report in self-inflicted injury cases where the period of disability caused by the injury is less than twenty-four hours. If the disability incurred was for a period in excess of twenty-four hours section 0702 (7) will apply. In the new changes the words "commanding officer and officer in charge" are used exclusively in referring to those who make the line of dutyconduct determinations. However, it should be noted that under section 0207 the member's command may not be in a position to conduct the investigation and so requests a District Commandant or other facility to convene an investigation. In these cases the commanding officer would not be able to make a decision, or express an opinion of line of duty or conduct. For example, a member, whose ship is on the West Coast, while on leave in New York, is injured seriously, but only temporarily, in an automobile accident and is moved to the nearest Naval Hospital. Upon request, the Commandant of the Third Naval District conducts the investigation. He determines that the member was a passenger in the automobile and the investigation reveals no misconduct or possible claims for or against the government or Third Party Claim. The convening authority would send a report, containing the date, time and place of the accident with a brief description of the accident to the Naval Hospital, and since no report need be submitted, the medical officer at the hospital would make appropriate entries in the man's health or medical record. In an effort to improve the quality of investigative reports, a brief word of advice is proffered to our investigating officers. When assigned such a job make up your mind to do a thorough and complete investigation. It is realized that in some cases you do not have much to work on, but in cases where there are witnesses do make an effort to obtain all the information you can. In many cases under review the statements of the witnesses tell nothing because they were inadequately questioned. Should you interview a witness, don't ask him to tell you in a general way what he saw happen and let it go at that. Some statements contain a general statement of what the witness saw which reveals no pertinent facts. If there has been evidence of indulgence in alcohol by the party to the investigation find out from the witness how many drinks he saw the party take; what the party's actions were after that and prior to the accident. All of us may express an opinion as to a man's sobriety if we tell, along with the opinion, the facts upon which it was based, such as slurred speech, glassy eyes, staggering, and lack of coordination. The witness won't tell you these things unless you ask about them. He does not know what information you are looking for. Sit down with the witness and question him carefully. When you are satisfied that you have obtained all the information you can get from him then write up his statement. Place yourself in the seat of a reviewing authority going over your report. The only way in which he can establish what actually occurred, in other words-the facts, is from the statements you have obtained from the witnesses. Nothing is so frustrating to a reviewer after having read over a statement is to have several unanswered questions, the answers to which would remove all doubt as to what actually occurred. Don't be afraid to ask questions. The fact that the man you are questioning happens to be a party does not mean that you cannot ask him pertinent questions once he voluntarily decides to give a statement. Once he decides to make a statement he is just like any other witness and should be questioned as such. In automobile accidents all the points you are interested in are contained in section 0903 of the Manual. Question your witnesses along those lines. In events involving wounds suffered from firearms ask the witness or party what the victim was doing with the gun when it fired; how was he handling it; was he familiar with the safety features of the gun; what was his previous experience with guns; exactly how was he holding it when it fired; was his finger near the trigger? To take a statement from the victim of such an event wherein he merely states that he was cleaning the gun and it went off is worthless for it tells you nothing. Guns do not go off by themselves, so he must have done something which made it fire. Find out exactly what he did. The same principles apply in all other events or incidents you are called upon to investigate. It is realized that a large majority of our investigating officers are inexperienced but a little effort on their part in seeking out information pertinent to the case at hand will do wonders and make the life of the reviewing officer that much easier. A word in reference to advising a party of his rights. Change 14 to the Manual of the Judge Advocate General under section 1101c sets forth a new form to be used when taking a statement from a party to the investigation. It will be noted that besides recording and acknowledging the fact that the party has been advised of his rights as set forth in section 0304, it also includes the statement that if the party does not exercise all or some of his rights it "shall be conclusively presumed" that he has waived those not exercised. It is suggested that the investigating officer, when preparing his report, mention in his preliminary statement the rights the party specifically waived. This information would aid reviewing authorities in obtaining a clear picture of what actually took place between the party and the investigator. It should be noted that it is the policy of the Judge Advocate General not to render an adverse opinion in cases where there has not been strict comA CAUSE FOR INJUNCTION (Continued from page 50) States held that California's "minimum milk price control" state law was unenforceable against the United States Government where it conflicted with the lawful Armed Services Procurement Regulations wherein milk was procured with appropriated funds through competitive bidding. Inasmuch as milk sold at Federal commissaries was purchased with appropriated funds, the minimum price law did not apply, so that the many low income enlisted men and their families benefited by being able to buy milk at a very reasonable cost. In April 1965, the Attorney General of the State of California resurrected the issues which had been resolved and considered to have been laid to rest in Paul V. United States. He filed complaints for injunctions against milk companies who had contracts with military installations to furnish milk at less than the minimum price law." The thrust of the complaints was that unless an injunction was granted, irreparable injury would result to the Director of Agriculture's effort to enforce the Agricultural Code of California because many milk distributors, in addition to the defendants, would be expected to submit belowcost bids for military milk contracts which would result in a multiplicity of suits to prevent the selling of milk at less than cost as defined by the Agriculture Code. By this procedure, the Attorney General adopted an indirect technique to circumvent the holding in the Paul case so as to control the price of milk sold to government installations in California. Since the complaint was filed in the state court to restrain the milk distributor from sale and delivery, one large naval installation, which was the primary recipient of one defendant distributor, was unaware that its "milk was going to be cut off" until the injunction in the companion case had been issued and reported by the local press. 9. Charles Paul, Director of Agriculture, State of California v. Producers Dairy Com. Inc., 1st Doe, 2nd Doe No. 125854 Superior Court, Fresno, Calif. filed 7 April 1965. pliance with sections 0304 and 0306 of the Manual. In accord with section 0306 the man must be advised that he does not have to sign a statement concerning his injuries if he does not wish to do so. The new form mentioned above includes the fact that this advice was administered. Absent this fact the man's statement may not be considered by the Judge Advocate General in his review of the case. This advice is provided for by statute and may not be waived by the party. Upon learning of the impending state court action against the distributor furnishing milk to the naval installation, the commanding officer became concerned that the result would be an increase in price of milk to his personnel so he made a direct appeal for assistance to the Litigation and Claims Division, Office of the Judge Advocate General of the Navy. After a brief period of discussion with other government agencies, the Department of Justice filed and obtained a temporary restraining order in the Federal District Court, Northern District of California, against the State of California to stay the state court injunction issued against distributors selling milk to military installations. Although it would be speculative to anticipate the outcome of this case, it is believed that the language of the Paul case is clear and certain that a state cannot control the United States Government in the exercise of its constitutional power to establish and maintain the Armed Forces and that the state's minimum price law is unenforceable where it conflicts with the lawful Armed Services Procurement Regulations serving the exercise of that constitutional power.10 The foregoing variety of cases clearly reflect that an injunction is often the only available course of action to protect the naval establishment and its personnel when administrative remedies fail to rectify a hazard or wrongful act to government interests. In such cases a cause for injunction exists. 10. Subsequent to preparation of this article the Federal District Court granted the Motion of the United States for a preliminary injunction restraining the Director of Agriculture and the Attorney General of California from enforcing the provisions of the California Agriculture Code, and regulations thereunder, insofar as they prohibit the sale of milk to United States military installations in California at less than "cost" as defined by the applicable statutes and regulations. As predicted by the author, the court held that the "Paul" rationale was still controlling since Congress had not changed the law. United States of America, Plaintiff v. Charles Paul, Director of Agriculture, State of California and Thomas C. Lynch, Attorney General, State of California, Defendants, United States District Court for the Northern District of California, Southern Division, Civil No. 43612, MEMORANDUM OF DECISION, July 14, 1965. STATUS OF PERSONNEL (Continued from page 54) of one belligerent, as in the attack on Pearl Harbor, strict adherence to treaty obligations cannot be expected from the other. In a war, however, where both sides strive to abide by the rules, an action such as that of Lt. Howell M. Forgy of the Chaplains Corps aboard U.S.S. NEW ORLEANS on December 7, 1941, immortalized by his words, "Praise the Lord and pass the ammunition," would without doubt be heroic, but not legal. Members of the medical and religious service who engage in combat or commit other acts injurious to the enemy under the protection of their special duties and status, commit acts of treachery and are guilty of war crimes. If they commit "grave breaches," their own country is under obligation to try them, or if it prefers, hand them over for trial to another Party in accordance with its own legislation, providing such Party has made out a prima facie case.27 As to the effect of violation on the countries themselves, a government which orders protected personnel to duties in contravention of the Convention endangers its application to other protected persons. In other words, the enemy may no longer feel himself bound by the provisions of the Conventions granting protection to medical and religious personnel. country is bound by provisions of a treaty in the 27. Article 49 Geneva I and Article 50 Geneva II. No The High Contracting Parties undertake to enact legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. Each Contracting Party shall be under obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case. Each High Contracting Party shall take such measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article. In all circumstances, the accused person shall benefit by safeguards of proper trial and defense, which shall not be less favorable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949. Article 50 Geneva I and Article 51 Geneva II. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. face of flagrant violations by another party.28 The Conventions themselves contain provisions for penal sanctions in the event of violations. All four Conventions contain a common Article enumerating so-called "grave breaches." 29 Since this discussion is concerned only with the duties and status of medical personnel and possible forfeiture of protection, grave breaches and their consequences need not be covered. Important, however, is paragraph 3 of Article 49 Geneva I and 50 Geneva II 30 which puts the Parties to the Conventions under obligation to take all necessary measures to suppress acts (other than grave breaches) contrary to the provisions of the Convention. Such acts would for instance include the assignment of nonpermissible functions to a hospital corpsman by his commanding officer. There remains one final point to be clarified. As stated at the beginning of this article, the Geneva Conventions belong to the law of war.31 Why then, we may ask, is compliance in time of peace necessary? We may argue that as long as their provisions are strictly observed when contact with an enemy is imminent, a commanding officer should be free to utilize his men, including medical personnel, as his military mission requires. This is not the place to discuss how under present world tension the boundary lines between war and peace have gradually become blurred. We need only look at Vietnam. In addition, the Conventions themselves are explicit about their application. Common Article 1 to all four Conventions provides: The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances. (Italics added.) The drafters of the Convention wanted to make it plain that those provisions, which are applicable both in peace and in war, would be respected and carried out at all times.32 Article 2, also common to all four Conventions, makes application even clearer by stating: In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. These provisions leave no doubt that the Parties undertook the obligation to comply at all times with the provisions of these humanitarian Conventions. 28. I Oppenheim, International Law 947 (8th ed. 1955). 31. I Pictet, supra note 7 at 351. |