of the New York court and deny recognition to that of the Mississippi cout.

The Judge Advocate General has stated heretofore that the "Navy Department bus no jurisdiction to determine the validity of a divorce which has been granted by any court" (C. M. O. 5. 1937, 8). By the same token there is no jurisdiction in the Navy Department and more aspecifically, in the Judge Advocate General, to reconcile, as between The devices of two States concerning the marital status of two parties, The "respect to be accorded * * * to their adjudications.”

It was clear from the foregoing that the question posed "as to which device the Commandant should recognize" was one properly for the courts and not for determination by the Judge Advocate General. Kimilarly, the parties should seek their respective remedies in the coule father than from the Navy Department. It was determined, Tortore, that no action should be taken with respect to the instant Come and that the originator of the original inquiry, the attorney for 15 bould be an advised.

This opinion may be taken as indicative of the attitude of the Jobs Advocate General with reference to similar situations, both as In third personnel, active and inactive, and regular navy personnel motive duty, and that part of the inquiry contained in the endorsemend of this chief of Naval Personnel, germane to similar situations, Was anowried accordingly. (File: JAG:II:HSS :ad, 15 Jan. 1948.) Flooding of death under Missing Persons Act: effect of former finding of wilful

A bib from the Chief of the Bureau of Supplies and Accounts and Hors in booms a teasin revealed that A, an enlisted man, on 7 March PD who pin on board the U, N. 8. New York (BB34), which ship www Him in the spinity of Culebra, P. R.; that sometime between 0030 wool tomon to say aborcould, he disappeared from the New York and Hot bus toma muut hasn oren nor heard from since, so far as is known.

Flu Alanch mm a board of investigation was convened aboard the Acir kuk la under of the Commander, Atlantic Squadron. The board bound tube off, that A had been stationed at a telephone in This obito alerting checne room for the 00 to 04 watch on 7 March 1940; that at about muso he turned the 'phones over to one (L) and left the aliciling cudne room without obtaining permission from (G), coxswain, UNN, in charge of the watch there; that at 0900 the ship was searched and I was revealed that A was not aboard; that during the period from 0030 to 0000 on 7 March 1910, the New York was operating close enough to the shore of Puerto Rico to have enabled a good swimmer to swim ashore; that A's service record indicated he was a

14

qualified swimmer; and that, in the opinion of the board, A wilfully absented himself from his post of duty without proper authority, after having been posted at his station, and not having been relieved. The findings of the board of investigation were approved by the convening authority.

On 7 April 1941, the Acting Secretary of the Navy approved an opinion of the Judge Advocate General holding that, as of that date, the available evidence failed to establish the existence of facts inconsistent with the continuance of life in A's case, and that A could not, on 7 April 1941, legally be declared to be deceased. Paragraph 3 of said opinion is quoted in pertinent part:

(A) was last definitely seen at about 12:30 a m., March 7, 1940, when he left his post of duty in the steering engine room without obtaining permission from the officer in charge of the watch * * *.

On 16 June 1947, the Secretary of the Navy, acting pursuant to section 5 of the Missing Persons Act (approved March 7, 1942, effective September 8, 1939, 56 Stat. 143, as amended; 50 U. S. C. 1001 et seq.), found that A was dead, his death being presumed to have occurred on 13 June 1947.

Section 2 of the Missing Persons Act, as amended, supra, provides:

Missing, interned, or captive persons: continuance of pay and allowances. Any person who is in active service and who is officially determined to be absent in a status of missing, missing in action, interned in a neutral country, captured by an enemy, beleaguered, or besieged shall, for the period he is officially carried or determined to be in any such status, be entitled to receive or to have credited to his account the same pay and allowances to which he was entitled at the beginning of such period of absence or may become entitled thereafter, and entitlement to pay and allowances shall terminate upon the date of receipt by the department concerned of evidence that the person is dead or upon the date of death prescribed or determined under provisions of section 5 of this act [section 1005 of this appendix]: Provided, That such entitlement to pay and allowances shall not terminate upon expiration of term of service during absence and in case of death during absence shall not terminate earlier than the dates herein prescribed: Provided further, That there shall be no entitlement to pay and allowances for any period during which such person may be officially determined absent from his post of duty without authority and he shall be indebted to the Government for any payments from amounts credited to his account for such period.

[C. M. O. 1-1948]

15

The Chief of the Bureau of Supplies and Accounts requested advice as to whether the language "when he left his post of duty in the steering engine room without obtaining permission from the officer in charge of the watch," which appeared in the opinion of the Judge Advocate General approved by the Acting Secretary of the Navy on 7 April 1941 (third paragraph, supra), might be considered as an official determination that A was absent from his post of duty without authority, thus placing A within the prohibition of the second proviso of section 2 of the Missing Persons Act, as amended, supra. A holding that such language constituted an official determination of absence from post of duty without authority, within the meaning of the second proviso of section 2 of the Missing Persons Act, as amended, supra, would operate to bar A's heirs from benefits under that act.

Paragraph 2 of the letter from the Chief of the Bureau of Supplies and Accounts states in pertinent part:

* *

"On 7 April 1941, pursuant to section 5 of reference (a) [the Missing Persons Act] as amended a review of the facts surrounding subject man's disappearance was conducted, and the Judge Advocate General on that date held that (A) should be continued in a missing status for a period of 7 years from date of disappearance in view of certain facts shown therein

*

It is obvious that the "review of the facts" mentioned above could not have been conducted pursuant to the Missing Persons Act, since that act was not enacted until 7 March 1942. Even though the act was to be effective from and after 8 September 1939, nevertheless, a determination or an official report made before 7 March 1942, would be of very dubious significance in the evaluation of rights under an act which had not been enacted until that day.

It seemed clear, therefore, that the language quoted from the opinion of the Judge Advocate General approved by the Acting Secretary of the Navy on 7 April 1941, did not constitute such an official determination as to preclude A's heirs.

Although the Chief of the Bureau of Supplies and Accounts did not pose the question, it should be decided whether or not the findings of the board of investigation convened by order of the Commander, Atlantic Squadron, constituted such an official determination. The board of investigation found, inter alia, that “(A) wilfully absented himself from post of duty without proper authority." This finding was phrased in language very similar to the language of the second proviso of section 2 of the Missing Persons Act, supra. However, the board of investigation was convened on 9 March 1940, almost 2 years before the enactment of the Missing Persons Act, supra. The finding could not, therefore, be considered as a finding made pursuant to that act, and

hence, in and of itself, was not an official determination within the meaning of that act, and more especially, within the meaning of the second proviso of section 2 of the act as amended, supra.

Having concluded that, as of the present date, no official determination had been made that A was absent from his post of duty without authority, within the meaning of the second proviso of section 2 of the Missing Persons Act, as amended, supra, it became necessary to inquire as to whether such an official determination is now mandatory because of the conclusive evidentiary effect of the finding of the board of investigation that "(A) wilfully absented himself from post of duty without proper authority."

Section 720, Naval Courts and Boards (1937), provides in pertinent part:

Purpose.-Courts of inquiry and investigations, as the names signify, are primarily fact-finding bodies, and, unless specifically directed by the convening authority in the precept to express opinions or to make recommendations, will confine themselves to findings of fact. The proceedings of these bodies are in no sense a trial of an issue or of an accused person; they perform no real judicial function; they are convened solely for the purpose of informing the convening authority in a preliminary way as to the facts involved in the inquiry, and when directed, to aid him with opinions and recommendations; their conclusions are merely advisory. Convening authorities should remember that any action taken in a matter subsequent to its investigation is taken upon the initiative of the convening authority in his administrative capacity. The function of these bodies is merely to aid such officer in the performance of his administrative duties and not to relieve him of responsibility for his administrative acts. It was apparent from the foregoing that the finding of the board of investigation in the present case, not being conclusive even upon the subject with which it dealt, could not possibly be conclusive upon what was really another subject altogether, namely, whether A was "absent from his post of duty without authority," within the particular meaning of that language as used in the second proviso of section 2 of the Missing Persons Act, as amended, supra.

That the language "absent from his post of duty without authority," as used in the said second proviso, has a particular meaning different from its meaning as used in the report of the board of investigation, there is ample indication.

As used in the report of the board of investigation, "post of duty" meant the post of duty at which A was stationed, namely, a telephone in the ship's steering engine room. On the other hand, "post of duty,"

as used in the said second proviso, can only mean the ship itself, as is clear from a study of the said section 2 and the second proviso thereof.

Section 2 provides benefits for missing persons generally. The second proviso of section 2 withholds such benefits from those missing persons who are absent from their posts of duty without authority. It is obvious that a person who absents himself from a particular, local, and special post of duty aboard a ship, but who still remains aboard, is not a missing person. Departure from the ship is the one essential prerequisite to entry upon the status of a missing person. Since section 2 is concerned with missing persons, and since in order to be missing, a person must first have departed from the ship, and since the second proviso of section 2 deals with a certain type of missing person, namely, a missing person who is absent without authority from his post of duty, it is obvious that "post of duty," within the meaning of the second proviso to section 2, must mean the ship to which the missing person was attached.

Additional support for the views set forth in the paragraphs immediately preceding is found in the legislative history of the Missing Persons Act, as amended, supra. In their respective reports on H. R. 6446, Seventy-seventh Congress, the bill which was enacted as the Missing Persons Act, supra, the House Committee on Naval Affairs (Report No. 1680, dated 26 January 1942) and the Senate Committee on Naval Affairs (Report No. 1060, dated 13 February 1942) reported as follows:

The bill

would make suitable provision for the support of dependents of personnel of the Navy, Marine Corps, and Coast Guard, including the retired and reserve components of those services, and civilian employees of the Navy Department, who have been reported as missing, missing in action, interned in a neutral country, or captured by an enemy, and who are not presumed to be dead or to have deserted * *. [Italics supplied.]

It appeared from the foregoing that the Congress, in enacting the Missing Persons Act, as amended, supra, did not intend to bar from its benefits persons, or the heirs of persons, whose abandonment, however wanton, of a particular, local, and special post of duty aboard a ship has not been determined to be part of a larger design to depart from the ship itself. Neither in the opinion of the Judge Advocate General approved by the Acting Secretary of the Navy on 7 April 1941, nor in the report of the board of investigation convened by order of the Commander, Atlantic Squadron, on 9 March 1940, was there anything which would make it mandatory on the fact-finding body now to find that A must be considered as having been "absent from