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THE ARMY LAWYER Headquarters, Department of the Army THE ARMY LAWYER Headquarters, Department of the Army Department of the Army Pamphlet 27-50-373 June 2004 Articles How Far Can They Go: Should Commanders Be Able to Treat Hotel Rooms Like an Extension of the Barracks for Search and Seizure Purposes? Major Alison Martin A Soldier’s Road to U.S. Citizenship—Is a Conviction a Speed Bump or a Stop Sign? Major Michael Kent Herring Notes from the Field The Judge Advocate Recruiting Office: The Gateway to Service Captain Eugene Y. Kim Utilizing, Overseeing, & Negotiating with the Local Child Support Enforcement Office First Lieutenant Darrell Baughn CLE News Current Materials of Interest Editor, Captain Anita J. Fitch Editor, Captain Heather J. Fagan Technical Editor, Charles J. Strong The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly tion (17th ed. 2000) and Military Citation (TJAGSA, 8th ed. 2003). Manu- by The Judge Advocate General’s Legal Center and School, Charlottesville, Vir- scripts will be returned on specific request. No compensation can be paid for ginia, for the official use of Army lawyers in the performance of their legal articles. responsibilities. Individual paid subscriptions to The Army Lawyer are avail- able for $45.00 each ($63.00 foreign) per year, periodical postage paid at Char- The Army Lawyer articles are indexed in the Index to Legal Periodicals, the lottesville, Virginia, and additional mailing offices (see subscription form on the Current Law Index, the Legal Resources Index, and the Index to U.S. Govern- inside back cover). POSTMASTER: Send any address changes to The Judge ment Periodicals. The Army Lawyer is also available in the Judge Advocate Advocate General’s Legal Center and School, 600 Massie Road, ATTN: JAGS- General’s Corps electronic reference library and can be accessed on the World ADA-P, Charlottesville, Virginia 22903-1781. The opinions expressed by the Wide Web by registered users at http://www.jagcnet.army.mil/ArmyLawyer. authors in the articles do not necessarily reflect the view of The Judge Advocate General or the Department of the Army. Masculine or feminine pronouns Address changes for official channels distribution: Provide changes to the appearing in this pamphlet refer to both genders unless the context indicates Editor, The Army Lawyer, The Judge Advocate General’s Legal Center and another use. School, 600 Massie Road, ATTN: JAGS-ADA-P, Charlottesville, Virginia 22903-1781, telephone 1-800-552-3978, ext. 3396 or electronic mail to The Army Lawyer welcomes articles from all military and civilian authors on [email protected]. topics of interest to military lawyers. Articles should be submitted via elec- tronic mail to [email protected] or on 3 1/2” diskettes to: Editor, Issues may be cited as ARMY LAW., [date], at [page number]. The Army Lawyer, The Judge Advocate General’s Legal Center and School, U.S. Army, 600 Massie Road, ATTN: JAGS-ADA-P, Charlottesville, Virginia 22903-1781. Articles should follow The Bluebook, A Uniform System of Cita- Articles How Far Can They Go: Should Commanders Be Able to Treat Hotel Rooms Like an Extension of the Barracks for Search and Seizure Purposes?................................................................................................................................................ 1 Major Alison Martin A Soldier’s Road to U.S. Citizenship—Is a Conviction a Speed Bump or a Stop Sign?.................................................................. 20 Major Michael Kent Herring Notes from the Field The Judge Advocate Recruiting Office: The Gateway to Service..................................................................................................... Captain Eugene Y. Kim Utilizing, Overseeing, & Negotiating with the Local Child Support Enforcement Office ................................................................. First Lieutenant Darrell Baughn CLE News......................................................................................................................................................................................... Current Materials of Interest ...................................................................................................................................................... Individual Paid Subscriptions to The Army Lawyer ................................................................................ Inside Back Cover JUNE 2004 THE ARMY LAWYER • DA PAM 27-50-373 How Far Can They Go: Should Commanders Be Able to Treat Hotel Rooms Like an Extension of the Barracks for Search and Seizure Purposes? Major Alison Martin A military barracks or berthing area may be Long before the development of the Uniform Code of Mili- a foxhole in a remote training or combat area tary Justice (UCMJ), there was a general principle that com- or it may be the almost mythical condomini- manders could search military property within their control.4 ums referred to in recruiting brochures and “The basis for this rule of discretion lies in the reason that, since motion pictures. It may be represented by such an officer has been vested with unusual responsibilities in elaborate areas of individual room configu- regard to personnel, property, and material, it is necessary that ration designed to accord to the service mem- he be given commensurate power to fulfill that responsibility.”5 ber a measure of personal privacy and It is also important to note that the type of search that would be protection from the more raucous environ- considered reasonable in the military would not necessarily be ment of a ship’s berthing area or an open reasonable in civilian society because of the “competing consti- squad bay. The range of such architectural tutional interest of military necessity.”6 Courts have consis- designs does not represent a granting of tently held that while “persons serving on active duty in the sanctuary areas inconsistent with the control armed forces of our country are not divested of all their consti- and discipline of a military organization.1 tutional rights as individuals,”7 the unique customs, traditions, and mission requirements of the service are such that service members do not exercise the same degree of personal liberty as Introduction do civilians.8 There are exemptions clearly noted in the Consti- tution, as well as implied exceptions to the fundamental rights In the months following 11 September 2001, thousands of normally enjoyed by an individual in the civilian community.9 reservists and members of the National Guard were called to active duty.2 This mass mobilization caused barracks shortages Since there is little question that a commander has both a on many installations, and some of these mobilized forces were unique responsibility and authority in the area of search and sei- housed in hotel rooms either on or off the installation.3 Conse- zure, the focus then shifts to the extent of that authority. The quently, commanders struggled to set standards for mobilized Military Rules of Evidence (MRE)10 provide some guidance as forces living in hotel rooms that were commensurate with ser- to the limits of a commander’s power to search and seize a ser- vice members living in traditional barracks rooms. vice member’s property, and the courts have further defined military property as distinct from an individual’s property and the reasonable expectation of privacy.11 Inventories and inspec- 1. United States v. McCormick, 13 M.J. 900, 903-04 (N.M.C.M.R. 1982). 2. U.S. Dep’t of Defense, National Guard and Reserve Units Called to Active Duty (Dec. 12, 2001), available at http://www.defenselink.mil/news/Dec2001/ d20011212active.pdf (last visited Oct. 15, 2003) [hereinafter Defenselink] (providing statistics released by the Department of Defense indicating that as of 12 Decem- ber 2001, 58,741 Soldiers, Sailors, Airmen, and Marines were activated from the reserves and the National Guard). 3. Fort Bragg, North Carolina is one of several major Army mobilization sites. As of 22 January 2004, Fort Bragg had 503 hotel rooms housing 648 Soldiers located on the installation and 1151 hotel rooms housing 1330 Soldiers off of the installation. E-mail from CW2 Tammy Wright, Housing Coordinator, 2125th Garrison Support Unit, Fort Bragg, North Carolina, to MAJ Alison Martin, Student, 52d Judge Advocate Officer Graduate Course, U.S. Army (Jan. 22, 2004) (on file with author). 4. See United States v. Doyle, 4 C.M.R. 137, 139 (C.M.A. 1952) (citing United States v. Kemerer, 28 B.R. 393 (1943); Dig. Op. JAG 1912-1940, sec. 395 (27); United States v. Worley, 3 C.M.R. (AF) 424 (1950)). In United States v. Stuckey, the court reviewed the history of search and seizure and noted that the commander’s authority has traditionally been a critical part of military law: On July 23, 1930, The Judge Advocate General stated in an opinion: Authority to make, or order, an inspection or search of a member of the military establishment, or of a public building in a place under military control, even though occupied as an office or as living quarters by a member of the military establishment, always has been regarded as indispensable to the maintenance of good order and discipline in any military command . such a search is not unreasonable and therefore not unlawful. J.A.G. 250.413. United States v. Stuckey, 10 M.J. 347, 352 (C.M.A. 1981). 5. Doyle, 4 C.M.R. at 140. 6. United States v. Ezell, 6 M.J. 307, 328-29 (C.M.A. 1979). JUNE 2004 THE ARMY LAWYER • DA PAM 27-50-373 1 tions, if conducted properly, are authorized in order to allow the served
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