Administration determination. Op JAGAF 1953/38. 23 September

1953.

An officer was declared mentally incompetent to administer his own affairs by a court of competent jurisdiction in Florida. A guardian of the officer's property was appointed by the Florida court but a guardian of his person has never been appointed. The legal guardian has no authority for disbursement of funds for the care and welfare of the incompetent to any person not duly appointed the guardian of his person. The act of 21 June 1950, 64 Stat 249, provides for the payment of retired pay, for the use and benefit of an incompetent member, to such persons as may be designated by certain specified government officials, without the necessity for appointment in judicial proceedings of a committee, guardian, or other legal representative. A proviso in the statute states that it shall not apply where a legal committee, guardian, or other representative has been appointed by a court of competent jurisdiction. Held: The legislative history of the act of 21 June 1950, shows that its purpose was to provide legal authority for the payment of amounts due incompetent members of the uniformed services to designated persons for their use and benefit and for the use and benefit of their dependents, where no legal guardian has been appointed by a State court. Giving consideration to such purpose and to the fact that a guardian generally has the power and duty of paying from the funds of his ward all just debts which are due from the ward and that the family of the ward ordinarily is entitled to support and maintenance from his estate, it seems clear that the term "committee, guardian, or other legal representative," contained in the proviso to the statute has reference to court-appointed officials who are authorized to disburse the funds of the estate for those purposes. Otherwise the statute would be ineffective to accomplish its purpose. Since the retired officer herein is unable to obtain any of the benefits of his retired pay from the guardian of his property, and a legal appointment of a guardian of his person is not contemplated, the designation of a person under the provisions of the act of 21 June 1950 to receive payments of his retired pay is both proper and desirable. MS Comp Gen B-122220, 34 Comp Gen 407. 1 March 1955.

VI. ACTIVITIES OF RETIRED PERSONNEL

§ 79. Restrictions and Prohibitions

§ 79.11. Dealings or transactions with the government.

A retired officer has been offered a position which would require that he sell supplies and equipment to officers' clubs, noncommissioned officers' clubs and enlisted men's clubs and other similar nonappropriated fund activities. Transactions would be conducted in each instance through the club custodian and goods paid for from nonappropriated club funds. Held: As sales to or contracts with nonappropriated fund activities are not sales to or contracts with the Government, there appears to be no provision of federal law or Army regulations which would prohibit the officer, as a retired officer of the

regular Army, from selling merchandise to the mentioned nonappropriated fund activities. (Citing JAGA 1953/6184, 29 Jul 1953; JAGA 1954/7089, 26 Aug 1954; JAGA 1951/2280, 26 Mar 1951; JAGA 1951/2584, 20 Apr 1951; JAGA 1947/3088, 1 Apr 1947.) JAGA 1954/8232. 6 October 1954.

§ 81. Accepting Other Office or Employment

§ 81.32. Enlistment or appointment in National Guard.

A retired officer has been offered a teaching position at a private military academy in Illinois. One provision of the contract offered him states that he will have the rank of captain in the Illinois National Guard. Section 108, ch 129, Illinois Revised Statutes, 1953, provides in part that a requirement for holding a commission in the National Guard of Illinois is that of holding a commission in the National Guard of the United States. Held: In view of the Illinois statute the officer will be obligated to hold an appointment in the National Guard of the United States in connection with his employment at the military academy. In this regard, there is no general provision of Federal law precluding an officer of the Army of the United States retired for physical disability from holding an appointment in the National Guard or the National Guard of the United States. Furthermore, as the military academy is a private institution, no general provision of Federal law precludes him from accepting a teaching position and receiving the compensation attached thereto in addition to his retirement pay. However, for any periods of active duty or drill, training, instruction or other duty for which he would be entitled by virtue of his National Guard or National Guard of the United States status to receive additional pay, he would be required to elect between the pay for such duty or training and his retirement pay. Unless he specifically waives or relinquishes retirement pay, no pay or allowances could accrue in connection with such National Guard services. JAGA 1954/5571. 29 June 1954.

See JAGA 1954/2107, NG § 41.15.

§ 81.35. Employment with Tennessee Valley Authority. See Op CCCG 1951-2, supra § 71.35.

REVIEW

I. IN GENERAL.
§ 1. Generally.

§ 3. Matters Reviewable, Generally.
5. Prejudicial or Harmless Error.
§ 15. Appellate Counsel.

II. INITIAL REVIEW AND ACTION.

§ 21. Who May Take Initial Action.

§ 23. Inferior Courts, Generally.

§ 25. Reference to Staff Judge Advocate or Legal Officer.

§ 27. Action of Convening Authority of Officer Exercising General Court-Martial Jurisdiction.

III. APPELLATE COURTS AND AGENCIES.

$37. Boards of Review.

§ 43. Court of Military Appeals.

§ 1.27. Writ of error coram nobis.

As a remedy available to accused, see United States v. Ferguson, TRIAL § 27.4.

§3.1. Generally.

§ 3. Matters Reviewable, Generally

The law officer excluded government evidence as to the contents of a telephone conversation with the accused on the ground that it was obtained in violation of the wire tap provisions of the Communications Act. However, the government was permitted to show that immediately after the call the accused took certain action which was apparently in furtherance of the matter discussed in the phone conversation. On appeal the board of review held that as a matter of law it was bound by the law officer's ruling on the inadmissibility of the telephone conversation. It concluded that a substantial part of the evidence relating to two specifications was derived from the conversation and should have been excluded and it set aside the findings of guilt as to those offenses but affirmed all other findings. Held: If the accused is acquitted, the government cannot appeal from rulings by the law officer which erroneously exclude material evidence against him. But, if convicted, the accused is entitled to appellate review of erroneous rulings which may have prejudiced his defense. However, the accused's right is not exclusive. To support the conviction, the government may also properly challenge erroneous rulings by the law officer. It may do so not for the purpose of obtaining consideration by the appellate tribunal of the excluded evidence, but for the purpose of showing that the other evidence which has been admitted is not illegally tainted. (See U. S. v. Dandaneau (No. 5156), 5 USCMA 462,

18 CMR 86.) A law officer's ruling is not lightly to be disregarded. If it is of a factual nature and is supported by sufficient evidence it should not be set aside. However, if incorrect as a matter of law, the appellate tribunal is not bound by it. (Citing U. S. v. Volante (No. 4382), 4 USCMA 689, 16 CMR 263.) In view of the foregoing the board of review misunderstood the extent of its power to review the law officer's ruling on the admissibility of the telephone conversation. [Brosman, J., concurring.] United States v. DeLeon (No. 5234), 5 USCMA 747, 19 CMR 43.

Convening authority's review of law officer's grant of continuance, see TRIAL § 15.41.

Consideration by board of review of staff judge advocate's pretrial advice and corrective certificates thereto, see United States v. Schuller, CHG & SPEC § 45.1.

§3.11. New or additional evidence; matters outside record.

On a rehearing of an assault charge, the victim admitted in his testimony that at the first trial he had said he could not positively identify the accused as his assailant. However, in his testimony at the rehearing the witness stated he was positive about the identify of the accused. At the trial the defense counsel did not question the witness as to any other alleged inconsistent statements or impeach his credibility by showing inconsistent statements made at the original trial. However, on review the appellate defense counsel sought to have the board of review examine the record of the original trial and compare it with the record of the rehearing to determine inconsistencies. Held: There is no legal basis upon which the board of review can go beyond the record of trial on the rehearing. The entire record to which the board must be limited within the purview of UCMJ, Art 66 (c), is the record of proceedings of the trial on rehearing. The board has no authority to go beyond the record before it except to determine jurisdiction in the sense of UCMJ, Art 63 (b), when the issue is raised on appeal. (Cf. U. S. v. Whitman (No. 2168), 3 USCMA 179, 11 CMR 179; U. S. v. Gordon (No. 1972), 2 USCMA 632, 10 CMR 130.) NCM 328, Palmer (1954) 16 CMR 401. When the accused's case was reviewed by a board of review, one of the issues considered was whether the convening authority's failure to appoint an officer to counsel and defend the accused deprived the court-martial of jurisdiction. The board concluded that the court-martial was not divested of jurisdiction because an enlisted man served as defense counsel. However, the board concluded to consider the question within regular review channels. In doing so, it noticed a letter in the files addressed to the Judge Advocate General of the Navy which bore the purported signature of the accused. The communication contained the following statement: "In view of the fact that I had enlisted counsel by my own request I have been advised that I should request appellate counsel." The board affirmed the findings and sentence but stated that had it not been for the accused's statement quoted above the board would be constrained to hold that while the designation of a non

commissioned petty officer as defense counsel did not deprive the court of jurisdiction, it was definitely violative of the long-standing custom in the service to appoint officers only as counsel. Held: The issue was properly before the board since par 68b, MCM, 1951, provides that lack of legal power to hear and determine the guilt or innocence of an accused cannot be waived and may be asserted at any time. However, if an appellate agency is going to use any post-trial information as the basis for its decision, on jurisdictional matters or in any other permissible areas, each party should be afforded an opportunity to present his, or its, side of the dispute. Here, before basing an affirmance on a post-trial admission of the accused, he should have been accorded the right to make any explanation, denial, or avoidance which was available to him. At least, he was entitled to be confronted with the testimony and meet the issue it posed if the evidence was to support, in whole or in part, the decision of the board of review. United States v. Long (No. 5503), 5 USCMA 572, 18 CMR 196.

A board of review cannot determine that an accused's sentence is excessive on the ground that other persons received lesser sentences for similar offenses where the record fails to disclose any mention of sentences awarded for similar offenses since boards of review are mere creatures of statute and under the statute they are limited to consideration of matters in the record. Furthermore, the provisions of Appx IV, sec IX F, Naval Supplement to MCM, 1951, are not applicable in this situation. (Citing U. S. v. Gordon (No. 1972), 2 USCMA 632, 10 CMR 130.) NCM 370, Lyduch (1954) 18 CMR 373.

Court of Military Appeal's consideration of unauthorized conferences during the trial though not appearing in the original record of trial, but complained of through certificates attached to record, see United States v. Walters, TRIAL § 81.1.

Power of board of review to consider transcript of pretrial meeting to determine whether improper exercise of command influence was involved, see United States v. Ferguson, TRIAL § 27.4.

Consideration of staff judge advocate's certificate to determine whether he had previously acted in the case as trial counsel, see ACM S-9693, Graham, infra § 25.1.

Right of convening authority to consider matters outside the record, see United States v. Massey, EVID § 189.5.

Refusal of board of review to consider affidavit of accused alleging omissions in record where certificate of correction was not sought and other persons connected with trial were not given opportunity to comment on affidavit, see NCM 383, Daily, TRIAL § 81.1.

$5.1. Generally.

§ 5. Prejudicial or Harmless Error

Error requiring dismissal of, or rehearing on, some findings as not necessarily affecting other findings, see United States v. Field, REH § 1.