IN UNDERSTANDING AND applying the hearsay rule it is also necessary to understand the effect of a record on appeal which contains hearsay. It has been spelled out pretty clearly by both the Uniform Code of Military Justice, Manual for Courts-Martial and the Court of Military Appeals. (See Uniform Code of Military Justice Article 59 and paragraph 87c Manual for Courts-Martial.) The Court of Military Appeals said in U.S. v. Isbell, USCMA 131, 2 CMR 43, that a finding based solely on hearsay cannot stand, but where a finding is supported by substantial competent evidence the rights of the accused are not prejudiced thereby within the meaning of Article 59 Uniform Code of Military Justice (which provides that the finding or sentence of a Court-Martial shall not be held incorrect on the grounds of error of law unless the error materially prejudices the substantial rights of the accused). However, when such prejudice is found by the court in a case where, for example, hearsay was the major part of the case, the court will not sustain a conviction. This is true even if Defense Counsel fails to object, U.S. v. Smith, 3 USCMA 15, 11 CMR 15; U.S. v. Manual, 3 USCMA 739, 14 CMR 157; U.S. v. Carrier, 7 USCMA 633, 23 CMR 97. It is only the case where there is other competent and convincing proof of guilt that the court will overlook substantial error, U.S. v. Doyle, 1 USCMA 454, 4 CMR 137. It is clear therefore

that for those of us in the naval service who are involved in the administration of Military Justice a working knowledge of the hearsay rule and its exceptions is mandatory. The following six common sense guidelines are suggested to assist in meeting this requirement:

1. Hearsay, as a rule of evidence is neither difficult nor confusing when applied in the light of the reason for its existence.

2. It should not be the basis of a counsel objection every time a witness starts to testify on something he heard another say.

3. Be cognizant of the definition and apply it strictly to see if hearsay is even involved. If it is, then examine the testimony to see if an exception is applicable.

4. Hearsay is not always considered inherently bad nor entirely inadmissible but may often be used if the underlying technical concept is understood and applied.

5. When you know what your evidence is and why you have a right to introduce it, then the objection of hearsay will be no problem.

6. Always remember it is the duty and responsibility of both the trial and defense counsel to insure that an accused will stand convicted of a crime only when guilt beyond a reasonable doubt is proven by competent evidence.

JAG BULLETIN BOARD

(Continued from page 2) LT William E. Merritt, III, USN, from ComServRon Six to COMSIX.

LTJG John B. Evans, USNR, from SNJ (under inst.) to NAVSTA, Norfolk.

LTJG Bobb H. Hardies, USNR, from SNJ (under inst.) to ADCOM NTC Great Lakes.

LTJG Vernon M. Jordan, USNR, from SNJ (under inst.) to NAS, Pensacola.

LTJG Paul R. Hurley, USNR, from SNJ (under inst.) to JAGO.

LTJG Eric L. Keisman, USNR, from JAGO to Office of JAG West Coast.

LCDR Francis B. Plattner, USN, from BuWeps, N.D. to JAGO.

LT George G. Dowd, Jr., USNR, from SNJ (under inst.) to HSA, Yokosuka, Japan.

FEDERAL TORT CLAIMS ACT SUIT NOT MAINTAINABLE WHERE FEDERAL EMPLOYEE COVERED BY WORKMAN'S COMPENSATION

A civilian employee of the Naval Shipyard Cafeteria System organized under Navy Civilian Personnel In

structions for the purpose of supplying food to shipyard personnel was injured in a fall in the Commissioned Officers' Mess at the shipyard. In the action arising out of this, brought under the Federal Tort Claims Act, judgment was entered for him in the District Court. The Court of Appeals held that where he was covered by workmen's compensation at the time of his injury he was a federal employee and thus precluded from bringing an action under the Federal Tort Claims Act. The Ninth Circuit, in its opinion specially singled out the cases of Faleni v. United States, D.C.N.Y. 1949, 125 F. Supp. 630 (holding that a civilian laundry worker was not a federal employee and could maintain an action under the Tort Claims Act) and Daniels v. Chanute Air Force Base Exchange, D.C. Ill. 1955, 127 F. Supp. 920 (holding that civilian employee of exchange was federal employee, rejecting holding in Faleni, but could bring an action under the Tort Claims Act). In disagreeing with these cases the court found the Faleni case "wholly inconsistent" with certain portions of the landmark case of Standard Oil Company of California v. Johnson, 1942, 316 U.S. 481, 62 S. Ct. 1168. The court also cited as noteworthy another Navy case, Aubrey V. United States, 1958, 103 U.S. App. D.C. 65, 254 F. 2d 768, (Continued on page 19)

T

WO PREVIOUS ARTICLES have appeared in the JAG JOURNAL on the subject of physical disability retirements. One in February 1954 considered the role of counsel, and a more recent article in the December 1958-January 1959 issue generally covered physical disability proceedings under the Career Compensation Act (10 USC, Chapter 61) and regulations contained in Chapter IX of the Naval Supplement. These regulations in the Naval Supplement have now been cancelled and replaced by new regulations which are set forth in a new Disability Separation Manual. The purpose of this article is not to review all disability procedures involved. Rather, it will supplement the recent December 1958-January 1959 JAG JOURNAL article, The Retirement of Pfhineas Quirk by briefly pointing out some of the principal changes effected by the new regulations. The following words set the tone to the new disability regulations which prescribe the administrative procedures and policies to be followed in implementing laws pertaining to discharge or retirement of members from the naval service by reason of physical disability. It is the policy of the Navy Department that laws pertaining to physical disability retirement or separation be administered fairly, equitably, and with due regard for the interest of both the individual and the Government. Although these laws should be so administered as to protect the U.S. Government from assuming unwarranted responsibility for payment of disability and retirement benefits, reasonable doubt as to the entitlement of a member to such benefits will be resolved in favor of the individual.

By this new manual the proceedings before Physical Evaluation Boards have been simplified (except those wherein the party is consid

*The Disability Separation Manual, NAVEXOS P-1990; pp. 43; effective 1 April 1959. Detailed ordering instructions are outlined in FPOINST 5600.1.

**Captain Richard Bacharach, USN, is presently the Head of the Military Promotions and Retirements Branch, Civil Law Division, Office of the Judge Advocate General. He received his LLB from the University of Arizona in 1938. He is a member of the Bars of Arizona and of the Court of Military Appeals and of the American Bar Association.

ered to be mentally incompetent or is already on the temporary disability retired list). A modified procedure, has been provided which "is intended to permit expeditious disposition of those cases in which prima facie recommended findings, based upon the records alone, are acceptable to the party." After being notified of the prima facie findings, the party is allowed two working days to advise the Physical Evaluation Board, in writing, whether the prima facie findings are acceptable to him. If the party accepts the prima facie findings and states in writing that he does not demand a "full and fair hearing," the board forthwith will forward the record to the Physical Review Council. If the party does not accept the prima facie findings, he is given a hearing if he demands it. In any case in which the Physical Review Council does not concur with the prima facie findings of a Physical Evaluation Board and proposes substitute findings substantially detrimental to a party, the Record is returned to the Physical Evaluation Board, and the party is afforded a full and fair hearing if he requests it.

As was formerly the practice, if the Physical Evaluation Board determines that the party is unfit, a disability rating is assigned in accordance with the Veterans Administration Schedule for Rating Disabilities.

THE PROCEDURES PRESCRIBED for the Physical Review Council have been changed to some degree. If the members in the Physical Review Council are in agreement with the recommendations of the Physical Evaluation Board, the record of proceedings is forwarded to the Secretary of the Navy (Judge Advocate General) for final action. If there appear to be no legal defects, the Judge Advocate General will usually take final action for the Secretary, approving the recommended findings. The majority of cases are in this category. The same action is taken if the Physical Review Council, although not in agreement with the Physical Evaluation Board, makes recommendations (substitute findings) which are not "substantially detrimental to the party." If one or

more of the members do not agree with the findings and propose substitute findings substantially detrimental to the party, the following further action will be required: (1) If the party has previously accepted prima facie findings of the Physical Evaluation Board, he must be given notice of the proposed substitute findings and, if he demands it, be afforded a full and fair hearing by the Physical Evaluation Board; (2) If the proposed substitute findings of the Physical Review Council are acceptable to the party and he does not demand a full and fair hearing, the record is returned to the Physical Review Council for forwarding to the Secretary for final action.

If the party has already had a full and fair hearing before a Physical Evaluation Board, and he is not willing to accept detrimental recommended findings of the Physical Review Council, he must express this by a written rebuttal. In such case the record is then forwarded for consideration by the Physical Disability Review Board. The party is allowed five working days after receipt of notice of the proposed substitute findings of the Physical Review Council to file his rebuttal; failure to submit a statement in rebuttal within the time allowed is construed to mean that the substitute findings of the Council (or the majority of the Council) are acceptable to him.

AFTER THE PHYSICAL Disability Review

Board considers a case, the record is sent to the Office of the Judge Advocate General for Secretarial action. If the majority of the Physical Disability Review Board concurs with the majority of the Physical Review Council, and all proceedings are in proper legal form, the Judge Advocate General will take action for the Secretary approving the recommended findings. If not in agreement, the case is briefed and sent to the Secretary for approval of the recommended findings he considers appropriate.

Referring back to Physical Review Council action, if the Physical Review Council does not act unanimously in a case wherein the party has had a full and fair hearing, the member in minority may require the case to be sent to the Physical Disability Review Board "when he questions a matter within the area with respect to which he is the Secretary's advisor" (i.e. personnel, medical or legal matters.) The term "Secretary's advisor" is construed to refer to the duties and responsibilities and technical control aspects as set forth in U.S. Navy Regulations. If he elects not to do so, the case is forwarded to the Judge Advocate General's of

fice and then transmitted to the Secretary for approval of the appropriate recommended findings.

Under the new procedures, when appearance before a Physical Evaluation Board is directed, counsel is designated for the party in all cases, and it is required that he be "a competent, mature officer of sound judgment, who is familiar with procedures, regulations and instructions." In cases wherein the party is considered to be mentally incompetent (and in all other cases when reasonably available) qualified legal counsel (i.e., a member of the bar of a Federal Court of the highest court of a state) is appointed.

THE DISABILITY SEPARATION Manual states that membership on a Physical Evaluation Board shall constitute the primary duty of the officers so assigned. This has been interpreted to mean "one of the primary duties or an important collateral duty," inasmuch as it is not always feasible to assign this as a primary duty of the officer appointed. The main concern is to convene boards with experienced personnel. It was often the practice under the old procedures to set up "rotating watch lists", whose members served at infrequent periods, with the result that there was little continuity of membership with adverse reflection on the quality of proceedings.

Another new requirement provides that when the party concerned is a male member of the Navy, the nonmedical members of a Physical Evaluation Board must be male officers of the Navy or Marine Corps, as appropriate. When the party is a female, a female officer must be substituted for a male nonmedical member. Formerly, Navy nonmedical members participated in cases of Marine Corps personnel and vice versa.

RESERVE OFFICERS appearing before a Physical Evaluation Board may now waive the requirement that when practicable a majority of the members of a physical evaluation board who act on a case shall be senior in rank to the party. Formerly, only regular officers could waive this requirement. Also, in any case wherein a majority of reserve membership is not practicable, the board shall include at least one reserve officer, and the record must contain a certificate signed by the convening authority indicating unavailability of sufficient reserve officers to constitute a majority.

Included in the new Disability Separation Manual is a chapter which prescribes the pur(Continued on page 18)

By

"H

|AVE TASK FORCE will travel"- -a new concept of legal service is summed up in these five words. The Task Force is from JAG. It stands ready to render services and assistance to all commands in the fleets and shore establishments who are in need of legal help. The "task force" plan which originated in December 1957, is familiar to many; it is still foreign, however, to a large part of the service. It is the purpose of this article, then, to acquaint the reader with this legal service through examples of what the JAG Task Force has been able to accomplish during the short period of its existence.

In December 1957, the Navy faced a difficult situation in military justice. Naval districts were being plagued with abnormally large brig populations due, in substantial part, to procedural delays in court-martial cases-delays which were resulting because legal offices were experiencing an unusually increased workload peak. This meant waste of man-hours and money-for an accused in pretrial confinement continues to receive full pay and allowances while awaiting trial with no commensurate productive work.

To assist in the handling of these undeterminable peaks as efficiently and economically as practicable with a limited number of lawyer personnel, the JAG Task Force was established. The Judge Advocate General proposed two task forces one for the East Coast located in the Office of the Judge Advocate General in the Department of the Navy, and one for the West Coast situated in the Office of the Judge Advocate General, West Coast, San Bruno, California. The two JAG Task Forces were authorized.

"Captain James T. Warns, USN, is presently assigned as a member of the JAG Task Force and Appellate Defense Counsel, Office of the Judge Advocate General. He received his AB in 1927 and his LL.B. in 1941 from the University of Michigan. He was admitted to the Michigan Bar in 1941 and is also a member of the bars of the Court of Military Appeals and of the U.S. District Court of Detroit. Captain Warns is a member of the American Bar Association.

Each was manned with officer-lawyers and court reporters who had considerable experience in all phases of trial work.

TWO PRINCIPAL MISSIONS were then as

signed these Task Forces. One mission of the Task Forces was to assist in the appellate review of court-martial cases before Boards of Review on the East and West Coasts and before the U.S. Court of Military Appeals. This was to apply a steady pressure on reducing delay at the appellate level. The other mission was to assist commands at the trial level who were experiencing an overload of cases or in need of the services of trial personnel (usually law officer) in a particular case. A law officer, trial counsel, defense counsel and court reporters on each coast stood ready to respond to these needs of the entire Navy.

In carrying on their mission to assist the fleet and shore commanders, the task forces have demonstrated a flexibility of function and a mobility of operation. As circumstances in any particular case may require, the Task Forces are ready to provide either singularly or in combination, a law officer, trial counsel, defense counsel, counsel for an investigation or party thereto, and court reporters.

They can move on short notice in response to a telephonic or dispatch request to any destination where their services are needed. The Task Forces have thus been able to achieve the optimum of results with a minimum of personnel. Centrally located on each coast, they are in a position to move cheaply and quickly with a minimum of administrative support.

WHAT HAVE THE Task Forces done thus far? During the first year of the task forces' existence-from February 1958 through December of 1958-they completed eleven specific missions in the United States, and in Guantanamo; Panama, Canal Zone, and the Azores. During the calendar year 1959, the task forces

were assigned twenty-three specific missions both within the United States, and in Bermuda, British West Indies, Panama, Canal Zone, San Juan, Puerto Rico, Guantanamo, and Kodiak, Alaska. In all these assignments, the concept of the task force has been praised by those who have received their assistance.

The first task force mission which was in February 1958 was to a principal naval activity faced with a large brig population, a substantial number of which were prisoners awaiting trial by special court-martial. To reduce this large number of pretrial confinees it was necessary to assign more trained personnel to the trial. The JAG Task Force was dispatched to help. A trial counsel, two defense counsels and two experienced court reporters in a matter of days, tried and completed fifty cases! Though these cases involved simple offenses, nevertheless, their rapid disposition was important. As a result a large brig population was reduced and a large cost to the Navy was saved.

From the beginning, however, the usual type of task force assignment has been the furnishing of legal help to commands concerned with general courts-martial jurisdiction who have insufficient legal personnel, or whose qualified legal personnel have become disqualified to act as law officers because of prior participation in other phases of a particular case. A typical example of the former type of task force mission is shown by the following case. A Commanding Officer of a naval station situated hundreds of miles from the nearest major naval activity, and with but one legal officer, was presented with a case involving an accused charged with rape, in violation of Article 120, UCMJ. The accused had been referred to trial by a General Court. Qualified trial counsel, defense counsel, law officer and court reporters were required but were unavailable at the command where all witnesses were to be found. Instead of referring the matter to another command, the cognizant GCM authority asked for the task force. Trial counsel were the first to arrive-prior to the law officer, and court reporters. The law officer and two court reporters next reported to the command the afternoon before the scheduled date of trial and two days later the trial was completed. The Task Force returned to Washington. The record of trial was prepared by the court reporters under the cognizance of the trial counsel, authenticated by the law officer, and then returned to the President of the court and the Convening Authority. In

commenting on the task force concept, the commander who convened the General Court made the following comment in a letter to the Judge Advocate General:

The existence of such a task force trial team and its availability to general court-martial authorities is indeed a fine thing and sorely needed when urgent conditions exist. I trust that this team will continue to be made available in the event its services are needed in the future.

Another service which the task force has been able to furnish has been instruction in military justice, court-martial procedures, and court reporting. Such missions are taken on request. In one instance the task force was sent in response to a request to conduct a series of instructional lectures within certain squadrons and air groups of the Marine Corps. At selected times, UCMJ lectures were given to the officers of the various squadrons concerning the duties of trial counsel, defense counsel and presidents of special courts-martial, and of summary courts-martial officers. While these lectures were in progress, the enlisted court reporter conducted lectures to the enlisted legal personnel on the preparation of charge sheets, records of trial by summary courts-martial, special courtsmartial, informal investigations, and court reporting techniques. The importance of assistance rendered by this instruction is reflected in the following official letter addressed to the Judge Advocate General.

A marked improvement in the conduct of military justice affairs within this Wing has been noted since the course of instruction. Delays in submission of records and appropriate action thereon has been halved and errors requiring action by convening or supervisory authority have practically disappeared. During the past year, 70% of cases required corrective action. Since the course of instruction, one case out of seventeen submitted required such action and in that, the error was relatively obscure and insignificant.

BY SUCH SERVICES and assistance, the Task

Force concept, during a period of two years, has been able to render timely assistance to naval commands with efficient administration and military justice. Born of need, this traveling nucleus of legal talent has more than justified its beginnings and is another example of the Navy's continual search for new methods and techniques which will meet changing conditions and times. Mobile seapower demands no less!