April 1977

DA PAMPHLET 27-5&52 HEADQUARTERS, DEPARTMENT OFTHE AMY, WASHINGTON, D.C. Lesser Included Offenses in Drug Cases Major Herbert J. Gneen, JAGC, USALSA with statim at Fort Godon, Georgia

In United States v. Long 1 the Army Court of sion, such a bare allegation does not fairly Military Review held for the first time that imply that marihuana was physically pos- when an accused is charged with sale of drugs sessed or was physically transferred. Since in violation of a regulation, it is proper to find transfer and possession involve an element, him guilty of the lesser included offense of Le., physical possession, not always included in delivery of drugs in violation of the same a sale, the court found that bare allegation of regulation.* The determination of whether an sale does not fairly inform the accused that he offense is included within the offense alleged is expected to defend against such offenses. is not always easy to make. Accordingly, it held that transfer and posses- sion were not lesser included offenses of sale.s The “basic test” to determine whether the court-martial may properly find the accused To affirm the conviction in Long the Army guilty of an offense other than that charged is Court of Military Review had to find that whether the specification of the offense on either delivery was fairly included within the which the accused was arraigned “alleges allegation of wrongful sale or that there was fairly, and the proof raises reasonably, all something peculiar about allegations laid un- elements of both crimes” so that “they stand der Article 92 which were significantly differ- in the relationship of greater and lesser offen- ent from the Article 134 allegations discussed ses”. . . . Both aspects of the “basic test” of in Maginky. The court chose the latter course. allegation and pmf must be satisfied.. ..3 It found that the regulation proscribed all unauthorized drug activities and that the gra- The leading case involving lesser inchded vamen of the offense alleged is the viohtion of offenses for drug offenses is United States v. a regulation “irrespective of the manner in Maginley.4 In that case the accused was which it is done”.l Moreover, it found that charged and convicted of the wrongful sale of drug offenses charged under Article 134 make marihuana in violation of Article 134. At trial punishable the specific conduct alleged and he contended that he was merely an agent for not a general class of offenses as did the the buyer and therefore not a seller of drugs. regulation, and therefore cases decided under Although the defense of agency was rejected Article 134 were distinguishable. at the trial, it was sufficient to cause the Army Board of Review to set aside the finding In finding this distinction to be controlling, the court found that the crucial issue was not , of guilty.5 In addition, the Board held that there was no lesser included offense of sale of whether delivery was a lesser included offense marihuana. The case was certified to the of sale, but whether the findings were a per- Court of Military Appeals td determine missible variance.8 Since the record amply whether the offense of sale of marihuana con- demonstrated that the accused was not misled tained any lesser included offenses, in the preparation of his case and was pre tected against double jeopardy, the court held The court stated that a bare allegation of that the findings were a permissible variance sale refers only to the transfer of title, and and were not prejudicial to the accused’s since title can pass without physical posses- rights. Although the Army Court. of Military Re- view's findings may be viewed as correct by those who daily fight the war against illegal drug activity, the route it took to achieve the result is questionable. The court makes two fundamental decisions in order to reach its holding: that there is a meaningful distinction between Article 92 and Article 134 drug offen- ses; and that there is a significant difference between findings of guilty to lesser included offenses and findings of guilty by variance. In United States u. Courtneg,g the United States Court of Military Appeals held that all marihuana offenses charged under Article 134 are punishable by the maximum punishment available for Article 92 offenses. It is arguable that sale is a more serious offense than deliv- ery or transfer because the former involves money while the latter does not. Similarly it may be argued that possession is the least severe offense because it involves only one person. However, because of other variables such as the amount of money involved, the /- nature of the buyer (adult or child), and the amount of drugs involved, some possession offenses might be viewed as more severe than sale cases. Accordingly the easiest approach appears to be to deal with all drug offenses on an equal basis and allow the sentencing au- thority to indicate the seriousness of the of- fense by the severity of the sentence. It is submitted that there is no meaningful distinction between Article 92 and Article 134 drug offenses. Without the allegation of the regulation violated, the specifications are vir- tually identical.10 Both the general article and the regulation prohibit the same activity. Each drug activity set out in the regulation is prejudicial to good order and discipline and The Army Lawyer is published monthly by the Judge violative of Article 134." Moreover, the form Advocate General's School. By-lined articles represent the opinions of the authors and do not necessarily specification set out in the Manual for Courts- reflect the views of The Judge Advocate General or the Martial indicates that the specific manner in Department of the Army. Manuscript on topics of inter- which the regulation was violated must be est to military lawyers are invited to: Editor, The Army alleged.12 It seems clear that Article 134 and Lawyer, The Judge Advocate General's School, Char- the regulation have the same purpose; the lottesville, Virginia 22901. Manuscripts will be returned only upon specific request. No compensation can be paid proscription of all unauthorized drug activity. to authors for articles published. Funds for printing this Accordingly the law affecting drug offenses publication were approved by Headquarters, Depart- should be the same regardless of which article e ment of the Army, 26 May 1971. is alleged in the charge. DA Pam 27-50-52 3 It is axiomatic that decisions should not be actual possession and transfer. Most military based on labels attached to various issues by drug sales, usually involve small quantities of the parties to a lawsuit. It is the substance drugs and money, and the physical possession and not the label which should control the and transfer of drugs. It is clear that an decision. In Muginley the accused was charged allegation of sale when viewed in accordance with sale, he defended on the basis of agency with the common experience of mankind and was ultimately acquitted because transfer places an accused on notice of other drug was held not to be a lesser included offense of offenses, including possession and transfer. l6 sale. In the instant case, the accused was An accused may not be found guilty of an charged with sale, he defended on grounds of included offense unless both aspects of the agency but was convicted of delivery13 be- “basic test of allegations and proof’17 are sat- cause such a finding, while not a lesser in- isfied. The first portion of the test is satisfied cluded offense, was a permissible finding by the mere allegation of sale. The fact that based on the evidence. With the exception of not every sale involves physical possession or the drug involved, heroin, as opposed to mari- transfer should not be controlling on that huana, and the different codal articles alleged, portion of the test. It should be and is control- the conduct of both accused was identical. The ling on the proof portion and if evidence of different codal articles do not call for different actual delivery or possession is lacking, those results and the different nature of the sub offenses cannot be submitted to the members stances involved is immaterial. Accordingly, nor may a finding of guilty to those offenses these are identical cases and should have be rendered. identical results. Calling one issue variance and the other issue lesser included offenses United States v. Long provides a vehicle for should not result in different findings. Both the Court of Military Appeals to reexamine its the concepts of variance and lesser included holding in Maginley and to bring its decision offenses demand that the pleading be such in line with the common experience of those that the accused is put on notice so he is able who deal daily with military drug activity. to adequately prepare for trial. Since both concepts require the same degree of notice, Notes the results in similar cases should be similar. The Court in Long found the concept of lesser 1. 54 C.M.R. Adv. Sh. 612 (A.C.M.R. 1976). included offenses inapplicable because both 2. Army Reg. No. 600-50, Standards of Conduct for delivery and sale are equivalent prescriptions Department of the Army Personnel, para. 4-2a(7)(aXl) under the regulation. Because all drug trans- (C2, 19 Apr. 1972). actions prohibited by Article 134 carry the 3. United States v. Thacher, 16 C.M.A. 408, 410, 37 same maximum punishment’4 they too are C.M.R. 28,30 (1966). equivalent prescriptions under the general ar- 4. 13 C.M.A. 445, 32 C.M.R. 445 (1963). ticle.15 5. United States v. Maginley, 32 C.M.R. 842 (A.F.B.R. Although as a matter of stare decisis the 1962). decision of the court in Long is erroneous, it 6. United States v. Maginley, 13 C.M.A. 445, 446-47, 32 does not necessarily follow that as a matter of C.M.R. 446,446-47 (1963). public policy it is also wrong. A specification 7. United States v. Long, 54 C.M.R. Adv. Sh. 612, 614 alleging the wrongful sale of drugs at a spe- (A.C.M.R. 1976). cific time and place is sufficient to put the accused and his counsel on notice that he is 8. “One or more words or figures may be excepted and, when necessary, others substituted, provided the facts charged with violating the law by being in- as so found constitute an offense by the accused which volved in illegal drug activities at the time and is punishable by the court and provided such an action place alleged. Although not every drug sale does not change the nature or identity of any offense involves actual possession and the actual charged in the specification or increase the amount of transfer of drugs, many such sales do involve punishment that might be imposed for any such DA Pam 27-50-52 ,- 4 fense.” MANUAL FOR COURTS-MARTIAL,UNITED “actual, constructive or attempted transfer of a con- STATES,1969 (Rev. ed.), para. 74b. See United States v. trolled substance whether or not there exists an agency Lee, 23 C.M.A. 384,60 C.M.R. 161 (1976); United States v. relationship.” Craig, 8 C.M.A. 218, 24 C.M.R. 28 (1957); United States v. 14. MCM, 1969, para. 127. Hopf, 1 C.M.A. 684, 6 C.M.R. 12 (1952). 16. In Maginley it was noted “that identical punish- 9. United States v. Courtney, 24 C.M.A. 280, 51 C.M.R. ments have been prescribed for sale, possession, or use 769 (1976). of (drugs). . . . The tendency, therefore, in military law 10. Compare form specification No. 27 with form specifi- seems to have been to treat the crimes as separate and cation Nos. 144, 145. MANUALFOR COURTSMARTIAL, equal. We believe that is the correct view.” United UNITEDSTATES, 1969 (Rev. ed.), app. 6 [hereinafter States v. Maginley, 13 C.M.A. 4.46,447,32 C.M.R. 446,447 cited as MCM, 19691. (1963). See United States v. Courtney, 24 C.M.A. 280, 61 C.M.R. 769 (1976). 11. E.g. United States v. Williams, SPCM 11283 (A.C.M.R. 2 Dec. 1976) (possession and use of LSD is 16. The only practical alternative to the decision in violation of Article 134(1) and (2); United States v. United States v. Long, 54 C.M.R. Adv. Sh. 612 (A.C.M.R. Martin, 60 C.M.R. 314 (A.C.M.R. 1975) (possession of 1976), is a charge sheet tilled with a variety of drug amphetamines violates Articles 134(1) and (2)). offenses to meet the exigencies of proof. The law should not create chafge sheets that resemble laundry lists. 12. Form specification 27, MCM, 1969, app. 6. See United States v. Hughes, 24 C.M.A. 169, 170 n.3, 61 13. The Army Court of Military Review in United States C.M.R. 388, 389 n.3 (1976). v. Long, 64 C.M.R. Adv. Sh. 612 (A.C.M.R. 1976), consid- 17. United States v. Thacker, 16 C.M.A. 408,37 C.M.R. 28 ered the terms transfer and delivery to be synonymous. (1966). See 21 U.S.C. 5 SOz(8) which defines delivery as the

Hard Blows, But Not Foul P A Survey of Recent Significant Cases Concerning Final Argument of Trial Counsel in Light of the American Bar Association Standards, The Prosecution Function ’ Captain Robert W.Reutiman, Jr., JAGC, U.S. Amy Reserve

He may prosecute with earnestness and signed to determine when a conviction should vigor-indeed he should do so. But while be overturned by reason of misconduct of he may strike hard blows, he is not at counsel.2 They are, however, to be an ethical liberty to strike foul ones. It is as much guide to the nature of the lawyer’s function in his duty to refrain from improper methods the criminal justice system.3 calculated to produce a wrongful convic- Some of the hardest “blows” dealt by a trial tion as it is to bring about a just one.. . . counsel occur during argument. Sections 5.8 Berger United States, 295 U.S. 78, 88, v. and 5.9 of the Standards Relating to the Pros- (1935) ecution Function deal specifically with argu- With the above words Mr. Justice Suther- ment of a prosecutor to the court and jury. land pointed, in 1935, to the moral obligation That these standards have application to mili- of a prosecutor to perform his duties with an tary practice is without question; they have eye toward his function. On February 8, 1971, been specifically referred to by the United the House of Delegates of the American Bar States Court of Military Appeals in two recent Association approved the Standards Relating cases.4 Significantly, one case concerned al- to the Prosecution and The Defense Function, leged improper argument of the trial counsel which included the standards approved in the during the findings portion of the court-mar- , tentative draft of March, 1970, with amend- tial,5 the other during the sentencing portion.* ments recommended by the Special Commit- As does the court, the author regards the tee on Standards for the Administration of standards as equally applicable to both por- P Criminal Justice.’ The standards are not de tions. DA Pam 21-S(r52 5 This article examines recent significant de- One of the major problems for a trial coun- cisions dealing with argument of trial counsel sel is determining what is a fact of record for in light of the Sections 6.8 and 6.9. Its purpose purposes of argument. United States v. Nel- is to determine how valid the standards are as sonB involved an accused charged with two a practical as well as ethical guide to trial specifications of sale of heroin. At the Article counsel in formulating such arguments. While 32 hearing he elected to make a statement, the standards do not provide hard and fast but did not put forth any evidence as to his rules to dictate when a case will be reversed, a whereabouts on the date of the first alleged thorough knowledge of them by trial counsel offense. At trial he asserted an alibi defense, will not only enable him to conform to ethical calling a witness to corroborate the same. guidelines governing argument, but also to Trial counsel argued the inconsistency be- help avoid reversal for improper argument. tween the testimony at trial and the former testimony, asking why the accused’s memory “suddenly became better” after he had had an APPLICATION OF SECTION 5.9 and opportunity to talk to the alibi witness, “his CLAUSE (A), SECTION 5.8 friend.”’O The court held this to be a fair comment on the alibi defense.” Section 6.9 and Clause (A) of Section 6.8 deal with argument of facts outside the record and If the Article 32 investigation is part of the reasonable inferences from evidence of record. record and subject to proper comment, it Since they closely parallel each other, they would seem logical that so are matters will be considered together. The text of Sec- brought out in the guilty plea providency I tion 6.9 reads as follows: inquiry. But not so. In United States us. Bm~ks,~~the accused was charged with and 6.9 Facts outside the record. pleaded guilty to violation of USARV Regula- It is unprofessional conduct for the prose- tion 6W291 by, in part, purchasing money cutor intehtionally to refer or argue on orders without a valid commander’s certifi- the basis of facts outside the record cate. During the providency inquiry, the ac- whether at trial or appeal, unless such cused admitted to dealing with the black mar- facts are matters of common knowledge ket. Trial counsel, apparently feeling it was based on ordinary human experience or legitimate to comment on this part of the matters of which the court may take judi- record, argued in presentencing the gravity of cial notice. black marketeering. The Army Court of Mili- tary Review reassessed the sentence in part Clause (a) of Section 6.8, “Argument to the on the theory that it is improper to argue Jury,” states: matters brought out solely as a result of the The prosecutor may argue all reasonable inquiry. l3 inferences from evidence in the record. It An easier case is the impropriety of arguing is unprofessional conduct for the prosecu- administrative attempts to settle a case short intentionally to misstate the evidence tor of trial. United States v. Pinkney14 involved or mislead the jury as to inferences it may not only argument of such efforts to the detri- draw.s ment of the accused, but also expansion of the The key word in both Section 6.9 and Clause record to justify the argument. In Pinkney the (a) of Section 6.8 is the adverb intentionally. In accused unsuccessfully sought a discharge in the analysis of the cases which follows, it is lieu of trial by court-martial pursuant to not possible to determine whether the argu- Chapter X, AR 635-200, 19 April 1972. In ments were intentional. Be that as it may, the extenuation and mitigation he testified under cases do illustrate instances where trial coun- oath but made no mention of a desire to sel has failed to adhere to facts of record and complete his term of service or to be honorably the allowable inferences from such facts. discharged. Trial counsel in cross-examination / DA Pam 27-5@52 6 then asked the accused whether he wished to Appeals disagreed and held that on the facts it complete his term and be honorably dis- was convinced that the court members did not charged. The accused replied affirmatively. regard the comments as an invitation to Trial counsel then inquired about the Chapter weigh the accused silence against him.*’ X request and argued that the accused was unconcerned about staying in the military and While trial counsel may have some difficulty had been willing to accept less than an honor- in determining when it is proper to argue the able discharge.lS The United States Court of “rebutted” evidence, he is duty bound to re- Military Appeals held this tactic improper on member the limited purpose for which his the policy basis that to do otherwise would evidence was admitted, and this is an easier discourage the legitimate use of administra- task. A failure to remember can lead to rever- tive alternatives to trial.16 An alternate the- sal. In United States v. Salisburl/,n the ac- ory of decision proposed by the author is that cused, charged with murder of his girlfriend, such proceedings are not part of the record. asserted her possible suicide as a defense. During the government’s case-in-rebuttal the Just as it is sometimes difficult to determine military judge allowed the introduction of a what is or is not part of the record for pur- prior court-martial conviction of the accused. poses of argument, it is also sometimes diffi- The conviction was for communicating a I cult to determine what is a proper inference to threat by use of the phrase “I’m going to stick be drawn from a fact of record. The classic one of these bullets right through your example is the prohibition against comment brain.”23 Extracts of the court-martial order upon the failure of the accused to testify. A were read to the members. The conviction was direct reference to such is clearly prejudicial.’’ admitted solely to rebut the contention that But even here there are grey areas.’* The decedent’s death was the result of suicide, and chief such area seems to be the comment that the members so instructed.= In spite of this, certain government testimony is “unrebut- trial counsel directly argued this evidence as ted.” Apparently the United States Court of an indication of a propensity toward violence Military Appeals is going to take a case-by- with the following language: case look at such argument. In United States Gentlemen, keep in mind again what that v. Saint John,ID the accused was charged with wrongful possession and sale of marihuana. conviction was for. “I’m going to stick one An informant made the alleged buy, and of these bullets right through your brain” shortly thereafter the accused was appre- . . . What did he do to (decedent). He stuck hended and his car searched. The search did a bullet right through her brain.= not produce the alleged bag from which the Reversal from this and other error followed. accused supposedly transferred the contra- band to the informant, but did result in sei- APPLICATION OF CLAUSE (B), SECTION zure of marihuana seeds from the glove com- 5.8 partment and marihuana from a field jacket which had the name of the accused stenciled The text of Clause (b), Section 5.8, ABA on it. In his prefindings argument the trial Standards relating to the Prosecution Func- counsel referred to the testimony about dis- tion, reads as follows: coyery of the field jacket and seeds as “unchal- It is unprofessional conduct for the prose- lenged” and “unrebutted.”20 Apparently as a tactical decision trial defense counsel did not cutor to express his personal opinion as to object to this argument. The Army Court of the truth or falsity of any testimony or Military Review reversed on the theory that evidence or the guilt of the defendent.26 only the accused could have rebutted the testi- This portion of Section 5.8 is easier to apply mony and as such the argument was imper- in practice than Section 5.9 and Clause (a) of missible comment on the failure of the accused Section 5.8 discussed above. Yet it is easy and to testify. The United States Court of Military something of a habit to “personalize” the ar- DA Pam 27-50-52 7 gument, in effect putting personal belief and Would you want Sergeant W to have ac- the role of trial counsel as officer of the court cess to other young boys, your friend’s before the trier of fact. sons, or your own sons?m United States v. Nelson,Z7 an Army Court of The court agreed with the contention of Military Review case previously mentioned, appellate defense counsel that this argument involved a trial counsel who expressed his asked the members to put aside their impar- personal belief as to the testimony. The ac- tiality and judge from a perspective of per- cused called as his alibi witness one D, who sonal interest. It analogized that if a court testified that the government informant had member had been a victim’s father, he would offered to sell D a kilogram of cocaine, and have been disqualified from sitting by reason was therefore an unreliable informant. In ar- of Paragraph 62(f) of the Manual for Courts gument on findings the trial counsel argued as Martial. Therefore it was improper argument follows: to ask him to put himself in that position.= ... That is the most preposterous story While Wood was decided before adoption of I’ve ever heard. I think D’s tactic is the the ABA Standards Relating to the Prosecu- same as that used by Hitler. Tell the tion Function, a recent case involving similar biggest lie you can imagine and they’ll argument directly cited Clause (c) of Standard believe it .. .D is not a man to be believed. 6.8 as a basis for decision. United States v. He is simply incredible and his testimony Shamberger34 involved an accused charged is nothing but nonsense.28 with rape. The victim testified that she was pulled from an automobile parked on a se- This was held to be error, but not so great cluded road and her husband restrained. Trial an error as to trigger the military judge’s counsel in his presentencing argument asked obligation to act sua sponte, there being no the members to put themselves in the place of objection from the defense. Interestingly, the the victim’s husband with: court did not discuss the argument in terms of an expression of personal belief by the trial Put yourself in the position that S says counsel, but rather in terms of the inflamma- Sergeant C was put, right here. Put your- tory nature of the argument and reference to self next to your car or a borrowed car at facts outside the record.= night; put yourself being forced down by one or two men, big men; picture being APPLICATION OF CLAUSE (C), SECTION told to keep your head down but being 5.8 able to glance out from the side; and picture your wife having her clothes Clause (c), Section 6.8, ABA Standards Re- ripped off her and then being raped, once, lating to the Prosecution Function, states that twice, three times, four times, five times. “the prosecutor should not use arguments You picture that. That’s not a bar down calculated to inflame the passions or preju- on H Street.. . . You think of Sergeant C dices of the jury.= pinned to the ground and in no way able to do anything about three men taking Better examples of an appeal to passion turns.= than Nelson are those cases in which the trial counsel has asked the court members to A second type of argument that might be equate themselves or a close relative with the regarded as inflammatory, at’,least when un- plight of the victim. In United States v. supported by any evidence oP ’Pecord, is argu- Wood,31 the accused was charged with taking ment of the effect of the accused’s conduct indecent liberties with three minor boys, mem- upon his fellow soldiers, particularly if that bers of the Boy Scout troop of which he was effect is exaggerated. In United States v. the scoutmaster. In argument on sentence, Brooks,= discussed previously, where the ac- trial counsel asked the following question: cused admitted to black market activity in the DA Pam 27-50-52 v 8 providency inquiry although not charged with tence on service members other than the such conduct, trial counsel argued: accused is improper. This is slightly differe’nt than the argument in Brooks where the trial Here is a man who knew what he was counsel suggested fellow soldiers were dying doing and yet knowing that his fellow in part because of the accused’s activities. commarades (sic) are out there fighting Here trial counsel argues deterrence of others and dying for a particular cause; he, in his by the sentence. In United States Mosely own way, in Saigon was fighting against v. and Sweisford,*2 the two accused were tried in that cause and in turn his brothers in the common by general court-martial and con- field are dying because of it.. .37 victed of wrongful possession of ampheta- mines and wrongful possession of hashish in APPLICATION OF CLAUSE (D), SECTION violation of AR 60040. Trial counsel argued in 5.8 presentencing that attention should be paid to the nature of the “criminal activity’’ and that The text of Clause (d), Section 5.8, ABA attention should also be paid, in determining a Standards relating to the Prosecution Func- sentence, to the “deterrent effect” of the sen- tion is: tence on others who “might venture” into The prosecutor should refrain from argu- such an activity.43 The United States Court of ment which would divert the jury from its Military Appeals agreed with the contention duty to decide the case on the evidence, by of appellate defense counsel that this argu- introducting evidence broader than the ment was improper. Judge Cook, writing the guilt or innocence of the accused under unanimous opinion, pointed out the two- the controlling law, or by making predic- pronged nature of deterrence, that of deter- tions of the consequences of the jury’s ring the general public as well as the particu- verdict.= lar accused. While not rejecting the former, the Court reasoned that in the military the It is this clause that parallels the growing general deterrence aspect is satisfied by the trend against any predictions about the effect table of maximum punishments. It further of a verdict other than its effect upon the reasoned that the general deterrence aspect is particular accused involved. In United States not diminished by the offense of the particular v. Wood,SB mentioned above, trial counsel accused. As to him, deterrence must be indi- asked the members to consider the conse- vidualized by the particular sentence. General quences of their verdict upon themselves. He deterrence will not be allowed as a basis for asked, in presentencing, a series of rhetorical additional punishment.44 In a per curiam opin- questions such as whether the members ion, the Ar ‘ Court of Military Review subse- wished to have a “sex pervert’’ living in their quently apy3 ‘ed Mosely.” society, and then argued that if the rhetorical questions were answered in the negative and It is an open question whether if defense yet the members voted to retain the accused counsel argues the predictions of a sentence in the service, then the members were “sel- upon other service members, trial counsel may fish, self-centered, and not . . . fulfilling (their) also do so. This question has not been ad- responsibility to society or the Air Force.”M dressed by either the United States Court of The court in part regarded this as the inter- Military Appeals or by the Army Court of jection of a threat of contempt or ostracism if Military Review. In a case decided prior to the members rejected trial counsel’s request.41 Mosely, United States v. DiMinious,46 the It logically is also a prediction of such conse- Navy Court of Military Review considered the quences. issue. There the accused pleaded guilty to two specifications of unauthorized absence and Just as arguing the effect of the sentence on one specification of desertion. In argument on so the members is improper, also it has now sentencing trial defense counsel stated that if r“ , been held that arguing the effect of the sen- the court did not adjudge a long period of DA Pam 27-501.52 f-? 9 confinement, the “effect on command” would the questions mentioned might well have led be “negligible”.47 Trial counsel responded that to further inquiry into the substantive law, or such a sentence would affect the command. different argument, or both in the cases cited. Specifically he advised that in adjudging a At the least such familiarity leads to fairer sentence the members were not only “. . . pun- blows in the final argument of trial counsel ishing the man, but . . also affecting members and consequently more intelligent argument. within the command,” and that this general deterrence aspect should be considered.& The Notes Court did not comment on the ultimate issue of whether reference to the general deter- 1. ABA STANDARDS RELATING TO THE PROSECUTION AND rence aspect is proper, but simply reasoned THE DEFENSE FUNCTION 1 (Approved Draft 1971) [hereinafter cited as STANDARDS]. that viewing the arguments as a whole, trial counsel’s comment was not prejudicial, and 2. Id., General Introduction, at 11. that defense counsel had “opened the dooi’ 3. Id. at 9. with his argument.“ 4. United States v. Shamberger, 24 C.M.A. 203,51 C.M.R. In light of Clause (d), Section 5.8, it would 448 (1976). United States v. Nelson, 24 C.M.A. 49, 51 seem logical that two wrongs do not make a C.M.R. 143 (1976). right, and that such argument would still not 6. United States v. Shamberger, 24 C.M.A. 203,51 C.M.R. be permissible. It should be noted, however, 448 (1976). that trial defense counsel is likewise con- 6. United States v. Nelson, 24 C.M.A. 49, 61 C.M.R. 143 strained in his argument.= (1976). 7. Standards, at 129. CONCLUSION iP, 8. Id. at 126. As stated in the introduction, the Standards 9. See United States v. Shamberger, 24 C.M.A. 203, 51 do not provide hard and fast rules to deter- C.M.R. 448 (1976); United States v. Nelson, 24 C.M.A. 49, mine when a case will be reversed. Yet a 51 C.M.R. 143 (1976). knowledge of them should cause a trial coun- 10. United States v. Nelson, 24 C.M.A. 49, 60, 51 C.M.R. sel to ask several questions in formulating his 143, 144 (1976). arguments: 11. Id. kt 51, 51 C.M.R. at 145. 1) What facts are part of the record? 12. 43 C.M.R. 817 (A.C.M.R. 1971). 2) For what purpose were those €acts al- 13. Id. at 820. lowed into evidence? 14. 22 C.M.A. 595,48 C.M.R. 219 (1974). 3) What are the reasonable inferences from 15. Id. at 596.48 C.M.R. at 220. those facts? 16. Id. at 597, 598, 48 C.M.R. at 221,222. 4) Am I personalizing my argument? 17. Griffin v. California, 380 US. 609 (1965). 5) Am I interjecting issues broader than 18. See Annot., 68 A.L.R. 1108, 1121 (1930). the guilt or innocence of the accused and 19. 23 C.M.A. 20,48 C.M.R. 312 (1974). an appropriate disposition of this particular case? 20. Id. at 22, 48 C.M.R. at 314. 21. Id. at 23,48 C.M.R. at 316. There is no substitute for a knowledge of the substantive law governing proper argu- 22. 60 B.M.R. 175 (A.C.M.R. 1975). ment. The results of all of the cases mentioned 23. Id. at 182. are certainly not dictated by the language of 24. Id. at 190. Sections 5.8 and 5.9. The Sections do not define r”\ “record”, “inflame”, and other terms. Still a 25. Id. at 184. familiarity with the Sections and the posing of 26. STANDARDS, at 126. DA Pam 27-50-52 r 10 27. See United States v. Shamberner, 24 C.M.A. 203, 61 41. Id. C.M.R. 448 (1976); United States vyNelson, 24 C.M.A. 49, 51 C.M.R. 143 (1976). 42. 24 C.M.A. 173,51 C.M.R. 392 (1976). 28. United States v. Nelson, 24 C.M.A. 49, 61, 51 C.M.R. 43. Id. at 1741 51 C-M-R. at 393. 143, 145 (1976). 44. Id. at 174, 175,51 C.M.R. at 393,394. 29. Id. at 52, 51 C.M.R. at 146. 45. United States v. Miller, 24 C.M.A. 181, 51 C.M.R. 400 30. STANDARDS,at 126. (1976).

31. 18 C.M.A. 21, 40 C.M.R. 3 (1969). 46.47 C.M.R. 574 (N.C.M.R. 1973). 32. Id. at 26,40 C.M.R. at 8. 47. Id. at 579. I 33. Id. 48. Id. 34. United States v. Shamberger, 24 C.M.A. 203, 51 49. Id. C.M.R. 448 (1976). 50. Clause(d) of Section 7.8, Standards Relating to the 36. Id. at 204, 51 C.M.R. at 449. Defense Function, states that “A lawyer should refrain from argument which would divert the jury from its 36. 43 C.M.R. 817 (A.C.M.R. 1971). duty to decide the case on the evidence by injecting issues broader than the guilt or innocence of the ac- 37. 43 C.M.R. at 820. cused under the controlling law or by making predic- 38. STANDARDS,at 126. tions of the consequences of the jury’s verdict,” thus being identical to the prosecution standard with the 39. 18 C.M.A. 21, 40 C.M.R. 3 (1969). exception of substitution of the phrase “A lawyer” for 40. Id. at 28,40 C.M.R. at 10. the phrase “The prosecutor.”

Contractual Recovery for Medical Care P Tort Branch, Litigation Division, OTJAG I 11 Staff Judge Advocates and their recovery no right to recover medical expenses from judge advocates can increase medical care third-party tortfeasors. Thereafter recovery recoveries by recognizing that a significant for medical costs virtually ceased until pas- alternative to reliance on the Medical Care sage of the Medical Care Recovery Act Recovery Act,’ presents substantial recovery (MCRA) in 1962. The MCRA creates a claim in opportunities in certain cases. This alternative favor of the United States in any case in is recovery based upon the contractual obliga- which the United States is authorized or re- tions contained in the provisions of existent quired by law to furnish care to a person who insurance policies. is injured or suffers a disease under circum- stances creating third party tort liability. Free medical care is furnished to active duty and retired servicemen and their depend- ents as required by law.2 Only in an excep- The clear language of the MCRA limits its applicability to third party tort liability cases. tional case is repayment for the reasonable cost of the care furnished required.3 However, The recent emergence of no-fault automobile a third party (e.g., tortfeasor or insurer) is insurance (which in varying degrees elimi- expected to honor a proper obligation to fur- nates the third party tortfeasor) has limited nish or pay for reasonable cost for such care. further the applicability of the MCRA. It is important, then, to consider medical care re- Prior to 1947, certain medical expenses in covery theories other than the MCRA in many tort cases were administratively recovered. In cases. The primary alternative source of re- United States v. Standard Oil Company of covery is the insurance policy purchased by CaZifomia,4 the Supreme Court held that ab- the person requiring treatment. Recovery is sent statutory authority the government had based not on tort liability, but rather con- - on DA Pam 27-50-52 f? 11 tractual obligations. It is possible to categorize well settled that the United States was an insurance contract recoveries by the policy insured under this language since GEICO was type (e.g., npfault insurance and personal in- using the same policy language despite pre- jury protection (PIP), uninsured motorists cov- vious interpretations favorable to the govern- erage, and medical care provisions (Med-Pay)). ment. Following Myers, GEICO continued to However, these contractual recoveries all use the same policy language and it was once have the common denominator of being ac- again interpreted favorable to the govern- tions under an insurance policy covering the ment.12 Similar provisions in both a Commer- government beneficiary of the medical treatr cial Union Insurance Group and United States ment.5 The recoveries are reliant on these Automobile Association policy (uninsured me policies giving rise to a right of recovery in the torist provision) were held to include the gov- United States, usually as a third-party benefi- ernment as a third party benefi~iary.’~How- ciary. ever, an Allstate Insurance Company policy defining insured’s as only the named insured,’ I1 his relatives and residents of his household, and other persons while in or upon, entering Insurance contract recoveries are predi- into or alighting from the named vehicle was held not to include the United States.14 4 cated primarily on state contract and insur- ance law. Therefore, a thorough knowledge Contractual recovery is necessarily limited and understanding of the appropriate state to benefits payable under a particular policy. law is essential prior to beginning recovery While policies usually speak of expenses in- \ efforts.6 curred “to and for” or “by or on behalf of’ a In the initial insurance company challenges named insured (or employ similar language), p, to government contract recovery, the courts the medical care provided by the government sometimes struggled with the problem of the is either furnished directly to the insured or absence of a viable actioyagainst a third paid for by the government. Expenses in- party tortfeasor (as is required by the MCRA)’ curred for care furnished in private hospitals An increasing number of courts applying state to the policyholder under circumstances contract and insurance law have held that the where he would be liable for the bill if the government is a third party beneficiary under government did not pay (e.g., Champus situa- the contract of insurance, entitled to recover tions) are quite obviously medical expenses without regard to the MCRA.e Several courts incurred within the meaning of the contract. have emphasized that the government is not a Medical care furnished directly to the policy- volunteer in furnishing medical care.S Not- holder by the government arguably is not an withstanding these favorable court decisions, incurred medical expense under the policy language. However, courts have rather uni- I in order to recover, the government must qualify as a third-party beneficiary under the formly held that these medical expenses are 8 insurance policy. Policy interpretation, then, is still “incurred” under policy language not- crucial. withstanding the fact that the recipient did not pay for the care.16 A typical automobile policy defines the scope of coverage by referring to a named insured or Insurance companies (primarily those issu- insureds, people physically present in the ve- ing a substantial number of policies to service hicle with the consent of the named insured, members) have challenged the government’s and also “any person or organization responsi- third-party beneficiary rights under various ble for use” of the automobile. The United policies by raising the following significant States has consistently been found to be an legal issues: (1) the United States is not a additional insured or third party beneficiary person or resident within the meaning of the under the latter clause.10 For example, in statutes or policies, or is not an insured within 6- 6- United States v. Myers,11 the court said it was the meaning of the policy; (2) the insured DA Pam 2’7-50-52 7 12 “incurred” no charges bedause the govern- ance company prior to -any judgment against ment furnished treatment or paid the bills at the tortfeasor himself (the victim’s insurance no cost to the claimant; (3) the government company was not involved). In dismissing the was a volunteer not entitled to third party complaint, the court held that the MCRA beneficiary status; (4) exclusionary language permits tort liability actions only, and the in the policy bars recovery by the government; insurance company’s obligations were contrac- and (5) the Medical Care Recovery Act limits tual. Simply stated, in order to recover medi- recoveries to tort liability cases. cal costs under the MCRA from an insured The government has prevailed in many deci- tortfeasor, a tort suit must be brought against sions addressing the issues raised by insur- the tortfeasor himself (even though, as a prac- ance companies. For example in United States tical matter, the source of recovery is the v. Whitcomb,’’ the court rejected the argu- insurance company via the issued policy).m On ment that the United States was barred from the other hand, to recover medical costs from recovery because it did not meet the residency the injured party’s insurance company, a con- tract action must be brought against the in- requirements under the Maryland Unsatisfied Claim and Judgment Fund Law. It was rather surance company. summarily concluded that the United States Although most contract cases do notlinvolve I was a resident of every state. Similarly, in assessing tort liability questions, a thorough United States v. Commercial Union insurance investigative file must be developed. The file Group,ls the United was found be States to a should include, at a minimum, military and I “person” within a policy which provided that civilian police reports, copies of the insurance ‘‘. . . any person with respect to damages is policies, statements of witnesses, full details entitled to recover for care . .. because of regarding residency, driver‘s licenses, vehicle - ~ bodily injury . . .” registrations, photographs, hospital records Insurance companies frequently contend and evidence of reasonable medical ex- that a policy exclusion related to “Workers’ penses.l6 Compensation or similar benefits” excludes The contractual obligations set forth in in- the United States from recovering medical. surance policies provide a sometimes over- costs. The courts have rejected this conten- looked opportunity for effecting medical care tion.lB However, it is possible to draft policy recoveries. Thorough factual development and provisions which specifically exclude the initimate knowledge of the applicable state United States30 The validity of such an exclu- contract and insurance law will result in in- sion may depend on whether the insured i$ creased recoveries by Staff Judge Advocates informed of the exclusionary provisions21 and and their recovery judge advocates.2’ granted some reduction in the premium. Of course, the courts should not presume or cre- Notes ‘I ate an exclusion in the absen’ce of specific exclusionary language. 22 The government 1.42 U.S.C. 10 2661-2663 (1962). may challenge the validity of exclusionary 2. 10 U.S.C. 1!3 1074, 1076 (1966), amending 10 U.S.C. 81 policies by administratively presenting the 1074, 1076 (1968). matter to state insurance commissioners. 3. Army Reg. No. 27-40, Legal Servicea Litigation, para 6-1442) (16 June 1973). I11 4.332 U.S. 301 (1947). The importance of understanding the differ- 6. Med-Pay coverage is offered by the recipient’s own ences between MCRA-tort and contract-insur- insurer; responsibility to pay is without regard to liabil- ity and amounts recoverable are limited by the policy. ance recovery actions is well illustrated by Uninsured motorist coverage is also contractual but United States v. Farm Bureau Insurance C0.24 liability arises out of actions of a third party tortfeasor ~ The government sued the tortfeusoh insur- (not a party to the contract) who causes damage to the DA Pam 27-50-52 1 13 insured; the right to recovery is again under the in- 10. Government Employees Ins. Co. v. United States, sured’s own policy of insurance and is limited by its 349 F.2d 83,84 (10th Cir. 19651, Celt denied, 382 U.S. 1026, terms. Nefault, sometimes called personel injury pro- reh. denied, 383 U.S. 939 (1966). tection (PIP),varies in its terms and limitations depend- ing on the legislative plan, Commonly it wta a monetary 11. United States v. Myers, 363 F.2d 615, 618 (5th Cir. limit below which claims are processed under the policy 1966). of the insured. Pain and suffering, as an element of 12. United States v. Government Employees Ins. Co., damage, is commonTy excluded with recovery being 440 F.2d 1338, 1339 (6th Cir. 1971). limited to actual medical expenires, loss of wages and other out of pocket expenses. Claimants are frequently 13. United States v. United Servs. Auto. Ash, 312 F. restricted from recovery for monies paid to them from Supp. 1314, 1316 (D. Conn. 1970); United States v. Com- certain sources, such as Workers Compensation plans. mercial Union Ins. Group, 294 F. Supp. 768, 771 (S.D. Above certain limits, the prevailing tort law applies. All N.Y. 1969). three policy types generally include a provision to the 14. United States v. Allstate Ins. Co., 306 F. Supp. 1214, effect that payment may be made directly to those third 1215 (N.D. Fla. 1969). parties furnishing treatment to the assured and the benefits payable to him offset by the amount of pay- 16. American Indem. Co. v. Olesijuk, 363 S.W.2d 71, 73 ments to third parties. Another area affected, Worker (Tex. Ct. Civ. App. 1962). Compensation, was treated in Litigation Division, OTJAG, Medical Care Reeovem from Workmen’s Com- 16. United States v. Automobile Club Ins. Co., 622 F.2d pqneatiolz, THE ARMY LAWYER,Nov. 1971, at 1% Liti- 1, 4 (6th cir. 1976); United States v. California State Auto. Ass’n, 386 F. Supp. 669, 671 (E.D. Cal. 1974); 1 gation Division, OTJAG, Medical Care Rccovely from Workmen’s Compensation Continuid, THE ARMY LAW- United States v. Government Employees Ins. Co., 330 F. YER. Dec. 1971, at 14; Litigation Diviston, OTJAG, Medi- Supp. 1097, 1099 (E.D. N.C. 1971); United States v. cal Care Recovery Under Workmen’s Compenaatiun- United &rvs. Auto. Ass’n, 312 F. Supp. 1314, 1316 (D. Colzel&on, THEARMY LAWYER,Jan. 1912. at 14. Conn. 1970); United Servs. Auto. Ass’n v. Holland, 283 So. 2d 381 (Fla. Dist. Ct. App. 1973); Smith v. United 6. Although the usual rule is that state statute of Servs. Auto. Ash, 52 Wisc. 2d 672,19 N.W. 2d 873, 874- limitations are not binding on the ‘United States, it has 76 (1972). But see Lefebvre v. Government’ Employees been determined that a one-year California statute wcs Ins. Co., 110 N.H. 23, 269 A.2d 133 (1969). a notable a prerequisite to recovery and that failure to file within exception to this line of reasoning, holding that ex- this one-year period barred recovery by the United penses are “incurred” only when the insured becomes States. United States v. Hartford Accident & Indem. legally liable to pay for them. Co., 320 F. Supp. 648 (E.D. Cal. 1970), affd, 460 F.2d 17 17. United States v. Whitcomb, 314 F.2d 415 (4th Cir. (9th Cir.), cert. denied, 409 U.S. 979 (1972). 1963). 7. Government Employees Ins. v. United ptates, 376 Co. 1s. United States v. Commercial Union Ins! Group, 294 F.2d 836,836437 (4th Cir. 1967); United States v. United F. Supp. 768, 770 (S.D. N.Y. 1969); See also Government Servs. Auto. Ass’n, 312 F. Supp. 1314, 1316 (D. Conn. Employees Ins. Co. v. United States, 376 F.2d 836 (4th 1970). Cir. 1967); Government Employees Ins. Co. v. United 8. United .States v. Automobile Club Ins. Co., 622 F.2d 1, States, 349 F.2d 83 (10th Cir. 1965). These are typical of 3 (6th Cir. 1976); United States v. Government Employ- a number of cases determining that the government is ees Ins. Co., 461 F.2d 68, 69-60 (4th Cir. 1972); United an “insured” because it qualifies as a “person” and the States v. State Farm Xut. Auto. Ins. Co., 466 F.2d 789, policy uses the word person in describing who is an 790, 792 (10th Cir. 1972); United States v. Government insured. The implication of these latter cases is that the $ Employees Ins. Co.. 440 F.2d 1338, 1339 (5th Cir. 1971); status of the government as a person is obvious. United States v. United Auto. Ass’n, 431 F.2d 735, Servs. 19. United States v. Automobile Club Ins. 522 F.2d 737 (6th Cir. 1970), cert. denied, 400 U.S. 991. reh. denied, Co., 1, 4 (6th Cir. 1976); United States v. Government Em- 401 U.S. 984 (1971); United States California State v. ployees Ins. Co., 440 F.2d 1338, 1339 (5th Cir. 1971); Auto. Ass’n, 386 F. Supp. 669, 672 (E.D. Cal. 1974); United States v. United Servs. Auto. Ass’n, 312 F. Supp. United States v. Government Employees Ins. 330 F. Co., 1314, 1316 (D. Conn. 1970); United States v. Commercial Supp. 1097, 1099 (E.D. N.C. 1971). See also, Transna- Union Ins. Group, 294 F. Supp. 768,771 (S.D.N.Y. 1969); tional Ins. Co. v. Simmons, 19 Ariz. 364,607 693,696 P.2d American Indem. v. Olesijuk, 353 2d 71,73 (Tex. (Ct. App. 1973); Declaratory Ruling No. 7564, Insurance Co. S.W. Ct. Civ. App. 1962). Comm’n of the State of Oregon. 15 May 1975. The Arizona case, although somewhat complicated by arbi- 20. Government Employees Ins. CO. v. United States, tration aspects, appears to be in accord with the above 400 F.2d 172, 176 (10th Cir. 1968). I cases. 21. Id. 9. United States v. Government Employess Ins. Co, 461 F.2d 58, 60 (4th Cir. 1972); Smith v. United Serv. Auto. 22. American Indem. Co. v. Olesijuk, 353 S.W. 2d 71, 73 Ass’n, 62 Wis. 2d 672, 190 N.W. 2d 873,874-76 (1972). (Tex. Ct. Civ. App. 1962).

I DA Pam 27-50-52 - 14

23. United States V. Automobile Club Ins. Co., 622 F.2d 25. If the government can avail itself of a local direct 1, 3 (5th Cir. 1975); United States v. State Farm Mut. action statute, this statement must be modified accord- Auto. Ins. Co., 465 F.2d 789, 791 (10th Qr. 1972); United ingly. States v. United Servs. Auto. Ass’n, 431 F.2d 736, 737 (6th Cir. 1970); United States v. California State Auto. 26. The possibility of a tort action against a third party Ass’n, 386 F. Supp. 669, 672 (E.D. Cal. 1974). See also under the MCRA cannot reasonably be eliminated, or a United States v. Nationwide Mut. Ins. Co., 449 F.2d contractual basis of liability established, without these 1356, 135869 (9th Cir. 1974) (remanded for further fac- documents and statements. Further, it may be advanta- tual findings); United States v. Government Employees geous to simultaneously assert recovery claims based Ins. Co., 461 F.2d 68,59 (4th Cir. 1972). These cases have upon the insured’s policy and the tort liability of the concluded that words used in connection with provisions negligent third-party. for reduced payment, such as “to or for,” “by or on 27. For an analysis of the application of state law in behalf of,” establish the government as a beneficiary. these 88989, see, United States v. Nationwide Mut. Ins. 24. United States v. Farm Bureau Ins. Co., 527 F.2d (8th Co., 499 F.2d 1355, 136-9 (9th Cir. 1974). Cir. 1976).

Reorganization of JAGSO Detachments Reserve Maim, TJAGSA

Since 1959, when the Judge Advocate Gen- porates, in the organization structure and eral’s Service Organization (JAGSO) Detach- mission, the changes in military law. ments were first organized, there have been many changes in the administration and scope Military Law Centers were organized to provide a capability for military justice, as - of military law and in the organization of the active Army. Consequently, the organization well as, other areas of military law. They for admirlistering military law has also represent a consolidation of presently frag- changed. Lessons learned from past mobiliza- mented capabilities for legal assistance, tions showed quite clearly that a reorganiza- claims, administrative and international law tion of the JAGSO detachments was necessary into a large single unit for the purpose of in order to adjust to these changes and to providing comprehensive legal services. The meet partial or full mobilization needs. Military Law Centers also form the base orga- nization for attachment of additional JAGSO The reorganization was initiated at the re- teams whenever there is a substantial in- quest of The Judge Advocate General and is crease in workioad or as the force requires. based on staff studies conducted by members of The Judge Advocate General’s School and The Military Law Centers have the capabili- reserve component Judge Advocate officers ties to provide military legal services to nondi- from First, Fifth and Sixth CONUS Armies. visional troops on an area basis, including c Comments and suggestions from mobilization trial and review of general, special, and sum- designee general officers and from active mary courts-martial; review of nonjudicial Army Judge Advocates directly involved in punishment; legal advice on claims and inter- the reserve program were also incorporated. national law; and legal assistance. They arg responsible for the command, control, adminis- The objective was to identify a type of orga- tration, and operational supervision of as- nization that would permit flexibility in as- signed or attached judge advocate functional signment, and, at the same time, meet imme- teams. diate mobilization requirements, in accordance with Total Force planning. Thus, JAG detachments organized as cellular the new JAGSO organization (TOE 27-600H) units of varying sizes with specialized func- reflects the type of units which will support tions and capabilities to augment organic staff n the active hyupon mobilization and incor- judge advocate sections or to be organized as f”.\ DA Pam 27-50-52 I 15 a separate judge advocate unit to support a (7) Procurement law team (JB), property law. force are organized pursuant to TOE/MTOE To act for the commander on legal problems 27-600 and have the following capabilities: concerning the disposal, sale, lease, and loan (1) Claims team (FA). To perform all investi- of property, and use thereof by military or gative service and preparation for, and adjudi- civil authorities; interpret and promulgate cation of all types of claims for or against the regulations appertaining thereto; review in- United States arising in the area to which dustrial facilities utilized in government- assigned. owned, contractor-operated contracts and ren- der advice as to all aspects of the administra- (2) International Law team (GA). To perform tion of these contracts. all judge advocate duties related to interna- tional law, including investigation and report- (8) Procurement law team (JC), frauds. To ing of violations of the law of war, and prepa- take appropriate action on matters involving ration of trials resulting from such suspected criminal conduct or fraudulent ac- investigation. tivity on the part of military personnel; civil- ian employees of the Department of the Army; (3) Court-martial trial team (HA). To per- or by private companies, organizations, or in- form all the duties of trial counsel in court- dividuals in connection with procurement ac- martial cases. To perform legal assistance and tivities. claims duties as required. (A) Court-martial &feme team (HB). To per- (9) Procurement law team (JD), labor rela- form all duties of defense counsel in court- tions. To act for the commander to prevent martial cases. To perform legal assistance and labor stoppages which might adversely affect claims duties as required. military procurement; consider noncompliance with labor laws by government contractors, (5) Legal sewice team (IA). To perform ad- and maintain liaison with other government ministrative law and legal assistance func- agencies in this specialty. tions and to render legal advice and assistance in all areas of the’law not encompassed by (10) Procurement law team (JE), fiscal law. military justice, international law, claims, and To take appropriate action on all matters procurement law. pertaining to taxes imposed by governmental taxing authorities against Army contracts or (6)Procurement law team (JA), contract law, Army instrumentalities; government financ- To review contracts and related documents for ing by advance payments and guaranteed legal sufficiency and conformance with regula- loans, import-export duties, and excise taxes. tions and policy. To assist contracting officers in the negotiation of contracts and contract The final effect of the reorganization left clauses. To interpret laws and regulations per- 106 JAG Detachments converted, 93 detach- taining to contracts, promulgate necessary ments inactivated and 11 detachments reorga- regulations, maintain liaison with other gov- nized and relocated. The effective conversion ernmental agencies, and furnish legal advice date was 8 November 1976 while the effective as to all phases of the administration of con- date for detachments being relocated was 28 tracts. February 1977.

American Bar Association Supports Pre-Mobilization Legal Counseling Reserve qffairs, TJAGSA

At the ‘American Bar Association’s mid-win- mously passed a resolution in support of the P ter meeting, held 1&15 Februa~in Seattle, recently developed Pre-mobilization Legal Washington, the House of Delegates unani- Counseling Program. DA Pam 27-50-52 - 16 The following resolution was adopted upon might be in order at the time of mobiliza- recommendation of the Standing Committee tion; and on Legal Assistance for Military Personnel, Be It Further Resolved, That the Amer- Captain' William R. Robie, JAGC, USAR, ican Bar Association encourages all state Chairman. and local bar associations to support and play meaningful role in these programs. Be It Resolved, That, in view of the fact a that under modern circumstances the re- Brigadier General Edward D. Clapp, JAW, sponse of the Reserve Components of the USAR, the Assistant judge Advocate General Armed Forces of the United States to an for Special Assignments (MOB DES), and order to active duty in time of national Lieutenant Colonel James N. McCune, Direc- emergency,may not permit them time to tor, Reserve Affairs, TJAGSA, appeared and place their legal affairs in order, the gave a presentation on the program, to the American Bar Association supports the Military Lawyers Committee' of the Gendral concept of Armed Forces programs pro- Practice Section. viding legal counseling, assistance, or services to members of the Reserve Com- A letter of instruction op the implementa- ponents prior to actual mobilization in tion of the program will be forthcoming from order that their personal legal affairs U. S. Army FORSCOM, in the near future. 1

I ; .I Lieutenant Colonel Sbarboro Elected Illinois Circuit Judge

, .. ,- Lieutenant Colonel Gerald L. Sbarboro, lic University and holds a bctorate of Law JAGC, IL ARNG, was elected on 2 November degree from Harvard Law School. In addition 1976, as Judge of the Circuit Court of Cook to his judicial duties Judge Sbarboro is also on County, Chicago. In his category of 30 cadi- the faculty of De Paul University. He has dates seeking new judgeships in Cook County, served as a member of Chicago Board of Lieutenant Colonel Sbarboro was the leading Education; President of the Catholic Lawyers vote-getter. Guild of Chicago; President of the Justinian Society of Lawyers of Illinois and as a member Judge Sbarboro, formerly an attorney in of the Board of Governors of the Illinois State private practice, attended law school at Gatho- Bar Association.

Third United Nations Conference on the Law df the &a I* International Affairs Division, OTJAG

The Fifth Session of the Third United Na- seas, fishing and conservation ' of living re- tions Conference on the Law of the Sea met in sources, and the continental shelf. Agreement New York City from 2 August to 17 September has not yet been reached on the breadth of ' 1976. Consensus was reached on a number of the territorial sea and fishing limits. issues before the Conference, but some impor- The present conference has now had sub- tant issues remain unresolved. The Confer- ence is scheduled to reconvene in New York stantive sessions in Caracas, Venezuela in 1974, in Geneva, Switzerland in 1976 and in City in May of 1977. New York in 1976. These three SeSSi6nS have The negotiations, which began in 1958, have produced a Revised Single Negotiating Text produced legal instruments dealing with the (RSNT) which represents a broad consensus - territorial sea and contiguous zone, the high on a number of issues: a 12 mile territorial P DA Pam 27-50-52 17 sea, passage through straits, establishment of tance-the importance of their environ- a 200 mile coastal state resource zone, protec- mental integrity to our quality of life; tion of navigation rights and marine pollution. their vast potential as a source of min- erals, energy and protein; and the essen- A number of unresolved important issues tiality of their freedom of use for the remain before the Conference. The major out- security and well-being of all nations. standing issues include agreement upon: a mile there has been progess te syste,m of exploitation for deep seabed re- ward the negotiation of a satisfactory sources, ths legal status of the 200-mile treaty, many important issues Un- coastal state resources zone, rights and duties resolved. At stake are competing national of the coastal states and af other states in the interests in freedom of navigation and use zone, right of access of land-locked states to of the seas, in Ocean science, and in envi- and from the sea and freedom of transit, ronmental protection. The Secretary of payment and contribution in respect to the State and I consider the Law of the Sea exploitation of the seabed beyond 200 miles, negotiations to be a very high priority. My scientific research in the coastal state re- nomination of Elliot Richardson, with his source zone and settlement of disputes proce- extensive experience and abilities, testi- dures. fies to the importance I personally attach On 25 January 1977, Resident Carter nomi- to achieving success in these negotiations. nated Elliot L. Richardson to serve as Ambas- Elliot Richardson brings to this challenge sador at and special ~~~~~~~~~~~i~~to a unique combination of legal and interna- the Resident for the Law of The Sea Confer- tional experience-including direct experi- ence to be convened in M~~ 1977 in N~~ york ence with the complex issues involved in City. In announcing Ambassador Richardson’s Law Of the Sea I am ‘On‘- appointment Resident Carter hade the fol- dent that the United States will be most lowing remarks. ably represented in these negotiations- and hopeful that, with the good will of The oceans comprise over twethirds of other nations, a treaty may be success- the earth’s surface. But we have been fully negotiated to serve the interests of slow to appreciate their increasing impor- all mankind.

JAG School Notes

1. Sixth Kenneth J. Hodson Lecture. Dean of Duke University. His title of Dean derives A. Kenneth Pye delivered “The Role of De- from his terms as Dean of the Duke Univer- fense Counsel in the Avoidance of Justice,” the sity School of Law (1968-1970 and 1973-1976) sixth Kenneth J. Hodson Lecture in Criminal and Associate Dean of the Georgetown Law Law, on 3 March 1977. The lecture series is Center (1961-1966). Dean Pye was a member named in honor of Major General Kenneth J. of the commission to study West Point in 1976 Hodson, USA (Ret.). General Hodson served as and is currently President of the Association The Judge Advocate General, US. Army, from of American Law Schools. 1967 until 1971 and then as the first Chief Judge of the US. Army Judiciary from 1971 In addition to members of the TJAGSA until 1973. The Hodson Chair of Criminal Law staff, faculty atld Advanced Class, the Hodson is currently held by Lieutenant Colonel Den- Lecture was delivered to a large number of nis R. Hunt, Chief, Criminal Law Division, visitors. Among the guests were former Dean TJAGSA. John Ritchie I11 and Dean Emerson G. Spies A. Kenneth fie is currently the Chancellor of the University of Virginia School of Law. I DA Pam 27-50-52 7 18 Generql Hodson and his wife made a special lecture on budget formation and fund distribu- trip to Charlottesville to hear the lecture. tion delivered by Major Steven J. Marques, Institute of Administration, FOG Benjamin 2. Carter Administration Taps TJAGSA For Harrison. Talent. Lieutenant Colonel Daniel J. Meador, a mobilization designee of TJAGSA’s Adminis- trative and Civil Law Division, was sworn in 4. Major General Williams Meets With Ad- on 11 March 1977 as Assistant Attorney Gen- vanced Class. On 17-18 March 1977 Major Supreme Court Justice Louis Pow- F. General Lawrence H. Williams, The Assistant ell, Jr. As reported in the March issue of The Judge Advocate General, US. Army, visited Army Lawyer, Daniel J. Meador will head the the School. General Williams disucssed cur- newly created Office for Improvements in the rent developments in the JAG Corps with the Administration of Justice. Advanced Class and the TJAGSA staff and faculty. 3. Fourth Fiscal Law Course Success. TJAGSA’s Fourth Fiscal Law Course was a Accompanying General Williams and his success. The course featured a three hour wife was Mrs. Creighton W. Abrams.

CLE News

1. 2d Annual Homer Ferguson Conference May 9-13: 4th Management for Military on Appellate Advocacy. On May 19 and 20, Lawyers Course (5F-F51). ,- 1977, the Court Of in u.s. May s202d Military Justice 1 (5F- conjunction with the Military Law Institute, aurse F30). again will sponsor a two-day seminar primar- ily for appellate lawyers and judges at the May 16-20: 3d Criminal Trial Advocacy Georgetown University Law Center in Wash- Course (5F-F32).

To assure adequate seating, those wishing to May 31-June 3: 6th Environmental Law attend the conference should forward their Course ‘(5F-F27). name, current position, and business address together with a check made payable to the June 6-10: Military Law, Instructors Semi- nar.* Military Law Institute in the amount of $10 m later than May 1,1977. Registrations should June 6-10: 4th Law of War Instructors be mailed to the Court Executive, US. Court Course (5F-F42). of Military Appeals, Washington, D.C. 20442. June 13-17: 33d Senior Officer Legal Orien-

tation Course (SF-Fl). 4

2. TJAGSA CLE Courses. Information on the June 2aJuly 1: USA Reserve School BOAC prerequisites and content of TJAGSA courses and CGSC (Criminal Law, Phase I1 Resident/ is Drinted in CLE News, March issue of The Nonresident Instruction) (5-27423). AA~Lawyer. July 11-22: 12th Civil Law Course (5F-F21). May 2-4; 1st Negotiations Course (5F-F14). July 11-29: 16th Military Judge Course (5F-

May 2-6: 7th Staff Judge Advocate Orienta- F33). 7 tion Course (Selection by The Judge Advocate July 25-August 6: 71st Procurement Attor- General) (5F-F52). neys’ Course (5F-F10). DA Pam 27-50-52 19 August 1-5: 34th Senior Officer Legal Orien- American Bar Association, 1155 E. 60th St., Chicago IL tation Course (5F-Fl). 60637. Phone: 312-9473950. August 1-12: Advanced Phase I1 11-13: Univ. of Baltimore School of Business-Federal NCO Publications, Small Purchasing [Small Purchase (71D50). Procurement], Sheraton Natl., Arlington, VA. Contact: August 8-12: 7th Law Office Management Seminar Division, Federal Publications Inc., 1725 K St. NW,Washington, DC 20006. Phone: 202337-7000. Cost: Course (7A-713A). $425. August Mctober 7: 84th Judge Advocate 12-13: Pepperdine Univ. School of Law-Federal Pub- Officer Basic Course (5-27420). lications, Terminations of Government Contracts, Sher- aton National, Arlington, VA. Contact: Seminar Divi- August 22-May 1978: 26th Judge Advocate sion, Federal Publications Inc., 1725 K St. NW, Officer Advanced Course (6-27422). Washington, DC 20006. Phone: 202-337-7000. Cost: $350. August 29-September 2: 16th Federal Labor 12-14: American College of Legal Medicine, 17th An- Relations Course (5F-F22). nual Conference, Camelback Inn, Scottsdale, AZ. Con- tact: Executive Secretary, American College of Legal September 12-16 35th Senior Officer Legal Medicine, 1340 N. Astor St., Suite 2608, Chicago, IL Orientation Course (5F-Fl). 60610. 13-14: ICLE, 2!th Annual Advocacy Institute [lec- September 19-30: 72d Procurement Attor- tures and trial demonstrations-the 1977 theme is “Per- neys’ Course (5F-F10). suasion: The Key to Success in Trial!”], Univ. of Michi- gan, Ann Arbor, MI. Contact: ICLE, Hutchins Hall, Ann *Tentative Arbor, MI 48109. Phone: 313-764-0633. Cost: $90. 1618: George Washington Univ.-Federal Publications, 3. Civilian Sponsored CLE Courses. Equal Employment Claims & Litigation, Washington, DC. Contact: Seminar Division, Federal Publications Inc., 1725 K St. NW, Washington, DC 20006. Phone: 202- May 337-7000. Cost: $425. 24: Univ. of Santa Clara School of Law-Federal Pub- 16-18: Federal Publications, Procurement for Law- lications, Government Contract Costs, Sheraton Na- yers, San Francisco, CA. Contact: Seminar Division, tional, Arlington, VA. Contact: Seminar Division, Fed- Federal Publications Inc., 1725 K St. NW, Washington, eral Publications Inc., 1725 K St. NW, Washington, DC DC 20006. Phone: 202-337-7000. Cost: $425. 20006. Phone: 202-337-7000. Cost: $425. 17-20: American Law Institute, Annual Meeting, The 3-5: Federal Publications, Practical Labor Law, Chi- Mayflower, Washington, DC. cago, IL. Contact: Seminar Division, Federal Publica- tions Inc., 1725 K St. NW, Washington, DC 20006. Phone: 17-20: Federal Publications, Fundamentals of Govern- 202-337-7000. Cost: $425. ment Contracts, San Francisco, CA. Contact: Seminar Division, Federal Publications Inc., 1725 K $t. NW, 6-7: ALI-ABA, Construction Contracting in the Mid- Washington, DC 20006. Phone: 202-337-7000. Cost: $500. dle East: Problems and Solutions, San Francisco, CA. Contact: Director, Courses of Study, ALI-ABA Commit- 18-20: U.S. Court of Military Appeals-Military Law tee on Continuing Professional Education, 4025 Chest- Institute, 2d Annual Homer Ferguson Conference on nut St., Philadelphia, PA 19104. Phone: 215-387-3000. Appellate Advocacy [primarily for appellate lawyers and judges], Georgetown Univ. Law Center, Washing- fl-11: Federal Publications, Changes in Government ton, DC. Contact: Court Executive, U.S. Court of Mili- Contracts, Washington, DC. Contact: Seminar Division, tary Appeals, Washington, DC 20442. Cost: $10. Federal Publications Inc., 1725 K St. NW, Washington, DC 20006. Phone: 202-337-7000. Cost: $425. 19-20 FBA, Equal Employment Conference, Hyatt Regency Washington, Washington, DC. Contact: FBA, 10-12: LEI, Seminar for Attorney-Managers, Wash- 1816 H St. NW, Washington, DC 20006. Phone: 202438- ington, DC. Contact: Legal Education Institute, ATTN: 0252. Training Operations, BT, US. Civil Service Commission, 1900 E St. NW, Washington, DC 20416. Phone: 202-254- 23-25: George Washington Univ., Patents and Techni- 3483. Cost: $250. cal Data [procurement aspects of patents and technical data in government contracting], George Washington 11-12: American Bar Association Section of Public Univ., Washington, DC. Contact: Government Contracts Contract Law, Public Contract Law, Los Angeles, CA. Program, George Washington Univ., 2000 H St. NW, Contact: American Bar Association National Institutes, Washington, DC 20052. Phone: 2024764815. Cost: $400.

DA Pam 27-50-52 21 finding that in fact there was no adverse Representative because his decision to dis- action because there was no reduction in rank. charge the employee did not involve “legisla- The court cited the Seventh Circuit for the tive tasks”. The court pointed out that be- observation that the adverse action regula- cause the Representative was not tions do not state “. .. how and by whom it is to “legislating” he had no absolute immunity, be decided whether a given action constitutes but like other government officials he had the one of the ‘adverse actions’ to which the regu- right to assert the defense of qualified immu- lations apply.” The court went on to say that nity that was discussed in Wood v. Stickland, I great weight would be given to agency inter- 420 U.S. 308 (1975) and Scheuer v. Rhodes, 416 r“ pretation of their own regulations and in this U.S. 232 (1974). The Scheuer case stated that case the court was “unable to say that the qualified immunity is available “in varying governing regulations were dishonored. . . .” scope”, “. . .the variation being dependent upon the scope of discretion and responsibili- 2. (Federal Labor Relations, General) The ties of the office and all the circumstances as Army And Air Force Reserve Civilian Tech- they reasonably appeared at the time of the nician Programs May Require That Techni- action on which liability is sought to be cians Maintain Membership In The Re- based.” The case was reversed and remanded serves. American Federation of Gov’t Emp. v. for trial on the merits. Hoffman, 543 F.2d 930 (D.C. Cir. 1976). The United States Court of Appeals, District of 4. (Federal Labor Relations, Employee Disci- Columbia Circuit, has recently upheld the le- pline) Procedural Error In The Employee gality of the Army and Air Force Reserve Disciplinary Process Does Not Always Cause civilian technician programs’ requirement Reversal Of The Action. Pascal v. United /- /- that civilian personnel in the programs must States, 543 F.2d 1284 (Ct. C1. 1976). A question maintain membership in the Army and Air often arises in dealing with civilian employee Force Reserves. The court appointed out that, discipline cases about the effect of procedural “Since the task of civilian support personnel errors committed by the government during obviously is to promote the effectiveness of the disciplinary action process. This issue was reserve operations, a condition of employment recently addressed in a Court of Claims case which promises to enhance the reserves abil- dealing with the removal of an Internal Reve- ity to fulfill their combat mission is not unrea- nue Service employee for falsifying travel, sonable.” work, and per diem records. The court found that findings reached by the CSC Board of 3. (Claims, General) A United States Con- Appeals and Review on the falsifications were gressmember Has Only A Qualified Immu- fully supported, and then went on to discuss nity From Suit Based On His Discharge Of A the employee’s attack on the procedure the Member Of His Office Staff. Davis v. Pass- agency followed in effecting the removal. Em- man, 544 F.2d 865 (5th Cir. 1977). The Fifth ployee complaints included a protest that the Circuit in a recent opinion added another Civil Service examiner considered hearsay evi- 5 category of federal officials-a member of the dence and a charge that the penalty of re- U.S. House of Representatives-who have moval was too severe under the facts of the t only a qualified immunity from suit for acts case. After upholding the use of hearsay and done within the scope of their employment. In disagreeing with the employee as to the sever- this case a female staff member of a Congress- ity of the punishment, the court discussed the member alleged that she was discharged be- need to consider the effect of any procedural cause of her sex. The court held that the fifth error alleged. The court pointed out that, amendment afforded her a damage remedy “Like many other claimants, plaintiff makes against the Representative and the speech or the mistake of believing that any procedural debate clause of article I, section 6, of the US. lapse, no matter how unrelated to the end- Constitution did not afford protection to the result, endows him automatically with a right DA Pam 27-50-52 22 to judgment and back-pay. We do not take District of California, the United States Dis- that position, but look to see not only whether trict Court held that postal officials were not an error occurred, but whether it substan- individually liable for the late delivery and tially affected plaintiffs rights in the removal nondelivery of the plaintiffs mail. Citing process.” Labor counselors should be aware Scheuer v. Rhodes, 416 U.S. 232 (1974), for the that procedural error does not of itself require proposition that any immunity from suit reversal of disciplinary actions taken. would be only a qualified immunity, the court nevertheless found that the protection was 5. (Claims, General) Look To State Statutes sufficient under the facts of the case. The Of Limitations For Constitution Tort Actions court in denying liability held that, “Each Filed Against Individual Federal Officials. defendant herein was clearly acting within Regan v. Sullivan, 417 F. Supp. 399 C.E.D.N.Y. the scope of his duties at all times, and there 1976). Bivens v. Six Unknown Unnamed has been no showing that any defendant acted Agents of Federal Bureau of Narcotics, 403 other than reasonably and in good faith. Each US. 388 (19711, established that there is a defendant has established that his position cause of action against federal officials in their involved discretionary and supervisory func- individual capacities founded directly upon tions; none had any responsibility for physi- the Constitution, but the question of what cally accepting, processing or delivering the statute of limitation applies to this cause of mail in question here.” action has not been established. The United States District Court for the Eastern District of New York has held that state law should be 7. (Claims, By the Governrnent),The United turned to for resolution of this problem. In a States May Be A Proper Third-party Benefi- - case dealing with law enforcement officials, ciary Under An Automobile Accident Insur- the court held that a New York statute which ance Policy. United States v. Government provides for a one year period in actions Emp. Ins. Co., 421 F. Supp. 1322 (N.D.N.Y. against such officials would be the appropriate 1976). The United States District Court of the time period to control. The court, finding no Northern District of New York became the policy need for federal uniformity, stated that, first court in the Second Circuit to consider “There appears to be no good policy reason for whether the United States was eligible as a allowing a plaintiff claimed to be injured by third-party beneficiary under an automobile such law enforcement action to have more accident insurance policy belonging to a serv- than one year in which to discover whether ice member. The United States had provided his constitutional rights were violated. Law medical care to the service member after he enforcement officers would be placed at a had been injured in an automobile accident. In distinct disadvantage and effective action in consideration of the care he received, the serv- making arrests would inevitably be inhibited ice member assigned to the United States his if such officers had to wait for two, three or rights under the insurance policy he had with more years to find out whether or not they GEICO. GEICO denied liability to the govern- would be subject to some large civil liability at ment under the theory that the service mem- a time when memories were dim and wit- ber had not “incurred” medical expenses as nesses and records perhaps not available.” required in the insurance poliry. The court joined decisions out of the Fifth L 6. (Claims, General) Postal Officials Not Indi- v. Automobile Club Ins. Co., 522 F.2d l(5th Cir. vidually Liable For Late Mail And Nondeliv- 1975)], the Fourth [United States v. Govern- ery Of Mail. Sportigue Fashions, Inc. v. Sulli- ment Emp. Ins. eo., 461 F.2d 58 (4th Cir. 1972)], van, 421 F. Supp. 302 (N.D. Cal. 1976). Federal and the Tenth Circuits [United States v. State officials continue to receive protection from Farm Mut. Automobile Ins. Co., 455 F.2d 709 individual liability by the theory of qualified (10th Cir. 197211, holding that the government - immunity. In a case out of the Northern was a third-party beneficiary that was permit- DA Pam 27-50-52 23 ted recovery against the defendant insurance general discharge certificate. Members being companies . separated must be provided the opportunity to consult with consulting counsel in order to 8. (Federal Labor Relations, Equal Employ- prepare 8. written statement or rebuttal if ment Opportunity.) A Class Action Where desired. Counsel responsibilities were further The Class Has Not Exhausted Administrative delineated to include explanation of the poten- Remedies May Not Be Joined With A Proper tial consequences of a general discharge, Individual Plaintiff In An EEO Action where recommended, as well as plausible al- Against The Government. Marimont v. Ma- ternatives, such as adoption, in cases where thews, 422 F. Supp. 32 (D.D.C. 1976). The the service-member desires to remain on W- United States District Court for the District of tive duty. Columbia recently held that various women’s rights organizations were not able to join as a 2. (Enlistment and Induction, Enlistment; class action the suit of a plaintiff against the Separation from the Service, Discharge) Con- federal government under the Civil Rights Act cealment Of Arrest (Felony Or Misde- of 1964 as amended. The individual plaintiff meanor) Without Conviction Is Not A Basis had exhausted her administrative remedies as For Separation For Fraudulent Entry, But required, but the court found that the organi- Concealed Felony Arrest May Be A Basis zational plaintiffs had not. In denying the For Discharge UP Paragraph 5-38a, AR joinder of the class action the court observed 635-200. DAJA-AL 1976/6253, 13 Sept. 1976. that, “. . .what they [the organizational The Judge Advocate General’s opinion was plaintiffs] are asking this Court to do is to requested on the following three questions: I) recognize that they can, as a matter of right, whether concealment of an arrest (felony or sidestep the requirements imposed in § 200013- misdemeanor) without conviction is informa- 16 simply by joining their claims in federal tion which disqualifies an individual for enlist- court to the claim of a person who has made ment, thus establishing a fraudulent entry UP similar allegations and who has in fact ful- Chapter 14, AR 635-200; 2) whether conceal- filled those statutory requirements. If the ment of a nonfelonious arrest without convic- Court allowed this, then it would have little tion is covered by paragraph 5-38, AR 635-200; power to insure that the policies behind these and 3) if the answers to 1) and 2) are negative, requirements were adequately protected. The is any other course of separation action avail- Court cannot ascribe such an intent to Con- able to the commander? gress and, therefore, holds that the organiza- tional plaintiffs may not join in this suit.” TJAG expressed the opinion that while par- agraph 3-9, AR 601-210, requires an applicant B. The Judge Advocate Generats Opinions to reveal all arrests, convictions or adverse juvenile adjudications, paragraph 3-lla of the same regulation provides that no waiver is 1. (Separation from the Service, Grounds) A required for arrests which do not result in a Board Of Officers Is Not Required For A determination of guilt. Appendices A and C, Parenthood Discharge. DAJA-AL 1976/4448, AR 601-210 do not list such arrests as disqual- 14 June 1976. In response to an inquiry from a ifications. The only reason for requiring the staff judge advocate, The Judge Advocate arrest information is to ascertain whether the General expressed the opinion that paragraph case is still pending or has resulted in a 5-40, AR 635-200 (DA Msg DAPC-EPA-A determination of guilt. Thus, an arrest alone is 302228ZMAR 76), gives no right to a board of not a disqualification for enlistment and ~ its officers to members being separated for the concealment is not a basis for separation for conveniences of the government because of fraudulent entry. parenthood. Discharge under this regulatory provision is involuntary in nature and may The opinion went on to etate that the con- result in the issuance of an honorable or cealed arrest must be for a felony offense DA Pam 27-5&52 24 before the concealment may support a dis- was not adjudged or was disapproved br was charge under paragraph 6-38, AR 635-200. suspended and remains suspended. The Judge Advocate General’s opinion was requested on As to question 3), a commander may for- whether these provisions in fact precluded ward such cases to HQDA for’ consideration administrative discharge for unsuitability be- UP paragraph AR 635;-200 (separation for 5-3, cause of personality disorder in accordance convenience the government under author- Qf with paragraph 13-5b(2), AR 635-200. TJGG ity of the Secretary of the Army). inion that a determination of der alone is not sufficient for 3. (Separation From The Service, Discharge discharge under Chapter 13, AR 635-200. Only Characterization) Preinduction Waiver Of when the condition ‘is chronic, does hot re- Civil Convictions Provides Valid Basis For spond to attempts at rehabilitation, and inter- C ourt-Martial Jurisdiction and Punitive Dis- feres with the servicemember‘s ability to ade- charge. DMA-AL 1976/5289, 13 Sept. 1976. A quately perform his duties, does it reach the service member was convicted by general leye1 of a personality disorder warranting dis- dourt-martial for repeatdd AWOLs and his charge under the regulation. This type of sentence included a bad-conduct discharge. situation calls for a blend of medical and The ABCMR requested an regarding opinion command considerations, and when such cir- the service membeks claim that preinduction cumstances exist, elimination for un’suitability ’ civil convictions ’constipted a nonwaivable based upon personality disorder will be out- disqualification for induction under AR 601- side the ambit of the double jeopardy provi- 210, and that the civil convictions %herefore sions of paragraph 1-13~(3),AR 635-200. precluded valid exercise of court-martial juris- diction. n 5. (Separation From the Service, Discharge) Noting that AR 601-210 applied to enlist- AR 635-206, Discharge For Conviction By ments, The Judge Advocate General re- Civil Court, Can Be Suspended For Period sponded that paragraph 3-9, AR 601-270, as Of Cohfinement Adjudged And Set Time changed, permits any civil conviction to be ThereaAer. Member’s Request To Be Dis- waived for purposes of induction by the charged No Basis To Vacate Suspension. Armed Forces Moral Waiver Determination DAJA-AL 1976/5505, 1 Oct. 1976. Inquiry was Board (AFMWDB), which operates under directed to The Judge Advocate General re- CDR, US. Army Recruiting Command. ,The garding the authority to discharge a service submitted file, although not complete, ap- member convicted by a civilian court prior to peared to indicate that the convictions were expiration of the evaluation period specified in waived in accordance with the cited para- a suspension action. A review of the facts graph. Therefore, proper military jurisdiction revealed that an enlisted member was con- attached and the subse‘quent convidion and victed by a California court of assault with punitive discharge were valid. intent to murder in 1971 and sentenced to ’ & from six months to 14 years in prison. He was 4. (Separation From The Service, Discharge, found undesirable for further service by a 4

Grounds) Administrative Double Jeopardy board of officers because of the conviction and I Provisions Of AR 635-200 bo Not Preclude recommended for discharge with a general Discharge For Unsuitability Because Of Per- discharge. The convening authority approved sonality Disorder. DAJA-AL 1976/5363, 22 the separation, but suspended execution “for Sept. 1976. The provisions of paragraph 1- the period of such confinement, and six 13a(3), ‘AR 635-200, prohibit the administra- months thereafter, at which time this order tive diskharge of a member because of conduct for separation will .be set aside unless the which is considered by a general or special suspension has been sooner vacated.” The con- court-martial, if a sentence to a punitive dis- vening authority took this action because he P charge was authorized to be adjudged, but considered the member to have a strong po- DA Pam 27-5&52 25 tential for rehabilitation. The service member correctional institution. Members sentenced to returned to military control in July 1976 and confinement in a federal or state penitentiary, immediately requested release from the serv- but actually incarcerated in a city or county ice due to the lengthy period of civil confine- jail for administrative convenience, are sub ment served and consequent bad time. ject to being dropped from the rolls. The cited TJAG noted that the language of paragraph statutes may also be applicable in the less 13, AR 635-206, provides that the convening obvious situations where county or munici- authority may suspend execution of an ap- pally operated correctional institutions may in proved discharge “for a period not to exceed 6 fact be state institutions, under the laws of months.” After reviewing analogous opinions, the state in which they are located. TJAG concluded that the suspension in this case did not take effect,until the service mem- 7. (Contributions and Gifts; Prohibited Activi- ber‘s return to military control in July 1976, ties and Standards of Conduct) Monetary Gift thereby allowing a more meaningful period of By Army Hospital Patient To Dependent Of probation. The opportunity for rehabilitation Service Member Does Not Violate Standards in a civilian prison would not comport with Of Conduct Provided’ No Solicitation Oc- governing regulations which contemplate the curred. DAJA-AL 1976/5647, 20 Oct. 1976. A member be given an opportunity to perform patient at an Army hospital gave a check for his assigned duties efficiently (para. 13a, AR $100.00 to an Army Medical Department cap- 635-206). tain for the latter‘s infant son. The, check was made payable to the minor and annotated as a The service member‘s desire not to remain “christening gift.” A note was inclosed with on active duty was not considered a basis for the gift indicating it was for the minor when it vacating the suspension. None of the bases was delivered to the captain. An opinion was prescribed by .paragraph 13c, AR 635-206, for requested whether the son could retain ,the vacating suspended discharges was found in check. the case. As an alternative, it was pointed out I that the Secretary of the Army could exercise The Judge Advocate General expressed the his plenary power UP paragraph 5-3, AR 635- opinion that the transaction satisfied all re- 200, to separate the member. This action quirements for a valid gift in the jurisdiction would have the effect of setting aside the where the transaction took place. TJAG noted, discharge UP AR 635-206. however, that 18 U.S.C. PO 201(f) and (g) pro- hibit the gift and receipt of anything of value “for or because of any official act” performed 6. (Separation From the Service, General) by a public official. Further, paragraph 15b, Enlisted Reservists Must Be Sentenced To AR 40-1, prohibits Army Medical Department Confinement In A Federal Or State Peniten- personnel from accepting payment or other tiary Or Correctional Institution To Be compensation for providing medical services to Dropped From Rolls UP AR 135-178. a person authorized to receive care in an DAJA-AL 1976/5654, 7 Oct. 1976. An opinion Army medical treatment facility. TJAG found was requested whether enlisted reservists no solicitation by the captain nor any mention who have been convicted in state criminal of duties or requests for favors by the donor actions and sentenced to confinement in city and opined there was no causal connection or county jails or correctional institutions may between the gift and the captain’s perform- be dropped from the rolls UP para. lMc, AR ance of duty. Thus, retention of the money by 1 i-178. Citing past opinions, The Judge Advo- the dependent did nbt violate conflict of intbr- I te General noted that 10 U.S.C. 0 1161b and 10 est provisions and acceptance of the gift was I U.S.C. (i 1163b provide for dropping mem- sustained. xs from the rolls of an armed force only where the member is “sentenced to confine- C.’ Federal Labor Relations Council Deci- ment” in a federal or state penitentiary or sions DA Pam 27-50-52 - 26 1. (Federal Labor Relations, Representation.) ously established policy to favor a single, con- Council Confirms Representational Rights solidated unit over smaller subgroupings of Employees At Formal Discussions. FLRC where there was no separate and distinct No. 759-2, Release No. 116, 2 Dec. 1976. In a community of interest. The Council reiterated major policy statement consistent with past past interpretations giving equal weight to decisions of the Assistant Secretary of Labor, the three tests for unit appropriateness set the Federal Labor Relations Council con- forth in § 1qb) of the Order. firmed that Section 1qe) of E.O. 11491, as amended, requires management to afford an D. Defense Privacy Board Opinions exclusive representative union the right to The Defense Privacy Board was established represent their unit employees at formal dis- by Department of Defense Directive 6400.11 to cussions between manakment and employees ensure the preservation of individual privacy whenever the formal discussions concern within the Department of Defense. The Board grievances, pemonnel policies and practices or publishes guidance on questions referred to it employee working conditions in the unit. To for consideration. In addition to its guidelines fulfill this representational obligation, the concerning release of information from health I Council implies that management must ex- care records (41 Fed. Reg. 39356 (1976)), and I tend reasonable notice to both the exclusive release of personal information to commercial representative and the concerned employee. enterprises (42 Fed. Reg. 5119 (1977)), the The Council statement carefully distinguishes Board has published a number of opinions. A “formal” discussions from “nonformal” discus- selection of those opinions follows. sions and investigative interviews, where no

~ right to uniqn representation exists absent f-- a specific grant in the collective bargaining 1. (Privacy Act) Implications On Various agreement. The Council’s announcement does Modes Of Releasing Leave and Earning not fully elaborate on criteria for determining Statements. The question presented is the dis- when a management meeting is formal or tribution of leave and earning statements informal, but one-on-one investigative inter- (LES) in consideration of good management views and initial management counselling in practices, cost effectiveness, and the require- an adverse action procedure are said by the ments of the Privacy Act. Council not to be formal meetings as would There are basically three modes of distribu- entitle an employee to union representation. tion within the DoD: (1) the LES is mailed to the individual’s home address; (2) the LES is 2. (Federal Labor Relations, Collective Repre- handed out by office clerical ?personnel either sentation.) Council Reverses Three Assistant with or without the pay check; or (3) the LES Secretary Unit Determinations. FLRC Nos. is handed out in an envelope by office clerical 75A-14, 75A-128, 76A-4, 30 Dec. 1976. In three personnel either with or without the pay factually similar appeals by management from 4 check. unit determinations by the Assistant Secre- tary, the Federal Labor Relations Council up- Leave and earning statements do contain held management. Each case involved opera- personal information which is protected by the tions by a regional headquarters and various Privacy Act. Distribution may be made in any subordinate offices located in adjoining states. manner so long as the information is not Employees in the regional and subordinate disclosed to persons other than those that offices had common supervision and a common have a requirement to process the Statements mission, shared similar duties, and were sub in the course of their official duties. Hence, ject to like personnel policies. Union efforts to any of the modes presented would be accepta- represent local offices as separate units were ble under the Privacy Act if the procedures sustained by the Assistant Secretary, but re- preclude unauthorized disclosure to individu- r‘. ‘ected by the Council on the basis of previ- als outside the leave and earnings system. r“ DA Pam 27-50-52 27 2. (Privacy Act) A Parent Or Guardian May rights of the affected individuals. Further Have Access To Medical Determination8 matters of appropriate consideration are the From A Minor’s Medical File. In accordance severity of the invasion of privacy, whether an with the definition of an “individual”, con- invasion occurs at all, and the public purpose tained in DoD Directive 5400.11, dated August sought to be served by the requestor. When 4, 1975, a legal guardian or the parent of a the requestor certifies in writing that his sole minor has the same rights as the individual purpose in requesting the information is to and may act on behalf of the individual. The enable him to confer a benefit upon an individ- question presented is at what age is a depend- ual, such a disclosure would not rise to the ent considered a minor for parental or guard- level of a “clearly unwarranted invasion of ian access to medical records under the hi- personal privacy”, and therefore should be vacy Act. This must be determined on an permitted. This rationale holds true whether individual basis by the state law governing the release of home address is from systems of the situs of the medical facility where the records subject to the Privacy Act or from records are maintained. Although a determi- records in general. Under the Privacy Act a nation may be made that the individual con- nonconsensual release from a system of rec- cerned is a minor under state law, and the ords subject to the Act is permissible where information releasable to a parent or guard- the release would be required under the Free- ian, various state laws afford protection to dom of Information Act. Therefore, under the certain types of medical records about individ- sixth exemption to the Freedom of Informa- uals, e.g., drug abuse treatment, abortion, tion Act, release of home addresses would only birth control devices, etc. This type of informa- be prohibited where the release would consti- tion should not be released if the state law tute a “clearly unwarranted invasion of per- r‘; prohibits release. This determination is not sonal privacy.” In the case where a benefit is intended to suggest that minors are precluded sought to be conferred by the requestor the from exercising rights on their own behalf. release would not rise to the level of a “clearly Except as otherwise provided in DoD Direc- unwarranted invasion of personal Privacy.“ tive 5400.11, a minor does have the right to access a medical record pertaining to him or 4. (Privacy Act) Files Indexed By Non-Per- herself. sonal lndentifier Containing Personal Infor- matioh Retrievable By Memory, As Opposed 3. (Privacy Act) Requests For Home Ad- To Ahy Inder Keyed To Personal Identi- dresses of DoD Personnel Who Stand To fiers, Does Not Fall Under The Criteria Of Benefit From The Release. Normally the The Act. The labelring of files by non-personal release of home addresses and home telephone identifiers makes the access requirements of numbers of current or former service mem- the Privacy Act inapplicable, unless such files bers would constitute a “clearly unwarranted are in fact retrieved on the basis of an individ- invasion of personal privacy.’’ However, when ual identifier through a cross-reference sys- considering such a release, either under the tem or some other medium or method. The structures of the Privacy Act or the Freedom human memory alone does not constitute a of Information Act, one must always balance cross-reference system and consequently is the benefits of release against the privacy not a criteria. DA Pam 27-50-52 0 28 Legal Assistance Items Major F. John Wagner, Jr. and Captain Steven F. Lancaster, Administrative and C Division, TJAGSA

1. ITEMS OF INTEREST under 28 U.S.C. § 1331 (federal questions), 28 U.S.C. § 134qa) (original jurisdiction ’of federal Family Law-Domestic Relations-Alimony, courts), 28 U.S.C. I 1441 (actions generally Child Support, Custody and Property Settle- removal), and 28 U.S.C. § 1442(a) (removal of ment; Support of Dependents-Judicial En- suits against federal officers or agencies) are forcement of Support Obligations. In a re- unavailing to plaintiffa suing under 42 U.S.C. cent suit, wherein the United States was §§ 652460” (emphasis added). See Morrison v. joined as a defendant, the plaintiff attempted Mowison, 408 F. Supp. 315 (N.D. Tex. 1976), to use 42 U.S.C. §§ 652-660 to require the West v. West, 402 F. Supp. (N.D. Ga. 1975), federal government to withhold one-half of Wilhelm v. United States Depar$m-rzt of the Air each of her former husband’s monthly retire- Force, 418 F. Supp. 162 (S.D. Tex 1976). See ment checks, which he earned during the also Golightly v. Golightly, 410 F. Supp. 861, existence of their community property marital 862 note 2 (D. Neb. 1976). But see Williams v. regime for service in‘ the United Air Force. Williams, -F. Supp. - (D. Md. 1976), Since statutes waiving immunity are strictly [1977] 3 Fam. L. Rep. (BNA) 3033. [Ref: Chs 20, construed, the court examined the statutes in 26, DA PAM27-12]. question, and held that the immunity surren- I dered thereunder dealt only with child sup Family Law-Domestic Relations-Alimony, - port and alimony, while plaintiffs claim is Child Support, Custody and Property Settle- that of a property right. Therefore, the court ment-Alimony. Absent a rational justifica- held, the United States did npt waive its im- tion or a compelling state interest, the law is munity in this case. The court further held moving toward eliminating and minimizing that it had no jurisdiction over the claim sexual discrimination. The New York alimony against the-government. The court noted with statute allows women to collect alimony from regard to jurisdiction, “[Elven if the statute men, but absolutely forbides men from collect- upon which plaintiff relies could be applied by ing alimony from women. N.Y. DOM. REL. analogy, we would #lacksubject matter juris- LAW § 236. Also, the court may direct hus- diction over plaintiffs claim. There are no bands to pay their wives’ attorneys’ fees in a circuit. court decisions we can find, but the domestic: relations case, but may not direct federal district courts’ decision are legion con- wives to so pay. N.Y. DOM. REL LAW§ 237. cerning the following points: (1) a debt owned The Nassau County New York Supreme by the United States only as garnishee is not Court, using Frontierio v. Richardson, 411 US. a basis for jurisdiction in federal courts; (2) 42 677 (1963) and Weinberger v. Wiensenfeld 420 U.S.C. E) 659 does not grant jurisdiction to U.S. 636 (1975) as springboards, applied the federal courts; it merely waives sovereign im- “suspect criteria requires a compelling state munity in two specific situations; (3) 42 U.S.C. interest’’ standard and found the two statutes 0 660 refers to 42 U.S.C. E) 652(a)(8), and when failing to pass the constitutional musters of the statute is read as a whole, it grants the both the United States and the State of New plaintiff a cause of action in federal court to York. While the facts in the instant case were hear only certain alimony and child support hard ones (the husband was a statutorily un- claims; (4) receiving consent and certification employable non-immigrant alien and the wife from the Secretary of H.E.W. is a jurisdic- a working United States citizen), the language tional prerequisite to sue in federal court for used by the court compelled no other inter- alimony or child support; and (5) that tradi- pretation but the statutes are unconstitu- r* tional means of obtaining federal jurisdiction tional per se. The court found the statutes to r?. DA Pam 27-50-52 29 be solely gender-based, offering arbitrary purposes of defining ”resident t‘axpayer“. At value judgements on male-female roles, and the same time a servicemember domiciled in hence no compelling state interest in the dis- New Jersey, but assigned in another state, crimination therein. In fact, the court found a who buys or rents non-government quarters state interest in eliminating the distinctions. off the military reservation is considered to be Thayler v. Thayler, N.Y. Sup. Ct. (Nassau maintaining a permanent place of abode OUG County, Jan. 21, 1973, [1977] 3 FAM. L. REP. side of New Jersey. You will recognize that (BNA) 2217. [Ref: Ch 20, DA PAM27-12]. this is the same distinction the state of New York made pnor to the decision in Matter of Family Law-Domestic Relations-Separa- La Vigne V. State Tax Commission, 38 App. tion Agreements. The North Carolina Court Div. 2d 775,328 N.Y.S. 2d 10, affimned 33 N.Y. of Appeals has put domestic relations attor- 2d 678 (1973)) which held that the determina- neys on notice as to how carefully they must tion of a permanent place of abode outside the draw separation agreements which impact on state should not depend merely upon whether alimony and future activities of the supported petitioners lived on or off the military base. ex-spouse. In Riddle o. Riddle, N.C.App. - [Ref: The Army Lawyer, Sept. 1976 at 16 and -, S.E.2d &1977), the ‘defendant, (the Dec. 1976 at 25.1 supporting husband) argued that his ex-wife’s relationship with another person constituted a Correction. In Legal Assistance Items, The defense to the enforcement of the separation Army Lawyer, Dec. 1976 at 22 the second agreement. The separation agreement pru- article under 1. ITEMS OF INTEREST vided that the defendant pay the plaintiff $600 should be labeled “Commercial Affairsam- per month until she “either remarries or dies, mercial Practices and Control+Federal Stab P- whichever occurs first.” The agreement fur- utory and !Regulatory Consumer Protec- ther stated that it is the intention of the tions-Consumer Leasing Act.” Please make parties that each shall “go his or her way, and this pen-and-ink change, which will conform to live his or her personal life unmolested, un- the pending change to’DA PAM 27-12. hampered, and unrestricted by the other. . ..” The court held that an agreement containing 2. ARTICLES AND PUBLICATIONS OF the above quoted language must be enforced INTEREST. 1 according to its own terms, and that plaintiffs relations ivith other people, short of marriage, Commercial * Affairs-Commercial Practices do not offer the defendant any defense to the amd Controls-Federal Statutory and Regu- enforcement of the provisions of the separa- latory Consumer Protections-Truth in tion agreement. [1977] 3 FAM.L. REP. (BNA) Lending Act. Comment, Truth in Lending and 2206. [Ref: Ch 20, DA PAM 27-21] the Statute of Limitations, 21 VILL. L. REV. 804 (1976-1976). [Ref: Ch 10, DA PAM27-12] Taxation-State and Local Income Tax- New Jemey. The State of New Jersey in its Commercial Affaira-Commercial Practices general instructions for completing a resident and Controls-Federal Statutory. and Regu- return for 1976 (NJ-104&F‘), distinguishes be- latory Consumer Ptotections-Preservation tween living in government quarters and liv- of Consumer Claims and Defenses. 21 VILL. ing in non-government quarters when defin- L. REV. 984 (1976-1976). [Ref: Ch 10, DA PAM. ing a “permanent place of abode”. Under the 27-12] instructions, a servicemember domiciled in New Jersey, but assigned to another state, Domestic Relations. Carsola, First Steps in who lives on a military installation or in as- Divorce-Initial Client Contact, Litigation Fi-

signed or rented government quarters is not nancing, Investigation, and SelfHelp, [1977] r 3 considered to be maintaining a “permanent FAM.L. REP. 4019. [Ref:Ch 10, DA PAM27- PI place of abode” outside of New Jersey for 121 DA Pam 27-50-52 ,- 30 Taxation-Federal Income Tax. Gallagher, approved 011.30 September 1976, amends the Primer on Section 101 -Federal Income Taxa- amount of the dependency and indemnity tion of fife Insurance Proceeds, 49 TEMP.L.Q. compensation payable to a surviving spouse, 831 (1976). [Ref:Ch 41, DA PAM27-12] surviving children, and supplemental compen- sation for surviving children. The amendment Taxation-Federal Income Tax. Tucker, Ana- increases the amount of payment in each case. lyzing tiLe Impact of the 1976 Tax Reform Act The same law amends Chapter 13 of ‘Title 38, on Real Estate Investments, 45 J. TAX346 United States Code (Dependency and Indem- (1976). [Ref: Ch 41, DA PAM27-12] nity Compensation for Service-Connected Deaths) by striking out “his”, “he”, “his 3. RECENTLY ENACTED LEGISLATION ‘ widow”, and “widow” and inserting in lieu thereof “such veterans’s’’, “such veteran’s sur- Decedent’s Estates and Survivors Benefit- viving spouse”, “such person”, and “surviving Survivor’s Benefits -Dependency and In- spouse”. [Ref: Ch 16, DA PAM27-12] demnity compensation. Public Law 94-433,

Judiciary Notes U.S. Army Judiciaw

NOTES FROM THE CHIEF JUDGE, be published will be entitled MEMORANDUM A.C.M.R.: OPINION. The OPINION OF THE COURT format will replace decisions formally known 1. The Court of Military Review is considering as published longholdings. The MEMORAN- making a number of changes concerning the DUM OPINION will replace the short, modi- printing, publication and distribution of opin- fied short and unpublished longholdings. ions. Before making a final decision, a pilot program will be initiated after this notice 5. We anticipate that the vast majority of the appears in The Army Lawyer. memorandum opinions will be printed on one side of one sheet of paper, although in some 2. The contemplated changes are designed to cases, both the fropt and back of one sheet of do several things. First of all, we wish to paper will be required. Opinions of the court, improve the appearance of the opinions ren- of course, normally will require printing on dered by the court. We also want to reduce the both the front and back of two or three sheets printing and distribution cost. of paper.

3. During the pilot program, the use of mani- 6. The distribution of memorandum opinions fold sets heretofore used for opinions called basically will be the same as presently used “short” and “modified short” opinions will be for short and modified short opinions. The greatly reduced. As many opinions as possible significance of this reduced distribution will be reproduced by the offset printing proc- scheme will be that those now receiving un- ess. Should the printing burden placed on the published longholdings will no longer have Service Center in the Nassif Building become access to these decisions. We do not believe too great, some of the opinions may be repro- that there is any need for the present practice duced by the xerographic process. of a fairly widespread distribution of these opinions. We intend to adhere to the publica- 4. A decision of the court that is to be pub tion standards set out below in determining lished will be entitled OPINION OF THE which opinions will be published and those COURT. A decision of the court that will not that will not be published. The publication DA Pam 27-50-52 31 decision will govern the format to be used and being made to law schools, newspapers and the distribution to be made of the decision. We wire services. Our theory is, it is too costly for intend to include in the SOP for the court, us to distribute slip opinions to these agencies. which is not being revised, a provision which If they wish to continue to receive our pub- will prohibit citing unpublished opinions in lished opinions, they can subscribe to the re- briefs before the court and to preclude the use porter service that will print our advance of unpublished opinions during oral argument. sheets and bound volumes.

7. The distribution of opinions of the court An opinion will be published if meets one during the pilot program will be the same as 8. it or more of the following standards: presently made for published longholdings. We intend to reduce the costly widespread distri- a. Establishes a new rule of law or alters or bution of these types of opinions when a new modifies an existing rule. contract is let for the printing of advance b. Resolves an apparent conflict of author- sheets and bound volumes. It appears at this ity. point that when a new contract is let, advance sheets will be printed and distributed by the c. Presents a novel application of &sting contractor directly to those who subscribe to law. the reporter service within three to five weeks d. Criticizes or questions existing law. after a decision to be published is rendered. We do not believe, therefore, that as wide- e. Involves a legal issue of continuing public spread distribution of the slip opinion of a interest. decision that is to be published will be neces- sary. If the decision is of sufficient importance f. Constitutes a significant contribution to that SJAs and others need to know about the military law because of its historical or in- decision earlier than three to five weeks after terpretive review of prior jurisprudence. the decision is rendered, the Chief of the Criminal Law Division, OTJAG, will compose 9. Current procedures as outlined in Chapter and dispatch an electrical message to the field 16, AR 27-10, will govern processing of as soon as possible after the decision is ren- A.C.M.R.opinions by general court-martial au- dered. Although no one in the Army will be thorities during the pilot program. Prior to full directly affected, we also intend to eliminate implementation of the new procedures, Chap distribution of published opinions presently ter 16, AR 27-10, will be revised.

JAGC Personnel Section PP&TO, OTJAG 1. Assignments COLONELS APPROX NAME FROM TO DATE BEDNAR, Richard J. OTJAG 8th Army, Korea Jul 1977 COMEAU, Robert F. OTJAG USATC, Fort Polk, LA Aug 1977 FINKELSTEIN, Zane E. HQ, 8th Army, Korea Army War College Aug 1977 HARRELL, George W., Jr. USALSNStuttgart Sig Ctr, Fort Gordon, GA Jul 197'7 LASSITER, Edward A. 193d Inf Bde, Canal Zone FT Cen, Fort Sill, OK Jun 1977 TALIAFERRO, Wallace C. FA Cen, Fort Sill, OK USALSA DA Pam 27-50-52 h 32 APPROX NAME FROM TO DATE LIEUTENANT COLONELS

ANDREWS, Thomas T. Army War College lOlst Abn Div, Fort Campbell, Jul 1977 KY BRIGGS, David B. Army Roc Agcy, APO 09710 OTJAG Aug 1977 BROWN, Terry W. 172d Inf Bde, AK Army War College Jul 1977 DOWNES, Michael M. 2d Inf Div, Korea Army War College Jull977 JACOB, Gustave F. USALSlVBde Kreuznach USALSlVMannheim Jun 1977 LASSETER, Earle F. MAAG, China Army Schfl'ng Ctr, Fort Jul 1977 McClellan. AL MITTELSTAEDT, Robert N. VI1 Corps, Germany Army Claims Svc, Fort Meade, Aug 1977 MD MOONEYHAM, John A. FORSCOM USALSNFort Amador, Balboa, Aug 1977 Canal Zone MOSS, Frederick E. Command and General Staff Pacific Command, HI Jul 1977 College MULLINS, Jack A. 8th Army, Korea 193d Inf Bde, Canal Zone Jun 1977 SCHEFF, Richard P. QM Ctr, Iort Lee, VA USALSNFort Gordon, GA Aug 1977 STONE, Frank R. Pacific Command, HI 172d Inf Bde, AK Jun 1977 TOCHER, Patrick A. Army War College 4th Inf Div, Fort Carson, CO Jul 1977 WILSON, Norman S. USALSNMann heim USALSNFort Leonard Wood, Jul 1977 MO

MAJORS

ALDINGER, Robert R. USALSAlGoeppingen USALSNBaumholder Jun 1977 ARMSTRONG, H. Jere OTJAG Armed Forces Staff College Aug 1977 BASHAM, Owen D. USALSNFort Amador, Balboa, S&F, TJAGSA Aug 1977 Canal Zone BEANS, Harry C. 25th Inf Div, HI TRAWC Aug 1977 BONFANTI, Anthony J. 172d Inf Bde, AK XVIII Abn Corps, Fort Bragg, Aug 1977 NC BOREK, Theodore B. USALSNSchweinfurt OTJAG Jun 1977 , BRANDENBURG, Army Intel Cmd, Fort Meade, USATC, Fort Polk, LA Aug 1977 Andrew L. MD BURNS, Thomas P. USALSA, Europe RCPAC, St. Louis, MO Jun 1977 CARROLL, Bartlett J., Jr. OTJAG MAAG, China Jun 1977 CORRIGAN, Dennis F. S&F, TJAGSA Command and General Staff Jul 1977 College CRAIG, David B. 3d Inf Div, Germany JFK Ctr, Fort Bragg. NC Aug 1977 CUNDICK, Ronald P. United States Army, Berlin, Command and General Staff Aug 1977 Germany College DORT, Dean R., I1 S&F, TJAGSA I Corps, Korea Jun 1977 ECKHARIYT, William G. WAG, Pres of SF, CA Command and General Staff Aug 1977 College FRANKS, Mitchell D. Command and General Staff OTJAG Jul 1977 College GIDEON, Wendell R. Sig Sch, Fort Gordon, GA Command and General Staff Aug 1977 College GILLIGAN, Francis A. Sch Tng Ctr, Fort McClellan, AL Command and General Staff Aug 1977 College GIUNTINI, Charles H. 2d Inf Div, Korea OTJAG Aug 1977 GREEN, Herbert J. USALSlVFort Gordon, GA USASTC. Fort Gordon, GA Aug 1977 HANDCOX, Robert C. Walter Reed AMO, W&skington, Command and General Staff Aug 1977 DC College HEMMER, William J. Command and General Staff SETAF, Italy Jun 1977 College LAGRUA, Brooks B. Command and General Staff 32d ADDCOM, Gemany Jul 1977 College DA Pam 27-50-52 33 APPROX NAME FROM TO DATE LURKER, Ralph L. Command and General Staff USALSlVFort Lewis. WA Aug 1977 College MANN, Richard G. USALSlVFort Lewis, WA HQ, USAREUR, Europe Sep 1977 MITCHELL, Kenneth M. USALSUFort Leonard Wood, Army Intel Agcy, Fort Meade, Aug 1977 MO MD MURRAY, Charles A. 82d Abn Div, Fort Bragg, NC Command and General Staff Aug 1977 College NAUGHTON, John F. USALSlVBaumholder USALSlVBde Kreuznach Jun 1977 NICHOLS, John J. I Corps, Korea National Guard Bureau Aug 1977 NORTON, William J., I1 Command and General Staff OCLL, Pentagon Jun 1977 College O'BRIEX, Maurice J. USALSA HQ, USAREUR, Europe Jul 1977 PIOTROWSKI, Leonard R. SBF, TJAGSA 7th Inf Div. Fort Ord, CA Sep 1977 RICE, Leonard E. Eng Ctr, Fort Belvoir, VA Korea Jun 1977 SCHNEIDER, Loyson E. 26th Inf Div, HI USAG, Fort Drum, NY Aug 1977 WHITTEN, William M., 111 OTJAG Army Roc Agcy, APO 09710 Jun 1977 WOODWARD, Joe L. Command and General Staff 2d Inf Div, Korea Jun 1977 College

CAPTAINS

BARBEE, Jon R. Air Def, Fort Bliss, TX Korea May 1977 BOHLKEN, Alfred B. 3d Inf Div, Germany USAG, White Sands Range, NM Jun 1977 BOYLE, Martin J. Letterman Hospital, Pres of SF, Army Claims Svc, Fort Meade, Jul 1977 CA MD 1 CARTER, Lyman A. USAG, Yongson, Korea 172d Inf Bde, AK Jun 1977 ' CURTIS, Robert W. Army Armor Ctr, Fort Knox, KY USALSA Jun 1977 " DALMUT, Pete M. USALSA OTJAG Apr 1977 DOWNEN, Allan T. Sig Ctr, Fort Gordon, GA USALSA Jun 1977 DYCUS, Jewel E. 2d Inf Div. Korea USAG, Fort Sam Houston, TX Aug 1977 EDELFSEN, Gregory 19th Sup Gp, Korea 26th Adv Cls, TJAGSA Aug 1977 EDWARDS, John T. USALSMFort Benning, GA 25th Inf Div, HI Jul 1977 FINKLEA, AIfred M. 25th Adv CIS, TJAGSA XVIII ABN, Ft Bragg, NC Jul 1977 FISCHER, William G. JFK Ctr, Fort Bragg, NC 5th Sig Cmd, APO 09056 Jun 1977

FRIDDLE, Ronald C. 1st Sup Bde, Germany 1st Rgn Crim Inv, Fort Meade, Jul 1977 ~ MD FROTHINGHAM, Edward, 111 4th Inf Div, Fort Carson, CO United States Army, Japan Aug 1977

GIBB, Steven P. 2d Inf Div, Korea OTJAG Jul 1977 I GILLIAM, James G. USAG, Fort Meade, MD 172d Inf Bde, AK Jun 1977 GODFREY, Thomas G. V Corps, Germany 3d Rgn Crim Inv, Fort Gillem, Aug 1977 CA GOO, Lester M. USACC, Taiwan USAREUR, Europe Aug 1977 GROTTENDIECK, 32d AADC, APO 09227 USAG, Indiantown Gap, Aug 1977 William J. Annville, PA HARRITY, Bernadine T. Army Eng Ctr, Fort Belvoir, VA OTJAG Apr 1977 HEALY, Maurice D. 2d Armd Div, Fort Hood, TX USALSA Jun 1977 HENNESSEY, David L. 172d Inf Bde, AK USAREUR, Europe Jul 1977 HEWITT, James W. Air Def, Fort Bliss, TX USALSA May 1977 HOLEMAN, Jacob J. 3d Armd Div, Germany USALSA Jun 1977 JACOBSEN, Craig C. 25th Adv Cls, TJAGSA USALSlVFort Bragg, NC Aug 1977 JACOBSON, Paul W. FA Ctr, Fort Sill, OK USALSA Jun 1977 KEMP, Terry G. 193d Inf Bde, Canal Zone Army Aviation Sys, St. Louis, Jul 1977 MO KLEFF, Piem A. I11 Corps, Fort Hood, TX Korea Aug 1977 LEELING, Gerald J. 2d Inf Div, Korea 26th Adv CIS, TJAGSA Aug 1977 LESLIE, Robert L. USAG, Pres of SF, CA USALSA Aug 1977 MARTIN, Joanna R. United States Army, Berlin Recruiting Cmd, Fort Sheridan, Aug €977

Pl IL DA Pam 27-5&52 34 APPROX NAME FROM TO DATE MC CALL, Richard H., Jr. 6th Sig Cmd, APO 09056 USAG AHS, Arlington, VA Jul 1977 MEYER, Carl F. Rocky Mt Arsenal, Denver, CO Korea Jun 1977 MORA, Raul E. United States Army, Berlin MAAG, China Aug 1977 MUELLER, Patrick A. 2nd Regn Crim Investigation 5th Army, Fort Sam Houston, TX Jun 1977 Cmd, Europe NAPPER, Steven E. 1st Armd Div, Germany USALSA Jull977 NOLLY, Joseph J. TC, Fort Eustis, VA USALSA Jun 1977 RHODES, Robert C. USALSNFt Belvoir, VA 2d Rgn Crim Inv, Europe Jun 1977 RIGNEY, Marvin G. TC, Fort Eustis, VA USALSA Aug 1977 SAXON, David P. FA Ctr. Fort Sill, OK USALSA Jun 1977 SCHMIT, Charles F., Jr. 9th Inf Div, Fort Lewis, WA USALSA Jun 1977 SISSON, George H. Claims Svc, APO 09166 26th Adv CIS, TJAGSA Jun 1977 STEARNS, James N., Jr. USAG, Fort McPherson, GA Korea Jul 1977 STOKESBERRY, John G. lOlst Abn Div, Fort Campbell, Korea Jul 1977 KY TAPP, Barry M. 8th Army, Korea MTMC May 1977 TAYLOR, Paul J. USALSA Army Roc Agcy, APO 09710 Jun 1977 THOMAS, William P. 1st Armd Div, Germany USALSA Jul 1977 TYRRELL, John P. Army Claims Svc, APO 09166 Army Claims Svc, Fort Meade, Jun 1977 MD WHITACRE, William L. TC Ctr, Fort Eustis, VA USALSA Jun 1977 YUSTAS, Vincent P. 38th ADA Bde, Korea S&F, TJAGSA Jul 1977 ZIJLSTRA, Eduard T. Army Claims Svc, APO 09166 Army Dep, Seneca, Romulus, NY Aug 1977

2. AUS Promotions John W. Richardson 1 Mar 77 Edgar 0. P. Smith 1 Mar 77 COLONELS Peter M. Smith 1 Mar 77 - Charles Zimmerman 1 Mar 77 Fred Bright, Jr. 1 Mar 77 Joseph A. Dudzik 1 Mar 77 3. RA Promotions Ronald M. Holdaway 1 Mar 77 James A. Mundt 1 Mar 77 MAJOR Thomas E. Murdock 1 Mar 77 Richard G. Mann 1 Mar 77 MAJORS CAPTAINS Thomas P. DeBerry 1 Mar 77 Donald A. Deline 1 Mar 77 Billie D. Murphree 15 Feb 77 John T. Edwards 1 Mar 77 Robert D. Newel1 15 Feb 77

Current Materials of Interest

Articles tional Law of Piracy, 26 DEPAUJ.L. REV. 78 (1976). Note, Miranda on the Couch: An Approach to Problems of Self-Incrimination, Right to Note. The Effect of the 1976 Amendment to Counsel, and Miranda Warnings in Pre-Trial Exemption Three of the Freedom of Informa- Psychiatric Examinations of Criminal Defend- tion Act, 76 COLUM.L. REV. 1029 (1976). ants, 11 COLUM.J.L. & SOC. PROB.403 (1975). Levie, Combat Restraints, NAVALWAR C. I' Crockett, Toward A Revision of the Intema- REV., Winter, 1977, at 61. Howard S. Levie is a DA Pam 27-50-52 35 retired member of the Army JAG Corps and Reports to Regulatory Law Office currently Professor Law at St. Uni- of Louis In accordance with AR 27-40, all judge ad- versity. vocates and legal advisers are reminded to continue to report to Regulatory Law Case Note Office (DAJA-RL) the existence of any action or Militaw Justice-Right to CounseMervice- proceeding involving communications, trans- men Tried Before Summarg Courts-Martial portation, or utility services which may be of Have No Constitutional Right to Counsel. Mid- interest to the Army. dendorf v. Henry, 425 U.S. 25 (1976), 54 TEX.L. REV. 1471 (1976).

By Order of the Secretary of the Army:

BERNARD W.ROGERS General, United States Army Chief of Staff

P?Official: PAUL T. SMITH Major General, United States Army The Adjut ant General

4U.S. GOVERNMENT PRINTING OFFICE: 1977 720-191/7 1-5 e- e- \ I