Computation of service for transfer to Fleet Reserve, Fleet Marine Corps Reserve and Retirement Time is deducted in accordance with Bupers Manual, arts. C13407, C14301 and MarCorps Manual 13400.3 Computation of leave credit Leave does not accrue, Bupers Manual, art. C-6104 and MarCorps Manual 9050 increases in basic pay occur after 2, 4, 6, etc. years of cumulative service referred to as longevity increases. Periods of active service and periods of enlistment or appointment in a reserve component are included in the computation, however, the law does not contain specific rules for inclusion or exclusion of periods of unauthorized absence, confinement or sickness misconduct. However, the Comptroller General has held that periods of time lost by enlisted members while absent by reason of sickness due to misconduct, absent without leave, etc., may not be considered as enlisted service for pay purposes.23 23. "Longevity pay generally has been considered as an increase granted for honest and faithful service on the basis that the serviceman by honest and faithful performance of his duties has fitted himself better for the performance thereof... it would be contrary to the whole spirit and purpose of such provisions were he to receive the benefits thereof by counting periods when he was not ready to serve because he had deliberately absented Paragraph 6 of SECNAV Instruction 1626.4 indicates that in the computation of cumulative service performed after 24 July 1956 the definitions of confinement and civil arrest as contained in SECNAV Instruction 1626.4 will be employed. However, paragraph 044019, Navy Comptroller Manual sets forth different definitions of confinement and civil arrest for periods occurring before and after 24 July 1956. These definitions remain in effect. TIME LOST ON LEAVE CREDIT Section 3 (a) of the Armed Forces Leave himself from duty without authority or because he was physically unable to perform his duties by reason of his own misconduct" 22 Comp. Gen. 759 (1943) at page 761. Note: Time lost by commissioned and warrant officers because of sickness misconduct, unauthorized absence and confinement can not, in absence of additional legislative authority, be excluded from determination of creditable service for basic pay, cumulative service, and retirement and other purposes. 38 Comp. Gen. 352 (1958). Act of 1946, 37 USC 31a (a) provides in part as follows: Each member of the armed forces shall be entitled to leave at the rate of two and one-half calendar days for each month of active service excluding periods of (1) absence from duty without leave, (2) absence over leave, and (3) confinement as the result of a sentence of court-martial. The three exclusions listed in the Act are not the sole determining factors. The term active service as contained in the above statute has been interpreted by the Comptroller General as excluding time when a member is unable to perform active service due to his own misconduct. Consequently, time lost by a member while in the hands of civil authority cannot be considered as active service for leave purposes. Any determination of time lost under SECNAV Instruction 1626.4 would be equally applicable to a determination as to whether leave accrued. TIME LOST ON COMPUTATION OF YEARS OF SERVICE (Fleet Reserve And Retirement) Under current statutory provisions, 30 or more years of active service are required as a prerequisite for retirement by reason of length of service 25 or a minimum of 20 years of such service are required for transfer to the Fleet Reserve or the Fleet Marine Corps Reserve. The statutes themselves do not specify what can and cannot be counted as "active service". However, it would appear that all service of an enlisted member credited for longevity purposes could be counted. 26 Any administrative determination of time lost during which the member was denied pay and longevity rights would not count for retirement purposes.27 The reasoning of the Comptroller General, that longevity rights have been considered as a reward for honest and faithful service, would appear to be equally applicable to retirement benefits. It can therefore be concluded that if the enlisted member has been denied pay and longevity rights for a certain period as time lost, credit should not be given him for the same period for retirement purposes. 24. 38 Comp. Gen. (1958) 320; see also BuPers Manual, Art. C-6104 and MarCorps Manual 9050. 25. Until 1 January 1973, members of the Naval or Marine Corps Reserve who were members of either of these reserve components on 1 January 1953 may be retired with pay on completion of a minimum 20 years of active service, the last 10 of which were served in the 11 year period immediately preceding retirement. 10 USC 6327. 26. 10 USC 6323, 6326, 6330, 10 USC 1405, 10 USC 1208. 27. See 38 Comp. Gen. 352 (1958) where rights of longevity and retirement coincided as combined rights. Also see BUPERS MANUAL C13407, C14301 and MARCORPS MANUAL 13400.3. SUMMARY A time lost determination has many adverse effects upon a serviceman. This article has attempted to highlight some of the most common ramifications of such a determination. It is understood that a forthcoming change to the Bureau of Naval Personnel Manual will include detailed instructions in regard to lost time which will take cognizance of pertinent legal opinions and prescribe rules concerning a number of situations which are not covered by such opinions. In the interim it is recommended that the pertinent material contained in the Bureau of Naval Personnel Manual, Marine Corps Manual, Navy Comptroller Manual, and pertinent SECNAV Instructions be consulted prior to making any time lost determinations. A table containing a summary of the controlling regulations in regard to "time lost" is contained herein for the convenience of the reader. It follows generally a table previously published in the Bureau of Naval Personnel Manual, Article C-7817. However, this table is intended to serve as a reference guide only. In all cases the source material should be consulted in making time lost determinations. C. O.'s AUTHORITY (Continued from page 122) summarily to exclude civilians from the area of his command", and then announced that Article 0734 "made absolute the commanding officer's power to withdraw her [Brawner's] permission to enter the Gun Factory at any time." The Court further held that the Superintendent's action was "entirely rational and in accord with the contract with M & M", and did not violate the requirements of the Due Process Clause of the Fifth Amendment. In reaching this conclusion the five man majority was of the opinion that Rachel Brawner was not denied the right to follow a chosen trade or profession, but, rather, she was merely denied the opportunity to work at one isolated and specific military installation. The Court did, however, state that if the announced grounds for Mrs. Brawner's exclusion had been patently arbitrary or discriminatory, she could not have been kept out of the Gun Factory. Finally, the majority of the Court was of the opinion that denial of admittance for "security requirements" did not imply disloyalty on the part of the employee, but covered many other matters, and therefore constituted no impairment of Mrs. Brawner's employment opportunities anywhere else. RECENT JAG OPINIONS MILITARY PERSONNEL-Retired Pay-Waiver of-Effect on Entitlement to Hospitalization • Retired members of the naval service may waive military retirement pay in order that active naval service may be added to years of civil service in computing the pay to be received through Civil Service retirement. A question was raised whether such action would result in loss of entitlement to medical and hospital care for the retired member of the naval service and his dependents. The Dependents' Medical Care Act of 1956 defines "retired member of a uniformed service" as a "member or former member of a uniformed service who is entitled to retired, retirement, or retainer pay, or equivalent pay as a result of service in a uniformed service..." There is no requirement therein that the retired member be in receipt; only that he be entitled thereto. Departmental regulations at one time required that a member be in receipt of retired pay to receive hospital and medical treatment. This requirement was deleted. The Judge Advocate General, therefore, has expressed the opinion that waiver of Navy retired pay will not result in any loss of entitlement to medical and hospital care for retired members of the naval service and their dependents. (JAG ltr JAG: 131.5: DJB:sb Serial 1794 of 29 March 1961.) STATES Federal Supremacy-Registration of Radiation Sources The District of Columbia has adopted a regulation and several states have adopted statutes which require registration of all radiation sources within their territories. Compliance with these statutes and regulations will result in an increased work-load for Federal activities. The Navy intends to cooperate in so far as practicable with these state and local requirements. Preliminary to the establishment of a uniform policy, however, an opinion concerning the Navy's legal obligation for registration of radiation sources with states and other local governments was requested. On the basis of the supremacy clause of the Constitution and decisions of the United States Supreme Court construing that clause, it was concluded that the United States is under no legal obligation to comply with the requirements of the above regulations and statutes. (Memorandum of Law Concerning the Supremacy Clause, JAG: 131.5: DJB:sb under Serial 1346 of 10 March 1961.) RECORDS Removal of Derogatory material-Board for Correction of Naval Records The Board for Correction of Naval Records has the authority to remove letters of reprimand and other such communications the presence of which in a member's record constitutes an error or injustice. Such a decision by the board may be further implemented by having the materials removed from the records, placed in a confidential file maintained by the board, together with a record of proceedings of the board's action and no reference thereto in the official record. (JAG ltr JAG: 131.5: DJB:sb Serial 1340 of 10 March 1961.) DECORATIONS—Eligibility of Retired and Inactive Reserve Per sonnel for ● Most authorized decorations may be awarded only for acts performed "while serving with the Navy or the Marine Corps”: (Navy and Marine Corps Medal10 USC 6246; Navy Cross-10 USC 6242; Distinguished Service Medal-10 USC 6243; Silver Star Medal-10 USC 6244; Distinguished Flying Cross—10 USC 6245; Bronze Star Medal-Executive Order No. 9419 of 4 February 1944; Air Medal-Executive Order No. 9158 of 11 May 1942 and 9242-A of 11 Sept 1942; Purple Heart-Executive Order No. 10409 of 12 November 1952). Membership in the naval service must be distinguished from service with the Navy. While the phrase "service in any capacity" does not require in every case that an individual be serving on active duty, it does require active participation of some kind in the performance of the Navy's mission. The Medal of Honor may be awarded to any person, who, while a member of the naval service, in action involving actual conflict with an enemy, or in the line of his profession, distinguishes himself conspicuously by gallantry and intrepidity at the risk of his life above and beyond the call of duty and without detriment to the mission of his command or to the command to which attached. (10 USC 6241.) It does not in terms require that the person be serving in any capacity with the Navy. Although the language of the statute does not explicitly limit the awards to persons on active duty, its whole tenor and tradition limit the award to persons on active duty and require the conclusion that it cannot be awarded to retired or reserve personnel not on active duty or serving in some capacity with the Navy. The Legion of Merit may be awarded by the President to any member of the armed forces of the United States or of any friendly foreign nation, who, after September 8, 1939, has distinguished himself by exceptionally meritorious conduct in performing outstanding services. (10 USC 1121.) It was concluded that there could be circumstances in which retired personnel or reserves not on active duty or serving with the Navy in any capacity, could qualify for the Legion of Merit. It would be sufficient that their services were of direct benefit to the Navy, the Department of Defense or the United States government in general. All personnel of the Navy, Marine Corps and Coast Guard who receive an individual Letter of Commendation signed by the Secretary of the Navy, or designated authorities, are authorized to wear the Commendation Ribbon with Metal Pendant. There is no legal objection to the issuance of letters of commendation to retired or reserve personnel in recognition of meritorious acts performed while not on active duty. Hence, retired and reserve personnel not serving on active duty or with the Navy in any capacity, could under certain circumstances qualify for the award of the Commendation Ribbon. (JAG ltr JAG:131.5: DJB:sb Serial 3147 of 26 May 1961.) U.S. GOVERNMENT PRINTING OFFICE: 1961 REAR ADMIRAL WILLIAM C. MOTт, USN REAR ADMIRAL ROBERT D. POWERS, JR., USN Judge Advocate General of the Navy LIEUTENANT Commander FRANK J. FLYNN, USN Editor The issuance of this publication approved by the Secretary of the Navy on 6 April 1961. 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 military 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 of the Judge Advocate General. For sale by the Superintendent of Documents A MESSAGE FROM THE PRESIDENT OF THE U.S. NAVAL WAR COLLEGE Judicious and effective use of United States Navy sea power demands that our naval decisionmakers at all levels be versed in international law. In response to this exigency which is ever increasing in complexity, the Navy has two long-established institutions that have a continuing role in the field. The Naval War College, established in 1884, provides education and training in international law as it relates to the preparation of resident student officers for higher command and staff responsibilities. In 1894, acting to accommodate the need to provide all United States Naval Officers with the opportunity to further their knowledge of international law, the Naval War College inaugurated the "Blue Book" program through which pertinent educational and informational material in the field, uniquely available to the College, is published. In later years, extension-type courses have been offered to non-resident officers. The Office of the Judge Advocate General, authorized by Act of Congress in 1880, provides detailed guidance in matters of international law for those with command responsibilities, and to other components of the naval esablishment. Two widely publicized incidents point up clearly the role of the Navy in international law. Last January, on a nationwide television newscast, an officer on the staff of the Chief of Naval Operations gave a briefing concerning the rebel seizure of the S.S. SANTA MARIA and the part being played by the United States Navy in this incident. At almost the same time, Rear Admiral Allen Smith, Jr., USN, Commander Caribbean Sea Frontier, was ordered to play a key role in the affair. Admiral Smith is not an international law specialist; he is a regular line officer who, in the normal course of his duty, was required by higher authority to involve himself deeply and accurately in the complexities of international affairs. During this same period, Rear Admiral William C. Mott, USN, the Judge Advocate General, was apprising the Chief of Naval Operations and the Secretary of the Navy of the international legal implications of mutiny, insurgency, piracy and other legal questions which might arise out of this tortious act on the high seas. To coordinate legal developments, the Office of the Judge Advocate General was in liaison with the Office of the Legal Adviser in the Department of State; the Attorney General; the Office of the General Counsel of the Department of Defense; and the Deputy Chief of Naval Operations for Plans and Policy. On another occasion in 1959, the young Commanding Officer of a United States Navy radar picket escort was given the mission of intercepting, boarding and inspecting a USSR trawler to determine the extent, if any, of its involvement in Atlantic cable cutting activities. The Commanding Officer of the ship accomplished his mission with dispatch, but on the way to the interception point he must have given a great deal of thought and study to the international law problems which his mission encompassed. An essential ingredient to the successful accomplishment of his task was a working understanding of legal principles at stake. Meanwhile, another part of the Navy's team was in action. In the Office of the Chief of Naval Operations, with the Judge Advocate General and his staff assisting, a policy directive from |