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JAG BULLETIN BOARD (Continued from page 30) the premise that, because retired enlisted men remain part of the service and are subject to recall to active duty during war or national emergency, "it appears proper to view them as holding an office of profit and trust under the Federal Government after retirement." • A later decision ruled that Fleet Reservists must be viewed the same way. While the Comptroller General conceded that the constitutional injunction bore no teeth, he stated that it could be given "substantial effect" by withholding the transgressor's retired pay in an amount equal to the foreign pay he had improvidently received. Presumably, the same penalty will be imposed in the future.

The constitutional restriction is overcome, of course, if Congressional consent is obtained. On occasion this has been accomplished by private legislation, whereby Congress has specifically sanctioned acceptance of a given job by a given person. Furthermore, all retired Reserve members, officer and enlisted, have been granted blanket Congressional permission to "accept employment and compensation from any foreign government or any concern wholly or partly controlled by a foreign government," subject only to the approval of the Secretary of their department.10 Accordingly, the Comptroller General has held that acceptance of employment by a retired Reservist, with the requisite Secretarial blessing, does not jeopardize the member's entitlement to retired pay.11

Peripheral questions have frequently arisen concerning the governmental character of the foreign employer. It is not difficult to predict that a retired officer may not accept a commission in the Royal New Zealand Air Force; 12 but also prohibited by the Constitution is employment by governmental agencies or educational or commercial institutions operated or controlled by a foreign government. For example, the Judge Advocate General has expressed the opinion that a retired officer may not accept a teaching position in an English-language high school operated by the Turkish government, even though a portion of the funds from which the officer would be paid were supplied by the United States under the Fulbright Act.13

6. Comp. Gen. B-154213, September 11, 1964.

7. Comp. Gen. B-155038, October 23, 1964.

8. Comp. Gen. B-154213, September 11, 1964.

9. See, for example, Public Law 403, 82d Cong., 1st Sess., 65 Stat. A 148.

10. Section 247, Armed Forces Reserve Act of 1952, 10 U.S.C. 1032. 11. 41 Comp. Gen. 751 (1962).

12. JAG: 134.1: HJW: sb Ser: 7695 of October 25, 1963. 13. JAG: 134: WEN: sb Ser: 489 of January 23, 1962.

The Comptroller General recently was asked whether a retired officer might become a professor of engineering at the University of Sao Paulo, Sao Paulo, Brazil, in light of a recent Brazilian statute purporting to grant the former state universities complete administrative and didactic autonomy. The university's financial support continued to come from the state. The Comptroller General concluded that the officer's employment was not unconstitutional, and would not affect his Navy retired pay, so long as he was reimbursed solely pursuant to a contract of employment with the university which was not subject to review by Brazilian government officials.14 In a similar case the Judge Advocate General advised an officer that some doubt existed whether he could become comptroller of New Asia College at the University of Hong Kong because that new university had been organized under an ordinance which appointed the Governor of Hong Kong as Chancellor and granted him further power to appoint other university officials.15

An additional limitation of foreign employment is imposed by Executive Order No. 5221 of November 11, 1929, which provides:

It is hereby ordered that no officer or employee in the executive branch of the United States Government, regardless of whether he is on annual leave or leave without pay, shall be employed with or without remuneration by any foreign government, corporation, partnership, or individual that is in competition with American industry.

There is no evidence that this order has been vigorously enforced during its 35 years. Certainly, it has outlived the protectionist period in which it was born. Steps are under way to secure its cancellation, but to date it remains in force and must be weighed by any officer considering employment abroad. The Comptroller General has concluded that it applies to retired Regular and Reserve officers, but has implied that employment contrary to its provisions will neither automatically terminate the officer's retired status nor affect his receipt of retired pay.16

A related issue-citizenship-also has undergone reinterpretation. The United States Supreme Court in Schneider v. Rusk 17 held unconstitutional that section of the Immigration and Nationality Act of 1952 which declared (Continued on Page 50)

14. Comp. Gen. B-152844, December 12, 1963.

15. JAG: 134.1: HJW: sb Ser: 2332 of April 16, 1964. 16. 41 Comp. Gen. 715 (1962).

17. 377 U.S. 163 (1964).

CRIMINAL LAW OF THE DISTRICT OF COLUMBIA-FEDERAL OR STATE?

W

CAPT IRVING D. LABOVITZ, USAF*

THE PROBLEM

HEN A SERVICEMAN violates a criminal provision of the District of Columbia Code while in the District, and this violation has no express counterpart in the Uniform Code of Military Justice, when, if at all, will a courtmartial possess jurisdiction to try the serviceman?

The Manual for Courts-Martial would seem to address itself to this specific question:

Crimes and offenses of local application.-Crimes and offenses which are listed in Title 18 U.S.C. but which are limited in their applicability to the special maritime and territorial jurisdiction of the United States as defined in Title 18 U.S.C. § 7, those applicable within the continental United States, and those included in the law of the District of Columbia, in the laws of the Territories or possessions of the United States, and in the Laws applicable in reservations or places over which the United States has exclusive jurisdiction or concurrent jurisdiction with a State, which are not specifically included in some article, are made applicable under Article 134 to all persons subject to military law who commit such crimes or offenses within the geographical boundaries of the areas in which they are applicable . . ¦ (Emphasis supplied.)

This provision of the Manual for CourtsMartial would appear to state, as a proposition. of law, that the criminal code of the District of Columbia is federal in nature, and thereby is punishable in a court-martial as a violation of Article 134 without further qualification." However, a close reading of the important cases which have interpreted 18 U.S.C. 7, from which the Manual appears to gain its authority, raises

*Captain Irving D. Labovitz, USAF, is a graduate of the University of Massachusetts and Boston University Law School. He is a member of the Bar of the Commonwealth of Massachusetts and District of Columbia. He is admitted to practice before the U.S. Tax Court, the U.S. Court of Appeals for the District of Columbia and the U.S. Court of Military Appeals. Captain Labovitz is presently the Assistant Staff Judge Advocate, Hq., 814th Combat Support Group (SAC), Westover Air Force Base, Massachusetts.

1. Manual for Courts-Martial, U.S., 1951, par. 213c (2); see also United States v. Long, 2 USMCA 60, 6 CMR 60 (1952); and Hall, Courts-Martial Jurisdiction Over Title 18, U.S. Code, and Other Federal Offenses, 15 JAG J. 3 (Jan-Feb 1961).

2. See MCM, 1951, par. 127c at page 214 for further reference to District of Columbia Code for punishment for offenses not listed in the Table of Maximum Punishments.

some distinct questions as to the validity of such an all-encompassing conclusion.3

Is it possible that a portion of the criminal law of the District of Columbia could be considered as the criminal law of an independent state, separate and distinct from the Federal Government? If this were the case, 18 U.S.C. 7 would not act to automatically place jurisdiction in a court-martial, but rather such courtmartial jurisdiction could result only after a determination had first been made that the particular violation of District law constituted a "disorder or neglect to the prejudice of good order and discipline, or conduct of a nature to bring discredit upon the armed force . . .” which would satisfy the requirements of Article 134, per se.

The intent of this article is to identify those areas in which Congress intended that the criminal provisions of the District law should be construed as federal law, as opposed to particular sections of the District Code in which it is here suggested that Congress indicated an intent to construe District law as the law of a separate political community, distinct from the Federal Government.5

DEVELOPMENT OF THE LAW

The District of Columbia is a geographic area with a peculiar political character, inasmuch as its legislative body is the Congress of the United States and all local law is the end result of Congressional enactment."

Although the District of Columbia is considered a municipal corporation, the District does not possess any solvent or legislative power. Congress alone holds full and unlimited jurisdiction to provide for the general welfare of citizens within the District of Co

3. 18 U.S.C.A. 7, par. 11, District of Columbia, pg. 463. 4. MCM, 1951, supra note 1; UCMJ, art. 134; see also United States v. Eagleson, 3 USCMA 685 at 690, 14 CMR 103 at 108 (1954).

5. See Air Force Manual 110-3, Civil Law, par. 50405, and cases cited, for a general discussion of the problems of federal jurisdiction; see also United States v. Rowe, 13 USCMA 302, 32 CMR 302 (1962); ACM 17905, Price, 32 CMR 812 (1962).

6. Neild v. District of Columbia, 2 F.2d 246 (D.C. Cir. 1940).

7. United States ex rel. Daly v. MacFarland, 28 App. D.C. 552 (1907); see also Croson v. District of Columbia, 2 F.2d 924 (D.C. Cir. 1924).

lumbia by any and every act of legislation which may seem constructive.

It seems clear that only specific Congressional provision to grant some degree of local autonomy separates the laws of the District of Columbia from those of the United States Government.

Congress has enacted such legislation to grant some degree of autonomy to the District.

The District of Columbia Code was passed by Congress and first signed into law by the President of the United States on March 3, 1901. In its most recent edition, the District of Columbia Code, 1961, states in its preface: This is the fourth edition of the Code of Laws of the District of Columbia prepared and published pursuant to Title 1 U.S. Code, Section 202. This edition contains all the general and permanent laws relating to or in force in the District of Columbia, on January 2, 1961, except such laws as are of application in the District of Columbia by reason of being laws of the United States general and permanent in their nature.

In the District of Columbia Code, Congress itself provided for areas in which the District might legislate as a separate entity, distinct from the Federal Government.

The District of Columbia Code states:

The District of Columbia is created as a Government by the name of the "District of Columbia" by which means it is constituted a body-corporate for municipal purposes and may contract and be contracted with, sue and be sued, plea and be impleaded. . . and exercise all other powers of a municipal corporation not inconsistent with the Constitution and laws of the United States and provisions of this Code. (Emphasis supplied) 10

Also, the District Commissioners, by the joint resolution of February 26, 1892, (27 Stat 392), were vested by Congress with legislative power to promulgate "reasonable and usual police regulations." Section 2 of the Act reads, in part:

... to make and enforce all such reasonable and usual police regulation . . . as they (the Commissioners) may deem necessary for the protection of lives, limbs, health, comfort, and quiet of all persons and the protection of all property within the District. It becomes increasingly evident that the laws of the District of Columbia are of a hybrid nature. More specifically, that certain violations of the D.C. Code may be violation of federal law, and that various other violations of the Code, and of D.C. Police Regulations might be construed as violations of the laws of an independent

8. Neild v. District of Columbia, supra note 6. 9. District of Columbia Code (1961), pg. xiv. 10. 1 D.C. Code § 102 (1961).

political community or state.11

The question was first considered by the Supreme Court in Metropolitan Railroad Co. v. District of Columbia 12 in 1889. The Court said:

It is undoubtedly true that the District of Columbia is a separate political community in a certain sense, and in that sense may be called a State; but the sovereign power of this qualified State is not lodged in the corporation of the District of Columbia, but in the government of the United States. Its supreme legislative body is Congress. The subordinate legislative powers of a municipal character which have been or may be lodged in the city corporations, or in the District Corporation, do not make those bodies sovereign. Crimes committed in the District are not crimes against the District, but against the United States. Therefore, whilst the District may, in a sense, be called a State, it is such in a very qualified sense. (Emphasis supplied) 13

Twelve years after Metropolitan, in 1901, Congress codified its intent by enacting 31 Stat. 1340 of the District Code which provided:

Prosecutions for violations of all police or municipal ordinances or regulations, and for violation of all penal statutes in the nature of police or municipal regulations, where the maximum punishment is a fine only, or imprisonment not exceeding one year, shall be conducted in the name of the District of Columbia and by the city solicitor or his assistants. All other criminal prosecutions shall be conducted in the name of the United States and by the attorney of the United States for the District of Columbia or his assistants. (Emphasis supplied.)

It would appear from this statute that Congress considered all police regulations (if not ultra vires), to be in the nature of municipal legislation and as such, regulations of a sovereign state separate and distinct from the federal law.

However, as to penal violations of the District of Columbia Code, Congress apparently set up a test to determine when violations of the D.C. Code would remain an offense against the District, as a sovereign body rather than a violation of federal law. Namely, only where the Code statute was in the nature of a police or municipal regulation and imprisonment, if any, could not exceed one year would the Code provision be construed as local rather than federal law.

The question arose next before the District of Columbia Court of Appeals in United States v. Cella.14 The Court of Appeals said:

11. Metropolitan Railroad Co. v. District of Columbia, 132 U.S. 1 (1889).

12. Ibid.

13. Id. at 9.

14. 37 App. D.C. 433 (1911), cert. denied, 223 U.S. 728 (1912).

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"We have said in the prior case that there can be no crimes against the District of Columbia, the District not being a sovereignty; that crimes committed here are crimes against the United States. Metropolitan R. Co. v. District of Columbia, 132 U.S. 1, . . . Congress, in the exercise of its plenary power, has prescribed the procedure to be followed in the prosecution of offenses in the District. It has ordained that prosecutions for violations of all police or municipal ordinances or regulations, and penal statutes 'in the nature of police or municipal regulations' shall be in the name of the District

"Looking to the context, and having in mind the probable intent of Congress, what is the scope of the words 'penal statutes in the nature of police or municipal regulations' as used in the statute under consideration?"

". . . While municipal ordinances or police regulations are binding upon the community affected by them, they do not emanate from the supreme power of the state, which is the exclusive source of all general legislation . . . When, therefore, Congress required prosecutions for violations of statutes in the nature of police or municipal regulations to be in the name of the District of Columbia, it undoubtedly had in mind such local regulations as were peculiarly applicable to conditions here existing. It did not, we think, intend to require or permit prosecutions under general penal statutes to be in the name of the District of Columbia, even though the territorial scope of such statutes was restricted to the District." (Emphasis supplied)

15. Id. at 435.

16. 23 D.C. Code § 101 (1940).

17. Morton v. Welch, 162 F.2d 840 (4th Cir 947).

18. 203 F.2d 579 (D.C. Cir. 1953).

19. Id. at 587.

19

The most recent re-statement of the statute can be found in the 1961 District of Columbia Code. It states, once again, the same substantive law as its two predecessors. The present statute reads, in part, as follows:

Prosecutions for violations of all police or municipal ordinances or regulations and for violations of all penal statutes in the nature of police or municipal regulations, where the maximum punishment is a fine only, or imprisonment not exceeding one year, shall be conducted in the name of the District of Columbia and by the corporation counsel or his assistants. All other criminal prosecutions shall be conducted in the name of the United States and by the attorney of the United States for the District of Columbia or his assistants.20 (Emphasis supplied)

PRACTICAL PROBLEMS

Practical problems surrounding the dualtype jurisdiction of the District of Columbia Criminal Code can often arise in areas such as: traffic violations, 21 all types of alcoholic beverage violations, 22 and some of the lesser types of criminal offenses, such as disorderly conduct or indecent exposure,23 among others, all of which must be prosecuted as crimes against the District of Columbia rather than as violations of federal law.

CONCLUSION

It is suggested that a successful objection to the jurisdiction of a court-martial over crimes such as those listed above could be made by defense counsel if the convening authority did not initially qualify such a violation as one which was a "disorder or neglect to the prejudice of good order and discipline, or conduct of a nature to bring discredit upon the armed forces..." 24, prior to incorporating the breach of District law into a court-martial.

As a final note, it is further offered that imaginative defense counsel might raise a further defense that a particular violation of the D.C. Code was not only a breach of mere local law, but was also an offense that did not even involve any of the necessary ingredients for qualification under Article 134, and thus was totally exempt from military prosecution. Although the writer must agree that the possibility of such an occurrence is rare, cases have been decided in related areas with just this result.25

20. 23 D.C. Code § 101 (1961).

21. 40 D.C. Code § 104 (b) (1961).

22. See D.C. Code §§ 125, 127, 128, 130 and 137 (1961) for various offenses common to courts-martial.

23. 22 D.C. Code §§ 1101 and 1112 (1961).

24. UCMJ, art. 134.

25. Hall, op. cit. supra note 1.

JAG BULLETIN BOARD (Continued from page 46)

that United States citizenship is lost by continuous residence for three years in a foreign country of which the person formerly was a national.18 Earlier, the Supreme Court had ruled that the Navy might not discontinue the retired pay of a member solely because he lived abroad, having first secured the permission of the Department of the Navy and having reported his address as required.19 Consequently, the Comptroller General ruled that an Air Force officer, born in England, did not lose his right to retired pay solely because of continuous resiIdence in the country of his birth.20

The Comptroller General has held that a retired Regular officer's right to retired pay is dependent upon continuation of his status in the Regular Navy, and that loss of citizenship is "inconsistent" with a continuation of that status.21 Later he reached the same conclusion with respect to a retired Reserve officer, on the theory that acquisition of foreign citizenship would make it impossible for the officer to execute his oath of office to defend the Constitution should he be recalled to active duty.22 The Comptroller General had likewise held that, since enlisted men of the Regular components remain a part of the uniformed services following retirement, their right to retired pay hinges upon a continuation of military status.23 Consequently, he recently decided that, while citizenship is not in all cases a prerequisite for enlistment in a Regular component of the services, should an enlisted man who is a citizen voluntarily acquire foreign citizenship such action would be inconsistent with his oath of enlistment "and so repugnant to his status as a member of the Armed Forces as to warrant a termination of his retired pay." 24 The conclusion is the same for a member of the Fleet Reserve, whether he assumes foreign citizenship before or after transfer to the permanent retired list of the Regular Navy.25

The Comptroller General has nevertheless reiterated that he will not question the right to retired pay of a retired alien enlisted member of a Regular component because of the member's "residence in a foreign country," absent some law or regulation to the contrary.26 This deci

18. Section 352, act of 27 June 1952, 8 U.S.C. 1484.
19. U.S. v. Gay, 264 U.S. 353 (1924).
20. Comp. Gen. B-153942, June 22, 1964.

21. 37 Comp Gen. 207 (1957).

22. 41 Comp. Gen. 715 (1962).

23. 38 Comp. Gen. 523 (1959).

24. Comp. Gen. B-154218, August 4, 1964.

25. Comp. Gen. B-155038, October 23, 1964. 26. Comp. Gen. B-154218, August 4, 1964.

sion accorded with a prior ruling that payment of retired or retainer pay to naturalized citizens of the United States of Japanese ancestry was not affected by their residence in Japan following transfer to the Fleet Reserve or following retirement; 27 and there is no reason to doubt that the same freedom still attaches to Philippine citizens who return to the Philippines to live after completion of their active military service.28

27. Comp. Gen. B-58879, February 27, 1947.

28. Comp. Gen. B-141571, December 30, 1959, and Comp. Gen. B-153942, June 2, 1964.

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SALE OF HOME-TAXPAYERS 65 OR OLDER

Under new rules provided by the Revenue Act of 1964, a taxpayer who sells his residence for $20,000 or less, on or after his 65th birthday, and which residence was owned and used by him as his principal residence for 5 of the last 8 years, may elect to exclude the gain from gross income. A proportional part of the gain must be taken into account if the home is sold for more than $20,000.

Special rules enable husbands and wives to take advantage of this exclusion if (1) the property is held as joint tenants, tenants by the entirety or community property; (2) they file a joint return for the year; and (3) one spouse satisfies the age requirements.

This provision of law makes it all the more desirable to postpone the recognition of gain on the sale of principal residences bought and sold during a serviceman's career in order to take advantage of this once-in-a-lifetime exclusion. Many, after reaching age 65, might decide that keeping up a house, yard and garden is "just too much" and an apartment or cooperative dwelling begins to look mighty attractive.

Not mentioned under the general rule discussed in the preceding section is the difficult case of convincing the Internal Revenue Service that a house which was rented, and not owner occupied, at date of sale constituted a principal residence. This new rule for elderly taxpayers makes it worthwhile to convince the Internal

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