JUL 8 W6

Bicentennial Issue 4 July, 1976 The Judge Advocate

Published By JUDGE ADVOCATES ASSOCIATION

An affiliated organization of the American Bar Association, composed of lawyers of all components of the Army, Navy, and Air Force

Denrike Building Washington, D.C. 20005 JUDGE ADVOCATE JOURNAL

Bicentennial Issue 4 July, 1976

Publication Notice

The vie\vs expressed in articles printed herein are not to be regarded as those of the Judge Advocates Association or its officers and directors or of the editor unless expressly so stated.

TABLE OF CONTENTS PAGB Lawyers in the Armed Forces Viewed at the Bicentennium ------1 History of the JAGC, Army ------·------·------6 British Bicentennial Guest ------· ------·------·------·- 27 Lawyers For and Of the Navy ------· ---·---··------· --- 29 History of the J A G's Office, Air Force ------44 Judge Advocate of the Marine Corps ------50 Historical Evolution of the Office of Chief Counsel, Coast Guard____ 55 JAA Presents Bicentennial Plaque to CMA ------·------59 Incumbent TJAGs and their Predecessors ------60

Officers and Dfrectors 1975-76-see inside back cover. Published by the Judge Advocates Association, an affiliated organ­ ization of the American Bar Association, composed of lawyers of all components of the Army, Navy, and Air Force. Denrike Building, Washington, D. C. 20005 - STerling 3-5858 Lawyers Qua Lawyers in the Armed Forces of the United States Viewed at the Bicentennium Beginning at Hampton Court in tian order. The King, as the leader 1604, shortly after his accession of the forces they had defeated, be­ to the English throne, and on other gan to emerge as a demonic power. occasions when presented with re­ The concept of Charles I, as the quests for establishment of presby­ embodiment of all evil, was terian or congregational, as opposed strengthened in the Second Civil to episcopal, forms of church or­ War, in which the New Model Army ganization, James I was wont to triumphed over the opposition of virtually every other faction in the respond : "No bishop ; no king!" country. When that War was won The correctness of his premises in latter 1648, the rank and file­ was demonstrated some forty-five who in their self-image as chosen years later, when, in the early instruments to carry out the will of afternoon of 30 January 1649, the God could not be thwarted or di­ head of his son, Charles I, fell on a verted by their officers-had Colonel scaffold in front of Whitehall. Thomas Pride take a group of them Charles I died because victorious to the House of Commons, from soldiers of the Long Parliament which all members were excluded were not paid off and disbanded at save for 53-56 felt to be completely the end of the First Civil War, and subservient to the will of the employed their idle time in theo­ soldiers. This group-"the Rump" logical and politico-philosophical -enacted on their own authority a discussion and debate. There measure constituting a High Court emerged a consensus that the of Justice for the trial of the King, soldiers were divinely chosen in­ all proceedings to be completed struments to destroy forces of evil within 30 days of January 6, 1649, and establish an egalitarian Chris­ the date of enactment.

*Prepared by Captain Homer A. Walkup for the Special Committee of the Judge Advocates Association to Plan for the Observance of the Bicentennial of the Revolutionary War. The members of the Special Committee are: Colonel William L. Shaw, JAGC, AUS (Ret.), Chairman Captain Homer A. Walkup, JAGC, USNR (Ret.), Vice-Chairman Colonel Jerry E. Conner, USAF Colonel Alton H. Harvey, JAGC, USA Colonel Robert J. Chadwick, USMC Commander Norman B. Lynch, USCG 1 2 The Judge Advocate Journal

The death of the King posed cording to the Civil Laws, Law problems of legitimacy regarding Martial, and Customs of the Sea, acts of officers, civil and military and according to such Laws and and naval. Until the axe fell, there Ordinances as shall by him the was available the fiction that execu­ said Lord High Admiral, and his tive acts could be performed in the Council of War ... be concluded name of the King, during his and agreed upon ... to be punished absence due to having been ill ad­ by Death or otherwise, according vised by evil persons; upon the to their Demerits, and shall be due .King's being returned to sound ad­ unto them by the said Laws and visers he would ratify and legalize Ordinances." A corrective ordi­ all proper actions taken during his nance, two days later "ordered and absence. Now there could be no re­ Ordained, That the Lord Admiral, turn of the King. The only remnant with his Council of War ... be and of elected authority still function­ are hereby authorized to agree upon ing was the Rump, which proceeded such Laws and Ordinances ... for forthwith to enact the abolition of Trial of Offenders by Martial Law; the House of Lords. The Rump and the same to put in Execution Commons became the Rump Par­ accordingly." An Act of 13 Feb­ liament which was The Common­ ruary 1649 constituted a "Counsell wealth, 1649-1653. In April, 1653, of State" which was empowered "to Cromwell sent the members home, order and direct, all the Militias but the actions of immediate con­ and forces both by Sea and Land cern at this point took place prior ..." The Council of State was au­ to that time. thorized to commission officers, but A high priority problem con­ nothing was said about its having fronting the Rump in 1649 was power to establish or approve dis­ the establishment of control of the ciplinary articles for land or naval Navy. During the second Civil forces. The Council of State con­ War there were strong Royalist sisted of 41 named persons. Five sympathies in the Navy. An Army would appear to have been peers; officer sent as Deputy Fleet Com­ three, court justices; and thirty­ mander by the Parliament was not three of the members of the Rump. permitted to board the flag ship by An Act of 23 February repealed the crew. The preceding Deputy the power given to the Earl of was then reappointed, who defected Warwick by the August, 1948, Act, to the Royalist naval force in Hol­ and enacted and ordained "That land, followed by some eleven ships. the Counsel of State appointed by In August, 1648, the Parliament Authority of Parliament shall have enacted an ordinance directing that and exercise all such Power, Juris­ the Earl of Warwick, the Lord diction and Authority, and are High Admiral, should no longer hereby authorized and enabled to forbear "... such Punishment as do and execute all such things as :may be condignly inflicted ... ac­ pertain to the Office of Lord High The Judge Advocate Journal

Admiral ..." Note that the power The Council of State was recon­ which it was considered necessary stituted 13 February 1650, but only to enact a corrective Act in 1648 until 17 February 1650. Powers to confer upon Warwick was now respecting militias and forces by repealed; but that neither the Act sea and land were as stated in the establishing the Council of State Act of the previous year. On 13 nor that conferring the powers of February 1651 it was enacted that Lord High Admiral upon the Coun­ the Council of State appointed "for cil, explicitly mentioned power to the year ensuing" should have the exercise martial law and prescribe authority to do all things pertain­ articles therefor. ing to the Office of Lord High Ad­ On the following day, 24 Febru­ miral, as provided in the previous ary, an Act referred to the power Act repealing the powers formerly of the Council of State and ap­ given and transferring it to the pointed Robert Blake, Edward Council of State. This should con­ Popham, and Richard Dean-each tinue in force until 1 July 1651. a colonel-"Commissioners for the On 28 February 1651, Blake, Pop­ immediate ordering and command­ ham, and Dean were appointed and ing of the Fleet ... shall have full empowered as before from 23 Feb­ power and authority as Admiral ruary 1650 until 1 March 1651. and General of the said Fleet . . . The Naval History of Clowes in­ And themselves from time to time dicates that a Committee of the shall observe such Orders and Rump, consisting of John Brad­ Directions as they shall receive shaw, Chairman of the Council of from the Parliament, or from the State, Bulstrode Whitelocke, and said Counce! of State; and this Algernon Sidney, prompted by power to commence from the . . Blake's request for better authority [23rd] .. day of February, and to to deal with faint-hearted cap­ continue unto the first day of tains, in December, 1652, revised March, 1649. And that the said Naval Articles prepared under the Commissioners or any two of them, aegis of Warwick, read them to the during the space aforesaid, have Council of State, and that such and shall have the power of Martial Articles were "passed" on the 25th Law over all persons belonging to of December 1652. These are said the said Fleet under their com­ to have been substantially the same mand; and shall be authorized to thirty-six Articles which were later exercise and execute the same, for enacted as the Naval Discipline Act the better ordering and government of 1661, shortly after the Restor­ of the said Fleet, according to such ation. Rules and Articles as shall be given, The explanation of the bizarre allowed, or approved for that pur­ legislative enactments pertaining to pose by the Parliament, and accord­ the Navy and its command is that ing to the general Customs and after the experiences of 1648, with Laws of the Sea. . ." both mutiny and defection of high The Judge Advocate Journal

·commanders in the Navy, and with the Parliament, which they could Pride's Purge by Army troops, it control, rather than traditional laws was not desired to set up long-term of war as interpreted by their offi­ statutorily authorized forces which cers. Cromwell had, a year before, might seize power by coups, im­ put down invading Scottish forces press opponents into the Navy, and led by the son and heir of Charles I. exercise court-martial jurisdiction. He was unenthusiastic about the By limiting the prospective statu­ War with the Dutch, who were tory authority to a few days only, then one of the few other Protest­ and then making a subsequent ret­ ant major forces. As a non-lawyer, roactive grant, all that was done in Cromwell would not have been the meantime was validated, but sensitive to the feeling of need for one contemplating insurrection positive legal authority to charge could point to no current charter offenses, conduct trials, and execute of authority. The Council of State, sentences sometimes extending to having the power of the Lord High death. Admiral could serve as a counter­ This welter was apparently re­ force in the event of suspected con­ solved by the legerdemain of having spiracy by the commissioners in Articles studied and revised by the actual command of the Fleet. Parliamentary Committee of three Blake, Popham, and Dean were (Bradshaw and Whitelocke being largely unknown quantities when lawyers), and read to and later ap­ this legislative shell game com­ proved by the Council of State as menced. When Blake proved to be an exercise of the powers of the establishing a record as one of the Lord High Admiral conferred upon all-time greatest sea commanders the Council. This was done without in history, his requests were ac­ open hearings and without the mak­ corded respect. His request for ing of any public record of the ac­ Parliamentary approval of disci­ tion, and accordingly might later be plinary articles, made in latter either attested or denied, as ex­ 1652, during the first six months pediency might dictate. of the First Dutch War, was thor­ Amid these shabbily obfuscated oughly warranted by a recent com­ maneuverings was born the prin­ bat reverse, but came at a bad time ciple of legislative prescription of from a political standpoint. Any rules for the government and regu­ hint of imposing more stringent lation of the Armed Forces. Prompt controls or deprivation of perqui­ legitimation of the principle by en­ sites with respect to the Army was acting, immediately following the out of the question; and open pro­ Restoration, the thirty-six Articles posal of specific disciplinary articles as approved by the Council of State to govern the Navy would inevit­ under the authority of explicit leg­ ably be closely scrutininzed by islation, made this one of the gains soldiers with the thought that they of the Parliament from the Civil too should be governed by Acts of Wars and the Commonwealth. The Judge Advocate Journal 5

The enactment of Articles of War Naval Articles not been approved following the Restoration, in a and used successfully by Blake, it similar manner to the enactment is probable that after the Restora­ of the Naval Articles, was advo­ tion the previous practice of order­ ing disciplinary rules by military cated by no one. The emphasis at and naval commanders would have that time was upon disbanding the been resumed. Had the 1652 Ar­ Army, not perfecting the authority ticles been formally enacted by the for its regulation. It was contem­ Rump Parliament, there is a de­ plated at that time that future gree of probability that they might needs for land forces would be met have been disowned in consideration by the militia, which was subject to of their source, without regard to local law, not martial law, hence no their merit, and regulation of articles for land forces were needed. armed forces thereafter deemed to When, a quarter of a century later, be a matter of no proper concern to incident to the Glorious Revolution legislative bodies. of 1688-89, a standing army was The full literal meaning-to say reestablished, Articles of War were nothing of implications-of the enacted in the form of a Mutiny principle of limitations upon execu­ Act, effective for a limited future tive authority through legislative term. Similarly temporarily effec­ prescription of armed forces regu­ tive Mutiny Acts were periodically lations, was not fully and uni­ enacted thereafter, usually at about versally apprehended in 1661, in two-year intervals. This continued 1689, in 1776, in 1789, in 1800, or until and after the time of the in 1806. Each of those dates, how­ American Revolution, and into the ever, marked a forward progression Nineteenth Century. in the evolution toward government Hence, as James I said "No of armed forces by law rather than bishop; no King," perhaps we executive fiat. should say, "No Commonwealth, no The articles which follow discuss judge advocate!" For there can be the developments in the various no judge advocate in anything other branches of the Armed Forces of than a ceremonial sense until there the United States of the organiza­ are standards of conduct prescribed tions of professional lawyers en­ in advance by an authority other gaged in furthering the evolution than the executive. Had the 1652 born out of revolution. History of the Judge Advocate General's Corps, United States Army Prepared by The Judge Advocate General's School, U.S. Army Charlottesville, Virginia The Judge Advocate General's Articles. Accordingly, on June 30, Corps has had a long and varied 1775, the first 69 "Articles of War" history in its nearly two-hundred were enacted. Shortly thereafter, years of existence. The office of General George Washington took Judge Advocate General was the command of what was to become first legal position to be established the Continental Army. And on the under the authority of the United 29th of July, William Tudor, a States, even predating the offices prominent Boston lawyer and law of Chief Justice and Attorney Gen­ pupil of John Adams, was elected eral. Its origin is practically con­ by Congress to the position of temporaneous with the adoption of Judge Advocate of the Army, a post a national military code, and can created that same day. In January be traced to the very first years of 1776, "That no mistake in regard to the Republic. the said articles may happen," the Judge Advocate of the Army of the The Revolutionary Period United Colonies was directed to (1775-1789) countersign each copy of the new History has been said to repeat articles of war. Some 37 days after itself. During the English civil war those same colonies became the of the 17th century, the opposing United States of America, Tudor forces of the King and Parliament was given the rank of lieutenant were said to have been governed by colonel. The title of Judge Advo­ the same military code. In 1755 a cate General was attached to this similar occurrence took place in office on August 10, 1776. The this country. At that time, Gage's amended Articles of War, adopted and Burgoyne's "Ministerial Army" on September 20, 1776, by the was governed by the British Mutiny Revolutionary Congress provided Act and Articles of War. The that, "The Judge Advocate General, colonies, with an upcoming military or some person deputed by him, force of some 184,000 to 250,000, shall prosecute in the name of the needed a body of law for the gov­ United States of America." ernment of their own army. The The legislation of September 20 Continental Congress could find no also brought revision to the original military code better suited to its Articles of War. The result, known requirements than the British as the second Continental Articles

G The Judge Advocate Journal 7 of War, was largely due to the of duty, the Army's legal staff grew efforts of John Adams' Committee to include the Judge Advocate Gen­ of Congress. Certain of the 1776 eral, two deputies at General Head­ revisions were suggested by Gen­ quarters for the Army at large, eral Washington, who submitted his and one for each separate army and amendments through Colonel Tudor territorial department. Some of the to the Adams Committee. Adams, judge advocates were given the who personally favored adoption of rank and pay of captains by Con­ the British Articles totidem verbis, gressional resolution dated June 6, was able to persuade his fellow com­ 1777, and when the emoluments of mitteeman Thomas Jefferson to the Judge Advocate General were agree with him in reporting this raised in 1779 to that of colonel, view to Congress. And the resulting the other judge advocates received enactment, except for minor an increase to the grade of lieu­ changes, continued to reflect the tenant colonel. After Laurance re­ influence of our Mother country signed his post as Judge Advocate on American military discipline. General in the spring of 1782, the Tudor resigned as Judge Advo­ office went begging for lack of cate General on April 9, 1777, but takers. On July 9, 1782, James did remain in the military service Innis was elected to fill the vacancy ; for another year. The distinguished two days later the pay and sub­ New York jurist, John Laurance, sistence were increased. N everthe· next assumed the duties of Judge less, Mr. Innis failed to signify his Advocate General on April 10, 1777. acceptance of the offer, and instead Before his appointment, Laurance intimated to his friends that he had served in the field with the would decline. Consequently, on the Revolutionary Army, both as a 18th of September, that year, Con­ regimental and staff officer. He gress elected Major Richard Howell prosecuted Major General Benedict to be Judge Advocate General. By Arnold for various military trans­ the first of October, Howell had de­ gressions, and a year later, acted clined the office. The search for as judge advocate of the board of Laurance's successor finally ended officers which investigated the cele­ with the appointment of the man brated case of Major John Andre, who had previously served as Adjutant General of the British his principal deputy: Lieutenant Army and chief of Sir Henry Thomas Edwards of the Ninth Clinton's inteIIigence service, who Massachusetts Regiment. Edwards conspired with the embittered served from the fall of 1782 until Arnold for the surrender of West November 1783, and so far as ap­ Point. After the war, Colonel pears from the Journals of Con­ Laurance had a notable career as a gress, he was the last incumbent in federal district judge, member of the office of "Judge Advocate" or the House of Representatives and "Judge Advocate General of the the Senate. During Laurance's tour Army" as it was variously desig­ 8 The Judge Advocate Journal nated prior to the adoption of the who shall be taken from the com­ Constitution. In 1784 the Army of missioned officers of the line." How­ the United States was reduced to ever, Smith, then a captain, was less than one hundred officers and appointed to this post in April of men, and it was not until com­ 1801, and continued to hold the mencement of the federal govern­ office until it ceased to exist by ment that any great interest was force of the Act of March 16, 1802. again taken in military matters. That legislation reduced the line of Among those who served as judge the Army to one regiment of artil­ advocates during the Revolution­ lery and two of infantry. The Ar­ ary War were several individuals of ticles of 1806-101 in number­ historical prominence. Most fa­ were adopted after Congress re­ miliar was Captain John Marshall, alized its new constitutional govern­ 15th Virginia Regiment, who served ment rendered desirable a complete as Chief Justice of the United revision of the code. These articles States Supreme Court for 34 years. superseded all previous enactments In addition, there was Major John on the subject and, except for cer­ Taylor, another Virginia politician tain amendments, remained in force of note, and Major Joseph Bloom­ for 68 years. field, who served as New Jersey As the threat of war with Eng­ governor and Congressman. land increased, the Army corres­ pondingly grew. The Act of Janu­ The Early Constitutional Period ary 11, 1812, provided for the ap­ (1789-1821) pointment of one Judge Advocate The Articles of 1776 continued per division, who was to have the in force until the adoption of the same pay and emoluments as a Constitution, but did undergo var­ major of infantry; or if appointed ious interim amendments mainly from the line of the Army, he re­ concerning themselves with redress ceived an additional monthly pay of of wrongs, general courts-martial thirty dollars and the same forage procedure for the "small detach­ allowance as a major of infantry. ment," the power of pardon, and The first appointment under the mitigation of sentences. 1812 Act was made in September of In 1792, the Army was organized that year; more than a year after into the Legion of the United its passage, a half dozen Judge Ad­ States. In July of 1794, Lieutenant vocates received appointments. In Campbell Smith of the 4th Infantry 1814, five additional officers entered upon their duties, one of whom was was appointed "Judge Marshal and Henry Wheaton, whose distin­ Advocate General to the Legion of guished legal career included posi­ the United States." Smith's ap­ tions as Reporter to the United pointment was terminated by States Supreme Court, Professor another military reorganization of Law at Harvard, and American calling for "one Judge Advocate, Minister to Denmark and Prussia. The Judge Advocate Journal 9

With passage of the Act of military legal structures and ad­ April 24, 1816 "for reorganizing ministration of the Army was given the general staff" the number of no recognition on the War Depart­ Judge Advocates per division was ment General Staff, although that increased to three, with the same body included some ten staff­ rank, pay and perquisites as be­ departments and staff-corps. Yet fore. Four additional Judge Advo­ the Army Regulations of 1835 vates were appointed between this stated: "The discipline and reputa­ time and 1818. And although the tion, of the Army, are deeply in­ number of JA's per division was volved in the manner in which mili­ again reduced to one in 1818-with tary courts are conducted, and jus­ pay and emoluments of a topo­ tice administered." Additionally, graphical engineer, i.e., major of the regulations emphasized that cavalry-a fifth Judge Advocate officers who sat on courts-martial was appointed. He proved to be the must "apply themselves diligently last appointee before 1821 when to the acquirement of a complete the Act of March 2 called for the knowledge of military laws; to discontinuance of the office effective make themselves perfectly ac­ June 1 of that year. quainted with all orders and regula­ tions, and with the practice of mili­ The Years of Oblivion and Rebirth tary courts." (1821-1861) In 1842, because of the "great The Army had been reduced in improvement which has been made number from 62,674 officers and in the facility of intercourse be­ men, to 12,383 by the Act of March tween the seat of government and 3, 1815. In addition to its lack of the most remote parts of the provision for Judge Advocates, the Union," the War Department dis­ March 2 Act of 1821 further re­ continued its former practice duced the number of men in serv­ wherein the country was divided ice to 6,126. The remaining two into two military divisions. The JA's were honorably discharged on departments that had previously the first of June 1821, and the been fragmentized were to report Army did not have a statutory full­ directly to Washington, and the time Judge Advocate again for major general commanding the some 28 years. Thereafter, line Army was instructed to redistrict officers were usually appointed on the United States into military de­ an ad hoc basis for judge advocate partments not to exceed ten in num­ duties in general courts-martial; ber. In conjunction with the reor­ others were detailed as acting judge ganization of 1842 the Office of the advocates of the two major terri­ Adjutant General became even torial commands. more concerned with the adminis­ Between 1821 and 1849 there tration of military justice. During were no statutory enactments re­ this period of reduced forces these lating to Judge Advocates. The traditional duties of the JA were 10 The Judge Advocate Journal performed by the Adjutant Gen­ Advocate of the Army, who shall eral, and they stayed within the have the brevet rank, pay and jurisdiction of his office until crea­ emoluments of a major of cavalry." tion of the statutory post of Judge The Acting Judge Advocate, Cap­ Advocate of the Army in 1849. tain Lee, was appointed the new The Adjutant General was as­ Judge Advocate, and he continued sisted in his legal functions by mili­ in that office until his resignation tary attorneys detailed to his office in 1862. Records from the office in­ in the capacity of "Acting Judge dicate that Lee's duties included Advocates of the Army." The first the review of courts-martial and of these officers was First Lieuten­ the rendition of various opinions ant Samuel Chase Ridgely, a West on military subjects as they arose. Point graduate from the 4th Artil­ However, there is some question lery of Maryland. He was followed as to the new Judge Advocate's by two more academy graduates: workload, in that the first opinion Captain Leslie Chase, 2nd Artillery signed by him in his official capacity of New York; and Captain John was dated June 17, 1850, and the Fitzgerald Lee, a Virginian with first recorded incoming correspond­ the Ordnance Department. In broad ence was dated August 19, 1854. terms, the inner-office procedure The second date may well be ex­ called for the Acting Judge Advo­ plained by the fact that corres­ cate to prepare a report for the pondence regarding court-martial Adjutant General, who in turn for­ cases was kept with the action it­ warded it by indorsement to the self, and the fact that the Judge General-in-Chief, at that time Gen­ Advocate was concerned with little eral Winfield Scott. After approval, other than matters of military jus­ the chief general's opinion on a tice in the lull before the War Be­ case was then written by the Acting tween the States. Judge Advocate to the officer con­ cerned. Several opinions were writ­ The War of Rebellion ten by the Adjutant General as late (1861-1865) as 1849, and his last legal corres­ With a nation in the throes of pondence is dated March 7, over­ civil war, President Lincoln became lapping the statutory creation of hardpressed for a commander who the Judge Advocate of the Army by could fight and win. In July of 1862 some five days. he brought Major General Henry By the Act of March 2, 1849, W. Halleck, an experienced Cali­ Congress authorized the appoint­ fornia lawyer and legal scholar, to ment of a Judge Advocate of the Washington to replace the cautious Army. That legislation provided General McClellan. As commander that "the President be, and is here­ of the Department of the Missouri, by authorized by and with the ad­ General Halleck had tried certain vice and consent of the Senate, to persons by military commission appoint a suitable person as Judge who were suspected of aiding the The Judge Advocate Journal 11

Confederacy. As Judge Advocate importance of the office. The suc­ of the Army, Major Lee had held ceeding section of the Act author­ that these commissions were with­ ized appointment of a Judge Advo­ out jurisdiction. Whether because cate for each army in the field, with General Halleck desired a free hand rank and pay of a major of cavalry, as General-in-Chief, or by coinci­ who performed duties under the di­ dence, shortly after he assumed rection of the Judge Advocate Gen­ command Congress legislated Lee eral. out of his job by superseding the As the War Between the States Office of Judge Advocate of the had begun to rage, the Act of July Army, and by recreating that of 17, 1862 created a corps of judge Judge Advocate General. There are advocates. Under this legislation, conflicting accounts as to whether and until the close of the war, some­ Major Lee retired that September, where between 33 and 39 officers or stepped down immediately, with were appointed in that corps. Seven Major Levi C. Turner of New York or eight of these officers were kept serving in the interim between July on duty in the Office of the Judge 31 and September 3, 1862. The en­ Advocate General, while the others actment-Section 5, Chapter 201, had field assignments. In Septem­ Act of July 17, 1862-declared : ber of that year, another Judge That the President shall appoint, Advocate General was appointed. by and with the advice and con­ The importance that President Lin­ sent of the Senate, a Judge Ad­ coln attached to the office was shown vocate General, with rank, pay by his selection of Joseph Holt, the and emoluments of a colonel of eminent stateman and lawyer. Holt cavalry, to whose office shall be had served as Secretary of War returned, for revision, the rec­ during President Buchanan's ad­ ords and proceedings of all ministration, and had previously courts-martial and military com­ been Postmaster General and Com­ missions, and where a record missioner of Patents. shall be kept of all proceedings General Holt's Confederate coun­ had thereon. terpart was Albert Bledsoe, Assist­ ant Secretary of War of the Con­ Section 5 further provided that no federacy. He was a West Point sentence of death or imprisonment classmate of Robert E. Lee and in the penetentiary should be execu­ Jefferson Davis, probably best ted until approved by the Presi­ known for founding the Southern dent. The provision had the prac­ Review. As might be expected, the tical effect of making the Judge Confederate States adopted the Advocate General an intermediate Articles of 1806 as their own mili­ appellate authority, and the nature tary code, supplementing them with of the additional duties it created as changes of their own. Among the Presidential advisor enhanced the large number of attorneys who 12 The Judge Advocate Journal served with the Confederacy were: Common Law Felonies and John A. Campbell of Alabama, an Reorganization (1865-1916) associate justice of the United The Civil War brought one im­ States Supreme Court appointed by portant change to military law. Un­ President Pierce; John Singleton til 1863, the Articles of War did not Mosby ("The Gray Ghost"), who include common law felonies except with his rangers, was noted for as they may have been prejudicial many daring Civil War raids; Jubal "to good order and discipline." A. Early, remembered for his at­ After 1863 a court-martial had jur­ tempt to capture the Union capital isdiction to try such crimes "in time of war, insurrection, or rebel­ in Washington; and a number of lion." other legislators and judges. Under the Act of June 20, 1864, Noteworthy among the Union the Bureau of Military Justice was Judge Advocates were: Major John created, attached to, and made a A. Bolles, who later became Judge part of, the War Department. The Advocate of the Navy; Mafor Bureau was charged with revising Henry L. Burnett, trial prosecutor and recording the records and pro­ in the landmark case of Ex parte ceedings of "all the courts-martial, MiUigan, who assisted General Holt courts of inquiry, and military com­ and fellow JA, Major John A. missions of the armies of the Bingham, in the prosecution of the United States." The Judge Advo­ Lincoln assassin trials. Bingham cate General was made the head was also noted as framer of the of this wartime Bureau, and ac­ 14th Amendment to the United corded the rank and pay of a briga­ States Constitution, and as one of dier general. The establishment of the House managers in the im­ an Assistant Judge Advocate Gen­ peachment of President Andrew eral with the pay and emoluments of a colonel of cavalry was also Johnson. Wells H. Blodgett is the provided for, and Major William only known Congressional Medal of McKee Dunn was appointed to fill Honor winner while serving as a that office. Judge Advocate officer, having cap­ Upon the reorganization of the tured 18 enemy soldiers during his Army under the Act of July 28, duties as Brigade Commander in 1866, the Bureau of Military Jus­ the 4th Division, 20th Army Corps. tice and its organization of a Judge Best known legal scholar of the Advocate General and Assistant Civil War officers was Major John Judge Advocate General was con­ Chipman Gray, Royall Professor tinued in operation. A maximum of Emeritus at Harvard, founder of 10 of the Judge Advocates then in the American Law Review, and office were eventually retained as author of Restraints on Alienation permanent Regular Army officers of Real Property and The Rule by virtue of the Act of February Against Perpetuities. 25, 1867. By subsequent act of The Judge Advocate Journal 13

Congress, the number of Judge Ad­ nel William McKee Dunn, his as­ vocates was fixed at eight. sistant, who became the fifth Judge The Articles of 1806 remained Advocate General. While in office, in effect during four wars: the General Dunn authored A Sketch of War of 1812, the Mexican War, the the History and Duties of the Judge War Between the States, and part Advocate General's Department, of the Indian Wars. During this United States Army (1876 and period 33 articles were added or 1878), which vividly portrayed the amended, but no major changes re­ growth of the Department from sulted. In 1874, a revised code was the Revolutionary period to the enacted, consisting of some 128 mid-1870's and contained statistics Articles-87 of which had sub­ and testimonials in support of the stantially survived from the 1806 continued existence of the Bureau code. The 1874 revision further of Military Justice. General Dunn extended the authority to order retired on January 22, 1881. He general courts, and their jurisdic­ was succeeded by Major David G. tion and powers were enlarged. Swaim of Ohio, an appointee of Legislative authority was also President Hayes, who had previ­ given for another type of court­ ously served as Judge Advocate martial born between 1806 and this of the Department of the Mis­ revision: the Field Officer's Court, souri, Fort Leavenworth, Kansas. forerunner to the summary court­ In 1884, Swaim received a 12-year martial, became authorized for use suspension from rank and duty in times of war. pursuant to court-martial sentence Under the Act of June 23, 1874, after having been found guilty of the Office of Assistant Judge Advo­ improper financial conduct in a cate General was discontinued, private business transaction, and of while provision was made that "In rendering a misleading explanation the corps of judge advocates no ap­ of the affair to the Secretary of pointment shall be made as vacan­ War. Swaim spent the next 10 years cies occur until the number shall be of his life seeking vindication of reduced to four, which shall there­ the stigma, and in December 1894 after be the permanent number of the unexecuted portion of his sen­ the officers of that corps." tence was finally remitted. He re­ After serving as Judge Advocate tired that same month. General for 13 years, Joseph Holt In the midst of the Swaim troub­ retired on December 1, 1875. Dur­ les the Bureau of Military Justice ing his tenure he had been breveted and the Corps of Judge Advocates major general, and had twice de­ were, by the Act of July 5, 1884, clined prestigious Presidential ap­ consolidated under the title of the pointments: from Lincoln, the post Judge Advocate General's Depart­ of Attorney General; and the Office ment, to consist of one Judge Advo­ of Secretary of War, tendered by cate General with the rank, pay and Grant. Holt was succeeded by Colo­ allowances of a brigadier general ; The Judge Advocate Journal one Assistant Judge Advocate Gen­ who wrote a text on military gov­ eral with the rank, pay and allow­ ernment and martial law; and Cap­ ances of a colonel; three Deputy tain Arthur Murray, another act­ Judge Advocate Generals, with the ing judge advocate, whose 1889 "In­ rank, pay and allowances of lieuten­ structions" were expanded into a ant colonels; and three judge advo­ courts-martial manual which was cates with the rank, pay and allow­ commercially published under his ances of majors. Under the same own name and later became the Act the Secretary of War was au­ official MGM published by the War thorized to detail such number of Department in 1895. Perhaps the line officers as might be necessary single most important figure of this to serve as acting judge advocates era was Colonel William Woolsey of military departments, with rank, Winthrop, who wrote two of the pay and allowances of captains of more renowned works on 19th cavalry. century military law. He prepared Colonel Guido Norman Lieber, three separate editions of his Di­ who had been General Swaim's as­ gest of Opinions of the Judge Ad­ sistant, served as Acting Judge Ad­ vocate General of the Army (1865, vocate General without the rank 1866 and 1868), in addition to later or pay of that office from July 22, revisions and annotations in 1880 1884, to beyond his superior's re­ and 1895. Colonel Winthrop's great­ tirement. Lieber accepted the ap­ est work, Military Law and Prece­ pointment as Judge Advocate Gen­ dents was published in 1886, with a eral on January 11, 1895. He was dedication to his former chief, Gen­ perhaps best known as the author eral Holt. A revised second edition of Remarks on the Army Regula­ was introduced in 1895, and reprint tions (1898), The Use of the Army editions of this treatise were made in Aid of the Civil Power (1898) in 1920 and 1942. Winthrop's dis­ and many other articles on military tinguished military career included law and related subjects. He was nearly a quarter-century of serv­ the son of Dr. Francis Lieber, ice alone in the office of the Judge scholar on the laws of war, who Advocate General. At the time of drafted General Order No. 100 of his retirement in 1895, Winthrop 1863, the basis of modern law on occupied the position of Assistant the subject of land warfare. Judge Advocate General. He spent A number of pre-Spanish-Amer­ less than a month as Acting Judge ican War judge advocates merit Advocate General prior to Swaim's mention. Three of them were: appointment in 1881. Lieutenant Colonel Lucien Francis The Act of April 22, 1898, au­ Burpee, who later commanded the thorized appointment of Volunteer Connecticut State Guard as a major officers for service in the Spanish­ general; Captain William E. Birk­ American War. It provided for a himer, Acting Judge Advocate of judge advocate with the rank of the Department of the Columbia, lieutenant colonel for each army The Judge Advocate Journal 15 corps. The Act of March 2, 1899, Civil War veterans were granted allowed for the retention of five a farewell promotion enabling them Volunteer judge advocates at to immediately retire as brigadier major's rank. General Lieber generals. This suggestion was fol­ stepped down as Judge Advocate lowed by the various departments General on May 21, 1901. Within of the General Staff, and conse­ the following three days, three dif­ quently the retired list of generals ferent men took the oath as Judge became so overburdened that Con­ Advocate General. On the same day gress eventually passed legislation that Lieber retired, his assistant to prevent such measures. By the for the previous six years, Thomas Act of February 2, 1901, the De­ F. Barr was sworn in as his suc­ partment was reorganized with an cessor. Barr had entered the Army authorized strength of 12 officers in in 1865; during most of his 36 grades from major to brigadier years of service he held the position general. For each geographical de­ of Commissioner of the United partment or tactical division with­ States Military Prison at Fort out a judge advocate commissioned Leavenworth, Kansas, and served in the Department, the 1901 legis­ as Military Secretary to four dif­ lation allowed for one acting judge ferent Secretaries of War. After advocate with rank and pay of a one day as Judge Advocate Gen­ captain, mounted. The same Act eral, Barr retired and was suc­ provided that vacancies in the office ceeded by John W. Clous, a German of the Judge Advocate General native with over 44 years of Amer­ would be filled by appointing an ican military service. Clous spent officer at the grade of lieutenant nearly 36 years in the line as an colonel or higher, holding office for enlisted soldier and an officer. He a four-year term. was twice brevetted for gallant con­ George Breckenridge Davis; a duct at the Battle of Gettysburg; West Point graduate who spent earned distinction for gallantry in some 17 years as a cavalryman, be­ the Indian campaigns; and served came Judge Advocate General of as a brigadier general of Volun­ the Army on May 24, 1901. Davis teers during the Spanish-American rode as an enlisted man with the War. Clous was Secretary and Re­ 1st Volunteer Cavalry from his corder of the Commission for the native Massachusetts; as an officer Evacuation of Cuba, and served as he served in 25 battles and en­ Deputy Judge Advocate General gagements during the War Be­ prior to his appointment as Judge tween the States. Aside from au­ Advocate General. Clous' term of thoring books on military history office was double that of his prede­ and cavalry tactics, he is also re­ cessor : he retired after two days. membered for several works dealing The apparent reasoning behind with military and international these two inordinately short tours law: Outline of International Law of duty was that these deserving (1888), Elements of Law and Ele­ 16 The Judge Advocate Journal ments of International Law (1897), tered the First World War on and his Treatise on Military Law April 6, 1917, the Department con­ of the United States (1898). Gen­ tained all of 17 officers, four of eral Davis guided the Department whom were on duty in the Wash­ through the Spanish-American ington office. Legislation passed the War, handling the investigation and following month provided for war­ trial of the notorious cases that time expansion by the appointment sprang from it; he represented the of temporary National Army offi­ United States as Delegate Pre­ cers, the call to active duty of Na­ potency to the Geneva Conventions tional Guard and Reserve officers, of 1903 and 1906, and the Hague and the temporary promotion of Convention of 1907. Davis retired Regular Army officers. The war from office on February 14, 1911. brought change within the Depart­ ment as well: the Judge Advocate World War and "The Great Debate" General was given rank and pay of (1916-1920) a major general (1917) ; enlisted Another West Point Cavalry offi­ men were authorized service as law cer, Colonel Enoch H. Crowder of clerks in the War Department and Missouri, succeeded General Davis the field (1918); and temporary as Judge Advocate General. He captains and first lieutenants, along had become a judge advocate major with Reservists, were allowed ap­ in 1895; three years later he served pointment (1918). As of December on the commission which arranged 2, 1918, the Department was 25 the Spanish surrender of the Phil­ times its pre-war strength, num­ lipines. While in the islands, he bering 426 commissioned officers : headed the Board of Claims, served 35 from the Regular Army and 391 on the Phillipine Supreme Court Reservists and National Guards­ and drafted a new Phillipine crimi­ men. nal code. Later, he was an observer In 1916, under the direction of with the Japanese Army during the Judge Advocate General Crowder, Russo-Japanese War; chief legal a revision of the 1806 Articles of adviser to the U.S.-sponsored Pro­ War was undertaken. Among the visional Government of Cuba; and more noteworthy changes : common United States delegate to the law felonies became triable in time Fourth Pan-American Conference. of peace, except for servicemen ac­ The Act of June 3, 1916, estab­ cused of murder or rape committed lished an Officers' Reserve Corps. within the continental United The same Act provided for a five­ States; a disciplinary court, inter­ year incremental increase in De­ mediate between the summary and partment strength to 32 officers general courts-martial, was created with rank from major to brigadier with powers to impose punishment general, plus the acting judge ad­ short of a dishonorable discharge; vocates authorized in 1901. How­ and reviewing authorities were ever, when the United States en­ given the right to mitigate a court­ The Judge Advocate Journal 17 martial's guilty finding to a finding able, ignorable power to advise a of guilty of any lesser included reviewing authority to alter his ac­ offense. The remainder of the Ar­ tion on a record of trial. Against ticles mostly reassembled and re­ the background of the "Texas classified previous compilations, Mutiny" and "Houston Riot" cases, adding some codification of the in­ General Ansell proposed a con­ tervening judicial precedents since struction of these duties as em­ the 1874 revision. A new Manual powering the Judge Advocate Gen­ for Courts-Martial was published in eral with full appellate powers to 1917 to introduce and interpret reverse or modify a reviewing au­ these Articles for the military es­ thority's action in instances of tablishment. jurisdictional defect or prejudicial During the war years of 1917-19, error. Disagreement from General Judge Advocate General Crowder Crowder set the stage for the De­ was given the additional duties of partment's great in-house debate Provost Marshal General, a position commonly referred to as the essentially equivalent to director of "Ansell-Crowder Dispute." While the Selective Service. This position the Secretary of War ultimately kept Crowder away from the Judge favored General Crowder's inter­ Advocate General's Office through pretation, Ansell's viewpoint was most of the war, so that the admin­ somewhat vindicated by the 1918 istration of military legal matters adoption of General Order No. 7, fell upon Brigadier General Samuel which required reviewing authori­ T. Ansell of North Carolina, the ties to suspend execution of sen­ Acting Judge Advocate General. tences of death, dismissal or dis­ It was soon realized from war­ honorable discharge until review time application of the 1916 Arti­ by the Judge Advocate General. cles that the pre-revision critics The reviewing authority's freedom were still unsatisfied with the to disregard the Judge Advocate American military justice system. General's opinion, however, did not Most of the continued criticisms silence Ansell or other more vocal centered on the disparity of some­ supporters of military legal reform. times harsh sentences, often arbi­ World War I had its share of trarily handed down by various line noteworthy Judge Advocate offi­ officers lacking any legal training. cers: Major Felix Frankfurter be­ Others criticized the absence of ap­ came an associate justice of the pellate review except for those few United States Supreme Court after cases necessitating Presidential serving on the Harvard law faculty; confirmation. Up until 1917, Judge with him at Harvard were fellow Advocates General had interpreted J A Colonel Edmund M. Morgan and their statutory duty to "receive, Eugene Wambaugh, respective ex­ revise, and cause to be recorded perts in the fields of evidence and the proceedings of all courts­ constitutional law; former North­ martial" as merely a nonenforce­ western Law School dean, John H. 18 The Judge Advocate Journal

Wigmore, who contributed his legal review of court findings ; and acumen in two separate revisions of establishment of a three-judge the Manual for Courts-Martial­ military appeals court. most notably in areas dealing with Most of the specific proposals his principal field of evidence; and were rejected by Congress, and Edwin R. Keedy, later Dean of the The Ansell Draft was "badly muti­ University of Pennsylvania Law lated," in the words of a supporter. School. Outside the academic circle: However, a limited revision of the Henry L. Stimson and Patrick J. Articles of War did take place as Hurley both became Secretaries of part of the Army Reorganization War-Stimson also serving as Sec­ Act of 1920, and an attempt was retary of State, and Governor Gen­ made to meet a number of criti­ eral of the Phillipines; Charles cisms levied at the 1916 Articles: Beecher Warren was Ambassador the President was given authority to Japan and Mexico; while Nathan to prescribe maximum punishment William MacChesney served as Min­ for crimes ; the pretrial investiga­ ister to Canada. Brigadier General tion was codified, but the officer's Hugh "Iron Pants" Johnston be­ recommendations were not made came a popular post-war figure dur­ binding; general court-martial ing his service as head of the Na­ charges were to be referred for tional Recovery Administration. pretrial SJA consideration and ad­ With wartime concern over mili­ vice; acquittals were to be an­ tary justice fresh in the national nounced immediately in court; mind, the Ansell-Crowder Dispute there was still no provision for a developed into a major political judge, but a Departmental "law topic of the day. Lines were drawn member" was introduced, with over the essential legal issue: duties to instruct the court and whether the military court-martial rule on interlocutory matters, but system merited the accommodation whose rulings were only final as to of evolving jurisprudential develop­ the admissibility of evidence; com­ ments seen in Article III courts; or manders continued to review convic­ whether the system was a strict tions and sentences, but could not and more static instrumentality of review sentences upward or return the executive, set up to aid the an acquittal for reconsideration; Commander-in-Chief or his de­ the reviewing authority was to re­ signee in the command and disci­ fer general court records to the pline of the armed forces. Ansell's SJA for advice prior to final action, proposals were drafted and pre­ but was not bound to accept such sented to the Senate as the Cham­ advice ; and under Article 50 % a berlain Bill. They called for: more Department board of review was specific definition of offenses; established for certain general changes in composition, choice and court cases-but whose recom­ challenge of court members; eradi­ mendations were merely advisory cation of command control over the to the Judge Advocate General, The Judge Advocate Journal 19

Secretary of War and the Presi­ 1949). Crowder was succeeded by dent. As was done in 1917, a re­ Colonel Walter A. Bethel, co-author vised Manual for Courts-Martial of the 1921 Manual. Bethel had was published in 1921, incorporat­ been handpicked by General Persh­ ing the 1920 changes in the Articles ing to be his Staff Judge Advocate of War: this was the first Manual during his command of the Euro­ promulgated by Presidential order pean forces in 1917. In addition, rather than intra-Department di­ Bethel had spent 14 years in the rective. line; had served as a brigadier The Act of June 4, 1920, fixed the general during the war; and as Department strength at one Judge judge advocate of the American Advocate General with major gen­ Expeditionary Forces in France. eral's rank, and an officer corps of He retired after 22 months as The 114 to consist of colonels through Judge Advocate General (the cap­ captains promoted on an Army­ italized "The" having been added wide basis rather than length of to the office in 1924). service so that there were no fixed numbers in any one officer grade. Unification of the Armed Forces Vacancies created by the Act were and Another World War filled with those non-Regulars who (1920-1945) joined the Department as part of Colonel John A. Hull, who had the wartime expansion; subsequent served as Acting Judge Advocate additions came from branch trans­ General for almost a year and a fers, plus some Reserve appoint­ half prior to Bethel's appointment, ments. The Department was forced was appointed The Judge Advocate to demote, retire and discharge General on November 16, 1924. He some of its officers when its retired on November 15, 1928, after strength was cut to 80 by the Act 30 years of military service to later of June 30, 1922, although that become Associate Justice of the figure was variable by the President Supreme Court of the Phillipine within 30 percent. Islands. The day following Hull's General Crowder retired on Feb­ retirement, Colonel Edward A. ruary 15, 1923, leaving the Depart­ Kreger was appointed his successor. ment with several new volumes in Kreger, an infantry officer for its military legal library. In addi­ many years, served during the war tion to the revised Articles and as Assistant to the Provost Marshal Manual published during his ten­ General, and as both Assistant and ure, a digest of opinions of the Acting Judge Advocate General for Judge Advocates General from the Branch office of the Judge Ad­ 1862-1912 was prepared and sup­ vocate General, in France. Kreger plemented, and an annotated com­ retired from office in February of pilation of Military Laws of the 1931, and was succeeded by Colonel United States was introduced (with Blanton Winship, a highly deco­ subsequent revisions through rated J A who at one time com­ 20 The Judge Advocate Journal mantled two infantry regiments, military officers prominent in the and whose career included such revision of the 1906 Geneva Con­ positions as President Coolidge's vention-was responsible for carry­ military aide and legal advisor to ing out the provisions of that code the Governor-General of the Phil­ through supervision of the handling lipines. After Winship retired on of Axis prisoners of war. Six days November 30, 1933, he became prior to the attack on Pearl Harbor, Governor of Puerto Rico. He was Myron C. Cramer became Judge recalled to duty in the forties for Advocate General of the Army. service with the Inter-American As the war clouds had begun to Defense Board. form in the late thirties, the Army On December l, 1933, Colonel and the Department began to grow. Arthur W. Brown became Judge Ninety judge advocates were on Advocate General of the Army. He active duty in 1938; the Act of had served as acting judge advocate April 3, 1939, authorized an in­ of the American Expeditionary crease in Department strength to Forces at Vera Cruz; was a war­ 121 in annual increments over a time judge advocate of the 78th ten-year period. On the first of July, Division and the Third Army in 1940, there were but 87 officers on France; and served in various other active duty in the Department, all legal capacities throughout Central of whom, with the exception of two and South America prior to his reserve officers, were members of duties as TJAG. General Brown the Regular Army. Following the retired after expiration of his four­ Emergency Proclamation, the officer year term, succeeded by Allen W. personnel increased to 407 as of Gullion on the first of December, December 7, 1941. Retired, Reserve 1937. Gullion was perhaps best and National Guard judge advo­ known for his prosecution of flight cates swelled the ranks from 190 ace Brigadier General "Billy" in July 1941 to some 771 a year Mitchell, but he also served as later: 110 officers of the Regular judge advocate of the Third Army Army, active and retired. 435 from Corps during World War I. His the Reserve Corps, 81 National administration as TJAG was Guardsmen, 53 detailed from other marked by the reduction of the branches, and 92 possessing tempo­ general court-martial rate to the rary commissions issued by virtue lowest point in the peacetime his­ of 1941 legislation. A Judge Ad­ tory of the Army. Four months be­ vocate General's School was estab­ fore his retirement, Gullion was lished at National University, appointed Provost Marshal General, Washington, D.C. in 1942. It moved a position he retained some three to the University of Michigan in years after stepping down as Judge Ann Arbor shortly afterward, serv­ Advocate General on November 30, ing as an Officers' Candidate School 1941. As Provost Marshal Gen­ and orientation training for almost eral, Gullion-one of the American 2000 wartime JAG students. Ap­ The Judge Advocate Journal 21 pointment of temporary officers fur­ and Long Island in 1943. Brigadier ther increased the officer corps, and General Thomas H. Green became by May 31, 1945, there were 2,162 The Judge Advocate General on the judge advocates in active service, first of December, 1945. He had 367 of whom performed duties with previously served as wartime execu­ the Army Air Force. Between July tive to the Military Governor of 1, 1941 and April 30, 1945 over Hawaii, Assistant Judge Advocate 63,000 general court trial records General, and Deputy Judge Advo­ were reviewed by the boards of cate General. Green repeatedly review in the Washington office; forecasted the increased need for nearly 20,000 such records of trial judge advocates after cessation of were reviewed by boards set up at hostilities, and his estimates were five overseas branch offices. The fully realized by the large requisi­ wartime workload spilled over in tions for legal officers immediately other areas of concern to The submitted by overseas commands Judge Advocate General: claims, after the war. Legislation of 1947 military affairs, procurement, inter­ abolished the fixed statutory national law, litigation and legal strength of the Department and its assistance. system of permanent commissions, World War II produced its share leaving its size and composition to of JAG officers who went on to the discretion of the War Secre­ serve their country in other pur­ tary. Also in 1947, the Air Force-­ suits. Among them: House Speaker until that time part of the Army­ Carl Albert; Senators Frank Moss became a separate and distinct De­ and Ralph Yarborough; Congress­ partment. With it went a number men Joseph Landon Evins and of notable J A's who formed the Alexander Pirnie; Federal District nucleus of the modern day United Court Judge John Lewis Smith, States Air Force Judge Advocate Jr.; legal educators Joseph Warren General's Office. The old system Bishop, Jr., William Fratcher, of a statutorily fixed strength with Mason Ladd and Charles Porter­ permanent commissions was rein­ field Light, Jr.; Solicitor General­ stated in 1948; that year the De­ ICC Chairman Abe McGregor partment was also transformed into Goff; Army Undersecretary Karl the Judge Advocate General's Robin Benderson; and ABA Presi­ Corps. Its fixed strength was set at dent-Watergate Special Prosecutor one Judge Advocate General with Leon Jaworski. rank of major general; one major General Cramer stepped down as general assistant; three brigadier TJAG on November 30, 1945. In generals; and a number of Regular addition to his administrative du­ Army JA's, in grades from colonel ties as The Judge Advocate General to first lieutenant, not less than one he had also served as co-prosecutor and a half percent of the authorized of the eight German saboteurs who officer strength of the Regular had landed by submarine in Florida Army. 22 The Judge Advocate Journal

Continued Post-War Reform created in addition to, and at a level (1945-1962) above, the Board of Review, for World War II had once again review and confirmation in specified focused public attention on the cases. This Code was implemented topic of "judicializing" and "civil­ by the Manual for Courts-Martial, ianizing" military justice. Over 16 U.S. Army 1949. In November, million men and women had served 1949, General Green retired as in America's armed forces. With TJAG; he was succeeded by Major over 2,000,000 courts-martial con­ General Ernest M. Brannon on vened during that wartime period, January 27, 1950. one in eight servicemen was ex­ Soon after its passage, the need posed to a criminal code that had to extend the provisions of the been essentially unchanged for 160 Elston Act to all services, and to years. Most of the stories of unfair­ set up uniform court-martial pro­ ness, arbitrariness, misuse of au­ cedures with due regard to criti­ thority and inadequate protection cisms already directed at the legis­ of rights could be boiled down to lation, was realized. In August of the criticism that commanders ex­ 1948, the military establishment ercised too much control over sought to overhaul its justice sys­ courts-martial procedures from tem with appointment of a special prosecution through review. It was Code-drafting committee headed by clear that the central issue in re­ Professor Edmund M. Morgan. forming military justice was the Seven months later, the committee commander's role in the court­ finalized its draft of the proposed martial. The Secretaries of the Code. And, after extensive legisla­ various services and the Secretary tive hearings, it was enacted into of War created numerous com­ law by Congress on May 5, 1950, mittees to investigate complaints, to become the Uniform Code of correct injustices, and provide sug­ Military Justice. This 140-article gestions for improvement in the Code was implemented by the Man­ administration of military justice. ual for Courts-Martial, U.S., 1951. Through passage of the Elston Act While there were many changes in 1948, certain amendments to the affecting rights of the individual 1920 Code brought about further and in nomenclature, by far the reform in the system : counsel for most controversial and comprehen­ general courts were required to be sive changes concerned the process lawyers, if available; in all such of appellate review. This system cases where the trial judge advo­ bore a striking resemblance to that cate was a lawyer, the appointed de­ proposed by General Ansell and fense counsel had to be a lawyer supported by Professor Morgan as well ; dual roles of counsel in some 30 years before. At its cap­ judicial proceedings were circum­ stone was a three-judge civilian scribed; and a Judicial Council con­ Court of Military Appeals-evi­ sisting of three JAG generals was dencing the paramount legislative The Judge Advocate Journal 23 concern that a considerable degree testing period was far too short. of non-military control be injected And so, throughout the late fifties into the court-martial structure, and early sixties, there was little divesting, insofar as possible, all public interest in the reform of resemblance of command control. military law. For the most part, This UCMJ incorporated the Army this middle period was a time of reduced conscription. During Fiscal system of review by a formally Year 1952, there were 1200 JA's on constituted Board of Review; the active duty; in l!:J56, the Corps Judicial Council was discontinued. numbered somewhat over 1000, Within the Corps, the effect of with 50% being Reserve officers. the new Code and a war in Korea After General Brannon's retirement created tremendous personnel de­ in January of 1954, the next decade mands. At the outbreak of hostili­ saw four new Judge Advocates Gen­ ties in Korea, there were 650 J A's eral: Eugene Meade Caffey (1954­ on duty: 350 being Regulars, and 56) ; George W. Hickman, Jr. the remainder being Reserve offi­ (1957-60); Charles L. Decker cers on extended active duty. Four (1961-63) ; and Robert H. McCaw involuntary recalls netted some 300 (1964-67). Many of the develop­ more officers. In 1951, law gradu­ ments within the Judge Advocate ates were commissioned as Reserve General's Corps during this period first lieutenants and called to active came about as the result of basic duty for three years. A minimum housekeeping: a bound Court­ of three qualified lawyers were Martial Reports was initiated; in­ required for each court-martial, and novations were introduced in elec­ two new OTJAG divisions were tronic court reporting; a separate needed for defense and government promotion list that had proved un­ appellate duties. During the Korean comfortable in the past was Conflict, seven boards of review abolished; a new Judge Advocate were set up within the Office of General's School facility was dedi­ The Judge Advocate General. The cated in Charlottesville ; the codifi­ Judge Advocate General's School, cation and revision of all military discontinued at Ann Arbor in 1946, legislation was enacted as Title 10, was re-established at Fort Myer, United States Code; a Field Ju­ Virginia in September of 1950, pro­ diciary program came into exist­ viding refresher courses for Re­ ence; a Military Law Review was serve officers called to active duty. introduced into the ever-expanding In August of 1951, the School was Army law library; a careerist's Ad­ reactivated as a permanent institu­ vanced Course was approved for tion on the grounds of the Univer­ award of graduate degrees; an Ex­ sity of Virginia, in Charlottesville. cess Leave Program was developed The Korean War proved incon­ to assist in Corps recruiting. A clusive as far as the efficacy of the growing body of federal case law 1951 Code was concerned: the and other internal developments 24 The Judge Advocate Journal

further changed the character of passage of HR 15971-the Military military law: the jurisdiction of Justice Act of 1968-without a military courts was reduced when single dissenting vote. Credit for the Supreme Court ruled former this enactment was also due to servicemen could not be returned Major General Kenneth J. Hodson, to the military for crimes com­ The Judge Advocate General of mitted during prior service; juris­ the Army (1967-71) who served as diction was removed from over the Defense Department's Congres­ military dependents and Depart­ sional liaison, and was informally ment of the Army Civilians serving authorized to negotiate for all the overseas; an article dealing with services during the deliberations bad check offenses was added to that preceded passage of the new the Code ; and a new mode of non­ Act. judicial punishment was introduced, Among the more important g1vmg a commander increased changes in the legislation : the law power to discipline those under his officer was designated a military command by punishment or mone­ judge, clothed with authority not tary forfeiture. theretofore recognized as to finality of rulings and the like; the judge The Military Justice Act of 1968 became a member of an independent (1962-1970) judiciary within his service branch, Cold War tensions gripped the directly responsible to his Judge sixties. The Berlin buildup, the Advocate General "for direction Cuban missile crisis and finally, and fitness ratings"; the judge Vietnam renewed the need for a could be detailed to a special court­ strong military establishment. In martial and a non-capital general the area of military legal matters, court, where an accused could elect the Congressional Subcommittee on a trial by judge alone; in those Constitutional Rights held its first cases the accused was advised prior hearing on military justice in 1962. to his election as to the identity of This action was precipitated by the trial judge, and was afforded nearly a decade of mixed reaction the right to consult with his coun­ to the 1950 Code-from the Army sel. Special courts were restricted Secretary's "Powell Committee," an in adjudging a bad conduct dis­ interservice UCMJ committee com­ charge to those cases where the ac­ posed of Judge Advocates General cused was represented by a lawyer, and military appellate judges, the a verbatim record was kept and a Association of the Bar of the City military judge presided; an indi­ of New York, the American Legion, vidual could then refuse nonjudicial and various legal commentators. punishment to request trial before Through the efforts of Senator a tribunal higher than a summary Sam J. Ervin, Jr., and Congressman court, there he would be entitled to Charles E. Bennet, six years of counsel as a matter of right. The legislative debate culminated in the Boards of Review were replaced by The Judge Advocate Journal 25 a Court of Military Review, which take on the responsibility as Chief could sit in panels or en bane; it Judge of the Court of Military Re­ enacted a military form of release view and Chief of the U.S. Army from confinement pending appeal; Legal Services Agency. General extended the time for petitioning Hodson held this post until his re­ for new trial; and strengthened tirement in March of 1974. He was other post-conviction remedies succeeded by l\Iajor General George available to the serviceman. A re­ S. Prugh, who assumed duties as vised edition of the Manual for TJAG in July, 1971. Courts-Martial came into being in late 1969, incorporating the changes The Seventies and Beyond of the new Justice Act into a Man­ (1970- ) ual previously issued that year. The The 1970's saw a continued Corps new legislation became effective on strength approaching 2000 as the the first of August, 1969. war in Vietnam continued on. The A new Code brought increased military judge was granted power manpower demands to a legal corps already occupied with a raging to issue search warrants in limited Vietnam war. The Military Jus­ situations; an experimental "mili­ tice Act required some 400 new tary magistrate" program was em­ JAGC personnel. The Corps had al­ ployed to reduce unnecessary pre­ ready experienced a massive build­ trial confinement; the military up in the late sixties with 800 legal community adapted itself to a lawyers having been added in 1969 voluntary Army, a lack of jurisdic­ alone. By 1970 the average Corps tion over "service-connected" of­ strength was 1900. Aside from the fenses, and new developments in increased justice activities occa­ the growing right to counsel. The sioned by the war, the Corps took end of the Vietnam war in early on a number of expanded duties: 1973 signalled a new peace, and the legal assistance program, begun time to reflect on the future de­ in 1942, bloomed under the Pilot mands of military law-and to re­ Legal Assistance Program begun consider the legal mission of the in 1971; claims responsibilities ex­ entire Judge Advocate General's panded tremendously with in­ Corps. Our 200-year heritage evi­ creased federal legislation in that dences tremendous growth. But area; the advent of status of forces challenges of a new era await: agreements necessitated more at­ maintenance of a professional legal tention to international law; pro­ corps; environmental and energy curement requirements mush­ demands; more concern with the roomed under wartime military de­ law of war; implementation of a mand; and the law of war took on solid paraprofessional program and renewed importance. General Hod­ modern legal business methods; ad­ son stepped down as The Judge Ad­ ditional participation in court for vocate General in June of 1971, to the military client. Other criticisms 26 The Judge Advocate Journal must be dealt with: the separate tions and customs. Those officers of defense corps question; the random the Corps have convinced their court member selection problem; fellow servicemen and commanders the issue of excessive pretrial con­ of the merit of professional legal finement and military bail; sen­ advice and equal justice under the tencing and suspension powers for law. The Army lawyer has accepted the military judge; the drug prob­ the challenging burden of explain­ lem; the ever-growing rights of ing and justifying the unique fea­ the individual; racial and sex dis­ tures of a military jurisprudence that is ofttimes criticized by a mis­ crimination; the continued reduc­ informed public. Those who wear tion of convening authority review; the "sword and pen crossed and vague and ill-defined punitive legis­ wreathed" exhibit the education, lation. training, high standards of scholar­ The Judge Advocate General's ship, attentiveness to legal detail Corps has borne its awesome re­ and exemplary behavior that began sponsibility ably since 1775, moni­ with the birth of a country, and toring the administration of the shall accompany it for its many nation's and Army's law, regula­ centennial celebrations to come. BRITISH BICENTENNIAL GUEST Major General John C. Robertson, Director of Army Legal Services of the British Ministry of Defense, graciously visited the United States from April 25 to May 3, 1975 to participate in the Bicentennial Celebra­ tion program of the Judge Advocates Association. During the one week stay General Robertson was the house guest of Major General and Mrs. George S. Prugh. He was the guest and speaker at the Bicentennial Dinner of the Judge Advocates Association at the Army & Navy Club on the evening of 26 April at which The Judge Advocates General of all the services, the officers and directors of the Association and more than a hundred of the members of the Association and their ladies attended. General Robertson's busy schedule included visits to the U.S. Naval Academy, the U.S. Military Academy, The Penta­ gon, The Judge Advocate General's School and a Dining-In at the Fort Belvoir Officer's Club. During the summer of 1976 our own TJAG's will make reciprocal visits to their British counterparts.

27 28 The Judge Advocate Journal

Major General John C. Robertson, DALS LAWYERS FOR AND OF THE NAVY Captain Homer A. Walkup, JAGC, USNR (Ret.)" Lest one become too strongly im· and October, 1775, by General bued with the notion that naval wit George Washington who manned comes only from long continued five schooners and a sloop with offi· close communion with Neptune, it cers and soldiers from his army should be noted that our basic naval and sent them out to prey on in· law-the disciplinary articles- coming British supply ships. The stems from the Commonwealth pe· most significant 100% American riod, when the governmental power naval action of the war was the in England was that of the New Battle of Lake Champlain in 1776, Model Army, created and con· in which the American ships were trolled by MP Oliver Cromwell, and completely defeated and destroyed. was effected by Robert Blake, a The necessity of fighting the battle, merchant MP turned army colonel, however, delayed the invasion from who never set foot on a ship in an Canada from 1776 until 1777, and authoritative capacity until age Burgoyne, who led the invading fifty. When Blake did go to sea, force in that year, surrendered at he began at the top, as Admiral and Saratoga. The surrender at Sara· General of the Sea, but spent most toga was decisive in bringing the of the remaining decade of his French Navy to our aid, and a life at sea and is generally recog· major factor in inducing Corn· nized as being one of the two or wallis to surrender at Yorktown three greatest fleet commanders in was the presence of French naval British history. units preventing his being relieved Thus emboldened, let further from the sea. iconoclasm be done by noting that If anyone be considering the John Paul Jones did not found the erection of a monument to the first Revolutionary American Navy, and professional lawyer associated with that the heroic victory of the Bon the Navy, the prime nominee-­ Homme Richard over the Serapis whose name has never been a house· was neither the most significant hold word-is Bulstrode White· naval action of the Revolutionary locke. Whitelocke and John Brad· War nor the most significant action shaw were the lawyer members of conducted solely by American naval the Rump Commons who comprised forces. The American Colonial a committee with Algernon Sidney Navy was founded in September which reputedly prepared and ob·

*Member The West Virginia State Bar; Bar of the U. S. Supreme Court A. B., West Virginia University, 1935; LL. B., West Virginia University College of Law, 1938; LL. M., Georgetown Law School, 1947 Member, Navy Court of Military Review, 1966-68 Deputy Assistant Judge Advocate General of the Navy (Investigations) 1968-1973 29 30 The Judge Advocate Journal tained approval, at Robert Blake's structions, as well as disclaiming behest, of the thirty-six Naval Ar­ any detraction from nominee ticles which, some eight years later Whitelocke or beclouding of the after the Restoration were enacted validity of the 1775 Resolution, the into statute law as the Naval Dis­ 17 49 legislation subtracted very cipline Act of 1661. Bradshaw's little from the 1661 Articles and name has been omitted from the the vast majority of language nomination in the interest of con­ changes were minor and perfecting tinued amicable international rela­ only. tions. He was the Lord President of It would be a source of pride and the High Court of Justice which satisfaction to match the Army ac­ kangaroo-tried and condemned count with a recitation of names of Charles I in January, 1649, and illustrious U.S. Naval judge ad­ although he died in bed prior to the vocates, beginning on or before 28 Restoration, the royalist partisans November 1775 and continuing to who abounded thereafter exhumed this noon, but the author's ability the corpse and dealt with it in an as a writer of fiction is dubious, irreverent manner. and his skill in contriving fabri­ The Whitelocke Articles were in­ cations, nonexistent. The Navy cluded, in paraphrase and excerpt, went out of existence after the in Regulations and Instructions Re­ Revolution. In the early stages of lating to His Majesty's Service at operation of the present govern­ Sea, 11th edition, published in Lon­ ment under the Constitution, con­ don in 1772, which publication com­ struction and outfitting of some manded compliance therewith un­ ships was authorized to meet the der the official name of the Act 13 threat of the Barbary pirates, but Charles II, chapter 9, notwithstand­ the mission was entrusted to the ing that the 1661 Act had been re­ War Department. An Act approved pealed and superseded almost a 1 July 1797 1 authorized the Presi­ quarter of a century before by the dent to cause the frigates United revision prepared under the aegis States, Constitution, and Constella­ of Admiral the Lord Anson, 22 tion to be manned and employed. George II, chapter 33, effective 25 Section 8 of that Act provided that December 1749. The Regulations the personnel belonging to the and Instructions, not the 1749 leg­ "navy of the United States" (note islation, was the source of Rules that the initial 'n' is lower case) for the Regulation of the Navy of should be governed by the rules the United Colonies, adopted by for the regulation of the navy resolution of the Continental Con­ established by the resolution of gress 28 November 1775. In de­ 28 November 1775, "as far as the fense of the mutatis mutandis dere­ same may be applicable to the con­ liction in the Regulations and In­ stitution and laws of the United

11 Stat. 523. The Judge Advocate Journal 31

States, or by such rules and articles formance by civilian experts from as may hereafter be established." the front office. Moreover, trans­ An Act of 30 April 1798 2 estab­ portation and communication were lished the Department of the Navy so slow and difficult that timely with the Secretary of the Navy as assistance could seldom have been its chief officer, and insinuated rendered from Washington, even that the Office of the Secretary of had it been otherwise feasible. It War should turn over all papers and would be comforting, in the instant cease dabbling in naval affairs once connection, to specify some, and the Department of the Navy came suggest by allusion the existence of into operation. An Act of 2 March innumerable more, evils stemming 1799,3 set forth a revision of the from lack of professional lawyer 1775 rules presenting a more law­ guidance of commands; but the as­ yerlike appearance, and 23 April certainable facts simply do not 1800 4 witnessed a well conceived support any such brief. The sole "Act for the better government of incident of which the outcome the Navy of the United States," might arguably have been altered utilizing material derived from the had a suitably experienced lawyer 1749 British legislation as well as been present was the execution of the Regulations and Instructions. a midshipman and two seamen in With the sole significant addition, 1842 aboard the brig, USS SOM­ in 1855,5 of the authority for three­ ERS, commanded by Captain Alex­ officer summary [now termed spe­ ander Slidell MacKenzie. The three cial] courts-martial, empowered to were suspected of plotting a mutiny impose any of several specified pun­ and seizure of the ship. The hang­ ishments, including discharge from ings attracted much contemporan­ the service with a bad-conduct dis­ eous public attention in that the charge, upon petty officers and per­ midshipman involved was Philip sons of inferior ratings, the Act of Spencer, son of the incumbent 23 April 1800 apparently satisfied Secretary of War. Whether Mac­ the needs of the Navy until 17 kenzie had overreacted; whether he July 1862. had made sufficient allowance for Lawyers undoubtedly served as, investigative bias on the part of and assisted, the Secretary of the Lieutenant Gansevoort, who had Navy during the pre-Civil War served as the command's eyes and period. A judge advocate's func­ ears regarding the mutiny; and tion, however, inherently does not whether the suspects might not lend itself to direct or guided per­ have been set ashore; all remain

2 1 Stat. 553. s 1 Stat. 709. 4 2 Stat. 45.

5 Act 2 March 1855, 10 Stat. 627. 32 The Judge Advocate Journal

as issues on which there is no lins for having illegally captured a unanimity, in or out of the service. Confederate vessel in the harbor of Whatever resolution may be made Bahia, Brazil, suspectedly called for of them, arguendo, the isolated un­ histrionic, as opposed to legal, talent fortunate incident ill supports a on Wilson's part. Wilson was in­ blanket indictment of the sixty-year volved in prosecution of alleged con­ disciplinary organization. tract frauds, being judge advocate The Civil War occasioned a seven­ of a panel court-martial which sat fold expansion of Navy personnel in New York City. His association (8800-60,000) and of vessels (76­ with the Navy was discontinued 600) by the end of 1864, and the near the end of Lincoln's first ad­ effectiveness of the blockade by that ministration. Entering private law time in reducing to a trickle sup­ practice in Washington, D.C., Wil­ plies reaching the Confederacy, is son represented clients before in­ one of the less-heralded factors con­ ternational commissions; was four tributing to the surrenders the fol­ times president of the Bar Associa­ lowing Spring. Secretary of the tion; and died in 1922, at age 86. Navy Gideon Welles, his own back­ In February, 1865, Welles re­ ground being that of a New Eng­ quested creation by the Congress of land newspaper publisher, was per­ an office of Solicitor and Naval ceptive respecting the need for legal Judge Advocate General, to which services which such expansion the Congress responded with an would entail, as he was in other Act approved March 2, 1865,6 au­ particulars. He obtained from the thorizing such appointment by the office of the United States Attorney President, by and with the advice in the District of Columbia, one of and consent of the Senate, "for the Assistants, a 26 year-old law­ service during the Rebellion and yer from Zanesville, Ohio, who had one year thereafter." Four days been admitted to the District of after approving the Act, Lincoln Columbia Bar the previous year, appointed William Eaton Chandler and pressed him into service as to the office. Chandler had been "Solictior for the Navy Depart­ graduated from Harvard Law ment" (a post for which there was School at the age of 19, in 1854, no statutory authorization) from functioning successively thereafter 1862-1865. Nathaniel Wilson serv­ as court reporter, politician, and ed as judge advocate of a court­ journalist in his native State of martial at City Point, Virginia, New Hampshire, being sometimes before which Commander Parker termed the "stormy petrel" of that was tried on charges of failing to political sphere. Joseph A. Gilmore, attack Confederate vessels passing father of Chandler's wife, was Gov­ obstructions in the James River. ernor of New Hampshire 1863-5 ; Prosecuting Captain Napoleon Col­ during the same years Chandler

a ch. 76, 13 Stat. 468. The Judge Advocate Journal 33 was elected to the legislature and ning of conversion from wooden to was Speaker of the Assembly in steel hulls for naval vessels, but 1864 and 1865. Concurrently with he insisted that the new vessels be Wilson's activity in New York, built in yards in the United States. Chandler had performed part-time American technology was not equal service for the Navy Department in to the challenge at the time, and the prosecution of alleged war con­ none of the four vessels started tract frauds in Philadelphia. during his tenure was any better A question coming to mind is than mediocre. Chandler was elect­ why one of this background could ed to the Senate from New Hamp­ not obtain a better appointment shire in 1887, 1889, and 1895, but than the $3,500 a year position of was defeated in seeking reelection Solicitor and Naval Judge Advocate in 1901. His death occurred in General. Chandler had campaigned 1917. vigorously for the reelection of Lin­ The office of Chief Navy Lawyer, coln. The probable answer is that which started out as a forum for in campaigning, Chandler had made the display of the talents of a ris­ some speeches indicative of a harsh ing young Mr. District Attorney, and punitive attitude toward the would seem, by Chandler's appoint­ South, whereas Lincoln was in­ ment, to have a potential for be­ clined toward conciliation. Chand­ coming a revolving patronage chair ler remained in the Navy Depart­ for deserving partisans who might ment post for only a matter of either be destined for greater weeks, being appointed Assistant things or for ultimate return to Secretary of the Treasury by John­ the precinct from whence they son following Lincoln's assassina­ came. The third, and last, appointee, tion. He played an important role however, was an archetypical bu­ in the 1876 national election con­ reaucrat. John Augustus Bolles was test, perhaps being the single in­ a Massachusetts lawyer; Secretary dividual making the greatest con­ of State in Massachusetts 1843-4; tribution toward securing the elec­ a member of the Massachusetts tion of Hayes over Tilden, but Board of Education; and, in 1852, later published a tract charging a Commissioner of Boston Harbor. Hayes with having made a cor­ During the Civil War, he served rupt bargain with Southern Demo­ as judge advocate on the staff of crats to relax reconstruction meas­ General John A. Dix, attaining the ures in return for the Presidency. brevet rank of colonel. At age 56, Nominated Solicitor General by he was appointed by President Garfield, he failed to receive con­ Johnson to the post of Solicitor firmation by the Senate. President and Naval Judge Advocate General, Arthur appointed him Secretary of and to all practical intents and pur­ the Navy in 1882, in which post he poses continued in that post until served until 1885. His three years his death, at age 69, on 25 May in that post witnessed the begin­ 1878. 34 The Judge Advocate Journal

The concept of a central legal Marine Corps officers utilized to bureau serving the Federal Gov­ advise them on delicate disciplinary ernment is of centennial vintage problems one who: (a) was of only. Proposals for what is now paternal, and approaching grand­ the Department of Justice began to paternal, age relative to them; (b) appear in about 1867, and its crea­ had wartime staff experience only tion was accomplished by an Act in another military service of dif­ approved 22 June 1870. Prior to fering traditions; (c) was a po­ that time, various governmental de­ tential appointee; and (d) was now partments had "Solicitors,'' and the serving in a separate governmental State Department had an Examiner department, with no common su­ of Claims. The War Department perior to whom differences of views had a civilian Solicitor and a Ma­ could be submitted other than the jor General as Judge Advocate President. It is not surprising that General. Section three of the 1870 less than a month after the death of act transferred all of the various Bolles, a provision in the June 19, departmental solicitors to the De­ 1878, appropriations act repealed partment of Justice, including the the portion of Section 394 of the Solicitor and Naval Judge Advocate Revised Statutes which provided for General, who was thereafter known the Office of Naval Solicitor in the as the Naval Solicitor.7 Section 394 Department of Justice, and abolish­ of the Revised Statutes included ed that office effective 30 June 1878. provision for that office in the De­ partment of Justice. The Service Member During the time that Colonel Judge Advocate General Bolles occupied the Solicitor's office, Two days after the effective the Navy seemed to be headed to­ abolition of the Office of Solicitor, ward extinction. No major con­ the Secretary of the Navy detailed struction was undertaken until af­ a Marine Corps Captain, William ter Chandler became Secretary­ Butler Remey, a 36 year old Iowan, four years after the death of Bolles. who had entered the Corps at 19, It is therefore unlikely that Bolles as a Second Lieutenant, in 1861. was overburdened with legal work He attained his captaincy in 1872, arising out of materiel procura­ while serving in Washington as ment. Such tort claims as might Acting Judge Advocate of the Ma­ arise were handled by Claims Com­ rine Corps. In common with most mittees of the Congress. Pay litiga­ service officers performing judge tion in the Court of Claims was advocate duties at the time, Remey probably under his purview, but it had no formal legal training. He is highly doubtful that Navy and was made Acting Judge Advocate

1 The office of Naval Solicitor and Judge Advocate General, established dur­ ing the Rebellion and for one year thereafter, was continued year-to-year in appropriations acts, 1866-69. The Judge Advocate Journal 35

of the Navy Department, and further four-year terms in 1884 and charged with the duty of reporting 1888. He was retired for physical upon all matters submitted to the disability in 1892, having spent Secretary of the Navy involving fourteen years in the office, and questions of law and regulations. died in Somerville, Massachusetts, The functions of reviewing, index­ on 20 January 1895. His remains ing, and filing records of summary were buried in Somerville, but [special] and general courts­ were later removed to the Church martial, and of examining and re­ Yard of Pohick Church, Virginia. tiring boards, were transferred No officer of the Marine Corps from the Bureau of Navigation has been appointed Judge Advocate (name later changed to Bureau of General of the Navy since 1892. Naval Personnel) to the Acting Six officers of the Navy held the Judge Advocate. Captain Remey office between 1892-1918. In the reputedly spent the following years latter year an Appropriations Act seeking establishment of the office provided that the officer holding the by statute, and an Act approved office of Judge Advocate General 8 June 1880, authorized appoint­ of the Navy should have corres­ ment by the President, by and with ponding rank and receive the same the advice and consent of the Sen­ pay and allowances as provided by ate, from the officers of the Navy law for Bureau Chiefs and the or the Marine Corps, for a four Judge Advocate General of the year term, a judge-advocate-general Army. This effectively made the of­ of the Navy, with the rank, pay, fice carry the grade of Rear Ad­ and allowances of a captain in the miral when held by officers of the Navy or a colonel in the Marine Navy, or of Major General if an Corps. The office was to have the officer of the Marine Corps were to functions, under the direction of be appointed thereto. Six naval of­ the Secretary of the Navy, of re­ ficers served as Rear Admirals in ceiving, revising, and recording the the office, and one of those six who proceedings of all courts-martial, had served as Captains was again courts of inquiry, and boards for appointed to the office as a Rear the examination of officers for re­ Admiral, during the period 1918­ tirement and promotion in the naval 1938. None of the twelve was a service, and "perform such other professional lawyer, hence during duties as have heretofore been the first fifty-eight years of its performed by the solicitor and official existence, the Office of naval judge-advocate-general." Re­ Judge Advocate General of the mey was advanced from the grade Navy was held by thirteen non­ of Captain to that of Colonel in the lawyers. Marine Corps under the Act (the same grade as was then held by Efforts to supply professionalism the Commandant of the Marine The Appropriations Act of April Corps), and was reappointed for 17, 1900, established an office of 36 The Judge Advocate Journal

Solicitor, as part of the Office of licitors, to the control of the De­ the Judge Advocate General of the partment of Justice. There was, Navy, effective 1 July 1900. The however, no change in physical lo­ office of Solicitor was continued cation or functioning of the office. through provisions in annual ap­ Difficulties were experienced from propriations acts until 1907. In having separate law offices in the 1906, both Secretary Bonaparte Department, occasionally render­ and Captain S. W. B. Diehl, Judge ing irreconcilable opinions on in­ Advocate General, requested funds distinguishable issues. Changes in to obtain better legal services, the Navy Regulations, approved by the latter noting particularly the dif­ President 29 August 1921, gave the ficulty the Navy was experiencing Judge Advocate General cognizance in retaining counsel to handle ad­ of all matters of law arising in the miralty litigation. On 1 November Navy Department. The title of So­ 1907, Secretary Metcalf divided licitor was retained, and recon­ functions of the Office of the ferred upon Pickens Neagle, but Judge Advocate General into "mili­ his practical status remained that tary" and "nonmilitary" categories. of a division head in the Office of "Nonmilitary" functions were as­ the Judge Advocate General of the signed to the Solicitor, who was Navy. thenceforth to operate directly un­ Contemporaneously with the transfer, in 1907, of the Office of der the Office of the Secretary. This Solicitor from the Judge Advocate was made statutorily effective as General, there arose within the of 1 July 1908, in the appropria­ Office of the Judge Advocate Gen­ tions act of that year. The Judge eral the practice of designating a Advocate General who succeeded senior civilian attorney as "Con­ Captain Diehl resigned after serv­ sulting Attorney" or "Special Coun­ ing for slightly less than two years, sel." His principal function was following a failure by the Secretary to provide continuity. Mr. George of the Navy to accede to his re­ Melling occupied this position as of quest that the Solicitor be again about 1910, and produced "Laws subordinated to the Judge Advocate Relating to the Navy Annotated" General. (LRNA), a painstaking and schol­ Pickens Neagle was the first arly compilation. Mr. Hugh J. Solicitor. After removal of the of­ McGrath succeeded Melling. Mc­ fice from the Judge Advocate Gen­ Grath served the Department from eral, Graham Egerton, a Southern 1914 through 1957, being grad­ Democrat, became Solicitor. An uated from Georgetown Law School Executive Order of 31 May 1918, during the early portion of that transferred the Office of the So­ service. Since 1958, Mr. John A. licitor of the Navy Department, Mcintire has served as Civilian along with other Departmental So­ Counselor. The Judge Advocate Journal 37

Naval Disciplinary Law Subsequent obviously represents the handiwork to July, 1862 of one or more knowledgeable and Of the professional lawyers men­ reflective persons, and to such ex­ tioned thus far, Wilson and Chand­ tent as Nathaniel Wilson may have ler (the first two persons in the participated (its enactment took office of Solicitor and Naval Judge place in the middle of the year in Advocate General) would appear to which he began work in the Navy have been the only ones having Department), it would indicate that Secretary Gideon Welles chose any day-to-day concern with naval well. For whatever inferences may courts-martial or courts of inquiry. be based thereon, the immediately Since Chandler's experience in pros­ preceding chapter (203), approved ecuting contract fraud cases in on the same day, suspended for Philadelphia was part-time and cir­ some six months a statute dealing cumscribed in scope, the list can with contract frauds, one of the probably be further reduced to Wil­ problems with which Wilson, along son alone. Bolles may have had with a great many other persons, some contact with this aspect at was concerned. The 1862 revision the earlier stages of his service, of the Navy laws contained twenty but it seems to have become firmly sections, the first of which put implanted in the personnel agency into effect as of 1 September, 25 (Bureau of Navigation) by the Articles for the Government of the time of inaugurating the practice Navy. To preclude leaping to the of appointing Judge Advocate Gen­ conclusion that this represented a erals exclusively from officers of the less thorough job than the 36 Navy or the Marine Corps. The Whitelocke/Blake Articles of a bi­ Disciplinary Articles have hereto­ centennium before, it should be fore been traced from the Com­ noted that Article 3, setting forth monwealth to the Civil War. Per­ capital offenses, contained ten sub­ haps this is as appropriate a time articles; and that Article 7, defin­ as any, before discussing the era ing offenses for which punishment of professional lawyers in the Of­ by death was not expressly autho­ fice of the Judge Advocate General, rized, contained 14 subarticles, thus to pursue further the development giving a net gain of 13 articles over of the law which is their principal the two hundred years. Other sec­ concern. tions of the Act were concerned The Act approved 17 July 1862,8 with prize, disability pensions, was, as stated above, the first gen­ maintaining records of men on eral revision since 1800 of the body board, transfer ashore preparatory of statutory law of which the sea­ to discharge, and continuance of going Naval commander required authority over crews of wrecked or immediate working knowledge. It captured vessels. An Act approved sch. 204, 12 Stat. 600. 38 The Judge Advocate Journal

2 March 1863,9 provided compre­ thereunder twenty-two subarticles hensively for prosecution and pen­ defining offenses punishable at the alties in cases of frauds against discretion of a court-martial. An the United States perpetrated by Act approved 25 February 1895,11 either persons in the armed forces added Articles 61 and 62, imposing or civilians. Section 38 of an Act limitations upon time of initiating for enrolling and calling out the court-martial prosecutions; and an national Forces, and for other Pur­ Act of 27 February 1895,12 added poses, approved 3 March 1863,10 Article 63, providing for Presi­ set forth provisions for trial before dential limitations, in peacetime, a general court-martial or military upon sentences which might be ad­ commission, and sentence to death, judged, when punishment was left of all persons found lurking or act­ within the discretion of a court­ ing as spies in time of war or re­ martial. One-officer Deck Courts bellion. [corresponding to present Sum­ The Revised Statutes represent­ mary Courts-Martial] were autho­ ed a consolidation and reenactment rized in 1909,13 and provisions of all statutes of the United States therefor made Article 64 in 1916.14 in effect on 1 December 1873. Sec­ Articles 65 through 70, the remain­ tion 1624 provided, "The Navy of ing "Rocks and Shoals" as they ex­ the United States shall be gov­ isted prior to supersession by the erned by the following articles:" Uniform Code of Military Justice, There followed sixty articles. Ar­ effective in 1951, were added during ticle 4 set forth twenty subarticles the early decades of the present defining offenses punishable by century, and made miscellaneous death; and Article 8 contained perfecting provisions.15

9 ch. 67, 12 Stat. 696.

1o ch. 75, 12 Stat. 731, 737. Ex parte Quirin, 317 U.S. 1 (1942).

11 ch. 128, 28 Stat. 680.

12 ch. 137, 28 Stat. 689.

13 Act February 16, 1909, c. 131, 35 Stat. 621.

H Act August 29, 1916, c. 417, 39 Stat. 586.

1 5 Art. 65: Reservists and auxiliary naval force (e.g., Coast Guard) officers empowered to serve on courts-martial. Oct. 6, 1917, c. 93, 40 Stat. 393; July 1, 1918, c. 114, 40 Stat. 708; Feb. 28, 1925, c. 374, secs. 1, 28, 43 Stat. 1080, 1088. Art. 66: Commanding officers of hospitals and hospital ships may be authorized to convene courts-martial. Aug. 29, 1916, c. 417, 39 Stat. 586. [Footnote continued on page 39] The Judge Advocate Journal 39

At this point, return will be made first of a succession of six officers to the development of the Office of to serve in that capacity who were the Judge Advocate General of the of a class known as "Law PGs," Navy during and post World War i.e., Law Post Graduates. After IL Indication has been given of graduation from the Naval Acad­ the origins and general nature of emy and service for a period as a the body of statutory law with line officer, an officer interested in which that Office was principally becoming a lawyer would so indi­ concerned throughout World War cate to the Department. If se­ II and to the eve of Korean com­ lected, he would be assigned to the bat. It is beyond the scope of this Office of the Judge Advocate Gen­ article either to discuss the Uni­ eral of the Navy with the primary form Code or to attempt compari­ duty of attending and completing son between it and previous law. a three-year course in one of the Evidence has been adduced in sup­ Washington Law Schools. After port of the thesis that there was a graduation and admission to the respectable body of naval law in bar, he would be assigned back to existence in 1776, and for well over line duties, normally at sea. There­ a century before that date, which after his tours of shore duty would provided adequate undergirding for be spent in the Office of the Judge conduct of the most extensive sea Advocate General or in a "legal operations in our planetary his­ billet" elsewhere under some de­ tory. The proponent rests his case! gree of supervision of that Office. The Law PGs were sometimes re­ Navy Lawyers-1938-1956 ferred to as "lawyers among sea­ Rear Admiral W. B. Woodson, men, and seamen among lawyers," who entered upon the duties of a generalization which was unjust Judge Advocate General of the as applied to some highly able in­ Navy on 20 June 1938, was the dividuals who could hold their own first formally educated lawyer to in any company, but which was also serve in that capacity. He was the not without a measure of validity.

1s [Continued] Art. 67: Marines embarked aboard ship. Aug. 29, 1916, c. 417, 39 Stat. 586. Art. 68: Depositions. Feb. 16, 1909, c. 131, sec. 16, 35 Stat. 622. Art. 69: Authority to administer oaths. Jan. 25, 1895, c. 45, 28 Stat. 639; Mar. 3, 1901, c. 834, 31 Stat. 1086; Mar. 4, 1917, c. 180, 39 Stat. 1171; July 1, 1918, c. 114, 40 Stat. 708; Feb. 28, 1925, c. 374, 43 Stat. 1080. Art. 70: Officer detailed to conduct investigation authorized to adminis­ ter oaths to witnesses. R. S. sec. 183; Feb. 13, 1911, c. 43, 36 Stat. 898. 40 The Judge Advocate Journal

Creation of the Office of General were presented, calling for either Counsel or both additional data and con­ On 1 June Hl40 there were in the sultation of a superior. Admiral Office of the Judge Advocate Gen­ ·woodson, on the other hand, con­ tended that lawyers in his Office eral of the Navy fourteen naval should act only upon a formal writ­ officers performing full-time legal ten submission, signed at a re­ duties; eight naval officers assigned sponsible level in the requesting to the Office while attending law Bureau, with the response from his schools; and twenty-two civilian Office similarly reviewed and signed attorneys. There were four major "up the line." He defended this divisions in the Office: I. Military formal system on the basis that Law, Investigations, Promotions, officers throughout the Department Retirements. II. Legislation, Reg­ would thereby be forced to exhaust ulations, Pay entitlements, Ad­ the possibilities of thinking miralty, Claims. III. Contracts, through and working out problems Real Estate, Surety Bonds, Com­ internally; with the result that the mercial Law. IV. Patents, Patent time and energies of lawyers would Litigation, Patent Research. be conserved for genuine legal prob­ Secretary of the Navy Knox and lems. Further, formal submissions Under Secretary Forrestal saw at and responses provided better in­ this time that the defense buildup surance against lawyers being mis­ would entail some $600 million in led, misquoted, or misinterpreted, Naval contracts, and that if the with either well-intentioned or base .United States should become in­ motives. volved in the European war mani­ Under Secretary Forrestal was fold greater expenditures would be not persuaded by Admiral Wood­ involved. They conferred with son's arguments. He had the matter .Rear Admiral Woodson on two ma­ considered by lawyers deemed inde­ jor topics. As to the need for ex­ pendent. They recommended es­ pansion of the Office of the Judge tablishment, directly under the Of­ Advocate General, there was no fice of the Under Secretary, of an 'difference of opinion. As to the organization to be concerned with mode of procedure of the Office, all legal matters involved in ma­ there was a gulf between them. teriel procurement, headed by a The Secretary and Under Secretary civilian lawyer. The lawyer in conceived of lawyer-client type re­ charge of that organization should lationships, whereby an officer in a have in each of the four major materiel bureau would telephone a materiel bureaus a lawyer who peer lawyer in the Office of the would be responsible directly to Judge Advocate General and would him, not to the chief of the bureau. be given and would utilize advice In Hl41, Under Secretary Forrestal up. to the point that either might sought to obtain statutory author­ feel that exceptional circumstances ity for the appointment of fifteen The Judge Advocate Journal 41

attorneys in accordance with those May 1943 by a personnel subcom­ recommendations. The Honorable mittee of the House Committee on Carl Vinson, of Georgia, then Naval Affairs, upheld the position Chairman of the Naval Affairs taken by Under Secretary Forrestal, Committee of the House of Rep­ concluding that the Office of the resentatives, was inclined to agree Judge Advocate General of the with Admiral Woodson and the Navy, as an organization, and its legislation enacted at that time au­ constituent officers as individuals, thorized appointment of one such were not equipped to cope with attorney. Under Secretary Forres­ legal aspects of procurement con­ tal proceeded to establish the or­ tracting. The report indicated that ganization in the manner recom­ the working experience of a "Law mended to him, employing other at­ PG", as officer of the deck of a ship torneys on a per diem basis. Ad­ at sea, did not, in the view of the miral Woodson advised that the em­ subcommittee, equip him to oppose ployment was not authorized, but fulltime lawyers of the calibre the Comptroller General later up­ which firms striving for and under­ held the action of the Under Sec­ taking military and naval contract­ retary. The organization establish­ ing might be expected to retain. ed in the Summer of 1941 was On 3 August 1944, the name of termed the Procurement Legal Di­ the Procurement Legal Division, vision, and H. Struve Hensel was which then comprised 160 lawyers, appointed to the single post au­ was changed to the Office of Gen­ thorized by the Deficiency Appro­ eral Counsel (OGC) of the Navy riations Act. All contracting, with Department, which it remains to­ the exception of that connected day.16 As a postscript, the author with real estate procurement or is reliably informed that all of the transfer, was under the legal over­ ink-which in those primordial sight of the PLD. Formal requests times flowed through the veins of for legal opinions on procurement lawyers undiluted by photocopy ma­ contracts might still be presented chine toner fluid-was thoroughly by the Head of the PLD to the flushed from the scuppers even be­ Judge Advocate General, and it was fore ultimate demolition of those directed that any differences of seemingly permanent temporary viewpoint be settled between the buildings on the Mall which housed principals of those Offices. so much of the Department of the "The Reorganization of Procure­ Navy. ment Procedures and Coordination The real estate procurement and of Legal Services in the Navy De­ transfer function, 1880-1940, was partment," a report published 10 the ball at the top of a very slow­

16 R. H. Connery, The Navy and the Industrial Mobilization in World War II (Princeton University Press, 1951) ; R. G. Albion and R. H. Connery, Forrestal and the Navy (Columbia University Press, 1962). 42 The Judge Advocate Journal

set metronome, moving between the Another view was advanced by Office of the Judge Advocate Gen­ the Ballantine Board, headed by the eral of the Navy and the Bureau of Honorable Arthur A. Ballantine of Yards and Docks (now Naval Fa­ the New York Bar. The Ballantine cilities Engineering Command). 7 Report proceeds from the assump­ December 1941 found the ball in the tion that the lawyer in a military Office of the Judge Advocate Gen­ service has the prime function of eral, but the inability of the Office structuring a system of discipline to handle the increased wartime which is best calculated to assure work volume occasioned a 1942 Ex­ that any given component of the ecutive Order (9194), putting the service will be at the place where function in the Bureau of Yards it is needed at the time that it is and Docks. There it remained un­ needed, trained and equipped to do til 1952 when, with neither bang what is needed. Those objectives nor whimper, it was transferred to are the mission of line personnel the Office of General Counsel. administration. The training of the lawyer is not directly in point be­ McGuire Committee vs. Ballantine cause in civil life the law pre­ Board: Staff Corps or Line Ward? dominantly serves a deterrent, The end of hostilities in World rather than an affirmatively mo­ War II presented the question of tivating, role. The lawyer should what sort of lawyer-in-uniform or­ provide a dampening and restrain­ ganization would best serve the ing influence upon employment of Navy and nation in the future. A measures which experience has Committee chaired by the Honor­ shown to be, at long range, self­ able Matthew F. McGuire, with the defeating and counterproductive, Honorable Alexander Holtzoff and but if judgments as to whether Colonel James M. Snedeker, U.S. such influence was properly or im­ Marine Corps, as members, held properly exercised in particular that such lawyers should constitute instances are left solely to other lawyers, then they will be made a staff corps headed by the Judge upon consideration of a single brief Advocate General of the Navy only. The Ballantine Board report whose office would direct the assign­ suggested that rather than a sepa­ ment of lawyers. Within the staff rate staff corps organization, a re­ corps, promotions would be made stricted line designation would best on the basis of recommendations accomplish the objective of keeping of boards comprised solely of law­ the lawyer to his last without in­ yers. Chaplains, physicians, supply clining him to become imbued with officers, and others had occupied the notion that the service exists to this status, and it was considered provide feet to be shod. that lawyers similarly would func­ The Ballantine Board recom­ tion best as professionals running mendations prevailed over two dec­ their own show. ades. From a mechanical stand­ The Judge Advocate Journal 43

point, lawyers were lumped into a may be required to be more de­ special duty only category along fensible. with hydrographers, intelligence officers, and other oddly assorted Post 1976 fish, and were not set apart in the The author hails from a bygone same manner as Engineering Duty era when no yearbook was com­ and Aeronautical Engineering Duty plete without a class prophecy. Such officers. True, the SDO components flights of fancy are much simpler were competing only with others of when made concerning individuals the same specialty, but this treat­ and addressed solely to a small ment of the lawyers, vis a vis other group of individuals familiar with learned professions, was invidious. each other. Predicting what and An Act approved 8 December 1967, where the nation, or any branch amended sections 5148 and 5149 of of its armed forces, may be a Title 10, U.S. Code, to establish the Judge Advocate General's Corps as fortnight hence is not something one of the staff corps of the Navy. to be undertaken with any degree of assurance in the kaleidoscopic Navy Lawyers-1956-1976 world of to-day. The end of the Rear Admiral Chester C. Ward, draft after 33 years and the drain­ who became Judge Advocate Gen­ ing of draft-filled personnel pipe­ eral of the Navy on 17 August lines should be vectored, along with 1956, was the first professional law­ the fading away of the World War yer to hold that office who had not II warriors, all of whom are now attended the U.S. Naval Academy completing thirty years of service, nor obtained his formal legal edu­ and the leaks of the Korean vet­ cation while serving on active duty. erans, now all having over twenty. His successor, Rear Admiral Wil­ The economic picture and changed liam C. Mott, had been graduated social patterns and mores must be from the Naval Academy in 1938, reckoned with, but there will be but resigned after graduation and no approach to unanimity as to pursued the muse of the law with­ how much or which way. All of us out assistance from the Navy. Since would like to feel that the wheel that time, attendance at the Naval is in better hands now than when Academy has become apparently an Bulstrode Whitelocke and Robert irrelevant factor but perhaps even Blake were (figuratively) at the mildly disadvantageous in that a helm. We don't have the wake rec­ choice of one with that background ord to prove it, though! History of the Judge Advocate General's Office of the U.S. Air Force Jerry E. Conner When the Nation reaches its Bi­ to be a member of Congress ( 1779­ centennial year the Air Force 1800), Secretary of State (1800­ Judge Advocate General's office will 1801), and Chief Justice of the be only 28 years old. We are the United States (1801-1835). This youngest military service but we auspicious beginning was a pre­ have created a proud tradition of lude to a long line of patriots and innovative and effective legal serv­ legal scholars who have served as ices in that short span. This tra­ judge advocates. Of those who dition did not begin with our crea­ served during the war of 1812, the tion as a separate entity in July best known is the distinguished of 1948 but has its roots in the authority on international law, Judge Advocate General Corps of Henry Wheaton. Major Wheaton the United States Army. Many of was the reporter for the Supreme our first members came from that Court of the United States, Pro­ Corps. The Army Judge Advocate fessor of Law at Harvard Univer­ General's Department traces its sity, Charge d' Affaires to Den­ history to the earliest days of this mark, and Minister to Prussia. republic. On 29 July 1775, the During the period between the Second Continental Congress, sit­ Revolutionary War and the War of ting at Philadelphia, selected Wil­ 1812, and then again until 1862, the liam Tudor, Esq., a former law Congress provided for only a small student of John Adams, as Judge army in which the number of judge Advocate of the Army. In 1776 advocates was either one or two, the United Colonies became the and during one period there was United States of America and, on none. 10 August, Congress accorded Mr. The Civil War brought a renais­ Tudor the title of Judge Advocate sance to the Army judge advocate. General and the rank of Lieutenant By an Act of Congress of 17 July Colonel in the Army of the United 1862, the position of Judge Advo­ States. One of Colonel Tudor's cate General was established, and subordinate judge advocates was it has existed ever since. Of the Captain John Marshall of the 15th judge advocates appointed since Virginia Regiment, who was later this War, one of the best known to *Colonel, U.S.A.F.

44 The Judge Advocate Journal 45 lawyers is Major John Chipman tablishing three major entities to Gray, the famous legal scholar and include the Army Ground Forces, Professor of Law at Harvard Uni­ the Army Air Forces, and the Serv­ versity. ices of Supply, each having its own Again, in World War I, some of commanding general. Actually, the the nations greatest legal talent Army Air Forces had already come served their country as judge advo­ into existence on 20 June 1941, al­ cates. Included in this group were most a year earlier, with the issu­ Major Felix Frankfurter and Colo­ ance of an Army regulation and a nel John H. Wigmore. Also serving War Department Special Order des­ with distinction in World War I ignating the Chief of the Air Corps were judge advocates Major Henry as the Chief of the Army Air L. Stimson and Lieutenant-Colonel Forces. In the aforementioned Ex­ Patrick J. Hurley, both of whom ecutive Order, the President trans­ later served their country as Secre­ ferred to the Commanding General, tary of War. Army Air Forces, the functions and The few names mentioned here duties of existing Air Force and illustrate the proud tradition which Air Corps organizations. Pursuant has been part of the judge advo­ to this order, on 9 March 1942 the cate's place in our military history. War Department promulgated War In both war and peace, the judge Department Circular 1 which put advocate has served with the high­ this reorganization into effect. The est respect from both the military Office of The Air Judge Advocate and legal professions. was created as an office of the Air The Office of The Judge Advocate Staff directly under the Deputy General of the United States Air Chief of the Air Staff. Force finds its origin in the Office The first Air Judge Advocate of The Air Judge Advocate of the was Colonel Edgar Harvey Snod­ Army, which was established on grass, then a Regular Major in the the 9th of March, 1942. Prior to Judge Advocate General's Depart­ that date, the Office of The Chief ment, but a Colonel in the Army of the Army Air Corps was legally of the United States Air Corps. serviced by officers assigned to the Colonel Snodgrass, a native of Ten­ Judge Advocate General's Depart­ nessee, graduated from West Point ment. On 28 February 1942, Presi­ in June 1917. He attended the dent Roosevelt issued Executive School of Law at Columbia Univer­ Order 9082 under the authority of sity from 1927 to 1928 and the Title I of the First War Powers University of Tennessee from 1932 Act of 1941. By this authority and to 1934. Colonel Snodgrass, at the in his capacity as Commander-in­ time of his appointment as Air Chief of the Army and Navy, the Judge Advocate in 1942, had served President directed that the Army continuously in the Air Corps since of the United States be reorgan­ 1935. He served as Legal Advisor ized under the Chief of Staff, es­ to the Contracting Office at Wright 46 The Judge Advocate Journal

Field, Ohio (1935-1938) ; Chief of ments, principally in India and the the Patents Section, Office of The Far East. Colonel O'Keefe served Chief of the Air Corps at Wash­ as Air Judge Advocate from 1945 ington, D.C. (1938-1940); and until September 1948. Chief of the Legal Division, Office The position of Air Judge Advo­ of The Chief of the Air Corps at cate of the Army Air Forces was Washington, D.C. (1940-1942). The an anomalous one. The incumbent title Air Judge Advocate General was the chief legal officer for that was discontinued shortly after its entire branch of the Army, al­ introduction in March 1942, and though there was no comparable Colonel Snodgrass was thereafter legal officer for the Army Ground designated Air Judge Advocate. Forces or the Services of Supply. The second Air Judge Advocate The work of The Air Judge Advo­ was Brigadier General Lawrence cate covered the wide range of air Hyskell Hedrick, who assumed this operations which existed during the position in the summer of 1943. war. Some 1200 legal officers were General Hedrick was born in 1880 assigned to the Army Air Forces. in Warren County, Indiana. He The Office of The Air Judge Advo­ graduated from the University of cate was organized with two As­ Missouri with a Bachelor of Laws sistant Air Judge Advocates. Struc­ degree in 1905. He performed his turally, the Office consisted of an first 12 years of duty in the Army executive office plus six divisions: as an infantry officer and was as­ Military Justice; Military Affairs; signed to the Judge Advocate Gen­ Patents; Contracts and Claims; eral's Department in 1920. General Litigation; and Legal Assistance. Hedrick served as The Air Judge This organization is not too dis­ Advocate from July 1943 to October similar from that existing today 1945. in the Office of The Judge Advocate General Hedrick was succeeded General, Headquarters, United by Colonel Desmond O'Keefe. Colo­ States Air Force. nel O'Keefe graduated from West The Department of the Air Force Point in August of 1917. He re­ was established by the National Se­ ceived the degree of Juris Doctor curity Act of 1947. The Office of from Northwestern University The Judge Advocate General, Unit­ School of Law in 1931. At the time ed States Air Force, was authorized of his appointment, Colonel O'Keefe by the Act of 25 June 1948. To held the permanent rank of Lieu­ assist the Office of The Judge Ad­ tenant Colonel, Judge Advocate vocate General, the Judge Advocate General's Department, U.S. Army, General's Department was admin­ and Colonel, Judge Advocate Gen­ istratively established by the De­ eral's Department, Army of the partment of the Air Force on 25 United States. During World War January 1949. II, Colonel O'Keefe had functioned The Judge Advocate General's in various Army Air Forces assign­ Department was initiated on 8 July The Judge Advocate Journal 47

1948, at which time 144 Regular Command. On 8 September 1948, Air Force officers and 61 Air Force he was appointed the first Judge Reserve officers on active duty were Advocate General of the United certified as judge advocates. Of States Air Force and promoted to this original group of Regular offi­ the rank of Major General. Gen­ cers, 62 had been officers in The eral Harmon was extended in 1952 Judge Advocate General Corps of and 1956. General Harmon's long the United States Army and had career, spanning the first 12 years transferred to the Air Force sub­ of Air Force JAG, witnessed the sequent to its establishment. To­ development of a large and efficient day, The Judge Advocate General's law organization. Department is a vast, yet closely The second Judge Advocate Gen­ cooperating, organization of some eral of the Air Force was Major 1200 judge advocates and 200 civil­ General Albert M. Kuhfeld. Gen­ ian attorneys. Within the Depart­ eral Kuhfeld was born at Hillyard, ment exists the Office of The Judge Washington, on 25 January 1905. Advocate General, which is located He received his Bachelor of Laws in Washington, D.C. degree from the University of Min­ The first Judge Advocate General nesota in 1926. Following gradua­ of the United States Air Force was tion, he practiced law in Minnesota Major General Reginald C. Harmon. for a brief period and then moved General Harmon was born in 1900 to North Dakota in 1934 where he on a farm near Olney, Illinois. He served as Assistant Attorney Gen­ graduated from the University of eral from 1934 to 1939. General Illinois with the degree of Bachelor Kuhfeld was called to active duty of Laws in 1927 and was awarded in March of 1942 and was imme­ the honorary degree of Doctor of diately assigned as a judge advo­ Laws by the National University cate. During the war he served at Washington, D.C. in 1951. Gen­ with the Fifth Air Force in the eral Harmon began his military ca­ Southwest Pacific and was appoint­ reer at the University of Illinois ed Staff Judge Advocate of the as a cadet in the Reserve Officers Fifth Air Force in 1944. After the Training Corps, which led to his war he served first in the Office of being commissioned a second lieu­ The Air Judge Advocate in Wash­ tenant in the Field Artillery Re­ ington, D.C.; then as the Staff serve in 1926. In 1940 General Judge Advocate, Headquarters, Air Harmon was called to active duty Transport Command, in Washing­ as a major in the Army. Assigned ton, D.C. In August of 1947, at his to the Air Corps as a judge advo­ request, he was transferred to the cate, he was instrumental in the Army Air Forces, which later be­ success of the complicated air pro­ came the United States Air Force. curement program during the war. General Kuhfeld was appointed From 1945 to 1948, he was the Staff Brigadier General in 1949 and, on Judge Advocate of the Air Materiel 20 February 1953, he was appointed 48 The Judge Advocate Journal

The Assistant Judge Advocate Gen­ Judge Advocate General. On 1 Oc­ eral, United States Air Force. He tober 1964, General Manss was ap­ was promoted to Major General on pointed by President Johnson as 27 October 1954, and on 1 April The Judge Advocate General, 1960 he was appointed The Judge USAF, with the grade of Major Advocate General, United States General, where he served until 30 Air Force. September 1969. The third Judge Advocate Gen­ The fourth Judge Advocate Gen­ eral of the United States Air Force eral of the Air Force was Major was Major General Robert William General James S. Cheney. General Manss. General Manss was born Cheney was born in Tucson, Ari­ on 1 June 1909 in Cincinnati, Ohio. zona. He attended Atlanta Law He received his degree of Bachelor School from 1939 to 1941 and re­ of Arts from the University of ceived his LL.B degree in 1950. He Michigan and his Bachelor of Laws began his military career as an avi­ degree from the University of Cin­ ation cadet in October 1941. Dur­ cinnati. He practiced law in Cin­ ing World War II, he served as a cinnati from 1933 to 1942 when he navigator in combat operations. enlisted in the Army Air Corps. He From 1946 to 1950 he served as completed Army Air Corps Officers legal officer and staff judge advo­ Candidate School in 1942, and later cate in Europe and the United he completed the Army Air Corps States. In July 1950, he was as­ Intelligence School. In 1946 he was signed to the Third Bomb Group released from active duty and re­ and flew combat missions in Korea. turned to his private law practice. In 1954 he came to Headquarters General l\Ianss accepted a Regular and served as member and later Air Force commission in July of Chairman of a Board of Review. 1947 and was assigned to the Office In 1957 he became the Executive to of the Staff Judge Advocate, Head­ The Judge Advocate General and quarters, Air Materiel Command, served in that capacity until 1960. Wright-Patterson Air Force Base, He then went to England as Staff Ohio, where he served until 1952. Judge Advocate, Third Air Force. General l\Ianss then served in as­ Following this tour, he became signments as staff judge advocate, Deputy Staff Judge Advocate, HQ Northeast Air Command, Pepperell USAFE. In 1964 he returned to Air Force Base, Newfoundland; the Office of The Judge Advocate staff judge advocate, Air Research General as Director of Military and Development Command, An­ Justice. In July 1967, General drews Air Force Base, Maryland; Cheney became Staff Judge Advo­ and in the Office of the Judge Advo­ cate, HQ PACAF. He returned to cate General, Headquarters, USAF, OTJAG as Assistant Judge Advo­ as Assistant Chief, Military Affairs cate General in February 1969 and Division; Chief, Tax and Litigation was appointed by President Nixon ·Division, and as The Assistant to be The Judge Advocate General The Judge Advocate Journal

effective 30 September 1969, where pointed Assistant Judge Advocate he served until October of 1973. General· on 1 September 1971, and The fifth and present Judge Ad­ Judge Advocate General on 1 Oc­ vocate General, is Major General tober 1973. Harold R. Vague. General Vague Over the past 27 years, the Office was born in Ellsworth, Kansas. He of The Judge Advocate General and graduated from the University of the Judge Advocate General's De­ Colorado in 1942 and entered Colo­ partment has grown from a small rado Law School. In March 1942, organization of less than 100 to a he began his military career as an large, world-wide law office of ap­ aviation cadet and was commis­ proximately 1400 lawyers. Its work sioned as a navigator in 1943. Dur­ spans the wide spectrum of the va­ ing World War II, he flew 25 com­ rious Air Force activities which it bat missions as a navigator. After serves. From the traditional prac­ completing law school, he went to tice of military justice and con­ Biggs AFB, Texas, as a navigator­ tracts to the newer problems of bombadier in B-50 aircraft. He "sonic boom" and space law, the next went to 8th Air Force as As­ Air Force JAG has accomplished sistant and later Chief of the Mili­ its varied mission with success. It tary Justice Division. In 1956 he is with this knowledge that Air became associate professor of law Force JAG members, past and pres­ and assistant staff judge advocate ent, are able to look back with pride at the Air Force Academy. He next over their organization's history. served as Staff Judge Advocate, To its sole client, the United States Third Air Division, Anderson AFB, Air Force, however, this history Guam. In 1961 he was assigned to has an even more important mean­ the Office of The Judge Advocate ing: Air Force Judge Advocate General as Chief, Legislation Divi­ General's Department now has sion. He went from there to 15th more than a generation of experi­ Air Force as Staff Judge Advocate. ence which will better enable it to In 1969 he became Staff Judge Ad­ meet the military legal challenges vocate, HQ PACAF. He was ap­ of the future. Judge Advocate of the Marine Corps An OU Corps Billet Answers a New Corps Challenge Colonel Robert J. Chadwick, USMC Judge Advocate of the Marine tage point he coordinates all legal Corps-it's a modern billet with a activity throughout the Corps and history of only five years but with with the personnel planners helps a hundred year tradition extending to guide the destinies of Marine back to the early annals of the attorneys throughout the world. Corps. The old Corps and the new The old Corps too had its senior breed-they're basically the same judge advocate. But the Marine despite the passage of time. To­ Corps is made of men not titles, a day's Marine Officer lawyer appears few good men who leave their in­ the same as his old Corps predeces­ delible legacy for those who follow. sor. He looks exactly like every The Corps' attorneys started at the other Marine. Although its law­ top. A civil war veteran, Captain yers are called judge advocates by William Butler Remey, U. S. Ma­ statute, the Marine Corps has no rine Corps, served two tours of subordinate JAG Corps. There is duty in the 1870's as "judge advo­ no distinctive collar or sleeve in­ cate of the Marine Corps". He signia to set the Marine attorney subsequently was designated acting apart from his line associates. His judge advocate of the Navy in recognition as a qualified attorney 1878. In 1880, to fill the billet cre­ must depend on his demonstrated ated by Congresional enactment performance in the field. that year, Captain Remey was ap­ One thing new has been added pointed as the first Judge Advocate however: a star at the top. Since General of the Navy with the grade 1969, the Commandant's staff judge of Colonel. He held that office for advocate has held the grade of 12 years. Although in subsequent Brigadier General. Marine officers years, Marines were not appointed in the legal field have thus been as­ to that august position and the bil­ sured of the opportunity for a full let of judge advocate of the Marine career pattern. They can realisti­ Corps was discontinued, the guid­ cally aspire to selection to flag ance of Marine attorneys was con­ grade. tinually afforded to Headquarters The Marine Corp's senior attor­ Marine Corps and field commands. ney also serves as the Director of For almost one hundred years the Judge Advocate Division at they've kept their standards high Headquarters Marine Corps in albeit their ranks were small. Washington, D.C. From that van­ From the effective date of the Uni­

50 The Judge Advocate Journal 51

form Code of Military Justice and legal MOS had been included in the Manual for Courts-Martial in the personnel and administration 1951, senior Marine attorneys field. However, in 1962 an inde­ served the Corps as Heads of the pendent legal occupational field was Discipline Branch in the Personnel established. Department at Headquarters Ma­ rine Corps. Then in 1966 the Commandant, General Wallace M. Greene, Jr. de­ They were quality Marines­ proud of their Country and Corps. cided that he wanted his legal ad­ They served them well. The Corps visor to be a general officer. The remembers: Commandant so informed congress and a general officer's billet was Colonel James C. Bigler authorized on that basis. The first Colonel St. Julien Marshall selectee in 1966 (with date of rank Colonel Paul D. Sherman in 1967) was Brigadier General Colonel John S. Twitchell James F. Lawrence, then serving Colonel Hamilton M. Hoyler on the staff of the Secretary of Colonel Robert A. Scherr, and Defense. His importance to the Colonel Robert B. Neville. Secretary was exemplified by the During the post World War II fact that he was never released years, unrestricted regular Marine from his OSD position as Deputy Corps officers received legal train­ Assistant to the Secretary of De­ ing and degrees through the Navy fense (Legislative Affairs) to fill Postgraduate Law Program (the that legal billet at Headquarters Program was terminated by Con­ Marine Corps. gress in the mid 1950's and has Although never authorized to just recently been reauthorized). wear the star their billet then de­ The subsequent Marine Corps as­ served, Colonels Charles B. Sevier, signments of graduates from this USMC (1966-1968) and Marion G. program included both line and Truesdale, USMC (1968-1969) ably legal duties. Recognition of the ex­ headed the Discipline Branch with­ panded role of Marine attorneys in in the Personnel Department at serving commanders in the field Headquarters Marine Corps during followed in 1958 when Marine the period following. It was under Corps regulations were changed to Charley Sevier's imaginative lead­ permit regular unrestricted officers ership in 1968 that the Discipline to hold a primary legal MOS (Mili­ Branch at Headquarters Marine tary Occupational Speciality). Prior Corps came of age, was separated to that time such a MOS could only from the Personnel Department, re­ be a secondary one. Administrative designated as the Judge Advocate steps were also taken to ensure Division and emerged as a vital, equal promotion opportunity for functional, independent organiza­ officers holding a primary legal tion to be headed by a general officer MOS. Throughout this period the who was also a judge advocate. 52 The Judge Advocate Journal

The birth of the Judge Advocate ters relating to military law and Division on 17 April 1968 was ac­ its administration throughout the complished entirely as a matter of Marine Corps. He represents the staff reorganization within Head­ Commandant in contact with agen­ quarters Marine Corps. It was one cies, both within and external to of those rare opportunities where­ the government, whose principal in a step so rich in promise could concern is the administration of be taken at no cost to the govern­ law and related matters. He also ment and with so little disruption maintains liaison with the Judge of the Headquarters. Advocate General of the Navy to The Marine officer selected for ensure coordination in the adminis­ promotion to Brigadier General as tration of military law and in the the senior judge advocate in the development of policies relating newly created Judge Advocate Divi­ thereto in the Naval Service. sion would become in effect the new The reorganization afforded the holder of the old Corps billet of Director, Judge Advocate Division, Judge Advocate of the Marine the opportunity to consolidate and Corps. History had run full cycle. coordinate legal services within His official title, however, would be the Headquarters. The Judge Ad­ Director, Judge Advocate Division vocate Division was designed to with additional duties as Staff provide a single source of legal ad­ Judge Advocate for the Comman­ vice within the Headquarters on all dant of the Marine Corps. This noncommercial matters. It permits choice of official title was in recog­ other staff agencies to make plans nition of and deference to the fact and direct actions with proper ad­ that there was only one Judge Ad­ vice-professional advice not given vocate General within the Depart­ as a personal favor but as an action ment of the Navy. in which the adviser places his rep­ The Staff Judge Advocate for the utation on the line. It provides the Commandant acts as legal advisor staff section that has the clear re­ to the Commandant and his staff sponsibility to supply an interpre­ in all areas of law except business tation of applicable law and the and commercial affairs. (Business limits that such law may place on and commercial affairs are handled any proposed action. by a representative of the office of Staff functioning of the 15 offi­ the General Counsel of the Navy). cers, 10 enlisted personnel and 14 The Staff Judge Advocate also civilians within the Judge Advo­ serves as the staff legal officer to cate Division was streamlined with the Commandant in those matters the establishment of four func­ requiring the Commandant's per­ tional subordinate branches : sonal action under the Uniform Code of Military Justice and fur­ a. Military Law, ther advises and assists the Com­ b. Research and Plans, mandant and his staff in all mat­ c. Legal Assistance, and The Judge Advocate Journal 53

d. General Law, Regulations quarters. The spirit was one of and Reference. cooperation and coordination. After two years as director, However, it is the Director who re­ Brigadier General Faw voluntarily mains charged with the ultimate retired to ensure the opportunity responsibility of supervision of and for promotion to others. Colonel assistance to legal and paralegal Clyde R. Mann, possessor of broad personnel at the working level. experience as a Marine and attor­ It was in August of 1969, that ney in the field and at Headquar­ the senior legal billet and its at­ ters was selected for the top legal tendant grade were permanently billet and promoted to Brigadier joined. Colonel Duane Faw, USMC, General on 1 September 1971. His an appellate judge on the Navy prior career had groomed him well Court of Military Review, was pro­ for the billet. He had been a sea­ moted to Brigadier General and be­ going Marine officer who main­ came the Commandant's staff judge tained a tradition of graduating first in his class at almost every advocate and the Director of the service school he attended. He Judge Advocate Division. General proudly wore the wings of a Naval Faw, a graduate of Columbia Uni­ Aviation Observer and had G-3 ex­ versity School of Law and naval perience at both Division and Head­ aviator who had participated in quarters levels. A law review and aerial combat in the Pacific during Order of the Coif graduate of the World War II, had served in many Naval Postgraduate Law Program legal billets throughout the world he served in many legal billets in­ during his Marine Corps career. cluding that of staff judge advocate He had also served as Commanding of major Marine commands in com­ Officer of a Marine infantry bat­ bat and in the United States. Im­ talion during peacetime and as the mediately, prior to his promotion Deputy Chief of Staff and Force he had been the class president Legal Officer for the III Marine and a Distinguished Graduate of Amphibious Force during combat the College of Naval Warfare at in Vietnam. the Naval War College. Under Brigadier General Faw's Energetic, thorough and consci­ judicious hand the policies and entious Brigadier General Mann plans of the fledgling Judge Advo­ ensured that service and compe­ cate Division were given direction tency become the watchwords with­ and firm guidance. The assigned in the Judge Advocate Division personnel were molded into a func­ from the fall of 1971 until his re­ tional team. Yet, all the Corps knew tirement on 15 July 1973. He was that the Division existed not to a member of the Task Force on the levy more requirements on already Administration of Military Justice overburdened field commands but to in the Armed Forces, he pinpointed serve-both the field and the head­ the restrictive number of lawyer 54 The Judge Advocate Journal billets and initiated changes which Truce Supervision Commission in reflected the true lawyer require­ Palestine from 1953 to 1955. His ments within the Marine Corps. He varied legal assignments include assisted in coordinating the Marine duty as a senior general court-mar­ input into Operation Homecoming tial military judge in Vietnam and as our prisoners of war returned the United States and as staff judge from Vietnam and made arrange­ advocate for major Marine Corps ments to have Marine attorneys as­ commands. Immediately prior to his sist U. S. attorneys in the field current assignment he served in the handling matters of interest to the Office of the Secretary of Defense Marine Corps. as Deputy Assistant to the Assist­ Upon General Mann's retirement, ant Secretary of Defense (Legisla­ Colonel John R. De Barr was se­ tive Affairs). History will record lected to become staff judge advo­ the accomplishments achieved under cate to the Commandant and direc­ his current leadership. tor of the Judge Advocate Division. Thanks then to this leadership He served in the billet as a Colonel of prior Marine Officer lawyers, the until the next Marine Corps gen­ Marine judge advocate today is an eral officer promotion Board met in integral part of the Corps not a re­ February 1974. Following selection jected outsider. He achieves and by the promotion board he was pro­ maintains the confidence and re­ moted to his present grade of Brig­ spect of his client-be that client adier General on 10 April 1974. He rifleman, battalion commander or and his staff are charged with the the Commandant-because that responsibility to direct and guide lawyer's been there with them: in Marine Corps legal services as the training, war and peace. This mu­ Corps enters its post-war era. tual sharing of the good times and As did his predecessors, Briga­ the bad deepens the attorney-client dier General De Barr comes well relationship and gives continued re­ prepared to his assignment. He vitalization to the Corps' tradition has had a varied, interesting and that it takes care of its own. All responsible career. He holds a current Marine judge advocates, be Juris Doctor degree from George they Captain or Brigadier General, Washington University. He was a share this legacy of professionalism platoon commander in the I wo J ima and pride derived from the old campaign and participated in the Corps and bear the responsibility occupation of Japan during World to pass that heritage on untar­ War II. He served as a military nished to their succesors yet to observer for the United Nations come. Historical Evolution of the Office of Chief Counsel United States Coast Guard The present-day Office of Chief The Revenue Act of 1934 and the Counsel, United States Coast efforts of Mr. Herman Oliphant, Guard, had its origin as a branch the first General Counsel of the within the Office of Operations. Treasury Department, brought This Branch was established fol­ about a substantial enlargement in lowing enactment of the Act of the functions and responsibilities of Congress of 26 May 1906 which the new Legal Division of the Coast created a military discipline system Guard. In addition to matters in­ for the Revenue Cutter Service. volving military discipline previ­ The Military Discipline Branch re­ ously handled by the Branch, a legal mained in the Office of Operations advisory service to administrative following the creation of the United officers of the Coast Guard was cre­ States Coast Guard on 28 January ated which called for the rendition 1915 with the merger of the Reve­ of legal opinions, formal and in­ nue Cutter Service and the Life­ formal, by the Chief Counsel. More­ saving Service. The function of the over, all legal work in connection Branch during these early years with contracts, real estate, legisla­ was primarily to review the several tion, regulation review, and related types of Coast Guard courts, prepa­ matters were regularly assigned to ration of action thereon for the the Legal Division as being within Secretary of the Treasury and its scope of responsibility. other matters relating to military Mr. Kenneth F. Harrison as­ discipline. Mr. Edward P. Harring­ sumed the position of Chief Coun­ ton served as the head of the Mili­ sel in 1938 upon Mr. Tanney's res­ tary Discipline Branch and held the ignation to enter the private prac­ title of Chief Legal Officer. tice of law. The outbreak of war The Revenue Act of 1934 placed in Europe was swiftly followed by all legal duties and functions of the the Neutrality Act of 1939. This Department of the Treasury in the Act, together with the transfer of newly created Office of the General the Lighthouse Service to the Unit­ Counsel. As a result, a Legal Divi­ ed States Coast Guard in the sum­ sion was established as a part of mer of 1939, resulted in a consider­ the organization of Coast Guard able increase in the functions and Headquarters with the divsion duties of the Coast Guard and its chief being designated Chief Coun­ Legal Division. This growth of sel. Mr. Joseph P. Tanney became responsibility required an increase the first Chief Counsel when he in resources and therefore several succeeded the retiribg Mr. Har­ attorneys, stenographers, and clerks rington. were assigned to the Legal Division

55 56 The Judge Advocate Journal and the position of Assistant Chief year of World War II. In addi­ Counsel was created. A short time tion to the increased demand for later, when President Roosevelt de­ opinions, legal advice and other le­ clared a State of Limited National gal functions, the recruitment and Emergency and activated the Es­ indoctrination of law officers and pionage Act of 1917, a Port Secur­ the setting up of a servicewide le­ ity program was established with gal organization required consider­ extensive organization, regulations able time and attention. The Legal and responsibilities. The size of Division was now required to pro­ the United States Coast Guard con­ vide the full range of advice and tinued to increase, and the passage opinion not only to the administra­ of emergency legislation, such as tive officials at Coast Guard Head­ the Coast Guard Reserve Act, add­ quarters but also to District Coast ed to the duties and responsibilities Guard offices. of the Legal Division. The transfer Executive Order 9083, which be­ of the Coast Guard to the U. S. came effective on 1 March 1942, Navy on 1 November 1941 created transferred to the Coast Guard the several legal problems, particularly major functions of the former Bu­ with respect to the transition from reau of Marine Inspection and Nav­ the Coast Guard disciplinary sys­ igation. This move resulted in an tem to that of the Navy under the extensive field of new legal activity Articles for the Government of the for the Legal Division. For the Navy. The sudden entry of the first time, the Coast Guard was United States into World War II vested with authority to regulate on 7 December 1941 resulted in a certain phases of an industry­ rapid expansion of the Coast Guard namely, the administration of ves­ to carry out its war missions. Since sel inspection and navigation laws. almost all of the attorneys in the These statutes encompassed a sys­ Legal Division, including the Chief tem that had grown on a more or Counsel, were civilians at this time, less piecemeal basis for a hundred most of them were commissioned in and fifty years; they were difficult the Coast Guard Reserve. of construction and interpretation, Coast Guard regulations in 1940, particularly in view of the special for the first time, provided for a considerations and adjustments re­ law officer as a member of the staff sulting from the emergency condi­ of each District Coast Guard office. tions arising from the war. To han­ As these positions were filled, law dle this new workload, a special officers were also provided to Cap­ section in the Legal Division was tains of the Port at the major ports created and designated the Admir­ and the major independent units alty and Maritime Section. such as Supply Depots and Train­ At this time the Legal Division ing Stations. The Legal Division at Coast Guard Headquarters was at Coast Guard Headquarters faced organized into eight sections re­ difficult problems during the first porting to the Chief Counsel The Judge Advocate Journal 57

through the Assistant Chief Coun­ Legal Division in the Coast Guard sel. The sections were : Headquarters only three were com­ Opinion Section; missioned officers, the remaining Port Security Section; 18 were civilians. There were no Admiralty and Maritime field personnel whose time was fully Section; devoted to the handling of the legal Contracts Section ; matters that arose in the various Real Estate Section; Coast Guard District offices. The Courts and Boards Section; legal section headed by the District Legislative Section; and, Law Officer, that had existed in Patent Section. each District office during World War II, had been consolidated in In addition, there were several Spe­ July of 1947 into an organizational cial Assistants to the Chief Counsel component headed by an officer des­ who were assigned special projects ignated as the Legal and Intelli­ and tasks not falling within the gence Officer. This office was re­ cognizance of any particular sec­ sponsible to the District Chief of tion. Staff for the performance of all The Office of the District Law duties other than those pertaining Officer in each district was organ­ to legal matters. In the perform­ ized along the same lines as that ance of legal duties, he advised the of the Legal Division at Headquar­ District Chief of Staff, but was re­ ters, except that in the sm~ll offices sponsible to the Legal Division and the work of several sect10ns was the Chief Counsel at Coast Guard combined into one. There were, of Headquarters. course, no legislative or patent sec­ During the late 1940's, some law­ tions on the district level. During yers returned to active duty in the World War II, the staff of the Legal Coast Guard after a brief period Division was composed of approxi­ of private practice as civilians. De­ mately 25 attorneys and 25 non­ spite the paucity of legal billets lawyers. There were approximately for military lawyers following 80 officer-lawyers assigned to legal World War II, many ended up in work in the field offices. quasi-legal assignments that util­ With the end of World War II ized their legal talents and train­ and the resultant massive demobili­ ing such as Marine Inspection and zation, the civilians that had been Investigation Office, Captain of the commissioned as reserve officers re­ Port Offices, and Port Security verted to their civilian status and units. many returned to private practice. The advent of the Uniform Code The post-World War II period con­ of Military Justice (UCMJ) in tained few legal billets for active 1950 created an immediate need for duty Coast Guard officers with law legal officers in the Coast Guard degrees. In late 1947, for instance, Districts. The requirements of the of the 21 people assigned to the UCMJ resulted in the establishment 58 The Judge Advocate Journal

of a single legal billet in each Coast Chief Counsel and his staff, there Guard District Office as the Staff existed, following transfer of the Legal Officer. To fill these billets, Coast Guard in 1967, a lack of as­ the Coast Guard utilized some of signed functions in certain areas the lawyers commissioned during and ill-defined responsibilities of World War II. The need existed, positions and billets. As a result, however, for career-oriented law­ the Administrative Management yers and the Coast Guard insti­ Division of the Coast Guard insti­ tuted a program of post-graduate tuted a study of the Legal Division education in law for regular Coast in 1968. Action taken on the rec­ Guard officers. Beginning prior to ommendations of this study re­ the effective date of the UCMJ, five sulted in the Legal Division being Coast Guard officers entered law transformed and reorganized into school in 1949-1950. Each year the Office of Chief Counsel, respon­ thereafter, varying numbers of sible directly to the Commandant officers received assignments to of the Coast Guard. law schools, the number stabiliz­ The Office of Chief Counsel is ing at two per year by the now composed of seven divisions mid-1950's and continuing until as follows: 1969. The increased legal respon­ sibilities and workload resulting Maritime and International from the UCMJ also caused a num­ Law Division; ber of military lawyers to be added Claims and Litigation to the Legal Division at Coast Division; Guard Headquarters as "Special Military Justice Division; Assistants to the Chief Counsel". Procurement Law Division; When the Office of the General General Law Division; Counsel of the Treasury Depart­ Regulations and Administra­ ment was created and the Legal tive Law Division; and Division in Coast Guard Headquar­ Legislation Division. ters was established, the Chief In addition, the Legal Services Staff Counsel and his staff in the Legal and the full time military judiciary Division operated under the nomi­ are responsible directly to the Chief nal supervision of the General Counsel. This reorganization also Counsel of the Treasury Depart­ established the position of Chief ment, even though its function was Counsel as a military billet with to provide full legal services to the a rank, as any other Office Chief, of Commandant and other administra­ Rear Admiral. Rear Admiral Wil­ tive officers of the Coast Guard. liam L. Morrison, U.S.C.G., became This situation pertained from 1934 the first military Chief Counsel in until the transfer of the Coast 1968 and served until 1973 when Guard to the newly created Depart­ he was relieved by Rear Admiral ment of. Transportation in 1967. In Ricardo A. Ratti, U.S.C.G., the addition to departmental rather present Chief Counsel of the Coast than agency supervision of the Guard. JAA Presents Bicentennial Plaque to CMA At 1130 hours on 29 July 1975, Colonel William L. Shaw of Sacra­ mento, California, then the President of J AA, at a ceremony in the Court Room of the United States Court of Military Appeals in Washing­ ton, D.C. presented to the Court for the members of the Association a bronze plaque bearing the seal of the Judge Advocates Association and inscribed: IN COMMEMORATION OF THE BICENTENNIAL OF THE NATION AND IN HONOR OF THE LAWYERS WHO HAVE SERVED IN THE ARMED FORCES OF THE UNITED STATES OF AMERCIA 1775 -1975

PRESENTED BY THE MEMBERS OF THE JUDGE ADVOCATES ASSOCIATION TO THE UNITED STATES COURT OF MILITARY APPEALS AT WASHINGTON, D.C. ON 29 JULY 1975

The date of the presentation was selected because it was the 200th anniversary of the appointment by the Continental Congress of William Tudor to the position of Judge Advocate of the Army. Colonel Shaw made appropriate historical references in his presentation and Mr. Michael Katen, Clerk of the Court, for the Court, then in recess, accepted the plaque. The plaque has now been installed on the wall to the right of the main entrance to the Court Room as a permanent indication that like "Kilroy", JAA was there for the celebration of the bicentennium

59 60 The Judge Advocate Journal of the Nation and that it honors all those lawyer-soldier-sailor-airmen who have served in the long line that began with William Tudor in 1775. Attending the ceremony were Major General Harold R. Vague, TJAG, Air Force; Rear Admiral Horace G. Robertson, TJAG, Navy; Major General Wilton B. Persons, TJAG, Army; Honorable Michael Katen, Clerk, CMA; Mr. Francis X. Gindhart, Commissioner, CMA; RAdm. William 0. Miller; RAdm. Donald D. Chapman, MGen. Kenneth J. Hod­ son; BGen. Thomas H. King, Colonels James A. Bistline, Jerry E. Conner, Maurice F. Biddle, Charles A. Munnecke, Forrest S. Holmes, Eli Noble­ man, Clifford A. Sheldon, Richard A. Bednar, William L. Shaw, Richard H. Love; Captain Penrose Lucas Albright, Cdr. Donald H. Dalton; Messrs. Neil B. Kabatchnick, William R. Robie and Thomas Morgan and others who did not sign the roster. The ceremony was followed by a luncheon at the Army and Navy Club hosted by Colonel Shaw, Chairman of JAA's Bicentennial Committee. INCUMBENT TJAGs AS OF 4 JULY 1976 AND THEIR PREDECESSORS

The Judge Advocates General of the Services on duty as of the 4th of July 1976 are: Major General Wilton B. Persons, Jr., The Judge Advocate General of the Army Rear Admiral Horace B. Robertson, The Judge Advocate General of the Navy Major General Harold R. Vague, The Judge Advocate General of the Air Force Brigadier General John De Barr, Director of the Judge Advocates Division United States Marine Corps Rear Admiral G. H. Patrick Bursley, Chief Counsel United States Coast Guard The commissioned officers who were their predecessors in the office in the Army, Navy and Air Force, listed with the period of their services are: The Judge Advocates General, United States Army Colonel William Tudor·------······-··-·····-········J uly 29, 1775-Apr 9, 1777 Colonel John Lawrence______Apr 10, 1777-June 3, 1782 Colonel Thomas Edwards..·------··-·-··-··---Oct 2, 1782-Nov. 3, 1783 Captain Campbell Smith... ·------··-··-·-··-···-·--·····July 16, 1794-June 1, 1802 Brevet Major John F. Lee______Mar 2, 1849-Sept 3, 1862 Brevet Major General Joseph HolL...... Sept 3, 1862-Dec 1, 1875 Brigadier General William M. Dunn______Dec 1, 1875-Jan 22, 1881 Brigadier General David G. Swaim______Feb 18, 1881-Dec 22, 1894 Brigadier General G. Norman Lieber...... Jan 3, 1895-May 21, 1901 Brigadier General Thomas F. Barr...... May 21, 1901-May 22, 1901 Brigadier General John W. Clous ...... May 22, 1901-May 24, 1901 Major General George B. Davis -····-······-·······May 24, 1901-Feb 14, 1911

61 JUDGE ADVOCATES ASSOCIATION

Officers for 1975-76 DONALD D. CHAPMAN, Virginia ...... President ALBERT M. KUHFELD, Ohio ...... First Vice President WILLIAM S. FULTON, Virginia ...... Second Vice President MARTIN E. CARLSON, Maryland ...... Secretary CHARLES M. MUNNECKE, Virginia ...... Treasurer KENNETH J. HODSON, D. C...... Delegate to ABA

Directors By election of the membership: Gilbert G. Ackroyd, Pennsylvania; Richard J. Bednar, Virginia; Julian R. Benjamin, Florida; Myron N. Birnbaum, Virginia; Perry H. Burn­ ham, Texas; Frank W. Elliott, Texas; Robert T. Gerken, D. C.; James A. Gleason, Ohio; David E. Graham, Germany; Forrest S. Holmes, Mary­ land; Michael J. Jacobs, California; William R. Kenney, Maryland; Jack W. Ledbetter, Texas; Lenahan O'Connell, Massachusetts; Harold E. Parker, Virginia; Kenneth R. Powers, Virginia; Walter D. Reed, D. C.; William R. Robie, Virginia; Robert D. Upp, California; Matthew J. Wheeler, California; Charles A. White, Virginia; By virtue of office as TJAG or former TJAG: Wilton B. Persons, Jr., Virginia; Horace B. Robertson, Jr., D. C.; Harold R. Vague, D. C.; James S. Cheney, Florida; 0. S. Colclough, Maryland; Charles L. Decker, D. C.; George W. Hickman, California; Robert W. Manss, Ohio; Robert H. McCaw, Virginia; Joseph B. Mc­ Devitt, South Carolina; William C. Mott, D. C.; George S. Prugh, Cali­ fornia; Merlin H. Staring, Maryland; Ricardo Ratti, Maryland; John DeBarr, Virginia. By virtue of being a past president of J AA: Penrose L. Albright, Virginia; Nicholas E. Allen, Maryand; Daniel J. Andersen, D. C.; Glenn E. Baird, Illinois; Maurice F. Biddle, Vir­ ginia; James A. Bistline, Virginia; Ernest M. Brannon, Maryland; Richard A. Buddeke, Maryland; Robert G. Burke, New York; Edward R. Finch, Jr., New York; John H. Finger, California; Osmer C. Fitts, Vermont; Reginald C. Harmon, Virginia; Hugh H. Howell, Jr., Georgia; Herbert M. Kidner, Virginia; Thomas H. King, Maryland; Allen G. Miller, New York; Alexander Pirnie, New York; John Ritchie, Vir­ ginia; William L. Shaw, California; Gordon Simpson, Texas. Executive Secretary and Editor RICHARD H. LOVE Washington, D. C. f,