(b) List the names and addresses of all prior employers for at least three years preceding the date of application;

(c) Submit on a prescribed form a set of fingerprints to be used for positive identification purposes;

(d) List all prior addresses for the preceding three years, in order that certified statements from chief law enforcement officers of towns, cities, or counties in which the applicant has resided may be received attesting to his general reputation, so far as police and court records are concerned;

(e) Provide notarized or witnessed statements from not less than 5 persons, other than relatives, attesting that they have personally known him for at least the three years preceding the date of application as a person of good reputation and exemplary conduct, and the extent of personal contact they have had with him."

In addition to the material required above, matters to be considered in determining whether a certificate is to be issued may include: certified statements received from the chief law enforcement officers in the applicant's locale as to his conduct for the previous three years; F.B.I. reports obtained through fingerprint examination; independent investigation by the Secretary of Labor; and the nature of the previous discharge and the reasons for it.18 With respect to this latter consideration, it has been suggested that:

A certificate might be more easily granted when the serviceman was young and immature at the time of the default, the offense being slight in nature. On the other hand, if the offense was a serious default such as disloyalty the certificate would not readily be granted, if at all. The serviceman has to prove that he has been rehabilitated in any case; and what he has been rehabilitated from is obviously an element in what rehabilitation has been accomplished.1

ISSUANCE

The facility with which a certificate can be obtained may well determine the extent of its utility. The value of the certificates will depend upon how carefully they are issued, and, at least judging by the requirements of the application, there is every reason to believe that they will not be issued lightly. If the certificate is issued, a copy will be sent to the Secretary of Defense for placement in the holder's military personnel record,20 but not as a substitute for the serviceman's discharge.

17. Ibid.

18. Ibid.

19. H.R. Rep. No. 1826, supra note 9, at 2.

20. 81 Stat. 221 (1967), 29 U.S.C.A. 602 (Supp. 1967).

EMPLOYMENT ASSISTANCE

Perhaps more important, however, is the fact that the holder has tangible evidence of his rehabilitation for presentation to a prospective employer. It is often the case that prospective employers, when presented with a less than honorable discharge, will not have the time or interest to determine the reasons for the discharge or consider what ameliorating factors might govern their decision. To the extent the certificate prompts such employer to re-examine an employment application, which might otherwise have been pre-emptorily rejected, one purpose of the certificate will have been well served. In order to foster employment opportunities, the act provides that the national system of public employment offices (U. S. Employment Service) will accord the holder of a certificate "special counseling and job development assistance.” 21 Such counseling and assistance is not, however, intended to confer any employment benefitspriority and preference-in the same manner and to the same extent as accorded an honorably discharged veteran, or to provide entitlement to veterans' employment assistance under 38 U.S.C. 2001.22

21. 81 Stat. 221 (1967), 29 U.S.C.A. 605 (Supp. 1967). "The Secretary of Labor shall require that the national system of public employment offices established under the Act of June 6, 1933, chapter 49, as amended, accord... special counseling and job development assistance [to certificate holders].” Ibid. The Act of 6 June 1933 (48 Stat. 113), popularly known as the Wagner-Peyser Federal Employment Service Act, is classified to chapter 4B of title 29, U.S. Code.

22. H.R. Rep. No. 1826, supra note 9, at 1.

23. Regulations for administration of the law were published in May 1967 (32 F.R. 7206).

W

INTRODUCTION

HEN A MEMBER of the naval service is absent from duty because of desertion, unauthorized absence, confinement, disability stemming from intemperate use of drugs or liquor, or disease or injury resulting from his own misconduct, many of his rights and benefits may be affected. It is the purpose of this article to examine the development of three of the possible results of such absences from duty to gain a better understanding of the present rules.1 The areas to be discussed are loss of pay, loss of time for purposes of completion of enlistments,

*Lieutenant Cavaneau formerly served in the Investigations Division, Office of the Judge Advocate General, and is currently serving in the Civil Law Division. He is a graduate of the University of Arkansas, having received the A.B. Degree in 1963 and the LL.B. Degree in 1966. He is a member of the Arkansas Bar and has been admitted to practice before the U.S. Court of Military Appeals.

1. The regulations governing the procedure to be followed in determining whether diseases or injuries are due to misconduct or intemperance are contained in the JAG Manual. For additional guidance concerning the conduct of JAG Manual investigations see Guthrie, Line of Duty-Misconduct Investigations, 21 JAG J. 7 (July-Aug. 1966). For a comprehensive discussion of all the results which may flow from an adverse determination see Powers, The Effects of an Adverse Conduct-Line of Duty Determination, 19 JAG J. 3 (Sept.-Oct. 1964). The present article assumes that findings of misconduct adverse to the member have already been made.

and loss of creditable time for computations of longevity pay and retirement eligibility and pay.

The development of rules regarding absences from duty due to desertion, unauthorized absence and confinement will be discussed since their development is inextricably bound with that of the effects of absence due to injury or disease. However, the emphasis will be placed upon providing an understanding of why the latter types of absences have the effects they do today.

LOSS OF PAY PROVISIONS

Any officer or enlisted member of the naval service who is absent from duty for more than one day because of a disease directly caused by and immediately following his intemperate use of alcoholic liquor or habit-forming drugs is, because of an express statutory provision," not entitled to pay for the period of that absence. The history of this statute reveals what it was intended to accomplish.

The year 1914 saw the first permanent statute dealing with loss of pay for such absences.3 Under that enactment, pay was forfeited during absences on account of disease resulting from the intemperate use of drugs or alcoholic liquors

2. 37 U.S.C. 802.

3. Army Appropriations Act of 1914, ch. 72, 38 Stat. 351 (1914).

or other misconduct of a member of the Army. Discussions of the act by legislators reveal that it was not intended as a punishment provision, but was, rather, designed as a deterrent rule." It was hoped that the possibility of loss of pay would bring about a higher moral standard of behavior. Legislative discussion further showed that the language "or other misconduct" was included to bring absences due to venereal diseases within the statute. Thus, the obvious purpose of the section was the prevention of excessive drinking, use of drugs, and incurring of venereal diseases, thereby improving the health and morals of members of the Army. Additionally, of course, the statute saved money in that under it no pay was given for services not rendered. The 1914 provision applied only to the Army, but in 1916 the Navy Appropriations Act included substantially the same provision since the Army provision had been ". . . very beneficial . . . to the health and morals of the Army

6

Two years later, the Navy statute was amended to include loss of pay during absences due to injury. Under this modification, an officer or enlisted man absent on account of injury, as well as disease, resulting from intemperate use of drugs or alcoholic liquor, or from other misconduct, would lose pay. The basis for this modification was apparently the same as that for the basic statute-to deter behavior resulting in inability to perform duty.

In 1926 a statute covering both the Navy and Army was passed which expressly repealed the 1914, 1916 and 1917 loss of pay provisions and which provided that no person absent for more than one day on account of the effects of a disease, as distinguished from an injury, directly attributable to and immediately following his own intemperate use of alcoholic liquor or habit-forming drugs, would be entitled to pay." The act went on to provide that no person absent as the direct result of venereal disease would be entitled to pay, provided the absence was within a year's time of the catching of the disease. The addition of this provision was considered to make unnecessary the phrase "or other misconduct," which was dropped.

4. H.R. Rep. No. 1058, 69th Cong., 2d Sess. (1926); Hearings on S. 2828 before the Subcommittee of the House Committee on Military Affairs, 69th Cong., 2d Sess. (1926). These materials, in considering later provisions, discuss the purpose of the 1914 act. 5. Ibid.

6. Naval Appropriations Act of 1916, ch. 417, 39 Stat. 580 (1916). 7. Hearings on H.R. 15947 before the House Committee on Naval Affairs, 64th Cong., 1st Sess. 3895 (1916) (Letter from Joseph Daniels, Secretary of the Navy, to the Committee).

8. Naval Appropriations Act of 1918, ch. 114, 40 Stat. 717 (1918). 9. Act 17 May 1926, ch. 302, 44 Stat. 557 (1926).

This 1926 act had as a primary purpose the adoption of more specific provisions regarding the venereal disease aspect. As mentioned above, the language of the earlier statutes-"or other misconduct"-was interpreted to require loss of pay for absences due to venereal disease incurred as the result of misconduct. This application was thought to have significantly contributed to the drop in reported cases of venereal disease, and therefore the loss of pay provision was considered desirable. However, the earlier provisions were applied to cases where the disease had been contracted a great length of time before the onset of symptoms and the resultant absence.10 Congress felt that, since the statute was intended as a deterrent rather than a punitive measure, this application was unfair because it punished members for indiscretions committed years earlier." Thus the addition of a specific section restricting the operation of the statute to a one-year period.

The committee hearings and reports accompanying the 1926 statute are occupied with the venereal disease aspect and do not specifically discuss why the language of the Navy statute providing for loss of pay in cases of injury due to drugs or alcohol was not carried forward.12 This deletion must have been considered, however, since the section was explicit in excluding injury absences from the operation of the act. The language is ". . . disease, as opposed to injury. . . ." Whatever the reason, since 1926 absences which are the result of injury due to intemperate use of alcohol or drugs or other misconduct have not resulted in a loss of pay.

As experience was gained, it became increasingly apparent that the venereal disease provision was not accomplishing the hoped-for results, and in 1944 the provision was repealed." Doctors discovered that the prospect of losing pay was deterring members from reporting the disease, but that it was having no measurable deterrent effect upon the misbehavior which resulted in its contraction. This was seriously detrimental to the health of members since effective treatment and quarantine were rendered impossible. The problem was especially acute in connection with aviation personnel who hid the disease and attempted self-treatment with drugs that produced detrimental effects upon their flying habits and abilities."4

10. S. Rep. No. 112, 69th Cong., 2d Sess. (1926); H.R. Rep. No. 1058, 69th Cong., 2d Sess. (1926).

11. Ibid.

12. See citations supra notes 4 and 10.

13. Act 27 Sept. 1944, ch. 426, 58 Stat. 752 (1944).

14. S. Rep. No. 380, 78th Cong., 2d Sess. 1274 (1943).

With the 1944 change the statute assumed its present form.15 It can be seen that today's provisions are substantially identical to the original enactment of 1914 with the exception that only disease due to overindulgence in liquor or drugs results in loss of pay. Disease due to "other misconduct" does not.

The statute remains important today and has taken on even added significance in light of the rapid increase in the illicit use of drugs. Although the extent of the section's hoped-for deterrent effect is not really known, it does result in giving the service authority to refuse pay for absences due to this type of misconduct.

LOSS OF TIME FROM ENLISTMENTS The rule making enlisted members of the Army liable to make up time lost because of desertion, unauthorized absence, confinement, or inability to perform duty due to intemperate use of drugs or alcohol or due to disease or injury resulting from misconduct, first appeared, along with the loss of pay provisions discussed above, in the Army Appropriations Act of 1914.16 After dealing with loss of pay, that act provided:

...

an enlistment shall not be regarded as complete until the soldier shall have made good any time in excess of one day lost by unauthorized absences, or on account of disease resulting from his own intemperate use of drugs or alcoholic liquors or other misconduct, or while in confinement awaiting trial or disposition of his case if the trial results in conviction, or while in confinement under sentence. Since the section required making up of time only for absences resulting from one type or another of volitional conduct, it may be surmised that it, like the loss of pay section, was passed because of its supposed deterrent effects, although the legislative history is silent on this point. Later, as will be seen, additional bases for the statute came into being.

17

When Congress made the loss of pay provisions applicable to the Navy in 1916, a proviso requiring the making up of time lost on account of sickness resulting from intemperate use of alcohol or drugs or from other misconduct was included. However, no provision was made requiring the making up of time lost through unauthorized absence or confinement. When Congress, in 1918, included absences due to injury in the loss of pay provisions applicable to the Navy, it also included these absences in the lost time proviso. Thus, beginning in that year, time lost due to injury, sickness or disease

15. 37 U.S.C. 802.

16. Army Appropriations Act of 1914, supra note 3. 17. Naval Appropriations Act of 1916, supra note 6.

resulting from intemperate use of alcohol or drugs or from other misconduct 18 had to be made good. This is substantially the rule in effect today respecting misconduct. 19

Congress' failure to apply to the Navy the Army provisions involving unauthorized absence and confinement, strangely enough, proved detrimental to the Navy enlisted man in a substantial number of cases. In order to be entitled to maximum retirement benefits, the member needed to have completed each of his four-year enlistments. If time was lost, the man was deemed not to have completed the enlistment on its expiration date, and under the then existing law the Navy had no authority to extend the enlistment so that the man could serve the full contractual period. Many cases arose where a man had been absent without authority or confined but was thought worthy of retention. However, the man could not complete his enlistment and, therefore, lost important benefits.20 This led to the passage, in 1928, of a bill permitting a member who had lost time in excess of one day because of unauthorized absence, pretrial confinement (if the trial resulted in conviction), or confinement under sentence to make up that time and complete his enlistment.21 That this provision was designed solely for the relief of the member involved is made manifest by the fact that its application was optional. The member was not required to make up the lost time unless he wished to do so.

The Army, in contrast to the Navy, retained the rule that enlisted men were obligated to make up time lost due to unauthorized absence or confinement, which was inaugurated by passage of the Articles of War of 1920.22

This, then, was the background for the present statutory rule. Navy enlisted men had to make up time lost due to injury or disease resulting from drugs, alcohol or other misconduct, and could, if they wished, complete enlistments rendered incomplete because of unauthorized absence or confinement. Army enlisted personnel, on the other hand, had to make up time lost in all these categories.

This difference in treatment was a factor in

18. Venereal disease is not disease due to "other misconduct" in this regard unless the member does not comply with existing reporting and treatment requirements. JAG Manual, sec. 0809 (b). 19. 10 U.S.C. 972.

20. For a discussion of the problem see H.R. Rep. No. 1135, 70th Cong., 1st Sess. (1928); S. Rep. No. 1103, 70th Cong., 1st Sess. (1928).

21. Act 21 May 1928, ch. 650, 45 Stat. 620 (1928).

22. Act 4 June 1920, ch. 227, 41 Stat. 809 (1920).