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

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 nonhazardous 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.

STATUTORY EXEMPTION

4

Although the sole surviving son policy was initiated by the Armed Forces, it was later included in the Selective Service Act of 1948 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 emergency declared by Congress after the date of the enactment of the 1964 amendment to this subsection [July 7,

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

4. Selective Service Act of 1948, sec. 6(o), 62 Stat. 609, repealed by sec. 6(0), act 7 Jul 1964, 78 Stat. 296, 50 U.S.C. App. 456 (o).

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 service, 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.

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 service in the Armed Forces of the United States, the father, or one or more sons or daughters

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.

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.10

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.

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.12 In arriving at such a determination, a 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 14 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

11. DOD Dir. 1315.11 of 31 Mar 1967; BUPERSINST. 1300.38 of 22 Jun 1967; MCO 1300.23A of 30 Jun 1967. All same subj: Policies Governing Assignment of Military Personnel to Duty in Vietnam. 12. It should be noted that MCO 1300.24A, supra note 7, specifies only that a male family member who has been legally adopted may be considered the same as a natural son; however, BUPERSINST. 1300.35C, 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 ltr of 31 Jan 1968 to Field Attorney, Selective Service System, Columbus, Ohio.

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

already bereaved parents, 15 and not to carry on a family name as some may surmise.16

Often, the military status of the deceased at the time he died or met his death is the determining factor for the designation of a sole surviving son. For example, if one of two brothers Iwas killed in an automobile accident while a service member in an inactive Reserve status, may the surviving brother qualify for designation as a sole surviving son? Since the deceased son was not "killed in action," nor did he die "in line of duty while serving in the Armed Forces," the surviving brother would obviously not qualify under the statutory exemption from induction as a sole surviving son. Similarly, to be designated a sole surviving son, under the regulatory criteria, a deceased father, son or daughter must have been killed or have died as a result "of hazards incident to service in the Armed Forces of the United States." In short, to qualify for the exemption under the statute or regulation, the deceased family member's death must have occurred during or as the direct result of his active service 17 in the Armed Forces of the United States. In those instances where doubt exists as to whether or not the death resulted from service-connected causes, the finding of the Veterans' Administration is determinative.

In certain cases, the statutory provisions may assist in the interpretation of the regulatory criteria for designation of a sole surviving son. For example, two brothers are serving in the Armed Forces and one of the brothers meets his death by drowning during an authorized weekend liberty. Under established criteria for determining line of duty/misconduct status, 18 his death occurred in line of duty as required for qualifying under the statutory exemption. May the only remaining brother-an active duty service member-qualify for designation as a sole surviving son under the regulations which stipulate that he must be the sole surviving son "because of hazards incident to service"? As indicated above, the criteria providing the basis

15. 94 Cong. Rec. 8677 (1948).

16. General Counsel, Selective Service System ltr, supra note 13. 17. As to the term, "active service," JAG Manual, sec. 0807a states 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. 0911c states: "Engagement in inactive duty training (drill) is considered to be only that period between muster and dismissal." 18. JAG Manual, secs. 0807 and 0808.

for the statutory and regulatory exemptionsalthough stated differently-are essentially the same. Since the regulatory criterion "of hazards incident to service" is an extension of the statutory criterion of "in line of duty," the survivor in the example mentioned above would be eligible for exemption under the sole surviving son regulations.19

While the regulatory criteria for designation of a sole surviving son are usually given consistent interpretation, changes in the factual circumstances in particular cases may bring about what appears to be inconsistencies in making sole surviving son determinations. This situation can develop when permanent disability (100% physically or mentally) is relied upon as a basis for the sole surviving son designation. As indicated by the regulations, 20 the determination of the requisite disability is contingent upon the following:

a. the findings of the Veterans' Administration or one of the military services, and

b. whether the family member is hospitalized on a continuing basis, and

c. whether the family member is gainfully employed.

An example of a changed factual situation requiring a different interpretation of the regulations can be illustrated by the following: Shortly after his enlistment, the applicant's only brother "because of hazards incident to service" was rated as 70% disabled by the Veterans' Administration; however, he was not hospitalized on a continuing basis and he was regularly employed as an author. Clearly, under the regulatory criteria, the disabled brother's condition was not sufficient to qualify his brother as a sole surviving son. Two years thereafter, although the Veterans' Administration's findings of 70% disability remained unchanged, the disabled brother's condition compelled him to cease his employment as an author and required his hospitalization on a continuing basis. Even 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 condition substantially meets the specified standards for determination of 100% disability.

(Continued on page 122)

19. JAG ltr JAG:131.2:RKC:skr ser 10999 of 4 Dec 1967. 20. BUPERSINST 1300.35C; MCO 1300.24A, supra note 7.

*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 a law clerk in the U.S. District Court of 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).

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." 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

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).

of, women officers. . ." On the basis of the foregoing and other legislative history of Public Law 90-130, there appears to have been some feeling that policies which have been deemed "obviously inapplicable" to women for the past twenty years have today become markedly relevant, and past action which neglected to apply them is today considered arbitrary and discriminatory. It is the purpose of this article to examine, in the context of this apparent anomaly, the specific changes effected by Public Law 90-130 respecting Navy women officers.

Changes effected by Public Law 90-130 relate to promotion opportunity and tenure. The changes relating to promotion increase prospects for advancement to senior grades by making it possible for women to attain higher grades than heretofore possible and by eliminating the percentage restrictions on the number of women to be appointed to senior grades. Other changes relating to promotion are designed to accommodate promotion procedures to the new tenure rules. The changes relating to tenure tend to bring provisions for involuntary separation of women officers into consonance with those heretofore applicable to male officers. Women officers in the corps of the Medical Department, other than the Nurse Corps, already benefitted from many of the principles now applied to women generally, and accordingly the discussion in this article does not apply to them.

PROMOTION

Limited promotion opportunities for junior women officers, combined with forced separation, had given rise to a very difficult situation. It was estimated that without a change in the law the attrition rate of women line lieutenants would have averaged fifty percent or more during the next five years. The problem grew out of the statutory provision limiting the number of WAVE officers in the grades of lieutenant commander and commander." This ceiling, a number equal to thirty percent of Regular women line officers, proved to be unduly restrictive because it was not affected by the number of active duty

6. H.R. Rep. No. 216, 90th Cong., 1st 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, 11042, 11045, 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 U.S.C. 5763).

Reservists. To resolve this problem Congress removed the thirty percent statutory ceiling and granted to the Secretary of the Navy the authority to determine the numbers of women officers in each grade above lieutenant (junior grade).1 In so providing Congress expected that the Secretary of the Navy would use the total active duty strength of women line officers, Reserve as well as Regular, as the base for determining numbers in grades."1

Concomitantly with the foregoing came a basic change in the promotion laws for Reserves on active duty. Under the old law all women Reserve officers, other than those in the Nurse Corps, were promoted under the system applicable to Reserves notwithstanding that they were serving on active duty.12 This has now been changed so that women Reserve officers on active duty will now be promoted under the same system that is applicable to Regulars.13 Thus, the requisites for initial appearance before a selection board are now the same for active duty Reservists as for Regulars.14 Active duty Reservists will compete for promotion against Regular

10. The authority of the Secretary of the Navy is to prescribe the number of such women officers serving on active duty in the line. 10 U.S.C. 5452, as amended by Pub. Law 90-130. The numbers so prescribed will effectively operate to control the number of women officers on the active list in a staff corps other than the Nurse Corps. 10 U.S.C. 5763, as amended by Pub. Law 90-130. A thorough consideration of the effect of 10 U.S.C. 5452, as amended by Pub. Law 90-130, is set forth in a recent JAG opinion. JAG ltr JAG: 131.5: PAW: skr ser 2356 of 12 Mar 1968 to CMC. This opinion established the general tenor for construction of the act by adopting the approach that where the language of the act is vague or ambiguous the purpose of the act will be served by using the laws applicable to male officers as a guide. The opinion included the specific holdings that officers having temporary appointments under 10 U.S.C. 5787 and officers ordered to temporary active duty to prosecute special work should not be included in the maximum number in grades authorized by the Secretary under 10 U.S.C. 5452, as amended by Pub. Law 90-130.

11. H.R. Rep. No. 216, supra note 6, at 12-13.

12. The provisions governing promotion of Reserve officers are set forth in 10 U.S.C. ch. 549. Promotion provisions relating to Regular women were expressly inapplicable to women Reserves other than active duty Reservists in the Nurse Corps. 70A Stat. 345, 366 (1956) (former 10 U.S.C. 5711(c)(1), 5786 (a) (1)\. 13. This was effected by amendment of 10 U.S.C. 5704, 5711 (selection boards), 5752 (eligibility for consideration by selection board), 5760, 5763 (numbers to be recommended), 5764, 5766 (promotion zones), 5771, 5773 (eligibility for promotion), 5×91 (applicability of Reserve promotion procedures). Officers ordered to temporary active duty to prosecute special work and officers ordered to active duty in the Marine Corps Reserve TAR (Training-Administration Reserve) program are not included in the active duty Reserves who will be promoted under 10 U.S.C ch. 543. JAG ltr JAG: 131.5: PAW: skr ser. 2356 of 12 Mar 1965 to CMC.

14. 10 U.S.C. 5752, 5753, 5764, 5766, each as amended by Pub. Law 90-130. Eligibility for consideration of these Reserve officers was determined by eligibility of their running mates, 72 Stat. 1543 (1958) (former 10 U.S.C. 5899 (c)), the next junior Regular woman line officer, 10 U.S.C. 5665(d). A discussion of the changes in the provisions relating to eligibility for consideratiet for selection and appearance before a selection board is set forth infra, notes 49-57, and text accompanying.