cient to support a finding of guilty thereof or of any lesser included offense, but that there is substantial evidence tending to prove that the accused is guilty of some other offense not alleged in any specification before the court. It appears that the trial counsel, in the course of the trial, made application to the law officer for permission to refer the problem of the nature of the guilt of the accused to the convening authority for his views and instructions. Before granting trial counsel's motion, the law officer expressed an opinion which would indicate that the evidence then before the court would not support the specification then before the court but rather would support another offense. The convening authority directed the court to proceed with the trial-which would indicate that the convening authority was of the opinion that the charge was properly drawn. Upon reconvening the law officer pointed this out to the court and also referred to the fact that in the course of examining the prosecution witness testimony was elicited indicating that the witness had been tried and convicted of an offense arising out of the same transaction then under trial. For these reasons, rather than ask the court to put these considerations out of their minds in determining the guilt or innocence of the accused, he declared a mistrial. A second trial was held before a new court and a new law officer.

Upon the second trial, defense counsel moved to dismiss the charge on the ground of double jeopardy in that the law officer improperly terminated the first trial by declaring a mistrial; that it was an abuse of discretion to so end the first trial. The Court of Military Appeals held that the law officer did not abuse his discretion in declaring a mistrial and made the following comment on the provisions of paragraph 55 of the Manual:

...

However, suspension of the proceedings under paragraph 55 of the Manual is too important a matter to be passed over without comment. In United States v. Turkali, 6 USCMA 340, 20 C.M.R. 56, the concurring opinion alluded to some of the dangers inherent in the procedure. It was pointed out that the procedure is "one-sided" and, therefore, unfair, in that it gives the Government a preliminary "advisory opinion" on the court's attitude toward the evidence. This case confirms the present-day inappropriateness of the procedure, and gives substance to the idea that it tends to make the law officer a "mere figurehead" in the trial.

Appellate defense counsel contend that since the procedure of suspension is sanctioned by the Manual and by the decision of the majority of this Court in the Turkali case, there was no possible justification for

the law officer's conclusion that his authority was undermined by the convening authority's direction to continue the trial. There are, however, "nuances" in the atmosphere of a trial which cannot be fully depicted in the cold pages of the record of trial. United States v. Gori, 282 F2d 43 (CA2d Cir.) (1960). One of the nuances in this case indicates rather clearly that the law officer was convinced the convening authority's direction seriously compromised his position as the judge of the court, and gave rise to substantial doubt whether the court-martial would remain uninfluenced by the apparent "victory" of the convening authority on a point of law. Cf. United States v. Knudson, 4 USCMA 587, 16 CMR 161. The pages of the record confirm his feeling. Also, the law officer was a member of the Field Judiciary Division, and a stranger to the command which convened the court. It is not at all fanciful to imagine that, as the situation developed, he lost not only "face," but also control over the court. We have no difficulty, therefore, in concluding that on this ground, too, the declaration of a mistrial was justifiable. Moreover, we are convinced that the paragraph 55 procedure for suspension of trial in order to obtain the views of the convening authority is both archaic and injudicious. It is contrary to the express language of Article 51, and violates the spirit of the Uniform Code and the purposes for which it was enacted. Accordingly, the contrary view set out in United States v. Turkali, supra, is overruled.

Where the court is in session, the law officer is the proper person to rule on an application for a continuance and his ruling is not subject to review until the trial has been completed; and then only if the ruling was prejudicial to the accused. Thus, in United States v. Knudson 22 the accused applied to the law officer for a continuance which was granted. Thereafter, the convening authority directed that the trial resume, and the law officer acquiesced. The Court of Military Appeals held that, in yielding to the pressure of the convening authority and ordering the trial to proceed, the law officer abdicated his powers to the convening authority creating an illegal interference with the law officer in the exercise of his judicial functions. To quote from the opinion of the Chief Judge: Having no power to review the law officer's grant of a continuance, the convening authority should not inject himself into the proceedings. However honest may be his belief that he possesses the power, he cannot substitute his judgment for that of the law officer. He can refer the charges to trial, and, if he wishes, he can in a proper case dissolve the court or change its personnel. However, none of these rights give him the power to control the law officer in the exercise of his statutory duties.

In emphasizing the judicial nature of the functions of the law officer, the Court of Mili22. U.S. v. Knudson, 4 USCMA 587, 16 CMR 161.

tary Appeals has on various occasions criticized the conduct of a law officer. This type of constructive guidance from the Court can only serve to bring the image of the law officer into proper focus, which image in time, experience, and maturity, will evolve as that of a Federal judge. Without going into more detailed analysis some of the cases not otherwise referred to herein are listed for ready reference.23 However, before concluding this article attention is invited to one of the most recent cases before the Court of Military Appeals. While the treatment of the law officer would appear to be harsh, nevertheless the lesson to be learned from the case is well worth the rather critical appraisal of the situation by the Court. The case to which reference is made is United States v. Cole.24

In the Cole case, the accused was found guilty of rape and burglary with intent to commit rape in violation of the Code, Articles 120 and 129, respectively. He was sentenced to dishonorable discharge, total forfeitures, confinement at hard labor for five years, and reduction in grade. Upon accused's petition the U.S. Court of Military Appeals granted the petition in order to resolve the numerous issues which revolved around the testimony and conduct of the principal prosecution witness and the rulings of the law officer in connection therewith.

Briefly stated, the evidence purports to establish that the accused, for the purpose of "getting some sex," chose the home of the victim at random, forced open a window screen, surreptitiously entered, and finding the victim in bed, forced her to submit to an act of sexual intercourse.

Thereafter, he fled but was soon apprehended. At the trial the victim, on direct examination, depicted the occurrence of the crimes charged in clear and unmistakable terms. Upon its completion, the defense embarked upon a searching cross-examination in which it sought to establish that the witness had embellished her testimony; to determine whether the accused had threatened the victim with a knife; whether the victim had consented to his actions; the victim's marital difficulties, and her previous immoral conduct. The witness was not responsive to the cross-examination but rather abusive toward the accused. She further refused to answer any questions concerning her marriage or any of her boy friends. After a

23. U.S. v. Kennedy, 8 USCMA 251, 24 CMR 61; U.S. v. Ivory, 9 USCMA 516, 26 CMR 296; U.S. v. Jones, 7 USCMA 623, 23 CMR 87; U.S. v. Mortensen, 8 USCMA 233, 24 CMR 43; U.S. v. Ballard, 8 USCMA 561, 25 CMR 65; U.S. v. Shaffer, 2 USCMA 75, 6 CMR 75; U.S. v. Young, 10 USCMA 249, 27 CMR 323; U.S. v. Solak, 10 USCMA 440, 28 CMR 6; U.S. v. Law, 10 USCMA 573, 28 CMR 139.

24. U.S. v. Cole, 12 USCMA 430, 31 CMR 16.

recess, the law officer warned the witness against a recurrence. Thereafter, after making a ruling that the witness did not have to answer any question which would tend either to incriminate or degrade her, which ruling was subsequently modified, the witness simply refused to permit any inquiry into her previous conduct on the basis that such matters were personal. She declined to claim any right against selfincrimination.

The ensuing proceedings consisted of a series of controversies between the witness, the law officer, and counsel over whether she would submit to cross-examination. Despite repeated admonitions and warnings, the prosecutrix refused to cooperate. An out-of-court hearing followed in which the law officer indicated that he had been extremely lenient with the witness and now intended to refer the matter to the convening authority for direction in the premises. After several more attempts to move the witness to change her attitude, defense counsel moved that her testimony be stricken in view of her "constant refusal . . . to answer." The law officer denied the motion and once again stated his intention to refer the matter to the convening authority. A last attempt to complete her cross-examination ended in failure. Defense counsel renewed his motion but the law officer refused to grant it and referred the case to the convening authority for instructions. The convening authority directed the trial to proceed on the ground that the victim had testified on direct examination about the incident and was cross-examined concerning the incident; that she had denied consent; that although the questions about which she was refusing to testify dealt with her character, credibility, and consent, on which issues the defense was entitled to rebut, that for those "reasons the trial was not invalidated and could proceed."

The trial resumed and ultimately the witness reappeared and responded to many of the defense inquiries.

In ruling on the action of the law officer the Court of Military Appeals bypassed the question whether the accused was denied the right of a full and complete cross-examination of the major witness for the prosecution, particularly in view of her ultimate reappearance and response to many defense inquiries, nor did it concern itself with the effect of her unwarranted outbursts in the presence of the members of the court-martial. As to the referral of the matter to the convening authority for instructions the (Continued on page 15)

IN OUR AGRICULTURAL economy of the 19th Century the achievement of individual financial security in advanced age was the task primarily of the family unit. Children, for the most part, accepted the social obligation to care for their parents. Today, however, in our industrial economy children and family are often unable or unmotivated to assume this obligation. Moreover, those in advanced years treasure the independence that accompanies economic selfsufficiency. It has become necessary to the maintenance of economic individuality, therefore, that individuals earn enough during their productive years not only to meet current living costs, but to carry them through the increasingly more numerous years in retirement.

Various solutions, public and private, are being utilized to meet the need for economic security in retirement. Among those solutions forging to the front of this effort are the formal or institutionalized retirement systems. Chief among these in breadth of coverage is the Social Security system of Old Age and Survivors Insurance. Paralleling this system in breadth of coverage are the increasingly important private retirement plans for employees which are maintained by American business and industry and which now include over 20,000,000 employees and $45 billion in assets. Two other solutions to the problem of economic security in retirement find the Government in the role of employer: the Civil Service and Military Retirement systems.

In July, 1961, the JAG JOURNAL carried an outline of the more important features of the Military Retirement System. The present article is designed to perform a similar survey with respect to the Civil Service Retirement System.

The expert will be familiar with much of the information presented. The layman who wishes to delve further will have to resort to other sources for the concrete details. Among the more useful and recent sources are: RETIREMENT FROM THE ARMED FORCES, by a committee of Retired Army, Navy and Air Force Officers, 1st Ed. 1957; RETIREMENT POLICY FOR FEDERAL PERSONNEL (Senate Document No. 89, 83d Cong., 2d Sess.-"The Kaplan Report"); and YOUR RETIREMENT SYSTEM, a pamphlet revised periodically by the U.S. Civil Service Commission. This list is by no means exhaustive of the sources, both general and specialized, which are available on the subject.

I. ORIGIN AND DEVELOPMENT

CIVIL SERVICE

The original Civil Service Retirement Act was enacted on 22 May 1920. It has been changed '90 times since its inception. There have been six major amendments to the retirement act. (Acts of 3 July 1926, 29 May 1930, 4 August 1939, 24 January 1942, 28 February 1948, and 31 July 1956.) The 1930 legislation constituted a complete reenactment of the retirement law, and there has been none since. Hence, the present Civil Service retirement system is founded upon the Civil Service Retirement Act of 1930, as amended. (5 USC 2251-2267.)

II. SOURCE OF FUNDS

CIVIL SERVICE RETIREMENT SYSTEM

The Civil Service Retirement System has always been contributory. Currently, employees contribute 62% of their basic salary to the retirement fund. The original Retirement Act of 1920 provided for a contribution of 22% of basic salary. Employees may make additional deposits to cover past non-contributory service, and they also may make additional voluntary contributions to provide a larger annuity.

Early Congressional hearings concerning retirement indicated differences of opinion as to the proper method of financing the Civil Service Retirement System. Some thought it should be non-contributory, and a few thought that employees should bear the entire cost. The majority felt that the employees and the Government should contribute jointly. The Act was vague concerning the Government's obligation. In 1929 it made the first appropriation for the retirement fund, and appropriations have been made each year until 1956. Approximately $3.00 have been contributed directly by the Government in this manner for each $4.00 contributed from their salaries by the employees.

The Civil Service Retirement Act Amendments of 1956 require for the first time that the employing agency or department contribute an amount equal to the contribution of each employee to the retirement fund. Hence, the Civil Service retirement fund is composed of pre-1956 appropriations, post 1956 agency con

tributions (appropriations also), employee contributions, interest earned on money in the fund, and gifts.

A single appropriation pays the retirement bill for the military services. Of course, in general, all retired pay, whether for military service or Civil Service, derives from taxes and the federal treasury: it is only the route it takes to its final objective that differs.

III. VOLUNTARY RETIREMENT

An employee is eligible for "optional retirement" (voluntary) upon meeting the following minimum combinations of age and service:

1. Age 62 with 5 years of service. 2. Age 60 with 30 years of service.

3. Between ages 55 and 60 with 30 years of service, but on a reduced annuity.

It should be noted that employees whose duties are hazardous and consist primarily of the investigation, apprehension or detention of criminals may voluntary retire, after agency and commission approval, on full annuity at age 50 if they have 20 years of such service. This is the only civil service category in which 20 years establishes eligibility for retirement with full benefits.

Any employee who has served 15 years is automatically separated for age retirement at age 70, unless he is continued by Executive Order or by the Civil Service Commission. If an employee does not have 15 years of service when he reaches age 70, he may remain in Federal employment until he completes the 15 years' service requirement.

25 year discontinued service retirement. Civil Service employees of any age who are separated from the service after 25 years of service through no fault of their own (as by reduction. in force, abolishment of position, or liquidation of an office or agency) receive an annuity reduced by 1% per year for each year the employee is under the age of 60 but not under age 55. If he is under 55 the amount of his annuity is reduced by 2% per year. The annuity begins immediately after his separation.

20 year discontinued service retirement. Employees age 50 or above with 20 years of creditable service who are separated through no fault of their own (as above) receive an annuity reduced by 1% per year for each year the employee is under age 60 and 2% for each

year he is under 55. The annuity begins to be paid immediately after his separation. Deferred retirement.

Civil Service employees under 62 years of age with over 5 years of service who are transferred or separated from the Civil Service even though by resignation or removal for cause (except persuant to the Hiss Act) receive an annuity which begins at age 62.

Employees who are separated from the Civil Service after 5 years of civilian service and who are not eligible for retirement under the 15 years service and age 62 provision or the 30 year service and age 60 provision and who are not separated or transferred to Government service outside the Civil Service Retirement Act, receive an annuity to begin at age 62 in the regular amount.

Employees with less than 5 years of Civil Service receive, upon separation, a lump sum refund of their contributions to the Civil Service Retirement Fund plus interest thereon, upon application therefor.

In most cases of separation the employees, in general, have the option to elect return of contribution or deferred annuities which have been earned, under one of the foregoing provisions. V. RETIREMENT PAY-NON DISABILITY

The amount of an employee's annuity depends primarily upon his length of service and his "high-five" average salary. These two items are used in a formula which produces the employee's basic annuity. The basic annuity obtained by using the formula may then be reduced or increased for various reasons. There is no limit to the length of service which may be credited but retired pay cannot exceed 80% of the "high-five" average. Most military service is creditable as years of service together with civilian service. The "high-five" average salary is the highest salary obtainable by averaging the rate of basic salary in effect during any five consecutive years of service, with each rate weighted by the time it was in effect. Military pay may not be used in figuring the "highfive" average salary.

The general formula for obtaining the basic annuity is as follows.

1. 12% of the "high-five" average salary times 5 years of service, plus

2. 14% of the "high-five" average salary times years of service over 5 and up to 10 years, plus

3. 2% of the "high-five" average salary times years of service over 10.

The result is the basic annuity. Here is an example of how the formula would be applied to

an employee with 30 years service at a "highfive" average salary of $6,000:

1. Take 12% of $6,000 (or $90.00) times five years equals $450;

2. Add 14% of $6,000 (or $105.00) times five years equals $525;

3. Add 2% of $6,000 (or $120.00) times 20 years equals $2,404;

4. Basic annual annuity is $3,375.

Instead of taking the 12%, or 14%, and 2% of the "high-five" average salary used in the general formula, there may be substituted 1% of the "high-five" average salary plus $25 for any or all of these percentages. This substitution is made whenever it will result in a larger annuity. For example, the substitution is made in the first part of the formula in a case when an employee (with 20 years service) has a "high-five" average salary of $4,000 (or $70) times five years equal $350. 2% times $4,000 (or $80) times 10 years equals $800. The basic annuity per year then equals $1,475.

This general formula for computing the basic annuity is used in computing the basic annuities in age, optional (voluntary), 25 years discontinued service and deferred retirement. It is used in disability retirements only if it produces a greater basic annuity than the guaranteed minimum. It is not used in certain cases of law enforcement employees.

The special formula used for law enforcement employees who retire voluntarily at age 50 or over with at least 20 years of law enforcement service is figured by taking 2% of the "highfive" average salary and multiplying the result by the years of service.

There is a limitation on the amount of the basic annuity. The basic annuity under any formula mentioned cannot be more than 80% of the "high five" average salary. Where it is more than 80% a year the basic annuity must be reduced to the 80% figure.

The basic annuity is reduced when:

1. the retiring employee is under 60, except when he retires for disability or when he retires under the special provisions of law enforcement employees; 2. the retiring employee has failed to make a deposit; 3. the retiring employee elects a "reduced annuity with benefit to widow or widower" or a "reduced annuity with benefit to a person having an insurable interest". (See section VIII for the types of annuities).

VI. DISABILITY RETIREMENT

An employee must become totally disabled for useful and efficient service in his position and must have completed 5 years of civilian service

in order to be retired for disabilty.

VII. RETIREMENT PAY-DISABILITY

The law guarantees a minimum annuity to employees who retire on account of disability. If the employee's "earned" annuity-that is the basic annuity as computed by the general formula, is less than the guaranteed minimum, the guaranteed minimum becomes the basic annuity for all purposes except determining the amount of survivor benefits. Only the retiring employee's earned annuity may be used as a base for survivor benefits.

The guaranteed minimum is not a fixed amount but may vary from one employee to another depending on age and "high-five" average salary. The guaranteed minimum in a particular case would be the lesser of the two following amounts: (a) 40% of the employee's "high-five" average salary or (b) the amount obtained under the general formula after increasing the employee's actual service by the time remaining between the date of his separation and the date he attains age 60.

The guaranteed minimum offers no advantage to an employee if when he retires he (a) has to his credit at least 21 years and 11 months service, or (b) is age 60 or over.

VIII. METHOD OF PAYMENT

There are three types of annuities that are available to the Civil Service retiree. They are known as the "life annuity" the "reduced annuity with benefit to widow or widower", and the "reduced annuity with benefit to person having an insurable interest."

The life annuity is the annuity which is ordinarily payable to the retiring employee for his life unless it is terminated for reasons such as reemployment or recovery from disability. Under this type, which any retiring employee may choose, no survivor annuity will be payable unless the annuitant at his death leaves dependent children. An unmarried child under 18 would, upon the death of the retiree, if the retiree's spouse survives, receive the lesser of either:

1. 40% of the employee's "high-five" salary divided by the number of eligible children; 2. $600;

3. $1,800 divided by the number of eligible children. If no spouse survives, each child would receive the lesser of the following:

1. 50% of the "high-five” salary divided by the number of eligible children; 2. $720;