OATHS AND AFFIRMATIONS §3.1. Generally. § 3. Authority to Administer The oath of office prescribed by sec 1757 of the Revised Statutes as amended (5 USC 16) "may be taken before any officer who is authorized either by the laws of the United States or by the local municipal law, to administer oaths, in the state, territory, or district where such oath may be administered". However, there does not appear to be any authority whereby the purser aboard a commercial vessel at sea may administer the oath of office. JAGA 1954/ 9547. 23 November 1954. OFFICERS I. IN GENERAL. § 1. Generally. § 5. Rank and Precedence. 9. Assignments, Transfers, and Details. § 11. Authority to Command. III. PROMOTIONS. A. IN GENERAL. § 77. Temporary Promotions, Generally. § 79. Eligibility, Generally. IV. DEMOTION, TERMINATION OF COMMISSION, AND SEPARATION FROM SERVICE. § 141. In General. § 145. Resignation. § 147. Discharge, Dismissal, and Elimination from Active List. I. IN GENERAL § 1. Generally An Air Force officer apprehended an Army corporal for driving a truck while drunk and turned him over to a civilian police officer to hold until military police arrived. When the corporal tried to escape the policeman shot him. The policeman sought to have his trial for murder removed from the state court to a federal court under 28 USCA § 1442 (a) (1) which provides that a criminal prosecution commenced in a state court against any officer of the United States or agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any act of Congress for the apprehension or punishment of criminals, may be removed to the District Court of the United States. Held: The defendant was entitled to removal since he was acting under the authority of the Air Force captain who was an officer of the United States within the meaning of sec 1442(a)(1), supra, and the captain had authority to apprehend the corporal even though he was a member of a different branch of the service and he also had authority to seek the aid of civilian police. (Citing U. S. v. Canella, 63 F Supp 377, affd 157 F2d 470; 50 USCA § 561(b); sec 28, Army Regulations 600-10, p 11; sec 5, AR 600-10, p. 2; 50 USCA § 705.) Also, 50 USCA § 738, which provides that when any criminal prosecution is commenced in any court of a state against any member of the armed forces on account of any act done under color of his office, such suit may be removed for trial into the District Court of the United States did not supersede or repeal the right of removal granted by sec 1442(a) (1), supra, to a person acting under any officer of the United States within the conditions therein detailed by reason of the circumstance that such officer of the United States also happened to be a member of the armed forces. People of State of Colorado v. Maxwell (DC Colo), 125 F Supp 18, 21 October 1954. § 5. Rank and Precedence § 5.1. Generally. The Assistant Secretary of the Army may legally take action to terminate the temporary appointments in the grade of major of five Regular Army officers and to readjust their temporary dates of rank as captains even though such action may have the incidental effect of reversing adjustment in their temporary dates of rank previously made pursuant to action by the Army Board for Correction of Military Records. The legal argument that the former action of the Army Board for Correction of Military Records may not be "reversed" in the manner proposed does not take cognizance of the fact that the proposed action is predicated upon specific statutory authority to terminate temporary appointments and to adjust temporary dates of rank. The argument amounts to a contention that the adjustment of a temporary rank pursuant to Army Board for Correction of Military Records action accords to such date of rank a finality not common to dates of rank established through normal processes. This conception of the matter does not properly recognize the nature and effect of the original records corrections in the cases of the five officers. When their dates of rank as captains were adjusted to earlier dates, the officers were in the same situation as if such earlier dates had been established through normal processes. Their corrected temporary dates of rank, and subsequent temporary promotions based thereon, are subject to subsequent adjustment and termination under the laws applicable generally to temporary grades in the Army. (Citing JAGA 1954/10230, 20 December 1954; AR 605-200, 18 June 1954; subpar 3b, AR 605-12, 11 February 1954; JAGA 1951/ 6082, 28 September 1951; JAGA 1951/6434, 17 October 1951; JAGA 1954/1583, 17 February 1954.) JAGA 1955/1526. 27 January 1955. 89. Assignments, Transfers, and Details § 9.51. Supply Duty Officers in Marine Corps. A number of Supply Duty Only officers of the Marine Corps in the permanent grade of first lieutenant were serving as captains with temporary appointments under the Act of 24 July 1941, as amended (55 Stat 603, 34 USC 350-350k) and were to be considered for re-selection as captains under the Officer Personnel Act of 1947, as amended (61 Stat 795). The Act of 1 July 1947 (61 Stat 235, 34 USC 625c) provides in part that officers in the line of the Marine Corps of the permanent or temporary grades of captain through colonel may be assigned to supply duty only and further that such officers are to be carried as additional numbers in grade. The question arose as to whether the officers in question could be considered as Supply Duty Officers when they are considered for promotion from first lieutenant to captain under the Officer Personnel Act of 1947, supra. If so, the selection board must have Supply Duty Officer members and the officers under consideration for reselection will compete among themselves rather than with unrestricted line officers. Held: An officer may be assigned to Supply Duty Only while in the grade of captain through colonel. Yet it is plain that in contemplation of the statute an officer so assigned retains his status as an officer designated for supply duty upon advancement to grades other than those in which assignment to such duty is authorized. Therefore, the grade restriction was intended to apply only to original assignments and an officer, once so assigned, retains his designation for supply duty regardless of change in grade. Continuation of an officer's designation for supply duty upon reversion to a lower grade than the grade in which he was originally assigned to such duty would do no violence to the principle on which the statutory restriction is based, that is, that an officer must have substantial general line experience prior to his assignment to supply duty. In view of the foregoing, officers who have been assigned to Supply Duty Only as temporary captains should be considered Supply Duty Officers for the purpose of reselection to the grade of captain under the Officer Personnel Act of 1947. Supply Duty Officers failing of reselection and eventually reverting to the grade of first lieutenant would retain their designation for supply duty. However, upon reverting to first lieutenant they would no longer be carried as additional numbers in grade under the Act of 1 July 1947 and their designations as Supply Duty Officers would be subject to revocation by the Secretary of the Navy. Op JAGN 1954/240. 27 August 1954. § 11.1. Generally. § 11. Authority to Command A Regular Navy captain scheduled for retirement on or before 30 June 1955 may not be detailed to command at sea subsequent to his retirement. Should circumstances justify, the officer could be detailed to such command prior to retirement and action be taken to obtain legislation which would authorize him to retain the command after retirement and until the completion of its mission or until sooner relieved by the Secretary. Op JAGN 1955/269. 8 February 1955. § 11.5. Inspector General officers. Officers of the Ordnance Corps detailed as inspectors general may assume command pursuant to Army Regulations 600-20, 5 May 1950, to the same extent as officers of the Ordnance Corps not so detailed. The detail of an officer as an inspector general does not affect his basic branch (par 6, AR 605–145, 1 Mar 1954). JAGA 1954/7665. 20 September 1954. § 11.45. Navy specialists. The Secretary of the Navy has the authority to authorize succession to command by specialist officers. However, in the interest of the service and of the individual officer as well, succession of command on shore by a specialist should be on a personal or individual basis, requiring in each instance a request by the commanding officer to the Chief of Naval Personnel of the shore activity command for specific authorization that the particular specialist in question succeed to command. However, should it be desired to authorize "line specialist officers" to succeed to command by virtue of being next in rank within the particular command, this end may be accomplished within the framework of existing statutory law by departmental regulations. Op JAGN 1954/246. 9 September 1954. III. PROMOTIONS A. IN GENERAL § 77. Temporary Promotions, Generally 877.1. Generally. Under sec 309 of the Officer Personnel Act of 1947 (34 USC 306d) recommendations for temporary promotion from among eligible officers holding permanent appointments in the Regular Navy who are junior to the junior officer in the promotion zone are limited to not more than five percent of the total number of officers that can be recommended for temporary promotion to the grade concerned. This five-percent limitation on accelerated promotions applies to the total of all eligible officers holding permanent appointments in the Regular Navy below the promotion zone and could consist entirely of unrestricted line officers, or of officers of any restricted category, or of any combination of such groups. The following method should therefore be employed in applying the five-percent limitation: Apply the five-percent multiplier to the total number of officers the selection board is authorized to recommend for promotion, including officers designated for engineering duty, aeronautical engineering duty, special duty, and limited duty; then recommend for promotion not to exceed the resulting limiting number of officers from below the promotion zone without regard to their category as unrestricted line, engineering duty, aeronautical engineering duty, or special duty. Op JAGN 1954/235. 17 August 1954. § 79.1. Generally. § 79. Eligibility, Generally Promotion of Supply Duty officers in the Marine Corps, see Op JAGN 1954/240, supra § 9.51. IV. DEMOTION, TERMINATION OF COMMISSION, AND § 141. In General Termination of temporary appointments, see JAGA 1955/1526, supra § 5.1. § 145. Resignation An officer submitted his resignation from the Marine Corps. The Commandant recommended that the resignation be accepted effective on such date as separation proceedings are completed in his case and that he be issued an honorable discharge certificate. The Secretary approved the Commandant's recommendation. Subsequently |