Chairman RUSSELL. That is along the lines I had in mind; and I also had in the back of my mind an amendment which I wanted to suggest. I did not mean to interrupt Captain Hogan in any observation he cared to make on your statement.

Captain HOGAN. My only observation would be that with this proposed amendment, all examinations would then be conducted the way the majority of them are today. For example, all examinations, under the temporary promotion law, Public Law 188 of the 77th Congress, are effected in the manner that is here proposed.

All examinations now done under the Reserve Officer Personnel Act are done in this way. Examinations for promotion of warrant officers are done in this manner. Examinations done all during World War II and, more recently, during the Korean episode, have been done in this manner.

And we feel that the results have in general been satisfactory.

Chairman RUSSELL. Well, have you any idea or estimate as to the percentage of officers who have not been examined by American service personnel?

Captain HOGAN. It would be strictly a guess, but it is the rare instance. They all come to my desk, and it may be once a month or once every 2 months that I have one case.

Chairman RUSSELL. Who does it, principally, when it is not done by our people?

Captain HOGAN. Mostly by officers of other services or of foreign allies.

Chairman RUSSELL. I am not so much concerned about the officers of other services as I am about applying the medical standards of some other country, perhaps, to American servicemen. They may have the best doctors on earth, but I think that you could better understand a report of an examination by an American doctor than if the most eminent Turkish surgeon available made it.

You have got certain handicaps there in dealing with situations of that kind.

Captain HOGAN. I believe the retention of the review in the Bureau of Medicine and Surgery will obviate any chance that standards of some foreign country will be applied to the promotion of our officers.

In addition, I believe that retention of the central review in the Bureau under this proposed bill will give a uniformity in the examinations and in the standards which is not now attained, inasmuch as today the determination of the field examiners is final, and not subject. to review.

And, as you have pointed out, the opinions of medical officers differ, and the possibility always exists that some particular views, prejudices or difference in experience, makes the promotion a function of geography of the examiner under today's statute; whereas it would be much more uniform with the amendment, with a centralized review and a reviewing board.

Chairman RUSSELL. Senator Symington?

Senator SYMINGTON. No questions.

Chairman RUSSELL. Senator Ervin?

Senator ERVIN. No questions.

Chairman RUSSELL. Thank you, Captain Hogan.

(Subsequently, in executive session, the committee unanimously voted to report the bill favorably, without amendment, as covered by S. Rept. 2550.)

H. R. 10683

Chairman RUSSELL. The next bill we have scheduled is H. R. 10863, a bill which is recommended by the Department of Justice. (H. R. 10683 is as follows:)

[H. R. 10683, 84th Cong., 2d sess.]

AN ACT To amend the Dependents Assistance Act of 1950, as amended, so as to provide punishment for fraudulent acceptance of benefits thereunder

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Dependents Assistance Act of 1950, as amended (64 Stat. 794; 67 Stat. 6; Public Law 118, Eighty-fourth Congress, approved June 30, 1955), is amended by inserting the following section after section 13:

"SEC. 13a. Whoever shall obtain or receive any money, check, allowance, or allotment under this Act, without being entitled thereto and with intent to defraud shall be punished by a fine of not more than $2,000 or by imprisonment for not more than one year, or both."

Passed the House of Representatives July 2, 1956.
Attest:

RALPH R. ROBERTS, Clerk.

Chairman RUSSELL. This bill seeks to add penal provisions for fraudulent acceptance of benefits under the Dependents Assistance Act of 1950.

The Chair would point out here that our colleague, Senator Welker, a member of this committee, introduced a companion bill, S. 3754. This committee approved, and the Senate passed, a similar bill in the 83d Congress, but that bill was never enacted into law.

In the absence of the provisions that this bill would insert, the Department of Justice is required to prosecute cases involving fraudulent acceptance of dependent benefits under various sections of the Criminal Code. This requires indictment, and sometimes involves difficult questions of venue and proof.

The departmental witness on this bill is Mr. James P. O'Brien, Assistant Chief of the Fraud Section in the Criminal Division of the Department of Justice.

Have a seat, Mr. O'Brien.

STATEMENT OF JAMES P. O'BRIEN, ASSISTANT CHIEF, FRAUD SECTION, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE

Mr. O'BRIEN. I have no prepared statement, Mr. Chairman. I would like to briefly and quickly point out what the Department of Justice feels will be accomplished by this proposed legislation.

In our judgment, the punishments under the present fraud statutes under which we proceed to prosecute these dependents assistance cases are too severe. The statutes under which we now proceed are found in the provisions of title 18 of the Criminal Code. All of them are felony statutes, carrying penalties up to 5 years and up to $10,000, or both.

The present legislation, in our judgment, the punishment provided under it, will more closely fit the crime.

Under the present legislation, the proceedings which can be had by way of criminal information, this will be a time-saving media, in that we do not have to present, under this legislation, cases to grand juries, requiring the time of prosecutors, the time of witnesses, and so on.

Chairman RUSSELL. Do you think the present penalties, which you think are so severe, militate against convictions on prosecutions under existing law?

Mr. O'BRIEN. That has been our experience, Mr. Chairman.

Chairman RUSSELL. Personally, I think a person who defrauds the Government under the Dependents Assistance Act should have just as severe punishment as they would if they defraud the Government under any other act.

There may be some reason for passing it if you are having trouble getting convictions. It would be my desire that any action this committee would take would be calculated to insure that cases of fraud under this act may not go unpunished by the Department of Justice. They probably should be run down and prosecuted. I do not know any reason why a person defrauding the Government under the guise of being a dependent when they are not, should have any lesser penalty than if they defraud the Government under any other act.

Mr. O'BRIEN. I might add in that connection, Mr. Senator, that under the present Dependents Assistance Act, there are no criminal penalties at all.

Chairman RUSSELL. I understand. You have to prosecute them under the general provisions of law which apply to frauds against the Government.

Mr. O'BRIEN. That is correct. And there is precedent for this legislation, in that in the predecessor law, known as the Dependents Assistance Act of 1942, Dependents Allowance Act, I am sorry, a provision similar to the one that is incorporated in the proposed legislation was enacted, and that also carried the same penalties that the present proposed legislation does.

I might also add, Mr. Chairman, that in our prosecutions under the general felony statutes, we have been faced with very serious difficulties in connection with proof of venue.

Chairman RUSSELL. How is this law going to improve that situation?

Mr. O'BRIEN. Because our venue will be

Chairman RUSSELL. Does this establish a new venue that you do not now have?

Mr. O'BRIEN. Venue will be established, under the present proposed legislation, at the place of the receipt of the allowance; whereas under the theory of the prosecutions that are now being utilized, our difficulties arise in connection with proof of venue, in that the dependents in these cases never file any statement with the United States Government or any department of the Government. The statement is filed by the serviceman. The allotment is made by the serviceman, the application for it, by the serviceman.

Chairman RUSSELL. I know that during the war there was rather a widespread abuse of the Dependents Assistance Act that we had at that time; and you think this will enable you to tighten up on the prosecution of these cases and prevent these fraudulent claims?

Mr. O'BRIEN. That is the very purpose, in our judgment, Mr. Senator, for urging passage of this legislation.

Chairman RUSSELL. You do not think that you could achieve the same purpose by fixing the venue, but providing for a little stiffer penalty?

Mr. O'BRIEN. Based on our studies, and based on the reluctance, both of the United States attorneys who are required to prosecute these cases, as well as the Federal courts, there has been reluctance to punish under the more severe penalties of the statutes.

Chairman RUSSELL. Senator Saltonstall?

Senator SALTONSTALL. Mr. Chairman, I would like to ask one question.

Referring to the report of the House committee, at the very last, at the end, it refers to a letter of the Attorney General, Mr. Brownell, and I quote:

The attached draft bill is the same as the first of the two new sections proposed by the bill (S. 1754, 83d Cong.) which passed the Senate on April 19, 1954, and was subsequently referred to the House Committee on Armed Services.

What was the second of those sections, and why did you not include it?

Mr. O'BRIEN. The second section in the previous bill punished, proscribed the unlawful receipt of allowances after entitlement to the allowance had ceased.

In other words, there had been at the beginning an entitlement to an allowance, and then for some reason the entitlement ceased.

Now, we reexamined that provision of the previous bill, and it was the judgment of the attorneys in the Justice Department that it was redundant, and that the present section which is before us now will cover that situation, as well.

Chairman RUSSELL. You do not propose, then, to eliminate those that receive it fraudulently after the entitlement has ceased?

Mr. O'BRIEN. No, sir.

Chairman RUSSELL. You will prosecute them under this bill if this legislation is enacted.

Senator SALTONSTALL. No further questions.

Chairman RUSSELL. Senator Symington?

Senator SYMINGTON. No questions.

Chairman RUSSELL. Senator Smith?

Senator SMITH. No questions.

Chairman RUSSELL. Senator Ervin?

Senator ERVIN. No questions.

I will refrain from telling the story about the two Macon darkies who married the same woman and agreed that they were husbands-inlaw. [Laughter.]

Chairman RUSSELL. Thank you, Mr. O'Brien.

(Subsequently, in executive session, the committee unanimously voted to report the bill favorably, without amendment, as covered by S. Rept. 2545.)

S. 4003

Chairman RUSSELL. The next bill is S. 4003. This bill was introduced by Senator Clements, of Kentucky, and it proposes to authorize a posthumous Fedeal recognition of a promtion to colonel of the late Lt. Col. Lee J. Merkel.

(S. 4003 is as follows:)

[S. 4003, 84th Cong., 2d sess.]

A BILL To extend Federal recognition posthumously to Lieutenant Colonel Lee J. Merkel, Air National Guard of the United States, as a colonel, Air National Guard of the United States, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the President is authorized and requested to extend Federal recognition posthumously as a colonel, Air National Guard of the United States, to Lee J. Merkel (lieutenant colonel, Air National Guard of the United States) as of January 31, 1956, the date of his death.

SEC. 2. The Secretary of the Air Force is authorized and directed to amend the records of the Department of the Air Force so as to carry the said Lee J. Merkel as a colonel, Air National Guard of the United States, as of January 31, 1956.

Chairman RUSSELL. The Department of the Air Force has submitted a favorable report on this bill, but has recommended minor technical amendments.

The Department of the Air Force witness is Maj. Laurence S. Dyer. Major DYER. Dyer, D-y-e-r.

Chairman RUSSELL. Yes, sir.

STATEMENT OF MAJ. LAURENCE S. DYER, DEPARTMENT OF THE AIR FORCE

Major DYER. Mr. Chairman, I do not have a prepared statement. However, I am willing to answer any questions that I can in connection with this.

Chairman RUSSELL. The Department approves of the bill, if the amendments that you have suggested are adopted?

Major DYER. We concur in the technical amendments by the Air Force; yes, sir.

Chairman RUSSELL. The Chair offers for the record a statement submitted by Senator Clements, relating to the services of Lieutenant Colonel Merkel and the circumstances under which he was killed.

The distinguished senior minority member of the committee recommends that I read this. [Reading:]

Lt. Col. Lee J. Merkel, killed on January 31, 1956, was a veteran Kentucky pilot. Born in 1918, Merkel was graduated from Du Pont Manual High School and the University of Louisville. He enlisted in the Air Force in 1941 at age 23. A year later he won his wings as a military pilot. During World War II he served as squadron flight leader in six campaigns in north Africa, Sicily, Italy, and France. Merkel flew a total of 143 missions and on one occasion was shot down in Italy behind enemy lines. For his combat performance he received the Distinguished Flying Cross, the Air Medal with 5 Oak Leaf Clusters, and 2 distinguished unit citations.

In 1948 Merkel became base commander for the 123d Fighter-Interceptor Group, an Air National Guard unit located at Standiford Field. This unit was called to active duty in October 1950 and served in England as a fighter-bomber wing. It was returned to its Kentucky base in 1952.

Lieutenant Colonel Merkel was widely recognized as one of the best pilots in the Air National Guard. As base detachment commander, a full-time job, he worked hard to persuade the State legislature to grant funds for lengthening runways to accommodate jet aircraft at Standiford.

I will observe that is the first time that any State legislature had ever lengthened any runways. [Reading:]

Prior to accepting full-time duties as base commander in 1948, Merkel was training officer in the Vocational Rehabilitation Service in the Veterans' Admin