is not substantially related to the maintenance of good order and discipline in the service and it is not service discrediting. The very attempts by area commanders and unit commanding officers to take disciplinary action in these matters would certainly indicate that, in their judgments, good order and discipline or service discredit, or both of these factors, are involved. Unless executive action affecting the entire naval service is taken in the matter, area and unit commanders may be expected to continue issuing orders of doubtful legality relating to drinking by minors. Courts-martial prosecutions and non-judicial punishments may also be expected to be based on questionable specifications relating to commanders' orders and violations of local law.

To help apprise area and unit commanders of the extent of their authority to regulate drinking by minor servicemen, General Order 15 might be amended to include provisions as to what extent, if any, such commanders may issue orders prohibiting off-station drinking by minors or punish minors for off-station drinking in violation of local law. Also, paragraph 5 of the Order, containing the requirement of prohibition of sales to minors aboard station, might be amended to expressly state what affect a station's status of being under exclusive Federal jurisdiction has on this requirement. If Departmental authorities considered that commanders do not have authority and could not be given authority by executive means to punish minors for off-station drinking, but it was also determined that such authority should exist for the maintenance of good order and discipline or to avoid service discrediting conduct, an amendment to the Uniform Code of Military Justice could be sought to effect this.

Whatever rules are applied to the questions stemming from minors drinking, they should be as clear and as uniform as possible. In this way the interests of orderly administration of discipline will be better served; young servicemen will have a greater respect for laws and regulations; and misunderstandings in adjoining civilian communities about the extent of the service commander's authority to punish violations by minors of local law will be reduced. INJURY REPORT (Continued from page 271)

FORWARDING THE INJURY REPORT 17 Once the investigating officer has completed his investigation and has reported the circumstances by use of the injury report form, he should sign and submit the report to the con

17. Some Suggestions for Improving the Investigative Report, Jame, Vol. XVII, No. 6 JAG Journal, 127, August 1963.

vening authority.18 The convening authorit may approve and forward the report, return i for further investigation, or order another typ of investigation.19 If the convening authorit approves the report and is not also a genera court-martial authority, the report must be for warded to the officer exercising general court martial authority over the injured person This routing of the report permits correctiv action to be ordered as well as informing the superior in the chain of command of the circum stances of the injury. The broader perspectiv afforded by the superior's position may reveal a need for general action not apparent from a consideration of the particular incident by itself

SUMMARY

The injury report is utilized as a basis for determining conduct and line of duty status and is also employed in physical disability proceed ings in determining entitlement to benefits The injury report should therefore be suffi ciently complete in all respects in order that it may be used as a basis for necessary administra tive action.

Normally, the commander of the unit or ac tivity concerned is responsible for initiating an investigation into an incident resulting in injury to a member of his command. The investigation should be promptly commenced.

The method of proceeding with the investigation is discretionary with the investigating officer, but he should use the method which will best elicit the facts. He must collect sufficient information to clearly determine the cir cumstances surrounding the incident under investigation.

The injury report is intended for use only in those cases in which there is no possibility of a finding of misconduct. This means that the injury report should be reserved for use only in those cases in which the circumstances surrounding the injury are uncomplicated, and in which the injured member was conducting himself properly as a member of the Navy. If the investigating officer finds that he must gather evidence from many sources in order to determine, in his judgment, the exact circumstances of the injury, in all likelihood this is not a proper case in which to utilize the injury report form.

The injury report form provides for signature by the investigating officer and the commanding officer or one authorized to sign by his direction. It then must be submitted to the Judge Advocate General via the officer exercising general courtmartial authority over the injured person.

18. JAG Manual sec. 0706a.

19. JAG Manual sec. 0706b.

FRESH COMPLAINT (Continued from page 268)

of Military Appeals arrived at different conclusions, despite the fact that both cases involved sexual offenses not requiring proof of lack of consent. Nor does the use of force or its absence seem determinative. The Mantooth decision contains dicta to the effect that, in that I case at least, even if force had been used, instructions on lack of complaint would not have been required. On the other hand, one basis for the Goodman ruling requiring instructions was the use of force on a non-consenting victim. It must be concluded that in the future the court will examine the facts of each case to determine if, under those facts, an outcry from the victim would normally be anticipated. If so, and if a I complaint in fact was not made, it is probable that the court will require instructions. Conversely, in situations where a complaint would be surprising, or at least unlikely, no instructions would be demanded.

CONCLUSION

In summary, the rule allowing evidence of fresh complaint, and the various limitations to that rule, are well defined in military law. As seen above, putting these concepts into practice is another matter. And, although the rule originally came into being as a device which would enable the prosecution to support the testimony of one of its witnesses, it has been pointed out that the defense may also take advantage of the doctrine to discredit that witness when there is an absence of a complaint. Counsel for both sides should be alert to the opportunities which may present themselves in this area: fresh complaint is a double-edged sword.

COMPTROLLER GENERAL

(Continued from page 272) activity is not the property of the Government (Kenny v. United States, 62 Ct. Cls. 328; Taggart v. United States, 17 Ct. Cls. 322). The Army cases cited above must be distinguished, he said, because the Army equivalent of Section 0137 provides that debts may be collected from final pay if they are owing to the "United States or any of its instrumentalities", and the term "instrumentalities" had been defined in the Army Regulations to include nonappropriated fund activities. Absent similar specific authority in the Navy for the collection of indebtedness owed a nonappropriated fund activity, the Comptroller General concluded, the set-off in this case was improper. (Comp. Gen. decision B-151979 dtd 6 November 1963.)

FAMILY SEPARATION ALLOWANCE Established by the Uniformed Services Pay Act of 1963; Answers to Twenty-Seven Hypothetical Problems

The Comptroller General's Decision B-131836 of October 9, 1963, answered twenty-seven questions presented for decision by the Assistant Secretary of Defense (Comptroller) concerning interpretation and application of the new family separation allowance provision established by section 11 of the Uniformed Services Pay Act of 1963, Public Law 88-132, approved October 2, 1963. The family separation allowance portion of the new pay bill appears as Section 427 of Title 37 of the United States Code.

Section 427 (a) provides for the payment of a monthly allowance equal to the basic allowance for quarters payable to a member without dependents in the same pay grade in instances where (1) the member is on permanent duty outside the United States or in Alaska, (2) his dependents are not authorized transportation to or near his duty station, (3) his dependents do not reside at or near his duty station, and (4) there are no public quarters or housing available for assignment to him. Section 427 (b) provides for the payment of a monthly family separation allowance of $30 to certain members entitled to basic allowance for quarters on behalf of dependents where the members are on duty under specified conditions resulting in separation from their dependents, intending thus to compensate a member for the added household expenses incurred at the place where his dependents reside.

The Comptroller General ruled that a member entitled to family separation allowance under section 427 (a) is entitled to continue to be paid the allowance for periods he is (1) on temporary duty away from his permanent duty station, including periods he is on temporary duty within the United States, (2) hospitalized at or away from his permanent duty station, including periods he is hospitalized within the United States, (3) on authorized leave within or outside the United States not in excess of the leave for which he is entitled to pay and allowances under 37 USC 502 (a), and (4) in military confinement or is otherwise restricted by competent military authority from permanent duty. In view of the expressed intent of Congress that the allowance under section 427 (a) is to reimburse the member for the cost of his commercial housing at his permanent station overseas or in Alaska, however, the Comptroller was of the opinion that the allowance could not be justified if the temporary duty or absence became unduly prolonged. Therefore a determination was made that in any such case of hospitalization, leave, temporary duty or confinement, the allowance is payable only for a period of 60 days unless it is supported by evidence that the member still continued to maintain quarters at his permanent station.

When members are transferred on permanent change of station orders from or to restricted stations in or out of the United States, or are transferred from a restricted station outside the United States to another restricted station, it was held that entitlement to the

$30 allowance authorized by section 427 (b) commences on the date of the member's detachment from his old station or the first day of authorized travel time, whichever is later. If the member is on temporary duty for a continuous period greater than 30 days entitlement to the allowance includes periods of travel to and from the temporary duty station, but does not include proceed time or leave en route, which were not considered to constitute periods of enforced separation. The same would be true if the 30 days continuous temporary duty were being performed between permanent duty stations.

With respect to the provision of section 427 (b) authorizing the $30 allowance when a member is on duty on board ship away from the ship's home port for a continuous period in excess of 30 days, the Comptroller held that this entitlement is not limited to periods of actual physical duty on board, but would continue during periods of temporary duty, shore patrol duties, or hospitalization ashore while the ship remains away from its home port, terminating upon its return. A member is also entitled to the allowance during such period as he is on authorized leave not in excess of that for which he is entitled to pay and allowances under 37 USC 502 (a).

Where the member is not detached from duty on board the ship and his pay and allowances are not otherwise limited or forfeited by court-martial sentence or by law, he is entitled to the allowance for periods he is in military confinement, on board ship or ashore, or is otherwise restricted by competent military authority from performing duty on board a ship while away from its home port. Detachment from the ship, however, would terminate the allowance.

There are further questions related to dependent travel regulations which might affect the $30 allowance. The Comptroller ruled that if the entry of a member's dependents into a restricted area is temporarily prohibited by competent authority, it may be considered that "the movement of his dependents to his permanent station or a place near that station is not authorized at the expense of the United States", under 37 USC 406, thus entitling him to the separation allowance. When some of a member's dependents are authorized to travel with him to his permanent duty station at government expense under 37 USC 406, but the movement of his remaining dependents is not so authorized, the restriction thus being at the volition of the United States rather than the member, the member is entitled to the otherwise proper payment of the $30 family separation allowance, as he would be if dependent travel is not authorized for health reasons, such as a member's wife's pregnancy.

In addition there was consideration of the situation wherein dependents had been furnished transportation to the member's overseas duty station and were later returned for various reasons. If the cause for their return was emergency evacuation necessitated by the types of civil or political disorders described in paragraph 7101, Joint Travel Regulations, the Comptroller concluded that the evacuation was the result of military needs, and hence the separation allowance would be

payable. On the other hand, if the reason for the dependents' return is covered by paragraphs 7102 or 7103, which describe acts by dependents which are embarrassing or prejudical to the United States, or involve serious illness or injury to the dependents, then the separation allowance would not be authorized. A Secretarial or higher determination under paragraph 7105, Joint Travel Regulations, that dependents' return from an overseas area is in the national interest would always authorize the allowance.

Should the dependents of a member visit him at his permanent duty station, their visit would not affect his right to the separation allowance provided the visit does not exceed three continuous months, the maximum period established by Executive Order No. 10204 during which a wife may occupy government facilities while on a social visit of a temporary nature. The allowance would not accrue during a similar visit to the member at his temporary duty station, when he maintains a residence for his dependents at his permanent duty station, on the premise that periods of temporary duty seldom exceed six months. In any case, the Comptroller ruled, the visit of a portion of his dependents would not alter an existing right to the allowance if he is still entitled to it by reason of those dependents who do not make the visit. It should be noted that this portion of the decision also puts to rest even more complex visitation questions, adding to the hypothetical hopper such factors as legal separations, dependent mothers with separate households, and children in the custody of the member but not residing with him because they are institutionalized. It is recommended that these rulings be consulted in the original should the occasion arise.

If a member's dependents do not reside within a reasonable daily commuting distance of his duty station, they may be considered as not residing at or near his station for purposes of establishing the entitlement for the separation allowance. For these purposes a distance of 50 miles was established as the maximum one-way distance unless the member himself actually commutes a greater distance daily. And in his final determination the Comptroller ruled that since the pay bill became effective 1 October 1963, and includes no provisions for retroactive benefits, all the qualifying periods for establishing the right to the allowance commence on that date and may not be added to earlier periods of separation. (Comp. Gen. Decision B-131836 of 9 October 1963.)

Minnesota..

Probate Judge of

county where license was issued.

Clerk of County Court where license was issued. Since July 1,

1958: Also at Bureau

of Records and Statistics, State Department of Health, 620 South Third Street, Louisville 2, Kentucky

Clerk of Court in parish where license was issued.

Bureau of Vital Statistics, City Health Department, City Hall, Civic Center, New Orleans 12, Louisiana. Division of Vital Statistics, State DepartIment of Health and Welfare, Augusta, Maine.

Varies...

Varies..

Mississippi --- $1.00---

Missouri (except Varies. St. Louis city).

St. Louis (city)__ $1.50.

Information for obtaining certified copies

Clerk of Circuit Court in county where license was issued: or

Since June 1, 1951:
State Department of
Health, Division of Sta-

tistical Research and
Records, State Office
Building, Baltimore 1,
Maryland.

Clerk of Court of
Common Pleas, Balti-
more, Maryland.
Division of Vital Sta-
tistics, 272 State House,
Boston 33, Massachu-
setts: or City or Town
Clerk where license
was issued.

City Registrar, Registry Division, Health Department, 1004 City Hall Annex, Boston 8, Massachusetts. Since 1867: Vital Records Section, State Department of Health, Old DeWitt Road, Lansing 4, Michigan: or County Clerk of county where license was issued.

Clerk of District Court in county where license was issued.

Circuit Clerk of county where license was issued. (Since 1926, name of county may be obtained from Division of Vital Statistics, P.O. Box 1700, State Board of Health, Jackson 5, Mississippi.)

Recorder of Deeds of county where license was issued. (Since 1947, name of county may be obtained without charge from Bureau of Vital Statistics, State Department of Public Health and Welfare, Jefferson City, Missouri.)

Recorder of Deeds, City Hall, St. Louis 3, Missouri.