B-163537, JULY 10, 1968, 48 COMP. GEN. 10

B-163537, JULY 10, 1968, 48 COMP. GEN. 10

WITNESSES - MILITARY PERSONNEL - COURTS OF FOREIGN FORCES WHEN THE COMMANDING OFFICER OF A MILITARY INSTALLATION DESIRES TO HONOR A PROPERLY MADE REQUEST FOR THE APPEARANCE OF A MEMBER OF HIS COMMAND AS A WITNESS BEFORE AN AUTHORIZED SERVICE COURT OF A FRIENDLY FOREIGN FORCE, HE MAY UNDER THE AUTHORITY IN 22 U.S.C. 703 ISSUE ORDERS TO THE MEMBER DIRECTING HIS ATTENDANCE AS A WITNESS, AND CONSIDER THE MEMBER ON OFFICIAL BUSINESS IN THE NATURE OF DETACHED SERVICE WHILE TRAVELING AND WHILE IN ATTENDANCE AT THE PROCEEDINGS OF THE FOREIGN COURT. THE MEMBER WITNESS UNDER 28 U.S.C. 1821 WOULD BE ENTITLED TO THE FEES AND MILEAGE, INCLUDING SUBSISTENCE WHEN APPLICABLE, AUTHORIZED FOR WITNESSES ATTENDING UNITED STATES COURTS, PAYMENT TO BE MADE TO THE MEMBER FROM FUNDS SUPPLIED BY THE FOREIGN FORCE, IN ADVANCE IF AVAILABLE, OR AFTER COMPLETION OF THE SERVICE UPON AVAILABILITY OF THE FUNDS.

TO THE SECRETARY OF THE AIR FORCE, JULY 10, 1968:

FURTHER REFERENCE IS MADE TO LETTER OF JANUARY 30, 1968, WITH ENCLOSURES, FROM THE UNDER SECRETARY OF THE AIR FORCE, REQUESTING DECISION CONCERNING THE PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES FOR MEMBERS OF THE ARMED FORCES APPEARING AS WITNESSES BEFORE THE SERVICE COURTS OF FRIENDLY FOREIGN FORCES IN CERTAIN CIRCUMSTANCES. THE REQUEST FOR DECISION WAS ASSIGNED CONTROL NO. 68-6 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IN THE LETTER IT IS POINTED OUT THAT THE POWERS AND PRIVILEGES PROVIDED IN 22 U.S.C. 701-706 IN CONNECTION WITH THE JURISDICTION OF COURTS MARTIAL OR OTHER MILITARY TRIBUNALS OF FRIENDLY FOREIGN FORCES WITHIN THE UNITED STATES AND THE ATTENDANCE OF PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES AS WITNESSES AT SUCH SERVICE COURTS MAY BE IMPLEMENTED WHEN DEEMED NECESSARY FOR THE MAINTENANCE OF DISCIPLINE,AND AFTER A FINDING AND DECLARATION BY THE PRESIDENT. PROCLAMATION NO. 3681, DATED OCTOBER 10, 1965, 79 STAT. 1512, 30 F.R. 13049, MADE SUCH FINDING AND DECLARATION WITH RESPECT TO THE MILITARY, NAVAL AND AIR FORCES OF AUSTRALIA.

THE UNDER SECRETARY SAYS THAT, WHILE NO SPECIFIC GUIDANCE IS PROVIDED FOR 3HE PAYMENT OF THE EXPENSES OF MILITARY WITNESSES, IT APPEARS THAT THE STATUTE CONTEMPLATES THAT THE PROCEDURE ESTABLISHED THEREIN FOR THE PAYMENT OF WITNESSES IN GENERAL, SHOULD APPLY TO MILITARY WITNESSES, AND THAT THEY SHOULD BE PAID IN ADVANCE WITH FUNDS TO BE SUPPLIED BY THE FRIENDLY FOREIGN FORCES. ALSO, HE SAYS IT HAS BEEN RECOMMENDED THAT, FOR THE PURPOSES OF ESTABLISHING UNIFORM PROCEDURES, THE JOINT TRAVEL REGULATIONS BE AMENDED TO PRESCRIBE AUTHORIZED TRAVEL AND TRANSPORTATION ALLOWANCES FOR MEMBERS OF THE UNIFORMED SERVICES APPEARING AS WITNESSES BEFORE SUCH SERVICE COURTS.

HOWEVER, PRIOR TO AMENDING THE JOINT TRAVEL REGULATIONS HE REQUESTS OUR OPINION CONCERNING THE FOLLOWING QUESTIONS.

1. WHEN A COMMANDING OFFICER DESIRES TO HONOR A PROPERLY MADE REQUEST FOR THE APPEARANCE OF A MEMBER OF HIS COMMAND AS A WITNESS BEFORE AN AUTHORIZED SERVICE COURT OF A FRIENDLY FOREIGN FORCE, SHOULD THE WITNESS BE ISSUED OFFICIAL TRAVEL ORDERS AND WILL HE BE CONSIDERED TO BE ON OFFICIAL BUSINESS DURING THE PERIOD OF HIS TRAVEL TO AND FROM AND WHILE ATTENDING THE SERVICE COURT?

2. DOES THE STATUTE CONTEMPLATE THAT THE NECESSARY EXPENSES OF MILITARY WITNESSES SHALL BE PAID OR TENDERED DIRECTLY TO THE INDIVIDUAL WITNESS BY A FRIENDLY FOREIGN FORCE OR MAY SUCH WITNESSES BE PAID THE STANDARD TRAVEL AND PER DIEM ALLOWANCES AUTHORIZED IN THE JOINT TRAVEL REGULATIONS FOR TEMPORARY DUTY, WITH REIMBURSEMENT TO THE U.S. GOVERNMENT BEING OBTAINED LATER FROM THE FRIENDLY FOREIGN FORCE?

3. IF THE NECESSARY EXPENSES ARE TO BE PAID OR TENDERED DIRECTLY TO THE INDIVIDUAL WITNESS BY A FRIENDLY FOREIGN FORCE, WILL THIS BE DONE ON A STANDARD FEE SCHEDULE BASIS (CF. RULE 17 (D) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE), OR WILL IT INVOLVE PAYMENT OF THE ACTUAL EXPENSES OF TRAVEL, LODGING, AND SUBSISTENCE INCURRED BY THE WITNESS?

SECTION 703 (A) OF TITLE 22, U.S.C. PROVIDES GENERALLY FOR OBTAINING THE ATTENDANCE OF PERSONS SUBJECT TO THE JURISDICTION OF THE UNITED STATES AS WITNESSES AT SERVICE COURTS OF FRIENDLY FOREIGN FORCES BY MEANS OF JUDICIAL PROCESS AND STATES SPECIFICALLY THAT "THE FEES OF SUCH WITNESSES AND THE MILEAGE AT THE RATE ALLOWED TO WITNESSES ATTENDING THE COURTS OF THE UNITED STATES SHOULD BE DULY PAID OR TENDERED IN ADVANCE TO SUCH WITNESSES, WITH FUNDS TO BE SUPPLIED BY THE FRIENDLY FOREIGN FORCE.' SUCH LANGUAGE APPEARS TO CONTEMPLATE THAT THE WITNESS FEES AND MILEAGE WILL BE PAID OR TENDERED BY THE DESIGNATED OFFICIAL OF THE COURT ISSUING THE PROCESS (28 U.S.C. 1825) FROM FUNDS FURNISHED BY THE FRIENDLY FOREIGN FORCE. F SECTION 703 (B) OF THE STATUTE PROVIDES SPECIALLY THAT ATTENDANCE OF WITNESSES IN THE ARMED FORCES OF THE UNITED STATES SHALL BE OBTAINED BY REQUEST ADDRESSED TO THE DISCRETION OF THE COMMANDING OFFICER OF THE PERSON WHOSE TESTIMONY IS REQUIRED. WE ARE IN AGREEMENT WITH THE UNDER SECRETARY'S VIEW THAT THIS PROVISION RELATES TO OBTAINING THE ATTENDANCE OF MILITARY WITNESSES AND DOES NOT OPERATE TO EXCLUDE SUCH WITNESSES FROM THE PAYMENT PROVISIONS OF SECTION 703 (A) THAT THE FEES AND MILEAGE OF SUCH WITNESSES SHALL BE AT THE RATE ALLOWED TO WITNESSES ATTENDING THE COURTS OF THE UNITED STATES AND SHALL BE PAID OR TENDERED IN ADVANCE WITH FUNDS TO BE SUPPLIED BY THE FRIENDLY FOREIGN FORCE. BELIEVE THE SECTION SHOULD BE APPLIED AS SUBSTITUTING THE COMMANDING OFFICER FOR THE COURT FOR THE PURPOSE OF ORDERING THE ATTENDANCE OF THE MILITARY WITNESS AND PAYING OR TENDERING THE FEES AND MILEAGE.

IT IS OUR VIEW, THEREFORE, THAT WHEN THE COMMANDING OFFICER DESIRES TO HONOR A PROPERLY MADE REQUEST FOR THE APPEARANCE OF A MEMBER OF HIS COMMAND AS A WITNESS BEFORE A FOREIGN SERVICE COURT, THE MEMBER WITNESS SHOULD BE ISSUED OFFICIAL ORDERS BY HIS MILITARY COMMAND DIRECTING HIS ATTENDANCE AND, THAT HE SHOULD BE CONSIDERED AS BEING ON OFFICIAL BUSINESS IN THE NATURE OF DETACHED SERVICE WHILE TRAVELING TO AND ATTENDING THE PROCEEDINGS OF THE FOREIGN COURT.

IN ANSWER TO QUESTION 2 CONCERNING THE PAYMENT OF NECESSARY EXPENSES TO MILITARY WITNESSES, AS INDICATED ABOVE, WE BELIEVE THAT, NOTWITHSTANDING THEIR OFFICIAL DUTY STATUS, THE SPECIAL PROVISIONS OF 22 U.S.C. 703 (A) CONTEMPLATE THAT MILITARY WITNESSES, LIKE NONMILITARY PERSONS UNDER UNITED STATES JURISDICTION APPEARING AS WITNESSES BEFORE THE FOREIGN SERVICE COURTS, SHALL BE PAID THE FEES AND MILEAGE, INCLUDING THE ADDITIONAL ALLOWANCE OF $8 PER DAY FOR SUBSISTENCE IF APPLICABLE, AUTHORIZED GENERALLY FOR WITNESSES ATTENDING UNITED STATES COURTS BY 28 U.S.C. 1821. IN LINE WITH THE PROVISIONS OF 22 U.S.C. 703 (A) THE NECESSARY EXPENSES OF MILITARY WITNESSES SHOULD BE PAID IN ADVANCE WITH FUNDS SUPPLIED BY THE FRIENDLY FOREIGN FORCE. IN CASE SUCH FUNDS MAY NOT THEN BE AVAILABLE, THE WITNESS SHOULD BE PAID AFTER THE SERVICE IS COMPLETED WHEN FUNDS FOR SUCH PAYMENT HAVE BEEN SUPPLIED BY THE FOREIGN FORCE.

IN VIEW OF THE ANSWERS TO QUESTIONS 1 AND 2, NO ANSWER TO QUESTION 3 IS REQUIRED.