The JAG JOURNAL is 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 approach and should be written in a manner readily understandable by the lay reader. The JOURNAL will return unpublished manuscripts if so requested, but responsibility for safe return cannot be assumed.

No

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

REAR ADMIRAL ROBERT H. HARE, USN Deputy and Assistant

Judge Advocate General of the Navy

LIEUTENANT COMMANDER GARDINER M. Haight, USN Editor

For sale by the Superintendent of Documents 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.

During recent weeks in implementation of "OPERATION SCRAP" the distribution of the JAG JOURNAL has been under study and revision. This was necessary because over the years, it had grown "just like Topsy" to fairly unmanageable proportions. As a result, there were undesirable duplications and, worse, lamentable omissions in our distribution list.

Obviously, in any distribution this largeover 9,000 copies of each issue-a certain margin of error is to be expected. It is our desire to keep the margin for the JOURNAL as small as humanly possible.

In our attempt to increase the efficiency of this operation, we will in the future adhere more closely to the Standard Navy Distribution List

(SNDL) for both address of the command and the quantity of publications to be sent. It is felt that only by standardizing in this manner can the greatest number of commands be reached and maximum efficiency achieved. As a consequence of this change, a command may receive more or fewer copies of the JOURNAL than previously. Should this work a severe hardship on your command, please write to the JAG JOURNAL, sending the mailing label from the envelope in which you receive the JOURNAL. Every effort will be made to supply every command with the number of copies it desires.

We trust this transition will be painless. Should there be any difficulties or problems in your case, please write to the editor.

UNDER

NDER THE CAREER Compensation Act of 1949 a member of the armed forces who is found to be unfit to perform the duties of his office by reason of physical disability may be entitled to disability retirement or separation with severance pay.1

A comprehensive system

for the evaluation of physical disabilities has been established within the Department of the Navy. It is designed to ensure that all personnel who suffer disability while entitled to basic pay shall be fairly and impartially evaluated. The cost of providing the extensive benefits of the Act to the large numbers of personnel who become entitled to them each year is substantial.

Thus, it is not surprising to find that the Act includes the following provision:

Each member of the armed forces who incurs a physical disability that, in the determination of the Secretary concerned . . . resulted from his intentional misconduct or willful neglect or was incurred during a period of unauthorized absence, shall be separated from his armed force without entitlement to any benefits under this chapter.3

This is not considered to be a punitive provision, but merely an exclusion of those who incur disa*Captain Perkins is currently the Director of the Civil Law Division in the Office of the Judge Advocate General. He is a graduate of Western Michigan University and the University of Maryland Law School. He is admitted to practice before the Court of Appeals of Maryland and the U.S. Court of Military Appeals. He is a member of the American Bar Association, the ABA Criminal Law Section, the Judge Advocates Association and is an associate member of the National Council of Juvenile Court Judges.

1. 10 U.S.C. 1201-1221.

2. In the latter half of calendar year 1964, 2,408 members of the U.S. Navy and Marine Corps (on active duty) were referred for physical evaluation. Of these, 30 were permanently retired, 1,201 were temporarily retired, 606 were separated with severance pay, 217 were discharged without benefits and 354 were returned to duty. (Invalidings and Aptitude Board Discharges, Navy and Marine Corps: 1946, BUMED-48, 3-64 and 4-64.) 3. 10 U.S.C. 1207.

bility under the specified circumstances from the benefits of the Act.

Pursuant to the authority contained in 10 U.S.C. 1216, the Secretary of the Navy has prescribed regulations for carrying out the provisions of this statute. These are set forth in the Disability Separation Manual, 1963 (DSM). A perusal of the regulations will reveal that a Physical Evaluation Board (PEB) is required to recommend findings as to the following issues:

(1) Whether the member is unfit to perform the duties of his office because of physical disability; (2) Whether the disability was incurred while the member was entitled to receive basic pay; (3) Whether the disability is due to intentional misconduct or willful neglect, or incurred during a period of unauthorized absence;

(4) Whether (a) the disability is the proximate result of active duty, or

(b) the disability was incurred in line of duty in time of war or national emergency, or

(c) the party has over 8 years' active service;

(5) If unfit, the combined percentage rating of his disability; and

(6) Whether the disability is or may be permanent.

The duties and responsibilities of the senior member, members, counsel for the board and counsel for the party are set forth in detail in Chapter 4 of the DSM. Inasmuch as this article is primarily concerned with the responsibilities of the counsel for the board," the statement

4. A National Emergency has existed since 16 Dec 1950. 50 U.S.C. App. Proc. No. 2914. As long as that proclamation remains in effect, a finding under (a) or (c) is not required in order to establish the entitlement of a member to benefits under the Act.

5. Thompson, Physical Disability Retirements-The Role of Counsel, JAG J., Feb 1954, p. 3, contains a discussion of the duties of counsel for the party.

of those responsibilities from DSM paragraph 0413 follows:

The officer designated as counsel for the physical evaluation board shall, in every case before the board, assemble, prepare, and present all available evidence which is relevant to the issues to be decided by the board. This shall include, but not be limited to, the medical records, investigation reports and courts of inquiry, and the current disciplinary status of the party concerned. He shall examine witnesses who appear before the board. In accordance with procedures prescribed by competent authority, he shall secure or request witnesses to appear before the board and shall obtain depositions, affidavits, or statements which may aid the board in its decision of the issues before it. He shall notify the board members, witnesses, counsel for the party, and reporter of the time and place fixed for the hearing to be held. He shall insure that the records of the party concerned are furnished to the medical witnesses for examination prior to the hearing and shall perform such other duties as may be required by the senior member of the board. It is his specific responsibility to insure that the board has before it sufficient information to ascertain as accurately as practicable the circumstances in which the party concerned incurred his disability, the extent of the disability, and where it appears that the disability existed prior to the party's entrance into active service, its extent at the time of entrance into active service, and all other pertinent circumstances relating to the party's disability. He shall, under the direction of the board be responsible for preparation of a complete, fully documented record of proceedings and shall, prior to the senior member, sign the record of proceedings as an authentication of its correctness. The standards of conduct required of the counsel for the board shall be the same as prescribed for counsel for naval courts-martial. (JAG Manual sec. 0135b) (Emphasis added.)

The review of numerous PEB cases involving injury due to an accident or an affray indicates a need for a greater awareness of the importance of the duties and responsibilities of the counsel for the board. The circumstances which prompt this view are probably due in part to the fact that the counsel for the board and the members are aware that the JAG Manual, Chapter VIII, requires a line of duty-misconduct determination in every case of injury (other than by enemy action) resulting in physical inability of a member to perform his duties in excess of twentyfour hours or where permanent disability may result, and, in instances of disease which are attributable to vicious habits or intemperance. The instructions pertaining to the JAG Manual investigation and those pertaining to PEB proceedings are contained in separate manuals. Consequently, the relationship between these two fact finding agencies frequently is not fully understood. The exact nature of the problem

is probably best revealed by an examination of some of the situations that have proved troublesome in the past. Examples have been provided in order to illustrate the varying needs of each particular situation.

Situation A. No line of duty-misconduct investigation was conducted by the man's command until after prompting by superior authority. In the meantime the PEB completed its proceedings, the record was forwarded to PRC, the party was transferred to a Naval Hospital and, after receiving maximum benefits of hospitalization, was sent home in an "awaiting orders" status.

Example. The medical report indicated that the party was well until he was involved in a fight and received a blow to the left eye. Shortly thereafter he noted decreased visual acuity in that eye. This description of the circumstances should have put the counsel for the board on notice that the line of duty-misconduct aspect of the case was deserving of more than cursory consideration. The party demanded a full and fair hearing at which he testified as to the nature and extent of his disability. The party did not volunteer any information relative to the circumstances of the incurrence and the counsel for the board did not question him. The PEB made findings of "in the line of duty, not due to own misconduct." The report of the JAG Manual investigation was received approximately two months later. Its findings were "not in line of duty, due to own misconduct." However, due to the belated appointment of the investigation, the party was not available and was not accorded his rights as such. Consequently, the adverse findings could not be approved.

Situation B. Party sustained accidental injury which did not immediately result in an inability to perform his duties for a period in excess of twenty-four hours. There was also an absence of any circumstance indicating that disability benefits might be claimed. No JAG Manual investigation was conducted.

Example. The medical report presented to the PEB contained a diagnosis of arthritis of the shoulder due to trauma. The medical history revealed that twenty-eight months earlier the party had been involved in an automobile accident. At that time he suffered a dislocation of the right shoulder with fracture of the shoulder blade. After reduction of the fracture the party was placed in a chest cast and returned to duty. The ensuing course of out-patient treatment was uneventful and no investigation or injury report was ever submitted. In the course of events, the party requested and received a full and fair

hearing before a PEB. The counsel for the board did not question the party concerning the incurrence of the injury which was the obvious cause of his disability. The finding of in line of duty-no misconduct rested on presumption only. Situation C. Party sustained an injury aboard a ship deployed overseas and was evacuated by air to the United States for hospitalization prior to completion of the JAG Manual investigation. (This is a recurring situation that poses many difficulties for the officer conducting the JAG Manual investigation in the field.)

6

Example 1. A crew member of a deployed ship was injured while on liberty. The investigating officer was unable to accord the injured man the rights of a party due to latter's air evacuation. The information obtained at the locus of the incident indicated the incurrence was due to the man's own misconduct. If the investigating officer had utilized the procedure outlined in "An Investigative Technique-Hearing on the Record" by Lieutenant Ronald C. Howard, USNR, it is quite possible that an approved finding of misconduct could have resulted. However, the ex parte statement submitted by the party, when the record was submitted to him pursuant to the provisions of the JAG Manual, section 0304d, contained substantial contentions of such a nature as to require further inquiry. Further inquiry being impracticable, the record was finally endorsed with a finding of "in line of duty, not due to own misconduct." After a lengthy course of hospital treatment and convalescence, the party appeared before a Physical Evaluation Board. The only evidence presented relative to incurrence was a copy of the JAG en bloc showing that the ultimate determination, based on the JAG Manual investigation, was "in line of duty, not due to own misconduct." The counsel for the board did not question the party regarding the circumstances of the incurrence. The PEB found that the party's injuries were incurred in line of duty, not due to own misconduct. Thus the procedural defects of the JAG Manual investigation were allowed to control the determination by the PEB. On the other hand, if counsel for the board had obtained the record of the JAG Manual investigation and placed

6. 16 JAG J. 41 (Mar-Apr 1962).

7

7. A French phrase meaning in one piece instead of in separate sections (Webster's International Dictionary, Second Edition). As used in this instance it refers to a document prepared in the Investigations Division that lists all those cases by name of individual member in which a finding of "in line of duty, not due to own misconduct" has been approved upon review of the investigative report in the Office of the Judge Advocate General. It does not contain any statement of the facts or the basis for the determination.

various items contained therein in evidence at the PEB, the party would have been obliged to rebut that evidence while subject to the hazards of cross-examination.

Example 2. A member assigned to an overseas base was injured by the discharge of his rifle. The member was available to the investigating officer at the overseas base for only a brief period prior to his evacuation to the United States. The investigating officer was of the opinion that the member's injuries were incurred as a result of his own misconduct. At a full and fair hearing before the PEB a previously prepared statement by the member was placed in evidence by his counsel. The circumstances of the wounding as related in the statement clearly negated any intentional misconduct or willful neglect. Counsel for the board did not question the party and the PEB found "no misconduct." The JAG Manual investigation contained a report of the explanation given by the party at the time of his admission to the hospital on the date of the accident and also a signed statement given by the party nine days later. During the course of review, it was discovered that there was a variance between these two accounts and that both of them differed from the statement which the party submitted to the PEB. Whether the earlier statements were available to the counsel for the board at the time of the PEB proceedings is not known. They were obtainable. As counsel for the board did not cross-examine the party regarding the circumstances of the incurrence, the latter was not required to reconcile the discrepancies among his three statements.

Situation D. A JAG Manual investigation was promptly appointed to inquire into the circumstances surrounding the injury of a member of the naval service. The investigating officer succeeded in collecting evidence indicating that the injury was incurred not in line of duty, due to own misconduct and a copy of the report, containing findings to that effect was made available to the PEB. The PEB, in reliance upon the findings by the investigating officer also made findings that the injury was due to the member's own misconduct, but the report and enclosures thereto were never placed in evidence during the PEB proceedings. During the course of the review it was determined that the member had not been accorded all the rights of a party during the JAG Manual investigation and the finding of "due to own misconduct" was disapproved.

Example. An example of this situation was considered by the Judge Advocate General with the result indicated by the following: