Advocate General that claims arising out of such a situation could be adjusted and settled by the Navy Department under the provisions of the Act of December 28, 1945, supra, as incident to the noncombat activities of the Navy Department or of the Navy. All claims of this nature filed against the Navy Department should conform with the instructions contained in Navy General Claims Regulations, Navy Department Bulletin, 31 January 1946, 46-194. Attention was invited to the fact that the amount allowed on account of personal injury or death is limited to reasonable medical, hospital, and burial expenses actually incurred, except that no payment may be made to any claimant in reimbursement for medical or hospital services furnished at the expense of the United States nor, in the case of burial, of such portion of the expense thereof as may be otherwise paid by the United States. Attention was further invited to the fact that the Secretary of the Navy is authorized to report a claim in excess of $1,000 to Congress for its consideration. (File: JAG: III: RFM: vn, 26 Mar. 1948.)

Naval Reserve meeting places: liability of Navy for injuries in and damages to premises.

Advisory opinions were requested of the Judge Advocate General on the following questions relating to the use by the Naval Reserve of premises of another under written and unwritten leases and agreements:

(a) What is the liability of the Navy for injuries incurred by Naval Reservists on drill night while on these premises?

(b) What is the liability of the Navy for damages to these premises caused by Naval Reservists on drill night?

(c) Is the Navy legally bound by the leases and agreements (written and unwritten) whereby these temporary meeting places have been obtained?

The Act of June 25, 1938 (52 Stat. 1181, as amended; 34 U. S. C. 855c), provides that:

"If in time of peace any member of the Naval Reserve is physically injured in the line of duty while performing active military or naval service, or dies as the result of such physical injury, he or his beneficiaries shall be entitled to all the benefits prescribed by law for civil employees of the United States who are physically injured in the line of duty or who die as the result thereof, and the United States Employees' Compensation Commission shall have jurisdiction in such cases and shall perform the same duties with reference thereto as in the cases of civil employees of the United States so disabled: Provided, That where a person who is eligible for the benefits prescribed by this section is also eligible for pension under the provisions of the

Act of June 23, 1937, ch. 376, entitled 'An Act to amend the provisions of the pension laws for peacetime service to include Reserve officers and members of the enlisted Reserves' (50 Stat. 305), he shall elect which benefit he shall receive, and for the purposes of this section and of said Act June 23, 1937, all members of the Naval Reserve shall be considered as performing active military or naval service while performing actice duty with or without pay, training duty with or without pay, drills, equivalent instruction or duty, appropriate duty, or other prescribed duty, or while performing authorized travel to or from such duties; Provided further, That for the purpose of determining the benefits to which entitled under the provisions of this section Naval Reservists so physically injured while performing the foregoing duties in a nonpay status will be held and considered as receiving the pay and allowances they would have received if in a pay status: * * * Provided further, That any member of the Naval Reserve performing active duty with or without pay for periods of thirty days or less, training duty with or without pay, drills, * prior to the official termination of World War II, shall be entitled to all the benefits provided by this section to members of the Naval Reserve in time of peace:

(Italics supplied.)

Some doubt exists as to whether or not a member of the Naval Reserve may legally obtain relief under the provisions of the Federal Tort Claims Act, Title IV of Public Law 601, 79th Congress, approved 2 August 1946, for personal injuries sustained on drill night as the result of negligence of naval personnel acting within the scope of their employment. This question, of course, must remain unanswered until decided by the Federal Courts. Inasmuch as the answer to this question may be in the affirmative, the potential liability under this statute constitutes an additional reason for including in the proposed procedures contemplated by the Assistant Chief of Naval Operations (Naval Reserve), a directive that all reasonable precautions be observed to avoid injuries resulting to members of the Naval Reserve through the negligence of either Regular or Reserve personnel of the Navy acting in line of duty or within the scope of their employment. In view of the above, it would appear that when a person who is eligible for compensation benefits under the provisions of the Compensation Act of September 7, 1916, as amended, is also eligible for pension under the provisions of the Act of June 23, 1937, supra, shall elect which benefit he shall receive. If not eligible for pension, such person may apply to the Bureau of Employees' Compensation, Federal Security Agency for compensation benefits prescribed by law for civil employees of the United States. Instructions covering this matter are set forth in Chapter 7, Section 3, Bureau of Naval Personnel Manual, Part H (Revised 1947), Instructions Relating to the

he

Naval Reserve, NavPers 15,661. A tort action is, as stated, also possible.

In answer to question (b), it may be stated that members of the Naval Reserve are either lessees or licensees on the premises, depending on whether or not they are in occupancy under a written lease or oral agreement, respectively. In the case of U. S. v. Bostwick (94 U. S. 53, 24 L. ed. 65), it was held that by a lease from a landlord to a tenant, a covenant is raised, by implication of law in the absence of express covenants in reference thereto that the tenant shall so use the leased property that no unnecessary or substantial injury shall be done to it. And in the case of Mitchell v. Big Six Dev. Co. (186 Fed. 552), it was held that a tenant is liable in the absence of an express agreement to the contrary, for causing a permanent injury to the leased premises over and above the ordinary wear and tear, when such injury is caused by his wrongful act or negligence. Furthermore, in the case of Parrott v. Wells (15 Wall. (U. S.) 524, 21 L. ed. 206), it was held that the measure of care which a tenant must use to avoid responsibility is that which a person of ordinary prudence and caution would use if his own interest were to be effected and the whole risk was his own. The general rule is that a tenant will be liable for an injury caused by a fire arising through his negligence where his degree of care was not that of a careful and prudent person in the possession of his own property (U. S. v. Bostwick, supra).

When a person enters into possession of premises of another under an oral agreement which does not provide for the payment of rent, he is in the position of a gratuitous licensee and it is incumbent upon him to exercise the highest degree of care in the use of the premises. He is obliged to treat the premises in such a manner that no harm be done to them so that the premises may be returned to the owner, undeteriorated by any willful or negligent act.

In view of the information contained in the two preceding paragraphs, it would appear that the Navy is liable for damages to premises caused by the negligent or willful acts or omissions of members of the Naval Reserve, acting within the scope of their employment, whether or not the premises are used and occupied by the Naval Reserve under either a written or unwritten lease or agreement. Furthermore, such liability would be enforceable against the United States under the Federal Tort Claims Act, supra, even if the lease of the particular premises was not binding upon the United States. The proposed procedures contemplated by the Assistant Chief of Naval Operations (Naval Reserve) should therefore include reasonable precautions to avoid occurrence of such property damages.

Assuming that the Naval Reserve has entered into these leases and agreements both written and unwritten, under proper authority, question (c) was answered in the affirmative. The question of what constitutes proper authority to bind the United States and the Navy

Department in the execution of leases, is within the cognizance of the Bureau of Yards and Docks and the proposed procedures contemplated by the Assistant Chief of Naval Operations (Naval Reserve) should, therefore, in the matter of the execution of leases, conform to procedures prescribed therefor by that Bureau. (File: JAG: III: RFM: vn,

10 Nov. 1947.)

Newly discovered evidence affecting credibility of witness.

A general court martial convicted an accused of the charges of (I) "Embezzlement" and (II) "Unlawfully having in his possession a forged certificate of discharge knowing same to be forged" (specification proved by plea).

*

The single specification under Charge I alleged that the accused, "having received in his possession on or about 7 November 1946, *, a sum of about thirteen hundred dollars ($1300.00), the property of one * *, to be used by him, the said (accused), for the purpose of purchasing an automobile for the said * *, and having failed and neglected to purchase said automobile as he agreed to do, did on or about 7 November 1946, feloniously embezzle and convert to his own use the said sum of thirteen hundred dollars ($1300.00), lawful money of the United States, the property of said

*

The sole evidence adduced at the trial to show that the accused received $1300 from the prosecutrix to purchase an automobile for her, and that he refused to return the money, was the testimony of said prosecutrix. This evidence, together with statements of other witnesses and admissions of the accused that at or about 7 November 1946, he, the accused, made various expenditures of approximately $1300, was sufficient evidence to support the findings of the court in regard to the charge of embezzlement and the specification thereunder (N. C. & B., sec. 100).

Subsequent to the trial and the action of the convening authority on the record of proceedings, the counsel for the accused submitted to the Judge Advocate General a statement which was made and sworn to before a naval officer by one of the trial witnesses. This statement showed that some time after the trial, the prosecutrix said to the affiant, "I lied to put one man in jail and I will lie to put you in jail." If, at a new trial, it could be established that the prosecutrix did lie to put the accused in jail, then it would necessarily follow that the crime was not committed. If, however, the purported statement of the prosecutrix had reference to someone other than the accused, such statement, if proved to have been made, at least would be available to the accused for the purposes of impeachment. This newly discovered evidence indicated a serious lack of credibility of the witness, without whose testimony no offense could have been proved, and cast grave doubt as to the guilt of the accused (C. M. O. 8, 1945, 350).

Based on the above information, the 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 Charge I and the specification thereunder of which he was originally found guilty. The accused requested that he be granted a new trial upon this charge and specification. Accordingly, the proceedings and findings on Charge I and the specification thereunder, and the action of the convening authority thereon, were set aside. The sentence on the remaining charge and specification was reduced, in the present case, to within the limits prescribed in Section 457, Naval Courts and Boards. (File: MM-Hulsey, Harold E./A17-20, 9 Oct. 1947.)

Promotion of commanders reduced from temporary rank of captain.

The opinion of the Judge Advocate General was requested on the question as to whether officers whose temporary appointments in the grade of captain were terminated and who are now serving in the grade of commander pursuant to the redistribution of officers as provided by the Officer Personnel Act of 1947 "must be reselected for captain when vacancies occur in that rank."

* ** *

The foregoing question is governed by the provisions of the Officer Personnel Act of 1947. Pursuant to subsection 304 (p) thereof, “All temporary promotions to grades above that of lieutenant (junior grade) shall be only upon the recommendation of a board of naval officers as (therein) prescribed," and pursuant to subsection 304 (q) thereof, "All permanent promotions shall be effected, from among officers temporarily promoted, in the manner prescribed in section 311 * **" Section 311 of the above named Act provides for the permanent appointment of officers to the various grades above lieutenant (junior grade) from among officers serving in such grades under temporary appointments or who are on the promotion list for temporary appointment thereto.

In view of the foregoing, it was the opinion of the Judge Advocate General that prior to temporary promotion or permanent appointment to the grade of captain, an officer now serving in the grade of commander must have been selected for temporary promotion to that grade by a selection board of naval officers as prescribed in the Officer Personnel Act of 1947, regardless of whether or not he has previously served in the grade of captain under temporary appointment after selection therefor by a board established prior to the enactment of the Officer Personnel Act of 1947.

Information was also requested with respect to the practice of the Navy Department in the application of subsection 412 (a) of the Officer Personnel Act of 1947 to cases of officers, when retired, who have been specially commended for their performance of duty in actual combat by the head of the executive department under whose jurisdiction such duty was performed. Attention is invited to BuPers