GOVERNMENT LIFE INSURANCE V. LAPSE AND REINSTATEMENT § 63. In General § 63.19. Termination of allotment. A serviceman provided for payment of premiums on his National Service Life Insurance by monthly allotments from his pay. He went AWOL and was placed in a nonpay status but he had accrued about $64 in pay which was uncollected. His allotment was discontinued pursuant to SR 35-1900-5, providing for discontinuance of allotments of persons in a nonpay status for ten days and making such discontinuance effective the last day of the most recent month during which sufficient pay accrued from which the allotment could be made. Section 802 (m) (1) of Title 38 USC provides that the Administrator of Veterans Affairs shall, by regulations, prescribe the time and method of payment of premiums on insurance but payment of premiums in advance shall not be required for periods of more than one month each, and may at the election of the insured be deducted from his pay or be otherwise made. Veterans Administration regulations provide that insurance will lapse while the insured is in active service if the service department discontinues his allotment and the premium is not otherwise paid (sec 8.18, 38 CFR, 1949 ed). The serviceman herein died without ever returning from his unauthorized absence. Held: The serviceman's beneficiary was not entitled to the proceeds of the policy since it lapsed when the allotment for payment of premiums was terminated. The Veterans Administration regulation providing for lapse of policies when allotments have been terminated is valid. Also, the Army Regulation providing for termination of allotments is valid since it is not unreasonable and is not in conflict with sec 802(m)(1) of Title 38 USC. Furthermore, the government was not required to apply his accrued but uncollected pay toward the payment of the premiums since when his allotment was terminated the situation was the same as if there had been no allotment and where an insured has no allotment and is paying premiums in some other manner, accrued pay is not available to continue his policy in force since an insured who defaults in the payment of premiums on a government insurance policy is not entitled to have the policy continued merely because the government is indebted to him for some reason not connected with his insurance. (Citing Mikel v. U. S., 64 F2d 301; U. S. v. Morrell, 204 F2d 490, 36 ALR2d 1374, cert den 346 US 875, 98 L ed 383, 74 S Ct 128.) Held also: The issuance by the Secretary of the Army after the insured's death of a certificate of honorable service did not excuse the insured's absence without leave and nullify the termination of his allotment since the insured at the time of his death, had either a matured policy or a lapsed policy and what happened after his death was immaterial. United States v. Griffin (1954, CA Ark), 216 F2d 217. § 9.1. Generally. HABEAS CORPUS § 9. Jurisdiction and Power to Issue A serviceman pleaded guilty in a French court to a charge of beating a cab driver and stealing his cab and received a sentence of five years confinement. A representative of the staff judge advocate was present at his trial and reported no constitutional irregularities. The serviceman's wife filed a petition for a writ of habeas corpus in the United States District Court, naming as respondents the Secretary of State, the Secretary of Defense and the Secretary of the Army. Held that: - the petition was properly dismissed insofar as it sought a writ of habeas corpus [as] the petitioner's husband is not held in actual or constructive custody by any of the respondents or by any other person subject to the jurisdiction of the United States District Court. (Cf. Ex parte Endo, 323 US 283, 89 L ed 243, 65 S Ct 208 (1944), 3 Bull JAG 536.) regarding the petition as one seeking a mandatory order requiring the Secretary of State to obtain the serviceman's release through diplomatic negotiations with France, the petition was also properly dismissed. The United States Senate's reservation in giving its advice and consent to the ratification of the Status of Forces agreement does not provide that, when an American soldier's constitutional rights are violated in a foreign criminal trial, the Secretary of State should intercede in his behalf through diplomatic negotiations. Its provision is that an American observer shall attend the trial and report to the commanding officer any violation of an accused's rights as stated in Art VII, sec 9, of the agreement, whereupon that officer shall then request the State Department to take appropriate action to protect the rights of the accused. In the instant case the representative of the staff judge advocate reported there were no irregularities and the commanding officer did not request the Department of State to take action. Furthermore, even had the request been made, whether to grant it would have been within the Secretary's discretion. He was not under a legal duty to attempt through diplomatic processes to obtain the serviceman's release. The commencement of diplomatic negotiations with a foreign power is completely in the discretion of the President and the head of the Department of State, who is his political agent. (Citing Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, 99 Cong. Rec. 8724, 8725, 8726 (1953); 99 Cong. Rec. 870 (1953); Marbury v. Madison, 1 Cranch. 137, 164 (U. S. 1803); cf. U. S. v. Curtiss-Wright Export Corp., 299 US 304, 81 L ed 255, 57 S Ct 216 (1936)). since it alleged that the Secretary of Defense without any justification or excuse had terminated the monthly payment which the petitioner believed was an allotment to which she was entitled under Congressional enactment, the petition may be regarded as seeking an order in the nature of mandamus requiring the Secretary to reinstate the allotment which was terminated upon the serviceman's conviction. However, the petition is insufficient for this purpose as it does not disclose a basis for relief as distinguished from a bare averment that the pleader wants relief and is entitled to it. [Bazelon, C. J., concurring in part and dissenting in part states. that although the petition recited that allotments had been terminated, there was no specific prayer for their reinstatement, nor was the matter dealt with in the briefs and arguments and therefore there was no basis even to consider such a claim, let alone make a final disposition denying it on the ground that the petition was insufficient.] U. S. ex rel., Keefe v. Dulles et al (CA, DC, 1954), [decided 16 September 1954; cert den 28 Feb 1955] cert. denied 348 US 952 (1955). § 13. Grounds for Relief and What Will be Reviewed § 13.1. Generally. Federal court review on petition for habeas corpus of adequacy of accused's representation by counsel at court-martial trial and voluntary nature of confessions admitted in evidence at the court-martial trial, see Suttles v. Davis, CRT-M § 27.1. HOMICIDE I. IN GENERAL. § 11. Included Offenses. II. NATURE AND ELEMENTS OF OFFENSES. A. IN GENERAL. § 23. Generally. § 25. Assault With Intent to Commit Homicide. III. EXCUSE OR JUSTIFICATION; DEFENSES. § 51. In General. § 57. Misconduct of Victim; Provocation. 2. Weight and Sufficiency; Presumptions and Inferences. § 107. Murder. § 113. Intent; Malice; Motive; Premeditation. § 119. Cause or Time of Death. § 121. Identity. § 11.1. Generally. I. IN GENERAL § 11. Included Offenses The specification alleged that the accused did, "with intent to commit voluntary manslaughter, commit an assault upon" a certain person, "by shooting him with a pistol." Held: When comprehended within the allegations and proof, assault in which grievous bodily harm is intentionally inflicted is a lesser offense included within assault with intent to commit voluntary manslaughter, even though the former offense requires an additional element of proof (that previous bodily harm was in fact inflicted) than required in the case of the latter offense and even though assault in which grievous bodily harm is intentionally inflicted is not listed in the Table of Commonly Included Offenses, MCM, 1951, Appx 12, as a lesser included offense to the offense charged (U. S. v. Duggan (No. 3584), 4 USCMA 396, 15 CMR 396.) The specification sufficiently alleged the necessary elements of the lesser offense and is sufficient to inform the accused of what he must meet at trial. United States v. Malone (No. 4158), 4 USCMA 471, 16 CMR 45. II. NATURE AND ELEMENTS OF OFFENSES A. IN GENERAL § 23. Generally § 23.27. Killing of human being; unborn or newborn children. The accused, a nurse, was charged with the murder of her baby a few moments after its birth. A medical officer testified that the child in question was born alive and was alive probably a matter of minutes and his testimony was uncontroverted by the defense. Furthermore, the delivery of the child was precipitative and explosive and the child breathed and cried. The child was a well developed, full term infant weighing seven pounds and six ounces, and the only abnormalities appearing after examination of the body were conditions indicative of death by strangulation and such strangulation could not have been occasioned by means of the umbilical cord. In addition, the medical officer had performed a hydrostatic test on the lungs of the infant and found that they floated when placed in water, which is indicative of complete and full respiration, or a proof of live birth. (Gradwohl, Legal Medicine, p 832). Held: Such evidence was sufficient to establish beyond reasonable doubt that the child was "born alive" under the test of separate existence, hence was a human being within the meaning of UCMJ, Art 118. To be the subject of a charge of murder, the victim must have been a human being. (Citing UCMJ, Art 118.) The test for determining whether a newborn child had obtained the status of a human being so as to be the subject of a homicide is whether the child had obtained a separate or independent existence, that is, whether the child was carrying on its being without the help of the mother's circulation. It is not necessary that there be a severance of the umbilical cord. (Citing People v. Hayner (1949) 300 NY 171, 90 NE2d 23; 1 Russell on Crime, 9th ed, p 349, note u; and other authorities.) ACM 9073, Gibson (1954) 17 CMR 911. [See 26 Am Jur, Homicide § 32.] § 25. Assault with Intent to Commit Homicide § 25.1. Generally. Assault with intent to commit voluntary manslaughter is limited to that species of the offense characterized by an intent to kill. Accordingly, a conviction of assault with intent to commit voluntary manslaughter may not be predicated on a mere design to inflict grievous bodily harm. (Citing U. S. v. Floyd (No. 745), 2 USCMA 183, 7 CMR 59; cf. U. S. v. Woodson (No. 1740), 3 USCMA 372, 12 CMR 128; U S. v. Holman (No. 2132), 3 USCMA 396, 12 CMR 152.) United States v. Malone (No. 4158), 4 USCMA 471, 16 CMR 45. III. EXCUSE OR JUSTIFICATION; DEFENSES § 51. In General § 51.11. Insanity or mental impairment of accused. A statement in the course of a board of review opinion that the |