraudulent in matters of fact and not such as on their face are null and void under the law. Furthermore, the specification in this case does not aver that the accused actually presented or caused to be presented the above-mentioned order or draft to the Navy pay officer. (See C. M. O. 160, 1901; 15, 1902.) If an offense was committed by the accused in this case, it must therefore have been in violation of article 8, Articles for the Government of the Navy; that is, fraud against a private person. To constitute such fraud, however, it would be necessary in the present case for the specification to have shown affirmatively that the accused had (1) made a false representation of some existing or past fact to the person concerned (one F. L. Richmond, of San Francisco), with intent to defraud; (2) that the accused knew such representation to be false; (3) that said Richmond had believed and relied upon such false representation; and (4) that said Richmond had actually been defrauded by, and parted with something of value in consequence of, such false representation. If the accused had actually not defrauded Richmond, the specification might have supported a charge of attempt to commit fraud, provided it averred that the accused had made the necessary false representation with intent to defraud. In the present case, however, the specification merely alleges that the accused issued an order or draft on the pay officer, which order appears on its face, as set forth in the specification, to be null and void under the law. It does not allege that the accused did this with any intent to defraud, that he made any false representations as to matters of fact, that he received anything of value, nor that he deceived or actually defrauded the aforesaid Richmond or any other person. The specification, therefore, does not in any aspect support the charge under which it appears, nor any other charge cognizable by court martial. It is proper to add that the uncontradicted evidence in this case established that the accused made no attempt to deceive or defraud anyone. That when he applied to Mr. Richmond for a loan he was asked by the latter to sign an order on the pay officer for the amount in question. That the accused informed Richmond that such an order would be wholly without value, and that said Richmond was already aware of the fact, and would not have believed the accused had he represented that the order would be good; but that the said Richmond wanted the order or draft merely for the purpose of using same, if necessary, as a means of bringing the matter to the attention of the naval authorities if Hulings should default in payment. [P. 5] Incidentally, the evidence shows that Hulings actually repaid the loan, after a brief delay, which was satisfactorily explained. [C. M. O. 5-1916] REMARKS (2) By the wording of the action of the convening authority he approved only the proceedings in revision, and disapproved the finding and sentence in revision. The words "in revision" should be omitted, thus making the action cover the whole of the proceedings, both original and in revision. The appropriate action in this case would read: "The proceedings of the general court martial in the foregoing case of Lt. (j. g.) Joseph S. Hulings, United States Navy, are approved; the findings and sentence are disapproved for the following reasons: He will be released from arrest and restored to duty" (Forms of Procedure, 1910, p. 52; C. M. O. 23, 1910, p. 3). (3) It was noted that the middle name of the accused was spelled in full in the charges and specifications. Christian names, other than the first, may be indicated by initial letters (Navy Regulations, 1913, R-712 (5); Forms of Procedure, 1910, p. 83; Index-Digest, 1914, pp. 3, 28; C. M. O. 36, 1914, 6, 7). C. M. 0.5-1916 [P.5] DEPOSITIONS: PARTY SECURING MAY DECLINE TO INTRODUCE AS EVIDENCE. Nolen B. Robinson, ordinary seaman, United States Navy, was tried by general court martial, at the navy yard, Mare Island, Calif., by order of the Secretary of the Navy on the charges of "Theft," "Breaking arrest," and "Conduct to the prejudice of good order and discipline." The court acquitted the accused of the first charge and found him guilty of the remaining two. At the request of the accused the Department had directed that the deposition of a certain enlisted man be taken. After this deposition was taken the accused discovered that its contents were against his interests and at the trial declined to introduce it in evidence. Thereupon the judge advocate attempted to introduce the deposition in evidence and upon objection being made by the accused the court sustained the objection. The Department held that the action of the court was proper. The law gives an accused the right to cross-examine a witness testifying against him and of this right he should not be deprived. If the [P. 6] judge advocate desired the testimony of the witness in question to be introduced for the prosecution, the proper procedure would have been for him to secure an entirely new deposition, in which case the accused would prepare the cross-interrogatories instead of the judge advocate. In cases like the above where the party taking the deposition has been taken by surprise, the court should allow the opposite party, if he desires, time to procure another deposition from the deponent (File 26251-11382, Sec. Navy, Feb. 25, 1916; G. C. M. Rec. No. 31728). SENTENCE: "RESTRICTION ΤΟ THE LIMITS OF THE SHIP"-SUMMARY COURT Harry Muller, fireman first class, United States Navy, was tried by summary court martial on board the U. S. S. Sonoma and sentenced among other things "to be restricted to the limits of the ship for a period of thirty (30) days." In view of the fact that "restriction to the limits of the ship" is not one of the punishments which a summary court martial is authorized to adjudge, that part of the sentence involving restriction was set aside by the Department. (See A. G. N. 30; C. M. O. 21, 1910, p. 17; 1, 1911, p. 3; 33, 1914, pp. 4-6; Index-Digest, 1914, p. 38; File 26287-3315, Sec. Navy, Feb. 15, 1916.) SUMMARY COURT MARTIAL: MULTIPLICITY OF TRIALS. The Department noted that John E. Glasson, quartermaster second class, United States Navy, was tried by summary court martial three separate and distinct times on the same date for offenses which might have been disposed of at one trial. Upon a careful review of these records, no irregularity was [C. M. O. 6-1916] found which would invalidate the proceedings. One trial should have been held, the accused having three specifications preferred against him as is provided for in Forms of Procedure, 1910 (p. 156), thereby saving the time of the accused and the members of the court and avoiding the clerical work involved in preparing a multiplicity of records (File 26287-3303, J. A. G., Feb. 12, 1916). [P. 7] ENLISTMENT: CONVICTS SHOULD NOT BE ENLISTED-ENLISTED MEN CONVICTED BY CIVIL COURTS SHOULD NOT BE RETAINED IN NAVAL SERVICE. It is a long-established policy of the Navy not to enlist men who have been convicted by civil courts. For similar reasons the Department invariably refuses to retain in the naval service enlisted men who are convicted by civil courts of offenses which render them unfit for the service. (See C. M. O. 42, 1915, p. 6; 35, 1915, p. 8; File 26524-222: 3, Sec. Navy, Feb. 9, 1916.) OATHS: RECRUITING OFFICERS, BY TO PERSONS WHO DESIRE TO MAKE AFFIDAVITS AS TO DATES AND PLACES OF BIRTH OF APPLICANTS. The act of March 3, 1901 (31 Stat. 1086), Navy Regulations, 1913, R-1536 (1), provides: "That judge advocates of naval general courts martial and courts of inquiry, and all commanders in chief of naval squadrons, commandants of navy yards and stations, officers commanding vessels of the Navy, and recruiting officers of the Navy and the adjutant and inspector, assistant adjutant and inspector, commanding officers, and recruiting officers of the Marine Corps, be, and the same are hereby, authorized to administer oaths for the purposes of the administration of naval justice and for other purposes of naval administration." In view of the provisions of Navy Regulations, 1913, R-1536, and the act above-quoted it is held that the administering of an oath by a recruiting officer of the Navy "to a person not in the naval service who desires to make an affidavit as to the date and place of birth of an applicant for enlistment in the United States Navy," is authorized under the clause "and for other purposes of naval administration." (See File 7751-03, J. A. G., Sept. 9, 1903; 1903738, J. A. G., Sept. 25, 1913; 19037-45, J. A. G., May 26, 1914; File 26806-138, J. A. G., Feb. 1, 1916.) C. M. O. 6-1916 [P. 1] 1. REVISION: SENTENCE SHOULD BE IN HANDWRITING OF JUDGE ADVOCATE, EVEN THOUGH FORMER SENTENCE ADHERED TO. 2. SENTENCE: INADEQUATE-APPROVED ONLY THAT ACCUSED MIGHT NOT WHOLLY ESCAPE PUNISHMENT. 3. COURT: PRESIDENT AND MEMBERS INFORMED BY LETTER THAT SENTENCE WAS INADEQUATE. 4. RECORD: LETTER TRANSMITTING COPY OF CHARGES AND SPECIFICATIONS TO COMMANDING OFFICER FOR DELIVERY TO ACCUSED, NOT TO BE READ IN COURT OR APPENDED TO RECORD. 5. RECORD: EXHIBITS SHOULD BE COMPLETED BEFORE BEING APPENDED TO 6. FINDING: JUDGE ADVOCATE SHALI. BE CALLED BEFORE THE COURT TO 8. SENTENCE: ALTERATIONS-SENTENCE ALTERATIONS. SHALL BE FREE FROM ALL 9. SENTENCE: PHRASEOLOGY OUTLINED IN FORMS OF PROCEDURE SHOULD BE FOLLOWED. 10. RECORD OF PROCEEDINGS: MEMBERS AND JUDGE ADVOCATE ARE RESPONSIBLE FOR ERRORS IN. 11. CONVENING AUTHORITY: ACTION OF, IN REVISION-PROPER PHRASE OLOGY. |