B-140669, OCT. 8, 1959

B-140669, OCT. 8, 1959

TO MAJOR A. H. SCHAFER, USAF, ACCOUNTING AND FINANCE OFFICER:

BY LETTER OF SEPTEMBER 1, 1959, THE DIRECTOR OF ACCOUNTING AND FINANCE, DEPARTMENT OF THE AIR FORCE, FORWARDED YOUR LETTER OF SEPTEMBER 17, 1958, SUBMITTING FOR ADVANCE DECISION A VOUCHER IN FAVOR OF STAFF SERGEANT GEORGE O. FLAGG, AF-3949 8655. THE VOUCHER COVERS PAYMENT OF PER DIEM AND MILEAGE FOR TEMPORARY DUTY AND TRAVEL FROM JOHNSON AIR BASE, JAPAN, TO KYOTO, JAPAN, AND RETURN, AUGUST 17 TO 19, 1958. THE REQUEST WAS ASSIGNED CONTROL NO. 59-36 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IT APPEARS FROM SIXTH INDORSEMENT DATED DECEMBER 16, 1958, THAT THE MEMBER, WHILE ATTACHED TO 6041ST FOOD SERVICE SQUADRON, APO 994, WAS ACCUSED OF AN OFFENSE ON SEPTEMBER 27, 1957, OVER WHICH JAPAN HAD JURISDICTION; THAT HE WAS INDICTED BY JAPANESE AUTHORITIES ON OCTOBER 31, 1957; THAT NUMEROUS TRIAL SESSIONS WERE HELD IN ADDITION TO TWO SESSIONS BY DIFFERENT JAPANESE PSYCHIATRISTS, AND THAT FINAL JUDGMENT IS PENDING. IT FURTHER APPEARS THAT PSYCHIATRIC EVALUATIONS WERE ORDERED BY THE COURT UPON REQUEST OF BOTH DEFENSE AND PROSECUTION. THE TRAVEL AND TEMPORARY DUTY HERE INVOLVED WERE PERFORMED PURSUANT TO A TRAVEL ORDER DATED AUGUST 15, 1958. THE TRAVEL ORDER STATED THAT THE PURPOSE WAS PSYCHIATRIC EVALUATION BY A JAPANESE PHYSICIAN IN CONNECTION WITH THE COURT ACTION, AND CITED AS AUTHORITY AIR FORCE MANUAL 35-11, PARAGRAPH 16-40 OF WHICH PROVIDES THAT TEMPORARY DUTY MAY BE AUTHORIZED ONLY WHEN ITS PURPOSE IS NECESSARY IN THE CONDUCT OF AIR FORCE BUSINESS. THE TRAVEL WAS PERFORMED BY RAIL. NO QUARTERS OR SUBSISTENCE WERE FURNISHED BY JAPANESE AUTHORITIES DURING THE PERIOD OF TEMPORARY DUTY.

IN YOUR REQUEST FOR AN ADVANCE DECISION YOU STATE THAT QUESTION AS TO THE PROPRIETY OF PAYMENT ARISES FOR THE REASON THAT THE JOINT TRAVEL REGULATIONS (PARAGRAPH 6300) PROVIDE FOR PAYMENT FOR TRAVEL BY MEMBERS OF THE UNIFORMED SERVICES AS WITNESSES IN COURT ONLY WHEN THEY ARE REQUIRED TO APPEAR ON BEHALF OF THE UNITED STATES; ALSO, THAT DOUBT EXISTS IN VIEW OF CERTAIN AGREEMENTS BETWEEN THE UNITED STATES AND JAPANESE GOVERNMENTS, COPIES OF WHICH YOU ENCLOSED.

PARAGRAPH 5-1 OF AMENDED ARTICLE XVII OF THE ADMINISTRATIVE AGREEMENT BETWEEN JAPAN AND THE UNITED STATES PROVIDES THAT IN CASE JAPANESE AUTHORITIES HAVE ARRESTED AN OFFENDER WHO IS A MEMBER OF THE UNITED STATES ARMED FORCES, THE JAPANESE AUTHORITIES WILL, UNLESS THEY DEEM THAT THERE IS ADEQUATE CAUSE AND NECESSITY TO RETAIN SUCH OFFENDER, RELEASE HIM TO THE CUSTODY OF THE UNITED STATES MILITARY AUTHORITIES PROVIDED THAT HE SHALL, ON REQUEST, BE MADE AVAILABLE TO THE JAPANESE AUTHORITIES, AND THAT THE UNITED STATES AUTHORITIES SHALL, ON REQUEST, TRANSFER HIS CUSTODY TO THE JAPANESE AUTHORITIES AT THE TIME HE IS INDICTED BY THE LATTER. APPEARS THAT THE REASON FOR SUCH AGREEMENT WAS THE DESIRE OF THE UNITED STATES TO RETAIN CONTROL OF MILITARY PERSONNEL UNTIL CONFINEMENT BY JAPAN BECOMES AN ABSOLUTE NECESSITY.

THE ACT OF JULY 24, 1956, 70 STAT. 630, PROVIDES THAT THE SECRETARY OF THE AIR FORCE MAY EMPLOY COUNSEL, AND PAY COUNSEL FEES, COURT COSTS, BAIL AND OTHER EXPENSES INCIDENT TO THE REPRESENTATION BEFORE JUDICIAL TRIBUNALS AND ADMINISTRATIVE AGENCIES OF ANY FOREIGN NATION OF PERSONS SUBJECT TO THE UNIFORM CODE OF MILITARY JUSTICE. THE HEARINGS WHICH PRECEDED ENACTMENT OF THE LEGISLATION INDICATE THAT ITS PURPOSE IS TO AID AN ACCUSED AMERICAN IN COPING WITH THE INTRICACIES OF FOREIGN COURTS AND LEGAL PROCEDURES; TO FURNISH SUCH AMERICANS SERVICES SUCH AS ARE RENDERED BY THE AMERICAN BAR ASSOCIATION AND OTHER LOCAL BAR GROUPS AT NO COST, OR FOR NOMINAL FEES, TO SERVICE PERSONNEL THROUGHOUT THE UNITED STATES, AND TO GUARD AGAINST WHAT MIGHT BE, IN EFFECT, A SUIT AGAINST THE UNITED STATES ITSELF OR DETRIMENTAL TO THE INTEREST OF THE UNITED STATES. PARAGRAPH 6, AIR FORCE REGULATIONS 110-13, PROMULGATED PURSUANT TO THAT LAW PROVIDES THAT COUNSEL SHALL BE SELECTED FROM APPROVED LISTS OF ATTORNEYS ADMITTED TO PRACTICE BEFORE THE COURTS OF THE FOREIGN COUNTRY INVOLVED, AND THAT WHEN APPROPRIATE AND REASONABLE, PAYMENT OF EXPENSES IN ADDITION TO COUNSEL FEES MAY INCLUDE COURT COSTS, WITNESS FEES AND OTHER NECESSARY AND REASONABLE EXPENSE. THUS, IT APPEARS REASONABLY CLEAR THAT THE PROVISION IN THE CITED ACT FOR PAYMENT OF "OTHER EXPENSES INCIDENT TO THE REPRESENTATION BEFORE JUDICIAL TRIBUNALS," ETC., DOES NOT INCLUDE THE COST OF BOARD, LODGING AND TRANSPORTATION OF A PRISONER WHO IS REQUIRED TO TRAVEL IN CONNECTION WITH HIS TRIAL.

TRAVEL OF MEMBERS OF THE UNIFORMED SERVICE IS GOVERNED BY THE JOINT TRAVEL REGULATIONS PROMULGATED PURSUANT TO SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253. PARAGRAPH 6454 OF THOSE REGULATIONS SPECIFICALLY PROVIDES THAT EXPENSES INCURRED DURING PERIODS OF TRAVEL UNDER ORDERS WHICH DO NOT INVOLVE PUBLIC BUSINESS ARE NOT PAYABLE BY THE GOVERNMENT. IT APPEARS THAT SUCH WAS THE CASE HERE. ALTHOUGH ORDERS WERE ISSUED DIRECTING THE TRAVEL, THE TRAVEL MAY NOT BE REGARDED AS ON PUBLIC BUSINESS.

ACCORDINGLY, PAYMENT NOT BEING AUTHORIZED, THE VOUCHER WILL BE RETAINED HERE.