utilities owned or represented by a retired officer and (3) the furnishing of meals by a restaurant managed, represented, or owned by a retired officer, which, pursuant to a contract or in exchange for Government meal tickets, serves meals to military personnel.

As to each of the above types of activity the conclusion was reached that no proscribed selling was involved. It was observed that the retired officer who "sells" over the counter performs merely a routine task not entailing any solicitation or negotiation on his part and performed in response to a request initiated by the Government. The other activities described were characterized by the Comptroller as being essentially the furnishing of a service and not extending to the "sale" of tangible property, even though the transfer of some tangible item might be effected as an incident to the service, e.g., parts added to a radio in connection with repairs.

The next type of employment considered by the Comptroller was that of the "technical consultant" the duties of which require retired officers to review Government announcements to determine the products on which their firms should bid; prepare cost studies, specifications, architectural drawings and related matters necessary in developing bids on Government contracts for all types of supplies and material; prepare correspondence with military departments in connection therewith; occasionally to attend meetings with personnel from the Armed Forces on matters relating to contracts and proposals, such participation being limited, however, solely to acting as technical advisors to other personnel from their companies.

The Comptroller found no prohibited selling activity present inherently in the duties of a technical consultant as described above. With respect to attendance of meetings relating to contracts and proposals the Comptroller offered this comment:

Neither do we believe that an officer who occasionally accompanies other members of his firm as technical advisor to meetings with Department of Defense personnel to discuss performance or progress or similar matters under awarded contracts may reasonably be viewed as being engaged in selling, etc., for the purpose of the statutory provisions. However, if the meetings are for the purpose of discussing any supply procurement proposals or for the purpose of negotiating or discussing proposed changes in any of the terms of an existing contract, the officer's attendance at such meetings should, in our opinion, be regarded as participation in sales activities within the purview of the statutes.

The Comptroller's advice was also solicited concerning the legality of the employment of

retired Regular officers in supervisory positions by defense contractors. It was stated in the request for decision that while such retired officers "do not themselves engage directly in selling to the military services, other employees working under their supervision are so engaged. Some of the officers are responsible for the entire operation of a small company. Some are responsible for all phases of their company's operations within an assigned geographical area. Others supervise one or a group of functions within the company organization. A few serve as sales managers, and are responsible for all sales activities of their firms. When direct negotiation with military installations or officials is necessary, it is performed by other personnel...

In reply to the foregoing inquiry the Comptroller responded:

It is our view that retired officers having administrative, supervisory or managerial responsibility over the sales department or the salesmen of a firm are not subject to the statutes solely because of their administrative, supervisory or managerial duties so long as such duties clearly and without exception do not involve their signing bids, proposals or contracts to or with the services listed in the statute or their contacting, in person or by correspondence or otherwise, any installation or official or such services for the purpose of doing anything within the scope of selling as defined in Department of Defense Directive 5500.7. Six questions were submitted to the Comptroller involving the legality of various aspects of the duties of the so-called "Washington Representative" of a company or companies engaged in selling or negotiating to sell products to the military.

Category 1. "The maintenance of lines of communication between the corporation and those government agencies with which the corporation does business. In varying degrees, all the corporations concerned do business with the Navy. The retired officers concerned have no authority to negotiate contracts or to execute any contracts of sales. *** Communications between corporations and the Government may involve complexities which are time consuming and costly if conducted on a trial and error basis. The service the retired officer renders is to reduce the time and money loss factor inherent in the communications process."

The Comptroller replied that:

On the basis of such description there appears to be little basis for a conclusion that the activities required of the officers are sales activities for purposes of the statute. If, however, in maintaining the lines of communication between the corporation and the Department of the Navy the retired officer in fact initiates any contacts with the Navy for any of the purposes enumerated in the above-quoted provisions of Department of Defense Directive 5500.7, he would be subject to the statute.

Category 2. "Analysis and reporting in relation to legislative or executive agency programs which may affect the operations of the company. The performance of this function frequently requires attendance at conventions, symposiums, trade association committee meetings, and other activities that are also attended by representatives of the Navy. In some instances occasional direct contact with the Department of the Navy may also be necessary." The Comptroller concluded that:

Activities of this general nature which do not purport to be for the purpose of effecting a sale are not subject to the prohibition of [the statute] B-148699, supra. Compare, however, 40 Comp. Gen. 511.* Category 3. "Arranging for lodging and travel reservations, appointments and general assistance to visitors from Washington to the home office of the corporation, and from the corporation office to Washington.” The Comptroller advised that such liaison duties do not appear to constitute sales activities within the prohibition of the applicable statute.

Category 4. "Management of the Washington office. This generally includes replying to written and oral inquiries received from all sources, or referral of the inquiries to the home office."

The Comptroller replied that:

The management of a local company office, while a form of liaison activity, would not of itself constitute an engagement in selling activities as contemplated by [the statute]. However, if in the course of managing the local office a retired regular officer does anything which is within the scope of selling as defined in Department of Defense Directive 5500.7, or which otherwise may be viewed as sales activities for purposes of the statute, he would be subject to the statute. Merely replying to written and oral inquiries or otherwise responding to requests from Navy officials for assistance, information or advice is not viewed as engaging in sales activities for purposes of the statute. B-148699, supra.

Category 5. "The performance of public relations duties for the corporation."

The Comptroller concluded that "the duties of retired officers employed as public relations representatives by industries in building and maintaining productive relations with the Navy and other customers may involve the performance of activities directly calculated to result in the sale of the employer's products. On the other hand, it is equally clear that under the definition there may be cases in which retired officers are employed by industry in public relations work which do not actually constitute an engagement

5

4. Holding illegal the employment of a retired officer who was required to visit military installations and to consult with officials there in order to ascertain current and future military needs and problems so that he could advise Employer with respect to the best utilization of employer's current product line and to suggest new lines of potential product development.

5. 38 Comp. Gen. 470 holds, in part, that contacts by a retired officer with the Navy for the express purpose of promoting good will which will result in sales to be effected by other employees of the employer is prohibited.

in selling activities as contemplated by the statute. Accordingly, cases using that term as a description of the retired officer's duties should be considered on an individual basis with the view of determining whether the specific duties of the position involve any activities such as those within the contemplation of Paragraph VI.B of Department of Defense Directive 5500.7 and our decisions."

Category 6. "Liaison with the representatives of foreign governments."

The Comptroller concluded that such liaison activity does not constitute prohibited "selling."

As to the period of time during which a retired officer would be deprived of retired pay on account of prohibited selling activity the Comptroller advised:

Subject, of course, to the two-year limitation of 5 U.S.C. 59c where applicable, it is our view that when the activities of a retired regular officer are considered to be within the purview of the statutes, the prohibition against the payment of retired pay continues during the entire period while his engagement in those activities is required or continues and thereafter during the period covered by any contract resulting from such activities.

The Comptroller General's decision of 8 August 1962 and prior opinions expressed by the Judge Advocate General in the "selling" area are generally in accord. This decision should provide valuable guide-lines to retired officers, to employing companies, and to officials charged with the responsibility of reviewing the Statements of Employments filed by retired officers.

Larceny by Custodian

(Continued from page 156)

tion of Article 121 has been affirmed on a theory of a wrongful withholding supported solely by a failure or inability of the custodian to produce the owner's goods. To proceed with prosecution for larceny solely upon evidence that a custodian is unable to produce the custodial goods is questionable indeed. Prosecution will rest upon much sounder ground if there is presented to the court some independent evidence of an intent to steal. Such an intent can be revealed by many different types of acts, some of which were mentioned in the excerpt from United States v. Crowell quoted above, such as false bookkeeping entries, denial of receipt of goods, failure to account, false accounting, deceit, running away with the money, or actually expending the money for the accused's own purposes. If the only evidence against the custodian is that "he does not or cannot account for or deliver it at the time an accounting or delivery is required," then there is considerable doubt that a conviction of a custodian of property of larceny in violation of Article 121 will withstand the rigors of appellate review.

Recovery of Taxes

(Continued from page 149) of the country within which he will be living, permit sale or disposal of the item prior to the owner's return to the United States. Its sale may be flatly prohibited, permitted only if to other U.S. personnel, or it may be necessary to obtain permission from foreign authorities and pay their customs duties and taxes in connection with such a sale.

Government transportation may not be used to transport property owned by service personnel, to a foreign country or United States possession for the sole purpose of sale. It must be understood that only items intended for personal use by the member of the Armed Forces or his or her dependents, at the member's duty station, may be shipped at government expense; and that any contemplated sale should be near the end of the tour of duty or in accordance with area regulations and local laws.

Although this article includes a general explanation of the law and regulations relative to filing claims to recover the excise tax paid on exported articles, the question of whether the evidence presented will be satisfactory to support a claim in any given instance is a matter to be resolved by the particular District Director of Internal Revenue who has jurisdiction. The fact an individual may have included all the information specified in this article does not necessarily mean the District Director, with whom the claim is filed, will not ask for more details or further investigate the claim. One other word of caution to those fortunate enough to sell their automobiles or other items overseas, at a greater price than the price they paid-any profit resulting from sale of personal property, whether the sale takes place within the United States, a possession of the United States or a foreign country, is taxable income that must be reported as capital gain on income tax returns of citizens of the United States and resident aliens.10

10. NAVEXOS P-1983, JAG Federal Income Tax Pamphlet, ¶¶ 21 and

23.

Impossibility as Defense (Continued from page 153) in another room. 42 To endeavor to shoot another with an unloaded weapon will sustain a conviction of attempted murder,43 and the purchase of an innocuous white powder, believing that it is a narcotic, will sustain an attempt conviction."

In the foregoing examples where the defendant has the requisite mens rea and performs some overt act amounting to more than mere preparation, it is apparent that by the use of the "reasonable man test" the conviction of an attempt should be sustained upon appeal even though it was later discovered that the crime was impossible to complete. The later discovered facts should not alter the situation where the accused's intentions and action are clear.

In the instant case, Judge Kilday points out that if the Court were to follow the Board of Review it "would lead military jurisprudence into the morass of confusion as to criminal attempts in which civilian jurisprudence finds itself immobilized and from which heroic efforts are being, made to extricate it." Thus, the Court refused to become involved in the question of "factual" or "legal" impossibility. In part the Court quoted from the American Law Institute's Model Penal Code which provides that:

... A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

(a) purposely engages in conduct which would constitute the crime if the attending circumstances were as he believes them to be. . . .45 This is in accordance with the provision of paragraph 159 of the Manual for Courts-Martial noted above. Thus, the Court's decision in this case follows the better line of cases and provides for the military a workable rule, given to uniformity, and one relatively easy to apply.

42. Note 11 supra.

43. State v. Damms, 9 Wis. 2d 183 (1960).

44. People v. Sui 126 Cal. App. 2d 41 (1954); United States v. Dominquez, 7 USCMA 485 (1957).

45. See Article 5.01, Model Penal Code of the American Law Institute, Tentative Draft No. 10, May 6, 1960.

Petroleum and National Defense (Con. from page 158) During the past decade it has become increasingly clear that a national defense is a hollow objective if it does not include defense of the entire free world. We have learned that we cannot fence in our resources from the rest of the free world-nor can we fence out the problems of those whom we have and those whom we need for allies. The availability of reasonably priced fuel for energy in a nation is a good

index of a nation's strength and ability to survive in the international economy. The Russians know this well and are busily engaged in attempting to make the Eastern bloc an indispensible economic ally, in the energy field, with the unaligned countries. This is an area where the battle lines are already drawn-and an area

7. Reds' Oil Offensive, How to Check it, World Oil, Vol. 153 No. 4 Sep. 1961. See also 107 Cong. Rec. 19187 (Sep. 20, 1961) and 107 Cong. Rec. 15734 (Aug. 23, 1961).

that is going to demand the maximum ingenuity on the part of the free world if the Russian onslaught is to be contained.

A case in point is Brazil. This country has vast undeveloped deposits of oil shale. It has a paucity of petroleum production. Presently Brazil must import about 170,000 barrels of petroleum per day which causes a severe drain on her foreign exchange. One answer, of course, lies in the development of Brazil's domestic shale. The Soviets know this answer as well as we. The challenge to the United States, then, is to assist countries like Brazil in the development of their own resources. Failing this, resource development and energy capacity in such countries is likely to become entirely enmeshed in the economic net of the USSR. With the establishment of of this umbilical connection of strength, the political pulse of such countries would be especially vulnerable to the International brand of socialism.

Juridically, concerned governmental and military agencies, such as the Department of the Interior and the Department of the Navy are ill-equipped to conduct a struggle, on Soviet terms, for strong economic ties in the world petroleum front. This is because our petroleum and oil shale are largely privately owned and are not subject to governmental fiat with respect to price of sale and place of sale. On the other hand the Soviets can make a political decision to sell oil to Italy, for instance, at 20 to 30 cents per barrel lower than the otherwise delivered competitive price. A democracy does not enjoy such flexibility. The writer does not advocate otherwise. However, vistas of challenge are present. One of these might be met, for example, by offering technological consultation to the national shale industry of Brazil.

Another possibility is the sale of government

owned oil at reduced rates. The remedial, test, and necessary offset production from the lands in the Naval Petroleum Reserves nets approximately 13,000 barrels of crude oil per day. This is government oil which is sold at domestic competitive market prices, the proceeds going into the general fund of the treasury. Why, it is asked rhetorically, couldn't this oil be sold at a reduced price to some free country? This would help independent states to resist Soviet penetration and, moreover, would affirmatively assist the purchasing country by strengthening its refining industry. Such a program could not be undertaken lightly as it would cost the taxpayers money (the difference between the present price received for the oil and the "political" price that would be received) and it would, in a sense, place the federal government in the position of competing with private oil companies for foreign markets.

Still another possibility lies in the field of oil import regulation. Importers are clamoring for increased import quotas, for imported oil, being cheaper, allows a greater margin of profit. Perhaps importers could be allowed to earn a "bonus" which would increase their import quota. This "bonus" could be earned by the competitive sale of certain quantities of foreign produced oil to those countries in which the Soviet oil offensive is strongest, at a lesser profit, of course, than could be otherwise obtained.

These latter two possibilities involve political decisions which are to be carried out, rather than made, by the military establishment. They do, however, represent the prospective movement of philosophy-which is but a logical extension of the policy of the Naval Petroleum and Oil Shale Reserves, i.e., that resources are to be preserved for ultimate use in the defense of the free world.

Section 514 (1) of the Soldiers and Sailors Civil Relief Act of 1940 (50 USC App. 574) has been amended by Public Law 87-771 to provide that where an owner of personal property is absent from his residence or domicile solely by reason of compliance with military or naval orders, the exemption under section 514, with respect to personal property, or the use thereof, applies within any tax jurisdiction other than the place of resi

dence or domicile of the owner, regardless of where the owner may be serving in compliance with such orders. For example, if an owner of personal property is absent from his home State or place of domicile as a result of compliance with military orders and leaves his personal property in some State other than his State of domicile, such property is not subject to taxation by the non-domiciliary State even though the owner may be serving overseas or outside the State where his property is located.

In the opinion of the Judge Advocate General the cited amendment does not alter the exemptions under

section 514 of the Relief Act, but merely clarifies the previously existing law or intent of Congress. It will be noted that section 514 of the Relief Act, as amended, provides no exemption from the taxes imposed by the place of residence or domicile of a member of the Armed Forces. Whether service personnel are subject to State income and personal property type taxes will depend upon the laws of their "home" or domiciliary State or jurisdiction.

1962 WEST COAST NAVAL RESERVE LAW SEMINAR

Thirty-eight Naval Reserve Officer-Lawyers, representing nine states, attended the West Coast Naval Reserve Law Seminar at Treasure Island, San Francisco, from July 21 through August 3, 1962. In addition, some twenty-three active duty officers and forty civilian guests were in attendance.

The seminar, sponsored by the Judge Advocate General, was prepared and supervised by the District Legal Officer, Twelfth Naval District. One week's work in military jurisprudence was presented by the School of Naval Justice. The second week was devoted to posttrial matters. During the second week of the seminar, lectures were presented by outstanding authorities in the fields of criminology, law enforcement and rehabilitation.

RESERVE OFFICERS PERFORMING ACTIVE DUTY TRAINING IN JAG DURING SEPTEMBER AND OCTOBER 1962

CDR Robert J. Clendenin, USNR, Commanding Officer, Reserve Law Company 9-18, Peoria, Illinois-Assigned to International Law Division. CDR Frederick A. Miller, USNR, Milwaukee, Wisconsin-Assigned to Appellate Government. CDR August G. Schneider, USNR, Reserve Law Company 4-1, Hatboro, Pennsylvania-Assigned to Legal Assistance Division.

CDR Arthur Carlisle Young, USNR, Reserve Law Company 6-6, Decatur, Georgia-Assigned to Legal Assistance Division.

LCDR Jerome A. Deming, USNR, Reserve Law Company 9-1, Chicago, Illinois-Assigned to Reserve Retirement Section, Bureau of Naval Personnel. LT Charles J. Weigel, II, USNR, Houston, Texas-Assigned to Investigations Division.

MILITARY PERSONNEL DIVISION

CDR Bobby D. Bryant, USN, from NAS Pensacola to
Third Marine Division, Okinawa.
CDR James F. Chapman, USNR, from Third Marine
Division (Reine) FMF to NAVSUPPACTY, Naples.
LT John B. Evans, USN, from NavSta, Norfolk to
Com Nine.

LT John T. Glades, USNR, from RecSta, Treasure Island to USS KITTY HAWK (CVA-63).

LT John W. Howay, USN, from NAS, Key West to USS HANCOCK (CVA-19).

LT John M. Meighan, USN, from NavRecSta, Washing-
ton, D.C. to USS SARATOGA (CVA-60).
CAPT Louis L. Milano, USN, from NAVSUPPACTY,
Naples to COMNVACTY, Italy.

LT William R. Palmer, USNR, from NAS, Miramar to
USS BON H RICHARD (CVA-31).

LCDR Donald E. Selby, USN, from USNAVPGSCOL, Monterey to USNH, Bethesda.

LT Frederick M. Switzer, USNR, from COMFAIR-
WING THREE to USS ORISKANY (CVA-34).
CDR Andrew J. Valentine, USN, from AFSC to NAS,
Pensacola,

LTJG Robert B. Whitlock, USNR, from RecSta, Treas-
ure Island to USS RANGER (CVA-61).
LTJG Lyman C. Harrell, USNR, from SNJ to NAS,
Memphis.

LT Richard L. Bonello, USNR, from NSY, Portsmouth to NAVSUPPACTY, Naples.

LTJG Donald W. Brodie, USNR, from SNJ to JAGO. JTJG Richard C. Browne, USNR, from SNJ to JAGO. LTJG John C. Carton, USNR, from SNJ to NAVADMINCOM, NTC, Great Lakes.

LTJG Matthew J. Gormley, III, USNR, from SNJ to Portsmouth Naval Shipyard, Portsmouth.

LT William A. Crane, USNR, from NAVSTA, Keflavik, Iceland to SNJ.

LTJG James W. Dee, USNR, from SNJ to NAVSTA, Keflavik, Iceland.

LTJG John F. Haggerty, USNR, from SNJ to HELTRARON EIGHT, Ellyson Field.

LTJG Lynn C. Higby, USNR, from SNJ to NAS, Pensacola.

LT Thomas J. Hilligan, USNR, from NAVSTA, Rota, Spain to JAGO, West Coast.

LTJG William E. Hornung, USNR, from SNJ to NAVSTA, Rota, Spain.

LTJG Milton W. Kirkpatrick, USN, from CNAVANTRA, Corpus Christi to USS FRANKLIN D. ROOSEVELT (CVA-42).

CDR James P. Kenny, USN, from COMNAVPHIL to NAVY-MARINE Corps Judiciary Activity Branch Office, San Bruno, Calif.

LTJG Rabe F. Marsh, III, from SNJ to NAS, Pensacola. LTJG Peter J. Mansmann, USNR, from NSJ to CNABATRA, Pensacola.

LTJG Bernard Medoff, USNR, from SNJ to NAS,
Corpus Christi.

LT John M. Meighan, USN, from NAVSECSTA, Wash-
ington, D.C. to USS SARATOGA (CVA-60).
LTJG John T. Montag, USNR, from SNJ to JAGO.
LTJG Eric A. Nobles, USNR, from NAS, Memphis to
Marine Corps Base, Camp Pendleton.

LT Robert W. Pleasant, USNR, from NAVSUPPACTY,
Naples, to SNJ.

LTJG Wyley D. Roberts, USNR, from SNJ to NAVSTA, Norfolk.

LTJG Mark Sabin, from SNJ to CNAVANTRA, Corpus Christi.

LTJG Warren A. Schneider, Jr., USNR, from SNJ to NAVSECSTA, Washington, D.C.

LTJG David C. Todd, USNR, from SNJ to JAGO. LTJG Daniel J. Ziemniak, USNR, from SNJ to NAS, Lakehurst.

U.S. GOVERNMENT PRINTING OFFICE:1962