said of this category of decisions that while allegations of prejudice will be sustained only when substantiated by material of record, the USCMA is in no wise reluctant to protect the discretion of reviewing authorities in a proper case.

III

THE FUTURE

As has been indicated during the foregoing discussion, Congress initially fashioned an intricate system of balanced judicial prerogatives designed to satisfy at once the demands of the military and the realities of a constitutional democracy. However, it was upon the available shoulders of the USCMA that the continuing responsibility of policing this congressionally established arrangement devolved through, among other sources, the invitation contained within Article 37, UCMJ. Consequently, in the

absence of new legislation, any innovations pertaining to the problem of command control over military tribunals must be initiated by the Court. Inasmuch as any extended examination of the decisions fashioned by the USCMA over the years will reveal that the Judges have been extremely willing to exercise the authority delegated to them in this area by the Uniform Code, criticism of the Court's action with regard to allegations of improper command influence, in all fairness, must be limited to a few isolated islands of alleged misconception.

That there is still concern over improper command guidance of courts-martial is indicated by the fact that Senator Sam J. Ervin, Jr., of North Carolina recently introduced legislation in the Senate 94 one of the avowed purposes of which is to expressly prohibit "any sort of pretrial instruction to members of courts-martial, now purportedly authorized by paragraph 38 of the Manual for Courts-Martial." 95 It is interesting to note that Senator Ervin's proposal closely parallels the judicial position consistently espoused by Judge Ferguson to the effect that the participation of commanders in the administration of military justice is, by virtue of statutory design, strictly limited to those functions particularly described in the UCMJ. Although it cannot be determined whether this suggested alteration of the statute is congressionally conceived as the birth of a new restriction upon the role of command or merely as a reaffirmation of the previously implicit intent of Congress with regard to pre-trial dialogue

94. S. 2002, 88th Cong., 1st Sess. (1963). 95. 109 CONG. REC. 14145 (1963).

heretofore misapprehended by the USCMA, it is submitted that in any event such an amendment may be viewed as a timely legislative clarification of the military judicial equation.

Also, it is submitted that in any case where court members are, prior to the commencement of trial, informed that fitness reports will be completed with an eye to their performance of judicial duties, the presence of a "veiled threat" may be readily detected. Again, a section of Senator Ervin's proposed legislation is devoted to the elimination of this evil on the ground that "evaluation of a person's performance as a court member should not be a basis for the rating he receives on an effectiveness or fitness report used for purposes of determining his promotions and assignments." 96

While there have been many other controversial decisions authored by the USCMA in the area of improper command influence, it is apparent that at least in the two specific classes of cases mentioned above Congress is now being offered an opportunity to reverse a prior judicial judgment. Furthermore, the entire thrust of the so-called Ervin Bills, of which there are eighteen, is to reshape and modernize the Uniform Code in light of the experience gathered through fourteen years of relatively successful operation. The emphasis of this new legislation is also noteworthy. The declared objective of the eighteen proposals is to "grant the full measure of justice and security to those to whom this Nation has entrusted its defense." 97 sequently, the Ervin measures may be viewed as mute testimony to the fact that the ideological friction created through the juxtapositioning of discipline and justice within American society, after having been monitored by the judiciary since 1951, is returning once again to Capitol Hill in search of legislative relief.

96. Ibid.

97. 109 CONG. REC. 14142 (1963).

ARTICLES DEALING WITH TAXATION

Con

In response to numerous requests, the following is a listing of recent JAG JOURNAL articles dealing with the subject of taxation:

Rolfson & Hawk, The Tax Impact of the Contingency Option Act, 15 JAG J. 25 (Mar. 1961)

Siefert, Death Taxes and Estate Planning, 16 JAG J. 115 (Sept. 1962) (reprinted 18 JAG J. 207 (Jan 1964))

MacMillan, Dependents for Federal Tax Purposes, 17 JAG J. 191 (Dec. 1963)

Rolfson, Income Taxes Following Separation or Retirement from Active Duty, 19 JAG J. 35 (Nov.Dec. 1964)

U.S. GOVERNMENT PRINTING OFFICE:1965

LEGISLATIVE HISTORY

N RECOGNITION OF the hardships and inconveniences frequently encountered in military life, the United States has traditionally provided its military employees with what might be termed "occupational fringe benefits". Thus, we have come to look upon medical care, commissary privileges, service clubs, retirement, and veteran's benefits as just a few of the many legislated advantages of military life.

One of the more significant statutory benefits of military service is embodied in a piece of legislation informally known as the Military Personnel Claims Act.1 Just twenty years ago, on 29 May 1945, the United States Congress enacted into law the forerunner of the present Military Personnel Claims Act." The 1945 Act repealed a number of statutes which had been passed in prior years for the payment of specific types of claims asserted by members of the military service. Thus, the effect of the new Military Personnel Claims Act was to consolidate prior laws and to erect a framework upon which the various military services could construct their own claims regulations. These regulations would then be used by personnel of each service as authority for asserting administrative claims against the Government for personal property damaged or lost incident to military service. It was hoped that the Military Personnel Claims Act would produce a uniformity not previously found in military claims legislation. In addition, it was hoped that the new legislation would greatly reduce the number of bills for private relief submitted to the Congress by claimants who theretofore had not had administrative recourse for property losses incident to their military service.*

Lieutenant Marshall is presently assigned to the Litigation and Claims Division in the Office of the Judge Advocate General. He received a B.S. degree from Purdue University in 1959 and graduated from the University of Michigan Law School in 1962. He is admitted to practice before the Supreme Court of Indiana, the Federal District Court for the Northern District of Indiana, the U.S. Court of Military Appeals, and the U.S. Court of Claims. He is a member of the Indiana Bar Association, the American Bar Association and the Delta Theta Phi Legal Fraternity.

1. 10 USC 2732.

2. 59 Stat. 225.

3. H. Rept. 237, 79th Cong., 1st Sess., 1945, p. 1.

4. Id. at 2.

Originally, the Military Personnel Claims Act was applicable only to the United States Army. Later, however, its provisions were extended by subsequent legislation so as to apply to the Navy, the Air Force, and the Department of Defense. From time to time other changes have been made in the basic provisions. The last of these changes extended such provisions to personnel of a number of non-military federal agencies to which benefits of the sort contained in the Military Personnel Claims Act had not heretofore been available."

At the present time, legislation is being proposed to raise the maximum amount payable from $6,500 to $10,000 per claim.R

Before examining the specific provisions of the Military Personnel Claims Act and their application to claims submitted by Navy personnel, it might be useful to reflect upon the basic considerations of the Congress in passing legislation of this sort. Undoubtedly, a number of factors were responsible for the initiation of this legislation and that which preceded it. Not the least of these factors was the view of Congress that military personnel should not be required to bear the entire financial burden for personal property which may have been damaged or lost incident to their military duties.9

This view was evidenced as early as 3 March 1849 when Congress passed an act to provide for the "payment for horses and other property lost or destroyed in the military service of the United States".10 Congress has also demonstrated its concern in regard to the peculiar risks to which the property of military personnel is sometimes subjected as a result of duty on foreign soil. The theory behind the latter legislation appears to be that the United States Government, having required the military member to serve his country abroad, should compensate the member for losses peculiarly related to such foreign duty. Another legislative theory operating in this area is that the govern

5. Dept. of Army PAM 27-162 (1962), p. 50.

6. Id. at 51.

7. Act of 31 Aug 1964, 78 Stat. 767.

8. H. R. 5024, 89th Cong.

9. Supra, note 3.

10. 9 Stat. 414.

ment should assume a greater responsibility for the personal property of military personnel who are actually quartered in government housing than for those members living in private quarters. For this reason, certain losses of personal property may be compensable only where claimant is living in government quarters.11

Before proceeding to a discussion of particular provisions of the Military Personnel Claims Act, we should first examine the nature of, and the basic philosophy behind, these provisions. If it were necessary to characterize in a phrase the nature of the Military Personnel Claims Act, this phrase would probably be "personal property insurance provided as a gratuitous fringe benefit incident to military service". However, that characterization has its definite limitations. In comparing the financial protection provided by the Military Personnel Claims Act and that which an individual may obtain from private sources, it must be noted that the Act does not pretend to make the government an insurer in the strict sense of the word. Protection under the Military Personnel Claims Act depends closely, and sometimes crucially, upon claimant's own compliance with the provisions thereof. Failure to comply may be determined to constitute such negligence on the part of claimant as will require disapproval of his claim in its entirety. In addition, due to the maximum amount allowable under the Act, claimant, even if he has fully complied with the provisions of the Act, can in no case recover an amount in excess of $6,500.00.12 Thus, it is seen that the Military Personnel Claims Act is intended to supplement rather than supplant private insurance coverage. It is clear, therefore, that a military member may be well advised to secure his own private insurance to protect against those losses which might not otherwise be covered by the provisions of the Military Personnel Claims Act.

GENERAL SCOPE OF PRESENT ACT

Under authority of the Military Personnel Claims Act, 18 the Secretary of the Navy, through the Judge Advocate General, has promulgated the Navy Personnel Claims Regulations. These regulations are published for handy reference in the Manual of the Judge Advocate General. It will not be the purpose of this article, however, to discuss each and every provision of the Military Personnel Claims Act, as implemented by the Navy Personnel Claims

11. JAG Manual, sec. 2103. 12. JAG Manual, sec. 2102. 13. Supra, note 1.

Regulations. On the contrary, treatment will be given only to those provisions the discussion of which might be useful to the local Claims Officer in discharging his responsibilities under the regulations.

No attempt will be made here to discuss regulations of the other military services as promulgated under the Act or to make comparisons thereof with the Navy Personnel Claims Regulations. It should be observed, however, that each of the Secretaries of the military services has been given authority under the Military Personnel Claims Act to promulgate such regulations as they may deem necessary to carry out the intent of the Act.14 Although the provisions of these regulations are essentially similar in purpose, one should be aware of the fact that differences do exist. For this very reason, periodic conferences are held between representatives from the claims divisions of the various military services. At these claims conferences, interpretations of the respective service regulations are discussed with a view towards achieving as much uniformity in application thereof as may be desirable.

The intended scope of financial protection afforded Navy personnel under the provisions of the Navy Personnel Claims Regulations is succinctly stated in the following passage quoted therefrom:

Under this chapter claims are settled and paid for damage to or loss of personal property of service personnel and civilian personnel of the Navy and Marine Corps. The loss must be incident to service, and possession of the property must be reasonable, useful, or proper under the circumstances. The maximum amount allowable is $6,500.00.15

Under the Navy Personnel Claims Regulations claims may be submitted by both military and civilian employees of the Navy.16 Military personnel may be commissioned, appointed, enrolled, or enlisted members of the Navy or Marine Corps. Civilian personnel may include those paid on a contract basis, but not those employed by nonappropriated fund activities, such as base exchanges, officers' clubs, etc." Claims of employees of nonappropriated fund activities are covered by separate regulations in the Manual of the Judge Advocate General.18

Normally a claim will be submitted in the claimant's own name. However, such claim may be submitted in the name of an authorized agent or other legal representative of the claim

14. Ibid.

15. Supra, note 12.

16. JAG Manual, sec. 2101.

17. Dept. of Army PAM 27-162 (1962), p. 53.

18. JAG Manual, Chapter XXIII.