from which the warrant was issued is received, the accused serviceman should be presented for service of the warrant and the taking into custody by the civil official presenting the warrant, unless delivery is refused on one of the grounds provided above. In cases where disciplinary action is pending or punishment has not been completed, delivery may be refused. In such event, a report of the circumstances should be made in accordance with section 1307d, JAG Manual. If, however, the commanding officer deems that in the interest of justice the man should be delivered, a report of the circumstances and a recommendation to that effect should be made to the Judge Advocate General, who may authorize delivery in such cases.

Prior to delivery of the serviceman, however, the arresting officer, if authorized, or other appropriate officer of the civil jurisdiction, must be required to execute and deliver an agreement to return the serviceman to naval jurisdiction as required in section 1303, JAG Manual. It should be noted that this agreement is not required in the case of delivery to Federal authorities. In all cases, the command concerned should retain a copy of the warrant.

A warrant for arrest issued from a court in a jurisdiction other than the one in which the command to which the serviceman is attached is located, (i.e., another state or territory), is not a valid warrant." Further, a warrant based on an alleged offense committed in another jurisdiction is not a proper warrant, even though it was issued by a court with jurisdiction over the geographical area of the command. Neither of such warrants, based on offenses allegedly committed in another jurisdiction, should be honored, except on waiver of extradition as discussed below. Authorities attempting to serve such warrants should be advised of the provisions of section 1301, JAG Manual, relating to extradition of naval personnel.

Such extra-jurisdictional warrants, called fugitive warrants, should be made known to the serviceman concerned, and he should be asked whether he desires to waive extradition procedures. On occasion, it may be in his interest to do so. If he does not desire to waive extradition, the civil official attempting service should be furnished appropriate information as to Navy procedures in extradition cases. However, if the serviceman expresses a desire to waive extradition, he must be referred to a military

3. JAG Manual, sec. 1302b.

4. JAG Manual, sec. 1304c.

5. 5 Am. Jur. 2d, Arrest, secs. 18 & 20.

6. JAG Manual, sec. 1302a.

7. JAG Manual, sec. 1301b.

attorney, or civilian attorney of his choice (at his own expense), for consultation and advice, prior to executing the waiver, the form for which may be found in section 1301b. (4), JAG Manual. It should be noted that the name and address of the consulting attorney must be shown on the waiver.

In addition to the waiver, it is necessary for the delivering command to obtain the agreement of an appropriate official of the jurisdiction in which the serviceman is to face charges to return him to naval jurisdiction at the termination of the action against him or upon satisfaction of any sentence awarded by the court. A copy of the warrant for arrest should be obtained as a record of the basis for delivery.

The aforementioned documents should then be forwarded to the Judge Advocate General, along with a specific recommendation as to whether or not a waiver of extradition and delivery of the accused should be approved. In such cases, specific authority for delivery must be obtained from the Judge Advocate General.

In the event that a speedy delivery to civil authorities in waiver of extradition cases is desirable, a recommendation may be made to the Judge Advocate General by naval message, reciting compliance with the foregoing requirements pertaining to obtaining documents. In such cases, the responsibility for insuring accuracy and completeness of all requisite documents is that of the commanding officer. The documents must still be forwarded to the Judge Advocate General for retention.

In cases where extradition is considered necessary, the Governor of the requesting state will provide the necessary documents directly to the Judge Advocate General in accordance with section 1301b, JAG Manual. The Judge Advocate General will then communicate with the command concerned regarding authority to deliver the serviceman requested.

Although the Department of the Navy is not bound by the Uniform Criminal Extradition Act, its provisions offer sound guidance in extradition matters. Under the provisions of that act, to which most states and territories subscribe, the Governor of the asylum state may cause an investigation to be conducted regarding the circumstances of the case and whether the accused ought to be surrendered. Further, a fugitive from the justice of the requesting state is required to appear before a properly constituted court of the asylum state to be informed of the demand for his surrender, the crime with which 8. JAG Manual, sec. 1301b(3).

9. Uniform Criminal Extradition Act, sec. 4.

he is charged, and of his right to counsel. If the accused, or his counsel, indicates a desire to test the legality of the arrest, he must be afforded a reasonable time within which to apply for a writ of habeas corpus.10

There is no published requirement for such inquiry in current Navy extradition procedures. Further, since an accused serviceman in most cases is not held in custody pending extradition proceedings, habeas corpus would not be an appropriate action to resist extradition. However, to protect the interests of an accused serviceman, and of the naval service, a similar inquiry is considered essential. Accordingly, an exhaustive review of the extradition request is conducted in the Office of the Judge Advocate General. Ordinarily, coincident with receipt of the request for extradition, the Judge Advocate General will inform the command to which the accused is attached of the pending action and request a report of surrounding circumstances.

Unless a more comprehensive investigation is requested, the report should be in letter form, and should not refer to the guilt or innocence of the accused, nor should inquiry toward that end be made, except to identify the person concerned as the person charged with the crime. Similarly, the inquiry should not be directed toward justification for refusal of delivery. The inquiry should be concerned with circumstances which might jeopardize the rights of the accused and exigencies of the service which might render extradition unfeasible. An example of violation of the rights of the accused might be the assertion of criminal charges and an effort to extradite the accused, the principal purpose for which is to obtain jurisdiction over him for redress by means of a private action.

In such inquiry, the accused may be interviewed freely to determine related circumstances, with caution being exercised to avoid discussion of details that might be evidentiary with regard to the alleged offense. It is neither necessary nor desirable to obtain a written statement from the accused serviceman. His position may be summarized sufficiently for the purpose in the commanding officer's report. The commanding officer may make a recommendation in the premises if he desires.

The Army 11 and Air Force 12 permit delivery of personnel to local civil authorities for further delivery in response to a request for extradition directed to the Governor of the asylum state.

10. Uniform Criminal Extradition Act, sec. 10.

11. AR 633-1, par. 9b.

12. AFR 111-11.

The Army and Air Force have not established extradition procedures which would permit direct delivery to an agent of the requesting state. Actually, the Navy procedure is somewhat more expeditious and less cumbersome than extradition under the Uniform Criminal Extradition Act, and it provides benefits to both the asylum state and the requesting state in savings of time and money.

After a serviceman is taken into civilian custody, either through delivery by the commanding officer or by apprehension outside military confines, he will, in many cases, be released on bail or on his own recognizance, with a directive from the civilian court to reappear at a later date for trial or sentencing. In such cases, it is important that his command be notified of the circumstances immediately. In a bail or recognizance situation, the jurisdiction of the civilian court will have attached, and the man technically remains under the control of the court.13 He is released on bail or recognizance to avoid unnecessary interference with his normal duties only after reasonable assurance that he will be available at the required session of court. Accordingly, the man should be afforded appropriate leave or liberty to attend the court session.14 This rule should be followed even though the court sits in another state or territory.

In this connection, if the limits of his bail or recognizance permit, it is the duty of the serviceman to return to his parent command immediately, or upon the expiration of his leave or liberty. If the limits of his release conditions preclude his return to the parent command, the man should immediately report the circumstances to his command and provide his command with copies of the charges against him and his bail or recognizance bond. Upon receipt of such information, the command to which the man is attached should report the matter to the Bureau of Naval Personnel.

After having returned to his command on bail or recognizance, the cost of transportation to return for trial or sentencing by the civilian court must be borne by the serviceman himself. This, however, does not preclude military air transportation on a space-available basis, if the man is to attend the hearing in a leave status.

Upon delivery, refusal of delivery and completion of the civil action in delivery cases, reports of the circumstances must be made. Requirements for these reports are set forth in section 1307, JAG Manual.

13. 8 Am. Jur. 2d, Bail and Recognizance, sec. 4. 14. JAG Manual, sec. 1309.

ABSENCE FROM DUTY

31

(Continued from page 84) It is interesting to note that the rule regarding absence from duty by officers is otherwise. In an early Comptroller General opinion, time absent due to the officer's own misconduct was held creditable for the longevity pay computation. The Comptroller said that although an officer had lost pay during his absence on account of misconduct,32 the application of the law did not result in any suspension from service, and the uniform rule was that service for longevity pay of officers includes all time between acceptance of appointment and date of separation unless particular statutes specifically provide otherwise. This rule was reaffirmed as recently as 1958 33 in a decision which offered no opinion as to whether the distinction drawn between officers and enlisted men was sound. The stated basis was that the rule had been in existence so long that to change it would, in effect, be legislating. In earlier cases the Comptroller General indicated that the rule regarding nondeductibility of time lost by officers from computations of longevity credits or retirement benefits was based at least in part upon the existence of the statutory requirement that enlisted men make up lost time whereas no such provision existed for officers. It is true that there is not, and has never been, a lost time "make up" pro

31. 3 Comp. Gen. 825 (1924).

32. Referring to the 1916 and 1918 loss of pay provisions discussed supra at 82.

33. 38 Comp. Gen. 352 (1958).

vision for Regular officers because they do not serve under an enlistment contract or for a stated term.34 Nevertheless, the rationale underlying exclusion of lost time from longevity and retirement computations, i.e., that such benefits should not be based upon unserved time, would seem to be equally applicable regardless of whether the individual concerned is an officer or enlisted man.

CONCLUSION

Three of the most important effects of a finding that an absence was due to some sort of misconduct are loss of pay, loss of enlistment time and loss of creditable time for purposes of longevity pay and retirement. The provisions bringing about these results were intended to accomplish several things: the recoupment of losses to the service due to lost time; the improvement of health, safety and morals through deterrence; and equitable treatment of personnel in many cases by providing them with an opportunity to complete their enlistment, thereby gaining greater benefits or earning an honorable discharge. The rules dealing with the effects of lost time have developed in a somewhat random fashion, by statute, decisions and regulation, with no overall direction. It cannot be said with certainty whether the rules in existence bring about the desired results or whether the results that are obtained justify the administrative cost and effort expended.

34. This point was made in Hearing before the Subcommittee of the Senate Committee on Military Affairs, supra note 24, at 7907, in a discussion of why the lost time statute did not apply to commissioned or warrant officers.

COMP. GEN.

(Continued from page 74)

FAMILY PROTECTION PLAN—Annuity for Disabled Child; Certificate of Incapacity by Chiropractor

• By timely and appropriate action a service member may elect to receive a reduced amount of retired or retainer pay in order to provide an annuity for his surviving spouse and/or children, pursuant to the Retired Serviceman's Family Protection Plan (10 U.S.C. 1431-1446). Children to be eligible to receive an annuity must be (a) unmarried and (b) under 18 years of age or incapable of supporting themselves because of a mental defect or physical incapacity existing before their eighteenth birthday. With respect to proof of eligibility under the latter provision (mental defect or physical incapacity), BuPers Instruction 1750.ID provides:

"In the case of a child over 18 years of age and un

married who is incapable of self-support because of being mentally defective or physically incapacitated if that condition existed prior to reaching age 18, a certificate of the attending physician or appropriate official of a hospital or institution certifying to the physical incapacity or mental incompetence will be required."

Recently the question was presented to the Comptroller General of the United States whether in the case of a child over 18 years of age statements furnished by two chiropractors concerning the nature and extent of the child's disability (cerebral palsy) would satisfy the requirement of the regulation ("certificate of the attending physician”).

The Comptroller General replied in the affirmative and observed that the disability seemed "to be one within the scope of chiropractic attention and a chiropractor should be qualified to express an expert opinion as to the extent and permanency of its disabling effects." (Comp. Gen. Decision B-163102 of January 18, 1968.)

U.S. GOVERNMENT PRINTING OFFICE: 1968

The JAG JOURNAL is published by the Office of the Judge Advocate General of the Navy as an informal forum for legal matters of current interest to the naval service. The objective of the JAG JOURNAL is to acquaint naval personnel with matters related to the law and to bring to notice recent developments in this field.

The JAG JOURNAL publishes material which it considers will assist in achieving this objective, but views expressed in the various articles must be considered as the views of the individual authors, not necessarily bearing the endorsement or approval of the Department of the Navy, or the Judge Advocate General, or any other Agency or Department of Government.

Invitations to submit articles are extended to all persons, whether lawyers or laymen. Articles submitted should adopt an objective rather than an argumentative approach and should be written in a manner readily understandable by the lay reader. The JOURNAL will return unpublished manuscripts if so requested, but responsibility for safe return cannot be assumed. No

compensation can be paid for articles accepted and published.

Issuance of this periodical approved in accordance with Department of the Navy Publications and Printing Regulations, NAVEXOS P-35.

REAR ADMIRAL JOSEPH B. McDEVITT, JAGC, USN Judge Advocate General of the Navy

REAR ADMIRAL DONALD D. CHAPMAN, JAGC, USN Deputy Judge Advocate General of the Navy

LIEUTENANT COMMANDER R. L. SLATER, JAGC, USN Editor

For sale by the Superintendent of Documents U.S. Government Printing Office, Washington, D.C. 20402 Price 25 cents (single copy). Subscription price $1.25 per year; 50 cents additional for foreign mailing.

BASIC ALLOWANCE FOR QUARTERS-Crewmembers of two-crew, nuclear-powered submarines; entitlement of members without dependents to a quarters allowance when temporarily serving ashore for more than 15 days at a station where available quarters have been declared inadequate.

OPNAVINST 11012.2A, dated September 28, 1967, set forth a new policy regarding the occupancy criteria for bachelor housing, in that nuclear-powered submarine crewmembers without dependents may be credited with basic allowance for quarters while temporarily serving ashore for more than 15 days during periods of training and rehabilitation when available quarters have been declared inadequate. The Under Secretary of the Navy requested that the Comptroller General render an opinion, in effect, as to whether or not this instruction conflicted with statutory law or prior Comptroller General decisions.

It was pointed out by the Under Secretary that the two-crew procedures of these submarines presented a unique quarters allowance problem since offboard crews cannot avail themselves of assigned quarters aboard their ships, and no per diem is payable to crewmembers while temporarily ashore. Moreover, in 44 Comp. Gen. 105 (1964), it was found that not even the quarters portion of the per diem allowance was payable to the

members here concerned while on temporary duty at a station when any quarters (adequate or inadequate) were available.

In response to the Under Secretary, the Comptroller General noted that under present regulations quarters which are inadequate for assignment to permanent duty members are likewise inadequate quarters for temporary duty members. The Comptroller General held, therefore, that quarters which have been declared inadequate are no longer considered quarters "available" for members of the offboard crew of two-crew nuclearpowered submarines. Accordingly, such crewmembers without dependents are entitled to a basic allowance for quarters. It was held further that this decision did not change the conclusion reached in 46 Comp. Gen. 161 (1966), which ruled that officers without dependents in pay grades above 0-3, who are members of the offboard crew of these submarines temporarily ashore for training and rehabilitation, have no right to elect not to occupy government quarters ashore which are adequate and to receive instead a basic allowance for quarters. (Comp. Gen. Decision B-154522 of April 4, 1968.)

(Continued on page 108)