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 The JOURNAL will return unpublished manuscripts if so requested, but responsibility for safe return cannot be assumed.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. MOTт, 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.

THE NAVY'S JUDICIARY UNITS

The pilot program of the Navy's new judiciary system, announced by SECNAV NOTICE 5450 of 6 December 1960, was activated 3 January 1961. Under this system officers specially designated by the Judge Advocate General will serve exclusively as law officers in all general courts-martial convened within the geographical area of the Pilot Program. Specially designated officers have been assigned to Judiciary Units-with each Unit responsible for a predetermined geographic area. A Director, located in the Office of the Judge Advocate General, will supervise the Program. The Units are in fact separate activities, with the senior officers of each Unit having an Officer-in-Charge status. Each Judiciary Unit is under the military control of a Naval District Commandant and under the management control of the Judge Advocate General. The Judge Advocate General will be the primary reporting senior on all judiciary officers.

All officers heretofore certified as law officers by the Judge Advocate General will retain their certifications. They, however, are precluded from sitting as law officers in the Pilot area unless they are specially designated by the Judge Advocate General and assigned to a Judiciary Unit.

The purpose of the program is to develop a hard core of Law Officers who, by devoting their full time and energies to "law officering", will develop a high degree of expertness not otherwise available. This expertise should result in fewer errors which in turn should result in fewer reversals by appellate tribunals. The end product should be an improvement in the administra

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tion of Military Justice in the Navy. The Army pioneered a Field Judiciary Program and found it most successful. Last September the Commandant of the Marine Corps inaugurated a similar program for Marine Corps activities located within the Continental United States.

Under the Pilot Program, two Judiciary Units have been activated:

Naval Judiciary Unit, Norfolk, Virginia, servicing
COMFIVE and Fleet Commands in the area,
Navy Judiciary Unit, Washington, D.C., servicing
COMTHREE, COMFOUR, PRNC, and including Marine
Corps Schools, Quantico, Virginia

NON-JUDICIAL PUNISHMENT APPEAL RECORD

Article 15d, UCMJ, provides that one who has received non-judicial punishment and who deems the same to be “unjust or disproportionate to the offense" may appeal, through the officer who imposed the punishment, to the next superior.

In his appeal the person punished is at liberty to state his subjective reasons as to why he believes the punishment to be unjust or disproportionate. He is limited in his statements only by the truth and Article 1212, U.S. Navy Regulations, 1948 (which prohibits use of language tending to diminish the confidence in or respect due a superior officer).

What may the commanding officer append to the letter of appeal when he forwards it to the next superior? Paragraph 134 (a), MCM, 1951 merely recites:

(Continued on page 20)

PERHAPS THE MOST controversial, the most complicated, and at the same time, the least understood benefit which the Congress has bestowed upon military personnel is the Contingency Option Act (COA). It is unfortunate that such should be the case because, aside from National Service Life Insurance, the Contingency Option Act is the only financial benefit for survivors of deceased military personnel which requires special affirmative action by the serviceman in order to make it operative. All others are effective by operation by law; that is, by the statutes creating them. This is not so with the Contingency Option Act. You and I must decide whether we want the protection of the COA; if so, in what amount; and, within specified limits, who will be designated as beneficiaries.

To further confound this already perplexing matter, we have to estimate what our family situation will be in the future at the very least, two years in the future. As if this were not enough, the luxury of indulging in procrastination is curtailed to a period of one year—our eighteenth year of service for pay purposes, during which our decision must be made. However, the annoyance caused by these many considerations is completely overcome by the concern we all share for the adequate financial protection of our dependents after our demise. I and the authors of the two articles which follow in this issue of The JAG Journal have reduced to writing our researches, thoughts and experiences in this field for the purpose of assisting you in your determinations.

In order to give the individual serviceman a basis for calculating the value of the provisions of the Act to him and his dependents, the author previously wrote an article entitled "The Contingency Option Act & Estate Planning" which was published in JAG Journal, August 1959. The purposes of that article were to stimulate interest in the COA; to place the Act in its proper perspective as part of our over-all insurance and estate plans; and to encourage each serviceman who would be eligible for participation in this program to consider carefully the provisions of the Act as they affected him and

his family, before electing under the Act or declining to do so. In other words, an attempt was made to better equip the reader to make an informed, intelligent decision.

THE ARTICLE WRITTEN by Lieutenant Harry L. Mead, "A Commentary on the Contingency Option Act," which follows in this issue is a comprehensive discussion of all aspects of the Act-the basic options, amounts of coverage which may be taken, designation of beneficiaries, and the mechanics involved in accomplishing the desires of the individual serviceman who decides to participate in this program. Lieutenant Mead also dwells upon the different applications of the Act in physical disability retirement cases as compared to nonphysical retirements. This is an area which should be closely scrutinized by all of us, whether the state of our health is excellent, or physical retirement is imminent. While the cost factor in physical retirement cases is an important consideration, so too are such matters as life expectancy and insurability.

Appearing also in this issue is an article entitled: "The Tax Impact of The Contingency Option Act" by Messrs. Rolfson and Hawk. This gives broad scope treatment of the tax considerations, both to the serviceman in computing his net retired pay, and his dependents who may benefit from the Act. Again, physical disability retirements are discussed at length, with concrete examples used to illustrate the tax impact of the COA. Part I of this article mainly presents information to the reader for computing his federal taxes under varying conditions of retirement. Part II is generally more technical and is of particular value to the reader with background in tax matters and counsellors in the insurance and benefits field. This part, among other things, compares the nature of the tax treatment of the uniformed service retirement and survivors plan to commercial and Civil Service plans.

This series of articles should be of assistance to each eligible serviceman in making a proper decision with respect to the Contingency Option Act. However, another useful and most important purpose may be served. The informa

tion can be used by division officers, insurance officers, and all others who, in the performance of their duties, may be called upon to counsel military personnel who look to them for guidance in such affairs. Certainly it should be most reassuring to an enlisted man to have all facets of the Act explained to and discussed with him by his division officer, preferably before he goes to the insurance officer or the personnel officer for final counselling prior to committing himself to elect under the Act, or to elect not to participate.

AS POINTED OUT in my earlier article, it is difficult, and indeed dangerous, to attempt to give general advice in this matter; that is, the Contingency Option Act is, or is not, a good deal. However, there are some general observations which may be safely made. Some of these are: (a) The monthly benefit payable to a beneficiary,

versus the monthly cost to the retired serviceman, is more attractive upon a 20 year retirement than it is in the case of a 30 year retirement;

(b) If your wife is your age, or older than you, it is probably a bargain;

(c) If your wife is as much as 8-10 years younger than you, the cost will be extremely high-possibly prohibitive compared to the benefit to the dependent wife;

(d) If your wife bears a child "late in the day", around age 40-42 for example, option 2-4 is probably the best bet for you. The cost of this option is only a fraction of the cost of 1-4 or 3-4, and, at the same time, a correspondingly higher benefit is payable to the widow on behalf of the child until the latter reaches age 18. At this time the widow is 58 or 60 and will be eligible for Social Security survivors benefits in her own right at age 62. The 2-4 year hiatus may be coveted by an appropriate settlement option in one of your life insurance policies.

(e) It is the opinion of the writer that option 4 should be added as a rider to any selection the serviceman makes. The increased cost is so little that it should be taken in nearly every case.

It is emphasized again that the suggestions set out in the paragraph above are for general guidance only. To be of any value to you, the Contingency Option Act-like a pair of shoes— must fit you. Get the facts as they apply to you before you decide what to do.

CAPTAIN PAUL F. BORDEN, USN*

*Captain Borden is the director of the Naval Reserve and the Legal Assistance Division of the Office of the Judge Advocate General. A frequent lecturer on estate planning for naval personnel, among Captain Borden's assignments have been Fleet Benefits and Insurance Officer for the U.S. Atlantic Fleet and the U.S. Pacific Fleet; Insurance and Benefits Officer at the Amphibious Base, Little Creek, and at the U.S. Naval Academy. He is a member of the bar of the District of Columbia and the American Bar Association.

JAG BULLETIN BOARD

(Continued from page 18) "The immediate commanding officer of the accused will when necessary include with the appeal a copy of the record in the case."

By paragraph 135(b), "the record" is given some definition. Certain factual data concerning the offense and the accused make up the "record" as well as “any remarks or additional data desired."

It has recently come to the attention of the Judge Advocate General that there is some belief in the fleet that the officer who imposed the punishment from which the appeal was taken could not make specific comment in rebuttal to the letter of appeal in his forwarding endorsement. That is, there is some belief that he must merely forward the record without embellishing comment. This is not so.

For the formalist, the phrase above quoted "any remarks or additional data desired" would certainly include any comment which would be of assistance to the superior in arriving at a fair and just treatment of the appeal. So, just as the person punished must spell out for the consideration of the appellate authority his reasons for his assertion that the punishment is unjust or disproportionate, the officer through whom the appeal is taken should likewise make relevant comment. Το prohibit him from so doing would be to deny information to the superior which could be used in making an intelligent appraisal of the offense and the accused vis-a-vis the punishment.

Paragraph 133b of the Manual requires that the mast hearing be impartial. It therefore follows that the commanding officer's comments in forwarding an appeal should be impartial. Therefore the commanding officer should avoid undue subjective appraisal of the person punished which when added up says only, "I believe Jones is a bum." It is manifest that the superior may expect that the commanding officer believed the punishment to be fair and just at the time awarded. What the superior needs at the time of the appeal are details which would help him to decide whether he agrees. These could include all factors reasonably reflecting upon the state of discipline in the command. Some of these factors would be: incidence of recent petty offenses; indications of breakdown in discipline because of, for example, lack of respect for petty officers; general morale of crew; the past record of the individual punished; the expected beneficial results from the punishment imposed, etc.

The commanding officer should not view the appeal as a personal struggle between him and the party appealing. If he does so, such a feeling will likely creep into his remarks and ultimately reflect upon the fairness of the punishment given. Furthermore, the superior to whom the appeal is taken is concerned with the discipline, morale and effectiveness of his entire command rather than with an individual subordinate command. As such he is interested in a certain amount of uniformity of punishment and this alone will, on occasion, motivate the granting of an appeal. There(Continued on page 30)

B

EFORE THE ENACTMENT of the Contingency Option Act,1 the widow of a retired member who died after retirement had very little to look forward to in the nature of compensation from the Government. Such benefits depended on the war of which the deceased retiree was a veteran, whether or not he had a wartime or peacetime service-connected disability, and, in some cases, the amount of outside income which the widow was receiving. For example, the widow of a retired member could have received but forty-eight dollars per month if her husband had a wartime disability not the cause of his death, and then only if her income were less than $1400 a year. In the more typical case, the widow of a World War II veteran with no disability would receive no pension at all. Thus, a widow of a retired member in many cases would be hard-put to make ends meet after death had terminated her husband's retired pay.

The interesting aspect of the Contingency Option Act is that it is not something for nothing, but is an actuarily sound plan, or one designed to be so. What it amounts to in principle is that the retired member elects to take a reduced portion of his retired or retainer pay in order to provide an annuity for his designated beneficiaries, thereby spreading his retired pay over a longer period of time. Actuarial tables have been prepared for the administration of the Act into which the variable factors of age may be inserted, so that the exact amount of the reduction of the retired pay may be derived. These tables are of course calculated with the expressed aim of long-run, overall equality between the reduction in retired pay and the benefits to be disbursed. In individual cases it is easy

*Lieutenant Harry L. Mead, USNR is presently assigned to the Legislative Comment Branch of the Administrative Law Division in the Office of the Judge Advocate General. He received the B.A. degree from the Harvard College and the LL.B. degree from the Harvard Law School. Admitted to the Florida Bar in 1958 Lieutenant Mead is a member of the Federal and American Bar Associations, and the Navy Marine Corps Junior Bar Association.

1. 10 USC Chap. 73. Although the Contingency Option Act was repealed upon its codification in Title 10, it will be referred to by its popular name.

2. Hearings, House Armed Services Committee, 83rd Cong., 1st Sess. on H.R. 5304, pp. 850, 851.

to imagine instances in which the reduction will be much less than his beneficiaries will receive, as in the case of a member retired for physical disability and dying shortly thereafter. Proposed legislation attempts to mitigate the effect of such cases.

3

Generally speaking, all members of the Armed Forces may make an election under the Act prior to completing 18 years of service creditable in the computation of basic pay, except those on a retired list, members of the Retired Reserve, Reserves on an inactive status list, and cadets and midshipmen. Thereafter a member may change or revoke the election, but that change or revocation will be invalid. if the member is retired or becomes entitled to retired or retainer pay within five years of the date of that change or revocation, except as later explained. The effect of this provision of law is that the member is bound by the last election he makes prior to five years from the date of retirement, and he may not thereafter escape his contract. The purpose here is to prevent adverse selection, that is, the abandonment by a member of an option which has become less favorable to him in the light of the passage of time, or the choosing of an option which has become very advantageous to him. An example of adverse selection would be to permit a member to revoke an option for a wife whose life expectancy has been substantially shortened by the advent of a serious disease within the fiveyear period. Without the five-year period, during which no election of an option may be changed or revoked, the reduction factor premiums or amounts deducted from retired pay would of necessity be substantially higher in order to prevent a loss to the program.

ANY ACTIVE MEMBER with less than 18 years of service who is retired for physical disability and awarded retired pay after the date of the Act may at the time of retirement and not later than the time he selects the method of com

3. 10 USC 1431(a). NOTE: Submission of an election form (NAVPERS 591) is not desired from personnel with less than 17 years' service for basic pay purposes, according to para. 5b of BUPERSINST 1750.1C.

4. 10 USC 1431 (c).