ACTING APPOINTMENTS.

1. Honors due an officer-Navy Regulations, 1905, R-46, respecting honors due an officer while serving under an acting appointment was held to apply to an Acting Commandant and Governor of an insular possession of the United States. File 4551. See also GUAM, 1.

ACTING ASSISTANT DENTAL SURGEONS. See also DENTAL SURGEONS, 2. 1. Appointment of-An acting assistant dental surgeon for temporary service, who had originally requested permission to be examined for an appointment as acting assistant dental surgeon for temporary service and who upon examination had failed physically (general obesity), which disability had been waived because "the appointment is for temporary service," requested that the temporary appointment be made permanent. In view of the entire dissimilarity in the status of an "acting assistant dental surgeon for temporary service" as compared with one of permanent tenure, it was held that the present "temporary appointment" of this officer could not be made "permanent" from the date of entry in the service, but that he may be legally authorized to undergo examination for an original appointment in the same manner as if he did not hold his present appointment for temporary service. File 13707-46, J. A. G., Mar. 19, 1915; C. M. O. 12, 1915, 8. See also Act of Aug. 29,

1916.

ACTING ASSISTANT SURGEONS.

1. Appointment of-The law authorizing the appointment of acting assistant surgeons reads in part as follows:

"The President is hereby authorized to appoint for temporary service 25 acting assistant surgeons, who shall have the relative rank and compensation of assistant surgeons." (30 Stat. 380.) File 28407-13, J. A. G., Mar. 24, 1915; C. M. O. 12, 1915, 10. See also MEDICAL RESERVE CORPS OF THE NAVY, 1.

2. Same-A candidate who fails by a small margin in his examination for appointment as acting assistant surgeon may be given an appointment as such without further examination, should the department so desire, there being nothing in the Navy Regulations concerning such appointment or examination, and any provisions in circulars issued by the department may be waived by the department at any time. File 15229-6, J. A. G., May 15, 1911.

3. Death gratuity-The term "officer or enlisted man" in act of May 13, 1908 (35 Stat. 128) includes all persons in the service and applies to acting assistant surgeons. File 26543-10, Sec. Navy, Sept. 11, 1908.

4. Marine examining boards-Acting assistant surgeons are not "medical officers of the Navy" within the provisions of section 1621, R. S., but are officers in the temporary service of the Navy. (See Taylor v. U. S., 38 Ct. Cls. 155.) Therefore such officers are not eligible for duty as members of a marine examining board. File 947-M.

5. Medical Reserve Corps-Appointment of Medical Reserve Corps officers as acting assistant surgeons. See MEDICAL RESERVE CORPS OF THE NAVY, 1.

6. Retirement. See RETIREMENTS OF OFFICERS, 2.

7. Status of, in 1865-From the language of the act of July 24, 1861 (12 Stat. 273), acting assistant surgeons served under temporary acting appointments made by the Secretary of the Navy for a limited time, either "until the return of the vessels in which they are respectively employed, or until the suppression of the present insurrection." They received the same pay as assistant surgeons; they were entitled to wear the uniform of the grade to which appointed; and to annex the title of their acting rank to their official signatures. While these officers, therefore, were not commissioned, they nevertheless occupied the status of officers of the volunteer Navy; they were not enlisted men. File 26510-579, J. A. G., Oct. 25, 1911.

ACTING BOATSWAINS.

1. General court-martial-Tried by. C. M. O. 102, 1905; 105, 1905.

2. Sentence of dismissal-Confirmed by President. C. M. O. 102, 1905.

ACTING GOVERNOR.

1. Guam. See ACTING APPOINTMENTS, 1; COMMANDANTS OF NAVY YARDS AND NAVAL STATIONS, 1, 2; GUAM, 1.

ACTING GUNNER.

1. General court-martial-Tried by. C. M. O. 120, 1907; 3, 1911, 1.

ACTING JUDGE ADVOCATE. See JUDGE ADVOCATE GENERAL, 1.

ACTING JUDGE ADVOCATE GENERAL. See JUDGE ADVOCATE GENERAL, 2, 3, 18 ACTING MACHINISTS.

1. Status of Pending the issuance of a warrant the status of an acting machinist unquestionably continues to be that of an enlisted man, although at the same time acting as a warrant officer, and he is therefore entitled to draw interest on his deposits or to make additional deposits in accordance with the act of February 9, 1884725 Stat. 657). File 26254-2020, Sec. Navy, June 6, 1916. See also DEPOSITS, 1, 4.

ACTING MASTER'S MATE.

1. Dismissal of. File 26367-2, J. A. G., July 8, 1909.

ACTING PAY CLERKS.

1. Appointment of-Under provisions of act of March 3, 1915 (38 Stat. 942). C. M. O. 12, 1915, 13; 29, 1915, 8; 31, 1915, 5. See also PAY CLERKS and CHIEF PAY CLERKS, 1-3, 7.

ACTING SECRETARY OF THE NAVY. See PRECEDENCE, 29; SECRETARY OF THE NAVY, 3.

ACTING WARRANT OFFICERS.

1. Appointment of. See PAY CLERKS and CHIEF PAY CLERKS, 1-3, 7.

2. Deposits. See ACTING MACHINISTS, 1; DEPOSITS, 1, 4.

3. General courts-martial. See ACTING BOATSWAINS; ACTING GUNNERS.

4. Reenlistment-Inasmuch as R. S. 1409 clearly contemplates the concurrence of the status, duties, and obligations of an enlisted man, and that of a warrant officer, and in view of the practice of the Bureau of Navigation in the matter, no objection is perceived to the reenlistment of an acting warrant officer whose term of four years has expired. (This with view to preserving for the man his continuous service should he fail to be warranted.) File 7267-03, J. A. G.

5. Status of. See ACTING MACHINISTS, 1.

ACTION.

1. Convening authority. See CONVENING AUTHORITY.

2. President. See PRESIDENT OF THE UNITED STATES.

3. Record of proceedings-Action on-Right of accused to. See CHARGES AND SPECIFICATIONS, 4, 5, 18; RECORD OF PROCEEDINGS, 32.

4. Reviewing authority. See REVIEWING AUTHORITY.

5. Revising authority. See PRESIDENT OF THE UNITED STATES; REVIEWING AUTHORITY; REVISING AUTHORITY; SECRETARY OF THE NAVY; SENIOR OFFICER PRESENT.

6. Secretary of the Navy. See SECRETARY OF THE NAVY.

7. Senior officer present. See SENIOR OFFICER PRESENT.

8. Withheld-Desertion case-What constitutes conviction. See PAY.

ACTIONS.

1. Intentions-The law judges a man's intentions by his actions. C. M. O. 29, 1914, 9. ACTS.

1. Desertion-Acts of accused during unauthorized absence may create a presumption of specific intent to desert. See DESERTION, 10, 62.

2. Intentions-The law judges a man's intentions by his acts. C. M. O. 29, 1914, 9. See also DESERTIONS, 72.

3. Natural consequences-It should be remembered that in all well-organized society every man of sound mind is and must be assumed to intend the natural and necessary consequences of his own deliberate acts. Without this imperative legal principle the order of civil society could not be preserved, and the sanction of military discipline and the efficiency of all military organizations would depend upon the personal theories and opinions, however crude, of the individuals who compose them. G.IO. 182, Apr. 2, 1873. See also C. M. O. 19, 1912, 7.

ADDITIONAL CHARGES AND SPECIFICATIONS.

1. Army-Difference between Army and Navy-In applying to naval courts-martial by analogy decisions in cases tried by courts-martial of the Army care must always be taken to note differences in the laws governing court-martial procedure in these branches of the service. With reference to naval courts-martial, it will be noted from A. G. N. 43 that the law plainly contemplates the trial of additional charges[at the same time, where such additional charges, as in this case, are preferred under conditions specified in the statute.

17649-21-2

The objections stated in Dudley's Military Law, etc. (par. 127, p. 66), and Win throp's Military Law and Precedents (Vol. I, Sec. VII, p. 225) do not apply to cases tried before naval courts-martial, as the oath used by naval courts-martial differs from that used by the Army courts-martial. The law (art. 43, A. G. N.) expressly provides that the accused shall be allowed a reasonable time to make his defense against additional charges.

The oath administered to members of general courts-martial in the Navy is broader in its terms than that used in the Army, the latter relating merely to "the matter now before you," while in the Navy the oath relates to "the case now depending," which includes all charges and specifications which may legally be preferred against the accused, whether at the time he is placed under arrest or subsequently at any time before his case is disposed of by the court. C. M. O. 10, 1913, 7-8. See also File 26251-8539:1, J. A. G., Jan. 21, 1914; 26262-1194, p. 6.

2. Oath-Where additional charges and specifications are preferred after arraignment no legal objection could exist to swearing members again as to the additional charges and specifications, and as a matter of precaution it might be advisable that such procedure be followed. File 26251-6822:9. 3. Preferred after arraignment-An accused was brought to trial by general courtmartial (file 26251-6822:9). by order of the Secretary of the Navy. While the trial was in progress information reached the department concerning additional misconduct by the accused. An additional charge predicated upon the offense was preferred against the accused and forwarded to the judge advocate of the court, the department's order expressly stating that the intelligence of such additional charge did not reach the department until after the accused was put under arrest. Upon presentment thereof by the judge advocate, the court decided that it was without jurisdiction in the premises and the judge advocate was directed to return the additional charge to the convening authority. The letter returning the additional charge cited as the court's authority for its action, Dudley's Military Law, etc. (par. 127, p. 66), and Winthrop's Military Law and Precedents (Vol. I, Sec. VII, p. 225).

The department held that the objections stated by the court do not apply to the present case tried before a naval court-martial. The law (art. 43, A. G. N.) expressly provides that the accused shall be allowed a reasonable time to make his defense against additional charges.

The oath administered to members of general courts-martial in the Navy is broader in its terms than that used in the Army, the latter relating merely to "the matter now before you," while in the Navy the oath relates to "the case now depending," which includes all charges and specifications which may legally be preferred against the accused, whether at the time he is placed under arrest or subsequently at any time before his case is disposed of by the court.

The additional charge preferred against this accused was expressly stated to be an "additional charge" (or a part of "the case now depending") and not a separate charge to be tried in an independent proceeding.

This officer was dismissed on the original charges and specifications without considering the additional ones. The department thereupon addressed a communica tion to the president of the court with the direction that the remarks be referred to the members and judge advocate of the court for their information. C. M. O. 10, 1913, 7-8. See also C. M. O 7, 1913.

4. Same-Original charges and specifications were preferred on December 1, 1913, accused was arraigned on January 5, 1914, and additional charges and specifications, intelligence of which did not reach the convening authority until January 6, 1914, were preferred on January 7, 1914. C. M. O. 27, 1914.

5. Same-An accused warrant officer was tried by general court-martial April 16, 1912, on charges preferred April 4, 1912, found guilty of "Absence from station and duty without leave" and 'Drunkenness on duty," and a sentence adjudged. The department on April 11, 1912, preferred two additional charges with one specification under each charge. The court tried the accused on the two additional charges and specifications in a separate trial, and sentenced the accused to dismissal. C. M. O. 17, 1912; G. C. M. Rec. No. 25187.

6. Same-Enlisted men-Additional charges sent to court before trial on original charges and specifications. G. C. M. Rec. No. 31329; 31400; 31402.

7. Same-Officer tried upon the charges of "Scandalous conduct tending to the destruction of good morals and naval discipline" and "Embezzlement," and upon an "additional charge," preferred after the commencement of his trial, of "Neglect of duty," G. O. 162, Mar. 25, 1871.

8. Preferred before arraignment-One additional charge with two specifications thereunder were preferred against the accused before arraignment. He was arraigned upon the original and the additional charges and specifications at the same time. (G. C. M. Rec. 6174.) C. M. O. 56, 1880, 3-5.

9. Same-In the case of an accused ensign additional charges and specifications were preferred against the accused prior to arraignment and received by him 10 minutes before he was brought to trial on the original charges and specifications. The accused stated that he was ready for trial on the additional charges and specifications. Defense desired to have the original charges and specifications disposed of before being arraigned on the additional ones. The accused was arraigned on the original charges and specifications, the record showing this entry: "The judge advocate: If the court please, as I understand it, the court permits the accused to defer pleading to the additional charges and specifications until some subsequent time? The court: They may have time for that." The trial then proceeded on the original charges and specifications. The accused later pleaded to the additional charges and specifications. Findings on all charges and specifications were arrived at by court at proper time. (G. C. M. Rec. 7771.) C. M. O. 23, 1895.

10. Same-In the case of an accused chaplain charges and specifications were preferred by the department and transmitted to the general court-martial before which the accused was to be tried, by letter dated July 24, 1907. Thereafter (July 29, 1907) nine additional charges and specifications were preferred against the accused and transmitted to the same court by separate letter. At the trial, August 5, 1907, the accused was arraigned at the same time upon both the original and additional charges and specifications, which were tried together. This procedure was in accordance with the precedents of the department and authorities on military law. G. C. M. Rec. No. 16323. See also File 26251-4794, J. A. G., June 6, 1911; C. M. O. 74, 1907.

ADDITIONAL NUMBERS.

1. Promotion of-The practice of making officers additional numbers in their grade is followed by Congress only where for good and sufficient reasons it is desired that such officers shall not delay the promotion of others who are their juniors. In other words, the provision that an officer shall be an additional number in his grade is not intended for his benefit, but is intended to facilitate the promotion of others below him on the list; and unless Congress uses language clearly indicating its intention that the officer so made an additional number is to be promoted at an earlier date than he would otherwise have been entitled to promotion, that is to say, on the same date as the officer next above him on the list, the department has held that he should be promoted only from the date on which his position would have entitled him to promotion had he not been made an additional number. The additional-number officer is not promoted either with the officer next below him or with the officer next above him, but is promoted precisely as he would be if he were not an additional number, only his promotion does not operate to delay the promotion of junior officers. It can make no difference to the additional-number officer how many junior officers may be promoted at the same time; his promotion is in no way delayed thereby. File 11130-26, Sec. Navy. Jan. 8, 1915; C. M. O. 6, 1915, 10. See also File 11130-23, Sec. Navy, Feb. 25, 1914; 11130-24, Feb. 25, 1914; 11130-25, Mar. 4, 1914; 11130-5, J. A. G., Nov. 24, 1909; 26254-655; Bu. Nav.; File 1511-40, Sec. Navy, Jan. 1, 14, 1911; BUREAU CHIEFS, 8. 2. Sentence of General court-martial-Additional numbers should be included in counting the numbers which an officer has been sentenced to be reduced by general courtmartial. File 4865-5, June 26, 1906.

ADDITIONAL PAY. See PAY, 7, 8.

ADDITIONAL PUNISHMENT.

1. Secretary of the Navy-Has the authority to remit but not to commute the sentence, and therefore not to increase the punishment. While the reviewing authority may remit any part of the sentence imposed he can not add to the sentence by imposing an additional forfeiture. C. M. O. 17, 1910, 8; File 25675-9, 10, 11, Sec. Navy, Oct. 28, 1915. See also COMMUTING SENTENCES; SECRETARY OF THE NAVY, 54, 56.

ADDRESS.

See

1. Desertion-Change of address of accused during unauthorized absence without notice to naval authorities may create an inference of specific intent to desert. DESERTION, 111.

2. Furlough-Duty of enlisted men on furlough to notify commanding officer of change of address. C. M. O. 33, 1914, 7.

3. Witness fees-On May 4, 1909, the following instructions were issued:

"It is directed that, in the preparation of claims for witness fees for the attendance of civilian witnesses before naval courts-martial, the post-office addresses of such claimants be entered upon the certificate prepared by the judge advocate of the court; and a copy of the subpoena need not be attached to the certificate." C. M. O. 21, 1909, 3. ADEQUATE SENTENCES.

1. Clememcy extended-By court in adjudging an inadequate sentence, department can not. See CLEMENCY, 54.

2. Commensurate A sentence should be adjudged in each case which is commensurate with the nature of the offense charged. C. M. O. 28, 1912, 3.

3. Congress "Congress, as shown by its legislation on the subject, has evidently not been willing to intrust the power of exercising clemency to courts-martial, but has preferred to repose such power in the Secretary of the Navy, who is charged with the administration of the entire Navy. Accordingly, when a naval court-martial undertakes to adjudge a lenient sentence in a case where it has found the accused guilty of a serious charge such court is attempting to usurp a function which Congress has expressly withheld from it and has delegated to higher authority." C. M. O. 28, 1913, 6. 4. Courts-martial-It is made by law the duty of courts-martial, in all cases of conviction, to adjudge a punishment adequate to the nature and degree of the offense committed. If mitigating circumstances have appeared during the trial, which could not be taken into consideration in determining the degree of guilt found by the verdict, the court may avail itself of such circumstances as adequate grounds for recommending the prisoner to clemency. (R-811.) 5. Same The law does not vest in courts-martial the pardoning power, nor the right to adjudge nominal punishments equivalent to a pardon. The power to remit or mitigate is expressly vested in the President of the United States or the officer authorized to convene the court. The exercise of this power by a court-martial is therefore illegal. (R-808.) C. M. O. 42, 1892. See also C. M. O. 22, 1884, 2; 30, 1885, 3; 35, 1892, 11; 51, 1893, 2; 9, 1897, 9; 89, 1897; 107, 1897; 132, 1897, 2; 12, 1900; 67, 1902,

6. Same The law enjoins upon courts-martial "in all cases of conviction to adjudge a punishment adequate to the character and nature of the offense committed." It leaves it discretionary with a court-martial "to recommend the person convicted to clemency; this clemency, however, is to be exercised not by the court, but by the revising power or the President of the United States, who are expressly clothed with the power to mitigate or remit punishment.

"In all these provisions the law is clear, precise, and free from ambiguity." It may be that the court, or members of it, deemed the law under which the accused was arraigned one of a harsh character; but even admitting that it be so, it is still law, and they were bound by a solemn obligation to administer it as it stands, and not to modify it so that it might accord with their own notions of justice. They had no more authority to do so than to repeal the law. G. O. 68, Dec. 6, 1865. 7. Same "Courts-martial are required by law (Art. 51, A. G. N.) to impose an adequate sentence, the members of the court as individuals being permitted to recommend the accused to the clemency, if, in their opinion, extenuating circumstances exist and warrant such recommendation." C. M. O. 4, 1913, 53. See also C. M. O. 67, 1902; 28, 1913, 5; 37, 1914.

8. Same "The sentence of the court in this instance is considered by the department to be so light as barely to comply with that provision of the law requiring courtsmartial to adjudge punishments adequate to the offense committed." C. M. O. 20, 1909, 1.

9. Same "The law makes it the duty of courts-martial in all cases of conviction to adjudge punishment adequate to the nature of the offense." C. M. O. 49, 1910, 12. 10. Same-In one case the department stated in part as follows: The sentence of the court "can hardly be regarded as a compliance with the statutory requirement that courts-martial in all cases of conviction adjudge an adequate sentence, and the department is forced to conclude that the court in adjudging such a lenient sentence has encroached upon the prerogatives of the Secretary of the Navy by exercising clemency, as this power is vested by law not in courts" but in the convening authority. C. M. O. 1, 1914, 8.