lowing the arraignment and yet prior to the plea-not recognized in Whitley.

Arraignment: TC: The charges have been properly referred to this court for trial, and with their specifications, are as follows:

Notice of Service: TC: The charges were served on the accused by me (-)- 19————————, how do you plead?

NOTE. This completes the arraignment, of which the pleas are no part (65a)

Motions, etc. TC: Before receiving your pleas, I advise you that any motions to dismiss any charge or to grant other relief should be made at this time.

NOTE-Motions to dismiss and for other relief, such as motions to sever, for continuance, or for examination of the accused because of suspected insanity, are properly presented at this point; all proceedings and action thereon will be recorded. See 52d, 67 and 68. Any explanation of the accused's right to move that a charge be dismissed (53h, 68c) because barred by the statute of limitations, and the accused's response thereto, will be recorded.

DC: Defense moves that Charge

former acquittal, on

be dismissed because of -, by a court-martial convened pursuant to - dated 19, of the charge of (reciting charge and specifications in full) (moves that This is followed by rulings on the various motions, amendment of the charges, votings on the rulings, and other steps prior to the actual plea of the accused. Thus it may be seen that there is potentially a considerable portion of the proceedings that could transpire between the end of the arraignment and the entry of the plea. If paragraph 37b, MCM 1951, is to be followed literally, then additional members could "probably" not be added after the arraignment but prior to the plea as long as a quorum existed. (I use the word "probably" because Judge Latimer, in Whitley " indicated that the need for more experience in the court might have "some merit" as a basis for appointing an additional member even after evidence was introduced, if that were the sole reason.) However, the Whitley case apparently stands for the proposition that any time prior to the plea, even if it be after the arraignment, additional members may be added with a showing of good cause. The point of departure is the plea then rather than the arraignment. It is considered doubtful, however, that the Court in the Whitley case intended to overrule, as such, its earlier position with respect to the separation of the plea and arraignment. Such an interpretation would also be in conflict with the holdings in later cases as shown. Nevertheless, the Court has, by its language opened up the question as to the meaning and scope of the word "arraignment." To be on the safe side, and in strict conformance with the provisions of paragraph 37b and 65a MCM, 1961, it would be well to appoint additional members prior to arraignment, if good cause cannot be established to justify later appointments.

The legislative history of section 204(A) (7) of the Career Compensation Act of 1949, 37 U.S.C. 235 (A) (7), authorizing incentive pay for demolition of explosives, indicates that such was authorized primarily for underwater demolition teams of the Navy. Therefore, the term "Underwater" in the phrase "Demolish by the use of explosives underwater objects, obstacles, or explosives" in section 9(B), Executive Order No. 10152, as amended, must be construed as modifying not only "objects" but also the words "obstacles" and "explosives".

Members of the Uniformed Services who, in connection with assignment to various military occupational specialties, are taught how to set underwater demolition charges may not have such training duty regarded as a primary duty involving demolition of explosives to be entitled to incentive pay for demolition duty, notwithstanding that the duty may be performed under extremely hazardous conditions. Comp. Gen. decision B-141856 of 27 April 1960.

MILITARY PERSONNEL-Retired Pay-Forfeiture-Effect of Act of September 1, 1954, Prohibiting payment to persons convicted of certain offenses-Effective date

• The effective date of a conviction for stoppage of retired pay pursuant to section 1 of the Act of September 1, 1954, 5 U.S.C. 2282, should, in the absence of an authoritative judicial decision, be determined in a manner which will result in the least expenditure of public funds so that the day a jury returns a verdict of guilty, rather than a later date when the judgment is ordered executed, should be considered the time of conviction and retired pay stopped the following day. Comp. Gen. decision B-142314 of 4 May 1960.

MILITARY PERSONNEL-Quarters Allowance-Commencement and Termination-Detachment and Reporting Days

● In view of representations that the rule denying members of the uniformed services quarters allowance on the date government quarters are terminated, incident to a permanent change of station, puts the member to his own expense to procure sleeping accommodations for himself and his family, because quarters are normally vacated during working hours and seldom does the member report to the new station the same day, the rule will not be followed; therefore, the issuance of regulations which will permit payment of quarters allowance on the date of termination and will preclude payment on the date of assignment of public quarters is a reasonable and proper exercise of authority under section 302 (E) of the Career Compensation Act of 1949, 37 U.S.C. 252 (E) and Executive Order No. 10204. 38 Comp. Gen. 713, overruled. Comp. Gen. decision B-143506 of 28 December 1960.

Prepared by the Finance Branch, Office of the Judge Advocate General

Never leave the scene of an accident in which you or your vehicle were involved without stopping. No matter how slight the collision, failure to stop may subject you to criminal prosecution, even though the accident was not your fault. You should stop your vehicle as soon as possible without further endangering any person or property, and without obstructing traffic. Do whatever is necessary to warn on-coming traffic, in order to prevent further accidents. If possible, station someone to warn approaching vehicles. At night, use flares or reflectors or your flashlight, if available.

...

CALL THE POLICE Policemen are trained to handle any situation that may result from or arise after an accident. If you are involved even though you are not physically injured, you may suffer from shock and excitement which makes it difficult for you to think clearly at the time. Let the policeman take over when he arrives. He will handle any emergency and investigate the accident. His report of investigation may be helpful to you later if legal action becomes necessary.

If the accident occurs within the limits of a city, village or town, call the municipal police. If it occurs on the open highway, call either the nearest State Police Station or the County Sheriff's Office.

GIVE NECESSARY INFORMATION ...

It is generally required by all States that the driver of any vehicle involved in an accident give his name, address, and the license number of his vehicle to the other party. If he is so requested, the driver must exhibit his operator's or chauffeur's license. Leaving

the scene of an accident without furnishing such information may subject you to criminal prosecution.

IF YOU COLLIDE with a vehicle which is unattended, the law requires you to locate the operator or owner of the vehicle and give him your name and address, or to leave in a conspicuous place on or in the unattended vehicle a written message giving the above information and the circumstances of the collision.

The best policy is to give no more information than the law requires. Do not comment on the cause of the accident, and admit nothing though you think you were in the wrong. You may discover later the other party was equally or more to blame. In addition, immediately after an accident you will most likely be emotionally or physically upset, to such an extent that you will be unable to accurately appraise the situation. There will be time later to explain what happened. No one can force you to give an opinion as to the cause of the accident, at police headquarters or elsewhere. You have a right to consult an attorney before making any statement.

The law requires you to give certain information. By the same token, you are entitled to the same information, from the other party involved in the accident. Do not fail to obtain this information. In addition to the names and addresses of the persons actually involved, try to obtain the names and addresses and, if possible, written statements, of all persons who witnessed the accident. Witnesses will be extremely important later if legal action becomes necessary. You should also make notes of important aspects of the collision to help you remember them.

For example, a diagram showing the exact position of the vehicles before and after the accident may be of great value later. Step off skid marks and other important distances.

within a specified period in order that security may be posted for claims arising out of the accident.

In addition, notify your liability insurance company immediately and if your vehicle was damaged, notify your collision company as well.

You are strongly advised to learn your legal duties in connection with accident reporting since it generally is not sufficient to let the other driver make the report or merely call the police to investigate at the scene of the accident. This, of course, can be accomplished through your Legal Assistance Officer.

AVOID RUSH SETTLEMENTS

If your vehicle is covered by insurance, make a full and true disclosure of all the facts to your insurance company. The company's adjustors will probably handle the matter for you. If you do not carry insurance, or your possible liability exceeds the amount of your policy, then you should consult your attorney before paying or receiving any money in settlement. Under all circumstances, wait until the full extent of the injury or damage can be ascertained before you agree to a settlement. Refuse those who volunteer to adjust your case for you, or would hurry you to settlement. Beware of a lawyer or other person who solicits your case, no ethical attorney would employ such methods of obtaining clients. LCDR OLIVER E. DAVIS, USN Office of the Judge Advocate General

JET AIRCRAFT NOISE

(Continued from page 88)

As a matter of policy, avigation easements are not acquired judicially by any Agency of the Department of Defense. Nor are such easements acquired administratively. However, the Department might become a recipient of an avigation easement as the result of a suit initiated by the party whose property rights are being abrogated. On the other hand, clearance or obstruction easements are normally acquired by the Government in condemnation proceedings.

The holding, by the government of a clearance or obstruction easement, permits the government to enter upon and keep the air corridor at the ends of runways clear of obstructions, and prevents the property owner from building into such airspace. Such an easement does not preclude the property owner bringing a suit for the actual invasion of such airspace by aircraft taking off and landing, however. The holding by the government of an avigation easement on the other hand does not necessarily give the government the right to keep clear the air corridor over which the easement is held, but does preclude the property owner from building into such airspace.

CONCLUSION

WHILE THE NOISE of military jet aircraft is recognized as a community problem today, technological advancements have been made in an effort to reduce it, at no cost in performance. Military operations from air bases are not subject to being judicially monitored by injunction. Avigation and clearance easements are two different interests in reality. While noises created

in flying above the minimum safe altitude for flight would not appear to be redressable under the Federal Tort Claims Act, those created by continuous flight below that altitude which are substantial and render the land unfit for use, or a particular use, constitute a taking under the Fifth Amendment, for which compensation may be sought under the Tucker Act.

JAG JOURNAL NOTES

Many requests have been received as to (1) the availability of a recent Index to JAG Journal articles, and (2) guidance for permanent binding of the Journals. A definitive Index embracing a four-year period ending December, 1960, will be available late summer. Journals published during calendar year 1961 constitute Volume XV, which will carry sequential pagination. An Index to articles of the Volume will be found in the final issue of the year.

COURT MEMBERS

(Continued from page 94)

ing proceedings, and that the absence, though excused by the trial counsel, of seven of the fourteen members at the start of the trial, required a rehearing. In the case of United States v. Boysen," a question arose as to the authority to excuse the law officer and replace him with another during a long continuance following the commencement of the trial. After determining that the substitution of a law officer was subject to the same requirement of good cause as the substitution of a member, the Court of Military Appeals proceeded to analyze the term "good cause." It noted that the term is not defined in the Code or the Manual but pointed out that the latter gives some informative examples:

We have pointed out that the convening authority's discretion is subject to review on appeal. United States v. Whitley, 5 USCMA 786, 19 CMR 82; United States v. Grow, 3 USCMA 77, 11 CMR 77; see also House Hearings, op. cit., page 1081. Also, we laid down a general guide for such appellate review. In the Grow case we said:

'Because the substitution of court members after arraignment is such a departure from the principles applicable to jury trials, and presents such a risk of abuse, we will view with circumspection any relief of a member after arraignment. Records of trial should set forth in detail the basis of the absence or relief of any member and affirmatively establish that such absence or relief falls within the provisions of the code.' * * *

Be that as it may, good cause contemplates some sort of critical situation as distinguished from the usual and ordinary. The word 'exigency' imports urgency, necessity, or crisis. Webster's New International Dictionary, 2d ed, page 893. Normal conditions of military life do not provide the emergency or exigency constituting good cause for relief from court-martial duty while the trial is in progress. [emphasis supplied]

It is apparent from the foregoing that "good cause" is an overriding need, and not just a desire to replace a law officer or add a member out of whimsy, or to appoint one who is favorably disposed toward the prosecution's side. It has been held to include a family emergency."

CAPT JOHN P. GIBBONS, USN
Office of the Judge Advocate General

14. U.S. v. Boysen, 11 USCMA 331, 336, 147, 152.
15. CM 404771, Patterson (1960) 30 CMR —.

U.S. GOVERNMENT PRINTING OFFICE: 1961