that the trial counsel, prior to the court being called to order, furnish the president with a note setting forth the maximum punishment that might be adjudged. Since this maximum punishment may well be less than that prescribed in the Table of Maximum Punishments, it may be necessary that the president be informed that the case is a rehearing. In this later event, the president must be cautioned that the fact that the case is a rehearing is not to be disclosed to other members of the court, either in open or in closed session. Likewise, should any member of court request to be informed if the case is a rehearing, he should be advised that an answer to his inquiry would be improper.

D. SENTENCE MULTIPLICITY

INSTRUCTIONS

It has long been established that a man should not be twice punished for the same offense.20 Various rules have been adopted by the state courts to be used as measuring rods to determine the question of multiplicity. In the military, there are two aspects to be considered in determining if multiplicity exists. If proof of one offense proves the other, multiplicity exists. Also, where there is but one transaction or one act involved there is generally only one offense.

The Manual for Courts-Martial, United States, 1951, states the rule as follows:

The test to be applied in determining whether the offenses of which the accused has been convicted are separate is this: The offenses are separate if each offense requires proof of an element not required to prove the other.21

In United States v. McClary,22 the court was called upon to determine the separability of larceny of Government property and the wrongful disposition of the same property some several days following the larceny. Speaking of the measuring rod used in determining multiplicity, the Court said:

Generally speaking, in determining multiplicity we have used the Manual test which provides that the offenses are separate if each offense requires proof of an element not required to prove the other. In some instances, that principle has been rejected because it was believed its use would violate the cardinal principle of law that a person may not be twice punished for the same crime."

In this case, it was also observed:

20. 8 USCMA 201, 24 CMR 11.

21. Para. 76a (8).

22. 10 USCMA 147, 27 CMR 221.

23. 10 USCMA at page 151.

[I]t was recognized as early as United States v. Soukup, 2 USCMA 141, 7 CMR 17, that the Manual standard may not serve accurately and safely in all situations.24

In applying the test of like elements, it is of no consequence that we label the elements differently or state them in different terms. The Court of Military Appeals excellently demonstrated this in United States v. Posnick.25 In applying the "like elements" test to the offenses of unauthorized absence and missing movement, the Court said:

Logically every missing movement offense includes an unauthorized absence plus other factors. These additional factors are circumstances that aggravate the offense of unauthorized absence. In these cases the unit, ship, or aircraft is moving and the accused has knowledge of this movement. This offense can be further aggravated by the subjective cause of the accused's absence-neglect or design. The fact that the absences are alleged in terms of a different span of time is not important if the absence alleged is in one unit. Duration of an unauthorized absence is an aggravating circumstance but is not itself an element though in the case of an Article 86 violation, the punishment depends on the aggravating factor and must be alleged and proved.*

Thus it may be seen that missing movement is but a form of unauthorized absence. Just as is the duration of an unauthorized absence an aggravating factor allowing for additional punishment dependent on the duration, a relatively short absence is aggravated by missing movement. The mere fact that knowledge of the prospective movement of the ship must be alleged and proved does not serve to change the nature of the offense. The allegation and proof of the knowledge of the movement merely aggravates the absence and allows the greater authorized punishments of Article 87, UCMJ.27

Similarly, in United States v. Modesett,28 the Court held that breach of restriction and unauthorized absence, when the limits of restriction coincide with the limits of the duty station, are multiplicious for punishment purposes.

An excellent illustration of the rule against punishment for one act though involving two offenses, is the case of United States v. Brown.29 The circumstances of this case are best expressed in the words of the Court:

On February 10, 1956, the accused desired to spend the night with a lady of pleasure. He had no funds. (Continued on page 95)

24. 10 USCMA at page 152.

25. Fn. Note 20, supra.

26. 8 USCMA at pages 203-204. 27. Para. 127c, Sec. A, MCM, 1951. 28. 9 USCMA 152, 25 CMR 414. 29. 8 USCMA 18, 23 CMR 242.

We realize that the Navy is not a collection agency... but since this indebtedness reflects discredit upon the naval service, we would appreciate it if you ...

OW MANY TIMES has this kind of a letter

H passed across the desks of beleaguered di

vision officers, and other officers exercising legal, personnel, and command functions?

How much time does the Navy spend processing the indebtedness correspondence of its personnel? And, how may this workload be reduced?

The Bureau of Naval Personnel has estimated that, during 1959, its indebtedness force processed an average of 120 letters per working day consuming some 12 man-hours per day, or 3,000 man-hours for the year.1

The greatest burdens, however, are borne by the ships and stations where debtors are actually attached. For, in addition to those complaints forwarded to BuPers, debt letters are also sent directly to local commands. At the U.S. Naval Station, Washington, D.C., the inflow of debt correspondence ranges between 6 and 12 per day requiring the part-time services of an indebtedness officer, and a full-time indebtedness yeoman as well as some supervisory time and attention by the leading chief and legal officer. This station is only one of 307 major and 3400 minor activities that are involved in the problem.2

FOR SOME IDEA as to the context in which Navy debt problems arise, it should be noted that credit and installment buying nationally have risen steeply every year since 1945, and

men.

*Lieutenant Herbert L. Spira, USNR, is presently the Assistant Legal Officer at the U.S. Naval Station, Washington, D.C., where legal assistance cognizance extends to several thousand officers and Lieutenant Spira holds the A.B. degree from Union College and the LL.B. degree from Harvard University. He is a member of the New York State Bar and the American Bar Association. **Mr. William A. Hussong is the General Manager of the Navy Federal Credit Union, Washington, D.C. He has been engaged in the field of credit management for 16 years, the past 10 of which have been with the Navy. Educated at Drexel Institute of Technology, Mr. Hussong is sometime lecturer on management training at several universities.

1. Estimate based on Bureau of Naval Personnel figures.

2. A major activity consists of over 100 personnel and carries a plant account of $1,000,000. Catalogue of Naval Shore Activities, OP-09B-23.

the end of this upward curve is nowhere in sight.3

According to the experts, the problems of naval personnel should increase at about the same rate as those of the general public. However, this estimate, it is felt, does not take into consideration the youth, inexperience, and marginal educational level of many sailors; the fact that many, for the first time, are financially independent, and the fact that their transient status do not make them welcome at conservative lending institutions such as banks. These factors suggest that the Navy's problems may be even more aggravated than those of the general public.

Like the character in Alice in Wonderland, the Navy may in the future have to run twice as fast just to stay in the same place. Conversely, any reduction in the volume of debt correspondence would be significant in the economy of men, money and material.

ONE APPROACH HAVING some promise of success in effecting such a reduction is "Preventive Legal Assistance." This concept is not new either to the field of administration or the field of law. It has undergone considerable engineering in the Bureau of Naval Personnel 5 culminating in policies and methods of a preventive nature, which have already been tested at least

twice in the field. The pilot projects, to be discussed below, have accomplished much in demonstrating the practicability of such a program and to suggest the direction that further refinements may take.

The essence of preventive legal assistance is educating personnel in three areas:

1. How to avoid the worst abuses of the credit racket. 2. How to make sound financial plans.

3. How to secure advice from the Navy before entering into any particular transaction.

This idea seems to have developed rather naturally from a merger of a division officer's responsibility for "the efficiency . . . welfare and morale" of his men and from the desires of legal assistance officers to treat the causes in an effort to avoid the consequences of indebtedness. Consistent with the preventive approach to indebtedness it is necessary to "pass the word" on the benefits of financial planning and to make available assistance in financial planning to personnel in order to head off financial difficulties before they start. [NOTE: The indebtedness problem has two aspects: preventive and remedial. For the policy, law, and legal assistance phases of the remedial aspect see, Hiner and Quittner, Indebtedness of Naval Personnel, JAG JOURNAL, November, 1960.]

In addition to Commanding Officers' responsibility for processing debt correspondence, the Bureau of Naval Personnel has recently placed ultimate responsibility upon Commanding Officers "to insure that personnel are periodically instructed" as to the applicable indebtedness policies of the Department of the Navy (Art. 11104A, BuPers Manual, 1959), which emphasizes the following points:

(A) Thrift is not only a virtue but a necessity of today's living...

(D) Consultation with a designated officer when contemplating large purchases on credit will assist personnel to avoid commitments which may be difficult or impossible to carry out.

(E) Be wary of the "high-pressure" salesman. Think carefully and seek advice before signing an agreement or contract. Never sign a blank contract and always multiply the number of payments by the amount to determine the total payment. Note particularly the penalty clauses.

This article also explicitly asserts that it is the policy of the Department of the Navy to promote habits of thrift and to encourage all members of the naval service to conduct their financial matters so as to reflect credit upon the service.

The establishment of these guidelines provides

6. Navy Regulations, 1948, Article 1044.

a solid foundation for a broad educational effort in the indebtedness field on a local basis and at various levels of command.

ILLUSTRATIVE OF WHAT can be accomplished by the preventive approach is the program of indoctrination and counselling initiated aboard the USS BOSTON (CAG-1) in the summer of 1958. Indebtedness complaints were cut by more than 50% during the first year of operation.'

This program featured "personal finance letters" prepared by the ship's executive officer for division officers who were instructed to read the letters personally to "small groups of the division, and at a time other than at Quarters". These were backed by lectures by the legal officer to new men reporting aboard, notes in the Plan of the Day, and an emphasis upon financial counselling by appropriate ship's officers. addition, conventional indebtedness procedures were rigorously exercised.R

In

Another program, undertaken in the Washington, D.C., area in conjunction with the observance of LAW DAY 1960 consisted of a series of lectures by one of the U.S. Naval Station Legal Officers to small groups of personnel at various area activities. The lectures were fortified with charts, pamphlets, and a sad personal account of a real-life victim, who had signed an automobile installment contract calling for an interest rate of 44.09% per year.

In the Long Beach, California, area, a farreaching program of a different sort has been inaugurated. This program aims at minimizing marginal credit practices of the business community such as "bait advertising," misrepresentation, granting credit without investigation, and writing direct to the naval authorities without first bringing the matter to the delinquent service member's attention. Representatives of military services and business groups drafted a Code of Business Ethics to which more than 30% of the area merchants immediately subscribed.10

It is understood that other commands have adopted similar approaches, and that in extreme cases, businesses have been placed "off limits" to service personnel after appropriate hearings before the local Armed Forces Disciplinary Control Board.

7. CO, USS BOSTON ltr 14:EMC:afe of 2 May 1959 to COMCRUFORLANTFLT; reprinted in BUPERS NOTE 1620 of 4 Mar 1960.

8. Ibid, pp 3 and 4.

9. CO, US NAVBASE Los Angeles ltr NB-08 GEC:er of 10 Aug 1959 to BUPERS.

10. Code of Business Ethics, Long Beach Press Telegram, June 8, June 8, 1959, editorial page.

The development of this variety of techniques indicates that an educational effort can profit by the specialized skills and experiences of personnel at many different levels. The executive officer, legal officer and division officer all have different parts to play. For instance, the legal assistance officer does not act directly in a man's behalf. He may be an advisor but not an advocate. Identical limitations do not however apply to division officers. Neither can the legal assistance officer speak for the command in proposing action to the business community, while higher authority may be in a position to do so. THE INFORMATION SOUGHT to be imparted by the Boston and Washington programs has been similar. It deals with some of the many abuses that are associated with small loans, such as hidden finance, clerical, or carrying charges and computation of interest charges by the month (a 30% annual interest charge stated as 2% %). Other common devices culled from legal assistance files and from a series of articles in a Washington newspaper " include:

1. The "Discount", which is deducting the interest before the loan is turned over to the borrower. This results in interest being computed on the entire amount for the entire year, rather than upon the unpaid balance of the loan.

2. "Writing-up" the loan by adding finance charges (and sometimes the prospective interest) to the principal amount of the loan and then charging interest on the total.

3. Adding life insurance premiums to the cost of of the loan.

When the loan is the result of a conditional sales or time contract for an appliance or a car (the most common type of loan) the situation becomes vastly more complicated. The contract may contain:

1. A "Pick-up Payment"-which is really a down payment required before you can pick up your car from a lot after you have paid the advertised "only one dollar down." This payment may be financed through a separate small loan company (perhaps owned by the car dealer) at a rate of 2-3% per month. 2. A "Balloon Payment"-which is an extra large payment at the end of a contract, sometimes amounting to several hundred dollars. It is a frequent cause of repossessions.

3. Agreements to pay additional sums beyond those 11. Six articles by M. Ottenberg on used car sale practices appeared in the Washington Evening Star, Nov. 1-7, 1959. Material from these articles were brought together by the National Automobile Dealers Association in pamphlet form, entitled USED CAR BUYER BEWARE. Copies are available either from the N.A.D.A., 200 K Street, N.W., Washington, D.C., or The Navy Federal Credit Union, Main Navy Building, Washington 25, D.C. The pamphlet lists the 28 states having laws regulating automobile finance charges. The remainder do not possess such laws.

itemized in the contract for; e.g. life and collision insurance, service charges, carrying costs, penalties, or clerical fees.

4. The "Monthly Payment"-which is set low enough and extended for a long enough period that the borrower may afford the entire package. This single figure lends a deceptive air of simplicity to the deal.

5. "Split-Level Payments"-which set the monthly payment at one level for the first six months and then lower or raise it for the balance of the contract.

When several of these devices are combined in one transaction it is virtually impossible for anyone but a competent mathematician or a person experienced in the use of a computer to determine the true rate of simple annual interest.

The average buyer or borrower is confusedhe finds himself in a "credit wonderland" where he can seemingly possess anything he desires on easy credit, but where the price of repayment is couched in bewildering terms and numbers. Even familiar words have unfamiliar meanings and the only visible land mark is a conveniently contrived "monthly payment." One study 12 found that more than 1% of the consumers interviewed had no idea how much they paid for credit, and that college graduates were no better off in this regard than noncollege people.

Material presented to a congressional sub-committee contained painful evidence that officer status provides no greater immunity. One Lieutenant Commander was found to be paying 18.7% simple interest for a loan obtained on the West Coast.13 A Lieutenant was paying 16.6%, a Marine Officer 14.6% and a military-officerno-money-down plan added up to 32% simple interest. During the year, 1958, in the Washington, D.C., area there were over 3,000 cars repossessed.15 Installment contracts filed to secure repossession titles frequently showed 30% finance charges.16 The financial burdens imposed by such rates, weighing most heavily on persons who can afford them least, create the many consequential problems which are all too familiar.

A SURVEY STUDY " by the Douglas Subcommittee revealed the following typical ranges of interest charges on different types of credit in terms of a simple annual rate:

12. G. Katona, A STUDY OF CONSUMER CREDIT (University of Michigan Research Center, 1960).

13. 86 Cong. Rec. 6152 (March 28, 1960). 14. Ibid.

15. M. Ottenberg, Used Car Racket Flourishes Here, The Washington [DC] Evening Star, November 1, 1959. 16. Ibid.

17. From a chart, "Typical Credit Charges", Hearings before the Douglas Subcommittee of the Senate Committee on Banking and Currency on the Consumer Credit Labeling Bill, 86th Cong., 2d session (1960) at p. 153.

30-36%

Consumer finance companies (small loans)....

In addition there are the extreme cases of 44.09%,18 62%,19 and others yet to come to light. The Douglas Survey shows that every time-installment sale involves charges for credit which are seldom revealed by the price tag on the item. If the size of these charges are known and considered by the potential buyer the extra and sometimes exorbitant expenses of credit buying may be avoided. It becomes apparent that a man will save money if he will shop around for credit or is willing to save for a time and then pay cash for what he wants.

The foregoing type of information is valuable in preventive legal assistance if widely disseminated, discussed and appreciated. Experience derived from pilot projects as the Boston project described earlier has demonstrated that "an increased awareness" of the benefits of increased financial health is basic to improving the indebtedness picture.20

If this awareness is supplemented by concrete suggestions that will reduce the "monthly payments", there are possibilities of influencing the credit outlook and habits of significant numbers of potential debtors. Many avenues of financial self-improvement are opened, such as budget consciousness, advice consciousness, saving and investment programs. For example, from the foregoing table of interest rates it can be seen that among the lowest interest loans are those granted by credit unions. At one credit union in the Washington, D.C. area, the interest rate is 34 of 1% per month on the declining balance (9% per year). At this rate, the actual dollar cost of borrowing $100.00 for one year is approximately $4.88. In contrast, the small loan stautes of neighboring states allow from $18 to $36 in interest and costs to be charged for the same loan.21

Commercial banking facilities together with credit union facilities are available to most naval

18. Actual case of an enlisted man stationed in the Washington, D.C. area.

19. Case NFCU-7, op. cit. Congressional Record, page 6150. 20. Op. cit., CO, USS BOSTON ltr, para. 4.

21. Article 58A, ANNOTATED CODE OF MARYLAND (1957), Section 16. Chapter 8, Title 6, CODE OF VIRGINIA (1950).

proper guidance and by shopping around, the Navy man can find the financial institution which offers him the best solution to his particular financial problem.

CREDIT UNIONS HAVE EXISTED within the naval establishment for over 25 years and there are now over one-hundred credit unions situated on Navy and Marine installations throughout the United States from Hawaii to Boston and from Alaska to the Canal Zone.

Federal Credit Unions are operated pursuant to the authority of the Federal Credit Union Act of 1934, as amended 22 to service groups having a common bond of occupation, association or residence. In addition, about an equal number of credit unions are chartered and supervised by the individual states. In either case, their directors and committees are elected each year by the members of each credit union, and all are supervised and examined by either the Bureau of Federal Credit Unions of the Department of Health, Education, and Welfare or a comparable state authority. Each member, regardless of the number of shares owned, is entitled to only 1 vote.

Credit union earnings in excess of expenses and reserves are distributed among the members based upon the amount of their savings. Most credit unions also provide their members, at no extra cost, life insurance in amount equal to their total unpaid loan balances as well as their share-savings up to the first $1,000 or $2,000. These institutions are now in the course of extending their services to all ranks and enlisted grades. Because the philosophy of credit unions is directed primarily toward rendering the greatest service in meeting the financial need of their members at the lowest possible cost, rather than making a profit or dispensing charity, credit unions can provide an invaluable service. In the words of Vice Admiral William Raborn: