try." (tales supplied)

As an incident to the restoration of order in the occupied territory, the occupant should bring to trial those offenders who have herec fire escaped punishment by reason of the breakdown of the judicial machinery. The proper law to be applied was, therefore, the ideal law which was in force at the time of the commission of the ofense, L. e. the Criminal Code of Japan (Cf. Oppenheim's International Law (Lauterpacht), Vol. II, sec. 172).

The definition of spies is contained in the Hague Convention of 1307, Convention IV. Article 29. The limitations set forth in that Article do not include any limitation based on the nationality of the spy. Article 30 of the same convention provides that no one shall be punished as a spy without previous trial (Cf. International Law by Charles Cheney Hyde, Vol. III. 21 Rev. Ed., sec. 677).

In view of the above, the commission had jurisdiction to try the accused for a violation of Japanese law and for a violation of the laws and customs of war.

The allegations of killing the named natives (specifications 1 and 2 of Charge I) and the allegations of punishing the same natives as spies without trial by killing them (specifications 1 and 2 of Charge II) being based as they were on the same circumstances, were preferred to provide for the contingencies of proof. Therefore, since the accused was convicted of four offenses growing out of but two acts, the findings on Charge II, and specifications 1 and 2 thereunder, and the actions of the convening and reviewing authorities thereon, were set aside. (File: 00-Inoue, Fumio/A17-10, 26 Jan. 1948.)

Missing Persons Act: claim of employee of local company for pay and allowances while a prisoner of the Japanese.

A chief engineer, U. S. N. R., employed by a stevedoring company in the Philippine Islands, presented a claim for pay and allowances for a period of 3 years, 1 month and 1 week, during which he was held prisoner by the Japanese enemy. The statute under which such a claim must be made is the Missing Persons Act (approved March 7, 1942, 56 Stat. 143, as amended and codified in 50 U. S. C. 1001, et seq.). Section 2 of the Act provides, in pertinent part, as follows:

"Sec. 2. Any person who is in active service and who is offi-. cially 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

The terms "person" and "active service" are defined in the Act as follows:

"(a) The term 'person' means (1) commissioned officer, warrant officer, enlisted person (including persons selected under the Selective Training and Service Act, as amended), member of the Army or Navy Nurse Corps (female), wherever serving; (2) commissioned officer of the Coast and Geodetic Survey or the Public Health Service; and (3) civilian officers and employees of departments during such time as they may be assigned for duty or serving outside the continental limits of the United States or in Alaska, exclusive of parttime or intermittent employees or native labor casually hired on an hourly or per diem basis. "(b) The term 'active service' means active service in the Army, Navy, and active federal service performed by the civilian officers and employees defined in paragraph (a) (3) above."

*

It was apparent that, in order to sustain the claim, the claimant must be shown either to have been on active service in the Navy at the time of his capture by the Japanese, or to have been a civilian employee of the Navy Department at the time of such capture. It did not appear, nor was it contended, that the claimant was a civilian employee of the Navy Department. The contention of the claimant's attorney was, rather, that he was legally ordered to duty by the Navy Commander for North China at Hongkong on December 8, 1941, and was thereafter in active service in the Navy.

This contention was not in accord with the allegations set forth in the claimant's statement. He stated that he was told by the authorities at the Cavite Navy Yard "to continue working with the

* Stevedoring Co. at P600.00 per month." He stated further that "if I had joined the Navy, I would have received my monthly salary from the U. S. Navy as other people did, who were called back." The Bureau of Naval Personnel advised that the records of that Bureau did not disclose that the claimant was ordered to duty at any time during the recent war.

It seemed clear, therefore, that the claimant, at the time of his capture by the Japanese, was in the employ of the stevedoring company, and not in active service in the Navy. Consequently, he did not qualify for benefits under the Missing Persons Act, as a Naval Reservist in active service in the Navy. (File: JAG :II:EJT:mgl, 26 Feb. 1948.).

Missing Persons Act: reopening of settlement on basis of information that deceased was still alive during missing status.

The question was raised as to whether a settlement of arrears in pay to the heirs of a deceased Navy civilian employee under the Missing Persons Act (Act of March 7, 1942, 56 Stat. 143, as amended;

50 U. S. C. 1001 et seq.), should be reopened on the basis of subsequent information to the effect that the employee performed compensated service as a Philippine guerrilla while in a missing status.

It appeared that the individual in question, A, was a civilian employee of the Cavite Navy Yard when that activity was abandoned to the Japanese in December 1941. He was carried in a missing status until Manila and environs were returned to United States jurisdiction on 28 February 1945. The Navy Department made a formal finding of death as of that time and authorized settlement of arrears in pay for the period from 15 December 1941 to 28 February 1945. A check for $2,438.24 was forwarded to the decedent's heirs by the General Accounting Office on or about 1 July 1947 and is now in the hands of the Army agency administering such payments locally in the Philippines.

Subsequent to the Navy's determination and authorization of settlement, it was disclosed that A joined the Philippine underground during the Japanese occupation, and served with guerrilla forces which operated to sabotage enemy installations and render assistance to the allied cause. He was arrested by the Japanese on suspicion of such activity on 24 November 1944, and was never seen by his family again. Sometime after the return of United States forces to the Philippines, the Army authorities received evidence of A's underground activity and determined that he was entitled to arrears in pay as a guerrilla lieutenant for the period from 5 October 1943 to 24 November 1944, in accordance with laws, later discussed herein, providing compensation for such services. On or about 28 May 1947 the Army settled on decedent's heirs P861.27 ($430.64) representing such arrears in pay. In view of this settlement, the local administrative office in the Philippines held up the check covering A's arrears in pay as a naval employee, pending information as to whether such settlement was affected by his interim service with the Philippine guerrillas.

The Missing Persons Act provides that any person in the active service, including civilian employees serving outside the United States, officially determined to be missing under certain specified circumstances, shall have credited to his account the pay and allowances to which he was entitled at the beginning of his absence, until receipt of evidence of death, or official finding of death. Finding of death is to be made twelve months after disappearance unless it can reasonably be presumed that he is living at such time. In the latter event the finding is made when lapse of time without information is sufficient to establish a reasonable presumption that he is dead. Any determination made under the Act may be modified or changed when circumstances warrant reconsideration of such determination.

The first question in the case was whether the Navy's determina. tion was proper and lawful in the first place. In this connection, the determination was arrived at in accordance with statutory re

quirements. A was determined to be missing. After a year there was reason to believe that he was alive and he was continued in a missing status. When, on return of United States forces to the Philippines two years later, there was still no word from A, it was reasonable to presume that he was dead and a finding was entered accordingly. The Navy's action was lawful in every respect.

The next consideration was whether the evidence since adduced rendered the determination unlawful. Even though the Navy had no actual notice of A's activity as a guerrilla, the determination made must now be viewed as contrary to fact and unlawful if the Navy should have known or had constructive notice of such activity. Analysis of the facts disclosed that the doctrine of constructive notice was inapplicable. A's status as a guerrilla had not been established at the time of the Navy's action. Such status was later and retrospectively found and determined on the basis of evidence subsequently presented to Army authorities. The Navy, therefore, could not have been charged with knowledge of a status which did not exist.

Thus it appeared that the Navy's determination was lawfully made and may be lawfully sustained. As previously indicated, however, any determination made under the Act may be reopened for good cause appearing. The question remaining was whether the circumstances presented herein warranted a reopening of the determination and the settlement predicated thereon. The question turned on the nature and implications of A's service and compensation as a member of the Philippine guerrillas.

The Philippine Independence Act of 1934 (48 Stat. 456, as approved March 24, 1934, 48 U. S. C. 1231-1247), set up a plan for the eventual independence of the Philippines. It provided, among other things, that the United States might maintain armed forces in the Philippines until final withdrawal of United States sovereignty, and that the President might call into such forces all military forces organized by the Philippine Government. The military forces of the Philippines were called into the armed forces of the United States by Military Order of 26 July 1941 (Fed. Reg., Aug. 1941, p. 3825). On 17 November 1944, the President of the Philippines recognized, confirmed in grade or rank, and declared to be on active service in the Philippine Army, all persons serving in recognized guerrilla forces, as of the time they entered such service (Executive Order No. 21 by the President of the Philippines). By virtue of the above statutory authority and orders, Philippine citizens who continued armed resistance during the Japanese occupation are considered to have served under or in connection with the armed forces of the United States. Service in the Army of the Philippines, however, is accorded only a limited status. Some idea of this status may be gathered from legislative provisions dealing with such service. The Act of February 18, 1946 (60 Stat. 14), which reduced certain appropriations and trans

ferred funds to others, transferred funds to the appropriation for the Army of the Philippines with a proviso as follows:

“Army of the Philippines, $200,000,000: Provided, That service in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the armed forces of the United States pursuant to the military order of the President of the United States dated July 26, 1941, shall not be deemed to be or to have been service in the military or naval forces of the United States or any component thereof for the purposes of any law of the United States conferring rights, privileges, or benefits upon any person by reason of the service of such person or the service of any other person in the military or naval forces of the United States or any component thereof, except benefits under (1) the National Service Life Insurance Act of 1940, as amended, under contracts heretofore entered into, and (2) laws administered by the Veterans' Administration providing for the payment of pensions on account of service-connected disability or death

*

It will be noted that such service is not to be counted for the purposes of mustering-out pay or benefits under certain other statutes inIcluding the Missing Persons Act. Although the above proviso was amended by an Act of July 25, 1947 (61 Stat. 455; 38 U. S. C. 38) to allow benefits under the last cited Act, nevertheless the legislation clearly signifies that service in the Army of the Philippines is not to be considered tantamount to service in the United States Army.

So far as A's service was concerned, it should be particularly noted that recognition and compensation were extended retroactively. Before President Osmena's order of 17 November 1944, guerrillas served in a volunteer capacity. Although the order placed such service on an official and contractual basis, compensation for voluntary services previously rendered was obviously extended gratuitously, since there was no legal obligation to pay for such services. In other words, it appeared that the compensation settled on A's heirs by the Army was more in the nature of an honorarium for services gratuitously performed, than a settlement in fulfilment of contractual obligations. Under this view, the payment gave no cause for disturbing the settlement made under the Missing Persons Act. It merely represented a bonus or honorarium for additional services freely given during the period A was separated from his naval station.

There must also be considered the legislative policy embodied in the Missing Persons Act. Even for a beneficial statute, the Act is exceedingly liberal. It covers practically every conceivable type of absence except absence without authority. It transcends contractual relations, ignoring terms of service. Wages or allowances received by a prisoner from the enemy are not counted against him. Allot