had been committed in order to have made a lawful apprehension.

The person to be apprehended must be clearly notified that he is being apprehended and taken into custody. There are no magic words required as long as the individual is clearly told that he is being taken into custody and understands what is intended. Such phrases as "step outside," "you are being detained," 10 "we are taking you to headquarters," 11 and “I am taking you into custody" 12 have all been held sufficient to advise the individual that he is being apprehended. Therefore, it appears that the words used are not too important if the individual understands, from the words and the surrounding circumstances, that he is being apprehended.

SINCE CUSTODY AS above described is a restraint of free locomotion, words standing alone are not sufficient to cause the status of custody to arise. Once the individual is advised that he is being apprehended one of two things must occur before this status arises. The individual must either submit to the lawful apprehension, or he must be taken forcibly by physically restraining his freedom of locomotion.

This

By submission to lawful apprehension is meant that the individual realizes he is apprehended and acquiesces himself to the fact that his freedom of locomotion is restrained. submission to restraint is evidenced by showing that control was exercised over the prisoner in his presence by official acts and orders.13 For example, an order to come along, come outside, or sit or stand here, if complied with, would indicate that the prisoner has submitted to the apprehension and that the status of custody has arisen.

In the absence of a peaceful submission to apprehension, there must be evidence of a physical restraint depriving the individual of his freedom of locomotion and thereby causing the status of custody. Since whether or not an individual's freedom of locomotion has been restrained is a factual question, some illustrative cases will aid in developing this point.

IN THE CASE of United States v. Mercer 14 the Air Police were summoned to apprehend the accused. When they arrived they told the

8. U.S. v. Ramirez, 4 CMR 543.

9. Supra.

10. U.S. v. Johnson, 7 CMR 699, ACM 5755. 11. U.S. v. Moore, 9 CMR 363, CM 357178. 12. U.S. v. Mercer, 11 CMR 812, ACM 6653. 13. U.S. v. Gosnell, 3 CMR 646, ACM 4351. 14. U.S. v. Mercer, 11 CMR 812, ACM 6653.

accused they were taking him into custody. The accused got behind a chair and announced that he would not go. The Air Police left the room to call for help and while he was gone the accused fled. The accused was charged with resisting apprehension. The defense counsel claimed that since the Air Police had told him he was being taken into custody the offense was escape from custody. On review it was held that there had been no submission or physical restraint, so the status of custody did not arise and the offense was properly charged as resisting apprehension. While words alone are not sufficient to constitute the offense of resisting apprehension, in the Mercer case, the accused retreated to a position behind a chair. This action, with his words, was sufficient to constitute the offense.

In the case of United States v. Stone 15 the Air Police told the accused, who was drunk, that they were taking him into custody. They took him by the arms and took two or three steps when the accused began fighting to free himself. The accused was then handcuffed and taken in. On review it was held that the accused was properly charged with resisting apprehension because the physical restraint was not sufficient to restrain his freedom of locomotion until he was handcuffed. Consequently the status of custody did not arise until he was handcuffed and his struggle prior to this constituted resistance to apprehension.

In the case of United States v. Moore 16 the accused was told he was being apprehended and began to struggle. The Air Police grabbed him and dragged him out to their jeep. At the jeep the accused stated he was sick. He doubled up, pulled a gun, and ran. He was charged with escape from custody. The defense counsel argued he had resisted apprehension. On review it was decided that the evidence was sufficient to establish the fact that the accused was forcibly apprehended when he was dragged from the bar and the status of custody arose at that time. The accused's subsequent break constituted an escape from custody.

In the case of United States v. Ramirez," the Air Police came up to the accused in a bar and said, "Come along with us." The accused asked to finish his beer and did so while the two Air Police hovered over his table. When he had finished, the Air Police took him by the arms and took him out. The accused struggled all the way to the guardhouse. He was charged

15. U.S. v. Stone, 13 CMR 906, ACM S-7795.

16. U.S. v. Moore, 9 CMR 363, CM 357178.
17. U.S. v. Ramirez, 4 CMR 543, ACM S-2435.

with an attempted escape from custody. The defense counsel argued that the accused had merely resisted apprehension. On review it was decided that the accused's freedom of locomotion was nonexistent while the two Air Police hovered over him after telling him he was being taken into custody and that the status of custody arose at that time. The accused's subsequent struggle constituted an attempt to escape custody.

From these cases it becomes evident that it is most important to determine the status of the individual at the time of the offense. A struggle prior to the time that the individual's freedom of locomotion has been restrained must be charged as resisting apprehension, while a struggle or break after the point where the individual's freedom of locomotion has been restrained must be charged as an escape or attempted escape from custody.

CUSTODY IS A temporary status of restraint created to satisfy the need for authority by those performing police work. The status of custody terminates when proper authority is notified and has taken action to alter such status to release, confinement, arrest, or restriction.18 A few illustrative cases will be helpful.

In the case of United States v. Siefer,19 the accused was apprehended at 0245 and delivered to the guardhouse for safekeeping. The next morning, while on the way to the dispensary under guard, the accused escaped. He was

18. U.S. v. Carter, 3 CMR 190, CM-350130.
19. U.S. v. Siefer, 10 CMR, 608, ACM S-6036.

charged with escape from confinement. On review, it was decided that the apprehension of the accused caused the status of custody to arise and delivery to the guardhouse did not alter this status. Proper authority had taken no action to alter his status to confinement and therefore the proper charge was escape from custody. Conversely, in the case of United States v. Hunker,20 the accused was apprehended and taken before the commanding officer, who ordered him confined. The commanding officer granted the accused permission to make a telephone call and pick up his laundry while on the way to the guardhouse under guard. The accused escaped from his guard and was tried for escape from custody. On review, it was decided that the status of custody terminated when the commanding officer acted confining the accused. The escape was held to be an escape from confinement rather than custody.

IN CONCLUSION THEN, it should be noted

that the conduct of the accused in the aforementioned cases is similar; it involves an avoidance of restraint. It is the status of the accused at the time of the alleged conduct which dictates the charge. It is therefore of the utmost importance, in charging violations of Article 95, UCMJ, that the status of the individual at the time of the alleged conduct be accurately determined. This determination may be accurately made only through a thorough understanding of the terms apprehension, custody, and confinement and a thorough investigation of the facts surrounding the alleged violations of Article 95, UCMJ.

20. U.S. v. Hunker, 18 CMR 703, ACM 9855.

COMP GEN DECISIONS (Continued from page 2) MILITARY PERSONNEL-Record Correction-Enlisted PersonnelQuarters and Subsistence Allowances-Entitlement Without Orders The fact that an enlisted member of the uniformed services, whose records have been corrected under 10 U.S.C. 1552 to place him in an active duty status for a period when he was not in the service, could not have been issued contemporaneous orders authorizing monetary allowances in lieu of quarters and subsistence in kind for the period does not afford a basis for denial of such allowances. Therefore, since the member could not have been furnished quarters in kind during the period, payment of quarters allowance may be made and while he may not be considered in a separate rations status for the period when rations in kind could not legally have been furnished, the member is entitled to a daily subsistence allowance at the rate prescribed for enlisted members when rations are not furnished. Comp. Gen. decision B-140056 of 8 September 1959.

MILITARY PERSONNEL-Record Correction-Recital of Existing Factors v. Correction-Ten-Year Statute of Limitations

The correction of records of a retired military officer to show the actual number of years of active and inactive service creditable for retired pay purposes in an attempt to avoid the application of 10-year statute of limitations on claims cognizable by the General Accounting Office (31 U.S.C. 71A) so that the officer may be paid increased retired pay for a period more than 10 years prior to the submission of his claim, is merely an affirmation of the facts as they already exist in the officer's military record rather than correction of a factual situation. Therefore, such a record correction is not final and conclusive under 10 U.S.C. 1552 and the officer's claim for increased retired pay for a period more than 10 years prior to the submission of the claim is for disallowance. Comp. Gen. decision B-137384 of 11 September 1959.

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T IS A RECOGNIZED legal hypothesis that every person has but one legal domicile at any one time. Generally, for the major number of private citizens, this maxim has little practical implication so far as they are concerned. Few actual tax problems which involve domicile ever arise to plague the tranquility of the civilian's home. This is so since the question of "legal domicile" has little relevance to day-to-day tax problems without that ingredient called the Soldiers and Sailors Civil Relief Act of 1940. This act, as amended, currently provides:

For the purpose of taxation in respect of any person, or of his property, income or gross income, by any State, Territory or possession or political subdivision of any of the foregoing or by the District of Columbia, such person shall not be deemed to have lost a residence or domicile in any State, Territory, possession, or political subdivision of any of the foregoing or in the District of Columbia solely by reason of being absent therefrom in compliance with military or naval orders, or to have acquired a residence in or to have become a resident in or a resident of, any other State, Territory, possession, or political subdivision of any of the foregoing or the District of Columbia, while and solely by reason of being so absent. For the purposes of taxation in respect of the income or gross income, of any such person by any State, Territory, possession, or political subdivision of any of the foregoing or the District of Columbia, of which such person is not a resident or in which he is not domiciled, compensation for military or naval service shall not be deemed income for services performed with, or from sources within, such State, Territory, possession, political subdivision or district, and personal property shall not be deemed to be located or present in or to have a situs for taxation in such State, Territory, possession, or political subdivision or district: Provided that nothing contained in this section shall prevent taxation by any State, Territory, possession, or political subdivision of any of the foregoing, or the District of Columbia in respect of personal property used in or arising from a trade or business, if it otherwise has jurisdiction. This section shall be effective as of September 8, 1939, except that it shall not require the crediting or refunding of any tax paid prior to October 6, 1942.

*Lieutenant Commander Dalphine MacMillan, USNR, is presently assigned to the Income Tax Branch, Civil Law Division, Office of the Judge Advocate General. Lieutenant Commander MacMillan received an AB degree from Cornell University in 1939 and an LLB degree from the George Washington University in 1960.

Since this public law states that a person shall not lose his domicile for purposes of taxation by reason of being absent from his "home" solely in compliance with naval or military orders, members of the armed services do not pay double taxes. But, just how does he lose or acquire a new domicile if he wants to change this legal relationship? Past issues of the JAG JOURNAL have explored this problem in detail.1 However, since several recent cases have been decided since then, a review of the problem in light of these decisions may prove profitable.

Every person acquires a domicile at birth. This domicile is that of his parents and as a general rule, one continues to have the same domicile as his parents until he reaches the age of majority. Once he becomes of age, any adult person can, by his own actions, acquire a new domicile. Such a change simply requires a present intent to adopt a new domicile and an actual physical presence at the designated place. When the intent combines with the presence, a new domicile is created and the old one vanishes.

Of course a serviceman may desire to have the place to which he has been assigned become his home from that point forward, but such an attitude may be difficult to prove especially considering the impermanence of military assignments. Therefore, as a general rule most military personnel retain the domicile they had upon entering the military service unless they have by overt actions manifested that they have elected to establish a domicile elsewhere.

A past state of mind to establish a new domicile is a factual matter. The courts and the local tax authorities, in determining whether a person is subject to their jurisdiction, weigh the evidence of the facts as presented as to this past state of mind and decide who are domiciliaries. Several factors may evidence one's domicile:

(1) Where one dwells.

(2) Where one exercises the right to vote.

(3) Where one pays taxes.

(4) Where one maintains a bank account.

(5) Where one maintains social, religious, and civic affiliations.

(6) Business interests of permanent nature. (7) Re-employment rights.

1. JAG Journal Feb. 1955, p. 3, JAG Journal Feb. 1957, p. 5.

It should be noted, that one's declaration of his intention may be suspect as self-serving when it appears to be made solely to avoid taxation.

Mere presence of a household in a State may not be sufficient to support a domicile claim. In one of the early cases, Pettaway v. Pettaway,2 a young soldier stationed in San Antonio, Tex., rented an apartment and bought furniture; the question was had he acquired a domicile in Texas for purposes of getting a "divorce." The court stated:

"***, his removal to the State is not voluntary. His actual physical presence is likewise not necessarily voluntary. He comes and remains in pursuance to orders. This being the case, his coming to the State and remaining therein loses much of its weight in establishing that it was his intention to make Texas his legal residence, that is, his domicile. Despite this, however, it is possible for a soldier to change his domicile from some other State to Texas."

Yet, an opposite result was reached when a Court of New Mexico 3 upheld an amendment to one of its internal laws which was intended to permit military personnel to acquire residence for the purposes of obtaining a divorce by reason of being continuously stationed within the State for a period of 1 year. A Naval officer had been ordered to Sandia Base and was permanently attached there for the requisite year although actually absent from the area on Temporary Additional Duty for a major portion of the year. The court said:

"*** there are certain conclusions that one cannot escape. At the present time, and it is almost certain for many years to come, a large number of our young men and women, by demand of conscience or by law, will be required to enter the military service. The primary purpose of that service is the preservation for our citizens of all of the civil and other rights we deem so precious. Such service comprehends for its members the temporary loss of many of those rights, one of the most cherished of which is freedom of movement from place to place and choice of residence. Because of change and tradition, divorce, as a part of the field of domestic relations has become closely tied to the concepts of residence, domicile is not alone enough to justify depriving this group in Military service of a civil right available to those not in service, and one which could be available to many of them without detriment or loss of their important duties. . . . .”

It should be noted that the subject matter of this case concerned a domestic issue and did not involve a tax dispute. If the domicile question is raised in a domestic relations case, a wholly

2. 177 SW2d 285 (Tex Cir App) 1943. 3. 58 NM 597, 274 P2d 127 (1954).

separate meaning of the term may result. In a Texas case of Wood v. Wood, the court said of servicemen residing in the state:

"While not citizens of Texas in a legal sense, nevertheless they are an important segment of the residential population."

"The State of Texas is hardly less concerned with the domestic relations of persons required to live in this State indefinitely under military orders, oftentimes for a period of years, with the protection and support of their children and their property interests, and the adjustment of their marital responsibilities at stake than it is with the similar problems of those who have acquired a domicile here in the orthodox sense."

Compare the following case with what the Texas court said. Sergeant Ellis, a native of Arkansas who had married an Arkansas girl and who had retained many close ties to the home of his parents in Arkansas, including payment of taxes and voting rights, contended that the purchase of his house in Louisiana gave him citizenship in Louisiana. The court, however, averred: 5

as to the purchase of the house, we do not think it unusual for commissioned officers or enlisted men of the plaintiff's rank and status, where they are stationed at a place for a substantial period of time; to purchase houses as "another way of paying rent" and we do not think that such purchases necessarily indicate a change of domicile. The serviceman makes a small down payment on the house, makes monthly payments on the balance of the purchase price which are usually roughly equivalent to the rent that he would otherwise pay, and upon transfer he sells his equity. Even if he fails to get back his full equity, he is still usually the gainer since had he simply continued to live as a tenant, he would have built up no equity at all.

To our mind the plaintiff, in buying the house has done no more than what he estimates 10 to 15 percent of married noncommissioned officers of his own rank are accustomed to doing when similarly situated. . . Normally, the liability of a serviceman for State and local income taxes is determined on the basis of state law. States are sovereign entities who prescribe their own laws with respect to taxes and make the original determinations as to which persons are domiciliaries. The Federal Soldiers and Sailors Civil Relief Act however overrides the State's sovereignty to the extent that it protects a serviceman from double taxation. It does not relieve him from liability for taxes to his "home State."

4. 320 SW2d 807 (Tex Sup Ct.) 1959.

5. Ellis v. SE Construction Co., 158 F. Sup. 798 (1958).

In Dameron v. Brodhead, Colorado argued that this Act was designed solely to prevent multiple taxation and that since the plaintiff's home State had not taxed him, that the State wherein he was stationed could tax him. The court, however, held: "There is no suggestion that the State of original residence must have imposed property tax. Since the language of the section does not establish a condition to its application, we would not be justified in doing so."

DOMICILE-WHAT IS IT? The courts have split on this subject. It would appear that a military person may shed the old and don the mantle of a new domicile by being present in a State and having a present intention for that State to be his domicile from that date forward. It is the proof of the intent that causes trouble. For purposes of divorce a few States have held that residence, as distinguished from domicile, is sufficient to grant the State jurisdiction so that the serviceman's domestic plight may be alleviated. Proof is not here so difficult.

On the other hand, change of domicile, for purposes of gaining a tax advantage and for certain other purposes is a different matter.

MILITARY PERSONNEL-Retired Pay-Inactive Time on Retired List-Retired Pay Increase

An Army enlisted member who, due to being carried on the Temporary Disability Retired List Longer than the 5-year period prescribed in 10 USC 1210(H), had his military records corrected to show that his Temporary Disability Retired List status expired at the end of 5 years, that he subsequently reenlisted effective the next day, and the day following was again placed on a Temporary Disability Retired List may have the second Temporary Disability Retired List period regarded as having resulted from the reenlistment rather than as a continuation of the preceding 5-year Temporary Disability period, there being a period of one day when the member was not on the Temporary Disability List. The inclusion of the 5-year period of inactive service in computation of the amount of disability retired pay upon permanent retirement will not result in an increase in disability retired pay so as to come within the prohibition in Section 202 (B) of the Career Compensation Act of 1949, 37 USC 233 (A) and (B). Comp. Gen. decision B-140388 of 23 September 1959.

MILITARY PERSONNEL-Retired Pay-Inactive Retired List Service— Warrant Officer Recalled to Active Duty

● An Army member who, after retirement as warrant officer with over 25 years' service on February 28, 1945, was recalled to active duty on November 11, 1946, and released in rank of captain on June 30, 1949, is entitled to have inactive time on the retired list credited for longevity pay purposes while on active duty. However, the laws under which active duty pay is computed are distinct and separate from those under which retired pay is computed and pursuant to the laws under which the member is entitled to receive retired pay (Section 4A of the Act of June 4, 1926, as amended, 10 USC 594, for the period prior to October 1, 1949, and the effective date of the Career Compensation Act of 1949, and Section 511 of the 1949 Act for the subsequent period) there is no authority for the inclusion of inactive retired list service in computation of retired pay. Comp. Gen. decision B-139530 of 11 September 1959.

MILITARY PERSONNEL-Transportation-Dislocation Allowance— Temporary Transfers for Humanitarian and Hardship ReasonsSubsequent Change of Station

The transportation and dislocation allowance rights of Navy enlisted members who, after issuance of temporary duty orders transferring the members for humanitarian or hardship reasons to a new station, are subsequently assigned to permanent duty at the same location as the temporary duty point or at another station are for determination on the basis of the permanent duty orders so that the member's entitlement to transportation of dependents and household effects at Government expense is from the place where the dependents and household effects are located, upon receipt of the orders not to exceed the cost from the old to the new station, or, if the old permanent station is outside the United States, from the appropriate port of debarkation in the United States to the new station. Comp. Gen. decision B-139724 of 14 September 1959.

MILITARY PERSONNEL-Retired Pay-Annuity Elections for Dependents-Enlisted Members Having More Than 18 Years of Service-Philippine Scouts-Parole Periods

● A survivorship annuity option election which was made by an enlisted member of the Army, who had completed 18 years of service for pay purposes prior to the time a redetermination was made under the Missing Persons Act, 5 USC App. 1001, that his creditable service exceeded 20 years based on a period when as a Philippine Scout he had been paroled by the enemy, is an invalid election made after the member was no longer eligible to make an election under 10 USC 1431 (which requires elections to be made prior to completion of 18 years of service). The service redetermination having no effect on the member's service since during the parole time he was entitled to credit as an enlisted member. Therefore, the amount of retired pay which was deducted on basis of the invalid election should be refunded. Comp. Gen. decision B-140248 of 16 September 1959.

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