INTOXICATION

Drinking is a factor in the great majority of vehicle accidents which result in line of dutymisconduct investigations. However, for intoxication to constitute the sole basis for a misconduct finding in automobile or other accidents, the evidence must clearly and convincingly show that the person was impaired due to intoxication at the time of the injury, the extent of impairment, and that intoxication was a proximate cause of the injury.12 Because of the difficulty of fulfilling this evidentiary requirement, alcoholic impairment is more often regarded as one of several contributing factors. A Bogen's test, which measures the concentration of alcohol in the bloodstream, is useful if administered within a reasonable time after an accident. However, because of differing tolerances to alcohol, such a test cannot accurately reflect the extent of impairment in every case. For this reason, the results of a Bogen's test, standing alone, cannot generally support a finding of misconduct.18 Of course, if the bloodalcohol percentage is so high that virtually anyone with such a concentration would be intoxicated, then the Bogen's test might, in itself, justify an adverse determination. Such cases are rare, however, and the results of a Bogen's test never justify an investigator's failure to procure all available evidence on the issue of intoxication. If such a test reveals a concentration of at least 1.5 milligrams of alcohol per cubic centimeter of blood (1.5 mg/cc) and is corroborated by any other evidence of intoxication, this will at least support a determination that the driving ability of the member was impaired to some extent. When this factor and others are combined, several elements which individually constitute mere simple negligence, may in combination paint a clear picture of gross negligence. In any event, therefore, as many witnesses as possible should express a belief as to the driver's sobriety. Statements of such witnesses should not contain bare, unsupported opinions but should indicate whether the driver exhibited symptoms of intoxication, such as staggering or other lack of coordination, very slow reflexes, belligerence, slurred speech, incoherence or a general appearance of drunk

enness.

FALLING ASLEEP AT THE WHEEL

Falling asleep while driving is not misconduct per se. However, where a member of the serv

12. JAG Manual, sec. 0809d.

13. Op JAGAF 1956/22, 29 June 1956, 6 Dig. Ops. LOD sec. 41.5.

ice chooses to continue driving while in a condition of such extreme fatigue or drowsiness that he must have been aware of the danger of falling asleep at the wheel, he thereby exhibits such a reckless disregard of the foreseeable consequences as to warrant a finding of misconduct.14 Or as stated differently,

there must be an appreciation of the danger of falling asleep, or circumstances which would cause a reasonably prudent person to appreciate the danger, and proceeding in defiance thereof.1

Once sleep is established as the cause of the accident, the most important evidence in such cases relates to premonitory symptoms of drowsiness by which the driver should have been warned of the imminent danger of falling asleep. Did the driver experience momentary periods of dozing before finally being overcome by sleep? If so, this is an obvious premonitory symptom necessitating a finding of misconduct. Was he sleepy or tired prior to the accident? If so, why? How much sleep did he have in the several days preceding the accident? Had he been drinking? How much? Was a Bogen's test given? If so, ascertain the results and how long after the accident the test was administered. Was there other convincing evidence of intoxication which could be shown by statements of witnesses or other proof? Alcohol has a known tendency to produce drowsiness, and sleepiness coupled with intoxication will necessitate a misconduct finding, even where no preliminary dozing is shown.16 Did the driver turn the radio up, open a window, stop and walk around a minute, or have a cigarette to combat a drowsy feeling? This is indicative of his awareness that he was sleepy, of course, but if he fought drowsiness with means which would normally be successful, and in fact were for a short time, this might mitigate his actions to the extent that a misconduct finding would be inappropriate. Of course, opening a window or stopping for a brief walk after twenty-five or thirty sleepless hours would not qualify as "normally successful."

PASSENGER MISCONDUCT

If an automobile accident results in injury to a military passenger, an LOD investigation into the passenger's conduct may be required, whether or not the driver of the car is a service

14. Op JAGN 1952/105, 30 Nov 1951, 2 Dig. Ops., LOD sec. 41.7. 15. Op JAGN 1955/310, 25 Oct 1955, 5 Dig. Ops., LOD sec. 41.7 (misconduct found); Op JAGN 1956/328, 8 Aug 1956, 6 Dig. Ops., LOD sec. 41.7 (misconduct not found).

16. Op JAGN 1955/307, 1 July 1955, 5 Dig. Ops., LOD sec. 41.7.

member. It is not necessary that the passenger actually interfere with the operation of the vehicle to be guilty of misconduct. If he knows or should know that the driver is unlikely to drive safely because of negligence, lack of ability, recklessness or intoxication, he is himself guilty of misconduct if he voluntarily exposes himself to this danger." Of course, a passenger may become aware of the degree of risk only after the car is in motion. In that event he is nevertheless under an affirmative duty to attempt to extricate himself from this hazardous situation. For example, if he then asks the driver in vain to either slow down or let him out of the car, this is generally sufficient to render subsequent exposure to danger involuntary, and thus not indicative of misconduct. Witnesses should be thoroughly questioned on the issue of voluntariness. Did the injured passenger have any reason to believe the driver was not safe prior to entering the car? Had they been drinking together? How much did each have to drink? Did the car owner have a reputation as a bad or reckless driver? Should the passenger have been aware of this reputation? Did the passenger have an opportunity to get out of the car after learning of the driver's ominous conduct? Did he or any other passenger complain to the driver about his conduct or demand to be let out of the car? Since it might also be dangerous to be walking along a dark road or in a slum section at night, some consideration must be given to all circumstances affecting the passenger's decision to ride in the car.

FIGHTS

Injuries incurred while wrongfully and voluntarily engaged in a fight are due to misconduct to the extent that injury might reasonably be expected to result directly from the fight.18 To engage in a fight or similar encounter with one who is armed and has indicated his intention to use his weapon is misconduct, as injury resulting from use of the weapon is clearly foreseeable.19 However, where retaliation is so violent as to be unforeseeable in view of the provocation involved, injuries caused by such retaliation are not considered due to misconduct.20 The usual case to which this rule applies involves a fistfight where a participant unexpectedly uses a weapon, such as a gun, knife or even a rock without first giving the victim an opportunity to withdraw. Occasionally, if provocation of

17. Op JAGN 1960/408, 1 Nov 1960, 10 Dig. Ops., LOD sec. 41.3. 18. Op JAGN 1954/256, 22 Sept 1954, 4 Dig. Ops., LOD sec. 27.1. 19. Op JAGA 1952/5608, 11 July 1952, 2 Dig. Ops., LOD sec. 27.1. 20. Op JAGA 1952/5215, 1 July 1952, 2 Dig. Ops., LOD sec. 27.1.

another by an unarmed service member is sufficiently aggravated, injury resulting from use of a weapon against the member is considered reasonably foreseeable, even if in fact such retaliation was unexpected and without clear warning.21

Some relevant questions to ask witnesses to a fight or assault situation might be as follows: Exactly what words passed between the two (or more) participants prior to, during and after the fight? What manner and degree of provocation was present? Who struck the first blow? Was any participant armed? If so, how and when did this fact apparently become known to the other participant (s)? How did he (they) react on learning someone was armed? What weapons were involved? How and by whom were they used? Did any participant attempt to stop fighting and leave? What were the relative sizes and fighting capabilities of the participants? Did drinking play a part in the altercation? (Elaborate fully, ensuring that witnesses' statements include facts in support of any opinions concerning intoxication.)

There will be inevitable inconsistencies and contradictions among the statements of various witnesses. If the statements of important witnesses differ in crucial details, the investigating officer should perhaps re-interview these witnesses in an attempt to prod them toward more accurate recollection. Further research into the cause for such differences may be necessary if intentional misrepresentation is suspected. Statements of disinterested witnesses are customarily accorded more weight than those of the participants or their friends. The adverse effect of alcohol on accurate observation and recall is obvious.

SELF-INFLICTED INJURIES

INTENTIONAL

The basic rules concerning intentional selfinjury are discussed in JAG Manual, sec. 0810. Because of the strong instinct of self-preservation, a bona-fide suicide attempt is in itself evidence of mental incompetence. If this evidence is not rebutted, it alone overcomes the normal presumption of sanity and necessitates a conclusion that the injury was caused by mental derangement over which the service member had no control. Such an injury cannot be considered the result of misconduct. If it is shown that the act was precipitated by reasons which might move a rational person to take his own (Continued on page 26)

21. Op JAGN 1959/400, 29 Sept 1959, 9 Dig. Ops., LOD sec. 27.1.

*** it is indisputable that the tradition of our country, from the time of the Revolution until now, has supported the military establishment's broad power to deal with its own personnel. The most obvious reason is that courts are ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have. Many of the problems of the military society are, in a sense, alien to the problems with which the judiciary is trained to deal.1

Against this background, it is our purpose here to briefly discuss the extension of Federal court jurisdiction in military personnel actions and to acquaint the Judge Advocate with the problem of injunctive relief which may be sought against his commander.

Prior to case of Harmon v. Brucker,2 military matters were generally judicially non-reviewable except through writ of habeas corpus challenging detention of military prisoners. In Harmon, however, the Supreme Court determined that the Federal courts could review a military discharge where it was claimed that the Secretary had exceeded his statutory authority which permitted him to consider only the military record in determining the type discharge to award a serviceman. Earlier, in Service v. Dulles, the Supreme Court had held that the Secretary of State must follow his own regulations in discharging a civilian employee. This case was reaffirmed in 1959 by the decision in

This article originally appeared in 8 AF JAG L. Rev. 6 (No. 1), Jan.-Feb. 66. Reproduced by permission of the Air Force JAG Law Review.

1. Warren, The Bill of Rights and the Military, 37 N.Y.U.L. Rev. 181, 187 (1962).

2. 355 U.S. 579 (1958).

3. See, for example, Orloff v. Willoughby, 345 U.S. 83 (1953); Reaves v. Ainsworth, 219 U.S. 296 (1911); and Creary v. Weeks, 259 U.S. 336 (1922).

4. 354 U.S. 363 (1957).

Vitarelli v. Seaton," and from these cases evolved the concept that Government agencies are bound to follow their own regulations. Where there is failure to adhere thereto, adverse actions against employees would be set aside by the courts for lack of full administrative process. The rulings in these cases are equally applicable to military discharges."

The military departments, like other Government agencies, had long required that litigants exhaust all available administrative remedies prior to the initiation of judicial actions. The final step in the exhaustion of remedies process involved petitions to the Board for the Correction of Military Records, established under 10 U.S.C. 1552. However, in Ogden v. Zuckert," decided in 1961, the Court of Appeals for the District of Columbia Circuit, ruled that a litigant need not exhaust this administrative remedy prior to the initiation of a lawsuit.

The issue of right-to-counsel, during the course of submitting a resignation from the service, received the attention of the Court of Appeals for the District of Columbia Circuit in 1962 when, in Ingalls v. Zuckert, the court ordered trial on an issue of fact to determine whether or not counsel was available to the plaintiff prior to the time when he submitted his resignation.

As a result of the decisions in these cases, the Air Force has been involved in a number of cases praying for injunctive relief against the Secretary of the Air Force and/or field commanders during the past three years. We can best show the nature of these actions by sum

5. 359 U.S. 535 (1959).

6. See, for example, Ingalls v. Zuckert, 309 F. 2d 659 (D.C. Cir. 1962) and Roberts v. Vance, 343 F. 2d 236 (D.C. Cir. 1964). 7. 298 F.2d 312 (D.C. Cir. 1961).

8. 309 F. 2d 659 (D.C. Cir. 1962), on remand, 235 F. Supp. 89 (D.D.C. 1964), appeal pending.

marizing below the cases which have been closed. It should be noted that all of these cases are unreported.

9

In Latimer v. Zuckert, a temporary restraining order was granted where the plaintiff claimed his pending transfer to Alaska would require him to go beyond his original four-year service commitment. After hearing the application for permanent injunction in January 1965, the injunction was denied because the action was deemed premature.

In Morris v. Zuckert, 10 the plaintiff, in his complaint for injunctive relief to prevent his discharge under Air Force Regulation 36-3, claimed the Air Force had violated its own regulations and denied him administrative due process because he was not afforded the opportunity to appear before a board prior to the revocation of his commission as a probationary officer. After the Air Force showed that neither the statute nor our regulations required a hearing with personal appearance to eliminate a probationary officer, the injunction was denied.

In Mitchell v. McNamara,11 a group of overseas teachers sought injunctive relief to require the defendants to promulgate a new salary scale for teachers in the overseas dependents' school system. The action was dismissed on motion by defendants and later affirmed by the Court of Appeals for the District of Columbia with the statement that

*** the courts will not interfere with the exercise of executive discretion in situations as confused and difficult as the present.

The basis for the dismissal, however, was that the action constituted an unconsented suit against the United States.

In Chloros v. Carroll,12 certain Air Reserve technicians who had failed to reenlist in the Reserves, as required by their contract of employment, sought to prevent their discharge. Here, the employees claimed their removal would be in violation of their rights under the Veterans Preference Act. However, the case was dismissed because of their failure to exhaust their administrative remedies under Air Force appeal procedures or Civil Service Commission appeal procedures. After their discharges had been effected, a second suit was brought in this matter in which the plaintiffs requested the District Court for the District of Columbia to decree their discharges to be invalid and to direct their restoration. After a showing that continued

9. D.C. S.D. Miss., C.A. 2983 (S) (M), January 1965.

10. D.C. E.D. Mich., C.A. 25299, 1964.

11. 352 F.2d 700 (D.C. Cir. 1965).

12. D.C. Mass., C.A. 63–73-C, 11 Feb. 1963.

membership in the reserves was a condition of their employment and that each employee had been afforded all rights to which he was entitled, the Government's motion for summary judgment was granted.13

In Rabney v. Bliss,14 injunctive relief was denied when a reservist claimed that his reserve duty assignment was set at a location remote from his residence. The court determined it had no jurisdiction to direct a transfer.

In Shinn v. Old,15 injunctive relief was requested to prevent the Air Force from discharging a Master Sergeant under Air Force Regulation 39-14 for the convenience of the government after a board of officers convened under Air Force Regulation 39-22 (which permits discharge after certain civil conviction) had recommended his retention in the service. It was noted that Air Force Regulation 39-14 did not specifically authorize discharge in this instance. Therefore, the Air Force agreed not to discharge the plaintiff until he had the opportunity to complete requirements for retirement. The injunction suit was then dismissed.

In Manson v. Zucket,16 a temporary restraining order was issued when an airman claimed that a board convened to investigate a fire was in violation of Air Force Regulation 11-1. After a hearing, the request for a preliminary injunction was denied when the court determined it lacked jurisdiction.

In Morris v. Department of the Air Force and Zuckert," plaintiff sought a temporary restraining order and injunction to prevent his removal from flying status. The temporary restraining order was denied on motion and, after a hearing, the injunction was denied for lack of jurisdiction.

In Kulp v. Zuckert,18 the plaintiff had been ordered discharged under Air Force Regulation 39-14 for convenience of the government after a board of officers convened under Air Force Regulation 35-66 had recommended his retention. A temporary restraining order was granted ex parte and a hearing scheduled on the request for injunction. Before the hearing was held, the plaintiff absented himself without authority, whereupon his counsel requested dismissal of the action. The temporary restrain

(Continued on page 27)

13. Chloros v. Zuckert, D.D.C., C.R. 1233-64, appeal dismissed, D.C. Cir., 4 October 1965.

14. D.C. S.D. N.Y., 64 Civ. 1186, 1964.

15. D.C. S.D., Calif., Civ. No. 63-642-HW, 20 May 1964.

16. D.C. E.D. Mich., C.A. 23497, 15 Feb. 1963.

17. D.C. N.D. Tex., Lubbock Div., C.A., 2854, 4 March 1963. 18. D.C. N. Dak., C.A. 583, 1963.

N ENGLAND, AS the maritime courts elected by the Guilds of the sea-trades began to be supplanted by the national courts, maritime matters were heard by the Admirals' Courts, since the Admirals held full authority and power relating to matters of the sea, such as collisions, strandings, prizes of war, etc. These courts were known as Admiralty Courts and Vice Admiralty Courts, and the laws which they enforced became known as Admiralty law.

The Admiralty Courts in England were under the jurisdiction of the Lord High Admiral, who was guardian of public and private rights at sea and in ports. He was commissioned by the Crown to investigate, report on and redress maritime grievances. The first such Court in England was established about 1360.

At that time, few people could read or write. Officers of the Court (and other officers), when serving their warrants, needed a tangible and visible symbol or badge of authority to use as credentials, in order to have their papers accepted. For the High Courts of the Crown, this symbol was a silver mace, bearing the royal arms, which was carried by the Marshal or Bailiff. The staff of the mace was hollow and the papers were carried inside.

In the Admiralty Courts, the mace was replaced by a silver oar. Not only did the Bailiff carry this when serving warrants, but also, when the Court was sitting, he would precede the Judge into the courtroom, carrying the oar and waving it over the judge until he was seated. After that, the silver oar was placed in a cradle below the Judge's bench, where it remained throughout the court session.

Exactly when this symbol first came into use is not fully established. It must have been used during the sixteenth century, for on the tomb of Dr. David Lewes, at Abergavenny, Wales, there is carved a figure of Jasper Swift, a famous

*Commander Rose is engaged in the private practice of law in Chicago, Illinois. He is Chairman of the Admiralty and Maritime Law Section of the Illinois State Bar Association.

"Marshaill and Sargeant of the Mace of the Admiralty Court", carrying the oar. However, the oar's use may date back even to the reign of Henry IV (1367-1413). The "Silver Oar of the High Court of the Admiralty" bears the Royal Arms of the earliest days of the Tudor period (1485-1603) but other markings indicate that the oar is probably much older than that.

According to Sir Travers Twiss, the Silver Oar is "the ensign of authority to arrest both persons and vessels on the high seas". It is two feet nine inches long; the stem is one foot nine inches long and the blade one foot long. It is shaped like a paddle or ancient steering oar, with various emblems on its face. On the uppermost part of the blade is a shield with the Royal Arms of France and England, surmounted by a high arched crown. On the reverse side appears the Admiralty Anchor.

Almost simultaneously with the High Court of Admiralty, lesser Admiralty Courts of limited jurisdiction were established in a number of British seaports. Among these ports were the "Cinque Ports", an organization of five coastal towns that enjoyed a special charter as a group from Edward the Confessor (1041-1066). This group, composed of the towns of Hastings, Dover, Sandwich, Hythe and Romney, raised and maintained the earliest military navy of England, which was perhaps one of the reasons for their acquiring a Silver Oar when its use was first authorized.

Not only were the Cinque Ports as a group granted a Silver Oar, but each of the five Water Bailiffs carried a small replica of it when his duties required him to arrest persons on board ships or craft in the harbor. These are still used in some English ports.

Vice Admiralty Courts, one rank below the Admiralty High Court, were established in some of the Crown Colonies. Among those which have retained their Silver Oars are Sydney, Bermuda (presented by the Crown in 1701) and Capetown (although this oar has probably been