Colonel MITCHELL. No, sir, there are regulations governing national welfare and so on. There again I must bow out. I do not know what they are, all of them governing the recall of individuals such as that. I can assure you that there are regulations in effect that would cover that situation when there is only one doctor in a community.

That officer would not be recalled.

Mr. FORRESTER. Then after all is said and done, although you are struggling with it and doing the very best you can-which I am sure that you are; I have that much faith in human nature, I think that the majority of human nature operates that way, and I am glad that I have that disposition-irrespective of that, getting right down to brass tacks now, all of these matters are actually, after all, addressed to the discretion of the colonel or the boards who considers the

case.

Lieutenant Colonel PLOTT. He must abide by the regulations the same as a judge must abide by the law in rendering a decision. That is just like saying that a judge is the sole arbiter of any case that comes before him. The man on these boards must abide by the regulations. That is required of him.

Mr. FORRESTER. The judge has his definition.

Lieutenant Colonel PLOTT. We have our definitions as we have been reading them to you, sir.

Colonel MITCHELL. I think what you said is quite true. We have regulations just as the colonel says, and we try in every instance to be completely just and certainly appreciate your expression of confidence in us, sir.

Mr. FORRESTER. Those statements are so broad that I do not think I could follow the statement that they follow a prescribed rule. I just can't see that.

Colonel MITCHELL. Mr. Burrus mentioned a moment ago—or perhaps I did that the President has authority to call or recall any individuals or not. The doctor that you mentioned, sir, that does not come under the individual hardship rule. It comes under criteria of the welfare of the community and of the country, and that officer is not the kind of officer that will be recalled.

Mr. FORRESTER. I think that we can conclude reasonably and honestly that all of these matters are so general that it actually does represent the discretion of the tribunal that happens to get that particular case.

Colonel MITCHELL. Yes, sir. There is a general policy which covers them. As to the individual, his case will have to be decided by a suitable board, or individuals.

Mr. FORRESTER. That is so general that it could not be an effective criteria, so that it could be satisfied by the production of a sudden amount of proof.

Colonel MITCHELL. I could not catch that last word.

Mr. FORRESTER. The policy is so broad and so general until it has not been isolated and brought down to specific requirements so that you could know that it would be an inflexible policy if you supported that policy with the required amount of proof.

It would still be dependent upon the judgment of the board or the tribunal determining that particular matter.

98207-52-14

Colonel MITCHELL. Yes, sir, I believe in general that is true. To amplify a little further, we set up these regulations governing cases such as you gentlemen brought up. The subordinate headquarters that operate under them in the initial echelon, to effect a delay or decision not to recall an individual in certain cases find that the majority of the cases fall very clearly under the regulation.

In those cases where it is doubtful, of course they can be referred to higher headquarters for further definition of policy to cover an individual case as it may come up. In other similar cases, then it settles down to a routine in which there are very, very few exceptions which might not be covered by the individual regulation. The subordinate headquarters can operate very effectively under our regulations.

We try, of course, to write a regulation so that we do not have any cases that are not covered. If one comes up, of course, it is referred up, if necessary, as high as the Department of the Army, and a decision is rendered on the case and it is buttoned up. In that way we try to render justice in the case.

Mr. PICKETT. If I understand you correctly, you have the law as written. You write your regulations pursuant to the law. They are fixed. But even in the clearest of cases, such as I may illustrate by your last surviving son rule, there must be some administrative determination of whether the facts presented are true, and if so, whether they meet the regulation that is drawn. Is that correct? Colonel MITCHELL. Yes, sir.

Mr. PICKETT. Isn't that what happens in every one of these cases? Colonel MITCHELL. Yes, sir.

Mr. PICKETT. I think that happens in any matter which must be the result of an administrative or executive decision. We have certain rules laid down that we must be guided by. Then even a jury or a judge on the bench must interpret the facts presented in the light of the binding nature of his directions, from whatever source they stem.

Colonel MITCHELL. Yes, sir.

Mr. FORRESTER. I have not seen that. I really believe that we are in something now that I know something about, having been a prosecuting attorney for 27 years. If you have any direct policy there or any rules to be satisfied by certain proofs, I have not seen them or heard them.

Lieutenant Colonel POOLE. I would like to go through the regulation that I have in front of me. It is hardship discharge and covers people on active duty. The regulation covering the deferment I feel is just as much in detail as this regulation.

To give you an idea as to how much detail we actually go into in absolving a hardship discharge case, I would like to go through this briefly and explain to you the procedures that are used. In the beginning of the regulation we have a paragraph on "Purpose" that outlines the procedures and the authority for the discharge. The second one gives you the statutory authority. Then we give the authority down to the commanders to award these discharges. The discharge authority goes down to base level. The disapproval authority, however, is maintained in your numbered Air Forces and your major command headquarters.

Paragraph 4 goes into detail as to who may submit the application. It covers when the individual is in the United States, when he is

Overseas

Mr. FORRESTER. Give me your specific rule now.

Lieutenant Colonel POOLE. Yes, sir; I am coming to that. It covers when the individual is en route to an overseas station, when he may submit, when the families of the airmen may submit when the individual happens to be overseas, for instance; it covers the forwarding address with seven requirements there of information that must be furnished.

It puts responsibility on the major commanders to insure that when these cases come before their headquarters, to go before these boards, that they assign to these people competent officers who are thoroughly familiar with hardship separations.

Mr. FORRESTER. What are your grounds for the hardship separation? That is the procedure you are talking about.

Lieutenant Colonel POOLE. On grounds for hardship we have policies governing the discharge on account of hardship; death or disability of dependents is not necessarily a prerequisite. Death or disability of dependent is not required as a condition for discharge under hardship conditions, paragraph (b):

Existence of hardship conditions: An airman may be discharged for reasons of hardship when the evidence submitted indicates that undue and unforseeable hardship conditions have arisen in his family since enlistment and that his discharge will contribute materially to the care or support of his family and alleviate the hardship.

Mr. FORRESTER. You use the language there "undue hardship." Do you have a definition of what an "undue hardship" is?

Lieutenant Colonel POOLE. It is hardship conditions under which an individual's family-or hardship suffered by the individual family not normally being suffered by the military personnel in the service. Mr. FORRESTER. Now I have heard something. Do you have that in the statute?

Lieutenant Colonel POOLE. That is not in a statute.

Mr. FORRESTER. Is it in writing?

Lieutenant Colonel POOLE. Undue hardship exists when the family of the airman concerned must endure hardship conditions beyond those normally incident to military service as a result of his military status. That is written right in here:

Undue hardship does not necessarily exist solely because of altered present or expected income, or because the airman is separated from his family, or must suffer the inconveniences normally incident to military service.

Doubtful cases may be referred to Director, Military Personnel, Headquarters, USA, for final action.

Mr. FORRESTER. That is in the Air Force.
Lieutenant Colonel POOLE. Yes, sir.

Mr. FORRESTER. Does the Army have rules like that?

Colonel MITCHELL. Yes, sir.

Mr. FORRESTER. That is what I have been struggling for. That sounds like something.

Lieutenant Colonel POOLE. We also define the term "members of the family." We say if the man owes money to the Government that does not necessarily mean that he will be retained in the service until it is paid. If he is under charges or confinement, of course that is a little different situation. We try to cover every angle in trying to determine whether or not a man has a hardship condition.

а

We also put in here that the services of the American Red Cross and other agencies may be obtained, where the Red Cross assists the

individuals in obtaining affidavits, and so forth, to justify their hardship.

If the commanders themselves feel that there is insufficient evidence based upon what the individual has presented to them, they go to the Red Cross and get additional information.

Mr. FORRESTER. I am familiar with that. You have clarified the situation considerably for me so far as that particular feature is concerned. In other words, to illustrate what I am trying to say to you: If there was a rule, if a man was guilty of murder, then so and so would take place.

Lieutenant Colonel POOLE. That is right.

Mr. FORRESTER. But the word "murder" remains undefined. In a court they will define murder for you. Then you know where you are going. You have a definition of undue hardship which I think is a reasonable definition. The words "undue hardship" without a definition would be one thing to me, another thing to Tom Jones and another to Bill Smith.

Colonel MITCHELL. We have very similar regulations, Mr. Chair

man.

Mr. BOGGS. I have one question. This section applicable to the Air Force and the Army. Does the Navy have a similar provision in this resolution or don't they need this authority?

Commander ALM. We are not covered in this section at all. Our Reserve commissions are permanent. They have none of these limiting war clauses.

Mr. BOGGS. You do not need this authority?

Commander ALM. No, sir.

Mr. FORRESTER. What is the next item?

Mr. BURRUS. The next item has to do with claims under the Tort Claims Act. On page 31, the top of the page, item 2 (b) (11).

Mr. Finn, of the Department of Justice, is here to testify on that. This item excludes claims which arise out of combatant services of the Armed Forces during time of war. There is another provision in the Tort Claims Act which excludes any claim which arises in a foreign country. There is not any provision which expressly includes a claim which arises from combatant activities in the United States or its possessions when we are not at war.

What we are worried about is the combatant activities that might take place in these areas under the present unsettled conditions in the world today. While we do recommend that this be continued, our principal objective in including this item in the bill is to bring it to the attention of the Congress, as to whether it is a type of claim that they would want covered or not.

An example we might give of what we have in mind is, if we had had the Tort Claims Act in existence at the time of the raid on Pearl Harbor and there were any damages due to the combatant activities there, they would have been included under the Tort Claims Act except for this provision.

The Tort Claims Act was not in effect at the time of Pearl Harbor. If it had been, you would have a situation where people could have brought claims resulting from any negligence on the part of the military in the nature of combatant activities in defending against that attack.

Mr. FORRESTER. Do you have that statute?

Mr. BURRUS. Yes, sir.

Mr. FORRESTER. Are these statutes being referred to the reporter? Mr. BURRUS. All of them.

2 (b) (11), Item 489b

CLAIMS WHICH ARISE OUT OF COMBATANT ACTIVITIES OF THE ARMED FORCES DURING TIME OF WAR ARE EXCLUDED FROM ADMINISTRATIVE ADJUSTMENT UNDER THE TORT CLAIMS ACT AND FROM THE DISTRICT COURTS (28 U. S. C. 2680 (j))

This provision excludes from administrative adjustment under the Tort Claims Act, and from the jurisdiction of the district courts under title 28, United States Code, section 1346 (b), "any claims arising out of combatant activities of the military or naval forces, or the Coast Guard, during time of war."

Another provision excludes any claim arising in a foreign country (28 U. S. Č. 2680 (k)). There is, however, no provision expressly excluding a claim arising from combatant activities in the United States or its possessions when we are not at war. Since combatant activities might take place in these areas under the unsettled conditions that exist in this time of emergency without our being technically in a "time of war" such claims could arise. It would seem that they should be excluded for the same reasons that have led to the exclusion of combatant claims arising in wartime.

Section 2680. Exceptions.

The provisions of this chapter and section 1346 (b) of this title shall not apply to

(j) any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.

STATEMENT OF JOHN J. FINN, DEPARTMENT OF JUSTICE

Mr. FINN. I am Assistant Chief of the Tort Section of the Department of Justice.

I think that perhaps in order to give you an understanding of this, I ought to give you a little history of the act itself. As you recall, the Legislative Reorganization Act was passed in 1946. A part of that act defined the tort claims procedure, under the title "The Tort Claims Act."

The act was effective sometime in 1946 and was made retroactive to January 1945 to cover claims that occurred after January 1, 1945. Subsequently and in 1948, there was a revision of the judicial code28 United States Code. The Tort Claims Act was rescinded and reenacted in this revision of the United States Code.

As it now appears, mainly, the jurisdiction that is granted is in section 1346 (b) of 28 United States Code. Under that jurisdiction the Federal courts are given jurisdiction to hear without a jury, cases in which employees of the United States, acting in the scope of their employment, are guilty of wrongful acts, negligence or omissions which cause damage to the citizenry.

That act applies only in the United States and Alaska, Guam, Hawaii, Puerto Rico, the Canal Zone, and the Virgin Islands. It has been held by the Supreme Court of the United States not to apply, for example, in a place like Argentia.