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by the War Department was followed on 26 October 1944 by a press release 3 which was headlined,

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1964] where the father or one or more sons or daughters of a family were killed in action while serving in the Armed Forces of the United States, or died in line of duty while serving in the Armed Forces of the United States, or subsequently died as a result of injuries received or disease incurred during such serv. ice, the sole surviving son of such family shall not be inducted for service under the terms of this title unless he volunteers for induction,5

On 12 March 1968, a bill was introduced in Congress which would extend the statutory exemption for sole surviving sons to encompass the situation where the father or one or more sons or daughters of a family are permanently and totally disabled as a result of a service-connected disability or disabilities incurred while serving in the Armed Forces of the United States and only one son of such a family survives who is not so disabled. In such a case, the proposed bill would amend the present law so as to exempt such son from induction.

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ARMY TO GIVE NON-COMBAT DUTY TO SOLE SURVIVING SON IF TWO OR MORE BROTHERS

HAVE BEEN KILLED This release indicated that the War Department had approved a policy of returning to or retaining in the continental United States the sole surviving son of a family in cases where two or more sons had been lost, except when the surviving son was engaged in non hazardous duty overseas. The release further stated that every application would be given sympathetic consideration for the return of the survivor to this country for duty or for discharge, if the circumstances should so warrant. The plan for removing men from the hazards of combat duty was described by the press release as an extension of a previous policy of cooperation on the part of the Army to provide relief from active duty or discharge in cases of extreme hardship arising from family circumstances.

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STATUTORY EXEMPTION Although the sole surviving son policy was initiated by the Armed Forces, it was later included in the Selective Service Act of 1948 4 as a reason for exemption from military service. The sole surviving son exemption provided :

Where one or more sons or daughters of a family were killed in action or died in line of duty while serving in the Armed Forces of the United States or subsequently died as a result of injuries received or disease incurred during such service, the sole surviving son of such a family shall not be inducted for service under the terms of this title.

In 1964 Congress amended the sole surviving son exemption by:

a. Exempting sole surviving sons from induction in cases where the father was killed in action or in line of duty;

b. Permitting sole surviving sons to volunteer for induction; and

c. Terminating the exemption in the time of war or national emergency declared by Congress after the date of the above-mentioned amendment, 7 July 1964.

The amended exemption provided :
Except during the period of a war or a national emer-
gency declared by Congress after the date of the enact-
ment of the 1964 amendment to this subsection [July 7,

REGULATORY PRIVILEGES While the above-mentioned statutory provisions permit an exemption for personnel eligible to be inducted into the Armed Forces under the Military Selective Service Act of 1967 (former Universal Military Training and Service Act), those provisions of law may be waived by a sole surviving son who desires induction, and they do not apply to personnel who become sole surviving sons subsequent to induction. But, the Armed Forces, by regulations, have established special policies and procedures which permit the restrictive assignment or discharge of a service member who meets basically the same qualifications set by the statute for exemption of a sole surviving son. These regulations state in part:

A sole surviving son means the only remaining son of a family of which, because of hazards incident to seryice in the Armed Forces of the United States, the father, or one or more sons or daughters

(1) have been killed;

(2) have died as a result of wounds, accident, or disease;

(3) are in a captured or missing-in-action status;

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3. Press Release of 26 Oct 1944, War Department, Bureau of Public

Relations, Press Branch. 4. Selective Service Act of 1948, sec. 6(0), 62 Stat. 609, repealed

by sec. 6(0), act 7 Jul 1964, 78 Stat, 296, 50 U.S.C. App. 456(0).

When the male members of a family include only a father and a son, they will be considered as brothers, i.e., if the father or the son is lost due to hazards incident to service, the survivor will qualify as a sole surviving son.

а

APPLICATION OF THE LAW AND REGULATIONS

The statutory exemption and the regulatory privileges for sole surviving sons contain essentially the same criteria ; however, the application of these two exemptions differs in nature. The statutory provision creates an exemption from induction, unless the sole surviving son volunteers. It is a personal right which can be waived or abandoned by voluntary service. On the other hand, the regulatory policy for sole surviving sons consists of privileges which may be requested by a service member, his parents, or his wife (a request by wife or parents being subject to veto by the member). A waiver of the statutory right to exemption from induction may be followed by a request under the regulatory provisions for designation as a sole surviving son. In such cases, approval by competent authority usually results in the service member's assignment to duties which normally do not involve actual combat. This regulatory restrictive assignment policy does, however, permit the assignment of sole surviving sons to overseas areas where combat conditions are nonexistent.

An alternative to the above-mentioned restrictive assignment policy exists in those cases where an enlisted service member becomes a sole surviving son subsequent to his induction into the Armed Forces. In such cases, the member may be discharged, provided: (a) he is not serving in the Armed Forces during a period of war or national emergency declared by Congress, or (b) he does not qualify as a sole surviving son on the basis of a captured or missingin-action status of a father, brother or sister.

Further, a sole surviving son who qualifies for discharge on the basis of the 100% disability status of the father or one or more sons or daughters is required to complete at least six months of active duty prior to discharge in order to qualify as a veteran for exemption from reinduction.

Commissioned officers (including warrant officers) will not be released from active duty based on their status as sole surviving sons.20

sole surviving son are confused with those regulations setting forth policies governing the assignment of military personnel to duty in the Republic of Vietnam. Although the regulations which restrict assignment to duty in Vietnam exempt personnel who have qualified for sole surviving son designation, such regulations are separate and distinct from the general regulations concerning the qualifications, assignment, and discharge of sole surviving sons.

INTERPRETATION Of course, application of the sole surviving son criteria poses questions which require interpretation. As to the regulatory privileges, a legally adopted son or stepson may be viewed the same as a natural son.In arriving at such a determination, crucial consideration is whether the adopted son or stepson has occupied the same relationship with the parents as a natural son. Thus, if the children of a family consist of an adopted son and a natural son, but the adopted son was not raised by the adopting parents, the death of the adopted son while a member of the Armed Forces would not serve to qualify the natural son as a sole surviving son.

With respect to the statutory exemption, it has been the policy of the Selective Service System 13 not to grant sole surviving son status to those otherwise eligible sons whose parents are dead. In support of this interpretation, the statute provides in pertinent part:

where the father or one or more sons or daughters of a family were killed in action or died in line of duty while serving in the Armed Forces of the United States ... the sole surviving son of such family shall not be inducted for service. (Emphasis supplied.)

Since the statute speaks of a son of a family, if both parents died, the family unit as used in the context of the statute would cease to exist. This view is entirely consistent with the basic and primary purpose of the sole surviving son exemption, which is to prevent further grief to

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11. DOD Dir. 1315.11 of 31 Mar 1967; BU'PERSINST, 1300.38 of 22

Jun 1967; MCO 1300.23 A of 30 Jun 1967, All same subj: Policies

Governing Assignment of Military Personnel to Duty in Vietnam. 12. It should be noted that MCO 1300.24 A, supra note 7, specifies

only that a male family member who has been legally adopted may be considered the

natural son; however, BUPERSINST. 1300.350, supra note 7, includes family members in the following categories: (a) a brother or sister of the half blood, (b) a stepbrother or stepsister, or

(c) a brother or sister by adoption. 13. General Counsel, National Selective Service System Itr of 31

Jan 1968 to Field Attorney, Selective Service System, Columbus,

Ohio. 14. 78 Stat. 296, 50 U.S.C. App. 456(0) (1964).

OTHER REGULATIONS Frequently, the regulations pertaining to a

9. See Pickens v. Cox, 282 F. 2d 784 (10th Cir. 1960). 10. BUPERSINST. 1300.35C ; MCO 1300.24A, supra note 7.

already bereaved parents,i: and not to carry on a for the statutory and regulatory exemptionsfamily name as some may surmise.16

although stated differently—are essentially the Often, the military status of the deceased at same. Since the regulatory criterion "of hazards the time he died or met his death is the deter incident to service" is an extension of the statmining factor for the designation of a sole sur utory criterion of “in line of duty," the survivor viving son. For example, if one of two brothers in the example mentioned above would be eligiwas killed in an automobile accident while a ble for exemption under the sole surviving son service member in an inactive Reserve status, regulations.19 may the surviving brother qualify for designa While the regulatory criteria for designation tion as a sole surviving son? Since the deceased of a sole surviving son are usually given conson was not “killed in action," nor did he die sistent interpretation, changes in the factual cir"in line of duty while serving in the Armed cumstances in particular cases may bring about Forces," the surviving brother would obviously what appears to be inconsistencies in making not qualify under the statutory exemption from sole surviving son determinations. This situainduction as a sole surviving son. Similarly, to tion can develop when permanent disability be designated a sole surviving son, under the (100% physically or mentally) is relied upon as regulatory criteria, a deceased father, son or a basis for the sole surviving son designation. daughter must have been killed or have died as As indicated by the regulations, 20 the determinaa result "of hazards incident to service in the tion of the requisite disability is contingent Armed Forces of the United States." In short, to

upon the following: qualify for the exemption under the statute a. the findings of the Veterans' Administraor regulation, the deceased family member's tion or one of the military services, and death must have occurred during or as the direct b. whether the family member is hospitalized result of his active service 17 in the Armed on a continuing basis, and Forces of the United States. In those instances c. whether the family member is gainfully where doubt exists as to whether or not the

employed. death resulted from service-connected causes,

An example of a changed factual situation rethe finding of the Veterans' Administration is

quiring a different interpretation of the reguladeterminative.

tions can be illustrated by the following: Shortly In certain cases, the statutory provisions may

after his enlistment, the applicant's only brother assist in the interpretation of the regulatory “because of hazards incident to service" was criteria for designation of a sole surviving son.

rated as 70% disabled by the Veterans' AdminFor example, two brothers are serving in the

istration; however, he was not hospitalized on a Armed Forces and one of the brothers meets his

continuing basis and he was regularly employed death by drowning during an authorized week

as an author. Clearly, under the regulatory criend liberty. Under established criteria for deter

teria, the disabled brother's condition was not mining line of duty/misconduct status, 18 his

sufficient to qualify his brother as a sole survivdeath occurred in line of duty as required for

ing son. Two years thereafter, although the qualifying under the statutory exemption. May

Veterans' Administration's findings of 70'c disthe only remaining brother—an active duty service member-qualify for designation as a

ability remained unchanged, the disabled brothsole surviving son under the regulations which

er's condition compelled him to cease his employment as

an author and required his stipulate that he must be the sole surviving son

hospitalization on a continuing basis. Even “because of hazards incident to service"? As indicated above, the criteria providing the basis

though the disability rating in this instance remained unchanged, the service-member brother could nevertheless qualify as a sole surviving

son under the regulations because his brother's 15. 94 Cong. Rec. 8677 (1948).

condition substantially meets the specified 16. General Counsel, Selective Service System Itr, supra note 13. 17. As to the term, "active service," JAG Manual, sec. 0807a states

standards for determination of 100% disability. in pertinent part: "[T]he term 'active service includes extended active duty, active duty for training, including any leave or liberty therefrom, and inactive duty training." JAG Manual, sec. 0911b amplifies the above as follows: "The period of active duty for training is from the time of reporting to the time of release, plus the time of travel as prescribed in the Navy Comptroller Manual, paragraph 044735.” Also, JAG Manual, sec. 09116 states: "Engagement in inactive duty training (drill) is con

sidered to be only that period between muster and dismissal." 18. JAG Manual, secs. 0807 and 0808.

19. JAG itr JAG:131.2 :RKC:skr ser 10999 of 4 Dec 1967.
20. BUPERSINST 130).350; MCO 1300.24A, supra note 7.

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(Continued on page 122)

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Career opportunities for women officers of the armed services took a great leap forward in 1967 as the result of extensive congressional revamping of the women officer structure. More women may now be promoted to senior grades, with the attainment of flag and general rank authorized. This article enucleates the provisions of the new legislation as they apply to women officers of the Navy.

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rather than made permanent. Once the alternative of permanency rather than disestablishment had been decided upon, however, considerable attention was directed to providing a personnel structure for those components. The essence of the policy governing the structure adopted was that the personnel management policies that had theretofore been applied to men should thereafter be applied to women "except where obviously inapplicable." 4 In this light, it is interesting to note that the purpose of Public Law 90–130,5 as stated in the report of the Committee on Armed Services of the House of Representatives, is "to remove the provisions of law which limit the promotion opportunity for, and restrict the career tenure

*Lieutenant Wolf is currently assigned to the Promotions and Retirements Division, Office of the Judge Advocate General. He received a Bachelor of Science in Business Degree from the University of Minnesota in 1961, and in 1964 he received a Bachelor of Laws Degree from the University of Minnesota Law School, where he served as a member of the Editorial Board of the Minnesota Law Review, Lieutenant Wolf is admitted to practice before the Supreme Court of the State of Minnesota, the U.S. District Court for the District of Minnesota, and the U.S. Court of Military Appeals. He formerly served as

law clerk in the U.S. District Court of

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Delaware.

1. Army-Navy Nurse Act of 1947, ch. 38, 61 Stat. 41; Women's

Armed Services Integration Act of 1948, ch. 449, 62 Stat. 356. 2. See S. Rep. No. 567, 80th Cong., 1st Sess. 2 (1947); Hearings

before the Senate Armed Services Committee on s. 1103, S. 1527 and S. 1641, 80th Cong., 1st Sess. 9–23 (1947).

3. Hearings before Subcommittee No. 3 of the House Armed Services

Committee on S. 1641, 80th Cong., 1st Sess, 2-3 (1947). 4. S. Rep. No. 567, supra note 2, at 2. 5. Act 8 Nov 1967, 81 Stat. 374 (hereinafter Pub. Law 90-130).

officers ordered to active duty in the Marine Corps Reserve TAR

the active duty Reserves who will be promoted under 10 sf ch. 543. JAG Itr JAG: 131.5: PAW: skr ser. 2356 of 12 Mar 1945 determined by eligibility of their running mates, 72 Stat, 134 (1958) (former 10 U.S.C. 5899 (c)), the next junior Regula:

for selection and appearance before a selection board is set forth

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nurs miatt line

zone

dered to temporary active duty to prosecute special work and

line officer, 10 U.S.C. 5665 (d). A discussion of the

changes in the provisions relating to eligibility for considerate of, women officers. .". On the basis of the foregoing and other legislative history of Public

Reservists. To resolve this problem Congress re

Tomei Law 90-130, there appears to have been some

moved the thirty percent statutory ceiling and

ifter: feeling that policies which have been deemed

granted to the Secretary of the Navy the author

ar we “obviously inapplicable" to women for the past

ity to determine the numbers of women officers

eligibi twenty years have today become markedly rele

in each grade above lieutenant (junior grade)." vant, and past action which neglected to apply

In so providing Congress expected that the Secthem is today considered arbitrary and dis

retary of the Navy would use the total active the de

duty strength of women line officers, Reserve as criminatory. It is the purpose of this article to

such

well as Regular, as the base for determining examine, in the context of this apparent

Cor

numbers in grades.11 anomaly, the specific changes effected by Public

The ni

Concomitantly with the foregoing came a basic Law 90-130 respecting Navy women officers.

trade change in the promotion laws for Reserves on

er 0 Changes effected by Public Law 90-130 relate active duty. Under the old law all women Re

of ca to promotion opportunity and tenure. The serve officers, other than those in the Nurse

perce changes relating to promotion increase pros Corps, were promoted under the system appli

Corp pects for advancement to senior grades by mak cable to Reserves notwithstanding that they

provi ing it possible for women to attain higher were serving on active duty. This has now been grades than heretofore possible and by elimina changed so that women Reserve officers on acting the percentage restrictions on the number of tive duty will now be promoted under the same women to be appointed to senior grades. Other system that is applicable to Regulars. Thus. changes relating to promotion are designed to ac the requisites for initial appearance before a secommodate promotion procedures to the new ten lection board are now the same for active duty ure rules. The changes relating to tenure tend to Reservists as for Regulars.1+ Active duty Reservbring provisions for involuntary separation of ists will compete for promotion against Regular women officers into consonance with those here

ted

10. The authority of the Secretary of the Navy is to prescribe the tofore applicable to male officers. Women officers

number of such women officers serving on active duty in the in the corps of the Medical Department, other line, 10 V.S.C. 5452, as amended by Pub. Law 90-130. The

numbers than the Nurse Corps, already benefitted from

so prescribed will effectively operate to control the

number of women officers on the active list in a staff corps many of the principles now applied to women

other than the Nurse Corps. 10 U.S.C. 5763, as amended by Pab. generally, and accordingly the discussion in this Law 90-130. A thorough consideration of the effect of 10 l'.S.C.

pero

5452, as amended by Pub. Law 90-130, is set forth in a recent article does not apply to them.

JAG opinion. JAG Itr JAG: 131.5: PAW: skr ser 2356 of 12 Mar

tent 1968 to CMC. This opinion established the general tenor fer PROMOTION

construction of the act by adopting the approach that where the

language of the act is vague or ambiguous the purpose of Limited promotion opportunities for junior

the act will be served by using the laws applicable to make women officers, combined with forced separa officers as a guide. The opinion included the specific holding

that officers having temporary appointments under 10 USC. tion, had given rise to a very difficult situation.

5787 and officers ordered to temporary active duty to prosecale It was estimated that without a change in the

special work should not be included in the maximum number in law the attrition rate of women line lieutenants grades authorized by the Secretary under 10 U.S.C. 5152,

amended by Pub. Law 90-130. would have averaged fifty percent or more dur

11. H.R. Rep. No. 216, supra note 6, at 12-13. ing the next five years. The problem grew out

12. The provisions governing promotion of Reserve officers are s? of the statutory provision limiting the number of forth in 10 U.S.C. ch. 549. Promotion provisions relating to WAVE officers in the grades of lieutenant com

Regular women were expressly inapplicable to women Reserves

other than active duty Reservists in the Nurse Corps. 70A Stal. mander and commander.' This ceiling, a number

345, 366 (1956) (former 10 U.S.C. 5711(c) (1), 5786 (a) (1) equal to thirty percent of Regular women line

13. This was effected by amendment of 10 U.S.C. 5704, 5711 selet

tion boards), 5752 (eligibility for consideration by selectie officers, proved to be unduly restrictive because

board), 5760, 5763 (numbers to be recommended), 5764, 576 it was not affected by the number of active duty

(promotion zones), 5771, 5773 (eligibility for promotion), 529 (applicability of Reserve promotion procedures). Officers of

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and mal

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(Training-Administration Reserve) program are not included in

to CMC,

6. H.R. Rep. No. 216, 90th Cong.. Ist Sess. 1 (1967) (hereinafter

H.R. Rep. No. 216). 7. Hearings before Subcommittee No. 1 of the House Armed

Services Committee on H.R. 16000, 89th Cong., 2d Sess, 11041, 11012, 11015, 11061 (1966) (hereinafter Hearings on H.R. 16000);

H.R. Rep. No. 216, supra note 6, at 9.
8. H.R. Rep. No. 216, supra note 6, at 6.
9. The former limit for women line officers was set forth in 72

Stat. 1491, 10 U.S.C. 5452 (a) (1958). This ceiling also operated
to limit the number of such women officers in the staff corps. 70A
Stat. 352 (1956), as amended by 72 Stat. 1947 (1958) (former 10
C.S.C. 5763).

14. 10 C.S.C. 5752, 5753, 5764, 5766, each as amended by Pub. Len

90-130. Eligibility for consideration of these Reserve officers

woman

infra, notes 49–57, and text accompanying.

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