and were free from fraud or collusion. Concerning details, the measure specifically includes disbursing officers, certifying officers and special disbursing agents of both War and Navy Departments. Relief comes in two forms. An officer who lost funds or substantiating papers may be released from accountability or responsibility. One who is charged with unauthorized payments may be allowed credit for such payments if they were made in good faith on public account. Cases involving $2500 and less are disposed of solely on the determination of CompGen. Those involving more than $2500 require a recommendation from the appropriate Secretary setting forth the facts and stating that the transaction or loss appears to be free from fraud or collusion and made or incurred in good faith. A concurring recommendation by the Attorney General is necessary when the amount exceeds $10,000. In all cases the CompGen must certify an appearance both of good faith and freedom from fraud or collusion. The 1947 Act is very liberal. It allows for error, inexperience and even negligence, and disqualifies only for crookedness or chicanery. When well analyzed, it requires nothing more than good faith. Any disbursing officer who lost his money honestly is entitled to favorable consideration. In contrast to the position of the officer seeking relief under the 1919 Act, an officer invoking the wartime measure is not necessarily burdened with proof of his case. The Act does not require proof of honesty in dealings of a disbursing officer. It merely requires that his dealings appear to be free from dishonesty. Fraud and bad faith cannot be presumed. Such elements enter in only when there is evidence of their existence. A case accordingly is free from these aspects until such evidence is forthcoming. The officer, therefore, does not begin with a presumptive or prima facie case against him. Any officer short in his accounts is qualified for relief unless something is brought forward to disqualify him. If and when there is indication or evidence casting doubt on the nature of a loss or transaction it is of course necessary for the officer to produce facts to dispel the doubt. If the facts of the shortage give no indication of bad faith or wrongdoing, however, the Secre tary may state and the Comptroller General may certify that the loss or transaction appears to be free from fraud or collusion, and incurred or made in good faith. With regard to the operation of the relief machinery, EuSandA holds the throttle. All cases involving $2500 and less are negotiated directly between BuSandA and GAO, except when there has been a report of deficiency from CompGen and SecNav invokes relief in making reply. Cases involving over $2500 are prepared by BuSandA, processed through JAG for legal aspects, approved and signed by SecNav, and forwarded to CompGen. Big cases with more than $10,000 in the balance are routed via the Attorney General for his views as to fraudulent aspects. Where the Convoy Commodore is on a vessel owned by the United States, it has been asserted that his action or non-action, if it allegedly contributed to a collision, was 'damages caused by a public vessel." None of the cases of this type have as yet reached the trial stage. There has been, however, one decision involving an effort to impute to a privately-owned vessel the alleged negligence of the Convoy Commodore. This was a small coastal convoy where the master of the merchant vessel was also the Convoy Commodore. The District Court in that case (LILLIAN S. KERR, et al, 1947 A.M. C. 610), held: "Although the CYRUS FIELD is responsible for Captain Delap's acts in his capacity as Master, the ship may not be held liable for his failure, if any, in the performance of his duties as Commodore; that is the responsibility of the authority which appointed him Commodore. The faults charged relate to his duties as Commodore; as Master he neither had the duty nor the authority to issue orders to the Masters of other ships to change course and speed. The CYRUS FIELD had committed no marine tort, and is not liable in rem." A vessel is liable in rem for the acts of a compulsory pilot. The CYRUS FIELD litiga tion represented an effort to apply that analogy to the acts of the Convoy Commodore. The distinction lies in the fact that the pilot deals with the navigation of the particular vessel while the Convoy Commodore deals with the management of the convoy. The litigation, involving the specific situation of the presence of a Convoy Commodore on a United States-owned vessel has not yet been the subject of decision. World War II cases illustrate not only the broadening concept of damages caused by naval vessels but also novel and interesting legal aspects of the convoy situation. FORTHCOMING CMO's (Attention is invited to the fact that publication of digests of CMO's in advance of their appearance in official form does not make them citable in judicial proceedings. They are published here for infornation only.) The Judge Advocate General's opinion holding that officers of the Naval Reserve and Marine Corps lieserve currently on active duty are eligible to serve on naval courts will be published in the next issue of Advance Court Martial Orders. The question arose by virtue of the provisions of an act of Oct. 6, 1917, and an act of July 25, 1947. The 1917 statute provided that during time of war or national emergency certain officers, while serving with the Navy on active duty, were empowered to serve as members of naval courts. The 1947 statute provides that in the interpretation of the 1917 act, the war and national emergency shall be deemed to have been terminated on July 25, 1947. Among the officers enumerated in the earlier statute' were officers of the Naval Reserve Force, Marine Corps Reserve, National Naval Volunteers and Naval Militia, and the eligibility of officers of the Naval Reserve and Marine Corps Reserve currently on active duty, to act as members of naval courts was questioned by reason of that fact. The opinion points out that the eligibility of these officers is not based on the 1917 statute, but upon the Articles for the Government of the Navy and the Naval Reserve Act of 1938. Authority for the conclusion that the 1917 act does not apply is based upon the provisions of an act of July 1, 1918 and an act of February 28, 1925, which, in effect, terminated the applicability of the 1917 act to the reserve organizations enumerated in the preceding paragraph. The 1918 act repealed all prior laws relating to the Naval Militia and the National Naval Volunteers. The 1925 act abolished the Naval Feserve Force and the United States Marine Corps Reserve, created in their places the present Naval Reserve and Marine Corps Keserve, and repealed all prior laws or parts of laws relating to the organizations thereby abolished. The pertinent provisions of the applicable statutes are Articles 27, 39 and 46(b) of the Articles for the Government of the Navy and Articles 2 and 7 of the Naval Reserve Act of 1938. It was held that under these statutes, officers of the Naval Reserve and Marine Corps Reserve, currently on active duty, are eligible for membership in naval courts. Initially, it is pointed out that the cited Articles for the Government of the Navy, which refer to the membership of general courts martial, summary courts martial and deck courts, respectively, do not restrict membership to officers of the regular Navy or Marine Corps. Additional support for the conclusion that reserve officers on active duty are eligible for membership in such courts is found in section 2 of the Naval Reserve Act, which provides, in effect, that the statute shall apply to the Marine Corps Reserve, and section 7, which provides, in effect, that com missioned officers of the Naval Reserve when on active duty shall be deemed to be "qualified for all general service." It is pointed out that by practice of long standing, the duty of acting as a member of a naval court has been considered as an incident of "general service." Another question presented to the Judge Advocate General involved the construction of an officer's orders which placed him in a waiting status pending retirement proceedings, but provided for his release from active duty on a specified date. The specified date occurred prior to the completion of the retirement proceedings, and the Judge Advocate General's opinion was requested with respect to the officer's right, under these orders, to active duty pay and allowances for the period between the date specified for his release from active duty and the actual date of his release. The officer involved had requested retirement upon completion of 30 years' service. Pursuant to this request, orders were issued to him in September 1946 placing him in a waiting status pending retirement, and specified January 1, 1947, as the date for his release from active duty. In Lecember 1946 the Secretary of the Navy, upon the recommendation of the Bureau of Medicine and Surgery, ordered the officer before a naval retiring board. Appropriate orders to this effect were issued by the Secretary. The prior orders were canceled, but the same date for his release to inactive duty was retained. In February 1947, the board found the officer not entitled to disability retirement, whereupon a correction of the Secretary's orders purporting to change the release from active duty date of January 1 to March 1 was issued by the Bureau of Naval Personnel. The validity of this procedure and the pay status of the officer involved were questioned by the Fureau of Supplies and Accounts. The Judge Advocate General held that there was no error in either the September or Lecember orders, and that, in consequence correction of those orders was an inappropriate procedure. It was pointed out that a modification of the orders might have been desirable in view of the changed circumstances, but was not necessary, and that the question submitted to the Judge Advocate General involved merely the construction of the provisions of the December orders issued by the Secretary. The failure to complete the retirement proceedings prior to January 1 created, as stated in the opinion, an anibiguity in the provisions of the December orders. The same rules of construction apply as in resolving ambiguities in statutes. Where the provisions of one portion of an instrument are inconsistent with a more specific provision in another portion of the same instrument, the latter controls, unless the instrument, in its entirety, shows a contrary intention. It was held that, in this instance, such a contrary intention was manifest. This conclusion is based upon the premise that the purpose of the orders in question was to process the officer for retirement, and that his release to inactive duty was but an incident of this process. The opinion also points out that the provision for the officer's release from active duty on January 1 became invalid as a matter of law upon the failure of the retirement proceedings to have been completed by that date, as the Secretary did not have the authority to separate the officer from active service without the approval of the President. It was concluded, therefore, that the December orders were effective to place the officer in a waiting status until he was entitled, under those orders, to active duty pay and allowances until the date of his retirement. Another opinion involves the liability of an officer to the Government resulting from the Government's erroneous payment of allowances. The officer involved registered an allotment in 1941 for the purpose of providing support for his wife. The funds were to be sent direct to a bank for deposit in a joint account. In 1944, he duly requested that the allotment be stopped. Simultaneously, he registered a new allotment, designated as savings, in a different amount in favor of the same bank for deposit in the same account. Through error the earlier allotment was not stopped until 1947, when the error was discovered by the Government. the interim, the officer's pay accounts reflected the situation which would have existed had the earlier allotment, in fact, In been stopped. From a statement submitted by the officer after the discovery of the error, and which was not controverted in any particular, it appeared that at no time during the period in question did the officer have any knowledge or suspicion that the earlier allotment had not been stopped. In 1943, according to the statement, the officer and his wife agreed to a divorce. The divorce proceedings were to be commenced at the end of the war. The officer informed his wife in 1943 that he would not use the joint account thereafter. He did not utilize it after that time, and during the entire period in question the bank statements were submitted to his wife. The divorce action has been instituted by the wife and is currently pending. Upon being apprised of the error in the accounts, the officer ascertained from his wife that she had written to him concerning the bank's receipt of two allotments (a communication which he never received). He was informed that there were no funds currently in the account, and that his wife had no funds with which to make good the overpayment. The Judge Advocate Ceneral held that the officer should not be charged with the amount of the overpayment. In the course of the opinion, which discusses the principles upon which actions for erroneous overpayments are based, together with some of the leading cases on the subject, it is pointed out that the Government's right of recovery, if any, is founded upon a quasi-contractual relationship created by the overpayment and rests upon the principle of unjust enrichment. It is noted that such actions are subject to equitable defenses. The acceptance by the courts of the defense of a change of position by a defendant, based upon a payment which he rightfully thought to be his, and which has resulted in circumstances where the repayment of the funds effect inequities, is cited as illustrative. It was held that the same equitable considerations should apply in the instant case, as the officer involved received no personal advantage and no unjustified personal enrichment. The fact that title to the funds vested in him momentarily was held not to be conclusive. In response to the argument that the funds were used by the wife, that the officer was responsible for her support, 10 and that, in consequence, the use of the funds should be chargeable to him, the opinion cites the case of Melville v. United States, 23 Ct.C1.74. In that case, during an officer's absence at sea, the allotment to his wife was increased by order of the Secretary. The officer sued to recover the amount withheld. The Government defended on the round that the payment was for the purpose of the support of the wife, that the officer was liable for his wife's debts, and that she, therefore, was an agent to receive the payment. The court rejected the Covernment's defense. The opinion points out that the instant case presents an even stronger argument for the officer concerned in view of the fact that the payment was made in error. It is noted in conclusion that even had the Judge Advocate General held otherwise the officer's pay could not be checked, as involuntary check ages are permitted only under the act of May 26, 1936, under which, as construed by the Comptroller General, resort may be had to checkage only after a credit has been disallowed by the General Accounting Office. The record in the instant case revealed no such disallowance. CAPTAIN AND KING When we enumerate the horrors of war, we often neglect to count that span of years which inevitably follows a war, during which we review the lessons learned and lay plans wę to avoid the errors we have uncovered. Even victorious forces find the period onerous, since the achievements "were only to be expected", and call for little gloating; while the errors generally turn out to be minor stupidities which, though avoidable, have costly price-tags attached. It would be interesting to know what pungent monosyllable General Sherman used to define the like period after the Civil War. The Commanding Officer of a naval vessel always has been both Captain and King, so far as routine mast punishments are concerned. Occasionally this authority will extend to Summary Courts, as well. This is as it should be, since prompt discipline is the key to prompt obedience, and obedience to orders as a team is the key to victory. It is keyed to the "team spirit" which all American men learn in their school days. In consequence the system has worked well in our Navy, whose Captains and Kings not only are themselves schooled in the tradition of fair play and teamwork but are guided by precept and regulation to discipline justly and wisely. a Review of the war years just past shows that discipline and mast punishments were, as a rule, handled with the same fairness and restraint which marked the peacetime years. The errors committed were minor, voidable blunders which have no real stature compared with the magnitude of the task accomplished. Without detracting for a single moment from the glorious record of achievement established by the small-ship skippers, haste and inexperience were behind most of the mistakes. Some of the best and stoutest hearted skippers went to sea as Captain and King with three months' training for the job. of Captain and few- enough years of experience even as Subject. Comdr. William J. Bivens, of the General Line School, invites our attention to one glaring example of how lack of knowledge can work an injustice. The case he cites was reported to the service for guidance in CMO 3, 1943, 112, careful study of which is hereby recommended. In brief, a commanding officer, in his action on the sentence of a Summary Court Martial, decreed that the "reduced rations" which were part of a period of confinement should consist of a certain. quantity of bread and unlimited water, and that the "full ration every third day" should consist only of the noon meal as served to the crew. Py the time the record. reached the JAG (the commanding officer being ISIC, as well), the man had served his illegal sentence. After noting the illegality SecNav defined both "reduced rations" and "a full ration", and to compensate in some degree for the illegality remitted the loss of pay which also was involved. The foregoing case is a rarity in the records of Naval justice. Not so rare, however, are instances observed in which commanding officers have added punishment to punishment by decreeing that men who have extra duties to perform will have no liberty until the extra duty punishment has been completed. This practice, while not actually widespread, recently was the basis for an opinion requested of the JAG by the Chief Naval Personnel, cited in part below. When recommendations are adopted appropriate authority undoubtedly will promulgate an official directive to eliminate this apparent "hangover" from the hectic war years. Pertinent portions of the opinion, dated 16. January 1948, follows: "The questions raised in the enclosures are answered as follows: (a) The scope and effect of Article D-7027 (2) Bureau of Naval Personnel Manual upon the power of commanders to award "Deprivation of liberty on shore" as a mast punishment. The power of a commander to inflict the It This Article of the Bureau of Naval Personnel Manual is intended as a limitation on the power of the commanding officer to inflict punishment pursuant to the provisions of Article 24, A.G. N. permits unlimited suspension or deprivation of liberty on shore under conditions of unhealthfulness of a port or due to exigencies of the service. Generally, this suspension is regulated by the provisions of Articles 1312(2) and 1731(1), U. S. Navy Regulations, 1920. All other deprivations of liberty which may exceed twelve days, specificall |