dling Authorized have been relaxed to a point where with the proper security clearance a course can be released to the reservist upon his certification in a statement attached to his request that he has adequate stowage facilities, that is, at least 20 points stowage security as defined in the Security Manual for Classified Information.

Due to space limitation, all individual qualification variations or special cases have not been discussed, but reference is made to the following directives and publications concerning promotion, qualification, and courses:

BuPers Instruction 1570.4A of 21 November 1963;
BuPers Instructions 1416.4D and 1412.1E;

BuPers Manual, H3703 (3); H3801 through 3807;
H31201 (6);

The Naval Reserve Association News of January, 1964,
"Promotion: The Hows and Whys";

The Naval Reservist of December, 1962, "Promotion
Policy";

The Naval Reservist of January, 1964, "A Checklist
of Officer Correspondence and NROS Courses";
and

List of Training Manuals and Correspondence Courses, revised semiannually, NavPers 10061-S. The following chart is an example of a recommended official professional study plan as modified for illustration purposes, applicable only to special duty officers, law, designator 1625. Study plans for this designator and all others are set forth as Enclosure 8 of BuPers Instruction 1570.4A of 21 November 1963.

(Continued on page 22)

ADVERSE CONDUCT-LOD DETERMINATION

(Continued from page 8) may furnish medical treatment to any veteran who was discharged or released for disability, whether or not service-connected, but only if such disability was incurred or aggravated in line of duty.69

Death Compensation

Applicable statutes 70 provide that surviving widows and children and dependent parents of veterans who died before 1 January 1957 (or after 30 April 1957 if certain Federal Insurance coverage did not exist) 71 shall be entitled to death compensation, but only if the death resulted from injury or disease incurred in or aggravated by active service and in the line of duty. Separate rates for wartime 72 and peacetime 7 death compensation are provided, and

69. 38 U.S.C. 612(a).

70. 38 U.S.C. 321, 341. 71. 38 U.S.C. 417(a).

72. 38 U.S.C. 322.

73. 38 U.S.C. 342.

the higher wartime rates are payable if death resulted from injury or disease received in line of duty as the direct result of armed conflict, or while engaged in extra-hazardous service, or from 1 January 1947 to 25 July 1947.74 Dependency and indemnity compensation

For service-connected deaths and deaths after 31 December 1956 resulting from disability incurred in active service (provided the veteran was released under conditions other than dishonorable), the Veterans Administration will pay dependency and indemnity compensation 75 to the widow, children," and parents." However, payment of this compensation is dependent on the nonexistence of certain Federal Insurance coverage."9 A widow or child eligible for death compensation may elect to take dependency and indemnity compensation in lieu thereof.80 A parent may so elect under certain income limitations.81

Benefits for veterans disabled by treatment or vocational rehabilitation

If a veteran suffers an injury or an aggravation of an injury as the result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation awarded by the Veterans Administration, or as the result of having submitted to an examination under any of the laws administered by the Veterans Administration, and not as the result of his own willful misconduct, and the injury or aggravation of an injury results in death or additional disability, it is treated as though it were serviceconnected for purposes of disability or death compensation and dependency and indemnity compensation.82

Farm, home, and business loans

A veteran discharged or released from active duty, any part of which occurred during World War II or the Korean conflict, by reason of a service-connected disability may be entitled to have the Veterans Administration guarantee or insure a loan issued to him for farm, home, or business purposes.83 He may also qualify for a (Continued on page 23)

74. 38 U.S.C. 343.

75. 38 U.S.C. 101(14).

76. 38 U.S.C. 411; rates of dependency and indemnity compensation have recently been changed by act 5 Oct. 1963, Pub. Law 88-134, 88th Cong. 1st Sess., 72 Stat. 1127.

77. 38 U.S.C. 413, 414. 78. 38 U.S.C. 415.

79. 38 U.S.C 417(a). 80. 38 U.S.C. 416 (a) (1). 81. 38 U.S.C. 416(a) (2).

82. 38 U.S.C. 351. 83. 38 U.S.C. 1802.

ADVERSE CONDUCT-LOD DETERMINATION (Continued from page 21) direct loan from the Veterans Administration for $13,500 or less.84

Specially adapted housing for disabled veterans

A veteran entitled to compensation for a total and permanent service-connected disability may receive in accord with pertinent Veterans Administration regulations $10,000 or less for a house (and the necessary land) suited to his special needs.85 The requirement of serviceconnection disqualifies a veteran who incurred his disability not in the line of duty.

Vocational rehabilitation for World War II and Korean conflict veterans

Subject to certain limitations of time, the Veterans Administration may provide vocational rehabilitation training to veterans of these last two conflicts who are in need of such training by reason of service-connected disabilities. Generally, the maximum amount of training will not exceed four years. 86

Funeral expenses

The Veterans Administration, in its discretion, may pay $250 or less for the funeral expenses of a person who was a veteran of any war if he had been released from active service for a disability incurred or aggravated in line of duty or if he was receiving disability compensation (or would have been receiving it but for the receipt of retirement pay). This burial allowance cannot be paid if any other act specifically provides for the payment of the veteran's funeral expenses.87

Flags

The Veterans Administration will furnish a flag for the casket of each person who was a veteran of any war if he had served at least one enlistment or was released from active duty for a disability incurred or aggravated in line of duty.88

III PROVISIONS ADMINISTERED BY OTHER

FEDERAL AGENCIES

Clearly, the most consequential results of an adverse conduct-line of duty determination are

84. 38 U.S.C. 1811; see the pamphlet "Federal Benefits for Veterans and Dependents", VA Fact Sheet 15-1, published by the Veterans Administration, Feb. 1963, pp. 17-21.

85. 38 U.S.C. 801, 802; see the pamphlet cited in the foregoing footnote, pp. 21-22.

86. See: 38 U.S.C. 1501 (2), 1502.

87. 38 U.S.C. 902.

88. 38 U.S.C. 901.

those effectuated by the naval service and the Veterans Administration. However, other agencies of the federal government administer significant privileges and benefits available to veterans and particularly to disabled veterans. Often these privileges and benefits are premised on a disabled veteran having incurred his disability in the line of duty or at least not as the result of his willful misconduct. A few such provisions are set out below; it should not be assumed they constitute an exhaustive listing. The federal agencies responsible for the execution of the provisions listed in this section do not make a separate determination of a disabled veteran's conduct-line of duty status at the incurrence of his disability. The determination of the Veterans Administration in this regard is accepted by the agencies concerned. Social Security

The Federal Old-Age, Survivors, and Disability Insurance laws grant a veteran a credit of $160 per month for service on active duty after 15 September 1940 and before 1 January 1957 (at which time military personnel were brought under the Act). This credit is not applicable if the veteran would receive more benefit without applying it, and it is not actually given until the veteran applies for social security benefits. This gratuitous credit is not generally applicable when retirement pay is received for service during the credited period supra, unless the member is on active duty after 1 January 1957, in which case credits may be granted back to 1951. However, one cannot qualify as a veteran for purposes of this provision unless he served on active duty during the above period and either (1) was discharged under conditions other than dishonorable after serving over eighty-nine days or (2) was released by reason of a disability incurred or aggravated in service, in the line of duty.89

Preference in federal employment

Disabled veterans are given preference in employment in all federal agencies and in the civil service of the District of Columbia. This preference is contingent upon having served on active duty and having been separated under honorable conditions and either (1) having established the present existence of a service-connected disability or (2) being in receipt of compensation, disability retirement benefits, or a pension from the Veterans Administration.90

89. See: 42 U.S.C. 417 and consult generally the pamphlet "Your Social Security" (revised 9-61) published by U.S. Dept. of Health, Education, and Welfare.

90. 5 U.S.C. 851.

Thus, an adverse conduct-line of duty determination by the Veterans Administration would vitiate this preference for disabled veterans. Homesteads

Active duty service of over ninety days in World War II or the Korean conflict allows a veteran to apply such service, not exceeding two years, to the period required of residence and cultivation upon the land for purposes of a homestead. However, this constructive credit depends on (1) having been honorably discharged or (2) discharged because of wounds received or disability incurred in line of duty during these conflicts or (3) discharged and subsequently furnished hospitalization or awarded compensation by the federal government by reason of such wounds or disability."1

IV

CONCLUSION

This limited discussion of statutes and regulations provides only a reference to the possible results of an adverse conduct-line of duty determination. Obviously, it is the intention of Congress by these statutes to implement the ancient principle of law that one should not profit by his wrongdoing. Compelling reasons of public policy indicate that federal benefits will continue to be denied victims of self-inflicted injuries and of those causally related to the elements of willfulness and recklessness; i.e., to the mental aspect of volition. Thus, application of these regulatory and statutory provisions in each instance of individual disability must strive to equitably implement an imperfect justice balanced between social responsibility for he who has been disabled and social protection from he who irresponsibly has brought disability upon himself.

91. 43 U.S.C. 279.

BCNR

(Continued from page 12) Correction Board where the findings of that Board are not justified by the record on which the findings were made. . . . As we noted earlier herein, the record before the Board fully justified the findings of the majority and did not justify the statements made to support the dissenting opinion or the conclusions reached by General McNeil."

Eicks v. United States 14 is the case of a naval officer who was found to be unfit for duty by reason of physical disability. These findings reached the office of the Judge Advocate General

13. Id. at 326.

14. 172 F. Supp. 445 (Ct. Cl. 1959).

on 27 December 1943. On 27 January 1944, the Chief of Naval Personnel signed an order relieving the officer of all duties, and, upon release from the Naval Hospital, ordering him to proceed to his home and await orders pending action on the retirement board proceedings. These orders were not delivered to the officer until 1 May 1944. This was the first notification he had received of his retirement. On 12 May 1944 he applied for three and a half months of accumulated leave. On 14 May 1944 he received notification that he had been retired as of 1 May 1944. He petitioned BCNR to correct his records to show that he was retired on 20 August when his leave would have expired. This would have increased his retirement pay. BCNR recommended that such a correction be made but the Secretary of the Navy rejected the recommendation on the ground that leave was a privilege rather than a right and that the officer should have used his leave before the retirement became effective.

The Court of Claims concluded, contrary to Navy Regulations in effect at the time, that leave was a right rather than a privilege and that the Secretary had acted arbitrarily and capriciously in refusing to correct the record. reaching this conclusion the court stated:

In

As the Secretary, under the statute, has authority to correct a record acting through the civilian board, we cannot conclude that the finding of the Board compels the correction. We do think, as to record correction, that the controlling issue is whether the Secretary's action in disapproving was arbitrary and capricious. If if was, the record should have been corrected.15

Betts v. United States 16 is the case of an Army officer who was advised, in writing, by an Army doctor that he should limit his activities so as not to be under physical or mental pressure because of a heart condition. Because of this he resigned his regular commission and requested release from active duty in the AUS. The Army terminated his reserve commission as well as the regular commission. After release, he was examined by a civilian heart specialist who found coronary artery disease. The Veterans' Administration awarded him an 80% disability for his heart condition. The Army correction board recommended correction of his records to show release from active duty by reason of physical disability. The Assistant Secretary of the Army denied, without comment, the application for correction of his military record. Six months later the Assistant Secretary re

15. Id. at 447.

16. 172 F. Supp. 450 (Ct. Cl. 1959).

turned the record to the correction board with the comment that he had denied relief because the officer had voluntarily resigned with full knowledge of his condition. The Board reconsidered the case and recommended that the application for correction be denied. The Assistant Secretary followed this recommendation and repeated his denial of the application.

The Court of Claims held that the Assistant Secretary had acted arbitrarily and capriciously and awarded damages in the amount the officer had lost by not being retired by reason of physical disability. In reaching this decision, the court stated:

The first question before us is the naked one, whether a Secretary, acting under this legislation, is free to reach a conclusion which is contrary to all the evidence, is contrary to the conclusion of all the boards authorized by Congress to assist the Secretary in his function of correcting records and is, some months after the decision, expressly based upon a purported reason which is utterly irrelevant."

In the case of Friedman v. United States 18 the Secretary of the Air Force adopted the findings of the correction board which found that the evidence did not support correction of the plaintiff's records to show that he was retired by reason of physical disability. The Court of Claims concluded that the action was arbitrary and capricious because it was not supported by the evidence in the record.

In summation, the Secretary may properly and legally substitute his findings and decisions for those of the correction board if the Secretary's findings and decisions are based upon, and supported by, evidence in the record of proceedings before the correction board.

If the Secretary receives information which is not in the record of proceedings which indicates the board's findings and recommendations are not correct he should return the record to the board with the additional information for reconsideration.

The courts have stated on numerous occasions that they will not review the findings and actions of boards for correction of military records or of the Secretaries unless they acted arbitrarily or capriciously.19 The cases indicate that the courts will review the actions of the boards and the Secretary in any case where they have not acted in accordance with the statute or their action is clearly not supported by the evidence in the record of proceedings.

17. Id. at 453.

18. 158 F. Supp. 364 (Ct. Cl. 1958).

19. Price v. United States, 149 F. Supp. 181 (Ct. Cl. 1957); Wales v. United States, 130 F. Supp. 900 (Ct. Cl. 1955); Woodford v. United States, 138 Ct. Cl. 228 (1957).

The varieties of aberrant human behavior seem to know no bounds. One of the more popular, particularly among the humorists in our midst, in recent years is the false bomb report by airline passengers.

Consider the following case: A person boarded a commercial plane. Apparently shortly after boarding, he had a conversation with the stewardess about the stowage of his briefcase. It seems she asked him to remove it from the overhead rack and place it in or under the seat. His reply was to the effect that, "It only has confidential papers and a bomb set to go off in 12 minutes; it can go off under the seat just as well." The stewardess failed to appreciate the humor of this remark and notified the pilot, who contacted the tower. Thereafter, the person was removed for interrogation by the F.B.I.

It's not that the stewardess is a grouch or that the F.B.I. doesn't enjoy a good joke, but the fact is that the action of the person in this case was in violation of 18 U.S.C. 35, which in pertinent part, reads as follows:

Whoever imparts or conveys ... false information, knowing the information to be false, concerning an attempt or alleged attempt being made or to be made, to do any act which would be a crime prohibited by this chapter (e.g., damaging or destroying an aircraft)... shall be fined not more than $1,000, or imprisoned not more than one year, or both.

Additional penalties are provided if the false information is given willfully and maliciously, or with a reckless disregard for the safety of human life.

It has been argued, unsuccessfully, that the statute doesn't apply to such statements made in jest. In a case much like the one related, a passenger told the ticket agent that he had a bomb in his brief case. Investigation, after his apprehension by agents of the F.B.I., revealed that he did have a "bomb”—an aerosol can plainly marked “bug bomb." The court, in responding to his claim of innocent humor stated:

There is no doubt but what the statement that he had a bomb in his brief case was made in jest, but the peculiar sense of humor attributable to this defendant does not lessen the seriousness of the legal consequences of his acts.

The court continued:

It is obvious that Congress intended by this section [18 U.S.C. 35] to prohibit exactly what happened here. We cannot help but take judicial notice of similar situations elsewhere where individuals of a completely distorted sense of humor or pranksters with juvenile minds have caused expensive delays, investigations, hardships, and induced fear by such acts.

The point is this, if the meaning and effect of 18 U.S.C. 35 are not widely understood-and apparently they are not the word must be spread that the individual who thinks it would be riotously funny to say that he has a bomb in his luggage risks considerably more inconvenience to himself than just missing his plane. The federal authorities are not taking this lightly and are prosecuting practically all cases of this kind. Don't let it happen to you-or any member of your command.

1. As amended by act 3 Oct 61, Pub. Law 87-338, 75 Stat. 751.

2. United States v. Silver, 196 F. Supp. 677 (D.C. Pa. 1961); accord, United States v. Allen, 317 F. 2d 777 (2d Cir. 1963).