DEPOSITED BY THE

IINITED STATES OF AMERICA

PR 26'45

COURT-MARTIAL ORDER NO. 1-1949 JANUARY 1949

Attempted fraud against the United States: failure of proof of damage to government.

A general court martial convicted an accused of the charges of (I) "Attempting a fraud in violation of Article 14 of the Articles for the Government of the Navy"; and (II) "Falsehood".

The single specification under Charge I alleged that the accused did "* on or about 3 February 1948, at the Disbursing Office, U. S. Naval Receiving Station, U. S. Naval Station, Norfolk, Virginia, wilfully, falsely and corruptly, and with intent to deceive for the purpose of thereby defrauding the United States, present to the disbursing officer at said receiving station, reenlistment leave papers dated 3 January 1948 and bearing on the face thereof a false representation, that he, had been granted reenlistment leave to leave ad

dress, '1265 Pine Street, San Francisco, California,' and he, did, then and there, further falsely represent to the said disbursing officer that he, the said (accused), was entitled to receive from the said disbursing officer a sum of money, property of the United States, for furlough travel allowance computed from Norfolk, Virginia, to San Francisco, California, and return, said furlough travel allowance amounting to the sum of about three hundred three dollars and fifteen cents ($303.15), well knowing that the said representation as to leave address on the said reenlistment leave papers was false, and well knowing that the said representation to the disbursing officer as to the furlough travel allowance, he * was entitled to * attempt to defraud the United States of a sum of money of about three hundred three dollars and fifteen cents ($303.15)

receive, was false, did,

The evidence adduced in support of the above specification showed that the travel and reimbursement therefor referred to therein was in connection with and by reason of reenlistment leave granted to the accused. Section 6 of the act approved October 6, 1945 (59 Stat. 539; 34 U. S. C. 895a) provides:

"Every person discharged or released from the military or naval forces on or after June 1, 1945, who enlists or reenlists in the Regular Military or Naval Establishment (irrespective of the Service from which discharged or released), and who is granted a reenlistment furlough or leave, shall be paid in advance at his option, at the time such furlough or leave becomes effective, a furlough travel allowance at the rate of 5 cents a mile for the distance betwen his home or such other place as, subject to regulations prescribed by the Secretary of the Department concerned, he may select, and the place at which he is stationed when the furlough or leave becomes effective, and for the distance between his home, or other place so selected, and the place at which he is ordered to report for duty at the termination of the furlough or leave. * *" [Italics supplied.]

ALNAV 360-45 of 26 October 1945, promulgated by the Secretary of the Navy pursuant to the provisions of Section 6, supra, reads, in pertinent part, as follows:

"For purposes paying furlough travel allowance man may give leave address as home of record as shown by new enlistment contract or such other place as he may select. However, if address shown on leave paper is other than home of record such place must be within continental United States and man will be required establish to satisfaction commanding officer that he intends to spend a portion of leave at place selected."

Regulations prescribed in Section 7501-2, U. S. Navy Travel Instructions, are to this same effect.

In Report No. 943, dated 6 September 1945, on H. R. 3951 (enacted as act of October 6, 1945, supra), the House Committee on Military Affairs stated as follows:

"Section 6 authorizes the payment of a reenlistment furlough travel allowance to persons now in the military or naval service who volunteer for enlistment or reenlistment in the Regular Army or Regular Navy✶✶✶ the furlough travel allowance is to be paid whether travel is performed or not." [Italics supplied.] The same explanation appears in Report No. 589 of the Senate Committee on Military Affairs, dated 10 September 1945.

An element essential to the offense here preferred under Charge I is that the government would have been damaged if the alleged attempted fraud had been consummated (N. C. & B., sec. 57). The evidence adduced in this case showed that the accused presented to a disbursing officer a leave certificate, approved by his commanding officer, in claim of furlough travel allowance, which certificate had after such

approval been altered without authority of this officer. The alteration consisted of erasing the approved leave address, "Spruce Mountain Lodge, Jackson, N. H.," and typing in lieu thereof "1265 Pine Street, San Francisco, California." The claim was not paid.

There was no evidence to show that 1265 Pine Street, San Francisco, California, was not the accused's home of record. Proof of this fact was essential to conviction since, under the applicable statute quoted above, the accused was entitled to travel allowance for the distance between his home of record and the place at which he was stationed when the furlough or leave became effective, and for the distance between his home of record and the place at which he was ordered to report for duty at the termination of the furlough leave, whether travel was performed or not, and irrespective of the alteration of the leave certificate. There was a failure of proof of potential damage to the government, an essential element of the offense here charged. Accordingly, the findings on Charge I, the specification thereunder, and, in view of the action of the convening authority setting aside the findings on Charge II and the specification thereunder, the sentence and the action of the convening authority thereon, were set aside. (File: MM-Whitman, Frank L./A17-20, 19 November 1948.)

"Desertion": introduction of service record as evidence when witnesses available.

A general court martial convicted an accused of the charges of (I) "Desertion"; (II) "Conduct to the prejudice of good order and discipline" (specification proved by plea); and (III) "Theft" (specification proved by plea).

The record of proceedings, in regard to Charge I, showed that after the counsel, with the acquiescence of the accused, admitted the identity of the accused and that he was serving at the station alleged, a prima facie case of desertion was established by the use of documentary evidence. This evidence consisted of extracts from the current service record of the accused showing his failure to return to his station upon the expiration of authorized leave on the date alleged in the specification, and his surrender at said station. The officer whose signature appeared in the service record of the accused in attestation of these entries, sat as president of the court during the trial of the accused.

A prima facie case of desertion may be established by the use of documentary evidence, such as was presented in the instant case. However, it has never been intended that evidence of this nature should supplant oral testimony of available witnesses who can testify of their own knowledge concerning the circumstances upon which the charge of desertion has been based. The documentary evidence of the kind used here should be offered only when witnesses are not available

to establish the essential facts (C. M. O.'s 5, 1925, 7; 6, 1926, 5, 7; 2, 1940, 173). Since this officer was present, he should have been called as a witness, in which case he should have been considered as challenged unless the accused expressly requested that he be not so considered, which request should affirmatively appear in the record (N. C. & B., sec. 389; C. M. O. 4, 1947, 80). The accused, who was represented by counsel, neither challenged the member nor objected to the introduction in evidence of the document in question. The evidence was competent, and under the circumstances the irregularities noted were not sufficient to invalidate the proceedings (N. C. & B., sec. 387; C. M. O. 2, 1940, 173).

The single specification under Charge II alleged that the accused, "while so serving at the U. S. Naval Submarine Base, New London, Connecticut, did, on or about July 20, 1948, at said submarine base, in violation of Chapter 332, Section 6365 of the General Statutes of Connecticut, providing as follows: 'Any auctioneer, commission merchant, factor or broker or any agent or attorney of any private corporation, voluntary association, business house or private individual, who shall take, purloin or secrete, or in any way appropriate to his own use or to the use of others, any of the goods, moneys, choses in action or property in his care or custody as such auctioneer, commission merchant, factor, broker, agent or attorney, or any moneys received by him for the sale of such goods, choses in action or property, or collected by him as such auctioneer, commission merchant, factor, broker, agent or attorney, with intent to defraud another, or with like intent, shall make any false entry upon any of their books, or keep false books or entries of and concerning their business and affairs, shall be fined not more than one thousand dollars or imprisoned not more than ten years or both,' appropriate to his own use the sum of eighty dollars ($80), said sum of eighty dollars ($80) being the property of one A, fireman apprenctice, U. S. Navy."

The allegation in the above specification that the accused appropriated to his own use the property of another did not set forth a violation of the statute in question in the absence of averments that the accused came within one of the classes of persons described in the statute and that he did the act with intent to defraud another. A specification must on its face allege facts which constitute a violation of some law, regulation, or custom of the service. It is not sufficient that the accused be charged generally with having committed an offense, but the particular acts or circumstances attending a specific offense must be distinctly set forth in the specification (N. C. & B., sec. 27; cf. C. M. O. 12, 1925, 10). In view of the foregoing, the specification was defective on its face in that it failed to state an offense. Accordingly, the proceedings and findings on Charge II and

the specification thereunder, and the action of the convening authority thereon were set aside. (File: MM-Allsop, Charles/A17-20, 7 December 1948.)

Hearsay evidence: Report of Board of Medical Survey.

A general court martial convicted an accused of the charges of (I) “Assaulting another person in the Navy," and (II) "Conduct to the prejudice of good order and discipline” (3 specifications; specification 1 proved; specification 2 nolle prosequi entered; specification 3 not proved).

The record showed that the accused offered certain evidence tending to establish the defense of insanity to the offenses charged. In rebuttal, the prosecution offered in evidence an authenticated copy of a Report of Board of Medical Survey, which report contained the conclusion that the accused was competent and responsible for his acts at the time the report was made and at the time of the commission of the alleged offenses. The accused objected to the admission of this report on the ground that it was hearsay. The court did not sustain the objection and admitted the report.

The Report of Board of Medical Survey offered by the prosecution was inadmissible because it was hearsay (C. M. O. 6, 1924, 5). The fact that the copy offered was duly authenticated did not cure this defect (N. C. & B., sec. 196). The court erred in admitting this document which militated to the substantial injury of the accused.

Based upon the error noted above, the Acting Secretary of the Navy directed that the accused be informed that should he so request, he would be granted a new trial on the same charges and specifications as were found proved by the court. The accused requested that he be granted a new trial. Accordingly, the proceedings, findings and sentence, and the action of the convening authority thereon, were set aside. (File: MM-Arnett, Raymond L./A17-20, 17 January 1949.)

Line of duty status: retired members of naval personnel: income tax. Numerous letters from various Collectors of Internal Revenue and retired personnel of the naval service have recently been forwarded to this office by the Bureau of Medicine and Surgery for a determination of the line of duty status of the disabilities for which certain members of the naval service have been placed on the retired list of the Navy. These letters have been forwarded to this office in accordance with a belief which has apparently existed for quite some time in the Navy Department that line of duty determinations should be furnished to the Collectors of Internal Revenue and retired members of the naval service in order that such Collectors may determine whether or not the man in each particular case is entitled to income tax exemption under the provisions of Section 22 (b) (5) of the Internal Revenue