v. Micuso, 273 Pa 474, 117 A 211. Cf. Rule 31, Federal Rules of Criminal Procedure; New York Code of Criminal Procedure, secs 450, 451.) Under the provisions of UCMJ, Art 53, a finding on the guilt or innocence of the accused is not final until it is formally and correctly announced in open court. Consequently, had the court followed the same procedure it did but without calling the law officer into closed session to assist it with the form of findings there would be no basis for any claim that the accused had been acquitted. (See Rule 31, Federal Rules of Criminal Procedure; Jay v. U. S., 35 F2d 553; Anderson v. U. S., 294 F 593; Commonwealth v. Micuso, 273 Pa 474, 117 A 211.) A contention that the announcement of the court's finding to the law officer in closed session is the same as its announcement of the findings in open court so as to make the findings final and preclude reconsideration cannot be accepted. The provision of UCMJ, Art 39, to the effect that the law officer may be called into closed session only after the court has "finally voted on the findings," was not intended to preclude the court from reconsideration of its findings before they are formally announced in open court. The final vote referred to in the cited article is only the finality required to put into proper form whatever findings have been reached up to that point. It is not a final vote from the standpoint of irrevocable decision. Nor does the Legal and Legislative Basis, MCM, 1951, pp 76-77, suggest that the announcement of the proposed findings to the law officer in closed session has the same irrevocable effect as an announcement in open court. (See U. S. v. Gladden (No. 896), 2 USCMA 262, 8 CMR 62; U. S. v. Keith (No. 503), 1 USCMA 493, 4 CMR 85; Jay v. U. S. 35 F2d 553; Commonwealth v. Micuso, 273 Pa 474, 117 A 211.)

Held also: The action of the law officer in reinstructing the court on the findings it might properly make did not constitute a coercion of the verdict. There is nothing in the content or form of the additional instructions which can reasonably be construed as coercing the court to return a finding of guilty. They were virtually the same as the original instructions, and they left the question of guilt or innocence of the accused entirely up to the court. Of significance too is the fact that they contained no direct or implied expression of opinion by the law officer of the guilt or innocence of the accused. They constituted a correct statement of the law and as previously noted were required by the circumstances. United States v. London (No. 3654), 4 USCMA 90, 15 CMR 90. [See 53 Am Jur, Trial §§ 1099, 1102.]

The accused's sentence as originally announced was "to be confined at hard labor for twenty-four months and to forfeit $50 per month for a like period." The law officer informed the court that this sentence was illegal under the provisions of par 127b, MCM, 1951, directing that a court-martial shall not by a single sentence which does not at the same time include a punitive discharge adjudge confinement at hard labor for a period greater than six months nor forfeiture of pay in excess of two-thirds of pay per month for six months. At this point the law officer requested the court to close

to reconsider the penalty adjudged. After reconsideration the court announced that the accused was resentenced "to be discharged from the service with a bad conduct discharge and to forfeit all pay and allowances and to be confined at hard labor for one year." The convening authority as a matter of clemency disapproved so much of the sentence as exceeded the punitive discharge imposed, total forfeitures and confinement at hard labor for six months. The execution of the discharge was suspended. A board of review concluded that no more than six months' confinement together with forfeiture of $50 per month for a like period could lawfully be affirmed. Held: The action of the law officer in asking the court to close to reconsider its sentence because the sentence as originally adjudged was illegal was correct. The instant case falls precisely within the language of par 76c, MCM, 1951 that if the law officer of a general courtmartial notes any ambiguity or apparent illegality in the sentence as announced by the court he should bring the irregularity to the attention of the court so that it may close to reconsider and correct the sentence. (Citing U.S. v. Brasher (No. 499), 2 USCMA 50, 6 CMR 50; MCM, 1951, par 127b.)

Held also: The board of review was correct in holding correct in law and fact only so much of the subsequent sentence as provided for confinement at hard labor for six months and forfeiture of $50 pay per month for a like period. In the instant case it is apparent that no mere clerical or verbal error was involved. And no mandatory sentence was involved. Accordingly, the case falls squarely within the rule of the Manual that the court may not reconsider the sentence with a view to increasing its severity after the sentence has been announced unless the sentence prescribed for the offense of which the accused has been convicted is mandatory. (Citing MCM, 1951, par 76c; U.S. v. Castner (No. 3102), 3 USCMA 466, 13 CMR 22. Cf. U.S. v. Robinson (No. 3842), 4 USCMA 12, 15 CMR 12; U.S. v. Downs (No. 3788), 4 USCMA 12, 15 CMR 12.) The limitations on the court's power to increase the severity of a sentence once announced are not limited solely to a reconsideration directed by the convening authority but apply where the court-martial reconsiders its action without direction from the convening authority to do so. United States v. Long (No. 4012), 4 USCMA 101, 15 CMR 101, affirming CM 366715, 13 CMR 218.

Increasing severity of sentence on reconsideration, see United States v. Castner, SENT & PUN § 33.1.

Matters concerning the correction of erroneous or ambiguous announcements of findings or sentences are now classified under § 18.1.

§ 87. Procedure

§ 87.7. Receipt of evidence.

Receipt of evidence of previous convictions in revision proceedings, see ACM S-8139, Coleman, SENT & PUN § 4.5.

UNIT, WELFARE AND SIMILAR FUNDS

§ 5. Particular Funds.

§ 9. Acquisition of Funds.

§ 17. Expenditures and Use.

§ 21. Deactivation of Unit or Non-Appropriated Fund Instrumentality.

§ 5. Particular Funds

§ 5.51. Funds for receiving and administering proceeds from vending machines.

Under existing regulations, it would be improper for a unit fund established in one of several Reserve units to receive and administer for the benefit of all personnel training in a USAR armory the proceeds from vending machines located in the armory where several Reserve units performed training. However, there is no legal objection to the establishment of an association under the provisions of subpar 2c, AR 210-50, 29 May 1951, for the purpose of receiving and administering the proceeds from vending machines for the benefit of all personnel training in an armory. (Citing SPJGA 1944/7214, 2 Aug 1944, and JAGA 1953/3030, 27 Mar 1953). The decision of the Comptroller General reported in 32 Comp Gen 124 requiring proceeds from vending machines located on government property to be deposited in the Treasury would be inapplicable to the proceeds from such machines as that decision is limited to machines operated by appropriated fund agencies. (Citing JAGA 1952/8921, 19 Nov 1952.) JAGA 1953/6958. 11 September 1953.

§ 9.1. Generally.

§ 9. Acquisition of Funds

There is no legal objection to the crediting of the proceeds of vending machines in Commissioned Officers' and Non-Commissioned Officers' Open Messes to the funds of those activities. (Citing JAGA 1952/8921, 19 Nov 1952; Ms Comp Gen B-112840; 32 Comp Gen 124.) JAGA 1953/1494. 10 February 1953.

§ 17. Expenditures and Use

§ 17.5. Investment of funds.

In response to a request for an opinion as to the legality of the investment of excess funds of a nonprofit unincorporated recreation and welfare association of a Naval Ordnance Plant in the Naval Ordnance Employees Federal Credit Union it was held that generally speaking, the investment of welfare and recreation association excess funds in credit unions is not the type of welfare contemplated by the N.C.P.I. Nevertheless, certain situations may exist in which the deposit of funds in a credit union would be a welfare project and thus be authorized. The existence of such conditions is for the affirmative determination in each instance of the appropriate board of the organization concerned. If, however, the sole purpose of the investment is the employment of excess funds such

board members should be protected against possible personal liability in the event of loss by issuance of an appropriate N.C.P.I. Amendment, or at least a directive of the Navy Department covering this subject. Such instructions would be regarded as regulations under Revised Statute 161 (5 USC 22), and would have the force and effect of law. Op JAGN 1953/172. 11 September 1953.

§ 17.51. Hobby shop funds.

As a component of the recreation program, a hobby craft program was established at three U.S. Naval Retraining Commands. The initial expenditures required thereby were made from non-appropriated funds. Normally such programs are made self-supporting after the original expenditure by charges for materials issued and shop time. However, since the majority of the personnel at the retraining commands will be in a non-pay status, it was proposed that a portion of the finished products made by the retrainees be placed on sale in the hobby shops. The proceeds from sales of these products would be returned to the revolving non-appropriated funds allocated to the operation of the program. A share of the finished products would be retained by the retrainee. Held: The proposed sale of items produced in hobby shops, and the use of the proceeds of such sales to maintain a fund for the purchase of raw materials would be in accordance with existing law. Non-appropriated funds involved in recreational, ship's service, and related enterprises are public funds only in a restricted or special sense of the term and not in the ordinary sense (CMO 12-1947, 406; CMO 3-1947, 49). Although the Handbook for Construction and Operation of U.S. Navy Hobby Shops (NavPers 15662), expressly seeks to discourage the use of hobby shops for commercial ventures, it is apparent that the operating expenses cannot be obtained in the normal way at these commands. Therefore the plan to replenish the hobby shop revolv ing fund for the purchase and sale of hobby craft materials by revenues from the sale of finished products seems feasible and not in contravention of any statute. Op JAGN 1953/163. 3 July 1953.

§ 21. Deactivation of Unit or Non-Appropriated Fund

Instrumentality

§ 21.5. Disposition of property, generally.

Items of dayroom property such as television sets and furniture were donated to and accepted by a certain Army hospital fund in accordance with the provisions of par 10, Army Regulations 40-650, 27 Jul 1951. By Department of the Army Circular 49, 13 Jun 1952, the operation of hospital funds was terminated and all nonexpendable property of such funds was to be transferred to the appropriate accountable officer for subsequent accounting as government property. Shortly after the promulgation of the above circular and prior to the entry of the property in question on the property accounts of the government, the original donors of the property were notified of the provisions of the mentioned circular and afforded an opportunity to recover the property. That property which was not recovered by the original donors was thereafter entered on the

property accounts of the government. The Army hospital is now in the process of deactivation and the original donors of the property are desirous of recovering it. Held: The property in question is now the property of the United States which may not be disposed of except in accordance with law. The original gifts to the hospital fund were not gifts to the United States (SPJGA 1942/5180, 5 Nov 1942; SPJGA 1942/4705, 10 Oct 1942; SPJGC 1946/3779, 17 May 1946). However, subsequent thereto, there was a transfer of this property to the United States by virtue of the operation of DA Circular 49. When the original donors of the property failed to recover the property, after notice of its impending transfer to the United States, they in effect joined in the transfer of the property to the United States by the hospital fund. As a consequence of the foregoing transaction the property in question became the property of the United States and as such it may not be returned to the original donors in the absence of statutory authority therefor. (Citing SPJGC 1946/3779, supra; JAG 005, 28 Nov 1921; JAG 454.1, 4 Aug 1934.) JAGA 1953/7207. 1 September 1953.