First, I would like to say that I am speaking in an individual capacity and that any statement I make is my own, and does not represent the views of the Department of the Navy.

I also wish to indicate on the record that I have the approval of the Judge Advocate General of the Navy and the consent of the Secretary of the Navy to communicate with Congress and to testify at any hearings with respect to this matter.

My purpose in testifying on this bill, H. R. 5426, the Armed Forces Reserve Act of 1951, is to recommend that section 217 (c) be approved by this committee as it was approved by the Committee on Armed Services of the House of Representatives and subsequently by the entire House of Representatives.

Briefly I shall describe the history of this amendment. Two members of the Committee of Armed Services of the House of Representatives introduced two bills, H. R. 3843, introduced by Mr. Anderson of California, and H. R. 4201, introduced by Mr. Rivers, of South Carolina. Both of the above bills would grant similar benefits to Naval Reserve officers on active duty as have already been provided for officers of the Regular Navy. Rather than have the committee consider these bills separately, certain members of the committee urged me to propose an amendment which embodied the substance of these two bills at the hearings on the Armed Forces Reserve Act of 1951. Section 217 (c) is the proposed amendment. The purpose of these two bills was to provide a constructive service credit equtl to the time spent in attendance at professional school or in graduate study, and the corresponding lineal adjustment of rank for certain officers of the Naval Reserve similar to the service credit and the adjustment given to officers of the Regular Navy by the act of August 5, 1949 (Public Law 210, 81st Cong. ; 34 U. S. C. 211-B-1-5). The legislation that grants doctors and dentists a constructive service credit for their professional education is too well known to comment on. The legislation with respect to the idea or concept of constructive service for lawyers and other specialists is as follows:

1. Under the provision of the Officer Personnel Act of 1947, officers of the Regular Navy assigned to special duty in the fields of (1) communications, (2) law, (3) naval intelligence, (4) photography, (5) public information, (6) psychology, and (7) hydrography who are required to hold a graduate or professional degree and who were commissioned in the Navy after the enactment of that act have been initially commissioning as lieutenants (junior grade). This initial commissioning as lieutenants (junior grade) in affect grants these Regular Navy officers a period of constructive service for their 3 years of professional training.

II. In 1949, Public Law 210, Eighty-first Congress, granted to those officers of the Regular Navy who were also assigned to special duty in law, communications, intelligence, etc., who were required to hold professional or graduate degrees and who were commissioned in the Navy prior to the Officer Personnel Act of 1947, were also granted a period of constructive service added to the dates of their original commissions for time spent in attendance at a professional or graduate school. The lineal positions of those officers granted constructive service were adjusted to permt their advancement to positions on the lineal list commensurate with their age, professional training, and experience in their specialized fields. This act equalized positions of these Regular Navy officers to other officers in the Regular Navy, such as doctors and dentists, who are and have been granted constructive service for their specialized training. No provision of the Officer Personnel Act of 1947 or of Public Law 210 (supra) is applicable to Naval Reserve officers who are filling billets in the same field and performing similar duties as Regular Navy officers.

III. Although section 312 of the Naval Reserve Act of 1938 and section (a) of Public Law 210, Eighty-first Congress, state, in effect, that officers of the Naval Reserve shall be promoted the same as officers of the Regular Army, this has not been carried out. It is inconceivable that Congress ever really intended to exclude Reserve officers. The two bills introduced by Mr. Anderson and Mr. Rivers would fill this obvious gap so as to grant Naval Reserve officers the same benefits as Regular officers. Mr. Downer stated before the House Armed Forces Committee on August 3, 1951, and it is my understanding, that this is the only discrepancy in the entire Defense Establishment wherein specialists are not granted constructive service. The Army and the Air Force provide constructive service by adjustment of the lineal position of their specialists. The Navy does it for the Regular officers only Mr. Anderson's bill, H. R. 3843, and Mrs. River's bill, H. R. 4201, if approved and enacted into law, would remove this discrepancy. IV. Section 217 of this proposed Reserve bill provides for equal treatment of

Reserve officers comparable to the officers of the Regular Navy with respect to promotion. Therefore, it was the suggestion of certain members of the House committee to add a subsection (c) to section 217 of the Reserve Act which would embody the substance of both Mr. Anderson's and Mr. River's bills. Adoption of this proposed amendment would provide a general law for all the Armed Forces and would eliminate the necessity of consideration of H. R. 3843, and H. R. 4201. This section would read as follows:

"(c) That where, heretofore or hereafter, the position on the lineal list of officers of a Regular component of the Armed Forces has been adjusted by giving constructive service for time spent in technical or professional education or training, the same adjustment shall be made for Reserve officers filling similar billets or having the equivalent classification or designation. The appropriate Secretary shall take all necessary action to carry out the provisions of this subsection and this subsection shall be effective immediately upon this Act becoming a law."

Section 217 of this Reserve bill standing the way it is now, is no more than a modified restatement of section 312 of the Naval Reserve Act of 1938, and the amendments to the Officer Personnel Act of 1947, as amended by Public Law 210, Eighty-first Congress, both of which have stated that Reserve officers shall be granted equal promotion benefits as officers of the Regular Navy. Only by incorporating the above proposed amendment to section 217 would the intent of Congress be affirmatively stated that Reserve officers will be accorded the same privileges and benefits in this specialized field as officers of the Regular Navy. This specific direction is necessary because even though Congress has stated in the past that, generally, members of the Reserve shall be granted equal promotion benefits as officers of the Regular Navy, this has not been carried out by the Navy Department and the Bureau of Naval personnel. Unless such an amendment or bill providing for constructive service is passed, there is a definite discrimination between officers of the Regular Navy and the Reserveş filling similar billets and performing like duties and possessing the same qualifications. This discrimination is very apparent to me by my own personal observation in the specialized field of law that I am in, therefore, I shall limit my following remarks only to legal specialists.

Since the enactment of the Uniform Code of Military Justice the need in all of the Armed Forces for lawyers has doubled or tripled. Over 150 Reserve legal officers have been recalled to active duty to fill the needs of the service and to administer the new code. The officers recalled during the present emergency have relatively high and outstanding qualifications. These officers include a former Members of Congress, judges, State legislators, professor of law, tax specialists, and prosecutors. Unless equal benefits be accorded those officers, the majority, because they are aware of the discrimination and inequity in the law as it now exists, will leave the service as soon as their required tours of duty are completed and return to civilian practice. I feel that if this law were passed, granting them only what the Regulars have received, that many more will be anxious to serve their country and remain on active duty throughout the entire emergency. I might add that almost all of the Reserve legal officers recalled have had overseas and combat experience in World War II. In my previous statement, I did not intend to infer that the qualifications of the Reserves in any manner are superior to the officers of the Regular Navy. I have great respect for these Regular Navy legal specialists but it is my opinion that the Reserve officers' qualifications are at least equal to those of the Regular Navy. Many of the officers of the Reserve have had many years of general practice and a great deal of trial experience. If Reserve officers were granted the same constructive service that the Regulars received then their advancement to positions on the lineal list commensurate with their age, professional training, and experience would equalize their positions with reference to other legal officers in the Navy who are filling like billets and performing exactly the same duties.

I realize that this committee would probably be interested in what this proposed amendment or the bills introduced by Mr. Anderson and Mr. Rivers is going to cost the Government. An examination of the records of the Judge Advocate General indicates that there are and have been trained at Government expense a great number of graduates in the Navy postgraduate law school. These Regular officers in addition to their tuition and service credit for the purposes of promotion have been paid their usual salaries and subsistence allowances. It is my opinion that the training of these officers then would cost the Government between $18,000 and $25,000 in order to obtain one naval lawyer. When Naval Reserve officers are utilized by the Navy in their legal program, the Navy

utilized their schooling without paying for their education. They naturally were not paid salaries, nor were they promoted for the time spent in attendance at these civilian law schools. Therefore, it is easily seen that retaining Reserve officers who obtained their own education would be cheaper than training Regular naval officers on active duty. The promotions that such Reserve officers would receive under this proposed amendment would only give to them the same benefits that the Regular Navy officers have received.

I wish to express my sincere appreciation to this committee for hearing me in this matter, and I respectfully urge that this committee enact that proposed amendment to section 217 which would be in keeping with the announced policy of the Navy Department, that equal treatment be given to all members of the naval service whether in the Regular Navy or in the United States Naval Reserve.

SUPPLEMENTAL STATEMENT BY COMMANDER ALEXANDER AKERMAN, JR., USNR, AND LT. ROBERT N. ST. MARY

In view of the change of position by the Department of Defense as announced by its witnesses at the hearing on May 26, 1952, I wish to insert an additional statement in the record. It is our understanding that the Department of Defense no longer insists that subsection (c) of section 217 be entirely deleted from the act provided the words "heretofore or" are stricken.

With the controversy now narrowed to these two words let us examine the position of the lawyer in the Navy, both Regular and Reserve, as to the effect of the deletion of the words "heretofore or."

In order to clearly understand the question it might be desirable to list the various groups of lawyers in the Navy. (See Appendix (a)). These groups are as follows:

(1) Naval Academy graduates who received their legal education as a postgraduate course while on active duty;

(2) Regular naval legal specialists. These officers were granted a constructive service credit under Public Law 210, Eighty-first Congress; (3) Regular officers appointed in the Regular Navy as legal specialists in the grade of lieutenant (junior grade) pursuant to the Officer Personnel Act. (This in effect grants them constructive credit for their civilian legal training);

(4) Reserve officers on active duty as legal specialists;

(5) Reserve officers not on active duty but designated as legal specialists; (6) Reserve lawyers on active duty but not designed as legal specialists; (7) Reserve lawyers not on active duty and not designated as legal

specialists.

As to class (1), the postgraduates, they have received the equivalent of constructive service because their legal education was supplied by the Government at a time when they were on active duty drawing pay and allowances. Class (2) received constructive service by Public Law 210.

Class (3) received constructive service by the Officer Personnel Act of 1947 and those officers appointed in this class in the future will receive constructive service.

*

**

If section 217 (c) is retained in the act as it is now written, the benefits of constructive service will be extended to classes (4) and (5). If the words "heretofore or" are stricken from section 217 (c), the benefits of constructive service will not be extended to a single Reserve lawyer for the following reasons: Section 217 (c) states "that where, heretofore or hereafter, the position on the lineal list of officers of a Regular component * * has been adjusted by giving constructive service * *, the same adjustment shall be made for Reserve officers." We submit that there can never be "hereafter" any adjustment of the lineal positions of the Regular officers as there is no legal authority for it at this time. Public Law 210 is closed to further benefits as it was only effective for 1 year. It was a temporary law and is now executed. There also is no adjustment under the provisions of the Officer Personnel Act of 1947, as this act only permits an initial appointment to lieutenant (junior grade). Furthermore, Admiral Russell stated before this committee on May 26, 1952, that there never was nor will there probably ever be in the future any Reserve lawyers initially appointed lieutenants (junior grade) as legal specialists. It is, therefore, easily seen that without the words "heretofore or" section 217 (c) is without legal effect as to the purpose intended.

20261-52-14

The primary question to be considered is whether discrimination exists in this specialized field. The Department of Defense admits that there is discrimination for the 30 Reserves filling legal billets who have been on active duty since World War II. Why, then, is there not any discrimination against the remaining Reserves who volunteered for this emergency?

The next question to be considered is what groups should be placed in the favored column of our chart and be granted constructive service.

The Department of Defense contends that it would be unfair to classes (6) and (7), those lawyers who are not designated legal specialists, to extend the benefits to classes (4) and (5), who are designated as legal specialists, and that the line between the favored and unfavored classes should continue to be established by the words "Regular" and "Reserve." The Regulars will continue to be "favored." All of the Reserves will continue to be "unfavored." We contend that if there must be discrimination the line should be established by taking into consideration whether the legal education for which the benefit is extended is the prerequisite of the officer's performance of duty. If any line should be drawn at all, line should be drawn between legal and nonlegal; not "Regular" and "Reserve." Under 217 (c) as now written, the constructive service for the time spent in obtaining legal education would be extended to the Reserve lawyer who is now filling a legal billet or who would fill a legal billet if recalled to active duty. We submit that there is more justification for this distinction than there is in the words "Regular" and "Reserve."

I would like to point out that under 217 (c) as now written officers in classes (6) and (7) would not be forclosed from receiving constructive service. As vacancies occur in classes (4) and (5), they will be filled by officers from classes (6) and (7) and when the officer moves into classes (4) and (5), he will then receive constructive service if section 217 (c) is retained as now written. The announced intention of the Department of Defense was to protect officers from classes (6) and (7) from discrimination; yet if the Department of Defense amendment is adopted these very officers will be forever barred from the ben fit of constructive service.

It has been practically admitted that if it were not for the apparent discrimination against officers in classes (6) and (7), 217 (c) should be retained. We believe that we have shown that a study of the application of 217 (c) conclusively proves that rather than discriminating against these officers, it will ultimately benefit them and also at the present time remove a large segment of those Reserves from the discriminated group.

APPENDIX (A)
NAVY LAWYERS

Column I
(RESERVES)

NO CONSTRUCTIVE CREDIT

(4) Approximately 165 Reserve lawyers on active duty as legal specialists. (These officers would benefit by sec. 217 (c).)

Reserve

(5) Approximately 1,000 lawyers on inactive duty designated as legal specialists. (These officers would benefit by sec. 217 (c).)

(6) Approximately 680 Reserve lawyers on active duty but not designated as legal specialists. (By Navy Department circular letter these officers may apply for duty in JAG and therefore will benefit by sec. 217 (c).)

(7) Approximately Reserve lawvers on inactive duty not designated as legal specialists. (These officers may apply for positions in classes (4) and (5) above and therefore will benefit by sec. 217 (c).)

Column II (REGULARS)

ACTUAL OR CONSTRUCTIVE CREDIT

(1) Approximately 100 Naval Academy graduates, Regular officers, who received their legal education as a postgraduate course while on active duty. (These officers receive actual service credit for promotion.)

(2) Approximately 264 Regular Navy legal specialists. (These officers received constructive credit under Public Law 210.)

(3) Approximately 30 Regular Navy legal specialists appointed as lieutenant (junior grade) under Officer Personnel Act of 1947. (These officers receive constructive credit by virtue of their original appointment in a higher grade.)

(Supplemental statement and appendix submitted by Lieutenant St. Mary are as follows:)

THE EFFECT OF SECTION 217 (c) ON LEGAL SPECIALISTS IN THE NAVY (Supplemental statement by Commander Alexander Akerman, Jr., United States Naval Reserve, and Lt. Robert N. St. Mary)

In view of the change of position by the Department of Defense as announced by its witnesses at the hearing on May 26, 1952, I wish to insert an additional statement in the record. It is my understanding that the Department of Defense no longer insists that subsection (c) of section 217 be entirely deleted from the act provided the words "heretofore or" are stricken.

With the controversy now narrowed to these two words, let us examine the position of the lawyer in the Navy, both Regular and Reserve, as to the effect of the deletion of the words "heretofore or."

In order to clearly understand the question, it might be desirable to list the various groups of lawyers in the Navy. (See chart, appendix (a).) These groups are as folows:

(1) Naval Academy graduates who received their legal education as, a postgraduate course while on active duty.

(2) Regular Navy legal specialists. These officers were granted a constructive service credit under Public Law 210, Eighty-first Congress.

(3) Regular officers appointed in the Regular Navy as legal specialists in the grade of lieutenant (junior grade) pursuant to the Officer Personnel Act. (This, in effect, grants them constructive credit for their civilian legal training.) (4) Reserve officers on active duty as legal specialists.

(5) Reserve officers not on active duty but designated as legal specialists. (6) Reserve lawyers on active duty but not designated as legal specialists. (7) Reserve lawyers not on active duty and not designated as legal specialists. As to class 1, the postgraduates, they have received the equivalent of constructive service because their legal education was supplied by the Government at a time when they were on active duty drawing pay and allowances. Class 2 received constructive service by Public Law 210.

Class 3 received constructive service by the Officer Personnel Act of 1947, and those officers appointed in this class in the future will receive constructive service.

* *

If section 217 (c) is retained in the act as it is now written, the benefits of constructive service will be extended to classes 4 and 5. If the words "heretofore or" are stricken from section 217 (c), the benefits of constructive service will not be extended to a single Reserve lawyer for the following reasons: Section 217 (c) states "that where, heretofore or hereafter, the position on the lineal list of officers of a Regular component * * * has been adjusted by giving constructive service * the same adjustment shall be made for Reserve officers." We submit that there can never be any adjustment of the lineal positions of the Regular officers, as there is no authority for it now. Public Law 210 is closed to further benefits, as it was only effective for 1 year. It was a temporary law and is now executed. There also is no adjustment by the provisions of the Officer Personnel Act of 1947, as this act only permits an initial appointment to lieutenant (junior grade). In additional, Admiral Russell stated on May 26, 1952, that there never was, nor will there probably ever be in the future, any Reserve lawyers initially appointed as lieutenants (junior grade). It is, therefore, easily seen that without the words "heretofore or" the section is without effect as to the purpose intended.

The primary question to be considered is whether discrimination exists in this specialized field. The Department of Defense admits that there is discrimination for the 30 Reserves filling legal billets who have been on active duty since World War II. Why, then, is there not any discrimination against the remaining Reserves who volunteered for this emergency?

The next question that should be decided is what groups should be placed in the favored column of our chart and be granted constructive service.

The Department of Defense contends that it would be unfair to classes 6 and 7, those lawyers who are not designated legal specialists, to extend the benefits to classes 4 and 6 who are designated as legal specialists and that the line between the favored and the unfavored classes should continue to be established by the words "Regular" and "Reserve." The regulars will continue to be favored.