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203 , , ,

1948-19

DC? 31: D BY THE UNITED SKATES OF AMERICA

APR 9 48

COURT-MARTIAL ORDER NO. 1—1948

JANUARY 1948

Administration of oath by notary public to applicant for enlistment in the Marine

Corps. A letter from the Commandant, Marine Corps, which was referred to the Judge Advocate General for comment and recommendation, re quested that authority be granted which would permit applicants for enlistment in the Marine Corps Reserve to appear before a notary public, or other person authorized to administer oaths, for the purpose of having the enlistment contract witnessed under oath. It is understood that current enlistment blanks require that the oath be witnessed by an officer especially detailed as a recruiting officer pursuant to Article 13–143, Marine Corps Manual.

Article 69 of Articles for the Government of the Navy (34 U. S. C. A. 1200, Art. 69) provides that recruiting officers of the Navy “and such other officers of the Regular Navy and Marine Corps, of the Naval Reserve, and Marine Corps Reserve, as may hereafter be designated by the Secretary of the Navy, are authorized to administer oaths for the purposes of the administration of naval justice and for other purposes of naval administration."

The legal effect of oaths of allegiance administered by notaries public at recruiting stations was considered by this office in 1921. In construing the statute in effect at that time, which is substantially the law today, it was held :

“That while it is the policy of the Department not to employ notaries public in any matters of naval administration where officers of the Navy or Marine Corps are authorized by the Act

to administer oaths for the purpose of the administration of naval justice and for other purposes of naval administration, it is legal to have notaries public administer oaths of allegiance to recruits at recruiting stations where no commissioned officers are available for that purpose.” (C. M. O. 7, 1921, 18),

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It is evident that the basic law considered above operates to enable certain officers of the naval service to act as notaries public rather than to preclude notaries public or other duly authorized persons from administering oaths for purposes of naval administration.

Based on the foregoing, it was the opinion of the Judge Advocate General that under existing law no additional statutory authority is necessary to permit notaries public or other persons duly authorized to administer oaths to administer the oath of enlistment to applicants for enlistment in the Marine Corps Reserve in cases where recruiting officers are not available.

In accordance with all of the above, and upon examination of the letter from the Marine Corps in its entirety, no legal objection was perceived to the proposals contained therein. (File: JAG:II:DMW: ad, 14 Jan. 1948.)

Appeal to the Judge Advocate General of a determination by the Board of Decora

tions and Medals approved by the Secretary of the Navy. A retired officer, USN, requested the opinion of the Judge Advocate General on the following questions:

(a) Does an appeal lie to the Judge Advocate General via official correspondence from a decision in the case of an officer whose eligibility for advancement to the rank of the next higher grade on the retired list pursuant to the provisions of section 12 of the act of June 23, 1938 (52 Stat. 949, as amended by the act of October 14, 1940, 54 Stat. 1174; 34 U. S. C. 404 (1)), has been denied by the Board of Decorations and Medals with the approval of the Secretary of the Navy?

(6) Is a retired officer of the Regular Navy eligible to become a member of the Florida National Guard Reserve?

(c) If allowed, would this service count for longevity? The provisions of the act of June 23, 1938, above referred to have been amended and superseded by the provisions of section 412a of the Officer Personnel Act of 1947 (61 Stat. 874, approved August 7, 1947). However, the situation would be the same under either act. The Judge Advocate General has repeatedly held that the final determination of the question of eligibility in all such cases rests with the Board, subject only to the action of the Secretary of the Navy and that no appeal lies to the Judge Advocate General.

As the National Guard Reserve was discontinued by the act of June 15, 1933 (48 Stat. 159; 32 U. S. C. 114), the inquiry in that regard will be considered as relating to the Florida National Guard. Section 74 of the National Defense Act of 1916 (39 Stat. 201, as amended by sec. 41 of the act of June 4, 1920, 41 Stat. 781; 32 U. S. C. 111) provides that the commissioned officers of the National Guard

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shall be selected from the following classes: "Officers or enlisted men of the National Guard; officers, active or retired, reserve officers and former officers of the Army, Navy, or Marine Corps, enlisted men and former enlisted men of the Army, Navy, or Marine Corps who have received an honorable discharge therefrom

The question as to whether a retired officer of the Regular Navy may become a member of the National Guard was considered by the Judge Advocate General in his opinion of 20 May 1947 (JAG: II: WJG:mh, 00-Randolph S. A./L16-4 (21)). In that case it was held that in the absence of any statutory prohibition against retired officers of the Regular Navy joining the National Guard (no such provision existing at this time), the question of whether such officer should be permitted to join the National Guard of a State is considered one of policy for administrative determination.

The Military Appropriation Act of 1948, approved July 30, 1947 (61 Stat. 551), prohibits the use of the appropriations therein made for the pay, allowances, or traveling or other expenses of any officer of the National Guard who may be drawing a pension, disability allowance, disability compensation, or retired pay (where retirement has been made on account of physical disability or age) from the Government of the United States. In the event that a retired officer of the Regular Navy who has been retired for physical disability or age is permitted administratively to join the National Guard of a State he would be prohibited from receiving pay, allowances, or traveling or other expenses as an officer of the National Guard.

Should it be administratively determined that a retired officer of the Regular Navy, who has not been retired for physical disability or age, may join the National Guard of a State and he does so, he may continue to receive his retired pay, except for such periods as he may be employed on active duty in the Federal service under a National Guard Commission and entitled to active duty pay and allowances.

Where a retired officer of the Regular Navy, who has not been retired for physical disability or age, is commissioned in the National Guard of a State, and called to active duty in time of war both as a retired naval officer and as an officer of the National Guard, the question as to which set of orders he must obey is a matter for administrative determination.

As to whether this service, if allowed, would count for longevity, section 1 of the act of June 16, 1942 (56 Stat. 359, as amended ; 37 U. S. C. 101) provides that in computing the service for all pay purposes, officers shall be credited with full time for all periods during which they have held commissions as officers of the Army, Navy, etc., or in the National Guard. As to counting such service as longevity for the purpose of computing retired pay, section 15 of

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