legislation, I think we will get it and get it promptly.

I hope the Navy will give further consideration to this recommendation; and I submit the following reasons in its support:

(1) It will effect a marked improvement in discipline through the naval service because of the added impact upon offenders of prompt, just and summary punishment imposed personally by commanding officers.

(2) It will effect an improvement in the quality of justice for minor offenses in the naval service because of the added maturity, experience and motivation of the commanding officer who will personally impose punishment.

(3) It will effect marked economies in the administration of discipline in the naval service. It will eliminate about % of all courts-martial conducted in the Navy. Instead of 50,000 courts-martial in an average year, we would have less than 20,000. This would eliminate a huge volume of paper work. (4) It would provide opportunity and incentive for an unprecedented break-through in moral leadership. Commanding officers could not fail to be inspired and additionally motivated by the increased confidence placed in them by their country through entrusting them with more authority even than under the revered Articles for the Government of the Navy.

Commanding officers in the navies of substantially all NATO nations have authority to impose from 30 to 90 days confinement. The majority of the navies of the SEATO countries have similar authority. Russian naval commanders have authority to impose up to 30 days confinement. So far as I can determine, the United States Navy is the only Navy in the world in which commanding officers are not entrusted with more than five days confinement authority. I believe our commanding officers have proved themselves worthy of more trust.

The example of improving military law procedure presented in the foregoing parts of this report, cover just one of the myriad fields in which the Navy lawyer importantly assists Navy command in contributing to the combat readiness and the economical, efficient administration and government of the Navy.

SPACE DOES NOT permit reviewing the new importance to the Navy of the practice of International Law, Law of the Sea, of Space Law, Admiralty Law, Claims Law, Promotion and Retirement Law, Administrative Law, and Legal Assistance Law for naval personnel.

In all these fields also, the Navy lawyer serves command with professional legal know-how, with Seabee type can-do, and with all-Navy loyalty. Our reward is that we have the most important client in the world: THE UNITED STATES NAVY.

JAG BULLETIN BOARD

MILITARY PERSONNEL DIVISION

The following is a list of change of duty or station orders issued to all officers transferred to or from the Office of the Judge Advocate General and to all Navy law specialists regardless of assignment. The list includes orders issued before 15 June 1960.

CAPT Carlton F. Alm, USN, from CINCUSNAVEUR to ComEleven.

CDR Lazar H. Benrubi, USNR, from ComSix to JAGO. CDR Thomas E. Blade, USN, from BuPers to ComSix. CDR Fred Y. Boyer, USN, from PRNC to ComThirteen. LTJG Charles E. Brown, USNR, from SNJ (under inst.) to COMDESFLOT 4.

CDR Ralph K. Brandt, USN, from COMFAIR, Hawaii to PMR, Point Mugu, Calif.

CAPT Edmund Burke, Jr., USN, from CINCPACFLT to PMR, Point Mugu, Calif.

CAPT Geoffrey E. Carlisle, USN, from NavBase, L.A. to Cdr., U.S. Taiwan Defense Command. LTJG Roland F. Chase, USNR, from SNJ (under inst.) to ComEleven.

LTJG John G. Clark, USNR, from SNJ (under inst.) to JAGO.

CAPT Samuel R. Clarke, USN, from SubBase, New London to ComFive.

LCDR Harland B. Cope, USN, from ComFourteen to SNJ, Newport.

LCDR James W. Densford, Jr., USNR, from NCBC Port Hueneme to ComThirteen.

A CASE OF LARCENY

(Continued on page 20)

(Continued from page 16)

IN CONNECTION WITH the accused's confession or admission, the trial counsel should familiarize himself with the rules set out in the MCM, 1951, for admitting the accused's confession or admission. The trial counsel should also consult the Manual to familiarize himself with the instructions concerning the intent of the accused to permanently deprive the owner of his property, the establishment of the legitimate market value of the property, and other related legal requirements concerning the evidence he intends presenting to the court.

5. MCM, 1951, para. 140; and JAG Journal, August 1955 (Part I) and September 1955 (Part II), "Extra-Judicial Confessions and Admissions as Evidence in Courts-Martial," LT Kurt Hallgarten, USNR.

JAG BULLETIN BOARD

(Continued from page 19) LCDR Donald J. Drake, USNR, from NAS, Corpus to NCBC, Port Hueneme.

CAPT Arnold W. Eggen, USN, from JAGO to COMCRULANT.

LTJG Albert W. Eoff, USNR, SNJ (under inst.) to NAS, Jacksonville, Fla.

CAPT Guin M. Fisher, USN, from JAGO to CNATRA. LCDR Carl S. Fitzgerald, USN, from Army JAG School (under inst.) to ComOne.

CDR Bruce Geisinger, USNR, from Pac Missile Range, Pt. Mugu, Calif., to JAGO.

LTJG John T. Gladis, USNR, from SNJ (under inst.) to RecSta., T.I., San Fran.

CDR David E. Glassman, USN, from NAS, Quonset to NavBase, GTмO.

LTJG Richard J. Grunawalt, USNR, from SNJ (under inst.) to NavSta., Adak, Alaska.

CDR George L. Gullette, USN, from JAGO to NAVACTS, Spain.

Q. Did you see the accused on 1 April 1960?
A. Yes.

Q. What were the circumstances of that meeting?

A. I was OD and as such inspected the liberty party. Q. Did you have any conversation with the accused? A. Yes.

Q. Where did this conversation take place?

A. On the quarter deck.

Q. Who else was present at that time?

A. The messenger and about 6 other members of the liberty party.

Q. What was the substance of the conversation? A. I reminded the accused of the scheduled movement on Monday 4 April 1960.

Of course the testimony of these witnesses will be subject to cross examination. If the defense denies knowledge of the movement an attempt may be made to show that the accused may not have been in the group that was advised of the movement or that the conversation was directed to the group and not personally to the accused. You should be prepared to rehabilitate

CDR Patrick H. Hagerty, USNR, from JAGO, to NAS Quonset Point, R.I.

LT Bruce A. Harlow, USNR, from NavSta., Seattle to NSD, Seattle.

LTJG Conrad G. Harvey, USNR, from SNJ (under inst.) to NAS Cubi Point, Phil.

CDR Walter D. Hassett, USNR, ComThirteen to NAS, Memphis.

LTJG Thomas W. Huber, USNR, from SNJ (under inst.) to COMDESLANT.

CAPT Wyman N. Jackson, USN, from ComNine to JAGO.

CAPT John C. Keatts, Jr., USN, from JAGO to CNABATRA.

CDR Alex A. Kerr, USN, from Armed Forces Staff College (under inst.) to JAGO.

CDR Carl B. Klein, USNR, from JAGO to COMNAV-
PHIL.

CAPT Gale E. Krouse,
COMPHIBLANT.

USN, from JAGO to

your witness if necessary. This may be done by additional questions on redirect examination or by calling a witness such as the messenger, who was present at the time of the conversation to corroborate the testimony on the conversation and the presence of the accused at the time.

SINCE IN THE present case you are able to prove knowledge of the actual date of the scheduled movement and that the accused was on unauthorized absence on that date it will not be necessary to prove additional neglect or causality. In this case, the missing movement can only be considered a foreseeable consequence of the accused's unauthorized absence on the date he knew his ship was moving. In the event that you are able to prove that the accused knew only approximately when the ship was sailing it would be necessary to present additional evidence to prove that the accused's or some other negligent act was the proximate cause of his missing movement."

Having presented the available evidence on each element you may safely rest your case; remembering, however, that you, as Trial Counsel, have a duty to present a sufficient amount of evidence to ensure a finding of guilty. It must be borne in mind, therefore, that the introduction of defense evidence often shifts the burden of proceeding with additional evidence back upon the prosecution.

9. It should be pointed out that the offenses of unauthorized absence and missing movement are multiplicious. The accused may be found guilty of both offenses, but the court must be instructed that the maximum punishment imposable is that provided for the more serious offense. U.S. v. Posnick, 8 USCMA 201, 24 CMR 11 (1957).

U.S. GOVERNMENT PRINTING OFFICE: 1960

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 the views of the individual authors, 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 WILLIAM C. MOTT, USN Judge Advocate General of the Navy

CAPTAIN ROBERT D. POWERS, JR., USN Deputy and Assistant

Judge Advocate General of the Navy

LIEUTENANT COMMANDER FRANK J. FLYNN, 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.

NOTARIAL ACTS AND VOTING

Amendment to 10 USC 936 (a), (Art. 136, UCMJ)Public Law 85-589 was approved by the President on 5 July 1960. This amends Section 936 (a), Title 10, USC, and Article 136, UCMJ by extending the notarial authority possessed by the individuals described in 10 USC 936 (a) to authorize such individuals to administer oaths and to perform notarial acts for certain civilians outside the United States, Canal Zone, Puerto Rico, Guam and the Virgin Islands. Notations made in Title 10, U.S. Code and the MCM should reflect the following: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 936 (a) of title 10, United States Code, is amended by inserting the words 'by persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Canal Zone, Puerto Rico, Guam, and the Virgin Islands,' after the words 'wherever they may be,' in the introductory clause." The Amendment is of special importance to the thousands of military dependents and civilian employees in overseas areas who will desire to vote by absentee process in the 1960 elections.

POSTGRADUATE INSTRUCTION

Letter application for postgraduate instruction is no longer required or desired. Officers desiring consideration for such instruction must complete blocks 5 and 5A of the new Officer Preference and Personal Information Card (NAVPERS 2774) currently being distributed (BUPERS INSTR 1301.25A of 24 June 60). Eligibility requirements and curricula descriptions are contained in BUPERS NOTE 1520 of 31 May 1960.

LIABILITIES OF OFFICERS' MESSES

The plaintiff, Richard A. Holcombe, Jr., was civilian manager of the Commissioned Officers' Mess at the United States Naval Air Station, Patuxent River, Maryland. On April 12, 1956, he instructed Loretta Roller, also an employee of the Officers' Mess, to proceed in his personal automobile to the Post Commissary for the purpose of obtaining salad dressing needed for a luncheon at the Mess. While driving the plaintiff's car on this errand, Miss Roller lost control of the vehicle, and it left the road and was completely destroyed.

On the first trial of this case, the District Court dismissed the complaint on the ground that the employee of the mess (a typist) whose negligence was responsible for plaintiff's damage, (the manager) was not acting within the scope of her employment. On appeal, this judgment was vacated (See Holcombe v. U.S., 259 F.2d 505, 4th Cir. 1958).

This decision answers a long uncertain question as to whether a non-appropriated fund activity is a “federal agency" within the meaning of the Tort Claims Act so as to make the United States liable for the negligence of an employee of the Mess.

In reversing the lower court, it was held that since the various armed services are parts of the "executive departments" of the United States within the Federal Tort Claims Act, and since Officers' Messes, like post exchanges, are "integral parts" of the armed services, it follows that they are expressly included within the definition of "federal agency" in the Act.

MILITARY PERSONNEL DIVISION

(Continued on page 61)

PERHAPS THE MOST crucial period of time

in the crime solving process is that period immediately following the arrest of a suspect during which he is questioned by his arresters. This interval is important not only because the majority of confessions are then adduced, but also because many innocent persons then quickly exonerate themselves of guilt without embarrassing involvement in more formal proceedings. This interval is also of utmost importance to law enforcement agents and criminal investigators because it is during this time that the danger of committing errors is greatest.

The rights of the suspect during this period are fundamental to the scheme of military justice and are jealously guarded by the Court of Military Appeals. For the most part these rights are embodied in Article 31, Uniform Code of Military Justice. The extreme importance of Article 31 during post-arrest interrogation has been discussed at length in previous issues of the JAG JOURNAL.1 The purpose of this article is not to review those discussions, but to supplement them by exploring another facet of rights of a suspect; i.e., the right to counsel during interrogation prior to the preferring of charges.

MOORE-TO-GUNNELS-CAVEAT FOR INVESTIGATORS

IN THE CASE of United States v. Moore 2 the Court of Military Appeals was called upon to determine the admissibility of a confession in the light of the fact that the suspect was not furnished with counsel during the interrogation which produced the confession. Upon this point the Court said:

As a second basis for assault on the voluntariness of *Lieutenant John W. Boult, USNR, is presently an Appellate Government Counsel in the Office of the Judge Advocate General. He received the B.A. degree from the University of the South in 1955 and the LL.B. degree from Vanderbilt University Law School in 1958. Lieutenant Boult holds membership in the Tennessee and Federal Bar Associations and the American Bar Association.

1. Munster, Statements and Confessions-A Problem Arising from Article 31 Uniform Code of Military Justice, JAG JOURNAL, Jan. 57, p. 3; Cheplin, Article 31, UCMJ-A Guide for Investigators, Part 1, JAG JOURNAL, July 57, p. 11; Part II, JAG JOURNAL, Aug. 57, p. 3.

2. 4 USCMA 482, 16 CMR 56 (1954).

these confessions, defense counsel argues that the accused was not furnished with counsel during the interrogations. While it is worthy of note that he is not known to have made any request therefor, the complete answer to this contention is that no right exists to be provided with appointed military counsel prior to the filing of charges." (emphasis added)

This holding was in accord with a previous decision of the Court in the case of United States v. Manuel involving similar facts. While the Moore decision has not been overruled, the two statements stressed above have become ominous negative pregnant.

Major Gunnels, U.S. Air Force, was interviewed by investigative agents on 12 May 1955. After being warned of his rights under Article 31, and before answering any questions, Gunnels told the agents that he desired to make no statement until he had an opportunity to consult with counsel. The agents then permitted Gunnels to go to the Office of the Staff Judge Advocate to seek counsel. At the Staff Judge Advocate's Office he was frustrated in his quest for legal advice because the Staff Judge Advocate had instructed his staff not to advise Gunnels and because of an Air Force Regulation which purportedly prohibited the lawyer-officers from advising him. In effect, he was told by the attorney with whom he talked that he would receive no help there.

Gunnels then returned to the investigative agent and submitted to an interview, uncounseled. During the course of this interview he made several statements which were later made the basis of additional charges against him in a trial by general court-martial. Gunnels was later convicted of a number of violations of the UCMJ, including violations contained in these additional charges.

The Court of Military Appeals was then called upon to determine the validity of these convictions in the light of the factual background set forth above. In their decision in United States v. Gunnels the Court said: We... strongly condemn the practice, which appears

3. 4 USCMA at 486.

4. 3 USCMA 739, 14 CMR 157 (1954).

5. 8 USCMA 130, 23 CMR 354 (1957).