him an Article 31 warning has not been decided. However, an examination of the holdings of the majority of the Court in the above-cited cases raises strong doubts as to the legality of conducting such tests. The temper of these decisions indicates that the Court would scrutinize most severely such a test which could be construed as compelling a man to make a statement regarding an offense of which he is suspected.

"As regards the alcohol breath check, then, it is legally unobjectionable to employ this countermeasure as a basis for revoking or suspending base driving privileges. It is at least doubtful as to the legality of using it in forming a recommendation for trial by court-martial.

"Review of the member's record of 'ineffectiveness.' This countermeasure requires that when a member has an accident causing a lost-time injury, his total record would be reviewed with a view to separation from the service if 'ineffectiveness' is established. Otherwise he would be referred to the Base Psychiatric Service for screening, rehabilitation, or recommendation for separation. This countermeasure was proposed as the result of studies which indicated that accidents are linked with emotional disturbances, childhood traumas, broken homes, and generally nonconformist behavior.

"The regulations governing the type of administrative discharge for enlisted members which is apparently here contemplated are contained in Paragraph 10275, Marine Corps Manual, and provide as follows: '(a) inaptitude. Applicable to those persons who are best described as inapt due to lack of general adaptability, want of readiness or skill, unhandiness, or inability to learn.

'(c) Character and behavior disorders, disorders of intelligence, and transient personality disorders due to acute or special stress . . .' "While these regulations encompass a rather broad scope, it is clear that they envision a general condition, as evidenced by a continuous inapt behavior pattern. Thus the fact that a member is involved in an automobile accident should not, of itself, constitute sufficient grounds for discharge. [Although the plans state] that the accident will merely cause the 'accidentor's' record to be reviewed and will not be the reason for the discharge, . . . it is conceivable that in the administration of this countermeasure this distinction may become obscured, and discharges would be issued to 'accidentors' whose performance did not warrant it. Hence, although the proposal itself is legally unobjectionable, restraint must be exercised in its execution to insure that any discharges issued are in fact substantiated by a record of inaptitude, and not prompted simply by involvement in an accident.

"As a matter of interest it is noted that this countermeasure may not be employed with equal facility in the case of Marine Corps officers. The use of regular and special fitness reports, as well as the laws and regulations governing the involuntary separation of officers, provide a highly effective check on the suitability of officers for continued service in the Marine Corps. In view

of the relatively complex procedures which condition the discharge of officers, it is dubious whether the proposed countermeasure would prove to be of as great value in the case of officers as in the case of enlisted members.

"Subject to the above comments it is the opinion of the Judge Advocate General that there is no legal objection to the accident-reduction campaign . . (JAG:131.4:jf Ser: 5721 of 31 Aug 59)

RELEASE OF INFORMATION—Names and home addresses and job titles of civilian personnel-Request by company for city directory ● A request for the names, home addresses, and job titles of all civilian personnel in the Navy who work in the metropolitan area of the District of Columbia was made by a private company. This request stated that the information would be used only to assist in a compilation of a city directory for the District of Columbia and the metropolitan area. The opinion of the Judge Advocate General, who was requested to examine the legal aspects of this request and to advise whether the Navy could or should provide the requested information, was as follows:

"An earlier opinion of this office held that furnishing a list of the civilian employees of the Mare Island Naval Shipyard to the same company for the purpose of compiling a city directory was contrary to then effective regulations of the Navy Department. (JAG ltr JAG:II: 3: WEH:evs of 9 Nov 1954 to CO, Mare Island Naval Shipyard.) The regulation which was considered to require this result was NCPI 135.5-7.

"In 1957 the Department of Defense issued DOD Instruction 5410.8, delineating the policy to be adhered to by the military departments in releasing lists of civilian employees' names. Subsequent to the issuance of this Instruction, its substance was incorporated in NCPI as section 135.5-8, and this section was excepted from the operation of NCPI 135.5-7. The keynote of the policy set forth in the DOD Instruction is maximum release of personnel information and flexibility in the application of the guides therein set forth. The most pertinent part provides that requests by commercial firms for lists of employees' names, salaries, official titles and stations must ordinarily be refused, and that exceptions should be granted only when they can be granted with negligible interruption of regular work and without adverse effect upon individual employees. Although the requesting company may be classified as a commercial firm, the purpose for which the desired information is to be used does not fall within the class of uses denoted by the concept "commercial" in the DOD Instruction. It is specifically stated that the information furnished will not be used for the compilation of commercial mailing lists, but that it will be used only to cross-check information gathered in a house-to-house canvass. The information so acquired will be used to compile a city directory.

"The foregoing facts are sufficient to distinguish the instant request from that ordinarily contemplated by the word "commercial". There is, therefore, in my opinion sufficient reason to make an exception to the guide contained in the DOD Instruction concerning

commercial firms, and to grant the Company's request, provided it will create no more than negligible interruption of the regular work of naval employees and personnel and will have no adverse effect upon individual employees. The request states that the company will provide the necessary labor and materials to copy the information desired from available records. If this can be permitted or if the information can be supplied directly without undue work interruption or security dangers, the first objection is overcome.

"The second possible bar to compliance with the Company's request after it is determined that an exception to the general policy is justified, would be that compliance with the request would have an adverse effect upon individual employees. Compliance with the specific request here made would result in no perceivable adverse effect of a substantial nature. Disclosure of the information requested cannot in itself be considered a violation of an employee's privacy, nor are any such invasions of privacy likely to follow as a result of this disclosure. It is noted that the request states that ordinarily employees' home addresses will not be included with the basic personnel data furnished. This provision is subject, however, to the policy relating to maximum disclosure and flexibility to the same extent as the other provisions of the Instruction. It is therefore considered that there is no legal objection to the release of this information as well as the names and job titles of civilian employees of the navy to the company." JAG:131.5:sb of 3 November 1959.

1959, Public Law 86-155 (the "Hump Bill"). Hence, an officer who has been considered but not selected for continuation on the active list and who is eligible for the $2,000 payment provided in the Act of August 11, 1959, but who is subsequently retired for disability is not entitled to the $2,000 payment as an officer voluntarily retired.

The Placement of a Navy officer on the Temporary Disability Retired List under 10 U.S.C. 1202 is not a final and permanent removal from the active list. It is merely the initial step in a series which may lead to a return to duty, retirement or separation for physical disability, so that an officer who is otherwise eligible for the $2,000 payment provided in the Act of August 11, 1959, for officers voluntarily retired, but who is placed on the Temporary Disability Retired List, is not entitled to the $2,000 payment.

A Navy officer who is hospitalized or is being physically evaluated for a possible disability retirement at the time it is determined he is eligible for retirement under the Act of August 11, 1959, but who is subsequently retired for disaiblity is not entitled to the $2,000 payment for voluntary retirements under the 1959 Act. The determining factor is the type of retirement effected. If the officer is removed from the Temporary Disability Retired List and retired under the 1959 Act, however, he is entitled to the lump-sum payment.

A Navy officer who has submitted an application for voluntary retirement under the Act of August 11, 1959, but who is retired for disability may not be regarded as retired under the 1959 Act so as to be entitled to the $2,000 lump-sum payment for voluntary retirements. A Navy officer who, prior to action of the selection board on the continuation of the member on active duty, applies for voluntary retirement under the Act of August 11, 1959, and is voluntarily retired is entitled to the $2,000 lump-sum payment. This is true only if the officer's name was considered by the board and not selected for continuation prior to the approval of his retirement application. The time of submission of the application is not material to entitlement to payment. A Navy officer whose application for voluntary retirement was approved prior to the enactment of Public Law 86-155, or after enactment thereof but prior to action by a selection board, is not entitled to the $2,000 lump-sum payment. The requirement in section 2(d) of the 1959 Act that the member be recommended for noncontinuation on active duty by the selection board is a condition precedent to entitlement to the lump-sum payment. Comp. Gen. decision B-140467 of 18 August 1959.

MILITARY PERSONNEL-Gratuities-Six Months' Death-Children-Conflicting Guardians

Where different guardians appointed by courts of different jurisdictions each claims a 6 months' death gratuity due to the minor child of a deceased enlisted man, the guardian in actual control of the person and property of the minor child, who was appointed by the court whose jurisdiction to appoint a guardian has been tested between the two contending guardians, may be recognized to receive the gratuity. This is true notwithstanding the lack of the final determination between the contending guardians as to the right to receive the death gratuity, since such a final determination under these circumstances is not necessary to protect the interests of the United States or of the minor child. Comp. Gen. decision B-140083 of 24 August

1959.

MILITARY PERSONNEL-R e tired Officers-Employment With NATO-Double Compensation Limitation Applicability

• A retired commissioned officer of the Uniformed Services of the United States was retired for physical disability not incurred in combat or caused by an instrumentality of war. He was subsequently employed by the Department of State for detail to a position with the North Atlantic Treaty Organization, and received a salary from the Department of State, which salary subsequently resulted in a credit to the United States against its share of the NATO expenses. The Comptroller General held that the retired officer must have the NATO position regarded as an appointive one "under the United States Government" as used in section 212 of the Economy Act of 1932 (5 U.S.C. 59a), which precludes concurrent receipt of retired and civilian pay in excess of $10,000 per year. This is true because of the conditions of the service and the provisions of section 532 (b) of the Mutual Security Act of 1954, which permits

retired military officers to be employed in international organizations but subjects their salary to the double compensation limitation of the Economy Act of 1932. Comp. Gen. decision B-140000 of 25 August 1959.

MILITARY PERSONNEL-Retired pay-Cadet, midshipman, etc., service-Officers on duty June 30, 1922-Brownell and Foster

cases.

• This decision concerned commissioned officers of the regular army or navy who were "in the service on June 30, 1922" within the meaning of section 1 of the Joint Service Pay Act of June 10, 1922, 42 Stat. 627. That section authorized military academy service commenced prior to August 24, 1912 and naval academy service commenced prior to March 4, 1913 to be included in the computation of longevity pay. If such an officer, subsequent to June 30, 1932, resigned his commission and later accepted a new commission in the reserve component, he may have such academy service included in the determination of years of active service for retired pay computation purposes. This decision is in line with the holding of the court of claims in Brownell, et al. v. U.S., 140 C. Cls. 427, and Foster, et al. v. U.S., 140 C. Cls. 427. 24 Comp. Gen. 854, overruled.

This decision contains rulings on other situations where naval academy service of 1922 or earlier is involved and the original decision should be obtained if questions of this type arise. CompGen Decision B138512, March 11, 1959.

MILITARY PERSONNEL-Dislocation Allowance-Service schools. With respect to the limitation on the payment of more than one dislocation allowance in any fiscal year (37 USC 253 (c)), the exception for "service schools" was intended to exclude schools designed primarily for attendance by the general public. However, there is no objection to an amendment to paragraph 9004-3 of the Joint Travel Regulations to broaden the definition of "service schools" to include courses of instruction conducted or controlled and managed by one of the uniformed services at civilian educational institutions. CompGen Decision B-138725, March 19, 1959.

PEB REGULATIONS (Continued from page 8) poses and functions of medical boards, which consist of three medical officers. Of particular note is the restriction against including in their reports "opinions as to the existence or permanency of unfitness to perform-duties", or opinions "as to conduct or line-of-duty status of any impairment which the party presents." However, all evidence bearing upon these questions shall be set forth completely. This prohibition is imposed since Physical Evaluation Boards are required by statute to make these findings. The primary purpose of medical boards is to "report upon the present state of health of any member of the naval service who may be referred to the board by competent authority", and they are required to set forth "an expert clinical report of functional status."

Another change involves the procedure before the Physical Disability Review Board. Except in cases arising under Section 302 (a) of the Servicemen's Readjustment Act of 1944, as amended, there shall be "designated a counsel for the Board and appellate counsel for the party who will be required to act, however, only in cases where their services are requested by the President, or by the party whose case is being considered." Formerly, it was within the discretion of the President of the Board to allow the party or his legal representative to appear and present evidence. Counsel for the Board and the party must be qualified lawyers.

THE DISABILITY SEPARATION Manual contains procedures for processing "poor prognosis" cases. Paragraph 0703 (b) provides that "when an individual is to be retired for a disability which will almost certainly result in his death in the near future, a special situation is encountered. The survivors of such a member may benefit if retirement antedates death. Benefits under the Uniform Services Contingency Option Act cannot accrue until retirement. In addition when death occurs within a period of 120 days following release from active duty, the death gratuity may be paid. In order to insure that the beneficiaries of members having a poor prognosis may be eligible for maximum benefits under the law, it is the responsibility of the Counsel of the Physical Evaluation Board, the Physical Review Council, or the Counsel of the Physical Disability Review Board, as appropriate, to insure that the case is handled in the most expeditious manner and that the reviewing authorities are informed at the earliest date practicable that the prognosis is poor in the case and whether the member concerned has made an election under the Uniform Services Contingency Option Act."

For ready reference, Chapter 10 of the Manual contains the various statutory provisions which provide authority for disability retirements and separations from the naval service.1

1. The Dual Employment Act (28 Stat. 205, as amended, 5 USC 62) exempts from its restrictions on federal civilian employment retired officers "who have been retired for injuries received in battle or for injuries or incapacity incurred in line of duty." The Dual Compensation Act (47 Stat. 406, as amended, 5 USC (Supp. IV) 59a (1955)) exempts regular or emergency commissioned officers retired for disability incurred in combat with an enemy of the United States, or caused by an instrumentality of war incurred in line of duty. In making determinations as to whether exemption is warranted, the Judge Advocate General often must rely on health records and physical disability proceedings. Accordingly, it is incumbent on each individual to assure that all available evidence bearing on the origin of a diability, which might justify exemption, is made a matter of record as early as possible.

(Continued from page 13) other to observe them faithfully and defend them jealously. It will be easily seen what international complications might ensue if it were to go forth that the Admiralty Court of Great Britain was prepared to play fast and loose with them for the benefit of a motorist, however small the issues at stake. The defendant is no gentleman, but that is neither here nor there. We find for the defendant, much as we dislike him. The case is dismissed."

This hypothetical "Decision" was suggested for publication by the courtesy of RADM J. M. McElroy, USNR. Adapted for publication in the JAG JOURNAL, this fictitious case, written by British humorist A. P. HERBERT, was first published in the columns of Punch and subsequently published with a collection of like essays in HERBERT, MORE MISLEADING CASES IN THE COMMON LAW, Methuen & Co. LTD, London, 1930.

LEGAL ASSISTANCE NOTES (Continued from page 12) In an assumption, the deal is simply between the buyer and the seller. The lending institution has no interest in it, nor does the FHA if it is an FHA insured loan. Depending upon the workload of the attorney or title company or escrow company, whoever is handling the settlement, on an assumption there is no reason why the whole transaction cannot be completed within a week.

In a purchase, however, the settlement costs must be figured on as being additional expense in connection with the purchase. These costs vary considerably in different areas of the country and also vary according to whether or not the transaction is a refinancing or assumption. In an initial financing or refinancing, in at least one area of the country, settlement costs to the purchaser for an FHA "inservice" loan on a $20,000 house may run anywhere from $500 to $800.

These costs include such things as the 1% brokerage fee, title search, title insurance, preparation of deeds of trust, Federal documentary stamps, recording of deed and deeds of trust, the attorney's settlement fee, prepaid insurance and prepaid taxes, and so forth. In an assumption, of course, there is no brokerage fee involved, a title search may be dispensed with if the buyer wishes, and therefore the cost to the purchaser can be cut considerably. He will still have to pay prepaid insurance and taxes, and pay for the various documents involved, with stamps, recording fees and recording taxes where applicable.

THE SELLER is much better off as far as expenses are involved, with two main exceptions. If he sells through a real estate agent he of course, has to pay the agent's commission, which would generally run around 5% of the selling price. He must also be wary of the brokerage fee or "points" as was stated earlier in the case of FHA Insured Loans. The law permits the charging of brokerage fees, but prohibits a purchaser from being charged more than 1% of the amount of the loan. If the current going rate of discount, or brokerage fees, or "points", is 3%, for instance, the purchaser may be charged 1% but the seller then, in order to have the deal go through, must pay the additional 2%. This can be a real problem in certain areas with certain types of houses because "points" have been known to go as high as 8 or 10. This means that a seller, if he is going to sell his house under an FHA Loan, will have to pay 7 to 9% of the loan in order to sell. This may, of course, be prohibitive, so it might well be wise to actually put into the contract how much the seller is willing to pay in the way of points.

Whether a person is buying or selling, it is an important transaction. Unless he is extremely experienced in dealing with real estate, he will always do well to consult with an attorney. Your local legal assistance officer can frequently give you guidance on the local ground rules and advice on a particular contract or transaction. It is false economy, however, to attempt to save some money by cutting out attorney's fees. While it might be felt sometimes that the fee is high or that the attorney's services are not necessary, obtaining the services of the compotent local attorney to advise and guide on a real estate transaction is just like obtaining an extra insurance policy. You may not feel you really need them but you might be glad you had them.

JAG BULLETIN BOARD

(Continued from page 6)

772 in which in spite of a pre-trial stipulation that plaintiff, a civilian employee of an officers' mess, was not a federal employee, he could not maintain a suit under the Tort Claims Act where he was provided another remedy. (Fernando S. Forfari v. United States, 9 Cir. 1959, 268 F.2d 29.)