December 1952. He states that he was married on 3 January 1953 at Woodhaven, and that his wife traveied to Oceanside during the period 4 to 15 January, 1953. Held: The officer was entitled to have his wife transported to his new station at government expense. Transportation at government expense is authorized if the marriage was before the effective date of the orders directing a permanent change of station. An officer is not required to commence travel before the expiration of proceed time and it follows that travel orders may not be regarded as becoming effective prior to that time. Since the officer's four days' proceed time and ten days' leave had not expired on 3 January, the date of his marriage, he was married before the effective date of his orders and thus entitled to transportation for his wife. (Citing Joint Travel Regulations, pars 7060-1, 3003-1b, and 1150-8; Marine Corps Manual, par 8100.) MS Comp Gen B-118552, 33 Comp Gen 458. 15 April 1954. § 45.27. Stepchildren. An officer sought reimbursement for the cost of transportation of his stepson. The officer's wife receives $80 per month from the boy's natural father for his support but the officer certified that the amount required for the stepson's reasonable and proper living expenses was $140 a month. Held: For the purposes of subsecs 102 (g) and 303 (c) of the Career Compensation Act of 1949, 63 Stat 804, 814, 815, a stepchild is a dependent of a member of the uniformed services only if it is in fact dependent on the member for its support, maintenance and education. Where sufficient funds are available from other sources for its support the child is not in fact dependent on the member. That the child may live with the member and its transportation is a necessary incident to the member's change of station, and that the amount contributed by the member improves the living conditions of the child, does not make the child in fact dependent on the member. Also, the payments received by the member's wife from the child's father are properly to be regarded as income in determining whether the child is in fact dependent on the member. However, the statute does not specify chief support or require that any certain degree of dependency be shown. In the instant case the officer contributes substantially to the child's support, the child is a member of his household, and the child is not in receipt of funds from other sources sufficient for his support. Accordingly, the child is in fact dependent on the officer for the purpose of transportation. (Citing B-23084, 2 Apr 1942; B-89140, 5 Oct 1949; B-94657, 9 Feb 1951; B-3032, 9 May 1939.) MS Comp Gen B-118875, 34 Comp Gen 193. 25 October 1954. § 45.31. Nieces or nephews. An officer may not claim his nephew as a dependent within the purview of par 4301, Joint Travel Regulations, where he stands in loco parentis to him, but has not legally and formally adopted the nephew. The Joint Travel Regulations are published under the authority of § 303 (h), Career Compensation Act of 1949, (PL 351, 81st Congress 63 Stat 802) and must be consistent with law. Paragraph 4301 Joint Travel Regulations, setting forth the definition of dependents is consistent with § 102g, Career Compensation Act of 1949. The term "children" includes, inter alia, stepchildren and adopted children when such stepchildren or adopted children are in fact dependent upon such member but does not include nephews. Applying the rule of statutory construction expressio unius est exclusio alterius it may be seen that nephews, as such, may not be included. The factor of dependency is of importance only in connection with those classes of persons defined as dependents. That is, it is not sufficient that one be dependent in fact unless he also falls within the class of dependents prescribed. Although the officer may stand in loco parentis to the nephew, such fact does not operate to place the nephew within the definition of dependents under the Joint Travel Regulations or the law. Op JAGAF 1954/1. 7 January 1954. § 45.33. In-laws. A mother-in-law, although in fact dependent upon a member of the armed services and residing in his household, is not a "dependent" as defined in subpars 7001-1, 2, Joint Travel Regulations, for whom transportation at government expense is authorized. JAGA 1955/1229. 1 February 1955. III. HOUSEHOLD GOODS AND OTHER PROPERTY OF § 59. In General § 59.13. Members on temporary duty, generally. Transportation of household effects where member is ordered to school for less than 20 weeks, see MS Comp Gen B-115509, supra § 43.5. § 67.1. Generally. § 67. Storage When household effects have been placed in temporary commercial storage incident to permanent change of station orders under conditions which properly may be certified by appropriate authority having knowledge of the facts as entitling the owner to such storage, checkage of the owner's pay account for storage charges so incurred would not be required if the orders are subsequently canceled or modified, resulting in no shipment being made. MS Comp Gen B-117876, 33 Comp Gen 470. 16 April 1954. Drayage of household effects at the old permanent duty station, incident to an ordered change of station, to a point other than a freight terminal is authorized as a service in lieu of drayage to a freight terminal on the condition that such service would not be rendered a second time under the same orders. However, such drayage is not considered a shipment of the effects, and hence does not constitute a bar to subsequent shipment of the effects to such point as may be authorized by the change of station orders involved. The purpose of par 8005-1 (4), Joint Travel Regulations, is to authorize similar local hauling where no entitlement to transportation of effects exists because the former permanent station and the new station assigned, or the home selected by the member upon his retirement or by his dependents upon his death, are in the same metropolitan area. This being the case, such intracity drayage likewise may not be considered shipment. Consequently, temporary storage in connection with intracity drayage is not authorized. MS Comp Gen B-117876, 33 Comp Gen 470. 16 April 1954. In reply to an inquiry as to whether a member who places his effects in temporary storage with every intention of making shipment under permanent change of station orders, but upon the expiration of six months does not do so because of unavailability of housing or other circumstances beyond his control, should be checked for the six months' storage, and, whether, if so checked and shipment is eventually made, he would be entitled to reimbursement for the initial six months' storage, it was held that where effects are placed in storage at point of origin solely upon the owner's responsibility, and no shipment is effected, no part of such storage may be regarded as temporary storage at government expense, irrespective of the member's intentions at the time of storage. Where effects are placed in storage at origin because of conditions existing at the contemplated destination which are known to and may be certified to by appropriate authority as warranting temporary storage, and no shipment is actually made because the conditions at destination, supposedly temporary so as to warrant temporary storage at origin, in fact were not temporary, any advances on account of such storage should be checked in the owner's pay account. Where effects are placed in storage at origin because conditions at the predetermined destination warranting temporary storage at government expense required delay in shipment, and shipment to such destination subsequently is made, the fact that the conditions which necessitated storage did not abate within six months would not operate to deprive the owner of the maximum temporary storage authorized by the regulations. MS Comp Gen B-117876, 33 Comp Gen 470. 16 April 1954. Since temporary storage of household effects is not authorized independently of transportation, storage of the household effects of a member under orders to temporary duty without return to old station would necessarily be limited to storage in government-owned facilities, or to temporary storage in commercial facilities subject to checkage in the member's pay account should such orders not be followed by orders assigning a new permanent station and by shipment of the stored effects incident to such orders. (Citing par 8007–6, Joint Travel Regulations.) MS Comp Gen B-117876, 33 Comp Gen 470. 16 April 1954. There is no authority to obligate funds for storage of household effects of members of the Marine Corps where the sole movement of the effects incident to an ordered change of station is from residence to local storage. (Citing Comp Gen B-113278, 32 Comp Gen 410, 27 March 1953; Comp Gen B-117876, 16 April 1954, 4 Dig Ops No. 1, supra; Joint Travel Regulations, sec 8006-1.) MS Comp Gen B-118133, 34 Comp Gen 45. 28 July 1954. TREATIES § 1. In General Construction of US Senate reservation to ratification of Status of [Armed] Forces Treaty with respect to protection of rights of servicemen tried in courts of foreign country, see United States ex rel Keefe v. Dulles, HABEAS C § 9.1. I. IN GENERAL. TRIAL § 1. Generally. § 5. Administering of Oath. § 7. Attendance and Security of Accused. § 10. Consolidation of Offenses. § 11. Joint and Common Trials; Severance. § 15. Continuances or Adjournment. § 16. Mistrial. § 17. Stipulations. II. CONDUCT OF TRIAL. § 23. Publicity of Proceedings. § 25. Views and Inspections. 27. Conduct and Deliberations of Court, Generally. § 31. Remarks and Conduct of Law Officer. § 35. Arguments and Conduct of Counsel. III. INTRODUCTION AND RECEPTION OF EVIDENCE. § 43. Offer of Proof. IV. INSTRUCTIONS AND CHARGES. § 53. In General. § 55. As to Elements of Offense. § 56. As to Presumptions of Innocence, Burden of Proof, etc. 57. Additional Instructions, Generally. § 59. Restricting or Excluding Consideration of Evidence. V. FINDINGS. § 63. In General. § 65. Deliberation and Voting. § 67. Preparation and Form. § 71. Testimony or Affidavits of Member of Court to Impeach Findings. VI. RECORD OF TRIAL. 877. In General. § 81. Correction of Record. VII. RECONSIDERATION AND REVISION. § 85. In General. § 87. Procedure. I. IN GENERAL § 1. Generally Requiring prosecution to elect between offenses or charges, see CHG & SPEC § 27.25. § 1.5. Time of trial. [See 14 Am Jur, Criminal Law §§ 134-138.] In May 1953 the accused confessed to an offense. His commander elected not to prosecute and so informed the accused. In September a new commander decided to prefer charges and trial was ordered |