THE UNITED STATES favored the creation of an intergovernmental maritime organization in order that there might be a centralized organization to participate on an equal basis with aviation, telecommunication, and meteorological organizations in the international coordination of such matters as safety of life at sea. Also, it was considered that the extensive network of international agreements touching on shipping matters, such as the Load Lines Convention of 1930, the 1954 Convention for the Prevention of Pollution of the Seas by Oil, and the International Maintenance of Certain Lighthouses, warranted a central organization from the viewpoint of having continuous administration. The transfer of functions to IMCO will vest in that organization the responsibility for carrying out the safety of life at sea program and make for greater continuity of action. IMCO will bring together, at more frequent intervals, technical experts of all of the maritime countries to discuss the handling of safety matters and mutual shipping problems. IMCO's organic structure includes the following principal bodies: an Assembly, a Council, a Maritime Safety Committee, and a SecretaryGeneral. The appointment of Ove Neilsen as the first Secretary-General of IMCO was approved by the Assembly. Mr. Neilsen served for a number of years as Chief of the Shipping Department of the Danish Government and represented his country at many international maritime and shipping conferences. He told 20. IMCO now has 35 members as follows: Argentina, Australia, Belgium, Burma, Canada, China, Denmark, Dominican Republic, Ecuador, Finland, France, German Federal Republic, Ghana, Greece, Haiti, Honduras, Iran, Ireland, Israel, Italy, Japan, Liberia, Mexico, Netherlands, Norway, Pakistan, Panama, Sweden, Switzerland, Turkey, USSR, United Arab Republic, United Kingdom, United States, Yugoslavia. 19 the IMCO Assembly that he would like to bring the "salt water spirit" to the new organization. IMCO headquarters are in London. The Assembly, composed of all member nations and the policy-making body, held its first meeting in January 1959. According to the IMCO charter, the Assembly meets at least once every 2 years, with its 16-member Council acting as the agency's governing body between the biennial sessions of the Assembly. The Maritime Safety Committee is composed of 14 different states, and will meet at least once every year. It is charged with all matters affecting maritime safety. Specifically, the Maritime Safety Committee is responsible for any items placed before it concerning aids to navigation, the construction and equipment of vessels, Rules of the Road, regulations on manning from a safety aspect, marine casualty investigation, the handling of dangerous cargoes, salvage and rescue operations, hydrographic information, and any other technical matters connected with safety of life at sea. THE MARITIME SAFETY Committee of IMCO held its first working session in early November 1959. The most urgent matter discussed by the Committee at that meeting related to the 1960 Safety of Life at Sea Convention. Organization arrangements were made for that Conference to be held under the auspices of IMCO. The Committee also considered what should be done to review and revise the International Code of Signals. In addition, IMCO has begun work relating to the unification of maritime tonnage measurements, prevention of pollution of the sea by oil, a future Load Lines Conference, cutting the vast amount of paperwork documentation required when entering or leaving ports, and improvement of port and harbor facilities.21 CONCLUSION IT IS APPARENT that the many activities and decisions of the 1960 Safety of Life at Sea Conference will have some meaning for every naval officer. So also the current and future undertakings of the United Nations' IMCO, particularly its Maritime Safety Committee, should be of continuing interest to all seafarers. The Navy will continue to give its wholehearted support to these organizations that can contribute to welfare of ships, seamen and travelers these organizations which can help reduce the perils of the sea. MAY 1960 DEFENSE PROBLEMS START WITH THE THREAT WE FACE The major threat facing the United States today is the grim dynamism of Communism driving toward one goal—a Communistcontrolled world. This is Communism's major and self-proclaimed aim. Working always with this goal in mind, Communism's big problem is how-how to achieve it. The Communists will do anything, absolutely anything—to achieve world Communism, to gain world empire. They recognize only one restraint, excessive risk. They will not do anything which gravely risks the destiny or existence of Communism. That is what the Cold War is all about. It is simply Communism's day-to-day effort to achieve world domination by economic, political, psychological means, any means short of armed conflict. It is an effort just as deadly, just as fatal to freedom on this earth-as are their overt attempts at aggression. One of the most important things we as a nation and as individuals must do is to keep the overall threat in perspective, to view each part in relationship to the whole. Otherwise, we can become so fascinated by just one small part which may be fearsomely dramatic that we lose sight of the whole threat. Not only must we view the threat completely, we must view our own capabilities similarly. Our capabilities, particularly our military capabilities, are based on our needs. Our needs are not the same as Communism's needs. The Communists hold nations captive; we do not. The Communists seek to control the world; we do not. We rely upon the seas; the Communists do not. We want to see a world of order and justice, one in which freedom may thrive. The Communists want the opposite. Thus our desires are not their desires; our needs are not their needs and our military requirements are not their military requirements. Our requirements differ throughout the whole spectrum of war. Our military requirements for general nuclear war can be stated simply. We need sufficient strength to deter the Communists from starting general nuclear war or, failing that, to defeat them if they do. The advent of the ballistic missile does not affect this. What it does affect is the relative vulnerability of nuclear delivery forces. This comes about because ballistic missiles can hit anything that stays in one place, once its location is known. On the other hand, ballistic missiles cannot hit anything that keeps moving or whose location is unknown. When the location of anything is known, its address can be put into a ballistic missile. The missile can be aimed and fired. Just like a bullet leaving the barrel of a gun, a ballistic missile goes where it is aimed. Its aim cannot be changed in flight, it has to go where it was told to go. When the missile gets there, the target is still at that place, it gets hit. If the target is not there, it does not get hit. Thus mobile launching platforms rema tually invulnerable. The more an aggressor shifts his nuclear weapon capabilities to ballistic missiles the less vulnerable mobile launching platforms become and the more they will be needed. Launching platforms can be moved about on land. At sea they can go in any direction, can be truly mobile. At sea, too, we can keep the location of weapon launchers unknown. There, they can be dispersed, widely dispersed in millions of square miles of ocean and they can move at will. We have such mobile launching platforms right now. At sea in the Mediterranean and in the Ear East are aircraft carriers with nuclear weapon delivery capabilities. The aircraft in these amazingly versatile ships outnumber the heavy bombers in the Soviet Union. Their weapons are many times more powerful than the atomic bombs used in World War II. This nuclear delivery capability is significant all by itself. These carriers have the low vulnerability of all moving things. We exploit this. When international tensions mount we get an even greater number of carriers, more aircraft and other ships to sea. We keep them moving, thus low in vulnerability. At sea, we enhance our strike-back capabilities. These forces stress mobility. They stress it because mobility allows us to get adequate military strength where needed, when needed. Mobility frees us from the necessity to post sizable forces near every potential trouble spot in the world. Instead, we move forces to where trouble erupts and we move them out when trouble ceases. trouble. This is a significant capability and we have it. They are then ready to m Arleigh Buske Admiral, U.S. Nayy Chief of Naval Operations The JAG Journal is published by the Office of the Judge Advocate General of the Navy as an informal forum for legal matters of current interest to the naval service. The objective of the JAG Journal is to acquaint naval personnel with matters related to the law and to bring to notice recent developments in this field. The JAG Journal publishes material which it considers will assist in achieving this objective, but views expressed in the various articles must be considered as not necessarily bearing the endorsement or approval of the Department of the Navy, or the Judge Advocate General, or any other agency or department of Government. Invitations to submit articles are extended to all persons, whether lawyers or laymen. Articles submitted should adopt an objective rather than an argumentative approach and should be written in a manner readily understandable by the lay reader. The JOURNAL will return unpublished manuscripts if so requested, but responsibility for safe return cannot be assumed. No compensation can be paid for articles accepted and published. Use of funds for printing this publication has been approved by the Director of the Bureau of the Budget, 10 September 1957. REAR ADMIRAL CHESTER WARD, USN Judge Advocate General of the Navy CAPTAIN WILLIAM C. MOTT, USN Deputy and Assistant Judge Advocate General of the Navy LIEUTENANT COMMANDER ANDREW J. VALENTINE, USN Editor For sale by the Superintendent of Documents U.S. Government Printing Office, Washington 25, D.C. (Monthly). Price 15 cents (single copy). Subscription price $1.25 per year; 50 cents additional for foreign mailing. RECENT DECISIONS OF THE COMPTROLLER GENERAL Prepared by the Finance Branch, Office of the Judge Advocate General MILITARY PERSONNEL-Officers qualifying for increased pay on account of enlisted service-Active enlisted service-Dual status. • Section 201 (a) of the Career Compensation Act of 1949, as amended by section 1 (1) of Public Law 85-422, approved May 20, 1958, provides a special table of basic pay rates for "commissioned officers who have been credited with over four years' active service as an enlisted member." In response to a request for an advance decision the Comptroller General recently made the following determinations with regard to that provision of law: (1) Active duty for training as an enlisted member is creditable for purposes of determining whether or not commissioned officers have over four years' enlisted service. (2) The following types of enlisted service are not so creditable: (a) active service in a dual status in the Navy or Marine Corps (temporary officer-permanent enlisted.) (b) active service as an aviation cadet prior to 4 August 1942 (c) active service in a dual status (aviation cadet enlisted prior to 4 August 1942 In addition, the Comptroller General made the following resolutions concerning the legality of inclusion by an enlisted member of certain types of military service for purposes of computing his basic pay under section 201 (c) of the Career Compensation Act of 1949. (1) Service in a dual status (temporary officer-permanent enlisted) is so creditable. (2) Service in a dual status (member of service academy-enlisted) is so creditable. MILITARY PERSONNEL-Readjustment Payment to Reservists on Involuntary Release-Five Years of Service-Training Duty The inclusion in the definition of "active duty" in 10 USC 101 (22), which was enacted into positive law by the Act of August 10, 1956, of "full time training duty" requires the application of such definition to service performed by members of reserve components of the Armed Forces after such date rather than a more restrictive definition in Section 101 (B) of the Armed Forces Reserve Act of 1952. Therefore, a member of a reserve component may have periods of active duty for training performed on or after August 10, 1956 credited as part of the continuous active duty necessary for eligibility for lump-sum readjustment payment prescribed in Section 265 of the Armed Forces Reserve Act of 1952, as added by the Act of July 9, 1956, and, since active service means service on active duty (10 USC 101 (24)), he may have such service included for use as a multiplier in computation of the amount of readjustment pay. 36 Comp. Gen. 129, modified. Active duty for training performed on or after August 10, 1956 by a member of a reserve component of the Armed Forces may be considered as active duty to determine eligibility for, or the amount of, lump-sum readjustment pay under the Act of July 9, 1956. However, such duty performed prior to August 10, 1956, may not be considered as active duty for those purposes because the change in the definition of active duty to include training duty contained in the Act of August 10, 1956 does not apply retroactively. Comp. Gen. decision B-139855 of 25 September 1959. (Continued on page 5) ARREST AND CONFINEMENT By LT ROBERT C. WATSON, USNR* N COMMON EVERYDAY usage the terms apprehension, custody, and confinement have been used somewhat indiscriminately and at times interchangeably. In our daily newspapers we seldom read of a felon being placed "in confinement." Usually the report speaks of his arrest, which has a connotation of an apprehension, a taking into custody and a confinement all wrapped into one. It is perhaps because of this connotation that Article 95 of the Uniform Code of Military Justice has been somewhat troublesome and not thoroughly understood. Article 95 states: Any person subject to this code who resists apprehension or breaks arrest or who escapes from custody or confinement shall be punished as a court-martial may direct. In military law each of the terms apprehension, arrest, custody, and confinement has distinct technical meaning and it is, therefore, important that each of these terms be distinguished and understood when an Article 95 offense has been committed. THE MANUAL FOR Courts-Martial, 1951, defines apprehension as the act of taking a person into custody.1 Custody is defined as the restraint imposed as the result of a lawful apprehension. Thus, a lawful apprehension is a prerequisite of lawful custody. Custody is a temporary status of restraint created to satisfy the need for authority by those people who are engaged in law enforcement functions. The status of custody arises with a lawful apprehension and ends when proper authority is notified and has taken action to alter such status to release, confinement, arrest, or restriction. Since custody is by its nature a transient status, it is often necessary, in charging violations of Article 95, to determine precisely what status the man was in. Resisting apprehension, escapes and attempted escapes from custody and confinement are all separate offenses under Article 95 and are not lesser in *Lieutenant Robert C. Watson, USNR, is presently assigned to the Legal Office. Naval Station, Newport. He received his BS degree in 1956 and his LLB in 1958 from the Marquette University. He is a member of the Wisconsin bar and of the Court of Military Appeals and is a certified trial and defense counsel. 1. Para. 18, MCM, U.S., 1951. 2. Para. 174c, MCM, U.S., 1951. 3. U.S. v. Carter, 3 CMR 190, CM 350130. cluded offenses. Therefore, a charge of escape from custody would not be supported by proof of escape from confinement, nor would a charge of resisting apprehension be supported by evidence of escape or attempted escape from custody. Further, since custody results from a lawful apprehension, one must know what constitutes a lawful apprehension. The elements of a lawful apprehension are three. The person effecting the apprehension must have authority to apprehend, he must have a reasonable belief that an offense has been committed and that the individual to be apprehended committed the offense, and he must clearly notify the individual that he is being apprehended." WHO HAS AUTHORITY to apprehend? The Manual provides that all officers, petty officers, noncommissioned officers, and when in the execution of guard or police duties, air police, military police, shore patrol, and such persons as are designated by proper authority to perform guard or police duties are authorized to apprehend persons subject to the Code." Yet authority is not alone sufficient. The person apprehending must do so on a reasonable belief that an offense has been committed and that the individual to be apprehended committed the offense. In the case of United States v. Delgado, the accused was being returned to his duty station from a naval activity where he had surrendered after a period of unauthorized absence. The accused was taken to the airport to catch a plane by a first class petty officer who, feeling that the accused might "go over the hill again" before his plane took off, told him, "You are under apprehension for safekeeping." A short time later the accused walked off. At his trial he was charged with escape from custody. On review it was held that the accused could not be convicted of an escape from custody because there was no lawful apprehension. There were possibly grounds to believe that an offense might be committed, a further unauthorized absence, but this wasn't enough. There had to have been a reasonable belief that an offense 4. U.S. v. Siefer, 10 CMR 608, ACM S-6036, U.S. v. Hunker, 18 CMR 703, ACM 9855. 5. Para. 19A, MCM, U.S., 1951. 6. Supra. 7. 12 CMR 651, CGCMS 19866. |