The JAG JOURNAL is published by the Office of the Judge Advocate General of the Navy as an informal forum for legal matters of current interest to the naval service. The objective of the JAG JOURNAL is to acquaint naval personnel with matters related to the law and to bring to notice recent developments in this field.

The JAG JOURNAL publishes material which it considers will assist in achieving this objective, but views expressed in the various articles must be considered as the views of the individual authors, not necessarily bearing the endorsement or approval of the Department of the Navy, or the Judge Advocate General, or any other Agency or Department of Government.

Invitations to submit articles are extended to all persons, whether lawyers or laymen. Articles submitted should adopt an objective rather than an argumentative approach and should be written in a manner readily understandable by the lay reader. The JOURNAL will return unpublished manuscripts if so requested, but responsibility for safe return cannot be assumed. No

compensation can be paid for articles accepted and published.

Issuance of this periodical approved in accordance with Department of the Navy Publications and Printing Regulations, NAVEXOS P-35.

REAR ADMIRAL WILFRED A. HEARN, USN Judge Advocate General of the Navy

REAR ADMIRAL ROBERT H. HARE, USN Deputy and Assistant

Judge Advocate General of the Navy

LIEUTENANT COMMANDER GARDINER M. HAIGHT, USN Editor

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PAY AND ALLOWANCES Disability retirement and the Dual Compensation Act of 1932

A Navy commander was transferred to the Temporary Disability Retired List in 1959 by reason of arteriosclerotic heart disease, rated at zero percent disabling. Pursuant to 10 U.S.C. 1210 the Secretary of the Navy subsequently determined that the disability had become permanent and was 40 percent disabling. Accordingly, the member was transferred to the Permanent Disability Retired List in 1964, but with the additional disabilities of spinal arthritis and perforation of the left ear drum. The latter condition had been suffered in combat during the Japanese attack on Pearl Harbor in 1941, and thus qualified for an administrative finding that it constituted an exception to the Economy Act of 1932 (The Dual Compensation Act, 5 U.S.C. 59a). That statute, repealed effective 1 December 1964, placed a $10,000 ceiling upon the combined annual income a retired Regular officer could receive as retired pay and salary from a Federal civilian office. It provided further that it did not apply to officers retired for disability incurred in combat with an enemy of the United States or caused by an instrumentality of war during a period of war. Since the heart disease for which the member was placed on the TDRL did not meet these criteria but the ear perforation found at the time of his transfer to the PDRL did qualify, the question arose whether for purposes of 5 U.S.C. 59a the member was retired "for" the latter disability.

In his decision B-155090 of 13 October 1964 the Comptroller General noted that upon transfer to the TDRL a member enters a retired status-albeit a revocable one and is entitled to receive retired pay within the meaning of the 1932 Act. Upon transfer to the PDRL due to change in circumstances, such as a change in percentage of disability, a recomputation of his retirement rate does not constitute a new retirement. His temporary retirement from active status merely becomes a permanent status, and it is "only the disability for which a member is actually retired" that may be considered in judging the applicability of 5 U.S.C. 59a.

This officer, he continued, performed satisfactory mil itary service for nearly 18 years following the injury to his ear drum. The Navy apparently did not regard that injury, standing alone, as entitling him to disability retirement, nor was it considered when he was temporarily retired. Furthermore, upon establishing his final disability at 40 percent, that injury was not considered. Accordingly, the Comptroller concluded that merely listing that disability as one of the conditions for which the member was permanently retired did not justify a conclusion that he was retired "for" such disability within the scope of 5 U.S.C. 59a. For the effective life of that act, therefore, the member was subject to its restrictions upon receipt of retired pay. Presumably the same reasoning would apply to disability retirements for purposes of the Dual Compensation Act of 1964 (Public Law 88-448). (Comp. Gen. Dec. B155090 of 13 October 1964.)

S

EA LIFT VERSUS air lift. The proponents and opponents of each have written and spoken thousands of words on the advantages and shortcomings of each. Glowing praise has been expounded on the virtues of the speed, flexibility and short reaction time of air lift. Equally vigorous and forceful comments have been heard on the tremendous capacity, reliability and long range capability of sea lift. The silence has been thunderous, however, on the international political and legal aspects of each.

Full and thorough consideration of those factors is most essential to an understanding of the usefulness of each type of lift. The difficulties posed by the political and legal elements of the movement of military forces may be overcome if fully understood. If not, they may pose as formidable and immovable barriers as any of the better known physical elements.

To understand fully these intangible elements of the problem, it is first necessary that we do a little homework in the fields of international law, international politics and geography.

For the purposes of our inquiry, the surface of the earth may conveniently be divided into three basic categories. First is land territory including internal waters; second is the territorial sea; third and largest is the high seas. This provides a simple and convenient framework to examine the scope and extent of national sovereignty in all parts of the world which are important from the standpoint of troop lift and support. Excluded, of course, is the Antarctic continent where claims of national sovereignty are temporarily suspended by multilateral treaty.

In land areas including internal waters, the sovereignty of a nation is absolute. Foreign ships may enter such areas and foreign aircraft

*Captain Leonard R. Hardy, USN, is presently serving as Director of Legal Affairs, Staff Supreme Allied Commander Atlantic. A graduate of St. John's University School of Law, Captain Hardy is a member of the New York Bar. His previous legal duties include: District Legal Officer, Seventeenth Naval District; Fleet Legal Officer, Sixth Fleet; Staff, Chief of Naval Operations; Force Legal Officer, Commander-in-Chief, U.S. Naval Forces, Europe; and U.S. Delegations, Conference on the Law of the Sea, Geneva, and Conference on Safety of Life at Sea, London.

VB793 J3 1965-June 1968 DOCS

may overfly or land in them only with the permission of the nation which owns them. The Chicago Convention made certain arrangements for the accommodation of overflight and landing rights of aircraft which imply a degree of mutual consent on the part of member nations to the operations in their territory of foreign aircraft. State owned aircraft, however, which includes all military aircraft, are excluded from the coverage of that convention.

In the territorial sea there is a distinction between what a foreign nation can do in the waters and what it can do in the air space over them. In the territorial sea, the sovereignty of the coastal state is virtually as absolute as it is in its land area. The only dilution of that sovereignty is the right of innocent passage. Under that right, foreign ships, including warships, may pass through the territorial sea in the normal course of navigation so long as the passage is not prejudicial to the peace, good order or security of the nation whose waters are being used. The exercise of this right may not include the conduct of military operations or material departure from the reasonably direct route through the territorial sea. The right of innocent passage may be subjected to reasonable regulations and may be temporarily suspended except in passages between two bodies of the high sea which have customarily been used as international waterways. Aircraft, however, do not enjoy any right of innocent passage through the air space over the territorial sea. Any foreign aircraft, be it military or commercial, must have permission before passing over the territorial sea of another nation.

The high seas and their adjacent air space are the community property of all nations, even those which have no coastline and are not littoral to the sea. Ships and aircraft of all nations have the absolute right to use the high seas and adjacent air space at all times and in any way they please so long as they do not unreasonably interfere with the rights of other lawful users of the same area.

One other facet of international law must be taken into consideration. Under the tradi

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tional laws of war and neutrality, when a nation permits the military forces of another nation to use its territory, land, water or air, for the conduct or support of military operations, it subjects itself to being tarred with the same brush as the user nation. If the nation conducting the military operations is engaged in the commission of belligerent acts, the nation whose territory is being used may be declared or considered to be a cobelligerent. If the military operations of the one nation are condemned in the United Nations or other forum of world public opinion, any nation which actively or passively assists such operation shares the condemnation as a coparticipant. This possible damper on the enthusiastic support of military operations, even among the closest friends and allies, must not be overlooked and demands an investigation of the political aspects of the problem.

From the beginning of nations as we now know them, all countries have jealously guarded their sovereignty. The acceptance of the stationing of foreign troops on a nation's soil has long been considered to be too important a matter to be based upon mere implication of consent by the territorial nation. It is with that fact uppermost in one's mind that an examination should be undertaken of the arrangements which the United States has with its allies to permit the construction of our military facilities, the stationing of our military forces and the conduct of military operations in, on and over their territory.

These arrangements may differ in detail but the principle upon which all are based is mutual security. They all contemplate that in the event something happens which threatens the security, sovereignty or national integrity of one of the member nations, all of the others will take certain measures to assist the beleaguered member. Under these arrangements, the United States has established military facilities in certain countries and has stationed large numbers of troops and vast quantities of military equipment and supplies on the territory of several of its partners.

Our use of these overseas troops and materials for anything other than routine peacetime operations and exercises, however, generally requires the consent of the host government and this should only be anticipated in the event three conditions exist. First, there must have been an overt act on the part of some nation or group of nations which poses a threat to the security, sovereignty and national integrity of one or more of the mutual security pact partners; second, it must be recognized as a threat by the

United States; third, and perhaps the most important, it must also be recognized as a threat by the foreign nation whose territory we desire to use. Only under those circumstances is it possible to have a meeting of the minds among the member nations that one of the contingencies against which the alliance was intended to guard has occurred and that summary action is necessary.

The factors involved in attaining such a meeting of the minds are myriad and beyond the scope of this discussion. The citation of only one factor may, however, sufficiently illustrate the difficulties involved. The variety of national interests among even the closest of mutual security partners and the relative importance which each partner attaches to its own interests make any international meeting of the minds a most complex matter. Each single national interest of each partner may be materially affected, either permanently or temporarily, by domestic economic or political affairs which are of little or no importance outside the domestic scene. Many of the interests of the partners may not have existed or have been of any significant importance at the time the mutual security pact was signed. It must be contemplated, however, that any proposal for action to be taken under the terms of a mutual security agreement may be rejected by one or more of the member nations if it is not in accord with their present national interests. This could well be like matching apples with oranges.

With this factor in mind, it must be recognized that in any situation in which the United States desires to conduct military combat actions or other military activities beyond the normal peacetime routine we now carry on overseas, we should anticipate that some foreign nations will not be willing to permit us to use them for the support of our military ventures. Similarly, some foreign air and territorial sea routes may be denied to us or subjected to severe restrictions on our use of them.

This is the stage of the problem where geography becomes of paramount importance.

If it be assumed that one of our allied nations in Europe will permit us to use our military facilities and forces within its boundaries for a unilateral, national military operation, the most that we can hope for is access to the free high seas without having to ask for permission to cross the territory of another nation. When we do reach the high seas, a slight glance at the map of Europe will reveal that very few areas where we might reasonably expect to want to conduct. (Continued on page 80)

AN

NEWLY COMMISSIONED officer on a destroyer in World War II once boldly asked his Exec whether there were any Executive Officer's Morning Orders. Looking the junior officer squarely in the eyes, the Exec replied, "This ship doesn't have Executive Officer's Morning Orders, it has an Executive Officer." While the Captain's Mast may not be that personal, there is probably as much variation in the conduct of the Mast as there are Captains of ships. The requirements of law and regulation must be satisfied, but because of the summary nature of the Mast proceedings considerable discretion is permitted the commanding officer in the exercise of his power of administering nonjudicial punishment.

Before the accused appears before the Captain at Mast, a number of preliminary steps will have been taken within the command. While these procedures are largely based on custom and do not directly involve the Captain, he would be prudent to insure that a ship's order or instruction is issued prescribing the handling of reports of offenses, the preliminary inquiry, restraint, and the Executive Officer's review. The first of the steps is the placing of the apparent offender's name on report by someone having knowledge of the commission of an offense. In the case of unauthorized absence from the ship, the most common offense in practice, the officer of the deck at the time of return of the absentee usually fills in the report slip.

*Captain Benjamin R. Fern, U.S. Navy, is currently assigned to the Office of Legislative Affairs. He holds the A.B. degree from Queens College and the LL.B. degree from The George Washington University. Captain Fern is a member of the bar of the District of Columbia and holds membership in the American Bar Association. He has held various operating commands and has served as Naval Attaché to Uruguay.

With disobedience, the second most encountered offense, the report is generally made by the officer or petty officer who was enforcing the order.

From the report slip, which has been turned into the ship's office, the legal yeoman prepares an entry on the form, Report and Disposition of Offenses (NAVPERS Form 2696 and NAVMC 10132-PD) and turns the report over to an officer designated to conduct a preliminary inquiry. This officer merely determines if the accused appeared to have committed the reported offense and if such offense is punishable under the Uniform Code of Military Justice. Protection of the legal rights of the accused begins at this point, for the preliminary inquiry officer is required by Article 31 (b) of the U.C.M.J. to inform the accused of the nature of the accusation, the accused's right to remain silent, and the possible use of any statements by the accused as evidence against him in a courtmartial. The commanding officer should periodically note the time taken by the preliminary inquiry, as there may be a tendency for this investigation to unduly delay the prompt disposition of offenses.

To a large degree, the smooth administration of the Captain's Mast is a reflection of the ability of the Exec. It has been said that the Executive Officer holds by far the most onerous, most difficult, and most thankless office on board ship. He is held responsible for, among other things, the good order of the ship and the faithful execution of his Captain's orders. Although he has probably long known about the report through his Master-at-Arms force, the Exec's first official contact with a potential Mast case is probably his review. In some ships the Captain may