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from the facts are questionable, the findings of fact and opinions of the investigating officer will often form the basis for administrative rulings by appropriate reviewing authorities which can affect the terms of service and compensation of the personnel involved, as well as possibly obligating the Government to pay various disability or survivorship benefits for an undetermined length of time. As a result, any determination favorable to an individual serviceman which is based upon false information can cause the Government to suffer unjustifiable loss.

In addition to line of duty aspects of a given inquiry, the services have been given the responsibility for asserting and collecting claims for medical treatment afforded military personnel and their dependents injured as the result of the negligence of third parties under the Medical Care Recovery Act.89 In the event a serviceman provides false information to protect himself or to shield others from responsibility, he may cause the Government to erroneously assert a claim or to fail to assert a proper one. In either case the Government will suffer financially and this may be aggravated by adverse publicity in the event of an erroneous claim. The same is true in cases involving injuries to civilians resulting from the negligence of military personnel where the Government is required to honor just claims.

Certainly, there can be no question concerning the potentially perversive effect of false statements upon necessary governmental functions in the foregoing situations. However, under the Manual of the Judge Advocate General of the Navy,any military person whose conduct is subject to inquiry in an investigation must not only be advised of his rights under Article 31, UCMJ, but also, if the inquiry involves personal injury or disease, he must be warned of his right not to make any statement relating to the origin, incurrence, or aggravation of that injury or disease.91 Additionally, the JAG Manual provides that, in any line of duty investigation, there is a strong presumption that the injury or disease in question was incurred in the line of duty and not due to misconduct, which can only be rebutted by clear and convincing evidence to the contrary. Therefore, there is never any prescribed duty upon a party to make a statement in such proceedings. Accordingly, if a literal construction of the present Court of Military Appeals decisions regarding Article 107 is applied to false statements under those circumstances, such

statements can never be considered to be "official”.

A similar situation exists with regard to statements concerning indebtedness. Every military installation is plagued by complaints of indebtedness pertaining to command personnel. Under service regulations such complaints are made matters of official concern and commanders are required to answer such inquiries. If the individual serviceman refuses to resolve his problems satisfactorily, the commanding officer must take appropriate administrative or disciplinary action. Naturally, the volume of this correspondence makes it mandatory that the individual commander delegate this responsibility and, normally, it is assigned to either the station legal, personnel, or administrative offices. An untold number of hours are spent on a given station interviewing personnel who are the subjects of complaints, determining the alleged debtor's position regarding the obligation, and writing the creditors to explain the service's position in such matters. The same is true in the case of complaints of nonsupport. Where false information is given, the difficulties are compounded and often result in a substantial waste of time and effort on the part of military authorities. Here again, however, the Bureau of Naval Personnel Manual clearly provides that the individual can only be requested to make a statement concerning his indebtedness and failure to comply with any such request cannot be made the grounds for disciplinary action." Consequently, there is no duty on the individual to make a statement in this instance.

Furthermore, the Court of Military Appeals has, perhaps reluctantly, reversed a conviction for a false official statement under these exact circumstances in United States v. Davis,94 and a Navy Board of Review did so without any question in United States v. Colby.95 The basis for these two holdings was purely and simply the fact that there was no duty on the part of the individual to make such a statement. Nevertheless, in all the foregoing situations, only very remotely is there ever any aspect of criminality or criminal investigation involved. The interested parties are afforded rights which include and often exceed those in Article 31, UCMJ. The potential direct financial loss to the Government, coupled with wasted time and effort and indirect expenses, in the event of actual or attempted deception cannot be refuted. In view of the foregoing, it is considered that, while the Aronson doctrine has possible merit as to state93. BuPers Manual, art. C-11104A. 94. Supra note 47. 95. Supra note 57.

93

92

89. 42 U.S.C. 2651-2653. 90. JAGINST. P5800.7. 91. Id. sec. 0306. 92. Id. sec. 0808(b).

101

ments given in criminal investigations, any further extension of that rule by the Court of Military Appeals and/or the Boards of Review into the area of purely administrative inquiry would be unrealistic and not in accord with the prevailing view of most federal courts concerning the scope of 18 U.S.C. 1001, the announced equivalent of Article 107. To the extent that the doctrine has been applied to false statements regarding indebtedness complaints, it is believed that there was insufficient consideration of the consequences and no consideration of the later federal decisions interpreting 18 U.S.C. 1001.

The Court should reassess the rationale of United States v. Aronson 16 and the subsequent decisions based thereon at the earliest possible opportunity. The fact that the Court's decisions since 1957 concerning Article 107 are the product of its reliance upon a federal decision which has been almost unanimously rejected throughout the federal judicial system practically demands such action. Additionally, the obvious confusion regarding the applicability of that Article currently existing among the Boards of Review and the military services in general is also persuasive for immediate reconsideration. In this regard, it is suggested that the decision in United States v. Citron 97 provides an extremely intelligent and reasonable interpretation of 18 U.S.C. 1001 and is admirably suited for use by the Court of Military Appeals in construing Article 107. In Citron the defendant was charged with violating 18 U.S.C. 1001 as the result of a false representation to a Treasury Agent about the payment of certain taxes. The Court denied a motion to dismiss the indictment based on a contention that the statute was not meant to cover false exculpatory answers made to federal investigators. In its decision the Court admitted that several cases, including United States v. Davey " and United States v. Stark,oo had adopted this view. However, the Court stated :

* The Court of Appeals of this Circuit has suggested that such a rule upon appropriate facts might have application, albeit a narrow one, in excluding from Section 1001 “(t)he case of the citizen, who replies to the policeman with an exculpatory 'no'* * *.” United States v. McCue, 301 F. 2d 452, 455 (2d Cir.,

1962), citing Davey and Stark, supra.“ The Court observed that this potential exception to 18 U.S.C. 1001 was based upon the history of

the statute as one seeking to prevent the administration of governmental programs from being subverted or frustrated by false representations of those involved. It continued by saying:

* Although the line between "administration" and “investigation" cannot always be sharply drawn, it is arguable that the statute was not intended to require, in every conceivable situation of its kind, a citizen to answer truthfully questions put to him in the course of police or other criminal investigation. Otherwise, the statute would give powerful impetus to inquisition as a method of criminal investigation. The exact scope of this possible “investigative exception" to Section 1001 has not been established to my knowledge; more important, its potential application would turn in any event upon the peculiar facts of a

given case. The Court concluded that the defendant's contention was theoretical and its resolution had to be deferred until the full development of all the relevant facts.

It is considered that this interpretation of 18 U.S.C. 1001 places the statute in proper focus and perspective, recognizing all the basic rights and interests which may be involved in a particular case. The same would hold true in the case of Article 107. By distinguishing between actions in the nature of criminal investigation and those pertaining to purely administrative matters, a far more realistic approach can be had toward establishing the limits of Article 107 than that currently in effect.

The concept that the "officiality" of a particular statement must be assessed from the standpoint of all individuals involved in a proceeding as well as that of the Government is artificial, strained and fraught with problems. So, too, is the requirement that the individual must be under a duty or obligation to give information before a statement may be considered to be “official”. The first sentence of the Manual discussion regarding Article 107 provides that “(0)fficial documents and official statements include all documents and statements made in the line of duty.” 102 It is submitted that the Court of Military Appeals has construed the term "in the line of duty" as meaning "under duty" and has then taken this construction as the standard by which “officiality” is to be tested. This is considered to be unrealistic. The line of duty concept is not always synonymous with having a duty. It is, in fact, often far broader. Injuries occur to service personnel in or out of the line of duty regardless of whether the individual serviceman is actually on duty or off. A finding of “in line of duty" may be made even 101. Ibid. 102. MCM 1951, par. 186.

100

96. Supra note 15. 97. Supra note 75. 98. Supra note 68. 99. Supra note 18. 100. Supra note 75 at 455.

in instances where the individual's conduct may be violative of some local criminal statute or even the Code and regardless of whether the serviceman is in a duty status or on liberty. Additionally, Article 31 gives the serviceman the right to refuse to make a statement as to actions which may be within the line of duty. However, it cannot be argued that the mere fact that the individual may refuse to speak changes the nature of his activities from being in the line of duty to something else. Accordingly, it is considered that the Court's interpretation of the term "in the line of duty” is erroneous.

It is apparent that the vast majority of federal courts have recognized by their rejection of the rationale expressed in United States v. Levin 103 that the scope of 18 U.S.C. 1001 cannot be measured by the obligation or lack thereof on the part of interested parties. The Court of Military Appeals should do likewise with respect to Article 107. Although the protections afforded an individual must be vigorously guarded, the interests of the Government are also a matter of major concern and must be served to the greatest extent possible without infringing upon the rights of the individual. An optimum balance of interests and rights must be struck. This can be accomplished by an adoption of the principle that an administrative proceeding based upon a lawful statute or military regulation is an official governmental function as to all interested parties and all statements made therein are equally official for the purposes of Article 107. From this general principle an exception can then be created as to statements made during criminal investigation or proceedings held primarily with a view toward criminal detection and prosecution. Statements obtained in these circumstances could easily be excluded from the purview of Article 107 and this would retain the underlying concept of the Court's dicta in Aronson 104 and its decision in United States v. Washington,105 without creating barriers in the taking of appropriate action when false statements are made in other administrative proceedings.

Naturally, there would be instances wherein a so-called administrative inquiry might develop facets of a criminal investigation. However, that particular situation could be resolved upon the facts developed at trial, just as military courts must determine the admissibility of confessions or the sanity of an accused. Should a court-martial decide that a statement was made

under circumstances amounting to criminal investigation, it would be required to dismiss the action on motion or return a finding of not guilty as to any Article 107 charge. On the other hand, if a determination was reached that the action was basically an administrative inquiry without a criminal investigative purpose, a conviction for violation of Article 107 would be appropriate, even if the inquiry might have resulted in the discovery of some evidence of criminal conduct by an interested party. Of course, any such finding would be subject to appellate review to the same extent as any other judicial determination.

The results engendered by the adoption of this approach to Article 107, as opposed to those produced by present judicial interpretation, would be manifold and extremely desirable. It would eliminate the current uncertainty concerning the scope of Article 107, and at the same time, establish definite guidelines as to the applicability of the Article for those involved in the administration of military justice. It would also bring the Court of Military Appeals decisions into line with the current thinking of federal courts toward 18 U.S.C. 1001, the civil equivalent of the Code provision. Finally, it would eliminate any question as to the Government's right to take appropriate disciplinary action in instances in which necessary administrative proceedings are perverted by false information, but it would continue to protect individual servicemen from the threat of inquisitorial criminal investigation. This, in turn, would result in obvious advantages to the Government, such as more effective and accurate administrative determinations with resulting savings in time, effort and money. In view of the current status of military law concerning Article 107, the only existing protection of the Government's interest in administrative matters in general rests entirely upon the fortuity that those personnel conducting administrative inquiries will not only have the legal right to administer oaths in the performance of their duties but also the foresight to do so when obtaining statements. This is an unfortunate situation and one which is considered to be entirely unnecessary. However, unless the Court of Military Appeals takes the initiative in reassessing its position as to Article 107 those concerned with the administration of military justice must, perforce, continue to view that Article with doubt and uncertainty, solely as the result of dicta in the decision in United States v. Aron

103. Supra note 17. 104. Supra note 15. 105. Supra note 22.

son. 106

106. Supra note 15.

RISK OF COLLISION

(Continued from page 144) tion usually indicates a change in direction of the approaching vessel's head and course, however, it is of little value in estimating "risk of collision", unless the relative positions of these lights are already known. Of course, the proper use and interpretation of shipboard radar would be an invaluable indicator in estimating the point at which vessels have approached each other so as to involve "risk of collision”.47 These are but a few of the known indicators that may be helpful to the mariner in determining the point at which "risk of collision” becomes applicable to his vessel. However, it is not intended here to cover all possible methods which may indicate "risk of collision”. This is because of the difficulty of defining "risk of collision", and the decisions of the admiralty courts referred to herein should leave no doubt in any mariner's mind that the sum total of all of the navigational facts and circumstances, in any given situation, must be fully considered before any proper determination can be made as to when vessels are so involved with each other as to present the "risk of collision".

However, in interpreting "risk of collision", in any given situation, the admiralty courts have developed a stark corollary to assist them in determining whether the "risk" was present. The corollary was first announced in this country in the MILWAUKEE case.48 There the court stated :

That the two vessels were meeting-end on, or nearly end on-so as to involve risk of collision, is clear from the evident understanding on the part of each at the time, else why the signals and the maneuvers by each? * * * The fact that each gave a signal intended to be given only in case of risk of collision, and, that each changed her course with intent to avoid a collision, makes it clear that in the judgment of each there was such a risk * * * But independently of this the idea that there was no risk of collision is fully exploded by the fact that there was a

collision.“ This corollary was also succinctly stated by the Supreme Court of the United States in another early case when the Court said:

The fact that the vessels did collide explodes the theory that there was no risk of collision, and, besides, why

did the mate port his helm if in his judgment there was no risk to it? He says this was done as soon as he saw the schooner. If so, he believed at the time that they might collide, and the possibility of it (colliding) is all that is required to charge the steamer, unless

she can establish that she was without fault." In a later case, another court stated the corollary thusly:

Risk of collision, that is the possibility of collision, was involved as is evident from the actual occurrence of collision. The CARROLL, 1868, 8 Wall. 302, 75 U.S.

302, 19 L.Ed. 392.62 The conclusion to be drawn from these, and other decisions stating the corollary, is painfully obvious. Where there is actual collision, it will be extremely difficult for the vessel guilty of violating the applicable rule of the road, embodying the phrase "risk of collision", to prove that the "risk" did not exist.

All of the decisions of the admiralty courts cited here have adhered to the earliest interpretations of the phrase "risk of collision”, namely, that the rules of the road are designed to prevent the "risk". Needless to say, prevention of "risk of collision" should prevent collisions themselves. In the light of the decisions concerning "risk of collision", it is obvious that the courts' interpretation of that phrase does not necessarily mean that collision be inevitable or even probable, nor even that there be danger of collision. All that is necessary to bring the particular rule into operation, and thereby impose a duty on the vessels to act accordingly, is the possibility of collision. This, it is suggested, is the key to the prevention of some collisions at sea. In a given set of factual navigational circumstances, involving two or more vessels, it becomes incumbent upon the mariners of each to ascertain, at the earliest possible moment, the point at which "risk of collision" exists. The earliest ascertainment of the "risk" should provide more than sufficient time and searoom for the vessels concerned to take the required action in accordance with the mandate of the rule then governing. This early ascertainment of the "risk”, and concurrent compliance with the rule, should prevent the twin agonies of close quarters and unpredictable maneuvering, which invariaably leads to confusion and its natural consequence, collision itself. It is assumed that no master of a vessel or commanding officer of a warship of the line, would disagree that the prevention of those agonies is the objective of all prudent seamen.

47. For a further discussion of this statement see the following

articles; Wylie, Interpretation and Behaviour in Using Radar at
Sea, Jour. Inst. Nav., Jan. 1965, p. 27; Wylie, Marine Radar
Development and the User, Jour. Inst. Nav., Apr, 1964, p. 187;
Oudet, FORUM: The Use of Radar, A Practical Suggestion,

Jour. Inst. Nav., Jan 1964, p. 88.
48. Supra note 21.
49. Id. at 431.

50. The Carroll, 75 U.S. 302, 305 (1868).
51. Matson Nav. Co. v. Pope & Talbot, 149 F. 2d 295, 298 (9th Cir.

1945).

1

RECENT DECISIONS OF THE COMPTROLLER GENERAL

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

DUAL COMPENSATION ACT OF 1964

The Dual Compensation Act of 1964 (5 U.S.C. 3101-3105) has passed its first year of operation and has been praised by the President as a success and significant improvement over the imbroglio of prior restrictions governing Federal civilian employment of retired service personnel (President's Report to the Congress of February 23, 1966.) During that period it has been interpreted and clarified in several decisions by the Comptroller General. In decision B–157665 of September 23, 1965, the Comptroller held that the Act's escalator clause, tying the retired pay formula to the Consumer Price Index, could be activated to raise the base figure for these computations by 4.4%. As a result, a retired Regular officer, retired prior to 1 September 1965, now employed in a Federal civilian position may receive the full salary of the civilian job, plus the first $2,088 of his military retired pay, plus one-half of any remaining retired pay. Officers retired after 1 September 1965 are limited to retention of $2,000, plus one-half of any remaining retired pay.

In several other cases the Comptroller has been asked to define more precisely what constitutes holding a Federal “civilian office or position" which will bring the Act into play. He ruled that retired officers who receive compensation for acting as attorneys for indigent defendants in Federal courts under the Criminal Justice Act of 1964 (78 Stat. 552) do not hold such an "office" even though they are technically appointed by the court and are traditionally considered “officers of the court" (Comp. Gen. B156344 of April 2, 1965). He later held that a retired Regular Army officer might be employed on a fee basis as an examining physician at an Army induction center (Comp. Gen. B-157457 of August 19, 1965). In that decision he also reached the sweeping conclusion that "fee basis contractual employment does not constitute a

civilian office" within the meaning of the Dual Compensation Act of 1964. In a still later opinion he held that employment by the U.S. Marine Corps Association was not subject to the operation of the Act because that organization was not a nonappropriated fund instrumentality of the United States (Comp. Gen. B–157727 of November 24, 1965).

One of the features of the new Act was an election provision affording retired members already employed in Government jobs the option to choose between adjustment of their retired pay under the new or the old dual compensation laws. In some situations, such as that of a retired Regular officer employed by a nonappropriated fund activity, this election was extremely valuable since such employment is included in the coverage of the new law but was totally exempt under its predecessor. A member electing continued coverage under the old law, whether it applied to him or exempted him, could maintain that status until "any appointment, reinstatement, or reemployment * * * which * * * follows a break in service of more than thirty days * * *”

In decision B-157200 of October 25, 1965, the Comptroller considered the case of a retired Air Force officer who already was employed by a nonappropriated fund activity when the new Act came into effect. He chose to remain covered by the old Act and thus in an exempt status. Within one month, however, his employer's designation was changed from nonappropriated fund to appropriated fund and he was given a GS Civil Service rating. With no interruption he continued to perform the same work at the same desk for the same employer, but the Comptroller ruled that since he was now paid from appropriated funds he had lost his exemption and was now subject to reduction in retired pay under the new Act.

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