empowers the Secretary to retain patients who have entered said hospital upon their own application. It is my opinion, however, that if, subsequent to the admission to this hospital of persons belonging to the Navy, orders were issued for their confinement, the Secretary of the Navy, in that event, could retain such persons. Conversely, if patients were admitted to the hospital solely as the result of their own application and orders were not issued for their confinement, it is my opinion that the Secretary of the Navy could not detain them indefinitely against their own wishes. Such patients might be detained only for a reasonable period of time so that orders might be issued for their confinement, if that course of action were deemed advisable in the interests of society and the individuals concerned. In view of the foregoing, it is the opinion of this office that the Secretary of the Navy is authorized to order to and to retain in the Fort Worth hospital insane retired naval personnel irrespective of their wishes in the matter. It is noted, however, that whereas prior to the effective date of the Reorganization Plan of 1946 the determination of cure and subsequent discharge of patients by virtue thereof could be accomplished by someone (the Superintendent, St. Elizabeths) not within the jurisdiction of the Secretary of the Navy, the Reorganization Plan of 1946 had the effect of placing entirely within the province of the Secretary of the Navy all determinations relative to subject insane persons, including the power to determine if cure has been effected so as to warrant discharge, as well as the powers theretofore held to order for treatment, retain, and discharge said persons. Although there is thus centered in the Secretary of the Navy, by the Congress, unqualified power to make these determinations relative to such persons, it is suggested that, in order that it may be evident that the rights of the individuals concerned are fully protected, and to avoid criticism that no right of appeal is left to said individuals, consideration be given to providing for periodic examinations of said individuals by qualified physicians who are not connected with the naval service. (File: JAG: II: NLM: mjc, 21 May 1948.) “Unauthorized absence": duplication: "Negligence in obeying orders." An accused was convicted by a general court martial of the charges of (I) "Unauthorized absence" (three specifications proved by plea); and (II) “Negligence in obeying orders" (specification 2 proved by plea; specification 1 nolle prossed). The third specification under Charge I alleged that the accused "while en route, pursuant to lawful orders, from the U. S. Naval Air Station, Olathe, Kansas, * * *, did, on or about 29 October 1947, without leave from proper authority, absent himself from his station and duty * * *, and did remain so absent from the U. S. naval service for a period of about seven days." The second specification under Charge II alleged that the accused, having, on 27 October 1947, received lawful orders from the commanding officer of the U. S. Naval Air Station, Olathe, Kansas, to report to the U. S. Naval Training Center, San Diego, California, on 29 October 1947, neglected and failed to report until 5 November 1947. The pleadings indicated that the offenses alleged in the third specification under Charge I and in the second specification under Charge II were based on and resulted from the same course of action. The second specification under Charge II amounted only to a recital of the manner in which the accused absented himself and added nothing to the offense alleged in the third specification under Charge I, which fully covered the acts of the accused. Therefore, inasmuch as there were no aggravating circumstances, there was no necessity to resort to plurality of charges (C. M. O. 8, 1947, 247). Accordingly, the findings on Charge II and the second specification thereunder, and the action of the convening authority thereon were set aside. (File: MM-Watson, Joe W./A17-20, 17 February 1948.) JOHN L. SULLIVAN, WASHINGTON, D. C., 9 June 1948. INDEX Absence from station and duty after leave had expired: PAGE Proper charge "Absence from station and duty without 155 Absence from station and duty without leave: Proper charge: absence continuing after expiration of leave. 155 Approval of finding of, by convening authority improper.. 158 175 Section 34: permanent legislation for appropriation Pay to officers: on shore duty within continental United Affray: ment.. Duplication: "Conduct to the prejudice of good order and 155 157 Appropriations: Patent right, use for-- 175 Arguments: Improper: judge advocate: acquittal to be justified_ _ _ _ _ 158 Leave during waiting period preceding retirement... - - 170 Army Nurse Corps: Service in, in computing length of service of Navy Nurse 183 of his office: Duplication: "Attempting to strike his superior officer while Attempting to break arrest: "Conduct to the prejudice of good order and discipline" the 160 158 Attempting to strike his superior officer while in the execution Duplication: "Assaulting his superior officer while in the Boards of investigation: PAGE 160 Reports of losses of public property to show complete losses 182 Charges: multiplicity: one intent accompanying more than 160 Specification defective: failure to allege violation of essential 158 Specification to be laid under more appropriate charge: Chief of Naval Personnel: 155 Reduction in rating as administrative act: personnel enlisted 177 China: Civilian employment in officers' club or mess: Defense Base 161 Employees of officers' club or mess in China or other foreign country: Defense Base Act: applicability. Conduct to the prejudice of good order and discipline: Duplication: "Affray". Proper charge rather than "Attempting to break arrest"-Confinement: Mitigation: loss of pay to be reduced... 161 157 158 186 Convening authority of courts martial: Approval of finding of acquittal improper. Defense Base Act: Applicability: employees of officers' club or mess in China or PAGE 158 161 Employment in officers' club or mess in foreign country as 161 Desertion: Drunkenness: Enlisted men: "Breaking arrest": separate and distinct offenses. 157 Defense: offenses requiring specific intent.. 163 Reduction in rating. (See Reduction in rating.) Enlistment: Extension: minors: lack of consent of parent or guardian 166 Extension of enlistment: See Enlistment. Foreign: Country: civilian employment in officers' mess or club: De- 161 Hospitalization: Insane patients, retired naval personnel: Public Health Hos- 187 Insane: Retired naval personnel patients: authority of the Navy 187 Intent: Disobedience or disrespect to superior officer: drunkenness 163 Judge advocate: Argument improper: acquittal to be justified_ _ _ Jurisdiction: 158 Secretary of the Navy: insane retired naval personnel pa- 187 Leave: Accrued: effect of retired officer recalled to active duty___ 170 170 Length of service: Computation for: Nurse Corps; service in Army Nurse Longevity: See Length of service. 183 |