[C. M. O. 33-1917]

MILEAGE: EFFECT OF SURRRENDER OF RIGHT TO, BY OFFICER.

It has been held that an officer of the Navy cannot surrender his right to mileage or to any other emolument or allowance pertaining to his office and prescribed by statute and that any effort on his part to waive such right is without effect (File 26280-78, J. A. G., Mar. 9, 1917, referring to decision of the Court of Claims in case of Paymaster's Clerk Katzer; Glavey v. U. S. (182 U. S. 595) and U. S. v. Andrews (240 U. S. 90) cited in support of holding).

MINORITY ENLISTMENTS: EXTENSION OF, AUTHORIZED IN NAVAL SERVICE.

Any enlistment for minority in the Navy or Marine Corps may be extended as is provided by law for extending an enlistment for a term of four years under similar conditions and with like rights, privileges, benefits, and obligations under the provisions of the act of Congress approved April 25, 1917.

OFFICERS OF PUBLIC HEALTH AND MARINE HOSPITAL SERVICE: AUTHORITY OF, TO ADMINISTER DISCIPLINE.

Medical officers of the Public Health and Marine Hospital Service are without authority of law to administer discipline as to Navy or Marine Corps patients under their care, and can only take such action as could be taken in the case of a civilian being treated in the hospital, i. e., preserve order and compel compliance with rules or regulations governing patients in the hospital, such action not being taken as a matter of administering punishment (File 28092-21, J. A. G., Apr. 7, 1917).

In view of the fact that, in conformity with section 1757, R. S., such officers are required to take an oath of allegiance upon appointment, they would not be required to take any further oath when rendering service for the medical department of the Navy. (Supra.)

[P. 7] VOLUNTARY SERVICE-BOY SCOUTS: NEITHER DEPARTMENT NOB

ANY OFFICER THEREOF ALLOWED TO ACCEPT.

Section 3679, R. S., as amended by act of March 3, 1905 (33 Stat. 1257), and act of February 27, 1906 (34 Stat. 49), forbids the acceptance by the Navy Department, or any officer serving thereunder, of any voluntary service "except in cases of sudden emergency involving the loss of human life or the destruction of property" (File 28602-93, J. A. G., Mar. 31, 1917).

WITNESSES: PROCEDURE IN CASE COMPETENCY OF, IS QUESTIONED.

A summary court martial would be justified in exercising its discretion as to whether or not a witness before it, whose competency is questioned, should be required to withdraw pending the taking of testimony by it as to such competency; its decision either way would not invalidate the proceedings.

A witness, whose competency is questioned, has no right to introduce evidence with a view to establishing the same, or to examine witnesses testifying with reference thereto, but such examination should be conducted by the court or the parties to the trial (File 26276–163, J. A. G., Apr. 9, 1917).

C. M. O. 33-1917

[P. 5] COURTS MARTIAL: COMPOSITION OF.

For the trial of officers or enlisted men of the United States Navy or Marine Corps, the majority of the members of a general court martial must be officers of the regular naval service (File 28025-488: 2, J. A. G., April 28, 1917).

[P. 6] NAVAL MILITIA: PAY OF OFFICERS OF, BEGINS WHEN.

[O. M. O. 35—1917]

The pay of an officer of the Naval Militia who is required to be bonded does not begin until such bond is approved (File 26254–2247, J. A. G., May 12, 1917).

NAVAL RESERVE FORCE: LONGEVITY PAY OF OFFICERS OF.

An officer of the Naval Reserve Force who was formerly in the (then) Revenue-Cutter Service is not entitled, while on active duty with the Navy, to credit for his previous service in the former Revenue-Cutter Service in determining his right to longevity pay (File 28550-85, J. A. G., May 17, 1917).

PRECEDENCE OF RETIRED OFFICERS.

The precedence of line officers, active or retired, is determined first, by rank, and second, by date of commission, except in cases where officers have gained or lost numbers, in which event they gain or lose seniority accordingly. The fact that an officer attained his rank in consequence of retirement under section 9 of the Navy Personnel Act of March 3, 1899, does not affect the question of his precedence (File 28025-495: 1, J. A. G., May 2, 1917).

ERRATA: COURT-MARTIAL ORDER NO. 11, 1917, PAGE 1, LINES 5 AND 6. COURTMARTIAL ORDER NO. 32, 1917, PAGE 8, "MISCELLANEOUS.'

In Court-Martial Order No. 11, 1917, page 1, lines 5 and 6 after the words: "following charge," change the comma to a colon and strike out the word "the" and the line which follows.

C. M. O. 35-1917

[P. 1] Second Lieutenant David H. Owen, United States Marine Corps, was tried by general court martial on May 21, 1917, at the Marine Barracks, Fort Ozama, Santo Domingo City, D. R., by order of the commanding officer, Second Brigade, U. S. Marine Corps, and found guilty of the following charges:

Charge I.-When on shore maltreating an inhabitant (one specification). Charge II.-Conduct to the prejudice of good order and discipline (one specification).

SENTENCE

“The court, therefore, sentences him, Second Lieutenant David H. Owen, U. S. Marine Corps, to lose twenty (20) numbers in his grade.”

ACTION OF CONVENING AUTHORITY

"The proceedings, findings, and sentence in the foregoing case of Second Lieutenant David H. Owens, U. S. Marine Corps, are approved.

"Because of the youth and inexperience of Second Lieutenant Owen, of his good character and promise, as testified to by his superior officers, and in the hope that a mild punishment will be sufficiently corrective to cause him to control his temper, and to treat all persons, inferiors as well as equals, with justice, the loss of numbers in his grade is reduced to five (5).

"Second Lieutenant Owen will be released from arrest and restored to duty."

ACTION OF THE SECRETARY OF THE NAVY

The Department cannot forbear to express surprise that a court composed of officers of mature judgment should regard offenses of such seriousness as those of which Lieutenant Owen stands convicted as meriting a loss of but twenty numbers in grade. The action of the convening authority in reducing this already inadequate sentence to one which is but little more than nominal is viewed with distinct regret and disapprobation.

[C. M. O. 37-1917]

The Department does not feel disposed to accept any measure of responsibility for the results which must necessarily ensue from such action and has therefore felt constrained to express its views as matter of record.

C. M. O. 37-1917

[P. 11] ALCOHOLIC LIQUORS: SECTION 12 OF THE SELECTIVE DRAFT ACT ADMINISTRATIVELY CONSTRUED BY THE ATTORNEY GENERAL APPLICABLE TO THE NAVAL

SERVICE.

Sections 12 and 13 of the Selective Draft Act of May 18, 1917, read as follows, viz:

"SEC. 12. That the President of the United States, as Commander in Chief of the Army, is authorized to make such regulations governing the prohibition of alcoholic liquors in or near military camps and to the officers and enlisted men of the Army as he may from time to time deem necessary or advisable: Provided, That no person, corporation, partnership, or association shall sell, supply, or have in his or its possession any intoxicating or spirituous liquors at any military station, cantonment, camp, fort, post, officers' or enlisted men's club, which is being used at the time for military purposes under this Act, but the Secretary of War may make regulations permitting the sale and use of intoxicating liquors for medicinal purposes. It shall be unlawful to sell any intoxicating liquor, including beer, ale, or wine, to any officer or member of the military forces while in uniform, except as herein provided. Any person, corporation, partnership, or association violating the provisions of this section or the regulations made thereunder shall, unless otherwise punishable under the Articles of War, be deemed guilty of a misdemeanor and be punished by a fine of not more than $1,000 or imprisonment for not more than twelve months or both.

"SEC. 13. That the Secretary of War is hereby authorized, empowered, and directed during the present war to do everything by him deemed necessary to suppress and prevent the keeping or setting up of houses of ill fame, brothels, or bawdy houses within such distance as he may deem needful of any military camp, station, fort, post, cantonment, training, or mobilization place, and any person, corporation, partnership, or association receiving or permitting to be received for immoral purposes any person into any place, structure, or building used for the purpose of lewdness, assignation, or prostitution within such distance of said place as may be designated, or shall permit any such person to remain for immoral purposes in any such place, structure, or building as aforesaid, or who shall violate any order, rule, or regulation issued to carry out the object and purpose of this section shall, unless otherwise punishable under the Articles of War, be deemed guilty of a misdemeanor and be punished by a fine of not more than $1,000, or imprisonment for not more than twelve months, or both."

On June 2, 1917, the Attorney General advised the Department that he had administratively construed the provisions of section 12 [P. 12] above set out as covering the entire Military Establishment of the United States, including the Navy and the Marine Corps. The Department has requested the Attorney General's opinion as to the applicability of section 13 above, to the naval service but has not yet received that officer's views on that subject (Op. Atty. Gen., June 2, 1917).

CHECKAGE OF PAY ACCOUNTS OF OFFICER.

There is no authority of law for the checkage of the pay accounts of an officer for his indebtedness to a wardroom mess (Naval Digest 1916, 448; Melville v. U. S., 23 Ct. Cls. 77).

COURTS MARTIAL.

Attention is invited to the fact that important decisions of the Department with relation to courts martial are set forth in General Order No. 296, Navy Department, of May 18, 1917.

[C. M. O. 37-1917]

DISHONORABLE DISCHARGE: EFFECT OF UPON CITIZENSHIP.

Dishonorable discharge from the naval service of the United States inflicted by reason of conviction of an offense other than that of "desertion in time of war" is not attended with loss of rights of citizenship under the laws of the United States. Whether or not such discharge effects the loss of the individual's rights of citizenship in his State is a matter dependent upon the laws of that particular jurisdiction (File No. 28798-6, J. A. G., June 11, 1917).

EMPLOYMENT FOR COMPENSATION: ACCEPTANCE OF BY ENLISTED MAN ON FURLOUGH WITH PAY FORBIDDEN.

An enlisted man sent home on furlough, with pay, to await call, is in the active service of the United States within the meaning of section 35 of act of June 3, 1916 (National Defense Act) and is therefore prohibited from engaging "in any pursuit, business, or performance in civil life, for emolument, hire or otherwise" in competition with local civilians (File No. 7657-449, J. A. G., June 19, 1917).

MARINES: ENLISTMENT OF ABROAD.

There is no provision of law prohibiting the original enlistment of marines abroad, this inhibition having its origin and existence in Navy Regulations only (File No. 3980–1363, J. A. G., June 8, 1917).

MARINES QUARTERED ON A NAVAL VESSEL TEMPORARILY: STATUS OF. The officers of a force of marines temporarily quartered on a naval vessel, not forming a part of the complement of that vessel, are [P. 13] vested with the same authority and powers over such force as such officers could lawfully have exercised were the force serving at a barracks, subject only to the paramount authority inhering in a commanding officer of a naval vessel over all persons embarked on his ship (File No. 5474-620, J. A. G., June 5, 1917).

NATIONAL NAVAL VOLUNTEERS: AUTHORITY OF COMMANDING OFFICER TO DISRATE.

Members of the National Naval Volunteers serving under a permanent rating may be disrated by sentence of a general or summary court martial only. If serving under acting appointments they may be disrated by their commanding officer for incompetency, but not as a punishment. To be disrated as a punishment requires in the case of acting appointments as well as permanent appointments the intervention of a court martial (File No. 3973-190, J. A. G., June 4, 1917).

PAY OF RETIRED ENLISTED MEN ON ACTIVE DUTY.

A retired enlisted man called into active service in time of war or national emergency receives the same pay and allowances that he was receiving when placed on the retired list. He is not entitled to the benefit of any law or regulation, enacted or promulgated, since the date of his retirement, which increases the pay or allowances of enlisted men of the Navy (act of Aug. 29, 1916, 39 Stat. 591; File No. 7657-450, J. A. G., June 22, 1917).

PENSACOLA: STATUS OF NAVAL RESERVATION.

The health authorities of the State of Florida have no jurisdiction to require the naval authorities to report to them any vital statistics or conditions relating to contagious or other diseases prevalent on the Pensacola Reservation (File No. 5716-486, J. A. G., June 6, 1917).

[C. M. O. 40-1917]

PRECEDENCE OF ENSIGNS, UNITED STATES NAVAL RESERVE FORCE. There being no statutory provision covering the question of the precedence with relation to each other of commissioned warrant officers of the Regular Navy and ensigns of the United States Naval Reserve Force, and it having beeen held by the Attorney General (23 Op. Atty. Gen. 156, 160) that the Secretary of the Navy may determine such a question by virtue of his general authority under the President to make rules and regulations for the government of the Navy, it is held that the rank and precedence of the officers hereinafter set forth are as indicated, viz:

[P.14] 1. Ensign, U. S. Navy,

2. Commissioned warrant officer, U. S. Navy,

3. Ensign, U. S. Naval Reserve Force,

4. Commissioned warrant officer, U. S. Naval Reserve Force (File No. 11130-40, Sec. Navy, June 23, 1917).

SURRENDER OF DESERTER: WHAT CONSTITUTES.

The term "surrender" as used in connection with the return of a straggler or alleged deserter refers to his surrender to a naval authority only. The burden rests upon the deserter or straggler to effect his own return to duty or to the custody of such naval authorities as may have been authorized to receive him. The limitation of punishment for desertion (in case of surrender), page 316, Forms of Procedure, has already been changed to read "Desertion (in case of surrender to the naval authorities)" (File No. 26516–248, J. A. G., June 20, 1917).

TEMPORARY APPOINTMENTS: STATUS OF ENLISTED MEN OF NAVY AND MABINE CORPS HOLDING SAME, WHOSE ENLISTMENTS EXPIRE DURING CONTINUANCE OF TEMPORARY APPOINTMENTS.

There is no obligation on the part of the Government to discharge men temporarily appointed as warrant and commissioned officers under the act of May 22, 1917, whose enlistments expire while holding such appointments. Withholding their discharges and final settlements under such circumstances does not amount to detaining them in the service within the meaning of section 1422 of the Revised Statutes as amended by the act of March 3, 1875 (18 Stat. 484). By their acceptance of such appointments under the conditions imposed by the statute of May 22, 1917, they are deemed to have voluntarily waived their right to discharge upon the expiration of their terms of enlistment and to have accepted all of the conditions imposed by the statute, including the requirement that upon the termination of their temporary appointments they "shall revert to the grade, rank, or rating from which temporarily advanced," unless in the meantime they become entitled to promotion to a higher grade in the permanent Navy or Marine Corps (File No. 7657-445, J. A. G., June 21, 1917).

TEMPORARY WARRANT OR COMMISSION: EFFECT OF ON CONTINUOUS SERVICE

Under the provisions of section 7 of the act of May 22, 1917, an enlisted man given a temporary warrant or commission would not in consequence of his acceptance thereof, lose his continuous service as an enlisted man (File No. 7657448, J. A. G., June 18, 1917).

C. M. O. 40-1917

[P. 1] Assistant Surgeon Thomas A. Fortescue, United States Navy, was tried by general court martial on June 5, 1917, at the Navy Yard, Norfolk, Va., by order of the Secretary of the Navy, upon the following charge:

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