women officers,15 and eligibility for promotion, after selection, will be similar to that for Regular women officers.16 The provisions governing eligibility for promotion to the grade of lieutenant were amended so that selectees will be promoted as vacancies occur, 17 thereby eliminating the delay under the old law according to which such promotions were made en bloc each July.

Corresponding to repeal of the limitation on the number of WAVE officers in specified senior grades was repeal of the limitation on the number of officers in the Nurse Corps in the grades of captain and commander, two-tenths of one percent and five percent, respectively, of Nurse Corps Regulars.18 The new law makes no express provision concerning the number of officers authorized for these grades. Rather it provides that nurses in the promotion zone shall have the same mathematical promotion opportunity as male line officers in their corresponding promotion zone.19 The result is a substantial improvement in the promotion opportunity to the grades of captain and commander. The percentage of Nurse Corps officers in these grades will thus be tied to the authorized number in grade for unrestricted male line officers in the grades of captain and commander. The percentage of unrestricted male line officers in the grades of captain and commander fluctuates from two and three-tenths percent to six percent and from three and eighttenths percent to twelve percent, respectively, of total active duty line officers in the grades of

15. Prior to Pub. Law 90-130 active duty women Reserves competed for promotion against inactive duty women Reserves. 70A Stat. 345 (1956) (former 10 U.S.C. 5711 (c) (1)); 72 Stat. 1499-1500 (1958) (former 10 U.S.C. 5891). Now women Reserve officers, when on active duty, will be considered by the same selection board as Regular women officers. 10 U.S.C. 5704, as amended by Pub. Law 90-130, and 5891(g), added by Pub. Law 90-130. 16. Pursuant to Pub. Law 90-130 women Reserve officers of the line on active duty who have been selected for promotion to grades above lieutenant (junior grade) will be eligible for promotion, in the order in which their names appear on the promotion list, as vacancies occur. 10 U.S.C. 5771(b), as amended. A woman Reserve staff corps officer selected for promotion will be eligible for promotion when the line officer who is to be her running mate in the higher grade is eligible for promotion. 10 U.S.C. 5773, as amended by Pub. Law 90-130.

17. 10 U.S.C. 5771, as amended by Pub. Law 90-130.

18. 71 Stat. 381 (1957) (former 10 U.S.C. 5444 (b)); 70A Stat. 311 (1956), as amended by 71 Stat. 381 (1957) (former 10 U.S.C. 5449 (c)).

19. 10 U.S.C. 5762 (a), as amended by Pub. Law 90-130. Statutory sections involved in application of the formula set forth at 10 U.S.C. 5762 (a), as amended, are as follows: 10 U.S.C. 5652, 5653, 5655, 5657, 5658 (each governing appointment of male line officers as running mates for Nurse Corps officers); 10 U.S.C. 5756 (relating to the number of male line officers not restricted in the performance of duty placed on the promotion list); 10 U.S.C. 5764, as amended by Pub. Law 90-130 (relating to number in promotion zones for unrestricted male line officers); 10 U.S.C. 5766(a), as amended by Pub. Law 90-130 (relating to number in promotion zones for women officers in staff corps).

ensign and above.20 Since the ceiling on numbers in grades was removed, vacancies in grade could not be used as the standard of eligibility for promotion.21 Eligibility for promotion of Nurse Corps officers will now be dependent on promotion of their running mates.22

Career prospects for women were further improved by changes effecting an opportunity for attainment of higher grades than was heretofore possible. For the first time there is authority whereby a woman can attain the grade of rear admiral. Attainment of flag rank by a woman officer requires a determination by the Secretary of the Navy that a position is of sufficient importance and responsibility to require an incumbent of flag rank, and that a women is best qualified to perform the duties of the position.23 Thus, there are two circumstances in which a woman officer can attain flag rank. One such circumstance is when a woman is chosen to fill a flag billet otherwise filled by a man. In addition, the Secretary may determine that a billet, such as Assistant Chief of Naval Personnel for Women, Director of Women Marines, or Director of the Navy Nurse Corps, being then occupied by a woman, requires an incumbent of flag or general rank. Thus, the principles relating to promotion of a woman to flag rank are somewhat distinctive in several respects. There is no minimum quota of women flag officers and hence no guarantee that a woman will attain flag rank.25 Nor is there any guarantee of consideration for promotion to rear admiral since no selection board is required to be regularly convened for such consideration. The overall ceiling on the number of flag officers that each service is allowed has the effect of putting women in competition with men. In addition, appointments terminate on departure from the billet 28

20. 10 U.S.C. 5442 (a).

24

27

21. H. R. Rep. No. 216, supra note 6, at 15.

22. 10 U.S.C. 5773, 5782, each as amended by Pub. Law 90-130. 23. 10 U.S.C. 5767 (c), added by Pub. Law 90-130.

24. The language of this section of the act is somewhat vague concerning the possibility of establishing a women's flag billet. However, the interpretation adopted herein is supported by the statement of Major General Earle F. Cook, U.S. Army (Retired) during the hearings before the House subcommittee. His ap parent construction of the act to this effect drew no questions from the subcommittee members. Hearings on H.R. 16000, supra note 7, at 11061-63. This construction is also supported by the purpose stated for the amendments to 10 U.S.C. 5140, 5143, 5206. H.R. Rep. No. 216, supra note 6, at 12.

25. Hearings on H.R. 16000, supra note 7, at 11047. 26. See 10 U.S.C. 5702, 5704, each as amended by Pub. Law 90-130. 27. See Hearings on H.R. 16000, supra note 7, at 11047. 28. 10 U.S.C. 5767 (c), added by Pub. Law 90-130.

justifying the appointment, although entitlement to retirement pay will be based on the grade of rear admiral. 29

Promotion of women officers to the grade of captain by selection board procedures is also authorized by Public Law 90-130.30 Previously only women in the Nurse Corps could be so promoted. As distinguished from the possibility of promotion to the grade of rear admiral, promotion to the grade of captain is a part of the normal career pattern. Principles and procedures are essentially the same as those respecting promotion to the grade of commander or lieutenant commander. Commanders will be eligible for consideration for promotion to captain after four years in grade.31

TENURE

Substantial revisions affecting involuntary separation further enhanced the scheme of career incentives for women officers. These revisions were intended to prevent the stagnation of young officers in junior grades with no opportunity for promotion. This was accomplished by changing the criteria for involuntary separation. The significance of age as a factor for separation of commissioned officers was substantially decreased and maximum age for service was increased from fifty-five to sixty-two for women warrant officers.32 Maximum terms of active service were amended. Most significant, however, is the increased importance of attainment of promotion in accordance with an established career pattern and, for officers in the Nurse Corps, inclusion of the concept of failure of selection as a factor relating to retirement.

Following is a comparison of the specific terms of the old law with those established by Public Law 90-130. Under the old law all women officers in the grade of commander or above and lieutenant commanders in the Nurse Corps were retired at age fifty-five or on completion of thirty years of active service, whichever first occurred.33 Captains and commanders in the Nurse Corps could continue to serve if selected for

29. H.R. Rep. No. 216, supra note 6, at 7.

30. 10 U.S.C. 5452 (number in grade), 5704 (convening of selection boards), 5707 (a) (4) (promotion criteria), 5752(a)(1) (eligibility for consideration), 5760, 5762, 5763 (number to be recommended for promotion), 5764, 5766 (promotion zones), 5771, 5773 (eligibility for promotion), 5896 (inactive duty Reserves), each as amended by Pub. Law 90-130.

31. 10 U.S.C. 5752 (a) (1), as amended by Pub. Law 90-130. 32. 10 U.S.C. 1164, as amended by Pub. Law 90-130.

33. 71 Stat. 384 (1957), as amended by 80 Stat. 853 (1966) (former 10 U.S.C. 6377(c), (d)) (Nurse Corps lieutenant commanders); 70A Stat. 413 (1956), as amended by 72 Stat. 130 (1958) (former 10 U.S.C. 6398) (line and other staff corps commanders); 72 Stat. 1511 (1958) (former 10 U.S.C. 6397, 6403) (Reserve officers).

37

continuation.34 Lieutenant commanders, other than those in the Nurse Corps, were retired at age fifty or on completion of twenty years of active commissioned service, whichever first occurred.35 Nurse Corps officers below the grade of lieutenant commander were retired at fifty years of age or after twenty years of active service, whichever was later.36 Other women were discharged at age fifty or after thirteen years of active commissioned service, whichever first occurred, if serving in the grade of lieutenant, and at age fifty or on completion of seven years of active commissioned service, whichever first occurred, if serving in the grade of lieutenant (junior grade).38 Under Public Law 90-130 Regular women captains, except those in the Nurse Corps, will be retired after thirty years of active commissioned service.39 Nurse Corps captains will generally be retired after thirty-one years of total commissioned service.40 Nurse Corps officers will be retired after twenty-six years of active commissioned service having twice failed of selection for promotion to the grade of captain while serving in the grade of commander," and after twenty years of active commissioned service having twice failed of selection for promotion to the grade of commander when serving in the grade of lieutenant commander." As before, captains and commanders in the Nurse Corps may serve beyond these limitations if selected for continuation.43 Other women officers will be retired after twenty-six years of active commissioned service when serving in the grade of commander," and after twenty years. of active commissioned service when serving in the grade of lieutenant commander. 45 All lieutenants and lieutenants (junior grade), respectively, will be discharged after thirteen 6 and

34. 10 U.S.C. 6378.

35. 70A Stat. 414 (1956), as amended by 72 Stat. 131 (1958) (former 10 U.S.C. 6399, 6400).

36. 71 Stat. 385 (1957), as amended by 80 Stat. 853 (1966) (former 10 U.S.C. 6396(b)).

37. 70A Stat. 414 (1956), as amended by 72 Stat. 131 (1958) and 77 Stat. 214 (1963) (former 10 U.S.C. 6399); 10 U.S.C. 6401. 38. 70A Stat. 414 (1956), as amended by 72 Stat. 131 (1958) and 77 Stat. 214 (1963) (former 10 U.S.C. 6399); 10 U.S.C. 6402.

39. 10 U.S.C. 6398, as amended by Pub. Law 90-130 (Regulars). The elimination of women Reserve officers from an active status is subject to the terms for retirement or discharge of a woman line officer in the same grade on the active list of the Regular Navy. 10 U.S.C. 6403.

40. 10 U.S.C. 6377 (b), as amended by Pub. Law 90-130. 41. 10 U.S.C. 6377 (d), as amended by Pub. Law 90-130. 42. 10 U.S.C. 6396 (a), as amended by Pub. Law 90-130. 43. 10 U.S.C. 6378.

44. 10 U.S.C. 6398 (b), as amended by Pub. Law 90-130. 45. 10 U.S.C. 6400.

46. 10 U.S.C. 6396 (c), as amended by Pub. Law 90-130; 10 U.S.C. 6401.

seven 47

years of active commissioned service. The effect of the involuntary separation provisions on Nurse Corps officers was mitigated by a delay of the effective date of certain provisions and by provisions authorizing selective retention of officers who would otherwise be separated. 48

Heretofore the concept of failure of selection did not apply to women officers.49 Public Law 90-130 adopts the promotion zone system for women officers 50 and provides that a woman officer who is in the promotion zone but not selected for promotion will be deemed to have failed of selection.51 It should be noted from the previous discussion that failure of selection is directly pertinent to retirement only for officers in certain grades in the Nurse Corps. An officer who has once failed of selection will not thereafter be in the promotion zone,52 but will continue to be eligible for consideration for selection.53 Application of the promotion zone system to women officers effected a change concerning personnel to be considered by the selection board. Under the old law an officer became eligible for consideration for promotion after completing prescribed periods of service in grade, and there were no other limitations affecting whom the board would consider. Subsequent to Public Law 90-130 selection is limited primarily to officers in the promotion zone. The promotion zone for line officers consists of the most senior officers eligible for consideration and not previously in a promotion zone who are so designated by the Secretary of the Navy.55 Staff corps officers will be in the promotion zone for their corps when their running mates are in the promotion zone.56 Not more than five percent of the officers recommended for promotion may be junior to the junior officer in the promotion zone."

57

47. 10 U.S.C. 6396 (d), as amended by Pub. Law 90-130; 10 U.S.C. 6402.

48. Pub. Law 90-130, secs. 4(b), (c), (d), (f), 81 Stat. 383 (1967). 49. 70A Stat. 361 (1956), as amended by 71 Stat. 383 (1957) and 80 Stat. 853 (1966) (former 10 U.S.C. 5776(d), (e)).

50. 10 U.S.C. 5764, 5766, 5899, each as amended by Pub. Law 90130.

51. 10 U.S.C. 5776(a), (c), 5903, each as amended by Pub. Law 90-130.

52. 10 U.S.C. 5764, 5766, each as amended by Pub. Law 90-130. 53. 10 U.S.C. 5754. But see 10 U.S.C. 5707(g).

54. 10 U.S.C. 5752; 70A Stat. 348 (1956) (former 10 U.S.C. 5753(c)). 55. 10 U.S.C. 5764, as amended by Pub. Law 90-130. The zone is determined by application of a statutory formula designed to provide approximately equal mathematical opportunity for promotion among those eligible for consideration from one year to the next by use of five year projections.

56. 10 U.S.C. 5766 (a), as amended by Pub. Law 90-130. 57. 10 U.S.C. 5707 (c).

CONCLUSION

The reasons underlying the disparities between career opportunities for men and women prior to Public Law 90-130 were varied. For instance, except in the Nurse Corps, the number of women Reserve officers on active duty was not considered in setting the authorized numbers of officers in grades and Reserves could be considered for promotion only by Reserve selection boards, unlike male Reserve officers on active duty. The reason for this difference was that in 1948 it was not expected that women Reserve officers would serve on active duty in time of peace.58 Another example of the disparities between men and women officers prior to Public Law 90-130 was that retirement provisions applicable to males were not generally applicable to women. This disparity was necessary since retirement for women was based on a career pattern where the maximum grade attainable was commander.59

It is clear that career incentives for women officers were substantially increased by Public Law 90-130 and that opportunities for women now more nearly approximate those of men. As a result of Public Law 90-130 there is similarity in the opportunity for promotion to grades through captain; there is substantial similarity of promotion procedures; and the terms governing involuntary separation are to the same general effect for women as for men. It was not, however, the intent of Congress that Public Law 90-130 should effect complete equality between men and women in military careers.60

Underlying the remaining differences are considerations of policy which continue to limit the scope of women's activities in the armed services. The firm basis of this policy was elucidated by the Assistant Secretary of Defense (Manpower) who, when testifying on the bill, said: "We believe that the Nation still adheres to the concept that combat, combat support, and the direction of our operating forces are responsibilities for male officers." 61 More specifically applicable to the Navy is the restriction on sea duty for women."

62

The most obvious vestige of differentiation is access to flag rank. This difference was considered necessary solely because women officers cannot be trained in the wide range of duties

58. Hearings on H.R. 16000, supra note 7, at 11057.

59. Hearings Before Subcommittee No. 3 of the House Armed Services Committee on S. 1641, 80th Cong., 2d Sess. 5709 (1948). 60. H.R. Rep. No. 216, supra note 6, at 5.

61. Hearings on H.R. 16000, supra note 7, at 11046. 62. H.R. Rep. No. 216, supra note 6, at 5.

experienced by men. There is accordingly a practical limitation on the number of flag billets which these women officers are qualified to fill. To avoid having permanent women flag officers with no billet for them, Congress made the special provisions concerning access of women officers to flag rank. It would seem that this limitation on women can be removed only when circumstances are such that women and men have greater similarity in career development patterns.

64

63

Another obvious differentiation is absence of direct competition between men and women for promotion. The result is that even if more women are best qualified for promotion, as compared with their male contemporaries, they cannot be promoted in lieu of men, and vice versa. This is in contrast to the approach adopted when the Judge Advocate General's Corps was was formed, and that used in the corps of the Medical Department other than the Nurse Corps, where men and women are in direct competition. The primary reason for the variance. would appear to be the greater possibility for similarity of career development among men and women officers in these staff corps as opposed to the line. It is, perhaps, conceivable that technological and sociological advances in the next twenty years will contribute to similarity on a broader scale in the career patterns of men and women generally in the military services. If so, it might be concluded then that what seems to us today to be fair and equal treatment is arbitrary and discriminatory. This is not to say that Public Law 90-130 has not given to women officers equality of opportunity to the maximum extent possible in today's setting.

63. H.R. Rep. No. 216, supra note 6, at 7.

64. Pub. Law 90-179, sec. 11, 81 Stat. 545 (1967).

SOLE SURVIVORS

(Continued from page 116) Thus, while each case must be determined on its own set of facts, it appears that the test to be applied would be whether the disabled brother is in fact, or functionally, 100% physically or mentally disabled "because of hazards incident to service."

Another interesting situation involving permanent disability as a basis for sole surviving son designation is where the father is 100% disabled because of service-connected injuries and he has two sons, one a service member and one a civilian. The latter-mentioned dies of natural causes. The service member would be

eligible for designation as a sole surviving son. Although his brother's death made him the only remaining son, but for his father's condition, he would be ineligible for designation.

REQUESTS FOR DESIGNATION AND WAIVER

In the Navy or Marine Corps, requests for the privilege of designation as a sole surviving son must originate with the service member, his parents (including a legal guardian) or his wife. In the event a request originates with a parent, legal guardian or wife and the service member qualifies as a sole surviving son, he will not be so designated until he has been afforded the opportunity to waive his rights as a sole surviving son and he has refused to do so. This requirement exists and the same rule applies even though the male service member is a minor under 18 years of age.

CONCLUSION

The policy of granting special consideration to sole surviving sons of families bereft of other members killed in action or in the line of duty is today well established. Exemption from induction into the military service is granted by statute to sole surviving sons. Those who waive their statutory right and volunteer for military service are entitled by regulation to request assignment to noncombat duty by virtue of their status, and those who become sole surviving sons after enlistment or induction into the Armed Forces are, in many instances, entitled to discharge. The policy with regard to sole surviving sons is clear, but application of the policy is often made difficult by the circumstances of death or disability of the father or sibling upen whose demise or disablement the designation "sole surviving son" is to be predicated.

Although certain considerations discussed in this article may provide guidance in the interpretation of the statutory as well as the regulatory provisions relating to the sole surviving son designation, as a practical matter each case must be decided pursuant to the applicable provisions of law or regulations on its own complex of facts. Accordingly, the opinions expressed above should not be regarded as determinative in any particular case, but rather merely illustrations of some of the considerations involved in the application of the statutory or regulatory criteria to cases.

21. BUPERSINST 1300.35C, supra note 7, indicates only that requests for sole surviving son designation may be made by the service member or his parents. On the other hand, MCO 1300,24A. supra note 7, authorizes requests for sole surviving son designation to be made by the service member, his parents, legal guardiar or wife.

A

SNAVAL VESSELS and weapons systems

have become more sophisticated and complex, so has the relationship between the Navy and the Congress. Because of this ever-expanding relationship, the Office of the Secretary of Defense and the three Military Departments have organizations specifically charged with responsibility for congressional liaison. Since the Constitution gives the Congress the power to provide and maintain a Navy, it is not necessary to point out that the Navy has a vested interest in maintaining good relations with the Congress.

The Navy has long recognized the need to put its best foot forward on Capitol Hill, and for many years the Judge Advocate General was charged with the responsibility of conducting

Lieutenant Commander Eoff is currently assigned to the Military Personnel Division, Office of the Judge Advocate General. He was formerly attached to the Office of Legislative Affairs from August 1965 to December 1967. He attended Mount Union College and Ohio State University, receiving his Bachelor of Laws Degree from the latter in 1959. He is admitted to practice before the Supreme Court of the State of Ohio.

congressional liaison. In 1956, the Secretary of Defense directed the Military Departments to establish organizations to handle congressional affairs. At that time, the Secretary of the Navy ordered established a separate command to deal with congressional liaison for the Department of the Navy. Thus, the Office of Legislative Liaison was created. The present name of Office of Legislative Affairs was adopted in 1959.

The Office of Legislative Affairs is a Department of the Navy staff office headed by the Chief of Legislative Affairs, a staff assistant to the Secretary of the Navy. The office is organized into seven basic components consisting of a staff group and six functional divisions. The staff group is charged with the overall administration and operating efficiency of the office. The separate divisions are assigned specific operating functions necessary to accomplish the mission of the office.

The mission of the Office of Legislative Affairs is twofold:

a. To plan, develop and coordinate relationships between representatives of the Depart