victim named or described in the specification was dead and that the cause of his death was a gunshot wound. ACM 7761, Schreiber (1954) 16 CMR 639.

Sufficiency of evidence of identity of victim, see United States v. Schreiber, supra § 119.1.

HOSPITALS, MEDICAL AND DENTAL

TREATMENT

§ 1. In General.

§ 11. Right to Hospital, Medical, or Dental Care and Treatment.

§ 15. Private Hospitals, and Medical or Dental Treatment.

§ 1. In General

§ 1.21. Transportation or travel allowances.

Subsection 404(b), Career Compensation Act of 1949 (63 Stat 821, 37 USC 274(b)), provides that a member of the uniformed services whose name is placed upon the temporary disability retired list who is required to submit to a periodic physical examination shall, for travel performed, be entitled to receive the travel and transportation allowance authorized for the rank, grade, or rating in which retired for temporary duty travel performed while on active duty. The words "for travel performed" as used in the statute include the period such members are hospitalized in connection with the periodic physical examination in the same manner as for a member on temporary duty undergoing hospitalization while on active duty. Although the period of hospitalization is included within the phrase "for travel performed", per diem would not be payable to members in an in-patient status, as pars 4201-5 and 4250-2 of the Joint Travel Regulations provide that per diem is not payable for any period of temporary duty while a bed patient or an in-patient in a hospital subsequent to the day of arrival and prior to the day of departure. The cited paragraphs of the Joint Travel Regulations do not prohibit payment of per diem to those members on the temporary disability retired list who are in an out-patient status.

Held also: There is no legal basis for furnishing meals free of charge to officers or enlisted men on the temporary disability retired list while at a hospital for the purpose of undergoing the required physical examination. Also, where a person is not hospitalized but consumes meals at a military hospital while present for the purpose of a periodic examination, reimbursement should be required at the rates prescribed for non-patient personnel. These rates provide for a surcharge where sec 712, Department of Defense Appropriation Act of 1955 (PL 458, 83rd Cong) is applicable. JAGA 1954/7261. 27 September 1954.

§ 11. Right to Hospital, Medical, or Dental Care and Treatment § 11.7. Persons under court-martial sentence.

An officer was hospitalized during the period 30 June 1954 to 16 August 1954. In July he was tried and convicted by a courtmartial and sentenced to dismissal, total forfeitures and confinement. He is still in the military service and his case is currently being reviewed by a board of review. Held: The officer was eligible

to receive medical care at Army medical treatment facilities during the period 30 June 1954 to 16 August 1954 and accordingly he is not liable for the medical care rendered. However, he is liable to the United States for subsistence and his liability for the subsistence furnished may be based either on the theory of an implied in fact agreement or restitution. (Citing UCMJ, Arts 57 and 71(b); par 6 and Table I, AR 40-506, 19 Dec 1952, as changed; JAGA 1947/7112, 30 Sep 1947; SPJGA 1944/10902, 13 Oct 1944; JAGA 1953/8756, 23 Nov 1953; JAGA 1953/6890, 2 Sep 1953.) JAGA 1954/8668. October 1954.

§ 15. Private Hospitals, and Medical or Dental Treatment

§ 15.4. Absentees and deserters.

25

On 16 November 1953, a member who was AWOL was seriously injured while attempting to escape from arrest by a civilian police officer and was taken to a civilian hospital. On 18 November 1953, military authorities directed a certain commanding officer to assume reporting responsibility for the man. On 14 December 1953 he was released from the civilian hospital to an Army ambulance. Held: With respect to the date upon which the member returned to military control for the purpose of entitlement to private medical care at government expense, if he remained in the civilian hospital pursuant to an agreement between the hospital authorities and Army representatives, he returned to military control upon the date of such agreement. If no such agreement arose, actual or implied, he did not return to military control until 14 December 1953. (Citing subpar 4a, SR 40-505-11, 20 July 1950 as changed by Cl, 17 Aug 1951; par 8, AR 600-120, 8 May 1951; subpar 160b, AR 40-1025, 12 Dec 1944; CSJAGA 1949/4700, 20 Jul 1949; JAGA 1950/4016, 6 Jul 1950; JAGA 1951/2676, 4 May 1951; JAGA 1951/4417, 18 Jul 1951.) JAGA 1954/4103. 3 May 1954.

An enlisted man on leave was to report to a certain station on 14 July 1953. On 16 July he was admitted to a civilian hospital where he remained until 31 July. Morning report entries showed he was carried as AWOL as of 14 July, as of 16 July his status was changed from AWOL to Absent sick in the civilian hospital, and as of 11 August it was changed to show him sick in an Army hospital. Held: Under par 4, SR 40-505-11, 20 Jul 1950, as changed by Cl, 17 August 1951, in effect during the periods in question, civilian medical care at Army expense is not authorized when absent without leave. On the evidence herein the man was absent without leave at the time he entered the civilian hospital on 16 July and he returned to military control on 11 August. (Citing subpar 8c, AR 600-115, 25 August 1947; par 8, AR 600-120, 8 May 1951; JAGA 1952/2623, 10 Apr 1952; JAGA 1954/2573, 5 Apr 1954.) JAGA 1954/7262. 1 September 1954.

INTERNATIONAL LAW

I. IN GENERAL

§ 1. Generally

Commencement of diplomatic negotiations for release of serviceman imprisoned in foreign country as discretionary with President or Secretary of State as his agent, see U. S. ex rel. Keefe v. Dulles, HABEAS C § 9.1.

INVESTIGATIONS

§ 1. In General

There is a presumption that the proceedings of a board of officers or other official administrative procedures are regular and valid unless some invalidating defect is affirmatively shown. (Citing JAGA 1948/4294, 28 Jun 1948; CSJAGA 1949/2996, 2 May 1949; JAGA 1951/1202, 31 Jan 1951.) JAGA 1955/2599. 22 March 1955.

§ 5. Investigators; Personnel of Boards

§ 5.5. Administering oaths.

A civilian employee designated by a District Engineer to investigate frauds on the government or any irregularity or misconduct of any officer or agent of the United States is authorized by virtue of sec 183 of the Revised Statutes, as amended (5 USC 93), to administer an oath during the course of such investigation. (Citing JAGA 1953/6196, 21 Aug 1953, 3 Dig Ops No. 3, INVESTIG § 5.5; JAGA 1954/1700, 23 Feb 1954; U. S. v. Doshen, 133 F2d 757.) JAGA 1954/3994. 7 May 1954.

Under UCMJ, Art 136(b) (4), officers, warrant officers, and enlisted men assigned to criminal investigation detachments or other investigative agencies may administer oaths in performance of their investigative duties if they have been detailed by special orders to conduct such investigations as may be directed from time to time by competent authority. (See Op JAGAF 1951/63, 15 June 1951, 1 Dig Ops INVESTIG § 5.5.) JAGA 1954/1700. 23 Feb 1954.

Civilian guards assigned to investigate agencies are not authorized to administer oaths under UCMJ, Art 136(b)(4), inasmuch as they are not persons "on active duty in the armed forces". However, any civilian officer or employee lawfully detailed to investigate frauds on or attempts to defraud the government, or any irregularity or misconduct of any officer or agent of the United States is authorized to administer oaths in the course of such investigation (RS 183, as amended (5 USC 93)). Further, a civilian guard, if appointed a notary public in the state, district, or territory concerned, would have authority to administer such oaths as are authorized or required under the laws of the United States (act of 3 July 1926, 44 Stat 830, 5 USC 92a). JAGA 1954/1700. 23 Feb 1954.