Today, probation in the Navy is an integral part of disciplinary action, yet a review of its progress shows that only in recent years has its advance been rapid. The statutory authority was contained in the first Articles for the Government of the Navy (1862) but, strangely enough, the authority was not used for nearly forty years. Many writers on the subject of probation continually overlook the fact that the Navy early recognized the value of probation when they credit Massachusetts with enacting the first of such legislation (1878). Since convening authorities rarely, if ever, exercised this right, but for the most part were content with direct mitigating actions, the oversight is understandable.

The first semblence of probationary action found in the published Court Martial Orders occurred in 1898, when a convening authority held in abeyance the dishonorable discharge adjudged, until the expiration of the term of confinement. It is interesting to note that the convening authority, in his action, imposed no condition of satisfactory conduct. Undoubtedly this was intended, for later in the same year, a convening authority expressly stipulated that the dishonorable discharge adjudged was to be held in abeyance dependent upon conduct during confinement. Some few years later (1901), it is noted, a sentence involving probationary action provided for the submission of a report on the conduct of the probationer. This continued to be an accepted practice, but apparently there was little uniformity. Some convening authorities required the report to be submitted on specific dates; some required monthly reports and still others made no requirements.

In 1908 a convening authority for the first time (according to the published C.M.O.'s) extended the theory of probation by recommending that a sentence of dismissal be suspended for two years and the convicted offender sent to a sea-going vessel so that he might there demonstrate that the clemency action taken was fully appreciated. The Secretary of the Navy approved this recommendation and directed that the offender's

conduct be carefully observed and reported upon.

At about this time an interesting innovation was taking place at the Naval Prison, Portsmouth, New Hampshire. Each prisoner, upon discharge, was being questioned to see whether or not confinement had been bene ficial. As a result of these interrogations, the commanding officer came to the conclusion that strict routine, with all work and no play, had "induced thoughtfulness and brought true realization of the seriousness of life". This officer, in his annual report to the Secretary of the Navy, observed that if some of these men could be pardoned and restored to duty before or at the expiration of their confinement, they would make excellent men for the service, being much more valuable than unindoctrinated recruits. It was his further opinion that these men would publicize the severe nature of prison discipline and thus restrain others. Here we see the deterrent theory of Penology--instill terror of the law in the minds of the offenders and intimidate potential miscreants.

As a result of this report, four selected prisoners were restored to duty during the year 1912 and the following year the Secretary of the Navy directed that all prisoners be questioned upon entrance in an effort to ascertain the paramount motives behind their offenses. Here was a form of probation based on reasons far removed from presentday legal considerations, but approaching current sociological and psychiatric trends. Out of these lowly beginnings has emerged our present system of probation, with periodic review by special boards of all confinement cases, as a furtherance of the initial consideration given the original sentence by the approving authority.

In its broader sense, probation may be said to be the status of a confined offender during a period when the sentence is sus; pended, conditional upon his good behavior. Strictly speaking, probation is a conditional release from commitment to a penal insti tution, under supervision of a probationary officer. Parole, a term not used in the

Navy, is the conditional release from imprisonment, usually under the supervision of a parole officer. The Navy makes no distinction between probation and parole, the former term being applicable to both.

Naval Courts and Boards (1937), Section 476, refers to probation as a conditional remission of the sentence coupled with restoration to duty. The commanding officer may execute the original sentence during the probationary period if he deems that the probationer's conduct warrants such action. Apparently he may also revoke the probation after the probationary period for unsatisfactory conduct during the period. But pending breach of this condition (satisfactory conduct) the status of the convicted offender is no longer that of a prisoner but rather that of an enlisted man on duty and therefore entitled to pay.

Whether or not probation is to be terminated is left largely to the discretion of the offender's commanding officer. Being a discretionary power it is subject to review only when the action is illegal or there has been an abuse in the exercise of the [discretionary] power. The Chief of Naval Personnel has recently issued a policy directive which indicated that many probationary periods were being terminated for only trivial offenses. By this directive (BuPers Circular Letter 216-46, Navy Department Bulletin 30 Sept. 1946 46-1940), commanding officers are enjoined to give careful attention to reports of offenses committed by personnel serving in a probationary status; and they are further enjoined to vacate probation only where it is established by the record. that such action is appropriate and in the best interests of the Navy. The directive points out that the commission of a single petty offense is not normally valid evidence of "unsatisfactory conduct". An offense which would, in itself, call for only minor punishment should not be made the instrument. for (say) a year's confinement and a bad conduct discharge.

This does not mean that a single aggravated offense or an accumulation of minor offenses would not be sufficient grounds for revoking probation. Court Martial Order 10, 1930, 23, cited in the directive sets forth the three alternatives of a commanding offi

cer where a probationer has committed a new offense. He may (1) assign mast punishment or court-martial, (2) execute the suspended sentence, (3) both. In no case should revocation of probation be used as an arbitrary action to the prejudice of a man's right to trial when guilt has not been established. In Court Martial Order 1, 1940, 64, a commanding officer executed a suspended sentence, and at the same time ordered the offender tried by summary court-martial for a new offense. The Secretary of the Navy set aside the second trial because the specification failed to allege an offense. It was held that since the specification under which the accused was tried failed to allege an offense, this same offense could hardly be used as a basis for revoking the probation.

Irrespective of origin, probation today is a departure from the deterrent theory of punishment. It is also a departure from the strict, classical theory of criminal law and an acceptance of the theory of social utility, exacting treatment of the problem on the basis of the individual offender.

Proudly it can be said that probation in the Navy has, in many respects, important advantages over civilian probation, the more practical of which is the ability of the offender to be restored to a job with pay and to complete his enlistment under honorable conditions. In many ways civilian probation carries with it better supervision but there appears to be no sound reason why this should be so. The Navy has every opportunity, unequalled in civilian life, for daily observation, guidance and firm control of the conduct of probationers. Responsible division officers who have probationers assigned to them would do well to show a special interest in their rehabilitation. Experience has shown that the average individual, both in and out of the Navy, responds readily to consideration and kindness.

Finally it may be said that a bad conduct discharge or a dishonorable discharge is very soon given but never forgotten. It can be, and usually is such a blot on a man's career that he never fully recovers from its effect. Before executing either type of discharge, very careful thought should be given as to whether or not they are essential to the ends of discipline.

Of considerable interest to many retired naval officers is the question of what restrictions have been placed by law upon their activities in the field of civilian Federal employment. Two important legisla tive measures in this respect are the statutes usually referred to as the Dual Employment Act and the Dual Compensation Act, codified, as amended, in 5 U. S. Code, Sections 62 and 59a, respectively. The former prohibits a retired officer in receipt of retired pay from holding any civilian Federal office or position to which compensation is attached, unless specially authorized by law, where either the rate of retired pay or the rate of compensation fixed for the civilian position or office amounts to $2500 per annum. This does not apply to a civilian office or position to which he might be elected, or to an office or position to which he might be appointed by the President with the advice and consent of the Senate. Enlisted men retired for any cause and officers retired for injuries received in battle or for injuries or incapacity incurred in the line of duty are expressly excluded from the operation of this statute. Some exceptions to the provisions of the Dual Employment Act have been provided by statute. For example, this Act does not preclude the employment of retired officers of the Navy to engage in work under the direction of the Chief of Engineers of the United States Army in connection with the improvement of rivers and harbors of the United States. (5 U. S. Code 63) Nor is there any prohibition against appointment of retired officers of the Navy to positions in the Library of Congress or to positions as Director or Assistant Director of the Bureau of the Budget. (5 U. S. Code 64 and 65; 31 U. S. Code 16). Retired officers of the Navy may accept appointments to positions in the diplomatic or consular branches of the Foreign Service of the United States (34 U. S. Code 226), and, as hereinafter pointed out, to positions in the Veterans' Administration.

The Dual Compensation Act limits the combined rate of compensation received in a Federal civilian office or position and retired pay. This Act provides that one who

is receiving retired pay for or on account of services as a commissioned officer, and who also is holding a Federal civilian office or position, appointive or elective, or a position under the municipal government of the District of Columbia or under any corporation the majority of stock of which is owned by the United States, during the incumbency of the civilian office shall not be entitled to a combined annual rate of compensation from his civilian office and retired pay in excess of $3000. The rate of compensation is the controlling factor, irrespective of the number of hours or days of work in the civilian position, and not the total amount of civilian pay and retired pay received during the year. This latter Act also contains a provision to the effect that this section shall not apply to regular or emergency commissioned officers retired for disability incurred in combat with an enemy of the United States or for disabilities arising from an explosion of an instruImentality of war in line of duty.

Many questions of interpretation have arisen under these two statutes, particularly in respect to the Dual Compensation Act. The Comptroller General of the United States and courts of law have decided many of these questions.

The Dual Employment Act is aimed at the holding of a Federal civilian office or position, in violation of the provisions of the Act, and retired pay may not be waived to avoid its application. On the other hand, the Dual Compensation Act is directed against the receipt of civilian compensation and retired pay in excess of a combined annual rate of $3,000, when such retired pay is "for or on account of services as a commissioned officer". There is also a right of election as to whether one will continue to receive his retired pay or the pay of the civilian office or position, or so much thereof as would bring the combined total under $3000.

There must be an election, where the retired pay is in excess of $3000, and the individual is not entitled to both his civilcompensation for the days he works and his retired pay for the non-work days in his ci

vilian position. Should he waive the retired pay, he may again receive it upon relinquishing the civilian office or position. This right of election is not one as to whether he shall continue to hold his retired status, but is as to whether he shall accept the pay of the one or the pay of the other. It might be pointed out that while enlisted men retired for any reason are exempted from the provisions of the Dual Employment Act, retired enlisted men who were recalled to active duty, temporarily appointed to commissioned rank and subsequently returned to inactive status with the rank and pay of a commissioned officer under the Act of July 24, 1941, as amended, are within the provisions of the Dual Compensation Act, since they are in receipt of retired pay "for or on account of services as a commissioned officer". Such persons may not relinquish the increased retired pay provided by the Act of July 24, 1941, as amended, and receive the lesser retired pay for the enlisted rating at which originally retired in order to avoid the application of the Dual Compensation Act. As pointed out above these persons are not subject to the Dual Employment Act.

Under the Dual Compensation Act the question might be asked "What does holding a civilian office or position under the United States Government mean?" An important criterion appears to be whether the retired officer is subject to the direct control and supervision of administrative officials, as opposed to the situation of an independent contractor where the contract may be covered by specification, submitted to competition, or awarded to a firm, corporation or individual. Court reporters, under decisions of the Comptroller General, may come under either category, as independent contractors under the standard of the foregoing sentence, or as officers or employees of the government, where they are engaged on a personal service basis for an indefinite period at so much per day or so much per folio to perform services, the compensation having been fixed under some law, schedule, regulation, Executive Order, or departmental order.

In considering what is meant by "under the United States Government", it has been held that employees of open or closed offi

cers messes ashore of the Navy occupy civilian positions within the meaning of the Dual Compensation Act, the reasoning being that such messes as now constituted are operated as an integral part of the Navy on property owned or controlled by the United States Government, and that each mess is under the administrative control of the commandant or commanding officer of the shore activity where the mess is located; that regardless of any contributions, deposits or service charges paid in by any member of the mess, he has no financial right in the property of the mess, and that the messes are not operated for the financial profit of any person or group of persons. The same holding resulted in the case of an employee of the Naval Academy Laundry, notwithstanding that the fund from which he was paid was derived from prices charged and collected from individuals for services rendered. In 1941 two Federal district courts held that Army post exchanges were Government instrumentalities, one court on the theory that "an exchange is not a purely voluntary organization, but an integral part of an army organization, a subordinate auxiliary agency", the other court citing annual appropriations for post exchange buildings and equipment as evidence of Congressional validation of the administrative action setting up the exchanges. Navy ship's service stores and ship's stores are considered to be in the same category.

The term "compensation" as used in the Dual Compensation Act embraces both "fees" and "salary", as well as remuneration received in any other form for services rendered. However, the Comptroller General has ruled that the engaging of the services of a physician as consultant, by contract, or otherwise, upon a fee basis, for services actually performed, is not an appointment to an "office to which compensation is attached" within the meaning of those words used in the Dual Employment Act. He al so ruled that the employment of such physicians by the Veterans' Administration as consultants upon a fee basis would not be subject to the Dual Compensation Act, reasoning that they would not be occupying "an office or position" within the meaning of the terms as used in that statute, notwithstanding that the term "compensation" was sufficiently broad to include "fees". The Act of August

10, 1946, expressly exempted from the operation of the Dual Employment Act, employment by the Veterans' Administration, but suc' employment is still subject to the restriction imposed by the Dual Compensation Act.

The Comptroller General has ruled that a retired officer is not prohibited by the Dual Employment Act from holding a temporary civilian Federal office under appointment by the President or head of a department, notwithstanding his retired pay is in excess of $2500 per annum, "in view of the temporary character of the civilian employment". No distinction is made between permanent and temporary positions under the Dual Compensation Act, and in this same case it was held that if total pay from both sources exceeds $3000, such person must elect which pay to receive during the period of civilian employment.

An interesting case, particularly to officers with legal background, under another statute, Section 109 of the Criminal Code (18 U.S. C. 198) has just recently been reviewed by the Comptroller General. This section in effect provides, insofar as the scope of this article is concerned, that an officer of the United States who shall act as an agent or attorney for prosecuting, or aiding in the prosecution of, any claim against the United States shall be punished by fine or imprisonment, or both. It had previously been decided that a retired officer of the Army is "an officer of the United States" within the meaning of this statute, but the question arose on the application of "prosecuting any claim against the United States". The meaning of this term apparently has never been judicially decided, but it was argued that it would be limited to "a demand for money", and that, hence, for a retired officer to act as an agent or attorney before Army retiring boards, and the Secretary of War's Discharge Review Board, would not be in violation of this statute, on the premise that neither of these types of boards is authorized to receive demands for money or to recommend that money be paid. It was decided, however, that this argument was incorrect in view of the fact that the findings of a retiring board are not only determinative of an officer's physical status but also the amount of pay he will receive thereafter, and that the Secre

tary of War's Discharge Review Board in reviewing discharges or dismissals of former members of the Military Establishment is dealing with a status from which pecuniary value flows and, hence, that in both instances an officer appearing as attorney or agent before either a retiring board or The Secretary of War's Review Board is "prosecuting a claim against the United States"

The article does not purport to cover all the restrictions placed by law upon a retired naval officer in governing his business relations with the Federal Government or its agencies. There are laws pertaining to other activities such as the sale of supplies to the Navy Department, representing the United States in the transaction of business with a company or firm in which he has a direct pecuniary interest, and employment with certain firms doing business with the Federal Government.

Questions coming within the purview of this article are considered to be of private concern and not matters with which the United States can concern itself until some action has been taken by the retired officer. In view of the heavy volume of work now being handled by the Judge Advocate General's officer, it is suggested that district legal officers and legal assistance officers, if possible, advise retired naval personnel on questions of the nature herein discussed, which they deem to be proper.

TRANSFERS

COVINGTON, Capt. Halstead S. EXOS to JAG. LIBBY, Comdr. Rawdon NavBase SanFran to Com 12 fft Guam for legal duty with Naval Governor and add. duty staff ComMarianas. FITZGERALD, Lt. Comdr. Walter J. from ONR Sands Point N. Y. to NavBase, N. Y. GRADY, Lt. Comdr. Joseph W. from TD Com 9 to duty 9 N. D. legal office. VOLLBERG, Lt. Comdr. Ernest M. - from Navy 100 to PRNC for separation. KEATTS, Lt. John C. tice to JAG. THORNTON, Lt. William H., Jr. permanent duty Com 3 district legal office. WILLIAMS, Lt. Bill J. from NavGovGuam to Com NOB Saipan for duty as staff legal officer.

School of Naval Jus

Temporary to