ARE Army officers considered "superior officers"

within the meaning of the various charges incorporating this phrase? In the opinion of the Judge Advocate General the answer to this question is still "No." The disciplinary problems arising out of situations wherein naval personnel are performing regular duties under commissioned and noncommissioned Army officers are still governed by the opinions rendered in Court Martial Orders No. 8, 1945, page 349 and No. 11, 1945, page 435. In those Court Martial Orders the charges involved were "Disrespectful in language to his superior officer" and "Disobeying the lawful order of this superior officer." In each case it was further held that although an Army officer is not a "superior officer" within the meaning of the specific charges preferred, the specifications did support the general charge of "Conduct to the prejudice of good order and discipline."

In line with the foregoing it was further considered by the Judge Advocate General that suggested remedial legislation is unnecessary. Clarification as to authority among the various services working together in specific local situations can be suitably taken care of in directives issued by the cognizant authorities. For the present, adherence to the aforementioned Court Martial Orders should cause no embarrassment in the enforcement of discipline.

In general court martial for the theft of United States property, an accused entered a plea of guilty to a specification, except for the theft of one item listed therein, and guilty to the charge.

It was pointed out that Naval Courts and Boards recognizes the following pleas: (1) pleas to the jurisdiction; (2) pleas in bar of trial; and (3 pleas to the general issue. Where the accused enters a plea not specifically provided for, the court should reject the plea and enter a plea of not guilty.

Since the judge advocate offered evidence to prove all the material allegations in the specification, the court admitted the evidence over the

20

An officer was convicted by a general court martial of countenancing a fraud in violation of Art. 14, A. G. N., under a specification which alleged that while he was officer-in-charge of a naval activity, he defrauded the U. S. Government by failing, for the purpose of aiding A, to give complete and accurate information concerning the activities of A, and that A, while employed at the naval activity as a purchasing agent, engaged in business transactions with a firm of which he was a member and directly interested in the profits. The officer objected to the specification on the ground that there was no allegation of countenanced fraud.

(3)

Three major points were brought out in arriving at a decision: (1) The definition of "to countenance" means to encourage by a favoring aspect and means more than to witness. (2) A defendant cannot be charged as a principal for aiding and abetting in the commission of a crime if the act of the principal does not constitute a crime. Each of the following elements must be proved to establish a fraud: (a) that the accused made a material representation; (b) that it was false; (c) that when he made it he knew it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (d) that he made it with the intention that it should be acted upon by the person to whom made; (e) that this person acted in reliance upon it; and (f) that he thereby suffered injury.

Since the specification failed to specify the elements of the fraud said to have been committed by A, the Judge Advocate General held that the specification was defective and the objection of the accused should have been sustained.

U. S. GOVERNMENT PRINTING OFFICE: O-1949

Published monthly by the Judge Advocate General of the Navy in the interest of true justice. The mission of the JAG JOURNAL is to promote legal forehandedness among naval personnel charged with the administration of naval law. The goal to be attained through this unofficial medium of instruction and review for those untrained or trained in law is the clear understanding of the basic laws governing Navy life and of the rights and obligations of naval personnel.

The editorial policy has been established as one of informality. For this reason its pages are not citable as legal authority in any judicial proceedings. Court Martial Orders and Opinions of the Judge Advocate General will continue to be the authoritative sources of citable decisions and legal precedent.

Views on controversial topics expressed herein by individual authors must be construed as being their own personal views, not necessarily bearing the endorsement or approval of the Navy Department or of the Judge Advocate General.

RADM. G. L. RUSSELL, USN Judge Advocate General of the Navy

CAPT. E. E. WOODS, USN Assistant Judge Advocate General of the Navy

COMDR. T. F. RYAN, USNR Editor

LT. W. A. SAVAGE, USN Associate Editor

For sale by the Superintendent of Documents,

U. S. Government Printing Office, Washington 25, D. C. Price 10 cents, $1.00 per year, $1.35 Foreign

BOOKS AND ARTICLES

American Law of Ocean Bills of Lading, by Arnold Knauth, 3d. ed.; American Maritime Cases. 1947; $7.50.

Law of Aviation, by R. W. Fixel, 3d ed.; John Byrne & Co.; 1948; $10.

Recent Developments in the Federal Law of Searches and Seizures, by Osmond K. Fraenkel. 33 Iowa Law Review 472-500, March 1948. Test for Sufficiency on Motion for Directed Verdict in Criminal Cases; 1948 Wisconsin Law Review 93-95, January 1948.

Admissibility of Statements Made in the Presence of Defendant; 38 Journal of Criminal Law and Criminology 514-517, January-February 1948. Judicial Recognition of Nazi Acts of State; 15 University of Chicago Law Review 415-423, Winter, 1948.

The Legal Specialist, by Lt. Comdr. Howard A. Patrick, USN; 74 Naval Institute Proceedings 205-209; February 1948.

Collateral Attack on Courts Martial in the Federal Courts; 57 Yale Law Journal 483-489; January 1948.

The Navy Court Martial; Proposals for its Reform, by Robert S. Pasley, Jr., and Felix E. Larkin; 33 Cornell Law Quarterly 195-234; November 1947.

Some Observations on Military Occupation, by Charles Fairman; 32 Minn. Law Review 319348: March 1948.

The Federal Tort Claims Act, by F. C. Hudson: 22 Tulane Law Review 299-307, December 1947.

SECURITY

The Secretary of the Navy on 24 May approved the Navy's new Security Manual, prepared by the Chief of Naval Operations. The promulgating letter provides that the Manual will become effective on 1 August 1948. Distribution to the service has been commenced, and all commands should receive it soon.

Particular attention is invited to the Manual's provisions regarding the steps required to insure the proper protection of classified matter in Navy legal proceedings. You will find them to be definite, clearly stated and unambiguous.

The purpose of this communication is to furnish to all concerned concrete information covering a certain amount of the background of the new law organization in the Navy, its organizational structure and development, and the policies which have been adopted to make it work, to the end that Navy lawyers (and those with whom they work) may have a better understanding of what is expected of them.

I think it is a fair statement that the Navy became lawyer conscious during World War II, certainly more so than ever before. The need for lawyers manifested itself everywhere, and a great many of the lawyers in uniform were assigned to that duty, full time. Others were engaged in law work only intermittently, but when the time came to demobilize, the Navy determined that to function satisfactorily it must make provision for a permanent organization to supply legal services, not only in the Navy Department, but throughout the Naval Establishment. Once this was recognized, the questions of what form the organization should take, who should be in it, and how large it should be, were immediately posed.

When the exact nature of the organization came up for decision, there were those, both in and out of the Navy, who advocated a law corps, as such, and the point was forcefully and persuasively argued. Without attempting to enumerate all the pros and cons, of which there were many, it can be said that the opponents of that type of organization prevailed because of their reasoning that the organization would be a success in direct ratio to its proved usefulness, and that its usefulness would in this case be lessened by the limitations on its functions inherent in a "corps.". In other words, to be of maximum value the lawyers, however organized, would have to demonstrate their general usefulness and thereby gain the confidence of the naval establishment. To be a little more specific, it was thought that the formation of a "corps" would inevitably result in a certain compartmentation in functions which would not serve the best interests of the Navy as a whole. Moreover, it was believed that by performing the duties of a restricted line officer along with law duties, the

individuals would know more about the Navy, and thus be better fitted to handle the legal problems that might come their way. Hence the law specialist, and, we hope, a minimum of "compartmentation."

In June of 1946 the procurement of 300 law specialists was authorized. Logically, the place to look for those specialists was in the Naval Reserve, in which there were upwards of 12,000 officers (many of whom were still on active duty) whose viewpoint was that of the practicing attorneys in civilian life. Needless to say, these lawyers represented a cross-section of the American Bar, and steps were taken to notify them of the proposed organization. I use the word "proposed" advisedly, because at that time there was no statutory authority for law specialists. I believe most of you are familiar with the procedures to bring these officers into the Regular Navy and have them designated law specialists, but it should be noted that two pieces of legislation were necessary to accomplish this. The first was authority for Reserve officers to transfer to the Regular Navy, and the second, which is to be found in the Personnel Act of 1947, was the authority to designate them law specialists (along with several other kinds of specialists).

By the time there was authority for all the above, the numerical needs of the Navy for lawyers had decreased somewhat, by virtue of a reduction in the total strength of the Navy. Besides, the Personnel Act of 1947 placed a limit on the total number of specialists of all types of 22 percent of the total number of officers holding permanent appointments on the active list of the line of the Regular Navy. It therefore became necessary to determine administratively how many specialists would be allowed in each category, namely, communications, law, naval intelligence, photography, public information, psychology, and hydrography. For the lawyers, the figure of 241 was established, at a time when the total number of law specialists designated as such was about 225. As of today there are 237 law specialists.

While the figure is subject to change, the billet count shows that we need about 300 lawyers in the

Navy. Of that number, 241 are or will be filled by the specialists; between 30 and 40 are filled by Reserve officers retained on active duty; the remainder, insofar as possible, will be occupied by unrestricted line officers qualified to perform those duties. I repeat, no list of billets can be expected to remain unchanged for any great length of time, because of the varying work loads in different localities, but as a matter of general information, appended hereto is a list of billets authorized at the present time, and it should give a reasonably good idea of where Navy lawyers are on duty and how they are employed. It should be added that

the Judge Advocate General is currently conducting a survey of all billets with the view of arriving at the best possible balance.

An examination of the list will show that the shore billets outnumber the sea billets about five to one (for purposes of rotation of duty, billets outside the continental United States are considered the same as sea billets). It follows, as a general but not as an unbreakable rule, that law specialists can expect 4 or 5 years' shore duty to every 12 or 2 years of sea duty. It does not follow that the individual will stay in the same place ashore for 4 or 5 years, for the simple reason that it may be neces

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Samoa

Com10

Com14

Com15

Com17

Military Government

ComMarianas

General Training

NTC, San Diego

Great Lakes

School of Naval Justice

Military Law, Newport

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Argentia

Bermuda

sary to shift officers to meet work loads, to achieve proper relative seniority, and numerous other rea

sons.

Sooner or later-again as a general but not as an unbreakable rule-every law specialist can look forward to a tour of duty in the Office of the Judge Advocate General, on the theory that he will be able to do his job better in the field if he is familiar with the procedure in the office.

The type of legal duty performed will, of course, vary with the needs of the service. In so far as practicable every law specialist, it is believed, should be qualied for court-martial work, as a sort of fundamental requirement, but there are many other fields, such as claims, international law, legislation, administrative law, taxation, and admiralty, which, subject again to the needs of the service,

are open to the individual. Obviously, however, the best interests of the service would not be served by keeping an officer on the same type of duty all his career, because as he gains seniority he will be ordered to billets where his knowledge of law must be general rather than specialized.

A word at this point with respect to the status of unrestricted line officers may be in order. As previously stated, there are not enough law specialists, or Reserve officers retained on active duty, to meet our needs for lawyers, consequently there are a number of billets which must be filled by unrestricted line officers. It should be remembered, however, that while these unrestricted line officers are in a sense specialists in the field of law, the purpose of their being educated in the law is to