while in an active duty status. While the above mentioned statutes generally would not prohibit the subject officer from performing any duties for the university in connection with the contracts, however, should such duties involve activities in connection with the negotiation of, or procuring or aiding in the procurement of, the contracts, or the prosecution of claims against the United States, such activities would violate the provisions of and subject him to the penalties prescribed by the mentioned statutes. (See CSJAGA 1949/3156, 28 Apr 1949; SPJGA 1943/19390, 24 Dec 1943; JAGA 1950/4740, 28 Aug 1950; JAGA 1952/7087, 11 Sep 1952; JAGA 1951/7699, 21 Dec 1951; JAGA 1953/4513, 2 June 1953; JAGA 1953/6120, 27 Jul 1953.) JAGA 1953/6801. 27 August 1953.

§ 71.23. Employment in the merchant marine.

A retired Coast Guard officer may accept employment as a Marine Engineer on board a vessel operated by a private steamship company under a general agency agreement with the National Shipping Authority without being subject to the dual compensation restriction contained in sec 212 of the Economy Act of 1932 (5 USC 59a). The decision of the Comptroller General (24 Comp Gen 344) that a retired Coast Guard officer employed as a seaman on vessels owned or operated by the War Shipping Administration is not to be regarded as within the limitation of sec 212 of the Economy Act, supra, respecting concurrent payment of retired pay and civilian compensation in an office or position under the government, is still applicable, in view of sec 1(a) of the Act of 24 March 1943 (50 Appx, USC 1291), and ch VIII of Pl 45, 82d Cong. Op CCCG 1951–3. 8 December 1951.

§ 75. Miscellaneous

§ 75.5. Recall to active duty.

An enlisted man in the Navy was transferred to the Fleet Reserve in the rating of chief turret captain, on 12 February 1946, having at that time completed 20 years, 7 months and 12 days' active service. He was recalled to active duty effective 16 January 1951, and released to inactive status on 31 July 1952, at which time he then had completed 22 years, 1 month and 28 days' active service. On 1 August 1952, he was placed on the disability retired list in accordance with the provisions of sec 206 of the Naval Reserve Act of 1938, 52 Stat 1179, 34 USC 854e, and on the same date under the provisions of sec 10 of the Act of 24 July 1941, 55 Stat 605, as amended by sec 8(a) of the Act approved 21 February 1946, 60 Stat 28, 34 USC 350i, he was advanced to the commissioned warrant officer rank of chief gunner. Under method (a) of sec 511 of the Career Compensation Act of 1949, ML 1949, App C, 63 Stat 829, 37 USC 311, on 15 January 1951, the day preceding the effective date of his recall to active duty, he was in receipt of retainer pay in the amount of $154.28 per month representing one-half the base pay of enlisted pay grade 1, with longevity credit for 21 years' service, plus 10 per centum for good conduct, computed in the manner prescribed in sec 203 of the Naval Reserve Act of 1938, 52 Stat 1178. His retired pay effective 1 August 1952, if computed as pre

scribed in sec 516 of the Career Compensation Act of 1949, 63 Stat 832, 37 USC 316, would amount to $183.10 per month, i.e., 55 per centum (22 years times 2 1/2 per centum) of $332.90, the basic pay of a commissioned warrant officer in pay grade W-2 with over 22 years' service for longevity purposes. While such retired pay, $183.10, exceeds the amount of retired pay, $154.28, to which he was entitled on 15 January 1951, the day preceding the effective date of his recall to active duty, if he had not been recalled to active duty he would have been entitled upon his transfer to the retired list to receive retired pay at the rate of $203.20 per month computed on the same basis that his retainer pay was previously computed under method (a) of sec 511, but based on the rate of pay pertaining to his higher rank as a commissioned warrant officer. Held: The member is entitled to retired pay at the rate to which he would have been entitled had he not been called to active duty: i.e., one-half the base pay of a chief gunner, with less than ten years' creditable service, plus 35 per cent longevity and 10 per cent for good conduct. Unless the computation of retired or retainer pay in accordance with the method prescribed in sec 516 results in an increase in the amount of retired or retainer pay that was being received prior to the immediately preceding period of active duty, the provisions of sec 516 are inoperative and do not require the payment of a lesser amount of retired or retainer pay than that theretofore received. (Citing B-106410, 31 Comp Gen 547, 1 May 1952, 2 Dig Ops No. 1, RETIRE § 75.5.) Comp Gen B-115502, 33 Comp Gen 17. 10 July 1953.

A regular Army officer was retired for physical disability on 31 October 1933 and recalled to active duty on 16 February 1942. During World War II the highest grade he held was lieutenant colonel. On 10 February 1953 he was notified that he was qualified (100% disability) under sec 411 of the Career Compensation Act of 1949 and had the election to receive either his current retired pay or retired pay computed under the Career Compensation Act of 1949. On 18 March 1953, he was promoted to the grade of colonel. The officer's current retired pay was over $280.00. However, under the formula in sec 516, Career Compensation Act of 1949, his retired pay would be only in the amount of $260.82 per month. Held: Unless the officer can qualify under the sixth proviso of subsec 402 (d), Career Compensation Act of 1949 (63 Stat 819; 37 USC 272(d)), there is no provision of law which would authorize his return to a retired status in the grade of colonel with retired pay based on that grade. With respect to sec 516, Career Compensation Act of 1949, it should be noted that this section confers merely entitlement to increased retired pay; it does not authorize advancement on the retired list. Further, as use of the formula contained in sec 516, Career Compensation Act of 1949, would not result in an increase in the officer's retired pay, that section is not for application in his case. (Citing 31 Comp Gen 547, 2 Dig Ops, RETIRE § 75.5; JAGA 1950/3761, 9 Aug 1950; JAGA 1953/3305.) JAGA 1953/5114. 18 June 1953.

§ 75.27. Additional pay for good conduct or heroism.

The 10 per cent additional retired pay for good conduct or extraordinary heroism is applicable only to those members retired on 20 years' service pursuant to the procedures provided for in the 20-year enlisted retirement law (14 USC 355 and 357). A member who is retired for physical disability and who elects to receive disability retirement pay computed on years of service is to be considered as retired for physical disability and not for service. Accordingly, an enlisted man with 20 years' service, who is retired for physical disability and who elects to have his retired pay computed either on percentage of disability or on the alternative method of years of service, may not receive 10 per cent additional retired pay for good conduct or extraordinary heroism for the reason that he is retired for physical disability pursuant to Title IV of the Career Compensation Act and not under the 20-year enlisted retirement law. Op CCCG 1952–3. 29 July 1952.

VI. ACTIVITIES OF RETIRED PERSONNEL

§ 79.1. Generally.

§ 79. Restrictions and Prohibitions

The so-called "Posse Comitatus" Act (sec 15, Act of 18 Jun 1878, 20 Stat 152; 10 USC 15, ML 1949, sec 480) does not prohibit a retired officer from exercising any police powers in connection with civil defense activities, particularly where the Reserve officer was retired under the provisions of Title III, Army and Air Force Vitalization and Retirement Equalization Act of 1948 (62 Stat 1087, ML 1949, secs 348e and f). (Citing JAGA 1947/7744, 6 Oct 1947; JAGA 1947/8393, 21 Nov 1947; cf. JAG 210.851, 11 Oct 1926, Dig Ops JAG 1912–40, p 404.) JAGA 1952/9724. 22 December 1952.

§ 79.11. Dealings or transactions with the government. See JAGA 1953/6801, supra § 71.11.

I. IN GENERAL.

REVIEW

§ 3. Matters Reviewable, Generally.

II. INITIAL REVIEW AND ACTION.

§ 21. Who May Take Initial Action.

§ 25. Reference to Staff Judge Advocate or Legal Officer. § 27. Action of Convening Authority or Officer Exercising General Court-Martial Jurisdiction.

III. APPELLATE COURTS AND AGENCIES.

§ 37. Boards of Review.

§ 43. Court of Military Appeals.

In spite of the fact that the convening authority disapproved findings as to two of the offenses of which the accused was found guilty by the court, he could, and the board of review may, nevertheless consider the evidence adduced in connection with those disapproved offenses in assessing the severity of the sentence as they were part and parcel of the general scheme of conduct of which the accused was properly convicted by the other approved findings of guilty. (See U. S. v. Petty (No. 2155), 3 USCMA 87, 11 CMR 87.) ACM 7841, McNeil (1954) 14 CMR 710.

§3.11. New or additional evidence, matters outside record.

The accused was originally charged with rape. Another person had been involved in the same incident and had been previously tried on charges of rape but was found guilty only of indecent assault. On the basis of the result in this former trial, the convening authority reduced the charges against this accused to indecent assault and the accused pleaded guilty to and was found guilty of that offense. Subsequently a board of review set aside the finding in the prior case and then determined that since the accused in this case was involved with the same victim under the same circumstances, in justice to him the findings in this case should also be set aside. Held: In setting aside the findings in this case on the basis of its decision in the former case, the board exceeded its authority. Boards of review are mere creatures of statute whose power and authority are found exclusively within the confines of the creating legislation. UCMJ, Art 66 (c), defines the duties of a board of review. It has no alternative except to affirm such findings of guilty as it finds correct in law and fact and determines on the basis of the entire record should be approved. A necessary corollary of this is the duty of

reversing such findings of guilty as it finds incorrect in law and fact and determines on the basis of the entire record should not be approved. On the basis of the accused's plea of guilty alone the court was warranted and indeed required to return a finding of guilty. No evidence introduced by the defense in extenuation or mitigation affects this finding in any way. In fact, a pretrial statement of the accused, introduced by the prosecution subsequent to the findings, indicated that not only did the accused commit the crime of rape, but aided and abetted at least one companion in the perpetration of that crime as well. Nowhere in the record of trial or otherwise, was there even an intimation of the accused's innocence. Nothing occurring subsequent to the conclusion of trial and prior to the consideration by the board of review cast any doubt upon the factual validity of the court's finding. Accordingly, the existence of each essential element of the offense of indecent assault was established by the record of trial beyond a reasonable doubt. Consequently, the accused's guilt of that offense was determined as a matter of law and as a matter of fact. By predicating its action upon the disposition made in the former case, the board of review introduced a totally extraneous matter into its considerations and arrived at a conclusion relative to the findings which failed to reflect the issues presented for its determination. The issue in the former case was whether or not indecent assault was a lesser included offense of rape, solely a question of law. The determination of that issue had no bearing on the issues with which the board was concerned in this case, namely, whether or not this accused committed the offense of indecent assault, essentially a factual issue. Basing its conclusions upon matters wholly unrelated to the legal and factual validity of the findings of the court-martial, the board of review was not acting "on the basis of the entire record." It therefore exceeded its authority and its findings must be reversed. (Citing US v. Benney Ray Simmons (No. 940), 2 USCMA 105, 6 CMR 105.) United States v. Gordon (No. 1972), 2 USCMA 632, 10 CMR 130.

The accused, W., was convicted of the possession and sale of heroin. As a consequence of the transaction underlying the charges in question one R. had also been convicted of possession and sale of heroin in a separate trial. His conviction, however, was set aside and the charges were dismissed by the convening authority on the ground that he had been entrapped. In this case no suggestion of entrapment had been made. However, the board of review concluded that it would "create an injustice" to the present accused to permit his conviction to stand in the face of the dismissive action of the convening authority in the other case. Held: Such action of the board of review was error as beyond the limits of its reviewing authority as established in UCMJ, Art 66 (c), which limits the board of review to the record presented to them. Although the matter outside the record resorted to was in favor of the accused, this does not change the essentially erroneous character of the board's action, nor serve to supply authority where none exists. (Citing United States v. Duffy (No. 1404), 3 USCMA 20, 11 CMR 20.) United States v. Whitman, (No. 2168), 3 USCMA 179, 11 CMR 179.