Army officer as "superior officer" of naval personnel.

The officer in charge of a naval unit reported that "Minor cases of insubordination have already occurred" among the "Many personnel of this command (who) perform their regular duties under Army officers and non-commissioned officers" and requested the Commandant of the Naval District "that this command be informed if there has been any change in the opinion" rendered in Court-Martial Order No. 8, 1945, page 349, because "Adherence to (such opinion) might well cause embarrassment to the Officer in Charge in the enforcement of discipline."

In response to the foregoing request, the Commandant of the Naval District stated that "There has been no change in the dictum as set forth in" Court-Martial Order No. 8, 1945, page 349, above cited. The advice of the Judge Advocate General was requested if such statement is not correct. In the opinion of the Judge Advocate General, the statement is correct. The Court-Martial Order referred to therein held that "An Army officer does not come within the meaning of 'superior officer' to support the charge" preferred of "Disrespectful in language to his superior officer while in the execution of his office." To the same effect is Court-Martial Order No. 11, 1945, page 435, wherein it was held that an Army officer does not come within the meaning of "superior officer" to support the charge preferred of "Disobeying the lawful order of his superior officer."

In further reply, the Commandant of the Naval District suggested that the officer in charge promulgate a "local station order to the effect that naval personnel (who perform their regular duties under Army officers and non-commissioned officers) shall obey all lawful orders issued by the aforesaid ranks of the Army as having emanated from the Officer in Charge." In the request for the opinion of the Judge Advocate General, however, the Commandant stated that the foregoing suggested solution of the question "is not satisfactory except as a temporary measure" because "It is not believed that Army officers, placed in line of command over naval personnel, should have to derive their authority through the means of a local station order, and vice versa," and that the question "will undoubtedly recur with increasing frequency in view of the fact that (the National Security

Act of 1947, Public Law 253, 80th Congress) is now law." It was further requested that remedial legislation be instituted provided the Judge Advocate General was in agreement with the foregoing statements.

The Judge Advocate General did not concur in the conclusion that remedial legislation was necessary. The National Security Act of 1947, above cited, contemplates the unification rather than the merger of the various branches of the armed services. It was the opinion of the Judge Advocate General that, for the present at least, at activities where personnel of different services are employed jointly, the question of the authority of a member of one service over members of another service may be resolved by directives issued by the cognizant authorities. No embarrassment in the enforcement of discipline because of adherence to the decisions in the Court-Martial Orders, above cited, is foreseen. It should be noted that in each it was held that although an Army officer is not a "superior officer" within the meaning of the specific charges preferred, the specifications did support the general charge of "Conduct to the prejudice of good order and discipline." (File: JAG:II:GSS:rs, 19 Mar. 1948.)

Claim for per diem allowance.

A decision of the Comptroller General was requested as to whether an officer was entitled to per diem reimbursement from Port Hueneme, California, to Bermuda on the basis of travel over direct route via government air in the circumstances described below.

The officer's orders of 31 October 1946 ordered him to proceed from Bermuda, to Port Hueneme, California, and report to the officer-incharge, U. S. Naval School (Naval Justice) for temporary additional duty under instruction, upon the completion of which he was to return to his permanent duty station. The orders prescribed that travel be performed by government air where available and commercial air where government air was not available. Per diem of $7 was authorized except while at Port Hueneme, California.

By first endorsement dated 21 December 1946 to the orders of 31 October 1946, the officer was detached from temporary additional duty and granted 15 days' leave, and was ordered to comply with basic orders as modified. The officer traveled by commercial air from Port Hueneme to Washington, D. C., by an undisclosed route, and from Washington, D. C., to Bermuda by government air. It appeared that government air transportation was available from Port Hueneme, California, to Washington, D. C., on the date of the officer's detachment from temporary additional duty. No question existed as to his entitlement to per diem during the time of travel from Washington, D. C., to Bermuda.

Not having used the government air transportation available to him, some question existed as to the officer's entitlement to per diem

during travel between Port Hueneme, California, and Washington, D. C., by commercial air. It will be noted that the mere fact that commercial air was used did not preclude his entitlement to per diem. His orders provided for per diem except while at Port Hueneme. Travel by commercial air is authorized should government air not be available, and per diem is authorized during travel time by either government or commercial air. Looking at the whole purport of the officer's orders, only two complete limitations were apparent, one express, the other implied. The express limitation was that no per diem was to be paid while at Port Hueneme. The implied limitation was the rule set forth in Article 415 3–1 (7), U. S. Navy Travel Instructions, as follows:

"Per diem is not allowed during periods of *

leave

The route traveled by the officer from Port Hueneme to Washington was not shown nor was there any indication as to the number of days' leave with which he was charged. It was clear, however, that upon the date of his detachment from Port Hueneme, he was entitled to 15 days' leave plus necessary travel time before being required to report to his duty station at Bermuda. Under any reading of his orders, he was entitled to per diem at all times except while at Port Hueneme and while on leave. During the time necessarily occupied by travel by government air from Port Hueneme, California, to Washington, D. C., should that medium have been used, leave would not have been charged nor would per diem have been denied. Since, as has been shown, per diem would not have been denied merely because commercial air was used over any part of his route, at any time during the carrying out of his orders, the officer's use of commercial air did not work a forefeiture of his right to per diem. The measure of his entitlement should not be more than would have accrued during travel by government air, however, since the itinerary actually followed was chosen for his own convenience, government air having been available between Port Hueneme and Washington.

Accordingly, the officer was entitled to per diem on the basis of direct travel by government air from Port Hueneme, California, to Washington, D. C., in accordance with the schedule set forth in the preceding endorsement, and from Washington, D. C., to Bermuda on the basis of time actually consumed in travel, and settlement should be made accordingly. In view of the foregoing, reference to the Comptroller General was not deemed necessary. (File: JAG: II: EJT: mh, 22 Mar. 1948.)

Convening authority's failure to mitigate sentence, excessive by reason of his action on the findings.

An officer was convicted by a general court martial of the charges of (I) "Conduct to the prejudice of good order and discipline" (speci

fication proved in part); and (II) "Absence from station and duty without leave" (specification proved in part).

The court sentenced the accused to lose $500 of his pay, and to be dismissed from the U. S. naval service. The convening authority, subject to remarks, disapproved the findings on Charge I and the specification thereunder; and approved the proceedings, the findings on Charge II and the specification thereunder, and the sentence.

Inasmuch as the convening authority disapproved the findings on Charge I and the specification thereunder, the sentence exceeded the limitations of Naval Courts and Boards, Section 457, in the case of an officer for the remaining offense (Absence from station and duty without leave) of which the accused stood convicted. That part of the sentence which related to loss of pay was in excess of the limitation imposed. Accordingly, so much of the sentence as exceeded dismissal, and the action of the convening authority thereon, were set aside (C. M. O.'s 11, 1945, 459; 1, 1942, 271). (File: 00-Powell, Raymond Earl/A17-20, 9 Jan. 1948.)

Countenancing a fraud: essential elements.

A general court martial convicted an officer of the charge of (I) "Culpable inefficiency in the performance of duty" (3 specifications); Additional Charge I, "Countenancing a fraud in violation of Article 14 of the Articles for the Government of the Navy"; and Additional Charge II, "Violation of a lawful regulation issued by the Secretary of the Navy."

The single specification under Additional Charge I alleged that the accused did, while Officer-in-Charge of CHA-3, wilfully with intent to deceive, for the purpose of aiding one A, defraud the Government of the United States, conceal, withhold, and fail to give complete and accurate information concerning activities of said A, knowing that during the period of 1 August 1944 to 1 August 1945, A was employed by CHA-3 as a purchasing agent at a stated salary and that A engaged in business transactions with the American Pacific Trading Company totalling in excess of $100 when he, A, was at the same time a member of the aforesaid firm and directly interested in its profits.

The accused objected to the specification of Additional Charge I on the ground that there was no allegation of the countenanced fraud. "Countenance" when used as a noun means encouragement, aiding, and abetting (Black's Law Dictionary, 3d ed., page 451) and "to countenance" when used as a verb means to encourage by favoring aspect, abet, aid, approve, favor, sanction, or support but means more than merely to witness (20 Corpus Juris Secundum 716). An indictment, charging a defendant as a principal for aiding and abetting in the commission of a crime, does not charge an offense where the act of the principal does not itself constitute a crime (Manning v. Biddle, 14 F. (2d) 516). To constitute actionable fraud ̊it must

appear: (1) that the accused made a material representation; (2) that it was false; (3) that when he made it he knew it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by the person to whom made; (5) that this person acted in reliance upon it; and (6) that he thereby suffered injury. Each of these facts must be proved, as the absence of any one of them is fatal. Fraud without damage or damage without fraud is not actionable (N. C. & B., sec. 57; C. M. O.'s 3, 1930, 17; 10, 1923, 9).

The specification of Additional Charge I failed to specify the elements of the fraud alleged to have been committed by A, without which the specification was defective, and the court erred in failing to sustain the objection of the accused (Manning v. Biddle, supra; cf. C. M. O. 1, 1940, 40). Accordingly, since timely objection was made by the accused, the findings on Additional Charge I and the single specification thereunder and the action of the convening authority thereon, were set aside.

The following irregularities in the record were noted, none of which were prejudicial errors. A question by the judge advocate to a witness was objected to by the accused on the same ground he had used in a previous objection to a similar question which had been overruled. The record did not show a ruling by the court to the objection as required by Section 271, Naval Courts and Boards, (C. M. O. 1, 1937, 10), although the witness was allowed to answer. Since the evidence was admissible, the rights of the accused were not prejudiced (C. M. O. 7, 1931, 18).

The judge advocate, while attempting to prove the failure of the accused to keep proper accounts, asked a witness if it was good business practice or good ethics to extend the accountability of the individual listed on one of the exhibits, without first consulting that individual. The accused objected to this question on the ground that it called for a conclusion of the witness. The court overruled the objection and the witness answered. Later, while under cross-examination on the same transaction the witness was questioned by the accused regarding the accountability of the individual listed on the same exhibit. The judge advocate objected on the ground that the question was beyond the scope of the direct examination. The court sustained the objection. Such a ruling was erroneous since it was within the scope of the direct examination (N. C. & B., sec. 282). Since the record contained ample evidence to support the court's findings that the accused failed to keep proper accounts, the above ruling did not prejudice the rights of the accused (Cf. C. M. O. 3, 1943, 128).

The record showed another irregularity in that Captain B, U.S.N.R., was absent during a session held on 7 March 1947. The record showed that on 14 March 1947 the judge advocate read an