officer's obligations to his children. The Department of the Army has no legal authority, however, to require a member of the Army to divert any part of his pay to the support of his dependents or to require him to comply with the support provision of an order of the civil court. Whether disciplinary action should be taken is a matter for determination primarily by the officer exercising general court-martial jurisdiction over the member concerned. (See JAGA 1953/1015, 13 Jan 1953; JAGA 1953/8976, 23 Nov 1953; cf. JAGA 1954/2902, 29 Mar 1954.) JAGA 1954/9284. 22 November 1954.

§ 15. Violations of State and Local Laws

§ 17.

Delivery to Civil Authorities

§ 17.55. For illegitimacy or bastardy proceedings.

Inasmuch as the authority to deliver a member of the Army to civil authorities under UCMJ, Art 14(a), as implemented by subpar 6b, AR 600-320, 17 May 1951, as changed, exists only when the member is accused of a "crime or offense made punishable by the laws of the jurisdiction making the request", and proceedings in illegitimacy, in the State of Minnesota, are not criminal proceedings but civil in nature, the release of a member of the Army charged with illegitimacy to Minnesota authorities is not authorized. (Citing 17 Minn Stat Anno, sec 257.18 et seq. (1947); 1 Mason's Minn Stats, sec 3261 et seq. (1927); State v. Nichols, 29 Minn 357, 13 NW 153; State v. Thompson, 193 Minn 364, 258 NW 527; State v. Jeffry, 188 Minn 476, 247 NW 692; State v. Reigel, 194 Minn 308, 260 NW 293; State v. Sax et al, 231 Minn 1, 42 NW2d 680; Op Atty Gen Minn. 840-C-2, 11 Mar 1953; Op Atty Gen Minn. 193-B-20, 27 Jan 1925; JAGJ 1953/2125, 31 Mar 1953.) JAGA 1954/1947. 4 March 1954.

§ 33. Quarters and Housing

§ 33.9. Household furnishings.

Under current policy issuance of government-owned household furniture to occupants of "Wherry Housing Units" at an Ordnance Depot is not authorized. However, Army Directives may be issued to permit the temporary use of government-owned household furniture in "Wherry Housing Units" provided it is determined that such use will serve the public interest and the right to immediate possession of, and constructive control over, the furniture remains in the government. (Citing sec 340, Sixth Army Manual M6-27, 15 June 1953, C2; sec IV, Quartermaster Supply Information Bulletin, Vol I, 1 Jan 1954; JAGA 1953/9445, 1 Dec 1953; JAGA 1953/ 9416, 1 Dec 1953; JAGA 1953/3548, 17 Apr 1953, 3 Dig Ops No. 1, MIL PERS § 33.9; JAGA 1953/2942, 10 Apr 1953, 3 Dig Ops No. 1, SUPPLIES, ETC. § 93.) JAGA 1954/4942. 27 May 1954.

II. LEAVES, PASSES AND DELAYS

§ 37.1. Generally.

§ 37. In General

Administrative readjustment of leave balances is separate and apart from, and does not involve, the amendment of leave orders. For example, where leave orders authorize ten days leave and five days are actually taken, the member's leave record is charged with only five days leave actually taken and the recital of ten days in the leave orders is disregarded. Moreover the leave orders are not amended to reflect that only five days leave were taken. Whether a leave balance should be adjusted is an administrative matter. (See subsec 4e, Armed Forces Leave Act of 1946 (60 Stat 964) as amended (37 USC 33e); par 19, AR 210-10, 8 Jun 1954. Not following JAGA 1953/9383, 16 Dec 1953.) JAGA 1954/7658. 8 September 1954.

Pertinent regulations do not provide procedures or standards for readjustment of leave balances in cases of irregular practices such as those that prevailed in the cases of military personnel detailed or assigned to duty with the Panama Canal Company or the Canal Zone Government, whereby such personnel were permitted to take leave at the same rate as civilian employees and any such leave taken was not charged against military leave credits. It thus appears that the matter of readjustment is one for consideration by the agency within the Department of the Army having the function of developing policy respecting the granting and charging of leave and for ultimate determination by the Secretary of the Army or in accordance with procedures established with his approval. JAGA 1954/10301. 18 January 1955.

§ 37.5. Excess leave without pay status.

An officer holding a commission in the Regular Army on excess leave without pay or allowances remains in an active status and is not removed from military jurisdiction or the operation of statutes conferring benefits on military personnel. Furthermore, any instrument executed by such person purporting to waive such rights and benefits would not be binding. (Citing CSJAGA 1950/1707, 16 Mar 1950; JAGA 1950/3241, 28 June 1950; JAGA 1952/2984, 21 Mar 1952, 1 Dig Ops, MIL PERS § 37.5; JAGA 1946/8069, 8 Oct 1946; JAGA 1953/6364, 26 Aug 1953; JAGA 1954/3563, 12 Apr 1954.) JAGA 1954/3985. 21 April 1954.

§ 39. Sick or Convalescent Leave

§ 39.25. Leave to obtain civilian medical treatment.

Inasmuch as current Army Regulations do not provide for leave for the specific purpose of obtaining civilian medical care, leave for such purpose must be obtained on an ordinary leave basis, and the granting of such leave is within the discretion of the appropriate commander. (Citing AR 600-115, 24 Sep 1953; SPJGA 1943/6767, 20 May 1943; CSJAGA 1950/2177, 30 Mar 1950.) Furthermore, the line of duty determination for an operation or treatment, or for

death or any ill effect directly attributable to operation, treatment, or anesthetic, administered or performed by a civilian physician, is the same as that for the disease or injury for which the treatment was instituted. Merely submitting for treatment by civilian physicians and surgeons does not, in itself, constitute misconduct. (Citing subpars 6a and 6b (1), AR 600-140, 12 Feb 1953; JAG 210.46, 24 Oct 1921; JAG 220.46, 10 July 1926; JAG 220.46, 19 June 1928; JAG 220.46, 10 May 1938; JAG 210.46, 15 Nov 1922.) JAGA 1954/4661. 10 May 1954.

§ 47. Unauthorized Use or Possession of Pass

§ 47.1. Generally.

The accused was charged with wrongfully having in his possession, with intent to deceive, an unauthorized liberty card. The court in its findings eliminated the words "with intent to deceive" and found him guilty of wrongfully having in his possession an unauthorized liberty card. Held: The possession of an unauthorized liberty card, the possible purpose of which is to protect one who is failing to carry out an assigned duty, is conduct prejudicial to good order and discipline. (Citing U. S. v. Blue (No. 2778), 3 USCMA 550, 13 CMR 106.) NCM 321, Finkelstein (1954) 16 CMR 383.

§ 47.5. Blank pass.

Under each of two specifications the accused was charged with wrongful possession of a military pass, knowing the same to be unauthorized. Both from the specifications and from the passes themselves, which were admitted into evidence, it appeared that in neither case had the pass form been completely filled out. Held: The specifications state an offense. There is small difference between possession of a pass falsely made and possession of one capable of being so made. Both possessions are with scienter, the one with knowledge that the pass was falsely made, the other with knowledge that such possession was unauthorized. In either case, the possessor is not rightfully in possession, and if charged with that knowledge in a specification which contains other essential ingredients, he is properly charged with an offense in violation of UCMJ, Art 134. (Citing U. S. v. Blue (No. 2778), 3 USCMA 550, 13 CMR 106; U. S. v. Frantz (No. 1114), 2 USCMA 161, 7 CMR 37; ACM S-22, Simmons, 2 CMR (AF) 99; U. S. v. Karl (No. 1904), 3 USCMA 427, 12 CMR 183; ACM S-8311, Rabon, 14 CMR 942; ACM S-8021, Deel, 14 CMR 700 and other cases. Distinguishing CM 260877, Harmon, 40 BR 45; CM 261917, Barone, 40 BR 349.) ACM S-10070, Holmes (1954) 18 CMR 599.

III. PERSONAL INJURY, DISABILITY, OR DEATH

§ 59.5. Autopsies.

§ 59. In General

The commanding officer of a disciplinary barracks may authorize, without permission of the next of kin, an autopsy upon the remains

of a prisoner whose punitive discharge was not executed prior to his death (par 14b AR 40-610, 4 Feb 1954). Furthermore, the surgeon of such installation may also authorize an autopsy where he deems it necessary to determine the true cause of death and to secure information for the completion of military records. However, in the case of a prisoner at a disciplinary barracks whose death occurred while serving a sentence of confinement, but after he had been punitively discharged, written permission would have to be obtained from the next of kin of the deceased prisoner before an autopsy is performed on his remains, inasmuch as the prisoner was not a "person dying in the military service while serving on active duty" (par 14b (2), AR 40-610, supra). If such permission is obtained, the commanding officer or the surgeon of the military installation concerned may authorize the performance of the autopsy where it is deemed necessary to determine the true cause of death and to secure information for completion of military records. JAGA 1954/6252. 4 August 1954.

§ 59.81. Waiver of benefits.

Two enlisted members of the Coast Guard, who were eligible for early release and were professional baseball players, requested that they be transferred from California to a station on the east coast and then be placed on leave so that they could engage in spring baseball practice. It was proposed that they execute a statement that they would assume complete responsibility for injuries sustained while on leave status and in connection with their employment (as baseball players). Held: The proposed waivers would have no force and effect. It is well established that waivers of retired pay, quarters allowances, uniform allowances, and similar benefits are not recognized in law (U. S. v. Andrews, 240 US 90, 60 L ed 541, 36 S Ct 349; Brooklyn Savings Bank v. O'Neill, 324 US 697, 89 L ed 1296, 65 S Ct 895; Bancroft v. U. S., 56 Ct CI 218). Likewise, any waiver of disability benefits to which an individual might become entitled in the future is equally invalid.

Held also: The requested transfer of the enlisted men from California to a station on the east coast would be solely for the convenience of such enlisted persons and would not appear to be in the public interest and payment of transportation allowances for such a transfer would appear to be unauthorized (sec 6454, JTR). Inasmuch as the enlisted men would be entitled to a travel allowance from last permanent duty station to home of record or to place of acceptance for enlistment, which could be California, their request could result in the government expending funds for a two-way cross-country trip under circumstances which would only warrant an expenditure of appropriate funds for travel from the last permanent duty station to a home of record or place of enlistment. It would also appear that a waiver of any authorized travel allowance would not bar a later claim. (Cf. 15 Comp Gen 517.) Op CCCG 1954/13. 19 March 1954.

§ 61. Disposition of Remains of Deceased Personnel; Burial

§ 61.3. Persons eligible to direct.

A certain officer was reported missing in action on 21 March 1951 and carried in that status until 2 November 1953. Pursuant to authority contained in sec 9, Public Law 490, 77th Cong, as amended, (Missing Persons Act), an official casualty report was being prepared stating that the officer was killed in action on 21 March 1951, the date he was originally reported missing in action, while participating in Korean operations. His wife remarried in April 1952. No divorce was obtained dissolving the marriage to the subject officer who was at that time missing in action.

Held that:

- since the wife was the lawful wife of the decedent on 21 March 1951, and that is the date upon which he was found to have died, regardless of the date upon which that determination was made or upon which evidence of death was considered to have been received in the Department of the Air Force, she is the next of kin as defined in par 3b (1), AFR 30-11, 25 January 1952, and, accordingly, she should be listed as next of kin in the final casualty report.

- as such next of kin, the wife would be entitled to direct the disposition of the remains as indicated in the regulations should they become available to the United Nations Command.

- with respect to a question as to whether even though the wife is designated as beneficiary for gratuity and arrears in pay, she would be eligible to collect the same in view of her marriage, for the reasons set forth above, as the widow of the decedent she would be entitled to the death gratuity and any other payments authorized for a person in such position. Op JAGAF 1953/47. 30 November 1953.

§ 61.31. Remains of applicant for enlistment or aviation cadet training.

An applicant for aviation cadet training reported to a recruiting station where he was administered an AFQT test and given a preliminary physical examination. Subsequently the applicant proceeded to an Air Force base pursuant to instructions. At this time he was issued round trip transportation and meal tickets. Before completing the pre-cadet appointment examinations he died of a previously existing heart ailment. A civilian mortician prepared the remains and transported the same to the applicant's home and collected the costs of preparing and shipping the remains from the applicant's father who seeks reimbursement. Held: Funeral expenses as authorized by 10 USC 916a and b are allowable for the deceased in this case, since he was an "accepted applicant for enlistment" within the terms of such appropriation act. Reimbursement should be accomplished in accordance with the procedures prescribed in ch 10, Air Force Manual, 143-1, 1 November 1953. If this Manual is not available par 6, AFR 143-2, 17 July 1951, may be followed. (Citing 27 Dec of the Comptroller of the Treasury 963, 11 May 1921; sec 1, Army Aviation Cadet Act, 55 Stat 239.