law, there is no authority for the waiver of a duty specifically required by law (C. M. O. 1, 1941, 111). It will be noted that the language of the law is that the officer concerned may not be promoted until "he has been examined by a board of naval surgeons." This phraseology would seem clearly to contemplate an actual personal examination of the officer concerned by the board. It can hardly reasonably be contended that "he" is examined by the board when in fact "he" is not so examined, but only a report of an examination made by others is before the board. Therefore, the report of the examination conducted by officers of the Medical Corps, U. S. Army, may not be submitted to a board of medical examiners, Navy Department, for consideration. In view of the foregoing, the Judge Advocate General was of the opinion that the record of proceedings of the board of medical examiners in this case was not legal. (JAG:1: LHCJ: vel, 14 July 1948.) Retirement: physical disability: presumption as to physical qualifications. The Naval Retiring Board, convened at the Navy Department, Washington, D. C., on 24 February 1948, found as follows: "The board, having deliberated on the evidence before it, de cided that Lieutenant A, Chaplain Corps, U. S. Navy, is incapacitated for active service by reason of schizophrenia; that his incapacity for naval service is permanent, is not the result of an incident of the service, and is not the result of his own misconduct, but existed prior to April 26, 1947, when he was appointed a commissioned officer in the U. S. Navy." A review of this officer's service career disclosed that he was originally examined for commission as a chaplain in the U. S. Naval Reserve on 24 March 1944. At that time, he was found to have certain defects which are not material to his present disability. On 2 May 1944, these defects were waived by the Bureau of Naval Personnel. On 23 May 1944, after another qualifying physical examination, he was ordered to active duty. He underwent further physical examinations on 13 December 1945 and 4 June 1946, for promotion and separation, respectively. In each, he was found physically qualified. On 30 July 1946, he was examined for appointment as a chaplain in the Regular Navy, and on 25 April 1947, after another qualifying physical examination, his appointment was effected. On 17 June 1947, he reported to the sick bay at the U. S. Navy Amphibious Base, Little Creek, Virginia. He was transferred eight days later to the U. S. Naval Hospital, Portsmouth, Virginia, and finally admitted to the U. S. Naval Medical Unit, U. S. Public Health Service, Fort Worth, Texas, on 2 August 1947. All three institutions concurred in the diagnosis of schizophrenia. The line of duty determination was made after his admission to the Fort Worth Hospital. The record failed to disclose any fact to support the conclusion of the Naval Retiring Board that the illness from which Lieutenant A is Dow suffering existed prior to 25 April 1947 when he was appointed to the Regular Navy. The record disclosed that from May 1944, while serving as a Naval Reserve officer, until his release from active duty, in June 1946, this officer performed useful duty with no hint of an underlying mental or personality disorder. Further, there was nothing in this officer's record to indicate that the state of his health changed during the period, June 1946 until April 1947, when he was on inactive duty. In view of the lack of proof to the contrary, it must be presumed that his condition was the same as reported at the time of his release to inactive service. The Judge Advocate General has stated previously that if an officer is examined and found physically qualified, a presumption arises as to his soundness. This presumption is not rebutted by a subsequent breakdown, if the only evidence to show that the disease existed prior to appointment is the nature of the disease or mere speculation (C. M. O.'s 5, 1921, 21; 1, 1943, 107; 1, 1942, 203). The fact that this officer, after his appointment to the Regular Navy, served only two months before becoming actively psychotic did not sustain the finding that his incapacity existed prior to appointment. In view of the foregoing, the record of proceedings in this case were returned to the Naval Retiring Board for reconsideration as to that portion of the findings which related to line of duty. (File: JAG: I: FXD: jz, 12 August 1948.) "Stealing" and "attempting to steal": distinction. A general court martial convicted an accused of the charge of "Attempt to steal" as a lesser included offense of "Stealing property of the United States intended for the naval service thereof." The single specification under the charge alleged that the accused * did, on or about December 31, 1947, feloniously take, steal and carry away from the possession of the United States, to wit, from the U. S. S. TIDEWATER, at the U. S. Naval Shipyard, Charleston, South Carolina, one outside micrometer caliper, range three to four inches, of the value of about nine dollars and fifty cents ($9.50), one outside micrometer caliper, range four to five inches, of the value of about nine dollars and fifty cents ($9.50), and one inside micrometer caliper, range two to twelve inches, of the value of about seven dollars ($7.00), the property of the United States intended for the naval service thereof, and he, the said (accused), did then and there appropriate the same to his own use." The specification as found proved, after exceptions and substitutions, alleged that the accused “* * * did, on or about December 31, 1947, feloniously attempt to take, steal and carry away from the possession of the United States, to wit, Sub Group Three, Charleston Group, Atlantic Reserve Fleet, at the U. S. Naval Shipyard, Charleston, South Carolina, one outside caliper, * one outside micrometer caliper, * *, and one inside micrometer caliper, * *, the property of the United States intended for the naval service thereof, and he, the said (accused), did then and there appropriate the same to his own use." There is no provision in Naval Courts and Boards for the specific charge "Attempt to steal." "Scandalous conduct tending to the destruction of good morals" is the appropriate charge for the lesser included offense of attempt under the charge “Stealing property of the United States intended for the naval service thereof" (N. C. & B., secs. 42, 430; C. M. O. 12, 1946, 403). The allegations in the specification as found proved, that the accused attempted to steal the goods in question and that he also appropriated them to his own use, were inconsistent in that the latter indicated a completed theft (C. M. O. 1, 1923, 9). It was apparent, however, from the findings as well as the specification, that the court intended to convict the accused of an attempted theft. The uncontroverted facts adduced upon the trial showed that the accused was stopped at the gangway of his ship with the articles, wrapped in packages for mailing and concealed under his jacket, after he had sought permission to leave the ship. The findings of the court were predicated apparently upon an erroneous assumption that the property had not left the possession of the United States. The asportation was effected, however, the moment the accused took complete physical control of the property with the intention of converting it to his own use. There was a severance from the owner although the goods were never removed from the ship, and the accused, if guilty at all, was guilty of the consummated crime (Nutzel v. State, 60 Ga. 264; State v. Rozeboom, 145 Ia. 620, 29 L. R. A. (N. S.) 37; see also Warnke v. State, 89 Ind. App. 683). Although an accused may be convicted of an attempt as a lesser included offense under a charge of a completed act, the specification as found proved must support the substituted charge (N. C. & B., sec. 429). One of the essential elements of any attempt is the failure to consummate the crime, and it follows that one proved actually to have committed an offense cannot be found guilty of an attempt to do so (N, C. & B., sec. 43). While the findings of the court as to the specification showed an inconsistency which in a proper case could be remedied by proceedings in revision, such proceedings were unnecessary in this case since they could only result in corrected findings alleging an attempted theft, which findings, in view of the undisputed evidence of the consummated theft as hereinabove indicated, would not preclude the necessity of setting aside the conviction. Accordingly, the findings and sentence, and the action of the convening authority thereon, were set aside. (File: MM-Hennessy, James Joseph/A17–20, 14 May 1948.) JOHN NICHOLAS BROWN, Acting Secretary of the Navy. WASHINGTON, D. C., 10 September 1948. |