DA PAMPHLET 25-5&% HEADQUARTERS, DEPARTMENT OF THE ARMY, WASHINGTON, D.C.

4. I Obst&ction of Justice: The Federal and Military Offenses By: Captain G. P. Bryson, JAGC, Fort Carson, Colorado

The Federal Offenses. of United States v. Solow, 138 F. Supp. 812 (S.D.N.Y. 1956) and United States v. SiegeE, The federal offenses of obstruction of justice, 152 F. Supp. 370 (S.D. N.Y. 1057), cert. denied which are arguably applicable to military judi- 354 U.S. 1012 (1959), rehearing denied 361 US cial proceedings according to United States v. 871 (1959). In Solow, the indictment alleged Long, 2 USCMA 60, 6 CMR 60 (1952), are that a federal grand jury was conducting an defined and made punishable by Title 18, investigation of matters with respect to which United States Code, Section 1503 and 1505. certain correspondence in the possession of the Section 1503 makes punishable, by confinement defendant was material and relevant, that the for no more than five years and by a fine not in defendant knew of the investigation, that he excess of $5,000, the acts of intimidating, believed and had reason to believe that he influencing, or injuring the person or property would be called as a witness by the grand jury, of an officer, juror, or witness in a proceeding that he had reason to believe that the grand pbefore “any of the United States or jury would require the production of the corre- before any -United States or other spondence, and that he knowingly, willfully, committing magistrate”, or of “endeavoring to” and corruptly destroyed the correspondence to intimidate, influence, or injure the person or prevent its production during the course of the property of the same class of individuals listed investigation. In denying the defendant’s mo- previously, on account of the person’s partici- tion attacking the snffiency of the indictment pation or expected participation in a cause on the basis that the grand jury had not pending in the fora noted above. Section 1505 subpoenaed the correspondence prior to its deals similarly with acts directed toward the alleged destruction, the court noted that the same classes of persons described above in- defendant had been indicted for a violation of volved in proceedings pending before “any the omnibus provision of Section 1503 which is department or agency of the United States, or directed at “. . . whoever . . . corruptly . . . in connection with any inquiry or investigation obstructs, or impedes, or endeavors to in- being had by either House, or any committee of fluence, obstruct, or impede the due adminis- either House, or any joint committee of the tration of justice . . .” (quoting from the stat- Congress”, and prescribes the same penalties ute as it was then drawn). The option contin- upon conviction as noted above in connection ued by adding: with Section 1503. “This latter provision, under which the de- In addition to the offenses described above, fendant has been indicted, is all-embracing Section 1503 contains an omnibus provision, and designed to meet any corrupt conduct couched in general language set forth in the in an endeavor to obstruct or interfere latter portion of the provisions, which the with the due administration of justice.’’ federal have applied to any of the manifold methods by which the due administra- In Siegel, the federal grand jury subpoenaed tion of justice may be obstructed, impeded, or notes and memoranda generated by a law firm Pjnfluenced. Application of this general pro- concerning conversations had with the subject ‘ scription of obstructive behavior may be dem- of the inquiry by representatives of the firm. It onstrated by reference to the two related cases was alleged, inter alia, that the original notes DA Pam 27-50-30 2 and memoranda had been destroyed and, in certain instances, the fraudulent documents had been fabricated for presentation to the grand jury. In its opinion denying the defend- ant’s motion for dismissal on the basis that the indictment failed to assert the materiality of the subpoenaed documents, the addressed the propriety of alleging such acts as a violation of section 1503 in the following remarks: “The first portion of the section is for the protection of witnesses, jurors and court officers. The latter portion of the section deals generally with the obstruction of jus- tice. It condemns the corrupt influencing, obstructing or impeding of the due admin- istration of justice and corruptly endeavor- ing to do so.”

Federal Offense Applicable to Armed Services. The Court of Military in United States u. Long, supra, did not decide the question of whether obstruction of justice oc- - The Judge General curring in the armed forces should be alleged‘ Major General George S. Prugh The Assistant Judge Advocate General under Article 134, Uniform Code of Military Major General Harold E. Parker Justice (UCMJ), as a violation of Section 1503 Commandant, Judge Advocate General’s School or of 1505. Since courts-martial are, at best, , Colonel William S. Fulton, Jr. only one of a variety of ‘kourts” existing by Editorial Board Colonel Darrell L. Peck virtue of Congress’ power set forth in Article I, Colonel John L. Costello United States Constitution, and since “United Editor States ” are unknown to military Captain Paul F. Hill I, justice systems, it seems clear that Section Administrative Assistant 1503 offenses could not occur in the armed Mrs. Helena Daidone forces. It also seems patent that “court of the United States”, as mentioned in Section 1503, refers to Article I11 courts, and that the quoted term could not entail courts-martial or Article 32, UCMJ, proceedings!On the ather hand, it is probable that courts-martial would The Army is published monthly by The Judge be comprehended by the expression “depart- c Advocate General’s School. By-lined articles represent ment or agency of the United States” and that the opinions of the authors and do not necessarily reflect the views of The Judge Advocate General or the Depart- obstructions of justice arising in the land and ment of the Army, Manuscripts on topics of interest tg naval forces could be prosecuted under the military are invited to: Editor, The Army third clause of Article 134, UCMJ, as violations Lawyer, The Judge Advocate General’s School, Char- of Title 18, U.S.C., Section 1505. lottesville, Virginia 22901. Manuscripts will be returned only upon specific request. No compensation can be paid to authors for articles published. Funds for printing this Similar Constructions. publication were approved by Headquarters, Depart- Section 1505 is analogous to Section 1503 by ment of the Army, 26 May 1971. virtue of the almost identical language con- DA Pam 27-50-30 r- 3 tained in the Sections. Though Section 1505 has 137 F. Supp. 620 (W.D. Pa. 1956) ,which been seldom construed by federal courts, there provides at page 621 that “to constitute an are numerous federal decisions which interpret offense under the , the act must be in the terms of Section 1503. Since the language relation‘ to a proceeding pending in the federal used in both sections is quite similar, Section courts . . .” In view of the Daminger case’s 1505 should be construed and limited in accord- favorable reception of Scoratow’s inclination, ance with the considerations expressed in fed- with regarh to Section 1503 offenses, to punish *. eral cases analyzing Section 1503. only obstructions occurring while proceedings are pending, it would seem that acts of ob- Pendency of Proceedings. struction could be prosecuted under the terms of Section 1505 only if they occurred prior to Sections 1503 and 1505 recite, respectively, the point where the proceedings have been that they were enacted in efforts to enhance concluded. the “due administration of justice’’ (1503), and the “due and proper administration of the law” Initiation and Cessation of Culpability. (1505), and federal cases have established that a person may be found guilty of a violation of The Daminger cases, reported at 30 CMR Section 1503 only if the acts or “endeavors” 826 (AFBR 1960) and at 31 CMR 521 (AFBR were calculated to impede participants or the 19611, were primarily concerned with the iden- due administration of justice in a particular tification of the earliest point in time at which case or inquiry. According to the most recent an improper approach to a witness could be federal decisions, the operative fact predicat- alleged to be an obstruction of justice and ing application of the section appears to be the punished as such. The Air Force Board of mere pendency of the proceedings before the Review decided in the second Daminger case , particular forum regardless of whether the that military proceedings were pending at the witness unlawfully approached has already tes- time when formal, sworn charges were pre- tified in the undecided cause, and regardless of ferred, likening the preferral of charges to the whether the officer, juror, or witness was filing of a complaint or information, or of the actually persuaded to follow the course of return of an indictment. While the Daminger action at a hearing in progress because of the decisions dealt with defining the inception of a unlawful intrusion. It has been due to the serviceman’s possible culpability for an act specific language contained in the body of amounting to an obstruction of justice alleged Section 1503 that the federal case law has under federal statute and as a military offense, inclined to limit application of this statute, by opinions by military appellate bodies have not applying the constructional theory of generis served to define the point in the proceedings at ejuesdem, to offenses occurring in relation to which culpability ceases for the same acts. In specific, pending causes rather than to offenses federal criminal cases, the applicability of Sec- arising after final decisions have been rendered tion 1503 would terminate at the point in the and which might affect “due administration of proceedings where the defendant was either justice” only prospectively. Such federal cases acquitted or sentenced. Of course, it could have also reasoned that acts or “endeavors” always be argued that a military proceeding, r addressed to officers, jurors, or witnesses in a such as an Article 32 investigation or a court- federal proceeding, coming after final decision martial, was pending until such time as the has been rendered in the case, cannot affect the result of the proceeding became final. Since outcome of a matter that has been settled and courts-martial become final, according to the cannot affect the due administration of the terms of Article 76, UCMJ, when the review case. An example of a case offering such an for legal sufficiency under the provisions of interpretation, cited with approval in the sec- Article 65(c), UCMJ, has been performed or ond Damiizger case (which is reported as when the automatic appellate procedures in United States v. Daminger, 31 CMR 521 accord with the terms of Articles 66 and 67, I“. (AFBR 1961) ), is United States v. Scoratow, UCMJ, have been exhausted, it well might be DA Pam 27-50-30 4 r- that that notion of finality will be accepted in offense denounced by the United States prosecutions of Section 1505 by armed forces Code as interpreted by decisions of Fed- justice systems. In view of the fact that eral courts are not controlling or deter- automatic military appeals for cases invoking minative of the constituent elements of the the provisions of Articles 66 and 67, UCMJ, offenses herein involved”. can require years of disposition to be effected, the rule may well be established that finality, Therefore, separate and apart from the .: for purposes of terminating prosecutions for offenses of obstruction of justice as defined by obstruction of justice, should attach following federal is the military offense of the rendition of sentence by court-martial since obstruction of justice as alleged under clauses an accused may at that time be ordered into one and two of Article 134, UCMJ- There confinement to begin serving a portion of his Seems to be no real question that Congress, in sentence. This approach in shortening the a Properly worded enactment, could constitu- period of exposure to culpability would probab- tionally exercise the authority to determine 1~ be more in keeping with federa] construe- and punish offenses against participants in tions of Section 1503 than a mechanical adher- proceedings before Courts, magistrates, Wen- ence to the concept of finality enunciated by Cies, departments, and Congress itself, ‘‘On Article 76, UCMJ. account of’ that participation, even if the proceedings have been concluded. The provi- Independent Military Offense. sion of criminal sanctions, to prevent interfer- I Military appellate courts have repeatedly ences with the activities of those bodies enu- acknowledged the existence of a distinct mili- merated above, would be both necessary and tary offense of obstruction. The first Daminger Proper to the exercise and integrity of the case stated that various federal functions created, delegated, and supervised by Congress. The military

“In law, the leading On the offense, unfortunately, is commonly alleged r offense of ‘obstructing justice’ is that of only as set forth in Appendix 6c, ~~~~~l for I United States v. Long, There the Courts-Martial, which pirates the form a]lega- accused had a witness tion for 1503 offenses as established by the who had appeared against them in a sum- Justice Department. The form, therefore, re- mary court-martial. . . .” lates only to the method of specifying offenses I The court held it need not determine that in Violation Of Section 1503. It should be noted, matter; i.e., whether it was proper to prose- though, that, in the prefatory remarks to the cute under Section 1503 or 1505 “as the offense Appendix, it is provided that the form allega- of obstructing justice was cognizable under the tions furnish Only formats for ease of pleading first two clauses of Article 134 . . .” Daminger rather than representing an exhaustive or continued in asserting that “obstructing justice exclusive compilation of forms for alleging mili- is an offense indictable at the as tary offenses from which the pleader may not well as by Federal Statute . . . It has also been deviate. recognized as a military offense” (citing united Therefore, with regard to the military of- States I). Long, supra, United States u. Rossi, fense, it should be obvious that the case of l3 CMR 896 (AFBR 1953)7 and United United States v. Long, is the fount from which ‘’. 22 CMR 853 (AFBR lg5@)’ The the military law of obstruction of justice flows. case of United States Rossi, contains the v. In that case, a witness was beaten for having following remarks in its opinion: testified in a summary court-martial against a “Under the rationale of the above cited friend of the assailants. The witness’ testimony case [United States u. Long] we unhesitat- had been a contributing factor leading to the ingly conclude that the specifications here- conviction of the assailants’ friend in the trial. in allege disorders in violation of Article Without having discussed, or having otherwise 134 and that the elements of a similar dealt with, the questions of whether the con- -~. DA Pam 27-50-30 5

vening authority had acted in the case, or tice is fairly comprehended within Article 134, whether a review for legal sufficiency had been is proper, and is a constitutional exercise of performed, the Court of Military Appeals de- authority to declare acts criminal, Congress is fined the military offense of obstruction of empowered by Article I of the United States justice as proscribing acts directed against Constitution “to make Rules for the Govern- L participants in a court-martial and other acts of ment and Regulation of the land and Naval obstruction which would tend to impede the Forces”, and has, in exercise of that power, + administration of justice for future cases as enacted the UCMJ, which includes Title 10, well. There was subsequently reported the United States Code, Section 934 which, by case of United States v. LeSage, supra, in reference to clauses one and two, makes which United States v. Long was cited, and in punishable acts causing the armed forces to be which the Air Force Board of Review upheld a discredited. Since courts-martial are the ve- conviction for obstruction of justice where the hicles for the enforcement of Congress’ rules, accused had injured the property of a witness Congress would be authorized per the Neces- against him at a court-martial held 26 days sary and Proper Clause to ensure the integrity before. of the mechanism of administration of military justice. This authority would necessarily in- Broader Military Offense. clude proscriptions meant to protect partici- pants in a court-martial and to protect the From a reading of Long and LeSage, which integrity of used or to be used in the cases have evidently not been reversed either court-martial, before or after a final determi- expressly or sub rosa by later military cases, it nation was made, just as Congress would have seems clear that the limits of the military the same power with regard to proceedings offense of obstruction of justice are broader before an Article I11 court or before a federal p‘than those fixed by federal statutory and agency or department. Since the Congress of decisional law on the subject. When a case the United States possesses such authority and arises by virtue of an act committed against a has properly exercised the authority by enact- participant in a court-martial on account of past ment of Title 10, U.S.C., Section 934, the participation, or by virtue of any other act Court of Military Appeals acted properly in which corruptly creates an impediment to a defining the military offense of obstruction of proceeding and the convening authority has not justice with more expansive contours than acted in the subject proceeding, it may be those established by federal statute. The Court argued that, even assuming that federal and of Military Appeals has construed the “general military laws concerning obstruction of justice article” in a limited fashion in an effort to avoid are concurrent in application, the proceeding is its being voided by overbreadth or vagueness, yet “pending” since the convening authority and the military offense has been defined for has not acted to approve or disapprove the more than 20 years by virtue of Long, decided result of the court-martial, nor has the case in 1952. If people are presumed to know the received a review for legal sufficiency in accord law, a definition of an offense of such long with Article 65 (c), UCMJ. In the alternative, standing should not be considered to be vague. -* the cases of United States v. Long and of Though the recent case of Parker v. Levy, 417 United States v. LeSage may be cited as being US 733 (1974) did not do much to lay over- supportive of the proposition that the military breadth and vagueness issues to rest, sounding offense is broader than its civilian analogue, as it did as a decision on a standing issue, it can and applies to acts, coming after termination of be cited as marginal support, in conjunction proceedings, which affect due administration of with United States v. Fravztz, 2 USCMA 161, 7 justice prospectively. CMR 37 (1953) and United States v. Sadinsky, 14 USCMA 563, 34 CMR 343 (1964), for the It would seem that the authority to declare a’ proposition that Article 134, UCMJ, is a valid broader military offense of obstruction of jus-. criminal statute. DA Pam 27-50-30 6 ,- Proposed Form For Pleading Military a summary court-martial in) (attended and Offense. acted as Article 32 Investigating Officer From the dearth of recently reported cases in) (attended and acted as Trial or Defense on point with Uyiited States v. Loxg and with Counsel in) the (--- Court-Martial of) Uirited States 11. LeSage, it may be inferred (Article 32 proceedings with regard to) held on and with re- that military pleaders have been intimidated, ______L and inhibited, in bringing allegations against spect to whom sworn charges were pre- military accused under the authority of the ferred on ____. above noted cases due to an absence of a form allegation in Appendix 6c of the Maizual qf Explanation of Proposed Form. Coil rts-Martial, due to limiting federal inter- pretations of Section 1503 of Title 18, violations In the form set forth above, general words of which are represented by the only form such as “influence”, “intimidate”, and “injure” allegation of obstruction of justice in Appendix were used since they have the stature derived 6c, and because of the continuous judicial from being statutory language, and because, in attacks of the past several decades upon of- a single format, general words are necessary to fenses alleged under the authority of clauses describe the plethora of methods and means by one and two of Article 134, UCMJ. It is which a participant in a court-martial may be contended, however, that military justice sys- improperly approached. United States v. Loitg tems possess a powerful instrument with which represents the proposition too that the act may to expiate congressional authority in the realm be pleaded in a conclusionary fashion such as of protecting participants in courts-martial by alleging that the accused assaulted and proceedings and of ensuring the integrity of battered the witness. It is recommended, how- military proceedings themselves, an instru- ever, in connection with the use of the form, ment which may be lost through desuetude that the general words not be used but that the rc-r unless the authority is exercised. In order to improper act predicating the allegation be ’ promote usage of the pleader’s full latitude in alleged with more specificity. The acts pleaded specifying an obstruction of justice in a proper in place of the general words in the form, and case, the following form is presented as a which are alleged to have been directed against supplement to the one provided in the Manual a participant in a court-martial, need not rise .for Cozi rts-Martial: to the level of an independent offense under the UCMJ, however. In instances where the acts In that _____ did, at (on board) do not amount to a separate offense under the ---_----) on or about -----, Code, it is suggested that the pleader simply wrongly, corruptly, and unlawfully (en- allege the facts constituting the improper en- deavor to) (while believing or having deavor or completed act of influence, intimida- reason to believe that the -----’s tion, or of injury to person or property as an production would be required as evidence) obstruction of justice. [(destroy _____ in order to prevent its production as evidence in) (obliterate a In the proper case, in which a demonstrable material portion of _____ in order to nexus exists between the overt act or endeavor

prevent its intact production as evidence directed towards a person and that person’s 1 in)] [(fabricate a fraudulent----- in prior participation in a military judicial pro- order to influence, impede, and obstruct ceeding, alleging obstruction of justice as rec- the due administration of justice in)] [(in- ommended above serves to characterize the fluence) (intimidate) (injure the person of) acts more accurately, and to authorize the (injure the property of) _____ on imposition of more appropriate punishment, account of the said ---’s having (at- upon conviction of the accused, than would be tended and testified as a witness in) (at- the case in pleading only the mere act or tended and acted as a court member in) endeavor if it should rise to the status of an

(attended and acted as a military judge or offense under the Code. A. ...

DA Pam 27-50-30 P 7 Conclusion. accused to conviction and sentencing for only It is submitted in conclusion that, since acts the overt act or endeavor; i.e., a simple assault of obstruction of justice represent, in their or a simple assault and battery, etc. Therefore, ramifications, pernicious attacks upon the mili- a realization of the possibilities of pleading and tary justice system in its attempts to admin- proving a charge and specification of obstruc- ister justice in compliance with law, it would be tion of justice, as the military offense has been a travesty for military justice officials in a defined by military appellate bodies, would be proper case to be satisfied with exposing an useful to any command.

4

Processing Freedom of Information Act Requests By: Captain Robert E. Gregg, Adniinistrative Law Division, OTJAG

This is the second of three articles discussing Step 2. Ascertain whether the request is the recent amendments to the Freedom of In- properly addressed in accordance with Appen- formation Act (FOIA). The first article re- dix B. viewed the substantive changes in the Act and the general impact on the processing of re- (Note: All FOIA requests from representa- quests for information. This article is con- tives of the press or other mass communica- cerned with the processing of requests for tions media will be directed to the appro- information from a practical, “how-to” stand- priate commandlorganization information point. The format chosen for the first portion of office and processed in accordance with “this article is a step-by-step approach to the para 247.1 processing of requests, and is intended to - If properly addressed, proceed to Step 3. provide an informal checklist to be used with Army Regulation 340-17, 25 Jun 1973, as - If the request is improperly addressed, changed by Change 1, 24 January 1975. The and second portion of the article contains guidance, (1) the request is of proper concern to in addition to that provided in the checklist, for another Army element, complete those actions processing specific requests for information. required by paragraph 2-6a( 1); All the paragraph or appendix citations refer to Army Regulation 340-17, supm. It is hoped (2) the request is of proper concern to an that the checklist and the other guidance agency outside the Army, complete those ac- provided will be of assistance to those receiv- tions required by paragraph 2-6a (2); or ing and processing initial requests. (3) the information requested is a combination of Army records and those of one or more, I identifiable sources other than the Army, refer The step-by-step checklist set forth below non-Army portions to originating agency, if will provide Army lawyers with guidance as to practicable, as required by paragraph 2-&(3). 1 how to process FOIA requests received by Proceed to Step 3. their offices. Because of the time restraints Step 3. Determine whether the request indi- imposed on the processing of requests by the cates in writing, expressly or implicitly, that 1974 amendments to the FOIA, a checklist can the records are being requested under FOIA. be a useful means to insure that requests are processed in a timely manner. (See para 2-% .I - If it does, proceed to Step 4. Step 1. Action officelagency receives a re- quest for information. - If it does not, process as a routine request f“. DA Pam 27-50-30 8 tF for information. (See Army regulations in the time. The clerical and professional cost of 360 series.) searching for the record ($5.50 and $11.00 respectively per hour) is chargeable to the Step 4. Determine if the request reasonably requester (App D and DA message 1421502 describes an Army record. Feb 1975). (Note: There is no requirement to create -When there is a need to search for and a record; para 2-3.) collect the requested records from offices that - If it does, proceed to Step 5. are widely separated from the office processing the request, or to search for, collect, and If it does not, notify the requester that he - appropriately examine a voluminous amount of has failed to identify a record, and that his separate and distinct records, and where it request cannot be processed. appears that processing the request will not be Step 5. Estimate the cost of research and completed within the 10-working-day time lim- duplication (App D and DA message 1421502 it, contact the responsible initial denial author- Feb 1975). ity (IDA) who may, after consultation with the Army General Counsel, authorize an extension -If the estimated fee exceeds $10.00 and of up to 10 working days (para 2-61). will not be waived under the exceptions of Appendix D, and if the requester had not -If the requested record is not available, specifically stated that he will pay whatever process in accordance with paragraph 24%. cost is involved in processing his request, Proceed to Step 7. notify him that: (1) his request will not be processed until the estimated fee is received; Step 7. Review the requested record to (2) that if the actual fee is different from the determine if it falls within one of the exemp- estimated fee, the difference will be assessed tions listed in paragraph 2-12. t- or refunded as appropriate; and (3) that the 10- - If it appears that processing the request working-day time limit will not begin to run will not be completed within the 10-working- until the estimated fee is received (para 2- day time limit and that an unusual circum- &(l)). Appeals to a refusal to waive charges stance as defined in paragraph 2-lb(4) exists, should be forwarded to the Office of the Army apply for an extension of the time limits in General Counsel, Headquarters, Department accordance with paragraph of the Army, Washington, D.C. 20310. Upon 2-q. receipt of the estimated fee, deposit it at the -If the record is not within one of the local finance office under the proper account exemptions, proceed to Step 8. classification: 21x6875, Suspense Department - If the record is within one of the exemp- of the Army. (Prior coordination with that tions, and office should be accomplished.) Proceed to Step 6. (1) no legitimate purpose exists for with- holding it (other than records containing na- - If the request specifically states that the tional security information or information requester will pay whatever cost is involved in whose nondisclosure is required by statute), processing the request, the estimated fee does the record was prepared locally, and the IDA not exceed $10.00 or the fee has been waived has not withdrawn authority to release the under the exceptions of Appendix D, the 10- record locally, proceed to Step 8 (para 2- working-day time limit commenced to run on la(a) 1; or the date the request was received by the proper addressee (para 2-&(2) ). Proceed to (2) a legitimate purpose exists for with-, Step 6. holding the record, the request was not pre- pared locally, or there is no authority to Step 6. Locate the requested records. release the record locally (para 2-la(2) ), pro-

- Keep an accurate accounting of the search ceed in accordance with paragraph 24%. h DA Pam 27-50-30 9 (Note: No official other than the Initial vides guidance for processing certain specific Denial Authority and the Secretary of the requests for information. Army may deny a request for Army rec- While medical and personnel records are ords; para 2-la(5).) normally exempt from release to the general public under the sixth exemption of the FOIA Step 8. Compute the fee to be charged, if (5 USC 552 (b) (6)) as a clearly unwarranted any, and within 10 working days.from the date invasion of personal privacy, they are not (see Step 5) when the time limit began to run, exempt for release to the individual who is the 4 subject of the record. Paragraph 2-9 sets forth - Forward a copy of the requested records certain circumstances where release of infor- to the requester if the fee has been paid or mation from medical or personnel records does waived, and assess or refund, as appropriate, not result in a clearly unwarranted invasion of the difference between any estimated fee paid personal privacy. Offices responding to re- and the actual fee; or quests for information from these records should follow the guidance in this paragraph, - Notify the requester that the record will whether or not the request cites the FOIA. be forwarded to him upon receipt of the fee Access to these records is also authorized for covering the cost of search and duplication, and federal, state and local agencies in the perfor- upon receipt of that fee, forward a copy of the mance of official government business (App C). requested records to the requester. Frequently state courts will issue subpoenas (Note: Upon receipt of the fee, deposit it at for Army records, particularly civilian employ- the local finance office under account clas- ee pay records. Copies of such requested sification 212259.2 for reproduction costs records should be released under the authority and 212419.22 for search costs (DA mes- of Appendix C. /- sage 1421502 Feb 1975). If there is any Where the request for medical or personnel possibility that any of the funds received records (or any other records) is received from will have to be returned to the requester, a member of Congress, it will be processed in the account to be credited will be 21x6875, accordance with paragraph 2-10. Suspense Department of the Army.) A request for Army records in connection I1 with litigation, tort claims, or contract disputes will be processed in accordance with paragraph The remaining portion of this article pro- 2-11.

The New Nonappropriated Fund Regulations By: Captain Stephan K. Todd, Administrative and Division, TJAGSA

The past six years have been a period of ure and investigation of the open mess scandals review and revision for the Army’s nonappro- in the Republic of Vietnam. The purpose of this priated fund system. During this period Army article is to highlight some of the differences Regulation No. 230-1 (8 April 1968) and Army between the new regulations and their prede- Regulation No. 230-60 (8 January 1971) were cessors. In addition, reference will be made to the subject of frequent and numerous changes. some of the areas of confusion that exist under With the recent republication of these regula- the new regulations. It is noted that a change tions, we may be entering a period of tranquil- to Department of the Army Pamphlet No. ity-a culmination of the renovation and inno- 27-21, Military Administrative Law Handbook vation that has taken place concerning the (October 1973) will be distributed imminently nonappropriated fund system since the disclos- to the field. While that change does include a f- DA Pam 27-50-30 c 10 te embership association NAFIs and com- is based upon the superseded regulations. An mon service NAFI’s are derived from the bld even newer change to the Military Adminis- sundry fund classification. trative Law Handbook is currently being pre- A seemingly unsettled issue under this new pared to incorporate the new regulations. , classification system concerns the status of \ I packaged alcoholic beverage stores, Army Army Regulation No. 230-1 (2 January 1976). Regulation No. 230-1 now lists “Class VI agen- Like its predecessor, this is the basic ‘regula- cies and locker funds overseas” as examples of tion ,governing the Armi’s nonappropriated resale revenue-producing NAFIkS An early fund system, and provides general guidance for draft of the present Army Regulation No. all activities ,supported by ’ nonappropriated 230-1 provided that all packaged’ alcoholic funds. One of the first changes to be noted in beverage stores would be classified as resale the new regulation concerns the definition of revenue-producing NAFIs, removing them terms. The phrase “morale, welfare, and rec- from their traditional adjunct status to Army reation programs” has been adopted to refer to clubs. Under this proposal, the income of the all programs which the Army operates for the packaged alcoholic beverage stores would have morale, welfare, and recreation of service been shared by welfare and recreation NAFIs members, regardless of the source of the and Army clubs. While this proposal was not funds-appropriated or nonappropriated-for included within the published regulation, the the operation of such programs. Historically, potential for change is still believed to be the phrase “nonappropriated funds” referred to viable. both the source of the moneys andtthe activi- The area of nonappropriated fund procure- ties supported by such moneys. Under the new ment has historically engendered confusion.

regulation, however, “nonappropriated funds” While it is beyond the scope of this article to ‘ F urce of the funds: “[Clash delve into the peculiarities of nonappropriated and other ass ceived by nonappropriated fund procurement, it should be noted that the fund instrumentalities from sources other than new regulation,: in addition, to having an ex- moneys appropriated by the Congress of the panded section on procurement, directs that United States.” 2 Th& phrase “nonappropriated Department of the Army Pamphlet No. 27- fund instrumentality” has been adopted to 154 10 be used as a general guide for procure- refer to the activity supported by nonappro- ment by all NAFI’s.ll priated funds. Two areas cqvered in the old Army Regula- Along with the definitional changes, the tion No. 230-1’ have been curtailed in the new Army has adopted a new classification system regulation. The section of the old regulation for nonamropriated fund instrumentalities dealing with Dersannel l2 has. to a neat extent TNAF1’si.- Uider this new classification ’been dYeleted-from the new reeulac~n.~~Armv - Y system, which was prompted by $he Depart- Regulation No. 230-2 l4 is now the governing ment of Defense, there are four major authority for matters concerning NAFI em-

groups: 1 t 1 ployees. The other area deleted from the new regulation concerns those activities traditional- 1. Resale revenue-producing NAFI’s; * ly referred to as “private associations.” ,These 2. Welfare and recreation NAFI’s; activities, now referred to as “private organi- zations,” are now governed by Army Regula- 3. Membership association NAFI’s; and, tion-No. 210-l.15 4. Common service NAFI’S.~ For matters concerning insurance coverage There is a reaay alignment between r6sale €or NAFI’s, reference must be made to Army revenue/producing NAFI and welfare and rec- Regulation No. 230-16.16 Under this regula- reation NAFI’s and the old revenue-producing tion, establishing the Risk Management Pro- fund and delfare fund classifications. General- gram, NAFI’s are self-insurers for property -

h - DA Pam 27-5030 I1 and casualty insurance losses. This program is SystemAenotes the fact that it is concerned administered by the Army Central Insurance only with Army clubs (open messes). Its prede- Fund. In addition, the Army Central Insurance cessor governed all sundry funds, including Fund centrally purchases workmen’s compen- open messes. All membership association sation insurance from commercial insurance NAFI’s, other than Army clubs, and all com- carriers for all NAFI’s. The reasons for the mon service NAFI’s are now governed by Risk Management Program are two-fold: Army Regulation No. 230-1. In the past, Army clubs have been the largest source of problems 1. Assuring that all NAFIs have the neces- within the nonappropriated fund system. It is sary insurance coverage to protect their assets. not unexpected, therefore, that their control 2. Providing lower insurance costs to indivi- and operation have been the subject of change. dual NAFI’s. The predominant change in the Army club Another area involving Army Regulation system concerns the United States Army Club No. 230-16 concerns the payment of tort claims Management Agency (USACMA). USACMA arising out of the operation of NAFI’s. The has existed as an entity within the Army club new Army Regulation No. 230-1 provides that system for several years. However, the new tort claims will be paid by the Army Central Army Regulation No. 230-60 clearly sets out Welfare Fund or the Army Central Mess its role and function in the control and opera- Fund.17 However, Army Regulation No. 230- tion of Army clubs.la Under the new system, 16 provides that tort claims in excess of $100 Army clubs are not under the autonomous will be forwarded to the Army Central Insur- control of the installation commander. Yet, ance Fund for payment; claims of $100 or less neither are they under the sole control of are to be paid by the NAFI incurring the USACMA as was proposed at one point in daim.l* This dichotomy appears to have re- time. sulted from the delay incurred in the printing The basic concept provides for the centraliza- of the new Army Regulation No. 230-1. For tion of all Army club activities (officer, NCO, the field, the issue of whether the Army and enlisted) into a single installation club Central Welfare Fund, or the Army Central system.20 The separate activities are operated Mess Fund, or the Army Central Insurance as branches of the centralized system. In Fund pays the claim is not that important. furtherance of the centralization concept, in- However, the “$100 deductible” provision that stallation commanders may establish a “joint is included in Army Regulation No. 230-16, but club facility” or a “consolidated club branch” to not in Army Regulation No. 230-1, can have a serve the members of all the club activities on direct impact on NAFI’s at an installation. the installation.21 Installation commanders For general reference purposes, it should be must obtain the approval of USACMA prior to noted that, in addition to its numbered prede- establishing any Army club or club system at cessor, the new Army Regulation No. 230-1 an installation. z2 supersedes the following Army regulations: The driving motive behind the revamping of 1. Army Regulation No. 230-4 (17 May the Army club system was to impart greater 1968); control over the operation and activities of the 2. Army Regulation No. 230-11 (21 July clubs. Accordingly, as with USACMA, Army 230-60 1972); and, Regulation No. enumerates the duties and responsibilities of installation command- 3. Army Regulation No. 230-18 (27 Decem- ers,2a installation club managers,24 and branch ber 1961). ’ and annex managers.25 In addition, the regula- tion sets forth operating procedures and in- Army Regulation 230-60 (30 April 1975). No. ternal controls for Army clubs. The Command- The title of this reguhtion-The Manage- er, USACMA, is assisted in performing his ment and Administration of the US Army Club duties and responsibilities by Regional Club DA Pam 2’7-50-30 12

Management Headquarters in oversea areas 27 USACMA’s operation, the structure of the and field assistance offices within CONUS 28 Army club system is still under study, with particular .emphasis on the continued role of The absence of regional USACMA head- USACMA and the assessment program. quarters within CONUS is probably attribut- able to Congress’ refusal. to appropriate funds for the operation of USACMA. This necessi- tated not only a reduction of operating ex- penses, but also required the development of a new source of operating funds for USACMA. Footnotes Effective 1 July 1974, an assessment program 1. Army Reg. No. 230-1, para. 141 (2 January 1975). based primarily upon the monthly gross sales 2. Id. at para. 13. of packaged alcoholic beverage stores was 3. Id. at para. 1-3c. 4. DOD Instruction 7000.12 (17 July 1974). initiated to provide the necessary operating 5. Army Reg. No. 230-1, paras. 1-3d and 1-8 (2 January funds.29 While the new Army Regulation No. 1975). 230-60 does not provide for the assessment 6. Id. at paras. 1-3e and 1-9. program, it is noted that the document imple- 7. Id. at paras. 13f and 1-10. menting the program is not listed as having 8. Id. at paras. 139 and 1-11. been superseded by the new regulation. This 9. Id. at para. la. 10. U.S. Dep’t of Army, Pamphlet 27-154, Procurement assessment program is keyed very closely to Manual for Clubs and Construction By Certain Non- the unsettled status of packaged alcoholic bev- appropriated Funds (1 June 1973). This pamphlet is erage stores. If these activities are classified as currently under revision. resale revenue-producing NAFI’s as they now 11. Army Reg. No. 230-1, para. 1-19 (2 January 1975). are in overseas areas,30 assessing their gross 12. Army Reg. No. 230-1, paras. 1-25 through 1-27 (2 sales to support USACMA appears to be a January 1975). 14. Army Reg. No. 23&2 (1 June 1969), as changed. F questionable practice in view of the prohibition 16. Army Reg. No. 210-1 (7 March 1974). against membership association NAFIs receiv- 16. Army Reg. No. 230-16 (10 December 1974). ing dividends or grants from other groups of 17. Army Reg. No. 230-1, para. 3-8c (2 January 1976). NAFI’s.~~ Army Reg. No. 2361, para. 4-& (16 February 1972), provided that claims within the monetary of field settlement authorities would be paid from major Conclusion. command welfare funds with reimbursement from the “Self-Insurance Reserve” of the Army Central Welfare The purpose of this article was to alert judge Fund. Although the new regulation continues the distinc- to the new nonappropriated fund tion between claims within field settlement authorities’ regulations. It was not intended to discuss all monetary jurisdiction and those not, there is no provision the changes contained in these new publica- for payment out of major command welfare funds. 18. Army Reg. No. 230-16, para. 18 (10 December 1974). tions. But, it should be borne in mind that, for 19. Army Reg. No. 230-60, para. 1-8 (30 April 1975). all practical purposes, the basic concept and 20. Id. at para. 2-la. structure of the nonappropriated fund system 21. Id. at para. %le. See Id. at paras. 14and j for the remains unchanged. In many cases, it is only a distinction between a “joint club facility” and a “consoli- matter of new terminology. dated club branch.” 22. Id. at pam 2-7. I It was noted earlier that we may be entering 23. Id. at para. 1-12. a period of tranquility, a slowing of the rate of 24. Id. at para. 1-13. activity that has marked the nonappropriated 25. Id. at paras. 1-15 and 1-16. 26. Id. at Chaps. 6 and 7. fund system in the past years. However,

i \ I I

DA Pam 27-50-30 P 13 Bicentennial Series History of the Judge Advocate General’s Department By: Major General Thomas H. Green (1889-1969), The Judge Advocate General, U.S. Army, 1945-1949

As noted in last month’s issue, this piece i July 4, 1776, the United Colonies became the begins a series of short items gleaned from the United States of America and, on August 10, chronicles of the Judge Advocate General’s Congress accorded Mr. Tudor the title of Judge Corps’ 200 years of service to the nation and Advocate General and the rank of lieutenant the Army. We hope this bicentennial series will colonel in the Army of the United States. impart to each JA officer a greater understand- He was succeeded in 1777 by John Laurance ing and appreciation for the heritage and of , who entered the Army as a history of the Corps. General Green’s short historical sketch of the Corps is reproduced as second lieutenant, 4th New York Regiment, in he wrote it for presentation in 1947. August of the same year. *** In addition to his duties as a staff officer at General Headquarters of the Continental . Sometime ago one of my busy aides managed Army, Colonel Laurance assisted in many to find time to write a history of the Depart- important military . In the summer of ment, which I consider very good. Since I 1778 he was judge advocate of the general intend to crib liberally from that history, I court-martial which found Major General desire to give to its author, Lieutenant Charles Lee guilty of disobedience of orders, P Colonel William F. Fratcher, JAGD, who is misbehavior before the enemy, shameful re- now on duty in the European Theater. treat and disrespect to the Commander-in- Chief. In the following year Colonel Laurance On July 3, 1775, General George Washington conducted the prosecution of Major General assumed command of the sixteen thousand Benedict Arnold for permitting a vessel to New England militiamen besieging Boston and leave an enemy port, closing the shops in established General Headquarters of the Con- Philadelphia, and using public wagons for his tinental Army at Cambridge, Massachusetts. own private business. This proceeding, result- The history of the Judge Advocate General’s ing in his being reprimanded by General Wash- Department seems to have started 23 days ington, embittered General Arnold. (Flagship later when the Second Continental Congress, Philadelphia incident) in September 1780, sitting at Philadelphia, elected William Tudor, Colonel Laurance was recorder of the board of Esq., Judge Advocate of the Army. An order officers, which investigated the case of Major issued from General Headquarters the follow- John Andre, Adjutant General of the British ing day announced the appointment and di- Army, and recommended his execution. rected that the Judge Advocate was “in all things relative to his office to be acknowledged After the war Colonel Laurance returned to and obeyed as such.” the practice of law in New York City where he became a distinguished authority on admiralty William Tudor was born at Boston in 1750. law and served as a vestryman of Trinity He graduated from Harvard College in 1769, Church, trustee of Columbia College, Regent and studied law under John Adams. In January of the University of the State of New York, 1776, “That no mistake in regard to the said and director of the Bank of the United States. articles may happen,’’ the “Judge Advocate of He was a member of the Congress of the the Army of the United Colonies” was directed Confederation, New York State senator, first in orders from General Headquarters to coun- member of Congress from New York City tersign each copy of the new articles of war. On under the present Constitution, United States DA Pam 27-50-30 h 14 District Judge for the District of New York, An act of Congress passed on July 171 1862 and United States Senator from New York. directed the appointment of a Judge Advocate General with the rank and pay of a colonel of udge advocates who served cavalry. On September 3, 1862, Joseph Hold of during the Revolutionary War are noteworthy. the District of Columbia became the fourth Outstanding among these is Captain John Judge Advocate General of the Army and the Marshall, 15th Virginia Regiment, who was a first since the Revolutionary War. Born in member of Congress, Secretary of State, and Kentucky in 1807, General Holt graduated later Chief Justice of the United States. Major from Centre Colleg nd practiced law with John Taylor, 1st Virginia Regiment, became a distinction in Kentucky and Mississippi. prominent Jeffersonian Democrat, a political writer of note, and a bitter critic of Chief Of the Civil War judge advocates Major John Justice Marshall. Major Taylor served as A. Bolles of Connecticut, afterward Judge United States Senator from Virginia for a Advocate General of the Navy, Major Henry L. number of years. Burnett of Ohio, who was prominent in the case of Ex parte Milligan and afterward an Colonel Laurance was succeeded in October outstanding member of the New York bar, and 1782 by his chief deputy, Thomas Edwards of Major John A. Bingham of Ohio, member of Massachusetts. He entered the Army as a Congress for 18 years, Minister to Japan for private, Massachusetts Militia, in April 1775. 12, co-prosecutor with General Holt of the War with England being imminent, Con- Lincoln assassins, and one of the House man- gress, by the act of January 11, 1812, author- agers for the impeachment of President ized the raising of thirteen regiments and Andrew Johnson, are noteworthy. Major John provided that there should b Chipman Gray of Massachusetts is the best- each division a judge advocate. known to legal scholars of all the Civil ;War - officers of the department. He was a member Of the judge advocates who served during of the faculty of Harvard Law School for 44 the War of 1812 the best known is the distin- founded the American Law Review. guished authority on international law, Henry Wheaton of New York. Major Wheaton was After thirteen years, as Judge Advocate reporter of the United States General, during which period he was brevetted for a number of years and is the “Wheat.” major. general and tendered appointments as which appears in law citations. Attorney General by President Lincoln and From 1821 to 1837 the Adjutant General of Secretary of War by President Grant, both of the Army performed most of the normal func- which he declined, General Holt retired on tions of a Judge Advocate General for the small December 1, 1875. He1 was succeeded by his Army of the period. Indeed, some of the letters assistant, Colonel William McKee *Dunn of written by Adjutarits General of that period, Indiana. I calling attention to irregularities in court. General Dunn was succeeded in 1881 by martial records, are unpleasantly similar to the Maj’or David G. Swaim of Ohio. In 1884, “skin letters” which emanated from the office General Swaim was suspended from rank and of The Judge Advocate General today, duty for a period of twelve years, pursuant to J One of those Adjutants General was Colonel sentence of court-martial, he having been . Roger Jones of Virginia, who had once been an found guilty of improper conduct in a business officer of the Marine Corps. Colonel Jones transaction. Colonel Guido Norman Lieber of seems to have been a colorful figure. In 1830 he New York, the Assistant Judge Advocate Gen- was sentenced by’ a general court-martial to be eral, was Acting Judge .Advocate General from reprimanded for issuing orders without author- July 22, 1884 to January 11, 1895, eleven years, ity,and saying to the Commanding General of when he accepted appointment as Judge Advo- the Army, Major General Alexander Macomb, cate General. General Lieber was a son of Dr. “I defy you, sir: I defy you!” Francis Lieber, the eminent authority on the -~ DA Pam 27-50-30 15 laws of war who, .as special legal adviser to the to the Military Governor of the Philippines, War Department, drafted General Order No. observer with the Japanese Army in the 100 for 1863, the basis of the modern law of Russo-Japanese War (1904-1907), legal adviser land warfare. Lieber became well known in the to the Provisional Government of Cuba (1906- Army as the author of Remarks on the Away 1909), and delegate to the Fourth Pan- Regulations (18981, The Use of the Amby in American Conference at Buenos Aires in 1910. Aid of the Civil Power (1898).' General Lieber In addition to his duties as Judge Advocate collected an exceptionally fine library on mili- General, General Crowder was Provost Mar- tary law and history which has become part of shal General (which position was equivalent to the library of the Office of The Judge Advocate that of the present Director of Selective Serv- General. [Ed.-Now at TJAGSA.] ice), from 1917 to 1919 and, after his retire- ment as a major general on February 14, 1923, The history of the Judge Advocate General's Ambassador to Cuba from 1923 to 1927. Gen- Department in the nineteenth century would eral Crowder died in 1932, be incomdete without mention of the services of Colonei William Winthrop of New York who Several of the World War I judge advocates entered the department in September 1846 are noteworthy. Colonel Edmund M. Morgan, after creditable service as a line officer. He Colonel Eugene Wambaugh and Major Felix published the first edition of his monumental Frankfurter won distinction as members of the treatise, Military Law and Precedents, in 1886, Harvard Law Faculty and Major Frankfurter It has been revised from time to time but it is is now an Associate Justice of the United still sort of a Bible to students of military law. States Supreme Court. Colonel John H. Wig- Colonel George B. Davis of Massachusetts more, Dean of Northwestern University Law was the next to become Judge Advocate Gen- School, was an outstanding authority on the eral in 1901. General Davis was an enlisted law of evidence. Major Henry L. Stimson of man during the Civil War, graduated from the New York served as judge advocate in 1917 United States Military Academy in 1871, and and thereafter as a line officer. Major Stimson served as a cavalry officer for seventeen years. has been Secretary of War, Secretary of State General Davis was the author of treatises on and Governor General of the Philippines. Lieu- military law, international law, and the ele- tenant Colonel Patrick J. Hurley of Oklahoma, ments of law. He represented the United later of New Mexico and later Secretary of States at the Geneva conferences of 1903 and War also served as judge advocate. Colonel 1906 and the Hague Conference of 1907. Gen- Charles Beecher Warren of Michigan was Am- eral Davis retired with the rank of major bassador to Japan and Mexico and Lieutenant general February 14, 1911. Colonel Nathan William MacChesney, an emi- - nent member'of the Chicago bar wore the full General Davis was succeed dress uniform of a colonel, Judge Advocate Enoch H. Crowder of ,Missouri. Ibelieve him General's Department Reserve, when he pre- to have been one of the outstanding soldiers of sented his credentials as Minister to Canada in all time. He was a graduate of the United 1932. General Hugh S. (Iron pants) Johnson States Military Academy, Class of 1881, who became well known as Administrator of the had served thirteen years as a troop officer of National Recovery Administration. Colonel cavalry, completed the law course at the Uni- Guy D. Goff became United States Senator versity of Missouri in 1886, and became a major from West Virginia and Major Charles Loring and judge advocate in 1895. General Crowder has been a justice of the Supreme Court of had been a member of the commission to Minnesota since 1930: determine the capitulation of Manila and the Spanish Army in 1898, an associate justice of Colonel Walter A. Bethel of Ohio, who had the Philippine Supreme Court, a member of the served during World War I as a brigadier commission to treat with General Aguinaldo general and judge advocate of the American respecting his surrender in 1899, legal adviser Expeditionary Forces in France, was ap- DA Pam 27-50-30 - 16 pointed Judge Advocate General on General been acting Judge Advocate of the United Crowder’s retirement. General Bethel grad- States Expeditionary Forces at Vera Cruz in uated from the United States Military Acad- 1914 and judge advocate of the Third Army in emy in 1889, from the Atlanta Law School in France during World War ,I,was appointed 1892 and, with an LL.M., from George Wash- The Judge Advocate General in 1933. A native ington University Law School in 1894. He of Iowa, General Brown graduated from served in the artillery with the volunteers Cornel1 University Law School and entered the during the war with Spain. General Bethel service as a private in Battery A, Utah Light retired for disability on November 15, 1924, Artillery, on May 9, 1898. General Brown was and was succeeded by Colonel John A. Hull of succeeded by Colonel Allen W. Gullion of Iowa, who had been judge advocate of the Kentucky, who had served in the Provost Services of Supply, American Expeditionary Marshal General’s Office and as judge advocate Forces in France, during the War. General of the 3rd Army Corps during World War I and Hull, who held Ph.B. (1894)-and LL.B. (1895) was well known as the trial judge advocate who degrees from the State University of Iowa, prosecuted the late Brigadier General William was the son of Senator Hull, Chairman of the Mitchell, Assistant Chief of the Air Corps. Military Affairs Committee. He retired at the General Gullion graduated from Centre College expiration of his four-year term on November in 1901, from the United States Military Acad- 15, 1928, and subsequently served as legal emy in 1905, and from the University of adviser to the Governor General of the Philip- Kentucky Law School in 1914. Here was a man pines and as an Associate Justice of the Su- of exceptional gifts, whose orations were preme Court of the Philippine Islands. spectacular. General Edward A, Kreger of Iowa, came On December 1, 1941 Myron C. Cramer of next. He had kerved during the war as “Acting Connecticut was appointed Judge Advocate ,,- Judge Advocate General” in charge of the General where he served during World War I1 Branch Office of the Judge Advocate General in as head of the Legal Department of the Army. France. General Kreger graduated from Iowa It was under his jurisdiction the Judge Advo- State College in 1890 and practiced law in Iowa cate General’s Department increased from until May 1898, when he entered the service as about 100 officers to more than 2800. General a captain in the 52nd Iowa Infantry. General Cramer was a graduate of Wesleyan Univer- Kreger was retired in 1931, and was succeeded sity and Harvard Law School and entered in by Colonel Blanton Winship of Georgia. Gen- the Fervice in World War I as an officer of the eral Winship graduated from Mercer Univer- Washington National Guard. On November 30, sity in 1889 and from the University ,of Georgia 1945 General Cramer ‘retired and at the pres- Law School in 1893. He entered the service as ent time General Cramer is serving as Ameri- a captain in the 1st Georgia Infantry in May can representative on the’ American ~ Interna- 1898. General Winship’s World War I service tional$Military ,for the Far East, was unusual for a judge advocate in that, for a which‘is now sitting in Tokyo, Japan, and is time, he commanded a force of infantry and, hearing the major cases of the Japanese war while doing so, earned the Distinguished Serv- crimes. ice’Cross for heroism in action. He was White On December 1, 1945 I succeeded’to the House aide for President Coolidge, This man is L a rare combination. He is model of gentleman- great office of The Judgk Advocate General. I liness, and yet a firm and brave soldier. am the youngest Judge Advocate General on General Winship retired in 1933. Subsequently record and came in at’perhaps the hardest he served as Governor of Puerto Rico and was period of our history, I have completed one recalled to active duty in World War IJ to year in that position. In my office are the serve with the Inter-American Defense Board. pictures of all of my predecessors back to and (Attempted assassination incident) including General Crowder. They have handed me the torch and how well it is carried I leave Colonel Afthur W. Brown of Utah, who had to the historians. .cI DA Pam 27-50-30 17 Title Filing: A System of Maintaining the Military Lawyer’s Professional Papers By: Captain Henry J. Hogan, Ill, JAGC, Presidio of San Francisco, California

The maintenance of professional papers is phrases of military and administrative law certainly not the most pressing problem weigh- which have been extracted from handbooks, ing upon the minds of military attorneys but it various military legal services regularly dis- is nonetheless one worthy of comment.’ In fact, tributed and legal research texts. The system these comments come at the suggestion of utilizes this catalogue of military and adminis- those who have Seen my personal system of trative law related TOPICS and is really filing professional papers and felt it worthy of nothing more inventive than tailoring the attention. This system that I endeavor to headnote or topic method of legal research to describe employs two widely known methods Of the military practice. legal indexing, modified to accept materials from the JAG practice. Perhaps the best way to explain the system is to describe the process used to file a piece of Sometime in my JAG career I deter- material. The sample material here will be an mined that much Of my work required travel- outline of the remarks made by Dr. Russell S. ling research paths I had been over before. The Fisher, chief Medical Examiner for the State Problem was how to Organize PreviouslY ac- of Maryland. His presentation, ‘‘Determining quired materials in a fashion that combined the the Cause of Death in Suspected Criminal qualities of immediate access, mobility, protec- Homicide Cases,,~ was given to the Short tion and simplicity of operation. I believe there Course for prosecutingAttorneys in North- is a need for a uniform system of organizing western University. It is a valuable outline of the papers, briefs, notes, memoranda of law, medicolegal pathology. Without reading it and prOfeSSiOna1 articles, and bibliographies that only knowing the name it can be properly r‘ the individual JA collects in the course of his TITLED in the systemunder that segment of practice. the JAG practice which I have labeled “Crim- There are other more sophisticated indexing inal Law and Military Justice.” After reading systems demanding space and supplies com- the contents the appropriate “words and plete with cross-referencing codes. However, I phrases” TOPIC must then be chosen. A re- simply never had the time or the desire to do view of the catalogue of TOPICS under that much more than what this TITLE filing I now TITLE offers the selection: “Homicide,” “Ex- use calls for. It is possible to expand on what I pert Evidence” or “Murder”. After selecting have done and probably make it as complex as “Homicide” and then placing an identifiable the individual feels he needs. I kept my files “H” on the cover page of the outline it may be simple because I don’t like filing. The net placed in a file separator. It is then necessary result of title filing is a clutter-free office with to prepare a 3 x 5 card labeled “Homicide” and files full of current usable materials that I have copy the TITLE onto the card. A zealot would read. no doubt prepare separate 3 x 5’s for “Expert In originally organizing the system it was Evidence” and “Murder” upon which would necessary to dissect the JAG practice and to then be marked “see Homicide.” I believe this identify its various elements. 1 have defined Wastes times, Sacrifices Simplicity and Clutters nine different parts of the practice which I the index with 3 X 5 cards. The result Of this have termed TITLES. These TITLES are the work is that filed copies have been read, major classifications into which a piece of labeled under the proper JAG practice TITLE material is initially sorted, e.g. “Environ- and an index card has been prepared under the mental Law, Procurement, etc.” After the applicable heading for quick reference. I am material has been identified under the appro- convinced that the most attractive motivation priate TITLE, it is then sorted into the most to employing this system is that it gets the applicable TOPIC. The TOPICS are words and material out of sight and yet the same material

I DA‘ Pam 21-50130 18 -. .. “ is easily? found 6hen needed by going from : 9139191J) and unpacked at destination in the index to file drawer. I same order immediately ready for use. I, The basic elements of the system are: (1) The Also, the fact that materials are in a file catalogue .of TOPICS ,arranged by TITLE; (2) drawer where they can be removed individual- the index;.and (3) the file-s. ly and ppt,back satisfies the demands for immediate access. The entire process requires The reader will find that it is possible to take only three actions by the user. Although it may most of the material on hand and file into one of appear complicated all that need be done is the avdilabje topi‘cs’. If not, then simply add a “read, write and file,” I believe another ad- topic. The reader is I‘eminded that to maintain vantage of the system is that the user is forced simplici’ty a low number of topics under a. given to read all of his material and not just scan it. title should be the rule. ,* In order to file properly the material must be It ,takes time to r through all of fully read and analyzed for the proper TOPIC. h piece under the This system should be attractive to the ork is marking newer JA’s as it provides a means of develop- ndex card with ing a personal library of information and the topic and a one sentence description of the sources which will compIement the desk-book piece?of material, This is the most time- type materials received at a basic class. The consuming part of the filing system. I have opportunity to approach the first assignment found that by keeping just a few pieces of “organized” can be of tremendous walue, while material in my briefcase or on my”desk there the more experienced JA’s, both active and are moments during the day to read the reserve might give thought to adopting some content, mentally place it in the proper title, form of this system as well. Too often, valu- then give it a topic and finally scribble the able, helpful materials are refused by newer ,- sentence out in longhand. The actual filing and JA’s because of the reluctance to sort through card’ preparation is busq! work’ which can be stacks of papers that haven’t been reviewed for done anytime. The index is the 3 x 5 file box years. There is also the problem of physically that contains the cards separated into titles inqorporating papers, from one filing system and then alphabetically by topic. “Legal As- into another, where the two systems may have qistance”, and “Military Justice and Criminal nothing in common. Law”,have the largest selection of topics. It is possible to have .a very general list of topics There is a legacy of professional materials under one title while another is more specific, that could be offered by terminating or retiring the obvious determining factor being the in- JA’s to those who carry oh. It would seem that diyidual JA’s area of specializatiop. The actual where both donor and donee have similar filing files can be made of stiff cardboard separators systems the giving and receiving of profession- marked with, appropriatek’TITLES. Thus the al papers could be a practical and valuable outline “Determining the Cause of Death in tradition of the JAG Corps. Suspected Criminal Homicide Cases” would be Feedback on the use of this system is filed under the TITLE “Criminal Law and invited. Contact: Captain Henry J. Hogan, 111, lphabetically under “Homi- Assistant Army Jydge Advocate, Office of the I d 3 x 5 pould similarly be Army. Staff Judge Advocate, Headquarters .r filed by TITLE, TOPIC and alphabetically in Sixth United States Army, Presidio of San I lhancisco, California 94129. ong the advantages is thesmobil- *** papers. When necessary the files can be collected in order ‘and packed in issue Titles of the JAG Practice corrugated cardbodrd boxes (15 x 12 x 10 Claims and Civil inches; Requisition‘ Number GS 05s 09465 S-W- Litigation -* ' DA Pam 27-50-30 19

Criminal Law and Administrative Defense Counsel 2 Military Justice Reprimands Defendants Environmental Law Aiding and Abetting Defenses International Law Alcoholism Dereliction of Duty Legal Assistance Allowances Desertion Military and Civilian Amendment Personnel Law Apprehension and Disobedience of Military Law Arrest Orders or Regulations ! Materials and Argument of Counsel Disrespect toward Professional Training Arraignment Superior Officer for Lawyers Arrest Double Jeopardy Miscellaneous Articles of UChLJ Drugs and Narcotics Procurement Assault Drunk Driving Automobiles Drunkenness Catalog of Topics Bad Conduct Enlisted Men Discharge Enlistment CLAIMS AND CIVIL LITIGATION Entrapment Animals Insurance Business Entries Espionage Attorney Inventory Challenges Evidence Automobiles Change of Venue Examination

Carriers Medical Care Charges and ' I Expert and Opinion Claims Office Recovery Specifications Evidence Claims Officer National Guard Charge Sheet Failure to Obey Compromise and Notice Checks Orders \ Settlement Oath Children or Minors False Documents I f" Cost of Repairs Officers Classified Documents Findings Evidence Payment Clemency Fingerprints costs Principal Agent Command Influence Foreign Countries I Communicating Customs 1 Property , Forfeiture Damages Threats Former Jeopardy Department of Justice Records Conduct Prejudicial to Former Testimony Employee Status- Reorganization Good Order Guilty Plea Estimates Reports Confessions or I Habeas Corpus Examiners Review Admissions Handwriting Explosives Safeguarding Property Confinement Hard Labor Federal Civil Shipping Consent Hashish Procedure Sonic Boom Damage Conspiracy . Finding Lost Goods Submission of Claim Constitutional Homicide Fraud Subrogation Continuance or Recess Housebreaking Government Bill of Theft Convening Authority Husband and Wife

Lading Vehicles Corpus Delicti ~ Iden ti fication Highways Warehouseman Correctional Custody Identification Card I.C.C. Regulations Weapons # Corroboration Individual Counsel Inspections Weights Counsel Immunity Court of Military Imprisonment CRIMINAL LAW 'AND MILITARY JUSTICE Appeals Indecent Acts or Court of Military Liberties with

Absence without Absentia Review Children I Leave Accident Courts Martial Individual Counsel Accessories before the Accomplices Dangerous Weapon, Insanity Fact Accuser Assault with Instructions to Court

Pt DA Pam 27-50-30 +-- 20 Insubordinate Conduct Probation Wife Worthless Check

Insulting Language Process Wiretap Wrongful 1 Intercepted Rape and Carnal Witnesses Appropriation Communications Knowledge Intoxication Consideration ENVIRONMENTAL LAW Investigating Officer Record of Trial Land Use and Involuntary Air Pollution Regulations Management Manslaughter Prevention and Rehearing Parks, Forests and Judicial Notice Reporter of Court Control Energy Outdoor Recreation Jurisdiction of Courts Reserve Forces Solid Waste Disposal Martial Resisting Environmental Statement Sound Control and Jury Apprehension or Abatement Kidnapping Arrest Fish and Wildlife Flood Plains and Transportation Larceny Res Judicata Water Quality Lesser Included Restrictions Watersheds Offenses Review I INTERNATIONAL LAW, Manslaughter Revision Marijuana Robbery Admiralty I Jurisdiction Mental Responsibility Sanity Aliens Law of War of Accused Search and Seizure Am bassad ors Nationality Military Judge Self-Defense Citizens Navigable Waters Military Justice Self-Incrimination Civil Disturbances Neutrality Laws Minors Sentence and Consuls Powers Motor Vehicles Punishment Contracts Property Murder Service Records Criminal Jursidiction States n Mu tiny Sodomy under Status of States and Narcotics , Special Courts-Martial Governments National Guard Special Findings Statutes New Trial Speedy Trial . Extradition Status of Forces Nonjudicial Spontaneous Governments Agreement A Punishment Exclamations International Treaties Oaths and Staff Judge Advocate Agreements United States Affirmations or Legal Officer International Court of Weapons Officers Stipulation Justice Official Records Summary Courts Orders Martial LEGAL ASSISTANCE Other Offenses or Suspension of

Misconduct Sentence 3 Adoption Civil Rights and Parties to Offense Television Alcohol and Drug Remedies Pay Threatening Language Abuse Commercial Practices Photographs Threats, Armed Forces Consumer Affairs Polygraph Disciplinary Control Copyrights Premeditated Murder Boards Counseling , President of United Trial Counsel Army Emergency Customs States United States Courts Relief Death and Deceased Pretrial Agreemen t s Unlawful Detention Arrest by Civilian Persons Pretrial Confinement Voluntary Authorities Domestic Relations Pretrial Investigation Manslaughter Automobile Domicile Previous Convictions Warning Accused of i Estate Planning Prisoners His Rights Bibliography Probable Cause Weapons Change of Name Illegitimate Children .- DA Pam 27-50-30 21 Immigration and Retired Servicemen ‘ Reduction Licenses Naturalization Service of Civil Regular Army Master Servant Income Tax Process Enlidted Reserve Negligence Indebtedness Small Claims Fraud Principal Agent 1 Infants or Minors Soldiers and Sailors Garnishment Recruiting Insurance Civil Relief Act Holidays Rewards -Tenant ’ Support of Dependents Insurance Sunday * Legal Assistance Survivor Benefits Labor Relations Time Office Tax Medical Care Federal Income PROCUREMENT Motor Vehicles Federal Estate Advertising Funding Patents Appeals G.F.P. Government Pay State and Local ASPR Committee Furnished Property Powers of Attorney Income Award Authority Labor Problems Preventive Law Veterans’ Benefits Bids Mistakes in Bid Probate Voting Board of Contract Multi-year Real Property ’ Wage Earner Plans Appeals Procurement Retired Members Wills Breach , Negotiating Charges Non-appropriated Compensation Fund Procurement MILITARY AND CIVILIAN Contracts Protests of Award PERSONNEL LAW General Remedies Absentees Activities Concessionaire Requirements Aliens Non-appropriated Vending Machines Contracts Apprentices Fund Employees Cost Overrun Small Business Act Awards Commissioned Officers Cost Plus a Fixed Fee Socio-Economic Bribery Rank and Cost Plus Award Fee Policies Charities Precedence Cost Plus Percentage Surplus Property Citizens Assignment of cost Disposal Civilian Employees Transfer Defective Pricing Tax

Appointment and ~ Termination of Disputes Termination for Employment Commission Firm Fixed Price ‘ Default Compensation Release from Fixed Price with The Tucker Act Leave Active Duty Escalation Insurance Retirement OFFICE ORGANIZATION Duties and Misconduct

Assignment Separation Correspondence Public Relations I Promotion Contracts Facilities Reaction Fringe Benefits Creditors Files Staff Relationship c Discharge and Drunkards Morale Statistics a? Reduction Enlisted Personnel Organization Status of Forces Prohibited Promotion Personnel Matters

JAG School Notes 1. JAG School on the Move. negotia- North Grounds of the University before the tions with the University of Virginia having last week in May. In accordance with sound been concluded, The Judge Advocate General’s tactical principles, the “high ground” was School began its move to new quarters on the seized first with the Officers’ Open Mess occu- DA Pain 27-50-30 22 pying its position atop the new building. Next , HQDA, became the first guest came the Billeting Office and advance supply the new facility. yes, in Virginia and administration elements, These +moves, new JAG School. Remaining ele- made under our "own power" in advance of the ments of the School ill move during the first award of a movement contract, made possible two weeks ,of June, (Please see our new the successful hosting of the Board of Directors telephone' information which follows this en- of the International Society of Military Law try.) Formal dedication ceremonies are being and the Law of War (The Arrrtyl.Lawyer,May planned for Wednesday, 25 June 1975. 1975, p. 25). Delegates from Canada, the United Kingdom, The. Netherlands, , 2. TJAGSA Phone Numbers. As France, Germany, Austria, Turkey, Italy, reflects TJAGS Spain, Zaire, and, Australia, were' among the ew School build first'td use the new"bil1ets and dine in the the numbers are the same as for Officers' Open Me'ss. Simultaneously, the 77th but there are some additions and changes Basic Class began use of the practice court and where indicated by asterisk. Autovon access to seminar "facilities, and, on 30 May 1975, the 23d TJAGSA is stil hrough the Army Foreign Advanced Course graduation exercises were Science and Tec logy Center at Charlottes- held in the largest 'amphitheater-style\ dass- ville,' Virginia. TOVON number is 274- room. Major General George W. Putnam, Jr., 7110. The FSTC operator connects callers to Directof of Military Personnel Management, TJAGSA commercial numbers. r I" Cowtwtercial 'do. . FTS NO. 293-3936 I 300 293-4047

Academic Department f- Director . i93-202~*jma 21260

Director, NRI ci . 293-628617945 41309 Resident Course Info & Quotas ) 293-7475 3021260 Correspondence Course ,Info& Quotas 1 293-4046 304 Command & Management 293-2546 */4730, 307 Administrative & Civil Law Division 295-4230, 293-4095* 308 I. Procurement Law Division 293-393817945 * 309 International Law iDivision : 293-2546 *I7245 * 1 328 Reserve .Affairs I I' Assistant Commandant 293-9i2i *is122 * 301i209 Career Management 1 293-6121 *I6122 * 3011209 Training Office 293-6121 S16122 * 3011209

293-466817376 * r 394 I. 293466817376 * 394 293-46681'7376 * 394 1

,'1 t c School Secretary * 293-4332 303 Assistant School SecretaryIPost Judge Advocate 2934731 393 Visitors Branch 293-4731 393 i. 1 r II 893-404714059 306

1, ,I 9 29372402 ~ 305 ,

I 393 293-4590 , 1- 393 , 293-2402 . 305 .- DA Pam 27-50-30 r“ 23 3. ‘JAG Conference. The Chief of Staff, United of the nonlegal problems within the office States Army,; has approved the 1975 Judge effectively and with a minimum of turmoil. Advocate General’s Conference, to be held However, he must be ‘adequately trained to during the period 14-17 October 1975. Please “people ’ manage.” Newly appointed legal ad- note that Conference activities will start with a ministrative technicians and those “old timers’’ social get-togither for the arri conferees who did, not attend the last previous course on the evening of Monday, 13 October should make every effort to attend. Staff Judge (Columbus Day). ’ Advocates are urged to encourage the attend- ance of their administrators at this course. 4. Admin Law Handbook Changes, Change 1 to DA fam 27-21, MilihZTg Administrative 6. Criminal Trial A&~~~~~course.The Ist Law Hattdbook, is in distribution. The change Criminal Trial Advocacy Course (originally the is in 1ooSeleaf fOlTlat and Covers substantive Ist Trial Attorney’s course)will take revisions recessitated by Statutory and regula- 23-27 June 1975. The four, and one-half day revisions necessitated by statutory and regula- course open only to active duty JAGC new chapter, Chapter 9, has been-added to officers d will be practice-oriented. In ad- serve as both a research and instructional tool dition to updates the year’s legal develop- in the area of nonaPProPriated funds. €h~ause ments, the course will offer both seminar and of the recent republication of AR 230-1 (2 lecture classes-in motion strategy and prac- January 1975) which governs the Amy’s non- tice (including discovery), electronic eaves- appropriated fund system, certaill Portions of dropping, SIDPERS, forensic science, the this chapter are now out of date. An exPlana- Federal Rules of Evidence, Article 31 and tion of this republished reelation can be found psychiatric testimony, legal ethics, post-trial in Captain StePhan K- Todd’s article on “The actions, and use of videotape, tape recordings, New Nonappropriated Re@1ations” in and demonstrative evidence. Workshops and this issue Of The Army Users Of the roundtables are scheduled in use of voir dire, Handbook are invited to send comments and examination of witnesses, preparation of suggested improvements to The Judge Advo- tailored instructions for submission to the General’s School, us ATTN: Ad- military judge, and extenuation and mitigation miniStratiVe and civil Law Division, Char- (including rebuttal). The course will be high- lottesville, Virginia 22901. lighted by three distinguished civilian guest 5, Law Office Management Course. The 5th speakers. Professor Richard Christie, perhaps Law Office Management Course which was the country’s foremost authority on sociological cancelled earlier in this academic ye& because and psychological jury selection, will speak on of travel restrictions has been rescheduled for “jury” selection; Mr. Richard Sprague, famous early in the coming year: 22-26 September for his work as the Assistant District Attorney 1975. The course is designed to provide war- of Philadelphia (including the Yablonski rant officers, senior legal clerks, and civilian m~rdercase Prosecution) will speak on the I administrators with a working knowledge of preparation and trial Of complicated Cases; and :r ’c the administrative operation of a staff judge Mr. Robert Bruce Kendall a noted trial lawyer advocate office and those managerial principles from Norfolk, Virginia, Will speak on the t involved in controlling and allocating re- Proper Use of closing arguments. The course. sources-human and nonhuman. will end with a special set of separate trial and defense counsel seminars. Onli a few years ago, staff judge advocate offices were staffed with relatively few person- 7. Military Justice Course. As announced nel. However, it is not unusual to find an office earlier, the annual two-week Military Justice with 30 attorneys and a similar number of Course has been replaced by two new courses, civilian and enlisted personnel. Efficiency in an Military Justice I ,and Military Justice 11, organization of such size requires a capable which will be offered in alternate years. These administrator-the individual who takes care courses are designed primarily ,to enable offi- -.

DA Pam 27-50-30 .- 24 cers’of the reserve components to complete the subcourses 141 and 143), not the Law of War criminal law requirements of the Judge Advo- (JA subcourse 142) as the 1 February 1974 Correspondence Course Catalog ‘incorrectly cate Officer Advanced Course by resident in- , struction during active duty training. The first reflects. Military Justice I course will be held from 10. Installation Command 16-27 June 1975. It will cover jurisdiction, Cassettes. A six-lesson series in TJAGSA’s common law evidence, constitutional evidence, growing library of CLE audio cassettes is our and military crimes (JA Subcourses 130, 131, best offering to date. This program is com- 132, and 137). The Military Justice I1 course, prised of audio tapes on installation command which will be offered for the first time in 1976, legal problems, accompanied by a reference will cover pretrial procedure, trial procedure, text on the legal basis of command-all part of post-trial procedures and review, and appellate our larger on-going program of lessons in review (JA Subcourses 133, 134, 135, and 136). military administrative law. Major Dennis M. By attending both Military Justice I and Mili- Corrigan, Senior Instructor of the School’s tary Justice 11, reserve component officers can Administrative and Civil Law Division, is the complete the entire criminal law requirement tape narrator. for the Advanced Course. The alternatives of completing all or part of this requirement by Tapes in this common program address the correspondence courses or in a USAR School effect of state or federal regulation on the daily remain available. operation of and activities on a military in- stallation. The topics and tape numbers in- 8. Judge Course. The 14th Military Judge I clude: State Regulatory Control (JA-A-213); Course will be held from 14 July-1 August State Criminal Law (JA-A-216); Law En- 1975. The course is designed to provide the forcement-Control of Pornography (JA-A- - training necessary to qualify previously se- 217); and Dissident Activities (JA-A-218). The lected active duty officers to perform duties as lessons are intended to assist JA’s in analyzing military judgeb at courts-martial. Attendance and resolving typical installation legal prob- is ‘restricted to personnel selected by the US lems. Emphasis is placed upon the need for Army Judiciary. Conferences, panels and determination of the law-state or federal- seminars cover substantive military criminal which applies to a particular situation and the law, defenses to crimes, rules and principles of identification of the legal limitations on the evidence, ‘trial procedure and other current exercise of command ‘on a military installation, legal problems. In addition, guest speakers Each tape contains a statement of a factual discuss their areas of expertise. situation, a reading assignment, a suggestion for the preparation of a short memorandum and 9. International Law Course. The 19th Inter- a suggested solution. These programs also lend national Law Course, will be held from 21 themselves to training groups of lawyers. In July-1 August .1975. The program of instruc- this framework, the group leader can assign a tion will include the international state system, reading of materials prior to a meeting. The jurisdiction and jurisdictional immunities, in- fact situation can then be played, followed by a ternational agreements, international organiza- discussion period of from one to two hours per 4 tions and Status of Forces Agreements. This lesson. The solution can then be played. Group I course is designed to prepare active duty leaders can prepare their discussions by pre- officers for assignments, especially overseas, in viewing the taped solutions. Materials can be which they may deal with internati requested for loan from the Office of Non- problems. It is also designed to enable reserve resident Instruction, The Judge Advocate Gen- ‘officers to complete part of the international eral’s School, U.S. Army, Charlottesville, law requirements of the Judge Advocate Ad- Virginia 22901. vanced Course by resident instruction during ‘active .duty training. However, this resident * The cassettes listed are available on a loan course covers only the Law of Peace (JA basis or, if a blank cassette is sent in, mag be h ,

DA Pam 27-50-30 r 25 duplicated without charge by the Audio-Visual ing to purchase blank cassettes for duplication Division, TJAGSA. All six lessons can be taped need only send a note to the Custodian, onto two 60-minute cassettes. As an alterna- TJAGSA Bookstore, indicating which tapes are tive, the JAG School Bookstore carries a stock to be copied. Checks should be made payable of cassettes as follows: gO-minute, 9.70; 90- to “Fort Lee Exchange, Branch 1603.” minute, $1.00; 120-minute, ‘$1.75. those desir-

I’ Judiciary Notes From: US.Army Judiciary

1. Administrative Notes. and action has been taken, pursuant to a mandate of the United States Court of Military JAGa Quarterly Reports* Staff judge Appeals or a decision of the Army Court of cates Of commands having genera’ court- Military Review, the promulgating court- martial jurisdiction should forward the JAG-2 martial order rescinded the initial one. This is Report for the period 1975 June not unnecessary. In this connection, attention is later than 11 July 1975. It should be mailed to invited to items on page of the February HQDA (JAAJ-CC), Nassif 1973 issue of The L~~~~~pertaining to Church, Virginia 22041. Negative reports are new reviews and actions. required. Applications Under the Provisions of Article 2. Recurring Errors and Irregularities. 69, UCMJ. In a number of applications (DA Form 3499) under the provisions of Article 69, April 1975 corrections by ACOMR of Initial p, UCMJ, the relief requested in Item 13, has Promulgating Orders. .I been, for example, “A new trial”, “Reversal of a. Failing to show that the sentence was the findings of guilty and vacation of the adjudged by a Military Judge-four cases. sentence. In the alternative, a new trial” or “if this is denied, a new trial”. Judge , b. Failing to show that a certain specification advocates assisting applicants should assure has been amended after arraignment-three that those individuals understand that a new cases. trial may be granted only under Article 73, c. Failing to show in the PLEAS paragraph UCMJ, on the ground of fraud on the court or that certain specifications had been dismissed newly discovered evidence. The relief which on motion-two cases. may be granted under Article 69 is vacation or modification of the findings or sentence, or d. Failing to show in the name paragraph the both, on the ground of newly discovered evi- SSN or correct SSN-two cases. dence, fraud on the court, lack of jurisdiction e. Failing to show the correct number of over the person or offense, or error prejudicial previous convictions by the court-martial-two to the substantial rights of the accused. A clear cases. concise statement of the relief requested under Article 69 will expedite the disposition of the f. Failing to set forth certain Charges and application. Specifications upon which the accused had been arraigned but thereafter dismissed. 3. Defense Appellate Notes. g. Failing to show in the FINDINGS para- graph that a motion for a finding of not guilty Defense Counsel Roster. Included in Volume as to a certain specification had been granted. 7, Number 1 of The Advocate (mailed 14 March‘ 1975) was a “Roster of Senior Defense Counsel New Review and Action. It has been noted and Defense Counsel” prepared by PP&TO. that in a number of cases where a new review The list is subject to continual change. It will DA Pam 27-50-30 - 26 be updated quarterly by PP&TO and distrib- the Chief, Defense Appellate Division and his uted by Defense Appellate Division. appellate counsel stand ready to furnish spe- cific, technical assistance in regard ’to cases in General Coggins Speaks to Defense Counsel. litigation, including matters of trial tactics and The following letter was Sent to all Defense pertinent precedents. A “case of first impres- Counsel from Brigadier General Bruce T. sion’’ arising at your installation may well have Coggins, Assistant Judge Advocate for Civil been researched, briefed, and litigated by the Law on 25 April 1975. Defense Appellate Division among the thou- sands of cases it receives annually. While DAD DAJA-ZC 25 April 1975 does not serve as a substitute for your initial research, it has available for your assistance TO: ALL DEFENSE COUNSEL voluminous files of updated, practical research. One of my duties, and an important one, is to A phone call or letter to them is all that is

act as senior mentor for all JAGC defense needed. ~ ,I counsel, which includes the constant monitor- At your installation level, solid preparation ing of the operations of our legal defense and courtroom experience are your most .valu- system. I view my function as supportive and, able assets in the various stages of the case. if the need arises, corrective. Senior Defense Counsel within larger JAG Some defense counsel periodically confront offices and at major area command headquar- the problem of having no one immediately ters provide experienced, client-oriented at- available to consult for advice and assistance. torneys to whom junior officers can turn for For this reason, I wish to note and highlight assistance in preparing their clients’ defenses. * the presently informal defense counsel struc- The capabilities and responsibilities I of our ture existing within the Corps. It includes Senior Defense Counsel should serve as ,a point - personnel at your own installation, at higher of coordination between the defense counsel on headquarters, in the Defense Appellate Divi- one hand, and the Staff Judge Advocate on the sion, and me. The current issue of The Advo- other. However, ‘as your senior defense coun- cate includes a roster of defense counsel sel, I encourage you €0 contact me directly with throughout the world, and in one sense, identi- any problems, Comments or suggestions you fies our structure. ‘ may have, if other approaches prove unavail- ing. The use of technical channels is encour- While The Judge Advocate General super- aged, but not required. Use your Senior De- vises and assists all Judge Advocates in regard fense Counsel within your office and at higher to professional matters, I am his chief advisor headquarters; and those who are the Senior in matters regarding the defense function. Defense Counsel, monitor, supervise and assist Together with the Chief, Defense Appellate Division, I evaluate and initiate appropriate action whether in response to complaints, in- quiries and requests for assistance from JAGC defense counsel, or as new initiatives to en- hance the defense function. BRUCE T. COGGINS Brigadier General, USA While my attention is generally devoted to . Assistant Judge Advocate the smooth functioning of the defense system, General/Civil L The Article 38c Brief: A Renewed Vitalit$ A Note From The Defense Appellate Division By: Captain David A. Shaw, Defense Appellate Division,‘ USALSA

Article 38(c), Uniform Code of Military Courts-Martial, United States, 19 Justice and Paragraph 48k(2), Manual for edition) provide that in eveiy court-martial /- DA Pam 27-50-30 27 proceeding which results in conviction, defense .The most recent pronouncement of the Court counsel may submit for attachment to the of Military Appeals about its concern over trial record a brief of matters which should be defenee counsel’s lack of diligence .in discharg- considered in behalf of the accused. This brief ing post-trial duties pursuant to Paragraph should include any objection to the contents of 48k(2), Manual, and the plethora of cases the record. Although both the Uniform Code of involving errors in the Staff Judge Advocates’ Military Justice and the Manual specifically post-trial review is the case of United States v. authorize the trial defense counsel to file Goode, 23 USCMA -, 49 CMR - (4 April appellate briefs in behalf of their clients, this 1976). Senior Judge Ferguson, writing for the post-trial avenue of relief is rarely used by court, opined that post-trial reviews of staff counsel. Defense counsel should never deem judge advocates have occasioned recurrent as- the representation of a client complete without signments of error and resulted in unnecessary considering the passibility of submitting a brief litigation of cases in which errors of this type pursuant to the provisions of Article 38(c). have been alleged. Because of the “continual and often repeated claims of error, plus the The Court of Military Appeals has inter- delay in determining their validity and correc- preted Article 38(c) very broadly. In United tion, we deem it appropriate and expedient to States v. Lanford, 6 USCMA 371, 20 CMR 87 take corrective action.” The court then pro- (1955) the court stated that the nature of the nounced that a copy of the staff judge advo- matters which may be noted in the post-trial cate’s review must be served on trial defense brief are not delineated in the Code. Likewise, counsel and an opportunity afforded counsel to the Code does not directly indicate $0 whom correct or challenge any matter deemed “er- the brief should be forwarded. Judge Quinn, roneous, inadequate, or misleading, or on writing for the court concluded “it is clearly which he otherwise wishes to comment.” The inferable that the brief may include factors failure of trial defense counsel to fully avail relating to the sentence and that it is to be himself of this opportunity to insure the rights forwarded to the convening authority.’’ 20 of the accused to receive an adequate post-trial CMR at 97. The court went on to indicate that review will be “deemed a waiver of any error in the fair intendment of the statute contemplates the review.” Thus, trial defense counsel must an oral presentation as well. carefully peruse the post-trial review in every case and prepare comments thereon to protect The Court of Military Appeals has also been the rights of their client. concerned with failure of counsel to utilize the provisions of Article 38(c) in submitting post- The clear import of a juxtaposition of trial briefs on behalf of their clients. In United Fagnan and Goode is that matters may be States v. Fagnan, 12 USCMA 192, 30 CMR 192 included in an Article 38(c) brief which are not (1961) Judge Ferguson stated it was “the otherwise included in the record or post-trial responsibility of the trial defense personnel for review. The Article 38(c) brief becomes a very including in the record all possible information important, if not mandatory, tactic for counsel which may have a bearing on the sentence to be who have either forgotten to include some adjudged and approved. Moreover, we refer important evidence in extenuation and mitiga- once more to the infrequently invoked provi- tion or who determine some additional matters sions of [Article 38 (c)] which permit the need be considered by the reviewing and defense counsel to prepare a brief to be for- appellate authorities. warded “for attachment to the record.” In Fagnan the court concluded that the Boards of The development of the interpretation of Review were limited to consideration of the Article 38 (c), from Fagnan to Goode, provides “entire record” in reviewing cases under the insight to the uses of the brief. For the most provisions of Article 66(c), Uniform Code of effective use to be made of the brief it should Military Justice, but added that an Article be first filed for consideration by the convening 38(c) brief was part of the “entire record.’’ authority and subsequently attached and made DA Pam 27-50-30 Lc 28 a part of the “entire record” for use at the able to himself or to oppose unfavorable mate- appellate level: Ufzited States v. Lancaster, 31 rial before the decision-making authorit CMR 330 (ABR ‘1961). In United States v. eluding the probability ‘of reversal or substan- bash, 12 USCMA 708, 31 CMR 294 (1962) the tial modification of the conviction.” (41 CMR at Court of Military Appeals held that the brief 114). The most expansive reading of Article may be used by counsel to rebut or correct 38(c) occurred in United States v. Tawneg, 33 omissions in the post-trial review: compare CMR 459 (ABR 1963) where the court stated Goode, sicpm. The brief has also been used to that the ’ absence of an Article 38(c) brief discuss a void in the record of trial created by diminished the credibility of an appellant who unrecorded conversations: United States v. first made allegations of irregularities on Strahan, 14 USCMA 41, 33 CMR 253 (1963). appeal. Judge Quinn, writing for the court in Reed w. OhWian, 19 USCMA 110, 41 CMR 110 (1969) Frequently appellate defense counsel will stated that under the broad language of Article adopt the Article 38(c) brief as the appellate 38 (c) it is permissible for counsel to present brief and merely expand on the allegations matters on the issue of kppropriateness of during oral argument: United States v. Harris, restraint of the accused pending appellate 34 CMR 522 (ABR 1963). review of a I conviction. Moreover, since the client’s freedom is involved, Judge Quinn con- Thus, Article 38(c) provides ‘an excellent, if tinued, “it would appear that, regardless of not mandatory vehicle for trial defense counsel specific statutory authority he [accused] should to protect the interests and continue the rep- have ‘the opportunity to submit matter favor- resentation of their clients. , Admissibility Problem of DA Form 2475-2 - A Note F+om the Exarrtination And New Trials Division 1 Bg: Captain Stephen R, Burns, Examination and New Trials Division, a US Army Judiciarg

The advent of SIDPERS (Standard Installa- concerning an individual. When a duty status tion Division Personnel System) produced, not change occurred with respect to the accused, only the now familiar DA Form 4187 (Person- i.e., his unauthorized absence, the unit clerk nel Action), but also the DA Form 2475-2 executed not only the requisite DA Form 4187, (Personnel Data Card), which paragraph 5-4, but contemporaneously made an appropriate AR 680-1 (11 Sep 1969, as changed) aptly entry on the accused’s DA Form 2475-2. Both deems a multi-faceted personnel management forms were then presented to the duly.author- tool. Pursuant to an application for relief ked representative of the unit commander for submitted under the provisions of Article 69, verification and certification to insure proper UCMJ, The Judge Advocate General in Kern, entry of information thereon, and also on the SPCM 1975/3142, had occasion to consider the DA Form 3728 (SIDPERS Change Report) for legal operation of the DA Form 2475-2, in the transmission of the data through SIB (SID- context of an accused’s timely objection to its PERS Interface Branch) to the central com- admission, to prove both the inception and puter at MILPERCEN. In conjunction with termination of his alleged AWOL. the necessary source documents, the unit clerk then sent forward the data. AR 680-1 imposed upon the accused’s com- manding officer the mandatory re A DA Form 2475-2lls generally entitled to preparing and retaining for one year, as an the same treatment by reviewing courts as was official record in the unit files, a DA Form accorded DA Form 1 (Morning Report) and DA 2475-2 for each assignedlattached member, Form 188 (Extract Copy of Morning Report): - reflecting chronologically all personnel actions United States b. Masusock, 1 USCMA 32, 1 ’ DA Pam 27-50-30 r- 29 CMR 32 (1951) (official records admissible as of an appropriate DA Form 4187. Finally, a exceptions to the rule); United States cycleldate entry, as well as a check.in the “P” v. Parlier, 1 USCMA 433, 4 CMR 25 (1952) block, evidenced that the personnel entry had (prepared and retained in substantial conform- been accordingly processed at higher head- ity with applicable regulation); United States v. quarters. The questioned discrepancy was the McNamara, 7 USCMA 575, 23 CMR 39 (1957) failure to include a date along with the trans- (made in proper performance of legally imposed action mnemonic (PDYIAWLI073Q) reflecting duty to record cognizable event); United States the action reported. v. Creamer, 1 USCMA 267, 3 CMR 1 (1952) (document regular on its face presumed proper- The effective date of the transaction re- ly prepared by responsible official). ported, as noted in the questioned entry, was sufficient to prove inception. Standard sample A standard sample entry on a DA Form entries, reflecting duty status changes concern- 2475-2 for an unauthorized absence might aP- ing AWOL, e.g., PDY/AWL, usually include a pear as: 721109, DYST PDYIAWLl0800I date along with the transaction mnemonic in 721198/1PBAAA, 721108, N.C. KJ 721110, “p”- the “action reported” block; however, that date Reading from left to right, 721109 is the date is identical to the one appearing in the “effec- the transaction Was reported to SIB; 721199 is tive date” block, and logic dictates the concur- reCorded for 9 November 1972- DYST PDY/ rence. At least insofar as AWOL is involved, AWL is the action reported, iee-, a duty status the date of the occurrence of the action to be change from present for duty to absent without reported will a fortiori be the effective date leave. !l800/721108 is the timeldate of inceP- that the member undertakes that very trans- tion, i.e., 0800 hours; 8 November 1972- action. Accused raised the same objection to 1PBAAA is the identity code for the unit from the entry used to prove termination of the which the member absented himself. 721198 is alleged AWOL, and that issue was also re- the effective date of the transaction reported, solved adversely to him for the same reasons. i.e., the unauthorized absence. N.C. are the A further omission, however, was apparent in initials of the unit commander, or his author- the second entry. ized representative, which indicate his verifica- tion and certification of the data. KT 721118, The questioned second entry read: 759220, “F’,indicate an appropriate cycleldate entry AWLIPDYI1400IG2NAL0, 750219, GAW, reflecting forwarding of the action for process- (omitted cycleldate and “P” entries). On 20 ing CY). February 1975, the following transaction was reported to SIB: accused returned from AWOL In his application for relief, accused attacked to present for duty at 1400 hours to his the following entry used to prove inception Of The effective date of his return was 19 Feb- the alleged AwoL on 3 February 1975: 750204, ruary 1975, as alleged. 1LT Williams again PDYIAWL/0730/ (Omission) I G2NALo, verified the foregoing data. The usual remain- 758203, GAW, (cYcle/date entry), “p’’*On ing entries, i.e., cycleIdate and processing February 1975, a duty status change was notation (“p”), were missing. The significance reported showing that accused went from Pres- of the omitted data, and the legal effect ent for duty to absent without leave from his thereof, lies in the rudimentary understanding unit. Troop L, 3d Squadron, 3d Armored of its basic function. Cavalry Regiment (unit identity Code: GZNALO), at 0730 hours. The effective date of After the unit clerk has sent forward his data the transaction reported, i.e., the AWOL in- to SIB, which in turn will have collated it for ception, was 3 February 1975, as alleged and ultimate forwarding to the central MILPER- 1LT William (GAW), a duly authorized repre- CEN computer, feedback will be reflected by sentative of the commanding officer, verified the cycleldate and processing entries. These the accuracy of the reported data not only for two entries function as an audit trail to insure its proper transmission by the unit clerk to that the unit clerk is constantly attuned to SIB, but also for contemporaneous preparation what the computer believes is a member’s r“. DA Pam 27-50-30 30 c current duty status. These entries are the ing document of its officiality, or was a harm- feedback link, indicating to the unit clerk that less omission, which while not in keeping with the transaction reported on the DA Form ‘ proper procedures, did not of itself put the 2475-2 has gone forward to the computer, .been document outside the official record exception processed, and upon retrieval, computer out- to the hearsay rule. Where a failure goes to the put will reflect that same data. Without the very heart of a document’s Officiality-United audit trail, the unit records could vary signifi- States v. Teal, 3 USCMA 404, 12 CMR 160 cantly from what the computer would show, (1953) (DA Form 1 not signed); United States and the unit clerk would be hard-pressed to v. Henry, 7 USCMA 663, 23 CMR 127 (1957) reconcile the assignedlattached strength of the (DA Form 1 merely initialed)-The document unit against rosters, unit manning reports, will be deprived of that degree of officiality other strength related documents, and the considered a necessary ingredient to the hear- computer itself. say exception. Conversely, regulatory omis- The absence of the cycleldata and processing sions do not render documents inadmissible: notations in the entry indicated a broken United States v. Aizderten, 4 USCMA 354, 15 feedback linkage. Either the unit clerk totally CMR 1954) (failure to state that morning failed to send forward, the basic “transaction report entry was a delayed or corrected entry); reported” data, or more likely, a failure to United States v. Tuteh, 15 USCMA 38’7, 35 complete the audit trail occurred through non- CMR 359 (1965) (fail to date a record of reciprocation of feedback from the computer or previous convictions).’ Only those sirregularities simple failure of the unit clerk to note accom- that are material to the execution of an official plished feedback actually received. Obviously, record destroy its admissibility. ,I the break in the audit trail will cause the unit The failure to complete the audit’trial af- clerk problems in reconciling his records when- fected ’the probative weight to be given the ever he must next deal with the computer. questioned DA Form 2475-2, but not its ad- :- However, the broken feedback linkage did not missibility. The omitted feedback data was not undermine the integrity of the basic data material to the execution of those entries actually noted, that is, the accused did return having legal and evidentiary significance, from AWOL to present for duty to his unit at which showed-prima facie an inception and A 1400 hours, 19 February 1975, as alleged, and termination, and which had in fact been veri- appropriate authority, ie., 1LT Williams, veri- fied by a responsible official. The omissions fied the same. While a defective audit trail will only collaterally affected the trustworthiness of result in administrative problems, no legal the basic,entries, i.e., the care and diligence of encumbrance to admissibility attached to the the unit clerk. Even the collateral effect was of proffered DA Form 2475-2. little ^significance, because the irregularity was It remains hornbook law in military juris- not attacked as reflecting palpably erroneous prudence that morning report entries are writ- data. ings which meet all tests required in the official If it can be shown that a DA Form 2475-2 . record exception to the hearsay rule. An offi- has not been properly prepared, the document cial record should be prepared as prescribed in is hearsay and not within the official record pertinent regulations, but not every irregulari- exception. However, counsel’s inquiry regard- ty, or omission, in an entry destroys its ing preparation of the document must be admissibility. sharply’focused so as to finely distinguish The question was whether,the failure to between the subtleties of harmless administra- complete the audit trail deprived the underly- tive deficiency and fatal material irregularity.

8’ F DA Pam 27-50-30 r$ 31 . SinceMANEY A Note From the Contract Appeals Division By: Captain Paul B. Haseman, Contract Appeals Division, USALSA

As all government procurement attorneys ASBCA No. 19377, 75-1 BCA ll11,116, is a will recall, the case of Maney Aircraft Parts, good example. The board stated: “. . . When a Inc. (citations below) and its progeny involved contractor fails to dispatch its notice of appeal a challenge by the contractor to the 30-day within thirty days after receipt of the Con- appeal filing time limit. This time limit con- tracting Officer’s final decision, we lack juris- tained in the standard Disputes Clause of the diction to consider the appeal on its merits.” Armed Services Procurement Regulation Obviously, the ASBCA still considers the 30- (ASPR 7-103.12) makes the decision of the day time limit as jurisdictional but, as in contracting officer final and conclusive unless Maney, it will exercise its discretion when so Maney was late. appealed within 30 days. ordered on remand from the Court of Claims: However, Maney insisted that the 30-day time J.R. Youngdale Construction Co., Im., limit was not a jurisdictional bar and that the ASBCA No. 18090, 75- BCA T11,115 (dtd 24 Armed Services Board of Contract Appeals Feb 75). However, three questions still (ASBCA) would waive the time limit and hear remain. Maney’s appeal on the merits. After the Board refused to hear the appeal (ASBCA No. 14363, First, if a contractor finds itself more than 30 70-1 BCA ll8076), Maney went twice to the days after a final decision with a desire to Court of Claims. The first time, the court ruled appeal the decision, is there recourse other that the ASBCA has discretion to waive the 30- than appeal to the ASBCA, which will un- day time limit: 197 Ct. C1. 159, 453 F.2d 1260 doubtedly deny the appeal for lateness, there- (1972). The board disagreed: ASBCA No. by delaying possible recovery? The answer is a 14363, 72- BCA 59449. The court, under new qualified yes. Another possible, but as yet remand powers-28 U.S.C. 41491 as amended untried approach under the facts of a late by P.L. 92-415 (86 Stat. 652)-then ordered appeal, would be a direct appeal to the Court of the Board to exercise its discretion and deter- Claims. Such an appeal is risky in light of mine whether to waive the 30-day time limit: possible dismissal by the court for failure to 202 Ct.Cl. 54, 479 F.2d 1350 (1973). Although exhaust the administrative remedy. However, maintaining that it still did not have jurisdic- this risk is not as great as it might first appear tion under the Disputes Clause, the ASBCA under the guidance provided in United States acted under the direction of the court order and v. Grace, 384 US 424 (1966), in which the exercised discretion vis-a-vis the 30-day rule. Supreme Court stated “. . .the parties will not After review of all the facts and Arguments be required to exhaust administrative proce- relating to the late submission by Maney, the dures if it is shown by clear evidence that such ASBCA decided that waiver of the 30-day time a procedure is ‘inadequate or unavailable.’ ” limit was inappropriate: ASBCA No. 14363, 384 US at 429-30. Clearly, administrative re- 73-2 BCA 710,326. On Maney’s third and final view at the ASBCA is not available on the appeal to the Court of Claims, the court merits for a late appeal regardless of the sustained the ASBCA decision : Ct.Cl. Order reason for lateness. No. 191-70 dated 13 December 1974, 20 CCF A second question would be whether the 783,543. In analyzing Maney’s allegation of Court of Claims can go forward with review on abuse of discretion on the part of ASBCA, the the merits or must the court remand the case court simply adopted the ASBCA language and to the administrative board for exercise of concluded that the , Maney, had not discretion on the timeliness issue and a subse- shown good cause or justifiable excuse. quent administrative hearing on the merits if Since Maney, the ASBCA has stuck to its the board decided that waiver was appropriate. The recent Court of Claims decision in Man- f‘ guns on several cases of which Linair, Inc., DA Pam 27-50-30 32 powel*, Inc. v. United States, -Ct. Cl.-, (No. 4 administrative board to exercise discretion on 230-74 dated 16 April 1975) certainly keeps its own volition as to timeliness. open the door for immediate review at the A third question is by what standard will the Court of Claims when the court finds that the Court of Claims review the exercise of discre- administrative remedy is not available from the tion that it may direct administrative boards to particular contract appeals board. In Man- exercise? The answer as set out in Monroe power, the plaintiff alleged that the two-year Tapper v. United States, - Ct. C1. - (19 Mar delay in issuing a final decision by the Depart- 75), is that the Court of Claims will review ment of the Navy was both arbitrary and a allegations of abuse of discretion under stand- breech of the Disputes Clause thus discharging ards of the Wunderlich Act, 41 U.S.C. 55321- the plaintiff from any obligation to pursue the 322, requiring that an administrative decision administrative remedy. The court agreed with the breach of contract allegation and remanded not be fraudulent, arbitrary, capricious, so the case to its own trial division for proceed- grossly erroneous as necessarily to imply bad ings on the merits, In the area of timeliness of faith or not supported by substantial evidence. In Tapper, the decision of the Postal Board on appeal, the Court of Claims is certainly of the opinion that the failure of the administrative the timeliness issue.was found to be arbitrary boards to exercise discretion in the first in- and the case was remanded to the Postal Board stance, without court order, is an arbitrary act for a de lzovo hearing on the merits of Tapper’s and possibly a breach of the Disputes Clause as appeal. interpreted by the Court of Claims. However, In summary, the ASBCA has been little the similarity as to breach ends there; just influenced by Maney. Thirty days still means because an administrative board interprets the 30 days unless a court order from the Court of 30-day time limit as jurisdictional does not lead Claims directs the ASBCA to exercise discre- to a finding that the’administrative board can tion. Following Wunderlich Act standards, not reach a fair decision on the merits when so abuse of discretion by an administrative board - directed. So although contractors might rea- will lead to remand by the Court of Claims to sonably expect a sympathetic ear at the Court the board for a hearing on the merits. The of Claims on the timeliness issue, the Court of conflict between the ASBCA and the Court of Claims is unlikely to sustain an allegation of Claims on the interpretation of the 30-day time breach of contract based on the failure of an limit could lead to a Supreme Court decision.

Reserve Affairs Items From: Reserve Affairs, TJAGSA

1. Reserve JA’s Participate in Medical Legal Moscato, SAof the 86th Army Reserve Com- Conference. On Sunday, 4 May 1975, a number mand, Captain Tom Olsen, Commander of the of Reserve Component Judge Advocate Gener- 93d JAG Detachment, Lieutenant Colonel al’s Corps officers participated in the prepara- Dean Massey, Commander of the 98th JAG tion and presentation of the 44th General Detachment, and First Lieutenant Norman Hospital’s Spring Medical-Legal Conference Jeddello, Legal Officer of 308th Civil Affairs held at the USAR Center in Madison, Wiscon- Group, presented various programs on the sin. Lieutenant Colonel Lyle E. Strahan, legal implications involving malpractice and JAGC, USAR, Staff Judge Advocate of the military medicine. The conference provided a 633d Direct Support Group, was co-chairman of unique opportunity for doctors and lawyers to the conference along with Lieutenant Colonel combine their professional resources to identify James H. Bradenburg, Medical Corps, Upited and resolve problems affecting both fields. States Army Reserve. Lieutenant Colonel Roy -- DA Pam 27-50-30 33 . 2. TJAGSACchedule of Continuing Legal Education (Reserve Component Personnel) Number Title Dates Length Reserve Component Training JAGS0 Teams 2 Jun 75-13 Jun 75 2 wks 5F-F30 1st Military Justice I Crs 16 Jun 75-27 Jun 75 2 wks USAR School (Civil 7 Jul 75-18 Jul 75 2 wks 7A-7 13A 5th Law Office Management Crs 22 Sep 75-26 Sep 75 4% days 5F-F2 3d Reserve Senior Officer Legal 20 Oct 75-23 Oct 75 3% days Orientation Crs 5F-F10 64th Procurement Attorneys’ Advanced Crs 10 Nov 75-21 Nov 75 2 wks 5F-F 11 6th Procurement Attorneys’ Advanced Crs. 5 Jan 76-16 Jan 76 2 wks 51271D20/50 3d Military Lawyer’s Assistant Crs 19 Jan 76-23 Jan 76 4% days (Criminal Law) 51271D20/50 4th Military Lawyer’s Assistant Crs 19 Jan 76-23 Jan 76 4% days (Legal Assistance) 5F-F10 65th Procurement Attorneys’ Crs 8 Mar 76-19 Mar 76 2 wks 5F-F10 66th Procurement Attorneys’ Crs 26 Apr 76-14 May 76 2 wks 5F-F31 1st Military Justice I1 Crs 21 Jun 76-2 Jul76 2 wks 5F-F20 1st Military Administrative Law Crs 21 Jun 76-2 Jul76 2 wks USA Reserve School BOAC and CGSC 11 Jul76-24 Jul76 2 wks (Procuremept Law and International Law, Phase VI Resident/Nonresident Instruction)

P TJAGSA Resident Courses for Reserve Officers 1975-76 TJAGSA will offer a variety of resident USAR School Judge Advocate Officer Ad- instruction in Academic Year 1975-76. These vanced Course (BOAC) ADT Phase 11. Equiv- resident courses will provide continued legal alent credit is given for JA 133, 134, 135, and education to judge advocates and advanced 136. * training for judge advocates of the Reserve Components. There are three Procurement Attorneys’ Courses (5F-Fl0, 64th-1-12 Dec 75; 65th-8-19 Students enrolled in the JA Officer Ad- vanced Course (USAR School or correspond- Mar 76; and 66th-26 Apr-7 May 76) offered in ence course) will have the opportunity to 75-76. Completion of any of these courses complete portions of that program’s require- fulfills one-half of the requirements of Phase ments by attending resident instruction in VI of the nonresidenthesident Judge Advocate Phases 11, IV, and VI at the Judge Advocate ‘ Advanced Course (JA 112, 113, 114) and covers General’s School. The following courses will be one-half of the material presented in the USAR offered: School Judge Advocate Advanced Course (BOAC) ADT Phase VI. The course consists of Military Justice I1 (5F-F31, 24 May -4 June basic instruction in the legal aspects of gov- 76) is a new course offered for the first time. It ernment procurement at the installation level, is designed to provide a working knowledge of including the authority of the government and the duties and responsibilities of field grade JA its personnel to enter into contracts, contract officers in connection with pretrail procedure, performance, and contract appeals. Substan- trial procedure, post trial procedures and re- tially the same material may be obtained in half view, and appellate review. This course fulfills the time at the USAR School to be held at one-half of the requirements of Phase I1 of the TJAGSA 6-19 Jun 76. Open to all reserve nonresidenthesident Advanced Course and in- component officers, the USAR School will give cludes one-half of the material presented in the all of Phase VI, BOAC which, in addition to Pam 27-50-30 DA /4 34 the above procurement courses, also include pretation and application of international law. International Law (JA 141, 142, and 143). The course covers JA 141 and 143. As stated earlier, this material and instruction equivalent The Administrative and civil Law Division to JA 142 will be covered in the USAR School has revised its residenthonresident courses to to be held at TJAGSA in june1976. parallel the instruction offered in the Judge Advocate Officer resident advanced Course. The Senior Reserve Officer Legal Orienta- Military Administrative Law (~F-F~o,21 tion Course (5F-F2, 20-30 OCt 75) iS designed Jun - 2 Jul 76) is designed to fulfill one-half of to acquaint reserve component commander of the requirements of Phase IV of resident/ brigades and comparable units, and command- nonresident Judge Advocate Officer Advanced ers and Principal staff officers of higher units, course.This two-week course is in twophases: with installation and Unit legal problems en- (1) phase ITudicial Review of Military A~- countered in both the criminal and admin law tivities and Military Personnel Law (a revision fields. The same type of information is pro- of subjects formerly offered in civil Law 11, vided to active duty officers in the four Senior Phase I), and (2) Phase II-Lega] Basis of Officer Legal Orientations conducted annually. Command (Command of Installation, Freedom For Officers unable to attend a Senior Officer of Information, Military Assistance to Law Legal Orientation Course in residence, a non- Enforcement and Environmental Law) (a re- resident correspondence version is available, vision of subjects formerly offered in Civil Law too. I, Phase I). Students may attend either or both weeks. It should be noted that correspondence Conferences. subcourses of Phase Iv are in the process of Three conferences are also scheduled. These revision by the Administrative and civil Law are the Annual Judge Advocate General’s con- Division. Upon Completion Of this revision a ference (13-17 Oct 75) for active duty J&~,the ,,- table will be published, describing the correla- Reserve Conference (3-6 D~~ 75), and the tion of the subjects offered in the resident National Guard Conference (7-10 Mar 76). Judge ~dvocateOfficer Advanced Course, the Conferences are for senior legal officers in each BOAC Program, and the USAR School Judge category, Advocate Officer Advanced Course (BOAC) ADT Phase IV. Inquiries concerning these courses should be directed to Commandant, The Judge ‘Advocate The 19th International Law Course (5F-F3, General’s School, U.S. Army, ATTN: Aca 21 Jul-1 Aug 75) is designed to provide attor- demic Depart harlottesville, Virginia neys with a general knowledge of the inter- 22901. r I’

’i 1 I: By: Captain Mack Borge taw Division, TJAGSA

1. Items of Interest.‘ E is added to that regulation. The appendix Civilian Indebtednessxommanders’ Form consists of a number of standardized form Letters. In accordance with AR 600-15, “In- letters which may be by a commander in debtedness of Military Personnel,” 11 Feb- responding to a cre complaint. But see, ruary 1970, a commander is required in most Sec. K, Ch. 9, DA P 12 (Regarding state instances to acknowledge the receipt of corre- creditors’ communications statutes which limit spondence from a creditor alleging the “non- the creditor’s right to communicate directly payment of a just ” by a member of the with the employer-commander in attempts to command. Pursuant to Interim Change,to AR force debtors to pay their” [alleged] obliga- 600-15 (Change 2) (31 April 1975) an Appendix tions.”). [Ref: Ch. 9, DA Pam 27-12]. - DA Pam 27-5CL30 35 Estate Planning4urvivor Benefit Plan. Sa nipling: Total EI-Eh E5-E9 5537 2172 3365 Until 1972 the Retired Serviceman’s Family Data: Protection Plan, 10 U.S.C.A. 01431, et. seg., A. Never 53% 33% 65% was the basic annuity plan offered for the B. One time 20% 25% 16% survivors of retired military personnel. For a C. Two times 12% 18% 9% number of reasons such as the relatively high D. 3-5 times 11% 19% 6% E. More than cost of the plan and, relatedly, the low “par- 5 times 4% 6% 3% ticipation” in the plan (approximately 12-18 percent), the RSFPP was replaced by the Analysis: Nearly one-half of the surveyed Survivor Benefit Plan (SBP), 10 U.S.C.A. enlisted personnel had visited the Legal Assist- 01447, et. seq., in September, 1972. The annui- ance Office for aid or advice during the pre- ties under the SBP are purchased via retired vious five years. Lower-ranking enlisted per- pay deductions and may provide an amount sonnel have or perceive a need for personal equal to 55 percent of the deceased’s full legal services more frequently than persons in retirement pay. The exact cost of the annuity is the E5-E9 grades. Alternatively, this could a function of the beneficiary option selected by indicate that senior enlisted personnel are the retired member (spouse only, spouse and “substituting” civilian counsel for the military dependent child (ren), dependent child(ren), LAO, however, as will be seen below, very few and in certain instances, a “natural person with enlisted personnel of any grade hire civilian an insurable interest”). The SBP is somewhat counsel. It may be significant that nearly 7 out complicated and has been the source of consid- of 10 El-E4’s had used the legal services and erable comment and continuing legislative re- more than 4 of 10 had used the Legal Assistd finement, however the “participation” in the ance Office more than once. The potential plan is much higher than under the old RSFPP. significance here is the fact that for many, if It was recently reported that approximately not most, enlisted personnel the JAG Officer is p 50-60 percent of those eligible do purchase first met in his role as a LAO. The EM’S first annuities under the SBP. Participation appears impression of the JAG Office may, to a certain to be considerably higher among officers (ap- extent, be based upon this interview. [Note: Of proximately 75 percent) than among enlisted course JAG Officers also serve in instructional personnel. Although the SBP can be an excel- or representative roles (e.g. law of war, mili- lent estate planning tool, it must be recognized tary justice), however it is this LAO who most that it is not appropriate in all situations. A frequently meets the individual in an attorney- new regulation, AR 608-9, “The Survivor client relationship] Benefit Plan,” 24 March 1975, has recently Question: The last time you visited the Legal been promulgated. It is hoped that the new Assistance Office, in which area did you seek regulation will be extremely useful in answer- help? ing questions and rendering guidance relating Sanipl ing: Total El-Eb E5-E9 5542 2169 3373 to the annuity plan. [Ref: Chs. 13, 15 DA Pam Data: 27-12]. Subject EI-Eb E5-E9 Power of Attorney 31% 22% Legal Assistance Program-Enlisted Per- wills 10% 9% sonnel Survey Results. Several qUeStiOnS re- DivorcefSeparation 9% 7% garding the military legal assistance program Income Taxation 5% 7% were included in a recent MILPERCEN Quar- Personal Financehdebtedness 4% 8% terly Samply Survey of Military Persoinel. ~mmi~tionand ~aturalization 3% 3% Credit Contracts 3% 4%* The results of the survey and a brief analysis of Landlord-Tenant Problems 3% 4%* the data are as follows: Purchase or Sale of Home 3% 1%* Question: How many times in the last five Other Civil Matters 29% 38%** ’’ * Although generally it appears that E1-E4’s have very years have you Or any Of your dependents similar legal problems to those of E5-EWs, the order of visited the Legal Assistance Office for aid or frequency of certain subjects is not exactly the same. pkadvice? ** Not equal to 100% due to rounding. .. .

DA Pam 27-50-30 36 Analysis: This caseload distribution is very 4. Question: How satisfied are you with the similar to the 1972 data for the Army legal service you received in the legal matter.you assistance program. That data, listed below, is indicated above in Question? based upon the then-required reporting system san/pli?ig: Total Ef-EA E5-E9 and includes both Enlisted and Officer Clients. 2695 1530 1165 Sicb,ject Matter Pel-centage Data: Family Law 15% Very Satisfied 43% 53% 31% Satisfied 37% 34% 41% Adoption and Change of Name (2%) Unsatisfied 11% 7% 15% Domestic Relations and Very Unsatisfied I 9% 6% Paternity (10%) 13% Non-support (3%) Analysis: Although there is, and always will Power of Attorney 13% be, great room for improvement in the quality Personal Finance and 12% and efficiency of legal services rendered by the Taxation 8% Wills and Estates 84b military legal assistance program,’ there ap- Personal Property, Automobiles, etc. 8% pears to be a relatively high degree of client Real Property, Sales, 4% satisfaction. Nearly four of five persons using Citizenship and Naturalization 4% legal assistance services responded that the Torts 3% services they received were either “very satis- Civil Rights 1% Miscellaneous 23% factory” or “unsatisfactory.” The meaningfulness of surveys such as the one [l%= 12,658 cases] discussed above does of course turn upon many In both sets ,of data the “miscellaneous” cate- factors such as the size and representative gory could include a very broad rahge of accuracy of the sampling and the clarity and subjects such as small claims court inquiries, neutral phraseology of the questions and alter- consumer protection problems, emergency as- native responses, but it is hoped that this data - sistance requests, POW/MIA assistance, and so reflect in part the potential significance, the forth. nature of the practice, and the quality 0: 3. Question: How many times in the.last five services being rendered under the military years have you or one of your dependents hired legal assistance program. This information is a civilian attorney instead of using the Army based upon raw data which is presently being Legal Assistance Officer? further reviewed and analyzed by MILPER- Sampling: Total El-EA E5E9 CEN survey technicians in preparation for 4942 2036 2906 subsequent publication of a final report. [Ref: Data: Ch. 1, DA Pam 27-12].

Never hired a civilian ,I attorney 76% 72% 79% Army Community Service Program-Person- One time 16% 19% 13% ’ a1 Commercial Affairs. Pursuant to a recent Two times 5% 6% 5% revision of AR 608-1, “Army Community Serv- Three to five times 2% 2% 3% ice Program,” (Effective 1 July 19751, the More than five times 1% 1% 1% program has been “revised to include personal Analysis: Based upon this data it appears that commercial affairs as one of its basic services.” enlisted military personnel very rarely hire The services should include “[at] a minimum civilian counsel for their personal legal prob; (subject to‘ installatiodcommand capabilities), lems. There are structural and analytical prob- consumer education and information, budget lems with this question, but it appears that counseling, debt pFevention classes and sem- civilian attorneys are infrequently retained. inars, and liquidation services.” See, DA Cir. This could be a result of the relative unavail- 608-52, “Personal Commercial Affairs,” 1 April ability of civilian attorneys, prohibitive cost, 1975. [Ref: Part 6, DA Pam 27-12]. the “military-related nature” of the legal prob- 2. Articles and Publications of In lem, or the general unfamiliarity with the use and retention of attorneys by low and middle- Consumer Affairs4Yandbook. Department income families. of the Army Pamphlet 608-3, Your Consumer - DA Pam 27-50-30 37 Affairs Handbook, 1 June 1975. This DA War and of the Families of Those Still Missing Pamphlet$is designed as a “supplement . . . to In Action,” 6 U. W.L.A.L. REV. 22 (Winter, assist members of the installation Army Com- 1974). [Ref: Ch. 46, DA Pam 27-12]. munity Service staff in obtaining information Veterans’ Benefits-Veterans’ Administra- on ways to assist service members in protect- tion-Preclusion of Judicial Review. Rabin, ing their personal welfare, finances, and eco- “Preclusion of Judicial Review in the Process- nomic well-being.” Of particular interest to ing of Claims for Veterans’ Benefits: A Prelim- Legal Assistance Officers is that a list of state inary Analysis,” 27 STAN. L. REV. 905 (Feb., and local consumer affairs offices (name/ 1975). Many military-related emoluments are addresstphone numbers) and of state insurance administered by the Veterans Administration commissioners is included as an appendix to the and are based upon “administrative determina- publication. [Cross-reference: See Items of In- tions” by that agency. Professor Rabin in a terest, “Army Community Service Program- very fine article analyzes the procedures and Personal Commercial Affairs,” supra] (Ref: practices of the Veterans Administration, and Ch. 6, DA Pam 27-12]. then he focuses upon the fact that the “VA Military MIA Status Determinations. - stands in splendid isolation as the single fed- “Administrative Law-Due Process for De- eral administrative agency whose major func- pendents in Military MIA Status Determina- tions are expressly insulated from judicial tions,” 12 J. FAMILY L. 860 (1973-1974). [Ref: review.”[38 U.S.C. §211(a)(1970)]. Professor Ch. 46, DA Pam 27-121. Rabin argues, albeit based upon a “tentative appraisal,” that the “case for access to court Returned Prisoners of War and Missing in seams strong-sufficiently strong to case a Action-Family Legal Problems. Stewart, long shadow over the preclusion statute.” Id., n “Legal Problems of the Returned Prisoners of at 923.

’ Criminal Law Items From: Criminal Law Division, OTJAG 1. Determination of Maximum Punishments. to either, are punishable as authorized by In a 28 March 1975 memorandum for trial the United States Code (see, generally, , Subject: Determination of Maximum Table 18) or the Code of the District of Punishments, the Chief of the Trial Judiciary Columbia, whichever prescribed punish- provided judges with useful information re- ment is the lesser. . .” garding maximum punishments for offenses not listed in the MCM’s Table of Maximum Pun- When an offense is charged under the ishments. As the information contained in that “crimes and offenses not capital” clause of memorandum may be of substantial benefit to Article 134, UCMJ, and its nature requires counsel and SJA’s as well as to judges, the examining beyond the table of maximum pun- body of the memorandum is reprinted below in ishments, one cannot end his research by haec verba. finding a prescribed punishment in the United States- Code. The next steps must be taken: 1. A number of cases received for appellate review reveal a misunderstanding or neglect of namely, to search the District of Columbia Code to ascertain whether a punishment for the Of paragraph 127c(1), for the offense is prescribed there; if it is, to Courts-Martial, Uhited States, 1969 (Revised the u.s. Code and D.C. Code provim edition): sions; and to select the lesser. See United “Offenses not listed in the table [of max- States v. Picotte, 12 USCMA 196, 30 CMR 196 imum punishments] and not included with- (1961); United States v. Almendarez, 46 CMR in an offense listed, or not closely related 814 (ACMR), pet. denied, 46 CMR 1323 (1972). PI 2. Failure to complete the process described As equipment failure is the primary cause for above occurs most often in drug cases. Misuse failure to have a complete record, caution and abuse of “dangerous drugs’’ are not pun- would dictate that back-up recording systems ishable by equation to marijuana or habit- be used in all BCD special and general courts- forming narcotic drugs, for which entries ap- martial. In using such back-up systems, it is pear in the table. See United States v. Turner, suggested that consideration be given to re- 18 USCMA 55, 39 CMR 55 (1968): Rather, taining the recordings at least until the record resort must be made to the U.S. Code and of trial has been authenticated. D.C. Code. See United States v. Towns, 22 USCMA 600, 48 CMR 224 (1974); United 3. DA Form 20B Replaced. DA Form 20B States v. Correa, 47 CMR 672 (ACMR 1973). A (insert sheet to DA Form 20-Record of Court- number of dangerous drug offenses are de- Martial Convictions) is being replaced by DA nounced in 033-701 through 33-712, D.C. Code. Form 2-2 (insert sheet to DA Form %Record Some dangerous drugs are defined in S33-701 of Court-Martial Conviction). The new form itself; others have been added pursuant to and Change 1 to AR 640-2-1 set forth the 033-701(1) (c). The latter, which were pub- specific entries to be made after publication of lished in the D:C. Register of 6 January 1975, the initial promulgating orders, completion of are: supervisory review, and any supplementary Methaqualone actions which affect the case. Phencyclidine (Angel Dust). Upon receipt of DA Form 2-2, use of DA Methyphenidate (Ritalin) Form 20B will no longer be authorized. Data as Phenmetrazine (Preludin) to previous court-martial convictions already Lysergic Acid Diethylamide (LSD) entered on DA Form 20B’s need not be tran-

To apply paragraph 127c(l), MCM,correctly scribed to the new DA Form 2-2. Completion of Ft in drug cases, military judges must therefore data on a case already entered on a DA Form be as familiar with the D.C. Code and the list 20B should be effected on the DA Form 20B. of dangerous drugs within its provisions as Entries of court-martial convictions, after re- with 21 USC0801 et. seq. 1. ceipt of the DA Form 2-2, should be made on 3. In addition to assuring that their own DA Form 2-2 and not on an existing DA Form determinations of maximum punishment are 20B in an individual’s records. correct, military judges must be alert to the Changes in AR 27-10 necessitated by the issues which arise when a convening authority adoption of DA Form 2-2 will be included in a or accused or both are mistaken as to the future change to that regulation. maximum punishment. United States v. Towns, supra, is an example (improvident plea 4. Dilatory Tactics By Defense Counsel. The of guilty). cornerstone of any profession is the self-regu- 4. The process’.described above does not lation of its’members and their adherence to the principles of that profession. The lack of apply when a drug offense is charged under self-discipline leads to the loss of public con- Article 92, UCRZJ. See United States v. ROSS, fidence and possibly to external regulation. 47 CMR 55 (ACMR), pet: denied, 48 CMR 1000

(1973). ,IA Lawyers are expected to abide by the ethics of their profession. Paragraph 232, AR 27-10, 2. Backup Recording systems For Verbatim f Judicial Conduct. and Transcriptions. All staff judge advocates are reminded that USCMA has held that a recon- structed record is not verbatim within the judges and lawyers involved in court-martial meaning of Article 54, UCMJ. United States 21. proceedings in the ,Army. Chapter 4, {AR Weber, 20 USCMA 82, 42 CMR 274 (1970); 27-10, outlines the procedures €or the suspen- U.S.‘u. Webb, CM 430177 (28 February 1975). sion of counsel who violate these principles. DA Pam 27-50-30 39 - In recent months, there has been much are urged to adopt the formats shown below in criticism regarding the use of dilatory tactics all future Article 65(c) reviews. The name of by defense counsel. These are most common in the officer reviewing the file should be typed or overseas areas where delay may result in the stamped beneath his signature. government’s inability to produce necessary Suggested Forms to Reflect Supervisory witnesses due to personnel rotation policies. Review of Summary and Special Court-Martial Records of Trials In the defense of his client, counsel may seek Hq Hq a continuance when he honestly believes that Office of SJA Office of SJA more time is needed in which to prepare his case. However, to delay a trial for the sole purpose of making it more difficult for the This record of trial has been This record of trial has been . Government to bring the case to trial or the examined and the findings examined and the findings accused to be able to present his defense can and sentence, as approved and sentence, as modified by convening authority, are or corrected, are correct in result only in a loss of respect for our judicial correct in law and fact. law and fact. See (SCMO) processes and ultimate injury to those involved (SPCMO) No.- this in those processes. Such tactics must be ex- hq, dtd posed and vigorously resisted by the opponent -A-A_A______attached hereto. counsel. This is his obligation in an, advisary (date) JAGC --_- system. The opponent counsel must bring to (date) JAGC the military judge’s attention, in a manner which is not ex parte any frivolops or dilatory tactics not noted by the judge sua sponte. Suggested Forms to Reflect Supervisory Review of Summary and Special Court-Martial Then the judge is in a position to discharge the Records of Trials responsibilities contemplated by Canon 3A(5), Code of Judicial Conduct and its commentary. Hq Hq r‘. Office of SJA Office of SJA 5. Review of Summary and Special Court- Martial Records UP Article 65c. The U.S. This record of trial has been This record of trial, which Army Judiciary has found in reviewing applica- examined. The (findings) resulted in acquittal ( ) (sentence) (findings & sen- has been reviewed for tions for relief under the provisions of Article tence) are not correct in law jurisdiction pursuant to Ar- 69, UCMJ that many of the rubber stamp and fact and are set aside. ticle 65 (c). The court had impressions on records of trial and court- See (SCMO) (SPCMO) No. jurisdiction over the per- martial promulgating orders are out-dated and this hq, dtd -, son(s) and offense(s). do not contain the proper language. In an effort attached hereto. to improve and standardize stamps used in --__------___--____ Article 65(c) reviews, all staff judge advocates (date) JAGC (date) JAGC

Procurement Law Notes From: Procurement Law Division,OTJAG

TJAG Assumes New Responsibilities in Area Procurement Information Letter 75-1, dated of Mistake in Bids and Protests Against 28 April 1975 announces the new procedures Awards. Under new procedures, effective 28 and in this regard states in part: April 1975, The Judge Advocate General will assume certain responsibilities in the area of “2. In accordance with Army Procurement mistake in bids and protests against awards Procedure 2-406.3, 2-406.4 and 2-407.8, the which prior to the foregoing date were the Deputy for Materiel Acquisition, Office of responsibility of the Assistant Secretary of the the Assistant Secretary of the Army, In- P Army (I&L). stallations and Logistics, has exercised DA Pam 27-50-30 40 certain authorities with respect to the “a. Copies of documents specified in subject procedures. As the result of re- APP 2-407.8(d) (iii) will no longer be structuring of the Office of the Deputy for submitted to ASA (I&L). Materiel Acquisition, some of these auth- orities will be performed hereafter by the “b. HPAs subject to the procedures in Chief, Procurement Law Division, Office APP 2-407.8 (d) (iv) will forward cases to of The Judge Advocate General. Chief, Procurement Law Division, Office of The Judge Advocate General (DAJA- “3. Concerning mistakes in bids, the list of PL), HW, DA, Washington, D.C. 20310 delegates in ASPR 2-406.3(b)(l) has been vice ASA (I&L). revised to add ‘Chief, Procurement Law Division, Office of The Judge Advocate “c. APP 2-407.8(h) is being changed to General, Headquarters, Department of the reflect the following: When a protest is Army.’ Pending publication of new proce- filed with the Comptroller General, he will dures in a forthcoming Procurement In- notify the General Counsel, HQ, AMC: formation Circular, cases of mistakes in General Counsel, COE: or Chief, Procure- bids heretofore handled by the Office of ment Law Division OTJAG, HQ, DA, as the Assistant Secretary of the Army (In- appropriate. These offices yvill, in turn, stallations and Logistics) under APP 2- notify the cognizant HPA or Engineer 406.3 and 2-406.4 will be forwarded to the District or Division who will notify the Office of The Judge Advocate General for contracting officer.” action. Mistakes in bids cases and protests against “4. New procedures for processing pro- awards cases under the cognizance of The tests will also be published in the near Judge Advocate General under the above pro- future. In the meanwhile, the following cedures shall be forwarded by cognizant Heads procedures will apply with respect to of- of Procuring Activities directly to HQ, DA fices at the level of the HPA: (DAJA-PL) Washington, D.C. 20310.

CLE News

1. CLE Calendar. 2-4: Americans for Effective Law Enforce- ment Workshop on Police Civil Liability and JUNE Defense of Citizen Misconduct Complaints, Delaware State Bar Association, annual Jack Tar Hotel, San Francisco, CA. meeting, Wilmington Country Club, Wil- 2-4: Mississippi State Bar, annuaI meeting, mington, DE. Biloxi, MS. Idaho State Bar, annual meeting, Van- 4-6: State Bar of Georgia, annual meeting, couver, B. C., Canada. Savannah, GA. Montana Bar Association, annual meeting, 4-7: Arkansas Bar Association, annual meet- Bozeman, MT. ing, Arlington Hotel, Hot Springs, AR. The District of Columbia Bar,. annual &lo; American Society of Law & Medicine, meeting, Washington, DC. National Conference on the Medicolegal Impli- 2: Connecticut Bar Association, midyear cations of Emergency Medical Care, Statler meeting, Hartford, CT. Hilton Hotel, Washington, DC 2-3: New York State Office of Prosecutori- 10-14: American Academy of Legal Assist- a1 Services, Seminar on Trial Tactics, Hilton ants, National Seminar, Sheraton Motor Inn. Inn, North Syracuse, NY. Aberdeen, SD. DA Pam 27-50-30 41 11-13: Tennessee Bar Association, annual 23-24: PLI Workshop, Legal Problems of meeting, Four Seasons Motel, Gatlinburg, TN. Correctional, Mental Health and Juvenile De- 12-14: State Bar of South Dakota, annual tention Facilities, Ambassador Hotel, Chicago, meeting, Aberdeen, SD. IL. 23-25: PLI Workshop, Preparation of Fed- 12-15: Massachusetts Bar Association, an- eral Estate Tax Returns, Brown Palace, nual meeting, Wentworth-By-The-Sea, Ports- Denver, CO. mouth, NH. 23-28: American University Center for the 15-18: 22d National Institute on Crime and Administration of Justice, Institute for Lead- Delinquency, Minneapolis, MN ership and Organizational Development, Wash- 15-20: U.S. Civil Service Commission CLE ington, D.C. Program, Administrative Law Judges and the 25-28: Alaska Bar Association, annual meet- Regulatory Process, Williamsburg, VA. ing, Vancouver, B.C., Canada. 15-27: National College of District Attorneys 26-27: PLI Program, Land Use and En- Course, Executive prosecutor Course, Hous- vironmental Regulations, SMU School of Law, ton, TX. Dallas, TX. June 15-July 4: National Institute for Trial 27-28: New Hampshire Bar Association, an- Advocacy, First National Session, 1975, nual meeting, Mt. Washington Hotel, Bretton Boulder, CO. Woods, NH. June 15-July 11: National College of the State Judiciary, Regular Four Week Session June 29-July 11: National College of the (session I), Judicial College Building, Univer- State Judiciary, Regular Two Week Session sity of Nevada, Reno, NV. (session I), Judicial College Building, Univer- sity of Nevada, Reno, NV. 16-20: Institute on the Physical Significance of Bloodstain Evidence, Elmira College, June 29July 13: American University Cen- Elmira, NY. ter for the Administration of Justice, Interna- tional Institute on Corrections, Washington, 17-19: State Bar of Wisconsin, Annual meet- DC ing, Lakelawn Lodge, Delavan, WI. June 3O-July 1: PLI Program, “Practical Will 18-20: Minnesota State Bar Association, an- Drafting,” Benson Hotel, Reno, NV. nual meeting, St. Paul Hilton, St. Paul, MN. June 30July 3: State Bar of Texas, annual 18-20: State Bar Association of North Da- meeting, Dallas, TX. kota, annual meeting, Jamestown, ND. JULY 18-21: The Florida Bar, annual meeting, Boca Raton Hotel & Country Club, Boca 625: National College of District Attorneys Raton, FL. Course , Career Prosecutor Course, Houston, TX . 18-21: Utah State Bar, annual meeting, Hilton Hotel, Salt Lake City, UT. 8-10: U.S. Civil Service Commission CLE Program, Management Seminar for Chief Ad- 19-21: Iowa State Bar Association, annual ministrative Law Judges, Washington, DC. meeting, Des Moines, IA. 7-12: Northwestern University Short Course 19-21: Maine State Bar Association, annual for Defense Lawyers, Northwestern Univer- meeting, Samoset Treadway Resort, Rockport, sity School of Law, Chicago, IL. ME. 10-11: PLI workshop, Preparation of US 20-21: Virginia State Bar, annual meeting, Fiduciary Income Tax Return, Delmonico Ho- Pb Marriott Twin Bridge, Arlington, VA. tel, New York, NY. DA Pam 27-50-30 42 13-19: Association of Trial Lawyers of Amer- July 30-Aug 1: PLI Annual Prosecutor's ica Presentation, The National College of Ad- Workshop, St. Regis Sheraton Hotel, New vocacy, University of Southern California, Los York, NY. Angeles, CA. 31: Virginia Bar Association, midyear meet- July 13-Aug 1: National Institute for Trial ing, Greenbrier Hotel, White Sulphur Springs, Advocacy, Second National Session, 1975, wv. Boulder, CO. July 31-Aug 1: PLI Workshop, Preparation 16-17: U.S. Civil Service Commission CLE of U.S, Partnership Income Tax Return, Sir Program, Freedom of Information/Privacy Francis Drake Hotel, San Francisco, CA. Acts Seminar, Washington, DC. 18-19: PLI Workshop, Legal Problems of AUGUST Correctional, Mental Health and Juvenile De- tention, Los Angeles Hilton, Los Angeles, CA. 3-8: National College of District Attorneys Course, Prosecutor Intern Course, Houston, July 20-Aug 1: National College of the State TX . Judiciary, Graduate Session in New Trends in 3-15: National College of the State Judiciary, the Law, the Trial and Public Understanding, Regular Two Week Session (Session II), Judi- Judicial College Building, University of cial College Building, University of Nevada, Nevada, Reno, NV. Reno, Nev. July 20-Aug 15: National College of the 4-9: Northwestern University Short Course State Judiciary, Regular Four Week Session for Prosecuting Attorneys, Northwestern Uni- (session II), Judicial College Building, Univer- versity School of Law, Chicago, IL. sity of Nevada, Reno, NV. F 7-8: PLI Program, Practical Will Drafting, 21-25: Fourth Annual Institute of Law Office Americana Hotel, New York, NY. Administration, presented by Institute of Con- 7-14: ABA Annual Meeting, Montreal, tinuing Legal Education, Ann Arbor, Michi- Canada. gan, and Continuing Legal Education, Minne- apolis, Minnesota, Marquette Inn. Minneapolis, 8-10: National Association of Women Law- MN. yers, annual meeting, Montreal, Canada. 23-25: PLI Workshop, Preparation of Feder- 11-12: PLI Workshop, Preparation of US al Estate Tax Returns, Delmonico Hotel, New Fiduciary Income Tax Return, Hyatt Regency York, NY. Hotel, Los Angeles, CA. 23-27: Judicial Conference of Tenth US Cir- 14-15: PLI Program, Land Use and En- cuit Court of Appeals, Santa Fe Hilton, Santa vironmental Regulations, Stanford Court Ho- Fe, NM. tel, San Francisco, CA. 24-26: The Lawyer's Assistant: PLI Work- 14-16: The Lawyer's Assistant: PLI Work- shop for the Law Office Administrator, Para- shop for the Law Office Administrator, Para- professional and Secretary, Los Angeles Hilton professional and Secretary, Barbizon Plaza Hotel, Los Angeles, CA. Hotel, New York, NY. 15-23: National Institute for Trial Advocacy, 28-29: PLI Workshop, Discovery Tech- Northeast Regional Session, Part One, Cornel1 niques, Delmonico Hotel, New York, NY. Law School, Ithaca, NY. 29-31: U.S. Civil Service Commission CLE 17-23: Association of Trial Lawyers of Amer- Program, Seminar for Attorney Managers, ica, National College of Advocacy, Roscoe Washington, DC. Pound Building, Cambridge, MA. e" DA Pam 27-50-30 P 43 - 17-24: National Institute for Trial Advocacy, 28-30: West Virginia Bar Association, annual Southeast Regional Session, Part One, Univer- meeting, Greenbrier Hotel, White Sulphur sity of North Carolina, Chapel Hill, NC. Springs, WV. 18-20: PLI Annual Prosecutor’s Workshop, Sir Francis Drake Hotel, San Francisco, CA.

TJAGSA-Schedule of Continuing Legal Education (Active Duty Personnel) N unz ber Title Dates Length

Number Title Dates Length 5F-F1 1st Trial Attorneys’ Crs 23 Jun 75-27 Jun 75 1 wk 5F-F8 21st Senior Officer Legal Orientation Crs 30 Jun 75-3 Jul 75 3% days 5F-F9 14th Military Judge Crs 14 Jul75-1 Aug 75 3 wks 5F-F3 19th International Law Crs 21 Jul75-1 Aug 75 2 wks 5F-F11 63d Procurement Attorneys’ Crs 28 Jul75-8 Aug 75 2 wks 5F-F1 2d Management for Military Lawyers Crs 4 Aug 75-8 Aug 75 4% days 7A-713A 5th Law Office Management Crs 22 Sep 75-26 Sep 75 4% days 5F-F22 12th Federal Labor Relations Crs 29 Sep 75-3 Oct 75 5 days 5F-F23 3d Legal Assistance Crs 6 Oct 75-9 Oct 75 3% days 5F-F1 22d Senior Officer Legal Orientation Crs 28 Oct 75-31 Oct 75 3% days 5F-F 10 64 Procurement Attorneys’ Crs 10 Nov 75-21 Nov 75 2 wks (^. 5F-F25 2d Military Administrative Law 8 Dec 75-11 Dec 75 3% days Developments Crs 5F-F11 6th Procurement Attorneys’ Advanced Crs 5 Jan 76-16 Jan 76 2 wks 5F-F27 3d Environmental Law Crs 12 Jan 76-15 Jan 76 3% days 512-71D20/50 3d Military Lawyer’s Assistant Crs 19 Jan 7623 Jan 76 4% days (Criminal Law) 512-71D20120 4th Military Lawyer’s Assistant Crs 19 Jan 7623 Jan 76 4% days 5F-F1 23d Senior Officer Legal Orientation Crs 26 Jan 7629 Jan 76 3% days 5F-F10 65th Procurement Attorneys’ Crs 8 Mar 76-19 Mar 76 2 wks 5F-F 1 24th Senior Officer Legal Orientation Crs 5 Apr 76-8 Apr 76 3% days 5F-F10 66th Procurement Attorneys’ Crs 26 Apr 76-7 May 76 2 wks 5F-F52 6th Staff Judge Advocate Orientation Crs 10 May 7614 May 76 4% days 5F-F24 1st Civil Rights Crs 17 May 76-20 May 76 3% days 5F-F22 13th Federal Labor Relations Crs 24 May 76-28 May 76 5 days 5F-F32 2d Criminal Trial Advocacy 28 Jun 76-2 Jul 76 1 week 5F-F33 15th Military Judge Course 19 Jul766 Aug 76 3 wks 5F-F1 25th Senior Officer Legal Orientation Crs 26 Jul 76-29 Jul76 3% days 5F-F51 3d Management for Military Lawyers Crs 9 Aug 76-13 Aug 76 4Mdays

JAG Personnel Section Front: PP&TO, OTJAG

1. Retirements. On behalf of the Corps, we offer our best wishes to the future to the following P individuals who retired 30 April 1975: DA Pam 27-50-30 44 -. Colonel Joseph C. Van Cleve, Jr CW2 Byron L. Bailey CW3 James A. Warfield

2. Orders requested as indicated: COLONELS Name From To De FIORI, Victor USALSA, Falls Church, Va OTJAG HARVEY, Alton H. Stu Det, ICAF, Ft McNair, Wash USALSA, Falls Church, Va PECK, Darrell L., TJAGSA, Charlottesville, Va Stu Det, AWC, Carlisle Bks, Pa

LIEUTENANT COLONELS FONTANELLA, David A OTJAG Stu Det, ICAF, Ft McNair, Wa HOLDAWAY, Ronald USALSA, Falls Church, Va OTJAG La PLANT, Earl M. 2d Armored Div, Ft Hood, Tx USALSO, w/sta Ft Hood, Tx LYMBURNER, John 9th Inf Div, Ft Lewis, Wa USA CID Agency, Wash DC OVERHOLT, Hugh R OTJAG Stu Det, ICAF, Ft McNair, Wa POYDASHEFF, Robert USA Engr Center, Ft Belvoir, Va Stu Det, AWC, Carlisle, Pa SUBROWN, James Infantry Center, Ft Benning, Ga USAG, Ft Sheridan, I1

MAJORS BADAMI, James A OTJAG USA Elm, OSD, Wash DC

BOZEMAN, John R Stu Det w/sta Univ of Calif OTJAG F Berkely, Ca BROOKSHIRE, Robert 1st Inf Div, Ft Riley, Ks USA MP Sch, Ft McClellan, A1 CARMICHAEL, Harry Stu Det, w/sta Geo Wash Univ OTJAG COLBY, Edward L USALSA, Falls Church, Va 24th Adv Class, TJAGSA, Char lottesville CREEKMORE, Joseph OTJAG Stu Det, USAC&GSC, Ft Leav- enworth DY GE RT, George Stu Det w/sta Univ of Va S-F, TJAGSA, Charlottesville, Va FELDER, Ned E USALSA w-sta Ft Eustis, Va USALSA, Falls Church, Va FLEMMING, Herbert HQ Ft Huachuca, Arizona HQ EAMTMTS, Bayonne, N.J. FOREMAN, LeRoy USAG, Ft Hamilton, NY Stu Det, USAC&GSC, Ft Leav- enworth GILLIGAN, Francis S-F, TJAGSA, Charlottesville, Va USA Sch Tng Cen, Ft McClel- lan, A1 HUNTER, Nancy A S-F, TJAGSA, Charlottesville, Va USALSO, wlsta Ft Ord, Ca MALINOSKI, Joseph OTJAG Stu Det, USAC&GSC, Ft Leav- enworth McHUGH, Richard Sch/Tng Cen, Ft McClellan, Al Stu Det, USAC&GSC, Ft Leav- enworth NICHOLS, John J USALSA, Falls Church, Va 24th Adv Cls, TJAGSA, Char- lottesville NU", Robert. M SAFEGUARD Cmd, Huntsville, A1 Stu Det, USAC&GSC, Ft Leav- enworth ROBERTS, Eldon S-F, TJAGSA, Charlottesville, Va 24th Adv Cls, TJAGSA, Char- lottesville - I

DA Pam 27-50-30 45 r” Name From To SHERWOOD, John Stu Det, wlsta Univ of Michigan USALSA, Falls Church, Va VAN BROEKHOVEN, Stu Det, wlsta Geo Wash Univ USALSA, Falls Church, Va Rollin WATKINS, Charlie USAG, Ft Stewart, Ga S-F, USMA, West Point, NY WHITE, Charles S-F, TJAGSA, Charlottesville, Va Stu Det, AFSC, Norfolk, Va WOODWARD, Joe L USALSA, wlsta Ft Meade, Md USALSA, wlsta Ft Bragg, NC CAPTAINS ARTZER, Paul E USA Combd Arms Cen, Ft Leaven- 24th Adv Cls, TJAGSA, Char- worth lottesville BARRY, Bruce C USA Security Agcy, Europe Europe (VI1 Corps) BARRY, Michael USAG, Ft Ben Harrison, Indiana OTJAG BOWE, Thomas G 4th Inf Div, Ft Carson, Co Europe BOYNTON, Frederick USALSA, Falls Church, Va HQ, FORSCOM, Ft McPherson, Ga BROWN, Patrick 4th Inf Div, Ft Carson, Co 24th Adv Cls, TJAGSA, Char- lottesville BROWN, Stanley MACTHAI Sup Gp. Thailand USA Am Systems Cmd, St Louis, Mo BRYANT, Edward SAFEGUARD Cmd, Huntsville, AI 4th Inf Div, Ft Carson, Co BURT, Thomas W USA Medical Cmd, Europe S-F, USMA, West Point, NY CHERRY, Mack H USALSA, Falls Church, Va MACTHAI Sup Gp. Thailand CHIMINELLO, Phillip USA Comb Dev Exp Cen, Ft Ord, USA Academy of Health Science CA Fort Sam Houston, Tx COLLIER, Charles QM Center, Ft Lee, Va USA QM Sch, Ft Lee, Va DENOOYER, LeRoy Ft Leonard Wood, Mo S-F, USMA, West Point, NY EARL, James D Def Lang Inst, Monterey, CA Europe FAGAN, Peter T USA Crim Investigation Cmd, Stu Det, wlsta Geo Wash Univ Wash DC FOSTER, Paul L HQ 1st Army, Ft Meade, Md S-F, USMA, West Point, NY GALE, Ronald E MACTHAI, JUSMAG Electronics Cmd, Ft Monmouth, NJ GATES, Elmer A USALSA, wlsta Ft Knox, Ky 24th Adv Cls, TJAGSA, Char- lottesville GRAHAM, David E S-F, TJAGSA, Charlottesville, Va Europe HARROLD, Dennis Korea USA Admin Cen, Ft Ben Harrison, In HEATH, James E USALSA, Falls Church, Va USA Admin Cen, Ft Ben Harrison, In HEDICKE, Robert Beaumont Gen Hosp, El Paso, Tx 4th Inf Div, Ft Carson, Co HOPKINS, Gary L Ofc of Def Sup Svc, Wash DC 24th Adv Cls, TJAGSA, Char- lottesville INGRAM, Allen R Fitzsimons Gen Hosp, Denver, Co USA Arsenal, Rocky Mt., Co JACKSON, Robert 8th USA Area Cmd, Korea HQ USA Combat Devel Exp Cmd, Fort Ord, Ca LABOWITZ, Daniel S-F, USMA, West Point, NY Stu Det, Inst of Pathology, WRAMC LAUBE, Garey L Electronics Cmd, Ft Monmouth, NJ 24th Adv Cls, TJAGSA, Char- lottesville r‘ LEMBE RGE R, Jerome Armor Cen, Ft Knox, Ky USA Armor Sch, Ft Knox, Ky _" .. ------I-

DA Pam 27-50-30 46 P-. Name From To

MARTIN, John B USAG, Ft Riley, Ks , USA Aero Depot, Corpus Christi, Tx MAXSE, Paul J HQ FORSCOM, Ft McPherson, Ga USA QM Cen, Ft Lee, Va MOORE, Stephen HQ MDW, Washington, DC Def Lang Inst, Monterey, Ca MORGAN, Donald USA Depot, Corpus Christi, Tx USAG, Ft Riley, Ks MORGAN, Jack H Korea USA Combined Arms Cen, Ft. Leavenworth MURDOCK, Henry USA Sch/Tng, Ft McClellan, A1 USA Secty Agency, Europe OSGARD, James L USAG, Ft Meade, Md SF, USMA, West Point, NY ROBERSON, Gary Jt Casualty Resolution Cen, 500th Mil Intel Gp, Ft APO SF 96310 Shafter, Hi SAYLES, Jeffrey USAG, Ft s. Houston, Tx 24th Adv Cls, TJAGSA, Char- lottesville SCHINASI, Lee D Air Def Cen, Ft Bliss, Tx USALSA, Falls Church, Va SHARPHORN, Daniel OTJAG S-F, USMA, West Point, NY SHORT, Daniel OSD, Washington, DC Inst of Pathology, WRAMC SKLAR, David A USAG, Pres of San Francisco HQ I11 Corps, Ft Hood, Tx TEELE, Arther E 2d Inf Div, Korea HQ XVIII Abn Corps, Ft Bragg, NC VISSERS, Christian Armor Cen, Ft Knox, Ky 24th Adv Cls, TJAGSA, Char- lottesville I WILLIAMS, Herbert Inf Sch, Ft Benning, Ga 24th Adv Cls, TJAGSA, Char- \ lottesville i YUSTAS, Vincent Armor Center, Ft Knox, Ky 24th Adv Cls, TJAGSA, Char-- lottesville ZUCKER, Karin W USA Engr Cen, Ft Belvoir, Va Inst of Pathology, WRAMC, DC

3. Promotions. Congratulations to the following officers who were promoted: To LTC AUS Raymond K. Wicker

To LTC RA Wayne E. Alley William R. Mullins Thomas H. Davis James A. Mundt Joseph J. De Francesco Hugh R. Overholt Alton H. Harvey Robert S. Poydasheff Edward A. Lassiter Simon Y. Rodriguez Jack M. Marden Byron S. Spencer William P. McKay Bruce E. Stevenson James A. Mounts Sebert L. Trail

From CW2 to CW3 Ray E. Rauschenberg From E-8 to E-9 James H. Dawson Hiroshi Takenaka Duconz Hancock William Wooden Charles E. Pinkham James M. Cunningham Selvyn I. Ritzberg ,- ~ -1 DA Pam 27-50-30 47 4. General Officer Selection. Congratulations The present schedule for FY 76 is as follows: to the following officers selected for Brigadier Class No. Report Close Input General, AUS: 50 1 2 Jul 75 11 Sep 75 47 Victor A DeFiori 1 6 Aug 75 16 Oct 75 47 Joseph N. Tenhet, Jr. 2 10 Sep 75 20 Nov 75 47 3 7 Oct 75 18 Dec 75 47 5. Legal Clerk’s Course. On 1 July 1974 (FY 4 7 Jan 76 17 Mar 76 47 75), the Legal Clerk Course at the Adjutant 5 11 Feb96 21 Apr 76 47 General’s School, Fort Benjamin Harrison, In- 6 18 Mar 76 26 May 76 47 diana, was extended from seven weeks, three 7 21 Apr 76 30 Jun 76 47 days duration to nine weeks, four days. The 8 26 May 76 4 Aug 76 47 extension of the course length was the result of 502 6 Jun 76 12 Aug 76 48 the change in Army-wide clerical training wherein the clerical skills necessary in a partic- Total FY -76...... 471 ular MOS are now taught at the MOS-producing 6. Admin Law Note-Rebuttal Rights in Ap- school and not, as in the past, at the various plications for Conscientious Objector Status. training centers. Therefore, as of 1 July 1974, Although AR 60643 (12 June 1974) does not the majority of Legal Clerk students enrolled expressly require inclosure of a waiver of were recent graduates of Basic Training pos- rebuttal in cases where those rights are not sessing MOS 09B. Those clerical skills, includ- exercised UP paragraphs 2-5k and 2-7c, ab- ing typing, essential to a legal clerk have been sence of aizy statement signed by the applicant integrated into the expanded course. concerning rebuttal leaves the record incom- The following prerequisites are outlined in plete, and allows an inference that an opportu- DA Pam 351-4: member of the active Army or a nity to rebut was not afforded the applicant, a Reserve component; standard score of 100 or misunderstanding occurred, or a statement of higher in aptitude area CL; must have credit for rebuttal was submitted but not inclosed. There- two years high school level English; nine fore, review for legal sufficiency UP paragraph months or more of active duty service time 2-6a should include a check for an appropriate remaining upon completion of the course; no statement. It should be emphasized that the record of military or civilian convictions for right of rebuttal applies to the entire record other than minor traffic offenses; and no secu- sent forward, including comments and recom- rity clearance required. mendations which seem favorable to the appli- cant. Furthermore, anyone in the field may apply for the Legal Clerk Course in the same manner 7. Geneva Convention Films. Training Film as for any other service school. All SJA’s should 21-4228, “Geneva Conventions and the Sol- encourage applicants to attain basic typing dier”, has been cleared for public, nonprofit proficiency through their local education center screening and sale. Public inquiries received or otherwise prior to submitting a request to concerning the purchase of this film should be attend the Legal Clerk Course. This action will, referred to the Motion Picture .Distribution and in many cases, prevent the recycling of students Depository Division at Tobyhanna, Pennsyl- and the attendant increase in expense and loss vania 18466, the agency responsible for DA film of manpower tb the command concerned. distribution.”

Current Materials of Interest Articles. Poydasheff and Suter, “Military Justice?- Lieutenant Colonels Robert S. Poydasheff and Definitely!” 44 TUL. L. REV.588 (March 1975). William K. Suter, JAGC, attempt to dispel DA Pam 27-50-30

48 s< some of the lingering misconceptions of military 1975) p. 34. Captain David J. Matthews I11 justice by summarizing and recapitulating the examines the Code in light of the Vietnam basic rights of an accused under military crim- aftermath. inal law. Soler, “Of Cannabis and the Courts: A Criti- Graham, “The 1974 Diplomatic Conference on cal Examination of Constitutional Challenges to the Law of War: A Victory of Political Causes Statutory Marijuana Prohibitions,’’ 6 CONN.L. and a Return to the ‘Just War’ concept of the REV. 601 (Summer 1974). Eleventh Century,” 22 WASH. & LEE L. REV. 25 (Winter 1975). Captain David E. Graham, Johnson, “The Inflation Crunch and Relief for JAGC, examines the events leading to the 1974 Government Contractors Under Public Law Conference, and Conference itself, and the 85-804,” 22 WASH. & LEE L. REV. 5 (Winter optional causes of U.S. action at the 1975 1975). Diplomatic Conference. Plessu, “The When and How of the Freedom Bond, “Amended Article 1 of Draft Protocol I of Information Act,” 21 PRAC.LAW. 61 (April of the 1949 Geneva Conventions: The Coming of 1975). Age of the Guerilla,” 22 WASH. & LEE L. REV. Perr, “Blood Alcohol Levels and ‘Diminished 65 (Winter 1975). James E. Bond replies to Capacity’,’’ The Journal of Legal Medicine, Captain David E. Graham’s reservations con- Volume 3, Number 4 (April 1975) p. 28. cerning Article I. Norton, “United States Obligations Under Moore, “The Blood Alcohol Breath Test: A Status of Forces Agreements: A New Method of Look At Its Admissibility,” 6 U.W. LOS Extradition?” 5 GEORGIAJ. INT’L& COMP.L. 1 ANGELESL. REV. 11 (Winter 1974). (1975). Major William J. Norton, JAGC, exam- Note, “Masters and Magistrates in the Fed- ines U.S. obligations to return to various re- era1 Courts,” 88 HARV L. REV. 779 (February ceiving states those personnel encompassed by 1975). a SOFA, whether civilian or military, who had departed the receiving state before its criminal Flower, “Photographs in the Courtroom- process has been completed. Getting It Straight Between You and Your Cundick, “International Straits: The Right of Professional Photographer,” 2 N. KY, ST. L. F. Access,” 5 GEORGIAJ. INT’L& COMP. L. 107 184 (Winter 1974-75). . (1975). Major R. Palmer Cundick, JAGC, sug- gests appropriate elements for a Law of the Sea Altman and Weil, “Rewards for Associate treaty providing the framework for resolving Lawyers-Non-Salary Motivators,’’ 21 PRAC. present and future problems respecting naviga- LAW. 69 (April 1975). tion in international straits. Sohn, “Voting Procedures in United Nations Matthews, “Is The Code of Conduct Viable?” Conferences for the Codification of Internation- Armor, Volume 84, Number 2 (March-April al Law,” 69 AM. J. INT’L L. 310 (April 1975). By Order of the Secretary of the Army:

Official: FRED C. WEYAND General, United States Amy VERNE L. BOWERS Chief of Staff Major General, United States Amy The Adjutant General