recommendations and advice to the convening authority; consideration of the case by the convening authority; reference of the charges to trial; service of the charges upon the accused by trial counsel; and finally, passage of the minimum time required by law for bringing on the case after service of the charges, . . .12 Thus, in considering the passage of 153 days from confinement to trial, in the case of an accused who had committed a series of offenses over a wide area of the nation, that portion of the delay attributable to conducting the initial inquiries via correspondence was not considered unreasonable." Similarly, the lapse of four months, from arrest to trial, was not considered unreasonable in view of the seriousness of the chargemurder. The location of the trial overseas, for example, may justify as reasonable a prolonged delay. An overseas trial, with the persons concerned with the hearing coming from distant places and stations, will necessarily create difficulties in holding an early trial.1 Likewise, an offense that occurs while the accused's unit is on maneuvers, away from its home base, will necessitate the consumption of additional time before the commencement of the trial.16

14

Furthermore, the actions of the accused have to be taken into account when deciding the reasonableness of a delay. Thus, the time he spends hospitalized, the period of time that transpires while the accused is an unauthorized absentee, the time spent with officers of the government in an attempt to negotiate a beneficial pretrial agreement, and the time consumed due to a continuance that his counsel requests, usually cannot be counted in accused's favor in evaluating whether the delay was oppressive or vexatious." An Air Force Board of Review, in discussing the actions of an accused who on the eve of his trial had discharged both his civilian and military counsel, said:

It appears to us that he delayed facing the music until he could delay no longer.18

As indicated previously, when the issue of lack of speedy trial is placed before the court, the Government, not the accused, has the onus to show the full circumstances of the delay." This has been interpreted by recent cases before the Court of Military Appeals to permit an explanation of a delay from the whole record of trial, including trial counsel's explanation of the delay, as well as the allied papers.20

While the accused is given a right to a speedy trial, it is a personal right and can be waived." It has been said, “That the right to a speedy trial is a shield for the defendant's protection not a sword for escape from trial and punishment." 22 The question then arises

12. United States v. Davis, 11 USCMA 410, 414, 29 CMR 226 (1960). 13. United States v. Batson, 12 USCMA 48, 30 CMR 48 (1960). 14. United States v. Snook, 12 USCMA 613, 31 CMR 199 (1962). 15. United States v. Green, 29 CMR 868 (1960).

16. United States v. Czerwonsky, 32 CMR 676; Affirmed on different grounds, 13 USCMA 353, 32 CMR 353 (1962).

17. United States v. Batson, supra; United States v. Goodman, 31 CMR 397 (1961); United States v. Werthman, 5 USCMA 440, 18 CMR 64 (1955).

18. United States v. Fuschholtz, 29 CMR 852 (1960).

19. United States v. Brown, 10 USCMA 498, 28 CMR 64 (1959). 20. United States v. Brown, 13 USCMA 11, 32 CMR 11 (1962); Mil. L. Rev. (DA Pam 27-100-20) 122 (April 1963).

21. United States v. Hounshell, 7 USCMA 3, 21 CMR 129 (1956). 22. United States v. Wilson, 10 USCMA 337, 340–341 (1959).

how does the accused waive this right? It has been held that a plea of guilty following a denial of a motion to dismiss for lack of a speedy trial does not bar the right to raise, on appeal, the issue of a speedy trial.23 However, an accused's failure to assert this right at the trial level has been held by the Court of Military Appeals in United States v. Buck and United States v. Hounshell to preclude its consideration on appeal."

While these two cases have not been expressly overruled, their scope as a precedent appears limited in view of a later board of review case, and a recent decision by the Court of Military Appeals. A Navy Board of Review, when presented with an accused's assertion of a denial of speedy trial, stated:

That the question was first raised at the appellate stage of proceedings give us no trouble. The right to a speedy trial is set forth in the Sixth Amendmennt of the Constitution. That right is made a part of military due process by the Code and the Manual... [T]he waiver must be an intelligent one and whether there is a waiver or not depends upon the particular facts and circumstances including background, experience and conduct of the accused. Most recently, the highest military tribunal decided that a delay of 95 days in preferring charges against an accused was not waived, notwithstanding a failure to raise the issue at trial and a plea of guilty." The court acknowledged the right to a speedy trial can be waived and apparently hinged its decision on the point that a deprivation of due process of law was involved, at least where there was no showing of compliance with Articles 10 and 33, UCMJ, supra. The court said:

The issues of speedy trial and denial of due process are frequently inextricably bound together and the line of demarcation is not always clear."7

Although holding that there was no waiver, the court further ruled that the Board of Review erred when it summarily dismissed the charges against the accused on the single factor of delay in preferring charges. The court pointed out that the Government, because the issue was not raised at trial, was never afforded the opportunity to present its side of the issue and remanded the case for further proceedings.

Another area of doubt arises from the observation by Judge Quinn that in the federal courts if the accused does not demand a trial he waives his objection to lack of a speedy trial.28 While the foregoing is not a holding in Hounshell the case has been cited for this principle.20 However, later cases have placed a seed of doubt in the applicability of that rule in the military system. In comparing the federal rule of waiver to that in the military, Judge Quinn stated in dicta:

In the military, application of the rule of waiver, where the accused is confined, has little to recommend it. As this Court pointed out in the Hounshell case, supra, page 7, an accused confined in the stockade or brig may "not know of, and therefore be unable to insist upon," his right to a speedy trial. In such circumstances, it would be unjust to indulge in the presumption (Continued on page 296)

23. United States v. Davis, 11 USCMA 410, 29 CMR 226 (1960). 24. United States v. Buck, 9 USCMA 290, 26 CMR 70 (1958); United States v. Hounshell, supra.

25. United States v. Cox, 26 CMR 764 (1958).

26. United States v. Schalck, 14 USCMA 371, 34 CMR 151 (1964). 27. Ibid.

28. United States v. Hounshell, supra, note 21.

29. United States v. Brown, supra, note 20; United States v. Vargas, 28 CMR 893 (1959); United States v. Dolph, 30 CMR 665 (1960).

Office of Register and Recorder, Court House in county where license was issued. Bureau of Demographic Registry and Statistics, Department of Health, San Juan, Puerto Rico. Division of Vital Statistics, State Department of Health, Room 353, State Office Building, Providence 2, Rhode Island; or

Clerk of city or town
where marriage was per-
formed.

Since July 1, 1911:
County Probate Judge
where license was
issued; or Since July 1,
1950: Bureau of Vital
Statistics, State Board
of Health, Calhoun
State Office Building,
Columbia 1, South
Carolina.

Division of Public
Health Statistics, State
Department of Health,
Pierre, South Dakota;
or Clerk of Court in
county where marriage
was performed.

Since July 1945: Divi-
sion of Vital Statistics,
State Department of

Public Health, Cordell
Hull Office Building,

Nashville 3, Tennessee.
Prior to July 1945:
County Court Clerk of
county where license
was issued.

County Clerk of county where license was issued Clerk of Court in district where marriage occurred.

County Clerk of county where license was issued Office of Secretary of

State, Montpelier, Vermont; or Clerk of town or city where license was issued. Since 1853: Bureau of Vital Statistics, State Department of Healt 1227 West Broad Stree Richmond 20, Virgini

RELIEF ACT

Varies..

Court Clerk of county or city where license was issued.

Judge of Police Court, Christiansted, St. Croix, Virgin Islands.

Judge of Police Court, Charlotte Amalie, St. Thomas, Virgin Islands. County Auditor of county where license was issued.

County Clerk of county where license was

issued.

Since 1840: Bureau of Vital Statistics, State Board of Health, Madison 2, Wisconsin. Since May 1941: Division of Vital Statistics, State Department of Public Health, Cheyenne, Wyoming. Prior to May 1941: County Clerk of county where license was issued.

(Continued from page 286) cases even though the State law defines situs of personal property for tax purposes in such a way that under section 514 of the Soldiers' and Sailors' Relief Act, the property could be considered as continuing to be subject to tax in the serviceman owner's home State, no matter where it is physically located while he is absent from his home State pursuant to orders.

Legal assistance officers should not attempt to predict how strictly a State law will be enforced. If the home State of an individual imposes personal property taxes, advising the individual to write to his local assessor is the recommended procedure. If the reply exempts him, this letter should of course be preserved in the event there is a change in administration and enforcement policies. Usually there is no statute of limitations if a return has not been filed and the letter routine may serve to protect the man against taxation for prior years.

An example of a change in adminisrative policies under a State law is illustrated in a recent California case. For years service personnel who have claimed California as their State of domicile, have been advised that they must continue to pay income taxes to California until they abandon California as their domicile and establish or acquire a new domicile in some other State by reason of personal intent and

actually living in the new place of domicile with all the other factual support required for a change of domicile.10 The California income tax regulations stated:

11

Any individual, a resident of this State prior to his departure herefrom under military or naval orders, will be deemed to remain a California resident . . ." In a recent case, decided by the California State Board of Equalization, December 11, 1963,12 the facts were as follows: Mr. Naylor, a resident of California entered the Armed Forces in 1942; he elected to make the service a career and served in Texas, Japan, Pennsylvania and Arkansas; he married a Georgia resident, had children, moved his family with him on transfers and was active in the affairs of the communities where they lived. He visited his parents in California less than once a year during his military career, but filed his federal income tax returns with the District Director of Internal Revenue in Los Angeles and had his father handle his stock accounts. There is no indication in the decision whether the serviceman voted during this period or whether he had any intent to abandon California as his domicile and to establish it elsewhere.

The Board of Equalization assumed, without deciding, that the serviceman remained domiciled in California throughout the 9 year period for which State income taxes had been assessed. The Board cited section 17014 (formerly 17013) of the Revenue and Taxation Code of California, which provides that the term "resident" includes 66 .. every individual domiciled in this State who is outside the State for a temporary or transitory purpose. . ." and held that under that section the serviceman in question was not a "resident" for the purposes of taxation.

The California Board of Equalization considered section 514 of the Relief Act, supra, regarding domicile, but held:

Thus, while a State may be authorized under the federal provision to lay a tax on individuals who originally resided or were domiciled in that State, prior to their leaving such State under military orders, it need not so tax them. California has adopted a definition of the term "resident" which does not include persons such as appellant, who are absent for other than a temporary or transitory purpose.

The Board went on to hold that the California income tax regulation, quoted above regarding continuing income tax liability of a domiciliary

10. See citations to note (5).

11. Cal. Admin. Code, Title 18, Reg. 17014-17016 (h) (formerly 17013-17015 (h)).

12. CCH, California Tax Reports, par. 202-310, Appeal of Harold L. and Mariam Jane Naylor, Cal. State Bd. of Equalization, Dec. 11, 1963.

66

of California while in the Armed Forces, is clearly erroneous and, therefore, cannot be considered as controlling." The serviceman concerned was exempted for back taxes for the years 1950 through 1958.

A great many service personnel have been assessed and have paid State income taxes to California for the years since 1949, and have had career patterns very similar to that of the officer involved in the above Board of Equalization decision. Whether there will be an appeal and, if so, whether the decision will be sustained and whether claims for refunds by other service personnel would be honored, assuming the Board's decision is not reversed, can not be predicted. When the questions are resolved one way or the other, the Judge Advocate General will very probably issue some form of notice to advise Californians in the Navy of their rights and obligations to their home State.

The California Board of Equalization decision in the Naylor case, supra, illustrates how an administrative interpretation of long standing can be changed and why it is extremely difficult to advise service personnel of their tax obligations to their home States. They are very much on their own in resolving any questions with their home State authorities. It is doubted that, as between a serviceman and his admitted State of domicile, there would be any federal question under the Relief Act that would authorize or justify the Department of Justice's intervention, as was done in the Bottomley case, to determine liability under the home State's laws, for income or personal property taxes.

With respect to the general question of domicile, the California Board of Equalization in the Naylor case does not make a decision. The Board stated it made no determination as to domicile, but that assuming the appellant's domicile remained in California, he was no longer a "resident for tax purposes." In another recent California case, where taxes were not involved, the California Court of Appeals 13 found that a serviceman had not lost his California domicile.

In this case, the serviceman entered the service in 1954 at the age of 19, his parents then living in San Jose, California. While he was serving and living in Nebraska, after being married, the serviceman's parents moved in 1958 to Los Gatos, California. The serviceman and his wife visited his parents at Los Gatos about one year after the move and the following year, 1960, the serviceman and his wife voted 13. Coltran v. Town Council of Los Gatos, 26 Cal. Rep. 319 (1962).

in California by absentee ballot, listing Los Gatos as their residence.

In an annexation proceedings the question of the serviceman's domicile was litigated. The court took the position that the serviceman intended to retain the residence of his father and mother and did not lose the original residence of his parents by merely entering military serv ice. He made no attempt to establish a permanent residence elsewhere and living with his wife in Nebraska was temporary. The court concluded that the serviceman's residence remained with his parents, even though they had moved to Los Gatos in the interim, since, after attaining the age of 21, he did not acquire a residence of his own. The wife's residence was held to follow the husband's. The contention that the serviceman retained San Jose as his residence, though his family had moved to Los Gatos, was held by the court to lead to an absurdity if accepted.

JAG NOTICE 5840 of 24 December 1963 and SECNAVNOTE 7220 of 9 November 1963 report that in accordance with Bureau of the Budget Circular A-38 of 4 August 1963, military earnings are to be reported to the serviceman's State of domicile. This will very probably influence some to attempt to shift their domiciles to States with no income tax. As pointed out in previous JAG Journal articles,1 attempts to shift domicile may result in assessments in more than one State on the same income or property, especially where the bona fide intent, supported by facts, does not clearly establish domicile in one State as opposed to another. Seek legal assistance before you act.

RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN-Mexican Divorces and Void Marriages

In two recent cases the Comptroller General was asked to rule upon the spouse's eligibility to share as beneficiary under the Retired Serviceman's Family Protection Plan (formerly the Contingency Option Act), 10 USC 1431-1446. In the first, Decision B152506 of January 30, 1964, the problem was whether annuity payments to a widow who had remarried might be reinstated following the annulment of that marriage on the grounds that it was "void."

Under the provisions of subsection 1434 (a) of the act, the annuity which a service member may elect to be paid to or on behalf of his widow terminates when she dies or remarries. In his previous decision B141945 of March 21, 1963, the Comptroller had decided that in cases where a "voidable" remarriage was annulled payments could not be reinstated on behalf of the remarried widow. The present case presented a marriage void ab initio, that is, one which created no legal relationship between the parties and which, under law, they could not subsequently ratify.

Citing the practice of the Veterans Administration in similar cases, the Comptroller concluded that in the case of an absolutely void remarriage the annuity under the Family Protection Plan could be reinstated. Despite the fact that the marriage is initially void, however, and does not actually require a judicial decree to be legally terminated, the payments should not be restored until a judicial decree has been rendered or the Comptroller has ruled on the case. In addition, the widow's payments should not be reinstated following a void remarriage for any period for which annuity payments were made on behalf of children based on the purported remarriage.

In the second case, Decision B-153183 of February 14, 1964, a Navy enlisted member made an election in favor of his wife, and was informed that because her first marriage had been terminated by a Mexican divorce she would not be recognized as an eligible beneficiary under the plan until he obtained a judgment from a court of competent jurisdiction validating their marriage. When the member was transferred to the Fleet Reserve monthly deductions from his retainer pay were made for the elected annuity pending the determination of validity, but because of defective service of process on the former husband it became impossible to domesticate the Mexican divorce.

The wife then obtained a divorce decree from her former husband in a California court. The following year the member brought an action for annulment against her in the same state. That court found him estopped to question the validity of their marriage because of his participation in helping her obtain the original Mexican divorce. The parties later became reconciled and went through another marriage ceremony

in California. The question was whether as of the date the member was transferred to the Fleet Reserve and monthly deductions commenced, his wife was his legal spouse for purposes of eligibility under the plan.

The Comptroller noted that the California court had only found the member estopped to assert the invalidity of his marriage, and that the marriage did not thereby become valid. By their conduct the parties themselves could not contest the contract, but third parties, including the Government, were not so estopped. As of the date of election, the marriage was subject to question, was questioned by the Navy, and was not validated by the subsequent California divorce and remarriage. Thus at the date the member became entitled to retainer pay, he did not have a spouse within the meaning of the act. Deductions from his pay were ordered stopped, and all amounts withheld ordered refunded. (Comp. Gen. decision B-153183 of 14 February 1964.)

PAY AND ALLOWANCES-Correction of records to show active duty; deduction of amounts earned in private employment during same period

● In his Decision B-152215 of September 9, 1963 (see JAG Journal, January 1964, p. 219) the Comptroller General met the problem of an officer honorably discharged from the Regular Navy, whose records had subsequently been corrected to show an additional two years of active duty and his retirement as a Regular officer. He was thereby credited with active duty pay and retired pay for the respective periods. In the meantime he had been employed by various agencies of the Federal Government in a civilian capacity for which he had received $44,312.48 as salary. The Comptroller held that as a result of the correction of his records he had violated 5 USC 62 (the Dual Employment Act of 1894, which prohibits the concurrent holding of two Federal offices to which compensation is attached if the compensation attached to either equals or exceeds $2,500 per year), and was thus indebted to the Government for the full amount of compensation received by him from Federal civilian employment during those years.

The Comptroller most recently considered the question whether a similar problem exists when a member's records are corrected to show active duty, either for continuation of military service or for the interim period immediately preceding retirement, when the member has been privately employed in the interim (Decision B152421 of 18 February 1964). Citing several recent Court of Claims decisions relying on Egan v. United States, 141 Ct. Cls. 1, 27 (1958), he noted that the court had in cases of erroneous or illegal discharge from the service awarded the plaintiffs all military pay and allowances which would have fallen due less their earnings from civilian employment during the same periods.

The Comptroller found further precedent in the principle of contract law that in an action by an employee