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Revenue Service that the rented house actually qualified as a principal residence, or else to reoccupy it as a bona fide principal residence, if possible, and sell it later.

nical help in preparing an income tax return. The subjects involved are so technical in nature that the taxpayer should resort to income tax instructions and publications for detailed advice.

STATE INCOME TAXES

SEARCH WARRANT

(Continued from page 45)

Compensation of Navy and military personnel, active or retired, is not subject to withholding for any state income taxes, but the amount must be reported by the Navy Finance Center to the state of a member's domicile or residence at the end of the calendar year. The pattern of state taxation of retired pay is too varied to present in a discussion such as this, but each affected retired member may obtain information from the income tax instructions or from the taxing authorities of the jurisdiction where he resides.

CONCLUSION This article has been presented in an effort to acquaint some and update other readers with the fact that additional tax problems and benefits follow separation from active service. It does not begin to cover all of the law on the subjects discussed, and is by no means intended as a tech

reversed.

Using this warrant to obtain evidence is really not cumbersome if we understand the mechanics. The important thing is to read and understand the controlling statute for your jurisdiction. Rule 41, Federal Rules of Criminal Procedure, governs federal warrants. Your governing state statute also ought to be checked. As we noted above, other law enforcement agencies use the warrant regularly. Even though their searches are not authorized by a “commanding officer" it would appear we could benefit from talking with them.

In summary then, it is suggested that it is wise to proceed cautiously and carefully in obtaining evidence for a criminal trial. If the circumstances permit, why not get a search warrant?

It is at least worth checking into and becoming familiar with the procedure.

RECENT DECISIONS OF THE COMPTROLLER GENERAL

Prepared by the Finance Branch, Office of the Judge Advocate General PAY AND ALLOWANCES_Octopus, radishes, rice and dried squid PAY AND ALLOWANCES— Officer discharged while on furlough • A Navy aviation mechanic was ordered on temporary • A Navy officer with over 18 years of service was duty to accompany an aircraft being shipped to repair

placed on furlough at half pay in accordance with 10 facilities at Sagita, Japan, aboard an LST owned by U.S.C. 6406 and was to be discharged for unsatisfactory the United States but manned entirely by Japanese

performance of duty pursuant to the provisions of 10 nationals. Life on board followed Japanese, rather than

U.S.C. 6384. The Comptroller's advice was solicited as Navy, customs, including sleeping accommodations and

to whether the officer might be considered to be in cuisine. Evidently forewarned of these circumstances,

receipt of basic pay under the discharge statute, and the member borrowed sheets and blankets to carry with

at what rate his lump-sum discharge payment should him and laid in a supply of canned goods and dried food

be calculated. to provide a minimum of the Western comforts to which he was accustomed. Upon completion of the trip, he

In decision B-153922 of May 20, 1964, the Comptroller requested payment of per diem, arguing that by Navy

ruled that under Title 37 a member is entitled to basic standards adequate berthing and messing facilities were pay when he is on active duty, and that an officer on not available.

furlough remains on active duty for pay purposes. He The Comptroller General in decision B-154065 of is entitled to basic pay during that period although payJuly 28, 1964, first noted that the Joint Travel Regula- ment is limited to the one-half rate. Since the lump-sum tions generally deny payment of per diem when tem

payment is computed on the basis of “two months' basic porary duty is performed on Government vessels since

pay at the time of discharge” multiplied by the number subsistence facilities are available there and their use

of years' service, in this case it must be calculated as will not entail the above-normal expenses for which it

one-half the basic pay of an officer of the appropriate is intended. He found in the JTR no provisions estab

grade with over 18 years' service. The Comptroller lishing quality standards against which the adequacy of

advised in conclusion that the basic pay of this officer, available subsistence facilities might be judged. Accordingly, he concluded that Government quarters and

who was already on furlough on the effective date of messing facilities were available, notwithstanding their

the Uniformed Services Pay Act of 1963, was not inOriental flavor, and denied the claim for per diem. creased by that Act. (Comp. Gen. Dec. B-153922 of (Comp. Gen. Dec. B_154065 of 28 July 1964.)

20 May 1964).

1

TRANSPORTATION ALLOWANCE-Travel prior to the effective

date of orders later canceled, revoked or modified

COURT OF CLAIMS DECISION

PAY AND ALLOWANCES—Enlisted member entitled to pay when

retained in service following expiration of enlistment in prison camp; not terminated by service of court-martial charges

Section 1 of the Act of December 23, 1963 (P.L. 88– 238, 77 Stat. 475), amended Title 37, U.S. Code, to provide that a member of the uniformed services is entitled to transportation allowances for himself and his dependents for travel performed before the effective date of permanent change of station orders which are later canceled, revoked or modified. Entitlement under this amendment was made retroactive to October 1, 1949, the effective date of the Career Compensation Act.

A lieutenant colonel of the Army was released from his assignment at Fort Dix, New Jersey, and ordered to report, following authorized leave, to a different station at the same base for further assignment to Germany. Because his request for concurrent overseas travel for his dependents was disapproved, he proceeded with his family to Bessemer, Alabama, to settle them in a permanent home. While at Bessemer he received authorization for the concurrent travel originally requested, received notification of his port call by telegram, and reported with his family at Brooklyn, New York, for overseas transportation as ordered. He was paid the transportation allowance only for the official distance between Fort Dix and Brooklyn on the grounds that his orders were amended prior to their effective date.

In his decision B-153654 of March 25, 1964, the Comptroller General reviewed this case in light of the above statutory amendment which became effective after the travel involved. The language of the statute authorizes payment of transportation allowances under section 404 of Title 37, and transportation of dependents, baggage, and household effects under sections 406 and 409, "... for travel performed before the effective date of orders that direct him to make a change of station and that are later-(1) canceled, revoked, or modified to direct him to return to the station from which he was being transferred; or (2) modified to direct him to make a different change of station."

The Court of Claims in its decision No. 497-59 of December 13, 1963, considered the claim of an enlisted member of the Army who had been a prisoner of war in Korea for nearly three years before being repatriated. Although his contract of enlistment had expired during the final year he was a prisoner, he was returned to military control upon his release and began a prolonged period of convalescence in Army hospitals in Korea, Japan, and Washington, D.C. During this time he continued to receive his regular pay. Upon reporting to Walter Reed Army Hospital for a physical examination following a period of leave at his home, the member was served with criminal charges alleging the offenses of aiding the enemy and misconduct as a prisoner of war, under Articles 104 and 105 of the Uniform Code of Military Justice. On that date, the Army discontinued his pay and allowances.

For five days member was held in confinement at the hospital and then at Fort Belvoir, Virginia until brought to trial before a general court-martial, which found him guilty and sentenced him to 10 years confinement, I total forfeiture, and dishonorable discharge. During his confinement under that sentence, the member submitted to the General Accounting Office a claim for Army pay from the date it was discontinued until the day preceding the date his sentence was approved by the convening authority. The Comptroller General disallowed his claim, stating that although he was properly paid while retained in the service for hospitalization and medical treatment, under authority of 10 U.S.C. 628(a), he ceased to be retained for those purposes once he was being held in confinement awaiting trial. In reaching this conclusion, the Comptroller relied upon his earlier rule that the pay and allowances of an enlisted person whose term of enlistment expires while he is in confinement, awaiting trial by court-martial, terminate on the date of the expiration of his term of enlistment unless he is acquitted.

Replied the Court of Claims, “this case boils down to the question whether the Government could terminate the plaintiff's entitlement to military pay and allowances by serving charges on him and placing him in confinement ... to await a trial before a courtmartial. It is my view that this question must be answered in the negative.” The Court dismissed the Comptroller's authority as inapposite because the member's enlistment had expired while he was in the hands of the enemy. He was at all times after his repatriation retained in the service for the Government's own purposes, and continued to be subject to the rules, discipline, and jurisdiction of the Army. Thus being in all respects a soldier, the Court concluded he was entitled to pay and allowances until the date his sentence of forfeiture became final by approval by the convening authority. His claim was therefore approved.

The Comptroller made clear the interpretation he intends to give the language "different change of station.” Evidently he has construed the phrase to mean only a different station, not different type of change. In this case the orders were modified from "concurrent dependent travel not authorized” to “concurrent dependent travel authorized," and it was solely because of this interim modification that the colonel in good faith incurred the expenses of moving his household to and from Alabama. In the opinion of the Comptroller, however, it is the station to which ordered that is controlling, and that factor was unchanged by the modification. The claim was accordingly denied. (Comp. Gen. decision B153654 of 25 March 1964)

U.S. GOVERNMENT PRINTING OFFICE: 1984

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Recent Decision of the Comptroller General

54 The Politico-Legal Factors of

55 Sea Lift Versus Air Lift

CAPT Leonard R. Hardy, USN
Getting the Most Out of the Captain's Mast

57
CAPT Benjamin R. Fern, USN
Why Study International Law?

61 CDR Larry G. Parks, USN

UNIVERSITY OF CALIFORNIA
The Investigating Officer and Party Rights

65 LT William R. Klein, UŠNR

FEB 2 5 1965
Does an Accused Have an Absolute Right To Refuse
or To Obtain a Change of His Guilty Plea?
CDR Charles J. Mackres, USNR

LIBRARY
Recent Supreme Court Cases Interpreting
the Right to Counsel

LT John Thomas Montag, USNR
Concerning the Legal Officer at the Small Command

77 LT Craig F. Swoboda, USNR

DAVIS

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THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE

NAVY

WASHINGTON 1

D.C. 20350

compensation can be paid for articles accepted and published.

Issuance of this periodical approved in accordance with Department of the Navy Publications and Printing Regulations, NAVEXOS P-35.

REAR ADMIRAL WILFRED A. HEARN, USN

Judge Advocate General of the Navy

The JAG JOURNAL 18 published by the Office of the Judge Advocate General of the Navy as an informal forum for legal matters of current interest to the naval service. The objective of the JAG JOURNAL is to acquaint naval personnel with matters related to the law and to bring to notice recent developments in this field.

The JAG JOURNAL publishes material which it considers will assist in achieving this objective, but views expressed in the various articles must be considered as the views of the individual authors, not necessarily bearing the endorsement or approval of the Department of the Navy, or the Judge Advocate General, or any other Agency or Department of Government.

Invitations to submit articles are extended to all persons, whether lawyers or laymen. Articles submitted should adopt an objective rather than an argumentative api and should be written in a manner readily anderstandable by the lay reader. The JOURNAL will return unpublished manuscripts if so requested, but responsibility for safe return cannot be assumed. No

REAR ADMIRAL ROBERT H. HARE, USN

Deputy and Assistant Judge Advocate General of the Navy

LIEUTENANT COMMANDER GARDINER M. HAIGHT, USN

Editor

For salo by the Superintendent of Documenta U.S. Government Printing Office, Washington, D.C., 20402 Price 25 cents (single copy). Subscription price $1.25 per year:

50 cents additional for foreign mailing.

RECENT DECISION OF THE COMPTROLLER GENERAL

Prepared by the Finance Branch, Office of the Judge Advocate General

PAY AND ALLOWANCES-Disability retirement and the Dual Com

pensation Act of 1932

A Navy commander was transferred to the Temporary Disability Retired List in 1959 by reason of arteriosclerotic heart disease, rated at zero percent disabling Pursuant to 10 U.S.C. 1210 the Secretary of the Navy subsequently determined that the disability had become permanent and was 40 percent disabling. Accordingly, the member was transferred to the Permanent Disability Retired List in 1964, but with the additional disabilities of spinal arthritis and perforation of the left ear drum. The latter condition had been suffered in combat during the Japanese attack on Pearl Harbor in 1941, and thus qualified for an administrative finding that it constituted an ception to the nomy Act of 1932 (The Dual Compensation Act, 5 U.S.C. 59a). That statute, repealed effective 1 December 1964, placed a $10,000 ceiling upon the combined annual income a retired Regular officer could receive as retired pay and salary from a Federal civilian office. It provided further that it did not apply to officers retired for disability incurred in combat with an enemy of the United States or caused by an instrumentality of war during a period of war.

Since the heart disease for which the member was placed on the TDRL did not meet these criteria but the ear perforation found at the time of his transfer to the PDRL did qualify, the question arose whether for purposes of 5 U.S.C. 59a the member was retired "for" the latter disability.

In his decision B-155090 of 13 October 1964 the Comptroller General noted that upon transfer to the TDRL a member enters a retired status/albeit a revocable one-and is entitled to receive retired pay within the meaning of the 1932 Act. Upon transfer to the PDRL due to change in circumstances, such as a change in percentage of disability, a recomputation of his retirement rate does not constitute a new retirement. His temporary retirement from active status merely becomes a permanent status, and it is "only the disability for which a member is actually retired” that may be considered in judging the applicability of 5 U.S.C. 59a.

This officer, he continued, performed satisfactory military service for nearly 18 years following the injury to his ear drum. The Navy apparently did not regard that injury, standing alone, as entitling him to disability retirement, nor was it considered when he was temporarily retired. Furthermore, upon establishing his final disability at 40 percent, that injury was not considered. Accordingly, the Comptroller concluded that merely listing that disability as one of the conditions for which the member was permanently retired did not justify a conclusion that he was retired "for" such disability within the scope of 5 U.S.C. 59a. For the effective life of that act, therefore, the member was subject to its restrictions upon receipt of retired pay. Presumably the same reasoning would apply to disability retirements for purposes of the Dual Compensation Act of 1964 (Public Law 88_448). (Comp. Gen. Dec. B155090 of 13 October 1964.)

THE POLITICO-LEGAL FACTORS OF

SEA LIFT VERSUS AIR LIFT

CAPT LEONARD R. HARDY, USN*

SE

EA LIFT VERSUS air lift. The proponents

and opponents of each have written and spoken thousands of words on the advantages and shortcomings of each. Glowing praise has been expounded on the virtues of the speed, flexibility and short reaction time of air lift. Equally vigorous and forceful comments have been heard on the tremendous capacity, reliability and long range capability of sea lift. The silence has been thunderous, however, on the international political and legal aspects of each.

Full and thorough consideration of those factors is most essential to an understanding of the usefulness of each type of lift. The difficulties posed by the political and legal elements of the movement of military forces may be overcome if fully understood. If not, they may pose as formidable and immovable barriers as any of the better known physical elements.

To understand fully these intangible elements of the problem, it is first necessary that we do a little homework in the fields of international law, international politics and geography.

For the purposes of our inquiry, the surface of the earth may conveniently be divided into three basic categories. First is land territory including internal waters; second is the territorial sea; third and largest is the high seas. This provides a simple and convenient framework to examine the scope and extent of national sovereignty in all parts of the world which are important from the standpoint of į troop lift and support. Excluded, of course, is

the Antarctic continent where claims of national $ sovereignty are temporarily suspended by multilateral treaty.

In land areas including internal waters, the sovereignty of a nation is absolute. Foreign ships may enter such areas and foreign aircraft *Captain Leonard R. Hardy, USN, is presently serving as Director of Legal Affairs, Staff Supreme Allied Commander Atlantic. graduate of St. John's University School of Law, Captain Hardy is a member of the New York Bar. His previous legal duties include: District Legal Officer, Seventeenth Naval District; Fleet Legal Officer, Sixth Fleet; Staff, Chief of Naval Operations; Force Legal Officer, Commander-in-Chief, U.S. Naval Forces, Europe; and U.S. Delegations, Conference on the Law of the Sea, Geneva, and Con. ference on Safety of Life at Sea, London.

may overfly or land in them only with the permission of the nation which owns them. The Chicago Convention made certain arrangements for the accommodation of overflight and landing rights of aircraft which imply a degree of mutual consent on the part of member nations to the operations in their territory of foreign aircraft. State owned aircraft, however, which includes all military aircraft, are excluded from the coverage of that convention.

In the territorial sea there is a distinction between what a foreign nation can do in the waters and what it can do in the air space over them. In the territorial sea, the sovereignty of the coastal state is virtually as absolute as it is in its land area. The only dilution of that sovereignty is the right of innocent passage. Under that right, foreign ships, including warships, may pass through the territorial sea in the normal course of navigation so long as the passage is not prejudicial to the peace, good order or security of the nation whose waters are being used. The exercise of this right may not include the conduct of military operations or material departure from the reasonably direct route through the territorial sea. The right of innocent passage may be subjected to reasonable regulations and may be temporarily suspended except in passages between two bodies of the high sea which have customarily been used as international waterways. Aircraft, however, do not enjoy any right of innocent passage through the air space over the territorial sea. Any foreign aircraft, be it military or commercial, must have permission before passing over the territorial sea of another nation.

The high seas and their adjacent air space are the community property of all nations, even those which have no coastline and are not littoral to the sea. Ships and aircraft of all nations have the absolute right to use the high seas and adjacent air space at all times and in any way they please so long as they do not unreasonably interfere with the rights of other lawful users of the same area.

One other facet of international law must be taken into consideration. Under the tradi

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