Bulletin No. 18 Oetober, 1954 The Judge Advocate

Published By .JUDGE ADVOCATES ASSOCIATION An affiliated organization of the American Bar Association, composed of .lawyers of al~ components of the Army, Navy, and Air Force

312 Dearlke Building Wasblagto• 5, D. c. JUDGE ADVOCATES ASSOCIATION

Officers for 1954-1955 GORDON SIMPSON, Texas______- President VERN W. RUBLE, Indiana______.First Vice President ROBERT G. BURKE, New York______Second Vice President FREDERICK BERNAYS WIENER, District of Columbia_ ecretaru JOHN W. AHERN, District of CoJumbia_____,______Treasurer JOSEPH F. O'CONNELL, JR., Massachusetts Delegate to A. B. A . Directors Nicholas E. Allen, Md.; Louis F, Alyea, D. C.; Joseph A. Avery, Va.;" George W. Bains, S. C.; Edward B. Beale, Md.; WilliamH. Beck, Jr., Ga.; Oliver P. Bennett, Iowa; Ralph G. Boyd, Mass.; Eugene M. Caffey, D. C.; Charles L. Decker, Va.; Reginald Field, Va.; Osmer C. Fitts, Vt.; Edward F. Gallagher, D, C.; Abe McGregor Goff, D. C.; Reginald C. Harmon, D. C.; William J. Hughes, Jr., D. C.; J. Fielding Jones, Va.; Thomas H. King, D. C.; Arthur Levitt, N. Y.; Ira H. Nunn, D. C.; Allen W. Rigsby, Col.; John Ritchie, III, Mo.; Fred Wade, Pa.; S. B. D. Wood, D. C.; Clarence L. Yancey, La. Executive Secretary and Editor RICHARD H. -,.,0VE Washington, D. C.

Bulletin No. 18 October, 1954

Publication Notice The views expressed in articles printed h~rein are not to be regarded as those of the Judge Advocates Association or its officers and directors or of the editor unless expressly so stated.

TABLE OF CONTENTS I PAGE The Annual Meeting -•------~------­ 1 Progress Under the Uniform Code ------~--­ 10 The NATO Status of Forces Agreement ------15 Intoxice,ting Liquors on Military Installations_____,______20 Ceremonial Session of CMA at Chicago ------~·---- 27 N otes on Current Procurement Opinions______29 Recent Decisions of the Court of Military Appeals. 37 Book Review ------­ 47 What the Members Are Doing______r------48 Supplement to Directory of Members ------~·------52

Published by the Judgi Advocates Associat~on, an affiliated orga~iza­ tion of the American Bar 'Association, composed of lawyers of all com­ ponents of the Army, Navy, and Air Force. 312 Denrike Building, Washington 5, D. C. - STerling 3-5858 TllE ANNUAL ~IEETING On August 17, 1954, at the Univer­ recn1tly rdurned from Europe after sity Club, Chicago, Illinois, the Asso­ invEstigating the resurgence of ciation held its annual banquet. More Communism and Fascism, and 8poke than 200 members and their guests favorably for legislation directly out­ attended. The President, Col. Joseph lawing the Communist Party in' the F. O'Connell, Jr., of Boston, Massa­ United States. ..v chusetts, presided, and served as Certificates were presented to the toastmaster. Col. O'Connell intro­ past Presidents of the Association: duced the honored guests at the Colonel Howard A. Brundage, Gen­ head table, which included Judge and eral Herbert M. Kidner, General Mrs. Robert E. Quinn, Judge and Mrs. Ralph G. Boyd, Colonel William J. George W. Latimer, and Judge and Hughes, Jr., Colonel Alexander Pir­ Mrs. Paul W. Brosman of the United nie, Colonel George Hafer, Colonel States Court of Military Appeals; John Ritchie, III, and General Oliver Rear Admiral Glass, Commandant of P. Bennett. the. Ninth Naval District; Rear Ad­ During the afternoon, preceding the miral Ira H. Nunn, The Judge Ad­ banquet, the Association had spon­ vocate General, Navy; Major General sored a special ceremonial session' of R. C. Harmon, The Judge Advocate the Court of Military Appeals, which General, Air Force; Major General C. B. Mickelwait, The Deputy Judge was convened at 3:00 p. m. in Judge Advocate General, Army; Col. and. Barnes' Court Room in the Federal Mrs. Robert Lancefield, Judge Advo­ Court House. More than 325 lawyers cate, Fifth Army, and Capt. William were admitted to the bar of the Court. Mott, Judge Advocate, Great Lakes The annual business meeting of the Naval Station. Dinner music was Association was convened at 4:00 provided by an orchestra from the p. m. on August 18, 1954, at the head­ Fifth Army Band, and entertainment quarters of the Chicago Bar Associa­ furnished by the 60 man Blue Jacket tion. The meeting was called to order Choir of the Great Lakes Naval Sta­ by Col. Joseph F. O'Connell, Jr., tion. President, who presided. Col. O'Connell introduced the Hon­ Mr. Cody Fowler of Tampa, Flor­ orable Thomas J. Dodd, member of ida, past President of the American Congress from the State of Connecti­ Bar Association, was introduced as a cut, who spoke upon the subject of member of the subcommittee of the thz need · for direct legal action Hoover Commission studying the against Communism rather than the matter of the furnishing of legal past system of indirect approaches to services to the Armed Forces both by the problem. Congressman Dodd military lawyers and civilian lawyers. spoke briefly of his committee, which He outlined the scope of the inquiry 1 ~

>-3 ::r !I> ..... r:: IJ "' > ""g~ w Pl ~ U. S. Navy photograph ..... Top legal officers of the Armed Forces at the Annual Banquet: I. r., Maj. Gen. Reginald C. Harmon, 0 to r:: TJAG, Air; Rear Adm. Ira H. Nunn, TJAG, Navy; and Maj. Gen. Claude B. Mickelwait, Deputy TJAG, ... Army. [ The Judge Advocate Journal 3

and stated that the purpose of the thirty days of that delay (processing subcommittee is to seek the improve­ time had been increased by thirty­ ment, better coordination, and greater four days over that of the Elston efficiency of legal services to the Act) is the statutory period within Armed Forces. Mr. Fowler solicited which the accused may take an ap­ advice of the members of the Asso­ peal to the Court and that certainly ciation and stated that when the in­ such a slight delay was not too much vestigation is completed and corre­ for the consideration of another ap­ lated, its conclusions will be made pellate agency. Judge Latimer fur­ available to the Association for fur­ ther stated that the number of re­ ther study and comment. versals made by the Court is not a The President then called upon criterion of the success of the present General Harmon, The Judge Advocate sysem, but a more important indica­ General of the Air Force, for a report. tion of the success is to be seen in Gen. Harmon spoke at length compar­ improvement of the quality of trials ing the administration of justice un­ as reflected by the records of trial der the Uniform Code of Military Jus­ coming before the Court. On that tice and under the Elston Act. His point Judge Latimer expressed the conclusions were that there is no im­ belief that the Court was largely re­ provement in the quality of justice, sponsible for this improvement in the but that the new system is much more quality of justice at the trial level. expensive; therefore, the Uniform With respect to the increased costs of Code of Military Justice is not func­ administering the Uniform Code of tioning as it should, and that it would Military Justice,' Judge Latimer ar­ be desirable to return to a system gued that we do not weigh dollars more comparable to its predecessors. against individual liberty, but on the A full statement of Gen. Harmon's contrary we must instill in the soldier remarks is contained in this issue of faith in the system of military justice. the Journal. Judge Latimer referred to his dis­ At this point, Judge Latimer, Asso­ tinguished colleagues on the Court ciate Judge of the Court of Military and stated that it was his belief that Appeals, by way of report for the their work was a credit to the United Court made a reply to Gen. Harmon's States and the military services and remarks. Judge Latimer stated that had resulted in no impairment of the full debate upon the present system disciplinary powers of the services. of military justice as compared with Since the Court started in September, its predecessor systems had been con­ 1951, he reported that 5,412 cases had ducted in the Congress upon the broad come up for the consideration of the question of whether justice in the Court, of which 3,667 came from the Services should be strictly military or Army, 879 from the Navy and Marine governed to some extent by civilians. Corps, 722 from the Air Force, and 16 He acknowledged that there were from the Coast Guard. The Judge some delays in the administration of Advocates General had certified 175 of justice caused by the existence of the those cases to the Court and 22 were Court, but reminded that at least considered as mandatory death cases. ~

::r>-3 (I> .... i: i:i.. oq ti> > ~ 0 ...co ....~ U. S. Navy photograph 0 A general view of the Annual Banquet with head table in the background. i:.... §. The Judge Advocate Journal 5

All other cases were considered on that there are many doubts and un­ the petition of the accused. Of all certainties among those administer­ those cases, 4,532 had been processed ing it. Therefore, the Court has been by the Court within a thirty-day pe­ required to spend considerable time in riod. That the procedures of the instructing those persons charged Uniform Code of Military Justice are with the administration of the Code. time consuming, Judge Latimer ad­ One notable improvement, he said, mitted; but, he stated that the Court under the new system is reflected in had formed its own civilian commit­ the records of trial, which show that tee and also a committee of the both prosecution and defens:! are be­ Judges with The Judge Advocates ing conducted in an excellent manner General to study ways and means of -cases are being tried on both sides improving the Court and its pro­ in a truly lawyer-like manner. He cedures and that they had come up noted, too, that boards of review are with some specific recommendations writing fewer memorandum opinions which would reduce the time element and are putting in much more study without a sacrifice of individual and work on the cases, all of which rights. Judge Latimer reiterated is reflected in the quality of their that the Congress had determined op1n10ns. He specifically defended that civilian judges should have the innovations concerning the functions final say in matters of military jus­ of the law officer. tice and urged that the Court needs Judge Latimer expressed very the support of all military and civilian strongly his belief in the value of the lawyers and that that support had contribution of the Uniform Code of been forthcoming from most quar­ Military Justice to military justice ters. and the role of the Court of Military Judge Latimer then proceeded to Appeals. He said that he is satisfied outline the work of the Judges ob­ that the Court has a place in our serving that Judge Quinn in the past judicial system and is here to stay. thirteen months had written 101 Col. O'Connell then called upon opinions, Judge Brosman had written Admiral Nunn, The Judge Advocate 126 opinions, and that he had written General of the Navy, to report. The 115 opinions. In the same time, an Admiral declined to enter the debate average United States Supreme Court and said that the Navy was not hav­ Judge would write 10 or 12 opinions, ing too much difficulty with military according to Judge Latimer. He ad­ justice, although it would prefer a mitted that they do not get all the restoration of the old Articles for the Constitutional and difficult and in­ Government of the Navy. He stated volved problems that the Supre,ne that the Uniform Code of Military Court receives, but stated that the Justice has created an adversary sys­ Court has very many complicated and tem of ju'risprudence and it is prob­ Constitutional problems, too. Its job ably the best system of litigation. is further complicated, he said, by Heretofore, the Navy had used a pa­ the fact that the present system is a ternalistic system and it worked, as new system of j~stice and law and far as he observed, all right. He did 6 The Judge Advocate Journal The Judge Advocate Journal 7 observe that the new Code in many Gen. Mickelwait stated that this spe­ cases makes criminals of young men cial relief came after his participation where they were merely delinquents in the successful defense of the under the earlier system, pointing out United States after seven long years that 80% of the Navy cases are in these cases, but that undoubtedly merely the result of some form of ab­ the Secretary of the Army will be re­ senteeism. The old paternalistic sys­ quired to investigate and make tem imposed by the Articles for the awards, all of which will be another government of the Navy placed Upon special project for JAGO, Army. the Commanding Officer a need for Gen. Mickelwait stated that the the highest virtue and the finest ex­ school at Charlottesville is expanding ample. He observed that the spirit and paying particular attention to the of the military permeates also the training needs of reserve officers, legal profession and that any system particularly through the USAR of justice established will in operation schools. He announced that on 19 serve substantial justice. September, there will be a conference General Mickelwait, The Deputy of Judge Advocates from all over the .Judge Advocate General of the Army, world to be held at Charlottesville for was called upon by the President to one week. make a report. Gen. Mickelwait The Report of the Board of Tellers stated that he did not wish to engage was read and the following were an­ in statistics or philosophy, but merely nounced to have been elected to the wished to state that the Army is doing offices set opposite their names: its very best to comply with the Uni­ President - Col. Gordon Simpson, form Code of Military Justice and the Texas decisions of the Court of Military First Vice President-Col. Vern W. Appeals. He stated that JAGO has Ruble, Indiana recently created a new international Second Vice President-Capt. Robert law division to meet the impact of G. Burke, New York legal questions arising from our in­ Secretary-Col. Frederick Bernays ternational associations and that the Wiener, Washington, D. C. training division is now conducting Treasurer-Lt. Col. John W. Ahern, instruction in international military Washington, D. C. law preparatory for service in foreign Delegate to the American Bar Asso­ military. situations. Gen. Mickelwait ciation-Col. Joseph F. O'Connell, stated that it seems that the Army's Jr., Massachusetts JAGC is always burdened with some special project and until recently they BOARD OF DIRECTORS were involved in the Army-McCarthy hearings, rendering assistance to Mr. Navy Welch, Army counsel. He also stated Capt. George W. Bains, South Caro­ that the Congress is very apt to pass lina a special relief bill for those who suf­ Lt. Col. J. Fielding Jones, Virginia fered death, injury, and property Capt. S. B. D. Wood, Washington, damage in the Texas City disaster. D. C. 00

::r~ ID ..... =p.. (lq ID > ~ .....~ ID ..... U. S. Navy photograph ~ The Great Lakes Blue .Jacket Choir which entertained at the Annual Banquet. ., e.::t The Judge Advocate Journal 9

Army Col. Allen W. Rigsby, Colorado Col. Joseph A. Avery, Virginia Col. Fred Wade, Pennsylvania Col. Edward B. Beale, Washington, D. C. In addition to the above elected of­ Col. William H. Beck, Jr., Georgia ficers and Directors, the governing Gen. Ralph G. Boyd, Massachusetts body of the Association will include Col. Charles L. Decker, Virginia in the current year Gen. Oliver P. Lt. Col. Reginald Field, Virginia Bennett of Iowa and Col. John Col. Osmer C. Fitts, Vermont Ritchie, III of Missouri, past Presi­ Lt. Col. Edward F. Gallagher, Wash­ dents, and The Judge Advocates Gen­ ington, D. C. eral of each of the services, Admiral Col. Abe McGregor Goff, Washington, Ira H. Nunn, Navy, Major General D. C. Eugene M. Caffey, Army and Major Col. William J. Hughes, Jr., Wash­ General Reginald C. Harmon, Air ington, D. C. Force. Col. Arthur Levitt, New York Lt. Col. Clarence L. Yancey, Louisiana At the end of the meeting, Gen. Mickelwait took the floor in support Air of a resolution seeking active support Lt. Col. Nicholas E. Allen, Washing­ of the NATO status of forces agree­ ton, D. C. ment, particularly in the light of cur­ Lt. Col. Louis F. Alyea, Washington, rent criticism arising out of the Keefe D. C. case. Gen. Mickelwait's remarks are Col. Thomas H. King, Washington, set forth at length in this issue of D. C. the Journal.

3ln JrNemoriam

The members of the Judge Advocates Association profoundly regret the passing of the following members whose deaths are here reported and extend to their surviving families and relatives deepest sympathy: Col. Vern W. Ruble, USAF-Res., of Bloomington, Indiana, who died a·s a result of injuries received in an automobile accident on September 14, 1954. Col. Ruble had long been a member of the Association and at his death was its First Vice President. Col. Frederick J. Lotterhos of Jackson, Mississippi, who died January 13, 1954. At his death, Col. Lotterhos was serving as Associate Judge of the Supreme Court of Mississippi. . Progress Under the Unifor111 Code By Major General Reginald C. Harmon *

This is the sixth time I have ap­ that capacity, has or will have the peared before the annual meeting of experience of administering all three your Association as Judge Advocate systems of military justice in ex­ General of the Air Force. In order istence in recent times, the Articles that your rejoicing may not be pre­ of 1920 as implemented by the 1928 mature in anticipation that this may Manual, the amended Articles com­ be my last appearance, I shall have monly known as the Elston Act as to inform you that if the Lord is will­ implemented by the 1949 Manual, ing your indulgence will have to last and the Uniform Code of Military for two more annual meetings after Justice as implemented by the 1951 this one. If I live, keep my health, Manual, I feel it is my duty to you and am not fired in the meantime, and the people you represent, in re­ I shall serve two more years in this porting on our progress under the capacity and unless you change your Uniform Code, to make some com­ policy about inviting all three of us parison between that and our prog­ to speak, my appearances will con­ ress under the system which immedi­ tinue for that period. ately preceded it. I always feel that these talks at After all, the legal department I your annual business meeting are head in the Air Force is your legal somewhat in the nature of annual re­ department as much as mine and the ports to the stockholders. While military service it serves is also yours your membership only comprises a as well as mine. You and the people small percentage of the 160 million you represent contribute the money stockholders of the outfit which em­ for their support. Therefore, it is to ploys us, the government, you repre­ the best interest of all of us to know sent many others, not only in your the real facts concerning the system capacity as practicing lawyers but in under which we operate. your capacity as members and officers These legal departments provide of an organization of military lawyers the legal service for the military es­ to which the public should look for tablishment of the country. The ef­ leadership in the field of military law. ficiency of that service and the Since I happen to be the only Judge adequacy of the system of military Advocate General of any service past, justice we use will have much to do present or probably future, who, in with the effectiveness of the military

*The Judge Advocate General of the Air Force. An address delivered at the Annual Meeting of the Judge Advocates Association at Chicago on August 18, 1954. 10 .. The Judge Advocate Journal 11 establishment. At the same time, as 0.4 of 1% of all cases reviewed by I have told you before, in a freedom­ boards of review were reversed by the loving democracy such as ours, our Judicial Council. During the third methods as well as our system must year under the Code, approximately be in full conformity with the funda­ 0.1 of 1% of all such cases were re­ mental principles of human rights versed by the Court of Military Ap­ under which our Nation was founded peals. This last year, the Air Force and under which it has thrived. The had 4, 795 cases received by my office efficiency of operation of the military in Washington for review by boards establishment and the noble principles of review. In each and every one of of the Nation it serves are both of these cases the accused had a right to tremendous importance. One cannot petition the Court and did so in 365 be rncrificed for the sake of the other. cases. With the exception of the few As many of you know, during the still pending, five have been reversed entire period since the war when by the Court. Two additional cases there has been much discussion and were reversed, in which the accused many hearings on the reformation of did not petition the Court but which our system of military justice, I have I certified to it on the ground that I been one of the few military men who did not agree with the opinion of the has been perfectly willing to admit boa~·d of review myself. that there were defects and abuses in I should like to invite your atten­ the old system and that reform was tion to the fact that under the Uni­ in order, much in the field of admin­ form Code, not only can the Judge istration and some in the field of Advocate General certify to the Court statutory change. Now, I am equally but the accused has a right to petition willing to admit to the inadequacies the Court also, whereas under the of our present system. Elston Act, the accused did not have While it would be difficult to com­ the right to petition the Judicial pare the results under the first sys­ Council. In spite of this, an analysis tem with those of the last two, I do of the figures I just gave you will think it necessary to make some com­ demonstrate that the rights of the parison between our operation under accused were just as well protected the present system and that under under the Elston Act as under the the system which immediately pre­ Uniform Code of Military Justice. ceded it, which do lend themselves to Now we have heard a lot of talk comparison. about the unreasonable and imperious I should like to compare the results attitude of convening authorities gen­ of the last year under the Elston Bill erally. As I have told you before, I with those of the third year under will be the first to admit that things the Uniform Code which ended May were not perfect on that front under 31st of this year. Both systems had the Articles of 1920. However, the been in operation similar lengths of statistics show that during the last time at the beginning of each of the year of operation under the Elston periods under comparison. During Act convening authorities reduced the · last year under the Elston Bill, confinement in 25% of the cases, 12 The Judge Advocate Journal while under the Code they reduced under the Code, I should like to com­ confinement in 18% of the cases. pare the relative costs of the two sys­ Convening authorities suspended the tems as well as the processing time execution of punitive discharges dur­ under each. The Judicial Council cost ing the last year under the Elston Act us about $650 for office space and in 24% of the cases and during the $25,290 a year for personnel salaries. last year under the Code, in 28% of Since the three general officers in the the cases. I believe these figures Judicial Council all had full time jobs show that the attitude of convening exclusive of their Judicial Council authorities as indicated by their ac­ work, no part of their salaries has tion, has remained about the same in been charged to this function. s(} the two periods. If their attitude leaving that out, the total cost was was unreasonable and imperious un­ $25,940 per year to the Air Force. der the Elston Act, the Uniform Code Under Public Law 458 of the 83rd has not done anything to change it. Congress, the appropriation for the However, I might say that I do not Court of Military Appeals for this think it was unreasonable in either year is $320,000. Since the Air Force period even though it may have been is one of the three major participants, in some instances earlier. it should be charged with approxi­ The Judge Advocate General re­ mately $100,000 a year. The Appel­ duced confinement in 5% of the cases late Counsel's maintenance and utility during the last year under the Elston costs for office space is $3,010 per Act and in 1;~ of 1 % of the cases year and personnel salaries $149,130, during the last year under the Code. making a total of $152,140, which He suspended the execution of dis­ added to the $100,000 Air Force share charges in 6% of the cases during the of the salaries and expenses of the last year under the Elston Act and Court, makes a cost of operation un­ in only 3% of the cases during the der the Code of over a quarter of a last year under the Code. Now I million dollars, or approximately ten hope you will not jump to the conclu­ times the cost of operation under the sion that the attitude of the Judge Elston Act. This does not include Advocate General has become more rent for office space for Appellate imperious in the passing years. It Counsel. This difference in cost does may be self-serving to say this, but I not take into consideration the many believe the attitude remained the other added people required by the same but due to the inexperience of Code in addition to those added for the personnel in the Judge Advocate Appellate Counsel. General's Department during the I am sure all of you will concede earlier period, adjustments were prob­ that processing time is an important ably more needed then. factor in the efficiency of the military Now that we have had an oppor­ service. During the last year under tunity to take a quick look at the the Elston Act, the average process­ conditions during the last year of ing time in the Air Force was 84 days. operation under the Elston Act and During the last year under the Code, the conditions during the last year despite the fact that our organiza­ The Judge Advocate Journal 13 tion was older and more experienced, be given the same important part the processing time had arisen to 118 under the Elston Act and the number days, or 34 days longer. required would be much less. As evidence of the fact that addi­ tional personnel are needed under the I believe the greatest single objec­ Code than those needed under the tion to the Uniform Code is its ten­ Elston Act, I submit that the average dency to destroy what once was the Air Force strength was about 50% principal asset of the military justice higher for the last year under the system, that is, the swift and certain Code than it was during the last year punishment of the guilty man. The under the Elston Act, while the JAG certainty of punishment and the -0fficer strength was about 117% promptness of prosecution seem to be higher. This cannot all be charged becoming a matter of historical in­ entirely to the added requirements of terest. I believe there are two princi­ the Code because we were new and pal reasons for this­ somwhat under strength during the (a) The Code is unnecessarily laden earlier period and were up to strength with "built-in" delays. There are too under the later one. However, in all many reviews on reviews indiscrim­ fairness, I should like to point out inately granted to all offenders. I that some of these additional Jaw:vers, can see no reason why an accused who evrn though expensive, have, in my understandingly pleads guilty to a -Opinion, contributed much to the ef­ simple offense like absence without :ficient administration of military jus­ leave, or larceny, should have avail­ tice and even if we were to go back able to him all of the reviews granted to the Elston Act, I would recommend to the man convicted of a heinous that perhaps half of the increase be crime who says he is innocent and retained. This is indicated by the ef­ fights it all the way. Yet that is the fects of counsel before boards of re­ fact under the present Code. view. In 46% of the cases, the ac­ cused requested representation by (b) In the administration of the counsel before boards of review. This Code, in many instances form has 463 of the cases received 71 % of been elevated over substance. In the reductions in confinement by the cage after case convictions have been boards. set aside for i·easons that do not seem Since I am talking to lawyers, I to the ordinary man to have the think it is within the realm of pro­ slightest bearing upon either the fair­ priety for me to be so inmodest as to ness of the trial or the fundamental say that I believe court-martial pro­ rights of the accused. Yet, when cedure has become more orderly, as faced with the problem concerning have all of the other affairs of gov­ some really fundamental right of the ernment, as lawyers have had more accused, like that of unreasonable to do with it. The Code has had a search and seizure, the safeguards beneficial effect in giving lawyers a which the services have set up and more important part. However, there carefully maintained under the earlier is no reason why lawyers could not .. laws are struck down. 14 The Judge Advocate Journal

Published reports of court-martial ing to a money saving of $1,500,000 activities reflect that up to the end per year. This saving is in addition of 1953, more than 700,000 court­ to the expense of 34 days each in martial cases of various kinds were processing time, for 4,795 cases, to tried under the Code in all of the include only those which came to services. During that period, less Headquarters, or a total of 453 man than 7% of that number were re­ years of the accused involved, with viewed by boards of review, and 421 the resultant loss to the Government decisions were rendered by the Court in pay and allowances. of Military Appeals. These figures I hope you will bear in mind that indicate that less than 1% of the this tremendous additional cost in cases serious enough to warrant re­ both money and time was incurred in view by a board of review and less the administration of this Uniform than one in sixteen hundred was de­ Code when the Nation was not fight­ cided by the Court. The Air Force ing a global war with fronts all over Judicial Council, under the Elston the world. In such an event, the ex­ Act, reviewed a greater percentage of pense and delays would be multiplied the cases and its decisions were at many times by the necessity of trans­ least as favorable to the accused as porting court-martial records from those of the Court. the various theaters to Washington, I submit that the picture I have unless Congress saw fit to establish presented proves beyond any reason­ branch courts throughout the world able doubt that so far as the Air which would be even worse. It is Force is concerned, the Elston Act did quite obvious that the establishment a better job than the Uniform Code of branch offices by The Judge Advo­ of Military Justice in enforcing dis­ cate General under the authority of cipline in that service on the one hand Article 68 of the Code would be com­ and just as good a job in protecting pletely useless unless branch courts the rights of the individual on the were established also. other. All of this was done at one­ tenth of the cost as far as top appel­ May we join together in an effort late review is concerned, plus an addi­ to devise a safe, yet simple, system tional saving of perhaps 200 lawyers, of military justice which provides after leaving plenty to provide law­ prompt and efficient justice at a rea­ yers where needed in each case, at an sonable cost to the American people average annual salary each of ap­ and which will work in time of global proximately $7,500 per year, amount­ war.

The back pages of this issue contain a supplement to the Directory of Members, July, 1953, which should • be used with the supplements previously published in issues 15, 16 and 17 of the Journal. The NATO Status o[ Forces Agreement 1 On 23 August 1953, there entered saries of the Status of Forces Agree­ into force as to the United States a ment? A sending state-that is, a new multilateral treaty regarding the state which stations its forces in an­ status of the forces of one NATO other NATO state or sends them state when in the territory of another through that state-has primary NATO member. The Agreement Be­ jurisdiction over two categories of tween the Parties to the North At­ offenses committed by the membert! lanic Treaty Regarding the Status of of its Armed Forces or by civilian Their Forces-commonly referred to employees of the Armed Forces: as the NATO Status of Forces Agree­ ment-had been signed at London by a. Offenses against the property or all the original members of NATO on security of the sending state or 19 June 1951. All of the NATO mem­ against the person or property of a bers, except Iceland, Italy, Denmark, member of the Forces, a civilian em­ and Portugal have now ratified it. ployee, or a dependent, and When the Status of Forces Agree­ b. Offenses arising out of any act ment was before the Senate 2 and also or omission done in the performance since that time, it has been subjected of official duty. to bitter criticism from several quar­ In other cases the authorities of ters, largely because of its provisions the receiving state-that is, the state on criminal jurisdiction over military which receives the visiting forces­ personnel. Much of this comment has have jurisdiction, as, for example, been based on lack of understanding when a soldier, off-duty, assaults a of the situation preceding the Treaty citizen of the receiving state. How­ and of what the Treaty attempts to ever, exclusive jurisdiction is reserved do. Some of it unfortunately reflects to the sending and receiving state hostility to our very partnership in respectively if the offense, including the North Atlantic Treaty Organiza­ a security offense, is punishable by tion. the law of the one state but not by Criminal Jurisdiction Under the that of the other. Agreement The Agreement provides that each What are these jurisdictional pro­ state will give sympathetic consider­ visions which so shock the adver­ ation to requests for waivers of its

1 Statement of Major General Claude B. Michelwait, Deputy Judge Advocate General of the Army in support of a Resolution submitted at the annual meet­ ing of. the Judge Advocates Association at Chicago on August 18, 1954. The Resolution was referred to the Association's Governing Board for consideration and action. 2 See 15 JAJ 1, "Safeguarding the Rights of American Servicemen Abroad" an address by Senator John W. Bricker on this subject. See also 16 JAJ 20. 15 16 The Judge Advocate Journal

jurisdiction by the other state. The provisions about jurisdiction. As experience of the Armed Forces has stated by the Attorney General: been that the countries in which "There is, of course, no restriction United States forces are stationed in international law upon the terms give waivers of their jurisdiction in of any agreement upon the subject, the great majority of cases. as the receiving state need not permit The Agreement also contains a "bill the ingress of the forces, and the sending state need not send them, if of rights" guaranteeing in the courts the conditions are not respectively of the receiving state, the rights to a satisfactory." prompt and speedy trial, to be in­ formed of the charges, to be con­ With the end of World War II, for­ fronted by witnesses, to obtain wit­ eign states declined to maintain in nesses by compulsory process, to have force the special wartime arrange­ legal representation and an inter­ ments which had been provided for preter, and to communicate with, and the juridical status of United States have present at the trial (if the rules forces. When new arrangements of the court permit) a representative were negotiated for the peacetime of the sending state. stationing of forces abroad, foreign countries were unwilling to give a Situation With NATO SOF complete immunity from jurisdiction During World War II, United States. to the forces of the sending state. forces stationed in foreign countries They were particularly concerned generally enjoyed, by bilateral agree­ about offenses committed by off-duty ment, immunity from the jurisdiction soldiers against the inhabitants of of the local courts. These arrange­ these countries-the killings, as­ ments are described in two learned saults, sexual crimes and highway articles by Colonel Archibald King offenses which, even in the best­ in the American Journal of Inter­ regulated of armies, inevitably take national Law in 1942 and 1946. But place. They resented, too, a regime other wartime agreements involving for visiting forces that was the same other countries and areas did not al­ as that prevailing in occupied coun­ ways concede exclusive jurisdiction to tries, .where the local authorities ex­ the sending state. ercised no control whatsoever over the It is, of course, not susceptible of occupying forces. argument that a sovereign receiving This unwillingness to grant a com­ state may make it a condition to the plete immunity from local jurisdic­ admission of foreign forces that they tion was not the result of any anti­ share their jurisdiction with the local American sentiment. The parties to authorities. Recourse to varying un­ an agreement on the status of the derstandings of customary interna­ forces of the Brussels Treaty Powers, tional law is fruitless in this field of the precursor of the North Atlantic negotiation of arrangements regard­ Treaty Organization, provided no im­ ing the status of visiting forces. In­ munity whatsoever from the juris­ ternational law becomes relevant only diction of the courts of the receiving if the parties have not made other state. This agreement, to which the The Judge Advocate Journal 17

UnitE:d States was not a party, stip­ sponsiveness to the needs of the ulated that any offense, committed Armed Forces. The Senate gave its off-duty or on, against a national of consent to ratification by 72 votes to the sending state or of the receiving 15. At the same time it adopted a state could be tried in a court of the resolution calling upon the Executive host state. The agreements concluded Branch of the Government to request bilaterally with the United States, a waiver of the jurisdiction of the re­ most of which are classified, were ceiving state in those cases in which generally more generous in their an individual might, if tried in the provisions. foreign court, be deprived of any constitutional safeguard he would en­ The Negotiation and Ratification of joy if he were being tried in the the NATO Status of Forces United States. A representative of Agreement the United States is also required by The NATO Status of Forces this resolution t_o be appointed to be Agreement was freely negotiated in present at each trial in a foreign 1951 between twelve sovereign states. court to observe the proceedings and It represents what these states could to report any denial of the rights agree to be the desirable measure of guaranteed by the Agreement. the sending state's jurisditcion-a The Working of the Agreement protection which extends to all of the individual's acts while he is on duty How has the Status of Forces or associating with his fellow coun­ Agreement worked in practice ? In trymen. It is when he goes into town France, to take a typical case, the of his own free will on his time off coming into force of the NATO that the soldier really becomes sub­ Status of Forces Agreement brought ject to local jurisdiction. no change in the percentage of cases fhe Status of Forces Agreement subject to French jurisdiction which was thoroughly considered in all its were actually tried by that country, aspects by the Senate when its advice as compared to the pre-Status of and consent to ratification were Forces period. 'In 1953, over 90% sought in 1953. General Bradley, then of the cases subject to French juris­ Chairman of the Joint Chiefs of Staff, diction, that is, off-duty offenses General Ridgway, theri Supreme Al­ against Frenchmen, led to waivers of lied Commander, Europe and Admiral French jmisdiction. Of these cases, McCormick, then Supreme Allied that of Keefe and Scaletti, two Commander, Atlantic, submitted American soldiers tried in a French statements to the Foreign Relations court, has attracted considerable at­ Committee emphasizing the military tention.a Keefe and Scaletti have necessity for the Treaty and its re­ been pictured as healthy American

3 For a collateral sequel to this case see United States ex rel. Gladys Keefe V. John Foster Dulles, Secretary of State, United States Court of Appeals, District of Columbia Circuit No. 12107 decided 16 September 1954. Denial of writ of habeas corpus, -affirmed. 18 The Judge Advocate Journal boys, who were sentenced to five years thousand cases out of one thousand at hard labor and solitary confinement one hundred fifty one. Only eleven for a carefree prank-a "high tooting of the cases in which local jurisdiction joy-ride" as one columnist put it. was reserved resulted in unsuspended Here are the facts: sentences to confinement. The largest Keefe and Scaletti, each of whom confinement imposed in any of these had an impressive prior court-martial cases was thirteen months. Surely record, met in a guardhouse in Ger­ these figures show no cause for con­ many. A day or so after arriving at cern. Orleans from this guardhouse, they went AWOL and got drunk. Late The Alternatives that night they hailed a cab to take The alternatives on the Status of them out on the highway to hitch a Forces Agreement are clear. De­ ride to Paris. A mile out of the city, nunciation of the Treaty could not where they stopped the cab and Sca­ lead to the free negotiation of a more letti garrotted the sixty-five year old comprehensive immunity from local driver, Keefe placed a shirt in the law, which our NATO partners be­ driver's mouth, struck him, and lieve to be unjustified. The with­ knocked him out of the cab. They drawal of the United States from the left him on the ground and drove off Treaty would be tantamount either to to Paris in the stolen vehicle. The a declaration of lack of interest in French police arrested the two some NATO or to a demand that our posi­ days later. The case being one sub­ tion vis-a-vis the other thirteen mem­ ject to French jurisdiction under the bers become that of Russia with re­ Status of Forces Agreement, they spect to its satellites. Circumstances were tried by a French court before imperatively demand that whole­ which they admitted their guilt. The hearted support be given to the American Army observer ieported NATO Status of Forces Agreement that they had a fair trial an:i that as evidence of our continuing support no anti-American sentiment appeared of NATO itself. in the proceedings. It was brought out that the taxi driver had been in­ President Eisenhower's Position capacitated for thirty days. The two were sentenced to five years in prison, It is fitting to refer in conclusion not at hard labor and without banish­ to the views of President Eisenhower, ment from France, for what an Amer­ whose service as Supreme Allied ican commentator called this "minor" Commander, Europe, makes him dou­ offense. This is the typical instance bly qualified to speak of the signifi­ in which the critics of the Status of cance of the NATO Status of Forces Forces Agreement profess to find Agreement. In his press conference their sense of Justice outraged. of 28 January, he was asked whether During the latest period for which American soldiers are being deprived statistics are available, 1 December of their constitutional rights by the 1953 to 30 June 1954, the French Status of Forces Agreement. He re­ waived jurisdiction in well over one plied: The Judge Advocate Journal 19

"The status of forces agreement on leave. And he was in exactly the was one for which he had worked very same status, as a practical measure, seriously when he was in Europe, for as Mrs. Craig was when she had this reason: gone there. "Fundamentally, any foreigner in "Now, if she had committed an of­ the United States could be tried by a fense in France, or wherever she was, United States court if he committed a would she have expected to come crime of any kind. And units of other back to the United States to be tried? nations came here occasionally. This She would have been tried, and she same thing happened in a foreign would accept that risk when she went country. over there. "Now, these people, he wanted to point out, were partners. In no case, "Now, the difference was that a where we made agreements with soldier was ordered, but he did have other nations were we trying to es­ his post, he did have his unit. And tablish or act like their satellites. it was still expected that when That was a philosophy that seemed he went off of his own territory and to him repugnant to the whole con­ went off on leave, on his own status, cept of freedom, of liberty. on his own personal status, that he "Now, we went in there, we had did become responsible to their courts. people-and remember this: the sta­ "Even there, there were certain tus of forces agreement, as he re­ safeguards in the way he was repre­ called the provisions-and, after all, sented, and the information given to it was two years ago that he studied our embassies. them-any crime that was committed "Now, this same thing applied to between individuals of our units, they people who were here. All these were tried by us. Anything that treaties were reciprocal, and that was happened when the man was on of­ the thing to remember. They were ficial duty, they were tried by us. arranged so as to do justice to the "The actual time when the man very greatest possible extent to the was exposed to some kind of action individual, and to meet national by a foreign court was when he was needs."

Your professional success, important cases, new appointments, political successes, office removals, and new partnerships are all matters of interest to the other members of the Association who want to know "What The Members Are Doing." Use the Journal to make your announcements and disseminate news concerning yourself. Send to the Editor aRy such information that you wish to have published.

The Judge Advocates Association is a national legal society and an affili­ ated organization of the American Bar Association. Members of the legal profession who are serving, or, who have honorably served in any component of the Armed Forces are eligible for membership. Annual dues are $6.00 per year, payable January 1st, and prorated quarterly for new applicants. Appli­ cations for membership may be directed to the Association at its national head­ quarters, 312 Denrike Building, Washington 5, D. C. Intoxicating Liltnors on Uilitary Installations By Major Earl A. Snyder *

It is a matter of widespread knowl­ With such a controversial back­ edge that the J)epartment of Defense ground in the forum of the layman, recently was persuaded by the force it is a cause for wonder that some of public opinion to change its posi­ astute legal scholar has not attempted tion with regard to the sale of in­ to persuade that the provision per­ toxicating liquors on military installa­ mitting regulation by the Secretary of tions. For prior decades this matter Defense is in fact a nullity. His ar­ had been either tacitly ignored or gument, in brief, might run that since subtly winked at; the existing law the previous enactment 4 was never prohibited the sale or dealing in in­ specifically repealed it still remains toxicating liquors on military in­ in effect and must be construed along stallations.I In 1951 Congress passed with the provision in the Universal the Universal Military Training and Military Training and Service Act. Service Act 2 which had a specific When the two provisions are con­ provision relating to the sale, con­ strued together, so the polemicist sumption, and possession of intox­ urges, there is nothing left but com­ icating liquors on military installa­ plete prohibition. For that reason, tions.3 The provision authorized the he shrewdly concludes, why all this Secretary of Defense to regulate argument between the Women's these matters. Here was a realistic Christian Temperance Union and the view of the problem and it seemed to Department of Defense? cry for similarly re:;ilistic regulation. Such a potential donnybrook de­ serves a closer scrutiny than has Almost two years passed before the been accorded it. It seems advisable Secretary of Defense promulgated for legalists to examine these legis­ regulations permitting the sale of in­ lative monsters set to destroi one or toxicating liquors on military installa­ the other and, in the process, an im­ tions. The furor created, however, portant segment of Armed Forces was only a little short of cyclonic; public relations. Only this time the public opinion forced a re-evaluation examination should be carried out in of the area. a calm, dispassionate, legal forum.

*Major Earl A. Snyder, USAF is assistant SJA of the Seventeenth Air Force. 131 Stat. 785; 10 U. S. C. 1350; Section 38, Act of February 2, 1901. 2 Public Law 51, 82nd Congress. 3 Ibid., Section 6. 4 See note 1, supra. 20 The Judge Advocate Journal 21

Section 6, Public Law 51, 82nd Con­ sions of this section into full force gress, reads: and effect." Frequently, it is necessary to con­ "The Secretary of Defense is au­ thorized to make such regulations strue statutes having the same pur­ governing the sale, consumption, pos­ poses or objects in pari materia.:; session of, or traffic in, beer, wine, or This would require statutes, although any intoxicating liquors to, or by, in apparent conflict, to be construed, members of the Armed Forces, or the National Security Training Corps, at as far as reasonably possible, har­ or near any camp, station, post, or moniously. But if there is an irre­ other place primarily occupied by concilable conflict between the new members of the Armed Forces or the National Security Training Corps. provision and the prior statute re­ Any person, corporation, partnership, lating to the same subject matter, or association, violating the regula­ the former will control as it is the tions authorized hereunder, shall, un­ later expression of the legislature.a less otherwise punishable under the Uniform Code of Military Justice, be However, application of the rule that deemed guilty of a misdemeanor and statutes in pari niateria should be be punishable by fine of not more construed together is most justified than $1,000, or imprisonment of not in the case of statutes relating to the more than twelve months, or both." same subject matter that were passed S2ction 38, Act of February 2, 1901 at the same session of the legisla­ (31 Stat. 785; 10 U. S. C. 1350) reads: ture; 7 if a subsequent act is in irrec­ oncilable conflict with the act under "The sale of or dealing in beer, consideration the subsequent act must wine, or any intoxicating liquors by prevan.s any person in any post exchange or canteen or Army transport, or upon It is submitted that the two stat­ any premises used for military pur­ utes cited above are in irreconcilable poses by the United States, is hereby prohibited. The Secretary of War is conflict. The prior enacted statute, hereby directed to carry the provi- section 38, Act of February 2, 1901,

5 2 Sutherland, Statutory Construction (3d Ed.) 535-536, and cases cited thereunder. 6 2 Sutherland, Statutory Construction (3d Ed.) 532, and cases cited there­ under; early cruses to the same effect are Rex v. Gator, 14 Burrows 2026, Rex v. Davis, 1 Leach (C. C.) 271 and Norris v. Crocke'r, 13 How. 429. 7 2 Sutherland, Statutory Construction (3d Ed.) 537, and cases cited there­ under. s Ibid., at 539; to the same effect, see Thompson v. St. Louis-San Francisco Railway Company, et al., 8 F. Supp. 785, involving the removal of a suit filed against Federal Court Rec~ivers, from the State Court to a Federal District Court. Under the Federal Employees' Liability Act passed in 1908 such re­ moval was not permitted, while under the Removal Act for Officers of United States Courts, enacted in 1916, removal was permitted. The Court in con­ struing the effect of the statutes said, "there is a conflict in the two statutes involved in the determination of this case, . . . In such instances, ... under a well-established rule of statutory construction, the latest enactment will con­ trol, and will be regarded as an exception to, or qualification of, the prior stat­ ute." See also Washington v. Miller, 235 U. S. 422; U. S. v. Mullendore (C. C. A.), 35 Fed. 2d 78. 22 The Judge Advocate Journal unequivocally prohibits "the sale of full force and effect. It is contrary to or dealing in beer, wine, or any in­ reason and good sense to suppose that toxicating liquors by any person in such could have been the intention; any post exchange or canteen or the provisions of the later enactment Army transport", whereas section 6, are too inconsistent and conflicting Public Law 51, 82nd Congress, just with those of the earlier act. Dur­ as unequivocally authorizes "The ing the time it was in effect section Secretary of Defense ... to make ... 38 absolutely prohibited many things regulations governing the sale, con­ that might be made perfectly legal sumption, possession of, or traffic in, under section 6, Public Law 51. beer, wine, or any intoxicating liquors Admittedly, the Secretary of De­ to, or by, members of the armed fense may regulate by prohibiting. forces, or the National Security This is precisely what the prior enact­ Training Corps, at or near any camp, ment has done; but under the later station, post, or other place primarily enactment the authority of the Sec­ occupied by members of the armed retary of Defense is wide enough to forces or the National Security Train­ regulate not only by prohibiting, but ing Corps." by freely allowing or by regulating It could hardly be argued that if in any degree between the two ex­ section 38, Act of February 2, 1901 tremes. If the legislature meant any­ was in effect, section 6, Public Law thing by the later enactment, then 51, 82nd Congress could have any it is suggested that the later enact­ efficacy at all. It seems perfectly ment is in irreconcilable conflict with plain that Congress, in passing sec­ the prior one and the later enact­ tion 6, Public Law 51, with its univer­ ment must controJ.9 sal application and much broader scope could not have intended to leave The enactment of legislation pre­ section 38, Act of February 2, 1901 in supposes some consequential change

9 State V. Kolb, et al., 201 Ala. 439, 78 So. 817, 818. Although this case is not on all fours factually with the subject now under consideration, it is analogous legally. In a prior enactment the legislature of Alabama provided that the Commissioner of Agriculture and Industries should appoint a clerk and he and his bondsmen would be pecuniarily liable for any derelictions of the clerk. By a later enactment of the legislature, practically the same provisions were enacted with the exception of the provision relating to the pecuniary liability of the Commissioner and his bondsmen for the dereliction of his appointed clerk. In the instant case the clerk did convert State funds, and the State of Alabama sued the Commissioner and his bondsmen to recover the funds con­ verted. The question resolved itself into whether or not the former act, or at least the section dealing with the pecuniary liability of the Commissioner for the dereliction of his appointed clerk, was repealed. The Court says; "while the latter act (later enactment) does not directly refer to or mention the first, yet many of its provisions necessarily repeal or take the pl.ace of provisions of the first.... It would be impossible for both acts to stand and be enforced because their provisions are in conflict; and to that extent, of course, the latter must control."; to the same effect, see Chase v. U. S., 256 U. S. 1; Earle v. Board of Education, 55 Cal. 489; and Christy v. Board of Supervisors of Sacra­ mento County, 39 Cal. 3, in which it was stated, "A statute may be repealed The Judge Advocate Journal 23 in tl-.e existing law, either by addition acts, the latest legislative expr1"ssion to the pre-existing law, or by quali­ prevails and the prior law yields to (cation or deletion of an existing the extent of the confiict.11 It is prov1s10n. The legislature is pre­ the underlying theory behind the leg­ sumed to intend to achieve a con­ islative process that through the sistent body of law; where such can­ legislatures and Congress is met the not be maintained without the abro­ current public demands resulting gation of a previous law, a repeal by from changing social, economic, and implication of previous legislation is political conditions,12 While it is readily found in the terms of a later true that there is a · presumption enactment.lo against implied repeal, such a pre­ When a subsequent enactment cov­ sumption in many cases produces un­ ering a field of operation coterminous satisfactory results. The emphasis with a prior statute cannot by any belongs upon the purposes and objects reasona0le construction be given ef­ behind the expression of the new stat­ fect while the prior law remains in ute with fair consideration to sur­ operative existence because of irrec­ rounding conditions and former legis­ oncilable conflict between the two lation,I:l '

9-Continued. by express words or by necessary implication ... if a later statute be wholly repugnant to an older one, so that, upon any reasonable construction, they cannot stand together, the first is repealed by implication though there are no repealing words. The reason is that the last expr,ession of the legislative will must prevail, and must supersede all prior legislation which is entirely inconsistent with it.", and Ex parte Bryson (D. C. Cal.) 21 Pac. 2d 695 which involved a prior enacted Jocal option liquor law and a subsequent State pro­ hibition law. The court held that the subsequent State prohibition law im­ pliedly repealed the local option liquor law and the latter (earlier enactment) was not in force notwithstanding the fact that the prohibition law was later repealed. 101 Sutherland Statutory Construction, (3d Ed.) 461-462, and oases cited thereunder. 11 /bid., at 463, et sequitur, and cases cited thereunder. Allison v. Phoenix (Ariz.), 33 P. 2d, 927, 93 A. L. R. 354, 361, says, "It is the universal rule of constitutional and statutory construction, so well known as to need no citation in support thereof, that a later enactment prevails over an earlier one of equal rank insofar as the two are in conflict."; to the same effect, Common School District No. 52 v. Rural Special School District No. 1, 146 Ark. 32, 225 S. W. 21; State V. Giaudrone, 109 Wash. 397, 186 Pac. 870; Witts v. Skelton, 240 Fed. 265; Piedemann V. Skelton, 244 U. S. 660; Anchor Line v. Aldridge, 280 Fed. 870. 12 2 Sutherland, Statutory Construction, (3d Ed.) 472, and cases cited there­ under. 13 Lewis V. U. S., 244 U. S. 134. In this case the facts revealed that for a number of years there had been surveyors general who surveyed certain lands in certain states. In the Sundry Civil Appropriations Act of 1909, money was provided to enable the Secretary of the Interior to complete this surveying which was unfinished because of the discontinuance of the offices of the sur­ veyors generial. That appropriation bill made no provision, such as had been 24 The Judge Advocate Journal

Th~ Supreme Court of the United fine of not less than $500 nor more States has likewise adopted the atti­ than $1,000. There was no express tude that when there are two acts of repeal of t_he Act of 1813 in the Act Congress on the same subject and the of 1870. The Supreme Court stated, last embraces all the provisions of the in holding that the latter act im­ first and adds new provisions and im­ pliedly repealed the prior one, " ... if poses different or additional penalties, the two are repugnant in any of their the latter act operates without any provisions, the latter Act, without repealing clause as a repeal of the any repealing clause, operates to the first. extent of the repugnancy as a repeal United States v. Tynen, 11 Wall. 88, of the first; and even where two acts 78 S. Ct. 153, involved an Act of Con­ are not in express terms repugnant, gress of March 3, 1813, relating to the yet if the latter act covers the whole regulation of seamen on board public subject of the first, and embraces new and private vessels of the United provisions, plainly showing that it States, and an Act of Congress ap­ was intended as a substitute for the proved July 14, 1870, amending the first act, it will operate as a repeal Naturalization Laws and prescribing of that act." H certain punishment for their viola­ It is submitted that not only are tion. The Act of 1813 made it an the two statutes quoted above in ir­ offense, among other things, to felo­ reconcilable conflict but also that Sec­ niously use a false certificate of citi­ tion 6, Public Law 51, 82nd Congress, zenship and provided for imprison­ covers the whole subject covered by ment for a period of not less than section 38, Act of February 2, 1901.l:i three nor more than five years, or a It is suggested that the later enact­

13-Continued. customary in former years, for salaries of surveyors general. The Supreme Court of the United States upheld the decision of the Court of Claims that the act was effectual to abolish the office of surveyor general for the state involved in the instant case and said, "It is true that repeals by implic·ation are not favored. The repugnancy between the later act upon the same subject and the former legislation must be such that the first act cannot stand and be capable of execution consistently with the terms of the !oater enactment. As we view it, such conflict does appear in this instance." 14 To the same effect, Davies v. Fairbairn, 3 How. 636; Bartlet v. King, 12 Mass. 537; Com. v. Cooley, 10 Pick 37; Pierpont v. Crouch, 10 Cal. 315; Nor'riss v. Crocker, 13 How. 429; and U. S. v. Yuginovich, 256 U. S. 450, in which it is said, "It is equally well settled that a later statute repeals former ones when clearly inconsistent with the earlier enactments". v; Statutory Construction, Crawford, 196, and cases cited thereunder. To the same effect, see State v. Marxhausen (Mich., 1919), 171 N. W. 557, where it is said, "Repeals by implication are not favored in the law. But where the later act covers the whole subject, contains new provisions evidencing an in­ tent that it shall supersede the former law, or is 1·epugnant to the earlier act, it operates as a repeal.". (Italics added); Shannon v. People, 5 Mich. 85 in which it is said, "... that where a subsequent statute covers the whole ground occupied by an earlier statute, it repeals by implication the former statute, though there be no repugnance."; and Porter v. Edwards, 114 Mich. The Judge Advocate Journal 25

ment is by far the broader statute members of the armed forces or Na­ and covers the entire subject not only tional Security Corps." of "sale of or dealing in beer, wine The legislative history of section 6, or any intoxicating liquors ..." as Public Law 51, reveals that it was in­ was covered in the prior enactment, troduced on the floor of the House of but also "... the sale, consumption, · Representatives, Friday, April 13, possession of, or traffic in, beer, wine, 1951, by Representative Cole of New or any intoxicating liquor . . .". York.17 The introduction was pre­ Similarly, the later enactment applies ceded, however, on April 3, 1951, by to a wider area geographically than a lengthy discussion of the entire the prior one. Section 6, Public Law problem, by Representative Bryson of 51 is applicable to any place "... at South Carolina.is or near any camp, station, post or other place primarily occupied by On April 3, 1951, Representative members of the armed forces or the Bryson said in part, "... Mr. Chair­ National Security Corps ..." where­ man, I know that the distinguished as section 38, Act of February 2, 1901, members of this House share with me applies only "..• in any post ex­ the hope that the young men who change or canteen or Army Trans­ serve in the National Security Train­ ·port, or upon any premises used for ing Corps will return from their serv­ Military purposes by the United ice as good, responsible citizens, ready States, •.•". to take their rightful places in civilian It may be argued that "Army life. If any change in their character Transport" is outside the ambit of takes place while they are in train­ the geographical locations set out in ing, we certainly do not want it to be section 6, Public Law 51. It is sug­ for the worse. We do not want any gested that such argument may be of these boys to return as alcoholics l'eadily disposed of by reference again and criminals destined to spend much to the all-encompassing geographic of their lives in mental and penal in­ wording of section 6, Public Law 51, stitutions, suffering the heartbreaks ". . . or other place primarily occu­ of broken homes ..." and "..• It is pied by members of the armed forces our moral obligation to provide for or National Security Corps". By the suppression of vice, gambling, some it may be urged that the rule of and the use of alcoholic beverages in ejusdem generis or noscitur a sociis places which will be frequented by the should be applied to the phrase "... young men of the National Security or other place primarily occupied by Training Corps." rn From this and

15-Continued. 640, 72 N. W. 614, "The rule is well settled that a new statute covering the same ground as the former act, supersecles it for all further cases, without the necessity of repealing words." 11 97 Congressional Record 3253 et seq. (Apr. 13, 1951). 18 [bi,d. 19 97 Congressional Record 4006 (April 13, 1951). 26 The Judge Advocate Journal from a perusal of the discussion by the National Security Training Corps Representative Bryson as a whole, it -to one which was all-encompassing. will be seen that it was his intent to Further than this it evolved from provide for the regulation of the use one which suppressed the "... fur­ of alcoholic beverages in places fre­ nishing or possession of alcoholic bev­ quented by members of the National erages containing over one-half of one Security Training Corps. percent of alcohol by volume ..." 23 On April 13, 1951, Representative to one in which "... the Secretary of Bryson proposed an amendment to the Defense is authorized to make . . . Universal Military Training and regulations governing the sale, con­ Service Act to effect this intent.20 sumption, possession of or traffic in After a discussion of the amend­ beer, wine, or other intoxicating ment which Representative Vinson, liquors ...".24 Chairman of the House Armed Serv­ With such an evolutionary back­ ices Committee, opposed, Representa­ ground it is submitted that the intent tive Cole then introduced what ulti­ of Congress was that regulation was mately became section 6, Public Law to be authorized for all places in 51. At that time Representative Cole which members of the armed forces stated, "... We should leave it up to might be stationed. Patently, it is the President to impose regulations submitted, this includes "Army with respect to the control of this Transport". In such a context the problem, which we all admit is severe. words of the Supreme Court concern­ My criticism of the amendment of­ ing the application of the ejusdem fered by the gentleman from South generis rule is pertinent. It has said Carolina (Mr. Bryson) is that it ap­ "... while the rule is a well-estab­ plies only to the Training Corps not lished and useful one, it is, like other to all camps and posts of the armed canons of statutory construction, only forces ...".21 This amendment was an aid to the ascertainment of the accepted by the House after Repre­ true meaning of the statute.•.. If, sent;ttive Vinson indicated that the upon a consideration of the context amendment "... is along the right and the objects sought to be obtained lines, and as far as the Committee is and of the Act as a whole, it ade­ concerned we will accept the amend­ quately appears that the general ment ...".22 words were not used in the restricted From the foregoing excerpts of sense suggested by the rule, we must legislative history, it may be seen give effect to the conclusion afforded that the amendment proceeded from by the wider view in order that the one narrow in scope-relating only to will of the legislature shall not

20 Ibid. 21 Ibid. 22 97 Congressional Record, 4006 (April 13, 1951). 2a Ibid. 24 Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 88-89. The Judge Advocate Journal 27 fail." 25 One is led ineluctably to wrought by distraught mothers seek­ the conclusion that the later enacted ing to protect their immature off­ statute is controlling. spring from the primrose path. It is While all this may furnish an ade­ suggested that the answer in that di­ quate answer to critics who base their rection lies not in the legal field, but disputations on what they believe to in the public relations one. This, it be valid legal grounds, it is not, ·of is believed, is beyond the capabilities course, an answer to the emotionalism of mere lawyers.

25 Morris v. City of Indianapolis, 177 Ind. 369, 94 N. E. 706.

Ceremonial Session of CMA at Chicago

Under the sponsorship of the As­ was made by Alfred C. Proulx in be­ sociation, a special ceremonial session half of two hundred applicants. Al­ of the United States Court of Military though some of the members of the Appeals was held in Chicago on Association were admitted on special August 17, 1954, in the United States request, upon motion made by the Court House. Chief Judge Robert E. afore-nentioned sponsors, fifty-two Quinn and Associate Judges George members of the Association had their W. Latimer and Paul W. Brosman, motions made in their behalf by Maj. sat en bane for the session. Mr. Richard H. Love, the Executive Secre­ Alfred C. Proulx, Clerk of the Court, tary of the Association. was assisted by Mr. Fred Hanlon and Those members of the Association Miss Virginia Siegel. Three hundred admitted on motion of Major Love in­ thirty-seven lawyers were admitted clude the following: to the bar of the Court at this ses­ sion. Maj. Gen. Claude B. Mickel­ CALIFORNIA wait, USA, sponsored thirty-four ac­ John Joseph Brandlin, Los Angeles tive duty officers. Rear Adm. Ira Walter Frederick Brown, Los Angeles H. Nunn, USN, sponsored forty-two John H. Finger, San Francisco active duty Naval officers, and Maj. Ingemar E. Hoberg, San Francisco Gen. Reginald C.· Harmon, USAF, sponsored nine active duty Air Force DISTRICT OF COLUMBIA officers. The motion for admission James Adams Bistline 28 The Judge Advocate Journal

FLORIDA Cicero Columbus Sessions, New Or­ Donald Kingery Carroll, Jacksonville leans Edward Strobel Hemphill, Jackson­ MICHIGAN ville Frederick Rolshoven Bolton, Detroit Philip Alfred Pacyna, Tampa John G. Starr, Grand Rapids

ILLINOIS MINNESOTA Jacob M. Arvey, Chicago William Webb Brady, Elgin Edward Pickering Barrows, St. Paul David Alexander Bridewell, Chicago Goodrich Morgan Sullivan, L. Sheldon Brown, Evanston Mahtomedi John Bampfield Coppinger, Alton MISSOURI Richard H. Deutsch, Chicago Henry Philip Andrae, Jefferson City Seely P. Forbes, Rockford William Franklin Fratcher, Columbia Arthur W. Kennelly, Chicago Martin J. Kennelly, Chicago John H. Hendren, Jefferson City Lowell L. Knipmeyer, Kansas City David F. Matchett, Jr., Chicago James Andrew McLendon, Chicago Philip A. Maxeiner, St. Louis Robert J. Nolan, Chicago NEBRASKA David S. Pochis, Chicago Charles Bentley Paine, Grand ~~d Harold F. Ronin, Chicago Charles T. Shanner, Chicago NEW YORK Hugo Sonnenschein, Jr., Chicago Demetri James M. Spiro, Chicago Kenneth C. Schwartz, Mount Vernon William G. Vogt, Carrollton OHIO INDIANA George Percival Bickford, Cleveland James Wilson Draper, Munck TEXAS Jeremiah Wilson Torrance, Jr.. Marion Leon Jaworski, Houston IOWA VERMONT James Louis Bennett, Des Moines Osmer C. Fitts, Brattleboro Martin Tollefson, Des Moines WISCONSIN KANSAS A. Stephen Boeder, Milwaukee David Jerome Harman, Columbus William Jennings Wertz, Topeka WYOMING KENTUCKY· George Frederick Guy, Cheyenne John Pleasant Sandidge, Louisville The membership of the bar of the LOUISIANA United States Court of Military Ap­ John Villars Baus, New Orleans peals as of September 21, 1954, in­ Paul Macarius Hebert, Baton Rouge cludes 2,785 members. Notes on Current Procurement Opinions

Denial of Payment for Partial Per­ Requirement for Filing Litigation formance of Contract Obtained Reports By Debarred Bidder Army agencies administering Gov­ The Walsh-Healey Act (41 USC ernment contracts are directed to the 37, Section 3) provides that "no con­ provisions of AR 27-5 and SR 27-5-5 tract shall be awarded" to any person both dated 3 April 1951 requiring re­ found by the Secretary of Labor to ports of the commencement of legal have violated certain provisions of the proceedings and litigation reports. It Act "until three years have elapsed is essential that all reports pertaining from the date the Secretary of Labor to legal proceedings under the Bank­ determines such breach to have oc­ ruptcy Act and state insolvency laws curred". Bidding under a different be submitted expeditiously so that name from that under which it had appropriate agencies may prepare previously been debarred, a contractor and file timely proofs of claims on was awarded a supply contract under behalf of the United States in order which it made substantial deliveries to protect fully the interest of the before its identity was discovered United States and to preclude the and the contractor was notified that disallowance of otherwise valid claims its contract was cancelled as "void because of untimely filing (see In re ab initio". The contractor presented Super Electric Products Corp., 200 F. claim for the items delivered and an­ 2d 790). ticipated profits on the balance of the contract, contending that the three Rubber Stamp Signature Sufficient year debarment period had com­ for Invoices menced with the trial .examiner's find­ The Comptroller General has ad­ ings of violations before the Secre­ vised that an invoice certificate com­ tary's final determination and had pleted with a rubber stamp signature expired before the contract had been of the proper company official could awarded. The Comptroller General be properly certified for payment held that the period of ineligibility since the rubber stamp afforded the commenced only on the date of the United States the same protection as Secretary's final action; that the con­ a handwritten signature (Ms. Comp. tractor was ineligible at the time the Gen. B-118192, 15 Jan. 1954). contract was awarded; that the con­ tract was unenforceable and that no Reimbursability of Taxes Improperly recovery could be allowed for the Paid value of the benefits conferred on a A contractor paid a city sales tax theory of an implied contract (33 on an automobile purchased for use Comp. Gen. 63). in the performance of a cost plus 29 30 The Judge Advocate Journal fixed fee construction contract; his in determining the fault or neglect in subsequent request for refund was the failure to recover tax improperly denied and thereafter the period of paid is the standard of conduct of a limitations expired. He sought re­ reasonably prudent business man in imbursement for the tax under a the conduct of his own affairs. clause allowing "any disbursement re­ quired by laws, regulations or or­ New Wage Classifications May Not dinances ... including ... taxes". Be Made Retroactive The Judge Advocate General of the Under the Davis-Bacon Act (40 Army, concluding that the tax was USC 276a) contracts for the construc­ not legally due, held that the con­ tion or repair of public buildings must tractor was not precluded from re­ contain a provision requiring the con­ imbursement, giving the word "re­ tractor to pay "all mechanics and quired" a more liberal meaning than laborers" at "wage rates not less "legally obliged". In JAGT 1952/ than those stated in the advertised 9182, 5 Jan. 53, The Judge Advocate specifications". These wage rates General stated that the contractor are based on the rates found by the might be reimbursed where he rea­ Secretary of Labor to have been the sonably believed the tax to be due prevailing wages for the various and was not affirmatively advised of classifications enumerated in the the contrary opinion of the Depart­ specifications. After completion of a ment of the Army and its intention to contract subject to the Act an inves­ litigate the issue and if the failure to tigation resulted in a recommenda­ recover the tax was not due to the tion that two groups of workers be fault or neglect of the contractor. given new classifications and be given Defining this opinion, The Judge Ad­ back pay based thereon. The Judge vocate General in an opinion dated 29 Advocate General of the Army in an June 53 (JAGT 1953/5212) stated op1mon (JAGT 1954/1592, 8 Feb. that the former opinion applied only 1954) held the contract having been to those cost-type contracts which completed, no new classifications provide: (1) for reimbursement of could be made and any amount due contractors for taxes required to be the workers in question must be paid, (2) that all discounts and boni­ based upon an allocation of their fications lost through the fault or time among the most appropriate of neglect of the contractor are to be the classifications originally estab­ deducted from the gross cost of the lished. This opinion seems to suggest contract, and (3) the Government that a new classification applicable may require the contractor to initiate to future wage payments could be litigation with a view to resisting im­ created during the course of the con­ position of taxes considered to be tract. The Comptroller General has imposed illegally. The test in deter­ held that a contractor ordered to in­ mining whether the contractor "rea­ crease his minimum wages is entitled sonably believed a tax to be due" or to a compensating increase in his con­ took "reasonable measures to deter­ tract price (Ms. Comp. Gen. B 105644, mine the applicability of the tax" or 5 Oct. 1951), and that would seem to The Judge Advocate Journal 31 be equally true in the case of a new ments is in another than the owner of classification at a higher wage rnte. the land would acquire title to the improvements. It is indicated, how­ Contractor Not Entitled to Reim­ ever, that such instruments of title bursement for Wage Payments in may be recorded where the business Excess of Minimum Wage reputation or financial responsibility Schedule of the land owner is in doubt or where A fixed-price contractor found it the Government property cannot be necessary to pay union wages in ex­ appropriately marked (JAGT 1954/ cess of the minimum wages specified 2423, 9 Mar. 1954). in the wage schedule incorporatel'.l in­ Installment Agreements for Payment to the contract pursuant to the Davis­ of Amounts Due. United States Bacon Act. The Court of Claims Unacceptable granted him additional compensation on the ground that he was entitled As a result of price redetermina­ to rely on the wage schedule as a rep­ tion, a contractor was obliged to re­ resentation of the prevailing wages in pay $40,000 to the Government and the area. The Supreme Court in being in financial difficulties, proposed United States V. Binghamton Cons·tr. to pay the debt in installments. The Co., 347 US, 74 S. Ct. 438 (1954), Judge Advocate General of the Army held that although the schedule was in an opinion (JAGT 1954/7521, 17 to be based upon the Secretary of Mar. 1954) held that under the exist­ Labor's determination of prevailing ing policy, amounts owing to the wages, its purpose was solely to pre­ Government must be paid in a lump scribe the minimum wages to be paid sum and proposals for installment and not to assure the contractor that payments are unacceptable. It was he would have to pay no more. The noted, however, that in the absence Court said the very fact that the of a specific policy, such an agree­ contract required the payment of ment would be appropriate without wages "not less" than those specified the necessity of approval by higher presupposes that the contractor might authority and further observed that have to pay higher rates. the policy is now under active con­ sideration. Recording of Government Title to Facilities Considered Unnecessary Withholding of Payment for Partial The Judge Advocate General of the Delivery Is Breach Excusing Con~ Army has expressed the opinion that tractor From Performance the recording of instruments of title A service contract for the recon­ to Government facilities installed or ditioning of unserviceable pallets constructed on the property of others contained a standard payments ar­ is not necessary for the adequate pro­ ticle which provided that "when re­ tection of the Government's interest, quested by the Contractor, payment notwithstanding the fact that in some for accepted partial deliveries shall states a purchaser of real property be made whenever such payment without notice that title to improve­ would equal or exceed---$1,000". 32 The Judge Advocate Journal

After timely completion of a part of mined, produced, or manufactured­ a delivery order, the contractor sub­ in the United States" (41 USC lOa). mitted an invoice for $2,732.61, but Thus a raw material originally pro­ the contracting officer, learning that duced outside of the United States the contractor company was finan­ may be incorporated into products cially unstable, directed the finance sold the Government only if it goes officer to withhold payment of the through at least two stages of manu­ initial invoice, but to pay succeeding facturing in the United States. The ones. The contractor continued work Judge Advocate General of the Army on the contract for about five months held in an opinion on 26 March 1954 and then notified the Government that (JAGT 1954/2897) that the term it considered its refusal to pay the "manufacturing" as used in the Buy original invoice, although subsequent American Act must be strictly de­ billings had been paid, a material fined and the freezing of the rasp­ breach of the contract which relieved berries could not be considered to be it of further obligation. The con­ manufacture of a subproduct to be tracting officer then terminated the used in the manufacture of the final contract for failure to perform and product. notified the contractor that it would be held liable for any excess costs of Reliance on Specifications in Contract reprocurement. The contractor ap­ in Lieu of Making Required pealed. The Armed Services Board Investigation of Contract Appeals (Paint & Pack An Air Force contract for cleaning Corp., No. 1341, 30 Oct. 1953) held and resealing the joints in the con­ the payments clause required pay­ crete aprons of an airfield contained ment within a reasonable time after a "site investigation" clause whereby the submission of vouchers; the Gov­ the contractor acknowledged that he ernment's continued refusal to make had satisfied himself as to the nature the payment due was a material and location of the work, etc. The breach of the contract which excused contractor did not in fact inspect the the contractor from further perform­ work to be done, but relied upon the ance. drawings in the contract which indi­ cated the width of the joints to be Application of Buy American Act resealed. Discovering upon com­ A delivery of jam made from rasp­ mencement of the work that the joints berries grown in Canada but frozen were more than twice the indicated in the United States was rejected on width, the contractor sought an in­ the ground that the contractor had crease in compensation to cover the not satisfied the requirements of the additional cost. The Armed Services Buy American Act which provides Board of Contract Appeals in Towns­ that there "shall be acquired for pub­ co Contracting Co. (1169, 26 Oct. lic use" only such manufactured 1953), held the contractor entitled to products "as have been manufactured a price adjustment for the increased in the United States substantially all costs. Even assuming that the site from articles, materials, or supplies investigation clause was broad The Judge Advocate Journal 33 enough to include the removal of the ress payments are to be regarded as old filler and the measurement of the reasonably necessary without demon­ joints, the contractor was neverthe­ stration of the actual reasonable need lEss entitled to rely on the representa­ therefor. (2) Unusual progress pay­ tions in the drawings under the prin­ ments. Provisions for progress pay­ ciple announced in Hollerback v. ments in other types of contracts will United States, 233 U. S. 165. The be regarded as unusual, and must be Board held that the drawings in the approved by the head of the procur­ contract constituted a representation ing activity. An approval will be upon which the contractor had a right given only under exceptional circum­ to rely without an investigation to stances. Tha contract must involve prove its falsity.. a preparatory period requiring pre­ delivery expenditures large in relation Progress Payments Available With­ to the contractor's working capital out Demonstration of Need or and credit, and the contractor must Nonavailability of Private demonstrate fully his actual 11eed for Financing progress payments, which if approved, Under Department of Defense Di­ will be made in the minimum amount rective No. 7800.1, 30 October 1953, necessary for contract performance. Government financing was to be pro­ (3) High-rate progress payments. vided contractors only to the extent All provisions for progress payments reasonably required for performance at rates exceeding 90 per cent of di­ and the order of preference of forms rect labor and material costs or 75 of financing was stated to be (1) per cent -0f total costs will be re­ private financing, (2) guaranteed garded as "unusual" and must be loans, (3) progress payments, and approved at departmental level. (4) advance payments. To clarify its Tax Escalation Provision in Lease policy on the use of progress pay­ ments, the Department of Defense Valid has issued Directive No. 7840.1, 22 A provision in a lease of certain April 1954, which sets forth the buildings obligated the Government, standards to be followed in utilizing as lessee, to pay the lessor an increase progress payments based on costs in in rent equal in amount to any in­ production or research and develop­ crease in taxes levied against the ment contracts. These are: (1) Cus­ leased property. The lessor seeking tomary progress payments. Certain an agreement for an increase in rent types of contracts involve a long under this provision was met with "lead time" or pre-delivery period and the argument that the provision was may require pre-delivery expendi­ of no effect since it provides for pay­ tures that will have a material im­ ment by the United States under a pact on the contractor's working contract of an indefinite sum of funds. In this class of contracts, money contrary to the provisions of progress payments have been tradi­ 31 USC 665. The Judge Advocate tional and customary. When re­ General of the Army in an opinion quested by a reliable contractor, prog­ (JAGT 1954/2921, 14 April 1954) held 34 The Judge Advocate Journal

the prov1s10n valid and the Govern­ vision be included in contracts au­ ment obligated to enter into a supple­ thorizing contracting officers to with­ mental agreement increasing the rent hold from the contractor so much of to compensate for additional taxes the accrued payment or advance as assessed. The opinion refers to 20 may be considered necessary for the Comp. Gen. 695 as authority and con­ contracting officer to pay employees cluded that the escalation being lim­ the full amount of wages due them. ited to property taxes, the maximum The Judge Advocate General ex­ increase could be approximated with pressed the opinion that the proposed reasonable certainty. direct payment clause was improper (JAGT 1954/4015, 5 May 1954). The Liability of Government for N egli­ opinion states that direct payments gence May Not Be Extended to employees may not be made ex­ By Contract cept where authorized by statute cit­ ing Ms. Comp. Gen. B 117954, 20 In a recent opinion, The Judge Ad­ April 1954. The opinion suggests, vocate General of the Army (JAGT however, as a matter of contract and 1954/3914, 23 April 1954) stated that contract administration, amounts may except as provided by statute "the be withheld as a means of insuring or United States is not responsible for inducing the contractor itself to ful­ the negligence of its officers, em­ fill its obligation to employees. ployees, or agents and such liability cannot be imposed upon it by an at­ Fixed Price Contractor Entitled to tempt on the part of the contracting Reimbursement Only for Actual officer to make it a part of the con­ Expenses sideration of a contract" (16 Comp. Gen. 803, 804). The only remedy In its claim for reimbursement un­ available against the Government un­ der the standard tax clause, a con­ der such circumstances is by proper tractor added to the amount of the action under the Federal Tort Claims tax a percentage for profit and for Act (28 USC 2671-80). general and administrative expense, presumably to cover expenses in­ Contract May Not Provide for Direct curred in resisting the tax at the di­ Payment of Employees By rection of the Government. The Government Judge Advocate General of the Army in an opinion (JAGT 1954/4877, 2 Because the Army has experienced June 1954) stated that the contractor difficulty in inducing contractors in is entitled to be reimbursed only for Okinawa to keep their employees paid the actual expenses, legal and admin­ up to date and because on a number istrative, incurred at the Govern­ of occasions, contractors have de­ ment's direction and is not entitled faulted owing subsbtantial amounts to payment of a profit on the trans­ in back wages causing political un­ action or a calculation of expenses rest and criticism of the United based on a percentage of the tax States, it was suggested that a pro­ paid. The Judge Advocate Journal 35

Price Revision Unjustified Where .Price is thought to have been too Cost Estimates Accurate great is not in itself a sufficient rea­ son for revising the price downward. A partnership engaged in the de­ velopm2nt and production of special­ Incorporation By Reference Author­ ized equipment entered into a nego­ ized in Invitations, Not in. tiated fixed price contract subject to Final Contracts price redetermination for the produc­ The Judge Advocate General of the tion of sp2cialized equipment for the Army has expressed the op1mon Air Force. The negotiated price was (JAGT 1954/5391, 18 June 1954) based on an arbitrary cost breakdown that there is no legal objection to in­ and was equal to the estimated ma­ corporating standard clauses by refer­ terial cost plus approximately $15 per ence in contracts in appropriate cases, hour for the estimated direct labor. but the extent to which such practice After completion of the contract, the should be employed is a policy mat­ contractor submitted a statement of ter. Normally, it would appear ap­ cost, including allowance for the two propriately in order to assure mu­ partners' personal contributions. In­ tuality of understanding and avoid cluding the allowance for the part­ disputes to include in the contractual ners, the price requested, less ma­ instrument all the terms of the con­ terial cost, represented an hourly tract, current policies tending to per­ charge of $15 for direct labor. The mit such incorporation only in invi­ contracting officer reduced the allow­ tations for bids and requests for pro­ ance for the partners and redeter­ posals and not in definitive contracts. mined the price for the entire con­ tract at a figure about $7,000 less Contract May Be Transferred With than the negotiated price. The Consent of Government Armed Services Board of Contract Pursuant to the Assignment of Appeals held the negotiated price a Claims Act of 1940, a Government fair and reasonable contract price and contractor assigned to a bank moneys a revision of the price neither re­ due or to become due under its con­ quired or justified (Optron Labora­ tract, and thereafter agreed to lease tory, ASBCA No. 1455, 2 Dec. 1953). all of its facilities to a new company This decision seems to indicate that and to assign to it its rights and price revision is to be used only to duties under the contract. A supple­ compensate for variations in the ac­ mental contract was executed by the tual cost of performance from the original contractor, the assignee com­ estimated cost at least in the absence pany, and the United States. A ques­ of such factors as overreaching by tion of the validity of the transfer of the contractor. If the actual costs th 3 contract was raised when the as­ do not deviate substantially from the signee company presented a voucher estimates, the contract price nego­ for payment under the contract (41 tiated on the basis of those estimates USC 15). The Judge Advocate Gen­ should be allowed to stand. The fact eral of the Army (JAGT 1954/273, 18 that the profit allowed in the original June 1954) expressed the opinion that 36 The Judge Advocate Journa] by executing the tripartite agreement, Grneral of the Army expressed the the Government effectively waived. op1mon (JAGT 1954/6328, 22 July the prohibition of 41 USC 15 and that 1954) that the purchaser is not ex­ the transfer was valid and that the empt from such taxes by reason of voucher should be paid. the sale being by the United States. But while the state may thus be able Gove~nment Not Required to Collect to assess such a tax, the United State Sales Tax Assessed on States or its agencies may not serve Sales of Surplus Property as collecting agents for state sales In answer to the questions involv­ taxes on sales of surplus property to ing the applicability of state sales tax private persons. The opinion sug­ on the sales by the Government of gests that state officials be informed surplus property and the obligation as to the time of such sales so that of the Government to collect such tax they may take effective action to col­ for the state, The Judge Advocate lect state taxes on such sales. EDITOR'S NOTE: The aforegoing notes have been extracted from the Procure­ ment Legal Service of the Department of the Army, Circulars No. 1 to 12. The Procurement Legal Service contains digests of opinions of The Judge Advocate General, decisions of non-judicial agencies, decisions of courts, and general procurement information.

STATEMENT OF POLICY

The Judge Advocates Association, an affiliated organization of the Ameri­ can Bar Association, is composed of lawyers of all components of the Army, Navy, and Air Force. Membership is not restricted to those who are or have been serving as judge advocates or law specialists. The Judge Advocates Association is neither a spokesman for the services nor for particular groups or proposals. It does not advocate any specific dogma or point of view. It is a group which seeks to explain to the organized bar the disciplinary needs of the armed forces, recalling, as the Supreme Court has said, that "An Army is not a deliberative body," and at the same time seeks to explain to the non-lawyers in the armed forces that the American tradition requires, for the citizen in uniform not less than for the citizen out of uniform, at least those minimal guarantees of fairness which go to make up the attainable ideal of "Equal justice under law." If you are now a lawyer, if you have had service in the Army, Navy or Air Force or are now connected with them in any capacity, active, inactive, or retired, and if you are interested in the aims herein set forth, the Judge Advocates Association solicits your membership. llecent Decisions of the Court of Hilitary Appeals

EXTRAJUDICIAL CONSIDERA­ touched, the Court found prejudice TIONS BY AND CONTACT and reversed the conviction. WITH COURTS-MARTIAL Walters, 4 USCMA, 13 August 1954 Adamiak, 4 USCMA 412, 11 June 1954 The accus€d was found guilty of The accused was charged with ut­ conspiracy to defraud· the Republic tering worthless checks under Article of West Germany (AW 96) among 132. At the trial, the manager of a other violations. During a recess, the local bank testified as a witness for law officer over the complaint of the the Government. During a recess, defense counsel retired with the mem­ the bank manager engaged in a con­ bers of the court to relax in the ante­ versation with several members of room of the court. During another the court and upon the court's being recess, the law officer indicated to reconvened, defense counsel chal­ counsel that he wished to discuss with lenged those members, who, upon the the court the time of adjournment challenge, testified that their conver­ and, therefore, counsel without the sation concerned general hypothetical accused entered the private chambers questions in banking procedures not of court. The discussion that followed specifically related to the accused and not only considered the hours of sit­ that the conversation would not influ­ ting for the court, but also matters ence their individual decisions in any relating to the calling of additional way. Upon conviction, the accused witnesses and the force and effect of petitioned CMA for review, which was German law relevant to the con­ granted. The Court affirmed the con­ spiracy charge. In this discussion, viction in part. The rule of the the law officer in response to a ques­ Federal courts that the presumption tion by a member of the court asked of prejudice arising from commu­ the defense counsel, a civilian attor­ nications between jurors and wit­ ney, an opinion based on his civilian nesses is a rebuttable one, but, that experience concerning the German burden rests heavily with the Gov­ law, which the defense counsel de­ ernment to show that such contact clined to give, whereupon the law of­ with the juror was harmless to the ficer stated his own opinion on the defendant was adopted by CMA. As subject, which was later included in to those specifications clearly not re­ his instructions in open court. CMA lated to the extrajudicial conversa­ held that the law officer's behavior tion, the Court affirmed; as to those during the two recesses constituted specifications covered by the witness' error inasmuch as the Uniform Code testimony in Court and to which the purports to set the law officer apart extrajudicial conversation may have from the court members, much as a 37 38 The Judge Advocate Journal judge is set apart from a jury. The the accused could not intelligently Court found no prejudice in the first conduct or cooperate in his defense, incident, but in the second incident, as he was unable to remember the found that the error was prejudicial events giving rise to the charges and on the Court's doctrine of cumu­ against him. The motion was sup­ lative error, found it necessary to dis­ ported by a stipulation of a psychi­ approve the finding as to conspiracy. atrist's expected testimony. The law Lowry, 4 USC.MA 448, 25 June 1954 officer denied the motion to dismiss. There·was no evidence tending to in­ Accused was charged with and con­ dicate that the accused lacked mental victed of maiming (Article 124), ag­ responsibility at the time of the of­ gravated assault (Ar'ticle 128) and fense. Thereafter, in instructing the housebreaking (Article 130). The court, the law officer included an in­ Jaw officer after instructing the court struction to the effect that the court­ gave the court certain citations to au­ martial must be satisfied beyond· a thorities. After the court had closed reasonable doubt that accused had to deliberate on its findings, it re­ sufficient mental capacity to stand opened and the president of the court trial. On petition of · the accused, requested counsel to agree to a recess CMA affirmed, but pointed out the so that the individual members of the procedural errors committed. "If the court could think over the instructions accused was sane at the time he com­ that they had heard and consult with mitted the offense, (a motion to dis­ the citations quoted by the law of­ miss) is not an acceptable motion as ficer. No objections were made and he is not entitled to have his case dis­ the court recessed for the day. On missed by a court-martial. If at the reconvening, the following day, the time of trial he is unable to partici­ conviction was announced. CMA re­ pate properly in his defense, the most versed holding the procedure preju­ he is entitled to is a continuance dicial, in that the court-martial mem­ until the mental deficiency can be bers were referred to outside sources, treated or corrected, if that is reason­ the record of trial did not contain the ably possible. If it is established citations given by the law officer, and. that the condition is permanent, then there was no indication that the cita­ appropriate authorities might dismiss tions had been presented to the de­ the prosecution but that type of ad­ fense counsel. The Court looked upon ministrative proceeding should not be the procedure as a dangerous one, mingled with a trial on the merits. held that the error was reversible and The former requires consideration by that the defense counsel's failure to a convening authority, while the lat­ object did not constitute a waiver. ter is the responsibility of the court­ INSANITY AS A DEFENSE martial." Lopez-Malave, 4 USC.MA 341, 21 May Marriott, 4 USC.MA 390, 28 May 1954 1954 ·Accused was convicted of larceny In this case, the defense counsel (Article 121). The morning following moved to dismiss on the ground that an evening of drinking and cards, one The Judge Advocate Journal 39 of the accused's tentmates discovered saulted. The general defense theory that a sum of money was missing at the time of trial was alibi. Review from his wallet. Circumstantial evi­ having been granted on the petition dence pointed toward the accused. The of the accused, it was argued before accused asserted that he could not re­ CMA that the law officer erred in member having taken the wallet, stat­ failing to instruct on the lesser of­ ing that he had a history of blackouts fense of riot. The convictions were during which he acted in an improper affirmed, the Court holding that the manner. The law officer instructed only offense placed in issue by the the court fully on the issue of volun­ evidence was mutiny by violence. The tary intoxication with respect to offense of riot was not raised as an specific intent. On appeal, the ac­ issue and the law officer was under cused asserted that the evidence rea­ no duty to instruct thereon. Fur­ sonably raised the defense of alcoholic thermore, since the sole defense amnesia and that the law officer erred theory was abili and the defense in failing to give an instruction there­ counsel made no request for instruc­ on. CMA in affirming the conviction tion on the lesser offense of riot, it held that assuming the evidence was was not error for the law officer to sufficient to establish that accused fail to give an instruction upon a was suffering from alcoholic amnesia theory which might have been un­ at the time of the taking, he could wanted by the defense. not rely on this circumstance as a de­ fense since alcoholic amnesia is not .Jackson, 4 USCMA 294, 14 l\fay 1954 a "mental defect, disease, or derange­ The accused was convicted of willful ment which will excuse the commis­ disobedience of lawful command of a sion of a crime". superior officer (Article 90). The prosecution evidence showed that the LAW OFFICER'S INSTRUCTIONS officer of the day had given the ac­ -LESSER INCLUDED OFFENSE cused a direct order to go to bed and Duggan et al, 4 USCMA 396, 11 June that the accused did not obey the 1954 order. The accused testified that he Four accused men were charged did not hear the order given. The law with mutiny by violence. Undisputed • officer denied a defense request for evidence disclosed that the accused, an instruction on the lesser offense of disciplinary barracks prisoners, for failure to obey (Article 92). On peti­ some thirty minutes proceeded to de­ tion of the accused, CMA affirmed the stroy windows, rip plumbing from the conviction, holding that the evidence walls, tear down doors and door raised but one alternative, either the frames in complete defiance of com­ accused heard the order and was mands or orders of officers and non­ guilty of deliberate and intentional commissioned officers. The orders of disobedience or that he did not hear two captains who appeared on the the -order, and, therefore, was not scene were ignored and flaunted, and guilty. Accordingly, the refusal to they and enlisted personnel who ac­ instruct on the lesser included offense companied them were violently as­ of failure to obey was not error. 40 The Judge Advocate Journal

LAW OFFICER'S INSTRUCTIONS structed the court "if you are satis­ -MISTAKE OF FACT fed beyond a reasonable doubt that the accused was honestly-you must Rowan, 4 USCMA 430, 25 June 1954 acquit the accused." The Court held The accused was convicted of a that the law officer thereby errone­ number of specifications of larceny ously shifted the burden of proof from by check (Article 121). All of the the Government to the accused and checks were drawn during a six day that even though other instructions period and returned unpaid, but ulti­ may have cured the error where in­ mately made good by the accused's structions are mutually inconsistent, wife. The defense sought to estab­ CMA said it could not determine lish that the checks were drawn as which one was followed by the court­ the result of an honest mistake of martial. fact. The law officer instructed the court-martial in part "that if the ac­ LAW OFFICER'S INSTRUCTIONS cused was laboring under such ignor­ ance or mistake and this ignorance or Henderson, 4 USCMA 268, 14 May mistake was honest iand reasonable 1954 under the circumstances, he cannot be Accused was convicted of rape (Ar­ found guilty of larceny-However, it ticle 120). The evidence tended to is essential to this defense that his establish that the accused approached ignorance or mistake-be both honest the victim on the pretext of securing and reasonable under the circum­ road information, struck her, thrust stances. If the accused's ignorance or her to the ground, stifled her screams, mistake was not reasonable under the overpowered her, and accomplished circumstances, that is, if it was the his evil purpose. The law officer in­ result of carelessness or fault on his cluded in his instruction the following part, it is not a defense." On appeal, sentence: "Force and want of consent CMA reversed the conviction holding are indispensible to the offense, but the law officer erred in instructing the the force involved in the act of pene­ court-martial that the defense of ig­ tration will suffice if there is no con­ norance or mistake of fact requires ssnt." On appeal, the accused as­ that the mistake be reasonable. The • serted that this sentence was preju­ Court stated that as a necessary dicial being only applicable in a situ­ predicate for a conviction of larceny, ation where the victim is unconscious, the court-martial must find that the stuporous, or so mentally deficient as accused intended, at or after the time to be legally unable to consent. CMA of the taking, permanently to deprive affirmed the conviction holding that the owner of the property in question the argument ignores the remainder -there is no such thing as negligent of the law officer's instructions. The larceny. An honest ignorance or mis­ court members were explicitly in­ take of fact may be a defense even formed that "Mere verbal protesta­ though either was due to carelessness. tions and a pretense of resistance are An additional error was considered by not sufficient to show want of con­ +"!Je Court in that the law officer in­ sent." They were expressly warned The Judge Advocate Journal 41 that a victim of an alleged rape must alleged, but asserted that he thought have taken such measures to frus­ the girl was a prostitute and had con­ trate the execution of her assailant's sented to his proposition. The law design as she is able to take under officer in instructing the court de­ the circumstances. The Court held scribed the degree of force necessary that the instruction was not preju­ for a rape, but did not give an ex­ dicial since it bore no sufficient rela­ planation of what constitutes the tion to the facts of the case. force necessary to complete the act under various conditions and degrees Decanay, 4 USCMA 263, 14 May 1954 of resistance. On appeal, the accused Accused was convicted of unpre­ objected to this instruction and CMA meditated murder (Article 118). The held that it was not error since the homicide occurred while the accused offense charged was an assault aggra­ was alone in the home of the female vated by an attempt to have unlaw­ member of a love triangle. Accused ful sexual intercourse by force· and asserted that the victim advanced to­ without consent and that offense was ward him and he, fearing an assault, established even if the woman had loaded and cocked a pistol he had abandoned her initial resistance and brought with him and the weapon was agreed to the connection. The Court discharged killing the victim. The held that the instruction presented no law officer instructed the court-mar­ fair risk of prejudice to the accused tial in part to the effect that the court and affirmed the conviction. must be satisfied that at the time of the killing, the accused intended to RES JUDICATA kill or inflict great bodily harm or Smith, 4 USCMA 369, 28 May 1954 was engaged in an act inherently dan­ Accused was convicted of larceny gerous to others and evincing a wan­ of a package from the mail (Article ton disregard of human life. On ap­ 134). Earlier, accused had been tried peal, the accused contended that the for larceny of two letters from the instruction was prejudicial and that mail, and in that trial a confession there was no evidence of an act in­ was introduced wherein accused ad­ herently dangerous to others. CMA mitted the larceny of the two letters ordered a rehearing stating that since and the earlier larceny of the package the law officer and the trial counsel which was the object of the larceny did not detect the inapplicability of charge in the second trial. The law the instruction, the members of the officer at the first trial excluded the court-martial could not be expected to confession on the ground that the ac­ have detected it. cused had not been warned of his rights under Article 31 by the person Short, 4 USCMA 437, 25 June 1954 who obtained the confession althnugh Accused was charged with and con­ he had in fact been advised of his victed of assault with intent to com­ rights by another person at a prior mit rape (Article 134) upon a Jap­ time. A motion for a finding of not anese girl. The accused testified, ad­ guilty was granted. In the trial of mitting that he fondled the victim as the second case, the same confession 42 The Judge Advocate Journal

was admitted in evidence over ob­ being escorted to a cell in his stock­ jection that its admissibility was res ade by an Air policeman the accused judicata. On petition of the accused, said in remonstrating about the pace CMA reversed the conviction holding being set "I'll knock your -- teeth that it was immaterial whether the down your throat". On the appeal, issues determined at the first trial the accused asserted that the specifi­ were decided rightly or wrongly. The cation alleging the wrongful com­ doctrine of res judicata as enunciated munication failed to allege an offense in the Manual for Courts Martial is under Article 134 on the ground that broad and sweeping and covers any communicating a threat is only an fact or law in issue and finally deter­ offense when in violation of Articles mined, whether directly or collaterally 89, 91, 127, or 128. The Court in involved, and even though the sepa­ affirming the conviction said "-- in rate offenses involved in each trial the communication of a threat to any did not arise out of the same trans­ person in the military establishment, action. direct and palpable prejudice to good order and discipline of the armed LIMITATIONS ON ARTICLE 134 forces" is found. A principal purpose of punishment for communicating a Hallett, 4 USCMA 378, 28 May 1954 threat is to maintain order in the Accused was charged with misbe­ military community and to prevent havior before the enemy under a the outbreak of violence. Since com­ specification that "before the enemy, municating a threat is not otherwise he was guilty of cowardly conduct in provided for in the Uniform Code, it that he wrongfully failed to accom­ is properly alleged as a violation of pany his platoon on a combat ambush Article 134. patrol, as it was his duty to do" (Ar­ ticle 99 (5) ). By exceptions and sub­ USE OF DEPOSITIONS IN stitutions, the CM found that "be­ CAPITAL CASES fore the enemy, he wrongfully failed Anderten, 4 USCMA 354, 28 May 1954 to accompany his platoon --" (Ar­ ticle 134). On petition of the accused, The accused was charged with de­ CMA held in Article 99 Congress pro­ sertion (Article 85), but was con­ posed to cover the entire range of of­ victed of AWOL (Article 86). Dep­ fenses which are assimilable to mis­ ositions were introduced by the prose­ behavior before the enemy. No room cution concerning the charge of de­ is left in this area for the application sertion. The record of trial revealed of Article 134. Accordingly, conduct that in the SJA's pretrial advice there which does not fall within Article 99 was a recommendation to the conven­ may not be punished through an in­ ing authority that the charge be vocation of Article 134. treated as not capital (desertion in time of war). The convening au­ Holiday, 4 USCMA 454, 2 July 1954 thority approved the recommendation Accused was convicted of communi­ in writing but in the endorsement on cating a threat .(Article 134). While the charge sheet referring the case to The Judge Advocate Journal 43 trial, failed to provide that the case the failure to object to the deposition te treated as not capital. On appeal, at the trial did not constitute a waiver, the accused asserted that the admis­ however, the conviction was affirmed sion of the depositions was error be­ upon the Court's finding that no cause of the convening authority's specific prejudice resulted from the failure to direct that the charge be illegal introduction of the deposition treated as not capital. In affirming since the matter contained in it was the conviction, CMA held even though admitted by the defendant at the there was a variance from normal trial. procedure, the error, if any, was one of form and not of substance. Ob­ DISQUALIFICATION OF COUNSEL jection was also made on appeal that Stringer, 4 USCMA 49!, 9 July 1954 morning reports introduced in evi­ dence were <;onflicting and not pre­ Four accused were convicted of con­ pared in accordance with regulations. spiracy to sell military property (Ar­ CMA as to this assertion found that ticle 81), sale of military property there was ample evidence to sustain (Article 108), and larceny (Article the finding of the court aside from the 121). All the charges arose from the morning report entries and that the same transaction. The same officer objection to the morning reports went acted as assistant trial counsel in the only to their weight as evidence and trial of each accused. At the trial of not to their admissibility. one of them, an objection was made to the assistant trial counsel's ap­ QUALIFICATIONS OF COUNSEL pearance on the ground that he had TAKING DEPOSITIONS acted for the defense in the same case Drain, 4 USCMA 646, 13 August 1954 in violation of Article 27a. This of­ ficer, the assistant trial counsel, had The accused was convicted of as­ acted for two alleged co-conspirators sault with intent to influence the vic­ who were not among the accused and tim's testimony in a pending court-_ had induced them to accept immunity martial trial (Article 134). At the and thereafter testify against each trial by general court-martial, a dep­ of the accused. The same officer also osition taken prior to reference of the represented the officer in charge of all charge for trial was introduced in evi­ the men involved in the transaction at dence. Neither of the counsel who a pretrial hearing and later in a gen­ represented the parties in taking the eral court-martial of that officer, had deposition on oral interrogatories represented him and secured his ac­ had been certified under Article 27b quittal on a charge of dereliction of (2). The accused assigned this as duty. On appeal, it was contended error on appeal. CMA held that the that the assistant trial counsel was taking of the deposition without the disqualified to act. In affirming the provision of certified attorneys to rep­ convictions, CMA held that the as­ resent both the Government and the sistant trial counsel was not disquali­ accused violated the Congressional in­ fied as he had not acted for the de­ tent expressed in Article 27 and that fense in the same case. 44 The Judge Advocate Journal

DISTINCTION BETWEEN LAR­ ADMISSIBILITY OF CONFESSION CENY AND MISAPPROPRIATION Hernandez, 4 USCMA 415, 2 July McCarthy and Wilkinson, 4 USCMA 1954 385, 28 May 1954 Accused was convicted of rape (Ar­ Two accused men were convicted ticle 120). The prosecution offered of breach of parole (Article 134), in evidence a confession admitted over wrongful appropriation of a motor objection together with other evi­ vehicle (Article 121), and the trans­ dence. The defense was that the portation of that vehicle in violation accused was inadequately advised of of the Dyer Act (18 USC 2311 et seq.) his rights under Article 131 and did (Article 134). On appeal, accused as­ serted that an automobile which was not understand the statement. The merely the object of wrongful appro­ board of review reversed the convic­ priation was not a stolen vehicle un­ tion determining that the accused did der the Dyer Act. In setting aside the not understand his rights and that conviction of that specification, CMA he might not have understood the con­ held that the history and Federal ju­ fession and further that the other evi­ dicial interpretation of the Dyer Act dence was barely sufficient to estab­ show that the act requires a taking lish a prima facie case. Upon certi­ with an intent permanently to deprive fication, the Government argued that the owner or possessor of his prop­ the board of review should have re­ erty. Since the accused was found viewed the record of trial to deter­ guilty of appropri~tion with the in­ tent temporarily to deprive, there was mine if the other evidence would have no violation of the Dyer Act. supported the conviction without the improperly admitted confession. The PROOF OF DESERTION Court in affirming the board of review Salter, 4 USCMA 338, 21 May 1954 held it was reversible error to admit over the accused's objection a confes­ Accused was convicted of desertion terminated by apprehension. It was sion which, as determined by the stipulated that the accused was ap­ board of review, was obtained with­ prehended by civil authorities. The out compliance with Article 31. Ap­ board of review affirmed only so much pellate tribunals may reverse a con­ of the findings as found the accused viction because of improper admissi­ guilty of desertion terminated in a bility in evidence of a confession. manner unknown. The case was cer­ The Court also on another assigned tified to CMA, which affirmed tho. error stated with respect to the law board of review, holding that there officer's limiting defense counsel in was a hiatus of proof of involuntary cross-examination that "the right of return to military control as the ap­ .prehension may have been for a civil cross-examination is a fundamental -0ffense for which the accused may right and an invaluable means for de­ .have been· released and then volun­ termination of the truth; it should tarily returned to military control. not be unnecessarily curtailed." The Judge Advocate Journal 45

NO RIGHT OF COUNSEL BEFORE Subsequently, at the trial by general CHARGES court-martial, the accused applied for a continuance on the ground that he Moure, 4 USCMA 482, 2 July 1954 was awaiting reply to a letter sent Accused was convicted of murder through channels to the Secretary of (Article 118 (4)) and sentenced to Navy to ascertain if it was contrary death. At the trial his confession to Navy policy to be tried by a court­ was admitted in evidence over ob­ martial after having been acquitted jection. On appeal, the accused as­ by a state court. The law o:Iicer serted that the confession was inad­ granted the continuance, but the con-. missible in that it was obtained dur­ vening authority in writing directed ing confinement prior to the charges that the trial proceed. CMA ordering being preferred and that he was de­ a rehearing stated that the law of­ nied counsel during the investigation ficer's ruling was not subject to re­ prior to the preferring of charges. view until the trial had been com­ CMA held that the rule in McNabb v. pleted and then only if the ruling was United States, 318 US 332 and Rule 5, prejudicial to the accused. The Federal Rules of Criminal Procedure, convening authority had no power to have no application in the military review interlocutory rulings and this judicial system and could not operate action constituted illegal interference as an instruction on the admissibility with the law officer in the exercise of of confessions in trials by courts-mar­ his judicial functions. This interfer­ tial and held further that nowhere in ence was held to be prejudicial to the the Code or in the Manual is there accused and affected a substantial any provision according a person sus­ right. pected of crime the right to counsel prior to the preferring of charges. SUFFICIENCY OF EVIDENCE

CONVENING AUTHORITY WITH­ Rutherford, 4 USCMA 461, 2 July OUT POWER TO REVIEW INTER­ 1954 LOCUTORY RULINGS Accused was charged and convicted under two specifications alleging the Knudson, 4 USCMA 587, 6 August communication of a threat to kill his 1954 commanding officer. Two soldiers The accused had been apprehended came to the guard house to return the by state authorities for an alleged act accused to his organization when the of sodomy (Article 125), released on accused begged to be left in confine­ bond and returned to the Navy. ment expressing the fear that if he Thereafter charges were preferred returned to his unit, he would kill the and trial by general court-martial rec­ commanding officer. On the next day ommended and the case referred to a ... before a summary court, accused general court-martial for trial. The again requested that he be confined so accused was then returned to the that he wouldn't kill the commanding state authorities,· tried in the state officer. CMA reversed the conviction court for the offense, and acquitted. stating the evidence to be insufficient 46 The Judge Advocate Journal

and saying "Rather than demonstrat­ morphine. On appeal, he asserted ing an avowed present determination that the opinion was inadmissible be­ or intent to injure presently or in the ing based on tests lacking in scientific future, the accused's words and ac­ reliability and even if admissible, was tions reveal a fixed purpose to avert insufficient to sustain the conviction. such a result". The Court in affirming the conviction held that the opinion evidenced in the OPINION EVIDENCE ON case was proper in that it was a SCIENTIFIC TESTS proper subject for expert testimony Ford, 4 USCMA 611, 6 August 1954 and the expert witness was qualified. The Court concluded that the validity The accused was convicted of of the tests was sufficiently well es­ wrongfully using a habit-forming tablished to merit general acceptance drug (Article 134). A Government in the particular field. The Court expert testified by deposition that in went on to find that under the circum­ his opinion, based on certain color stances, the accused's denial raised a reaction tests, a specimen of the ac­ question of fact which the court re­ cused's urine contained morphine. The solved adversely to him upon suf­ accused testified denying the use of ficient evidence.

COL. RIGSBY NAMED PROFESSOR OF LAW AT USAF A

Col. Allen W. Rigsby, a Director of the Association and heretofore SJA of the Strategic Air Command, has been nominated Professor of Law at the new U. S. Air Force Academy and the head of the Academy's legal department. Col. Rigsby is a graduate of the University of Oklahoma Law School and formerly was a member of the firm of Garret, Goodson, and Rigsby with offices in Oklahoma City. For the past fourteen years, Col. Rigsby has been in the military service during which time, in addition to assignments as staff judge advocate, he was an instructor at The Judge Advocate General's School at Michigan during World War II and at the JAG School of the Air University, Maxwell Air Force Base, Alabama.

Please advise the headquarters of the Association of· any changes in your address so that the records of the Association may be kept in order and so that you will receive all distributions promptly. I~, 111 u11mimn11m11111111umm111111mmm1111111m1111111111111111111m1111111111111111111111111111•1111111111mmmm11111mmmmmt1111111111111111111111mmnmnnonn''""""""""""''"""""'"'"'""'""'""""'"'"""""!;...... B"'O'O"KR"E-v·;ew·-·-1

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THE ART OF ADVOCACY

By Lloyd Paul Stryker

Simon and Schuster; (1954) pp. 305; $5.00

Whatever else may be said, "The addresses, cross-examination, and ap­ Art of Advocacy" is an eloquent plea pellate. argument. He will not, of, . for lawyers to undertake courtroom course, find an omniscient formula, careers. Mr. Stryker's argument is for advocacy is an art. He is certain, founded on both the public need for however, to find useful guides for this service and the ethics of our both trial and appellate practice, since profession. From his own as well as advocacy is also a science. Moreover, the experiences of other distinguished he will find, although only through trial and appellate lawyers, the pres­ occasional references, helpful advice ent need for this kind of public serv­ on matters of negotiation, since the ice is made to appear urgent. In techniques of advocacy are those of recounting these experiences, Mr. persuasion anywhere. Stryker permits the nobility of this In the main, through example and service to speak for itself. To many, wit, Mr. Stryker achieves what he Mr. Stryker's appeal will be con­ intended, an effective "plea for the vincing. Even those, however, who renaissance of the trial lawyer." In doubt the need or deny the duty, or doing so, he pleads for men not only who denounce ·Mr. Stryker's recom­ of competence but also of courage, mendations, will not fail to appreciate sincerity, and integrity. It is an ex­ Mr. Stryker's great talent for per­ traordinary plea for extraordinary suasion. men. To Mr. Stryker, the advocate's Indeed, each lawyer who reads "The strength of character and mastery of Art of Advocacy" will recognize in language are the basic tools of his this book a masterful exercise in the trade. Is he out of keeping with the "science" as well as the "art" of per­ times in urging the specialized use of suasion. For this reason, the young these tools in the court room? This lawyer, especially, will enjoy and re­ is one of the important questions each spect its wisdom. He is certain to reader must answer for himself. learn much on matters of interviews and investigation, opening and closing SHERMAN S. COHEN. 47 lVllAT THE llE~IBERS ARE DOING Alabama Conueetient Maj. William E. Davis (ETO Capt. Harvey A. Katz, having re­ Claims) of Birmingham is Clerk of cently completed a tour of duty in the United States District Court for The Judge Advocate General's Office the District of Alabama. He recently of the Army, has resumed the prac­ attended a conference in the Admin­ tice of law with offices at 2683 Main istrative Office of the United States Street, Glastonbury. Courts in Washington, D. C. While Capt. Stanley L. Kaufman (7th on a two-week tour of duty at Ft. Mc­ OTS) recently announced the opening Clellan this summer, he saw Col. Ray­ of offices for the general practice of mond A. Egner, who, during World law at 58 East State Street, West­ War II, was assigned to ETO Claims. port. Capt. Kaufman is a member of Arka.nsas the firm of Kaufman, Imberman & Taylor with offices at 511 Fifth Ave­ Col. Paul L. Anderson, former X nue, New York City. Corps Judge Advocate, who was re­ District of Columbia tired in 1952 for disabilities incurred in Korea, recently announced the Col. Archibald King recently re­ opening of law offices for the general tired from active duty for the third practice of law at Rogers. time. Col. King, who was commis­ sioned in 1917, was ~etired on August California 31, 1942, and then immediately re­ Los Angeles Judge Advocates re­ called to active duty and remained on ceived their St1mmer training at Ft. active duty until 1946. He was again Lewis, Washington, during the sum­ recalled to duty in 1948 and assigned mer. Among those present at Ft. the task of revising and bringing up Lewis were Col. John P. Oliver, Su­ to date the Federal Code as it applies perior Court Commissioner, Lt. Col. to the Armed Services, a job which John Davenport, Lt. Col. Robert had last been done in 1870. Col. King Walker, Lt. Col. David I. Lippert, is a member of the firm of King and Maj. Edward McLarty, Capt. Herschel King with offices in the District of Champlin, Capt. LaVerne Baack, Columbia. Capt. Jess Whitehill, Lt. Col. M. D. Murray A. Kivitz recently an-· Brakemeyer, 1st Lt. Harold Williams, nounced the opening of offices for the 1st Lt. Cherry Nutter. These officers general practice of law in the Denrike are students of the Judge Advocate Building, Washington, D. C. Branch of the ORC School at Fort Col. Doane F. Kiechel was recently MacArthur. Col. Lippert is the Di­ transferred from Fort MacArthur, rector of the Judge Advocate Branch California, and assigned to the Office of the School. of the Under Secretary of the Army 41} The Judge Advocate Journal 49 for duty with the Armed Services New York Board of Contract Appeals. At the regular meeting of the Capt. Edward F. Huber recently Washington area members of the announced that his law firm, Dean, Judge Advocates Association held at Magill & Huber, has merged with the Dodge Hotel on the evening of the firm of Naylon, Foster, Shepard October 4th, Col. Frederick Bernays & Aronson. Mr. Huber continues the Wiener, who had been the Reporter general practice of law as a member to the Rules Revision Committee of of the firm of Naylon, Foster, Dean, the Supreme Court of the United Shepard & Aronson with offices at 61 States, gave a brief summary of the Broadway, New York City 6. changes in the rules of practice be­ Lt. Col. Theodore L. White, having fore the high court. recently completed a tour of extended active duty in the Office of the Army Florida Staff Judge Advocate, First Army, has resumed the practice of law with Col. R. E. Kunkel of Miami re­ offices at 280 Madison Avenue, New cently announced the dissolution of York City 16. the firm of Kunkel and White and Col. Arthur Levitt of New York the continuance of his practice of law City, President of the New York City with offices at 1022 Seybold Building, Board of Education, was recently Miami 32. nominated for the office of state comptroller on the Democratic ticket. Maryland Ohio Capt. David H. R. Loughrie was recently assigned as Staff Judge Ad­ Col. James Arthur Gleason of vocate of the Research and Develop­ Cleveland recently announced the as­ ment Command, USAF, at Baltimore. sociation of Judge William J. Mc­ Dermott with his firm for the general JUassaehusetts practice of law with offices in the Myron Lane of Quincy was recently Williamson Building, Cleveland. Col. elected District Attorney of Norfolk Gleason is a member of the firm of County where he has been Assistant Gleason, Haner and Mazanec. District Attorney since World War II. Texas l'Uinuesota Col. Robert E. Joseph, USA-Ret., Clarence Tormoen· of Duluth was was recently admitted to the bar of recently appointed Assistant to the the State of Texas. Col. Joseph is Secretary of the Treasury. Counsel for United Services Automo­ Thomas Lawler of Rochester re­ bile Association at San Antonio. cently announced the reopening of Coincident with the Texas State offices for the general practice of law Bar Association annual meeting, Col. in the First National Bank Building, Gordon Simpson held a breakfast Rochester. meeting of Judge Advocates at which 50 ·The Judge Advocate Journal

Major General Eugene M. Caffey, The Virginia Judge Advocate General of the Army, made a brief address. Those attend­ Capt. Walter W. Regirer of Rich­ ing the breakfast meeting of JAG's mond advises the Richmond United at San Antonio included: Col. Charles States Army Reserve School is the Cheever, San Antonio; Col. Clarence first Pilot Model School for law stu­ E. Brand, San Antonio; Col. Robert dents in the history of the Army. E. Joseph, San Antonio; Col. Louis E. Law students will study military law Marshall, San Antonio; Col. Robert for three years with the prospect l\'L Springer, SJA Section, Fourth upon their graduation from school of being commissioned in The Judge Ad­ Army, FSHT; Col. C. G. Schenken, SJA Section, Fourth Army, FSHT; vocate General's Corps. Lt. Col. Samuel S. Wolf, SJA Section, In conducting Judge Advocate sum­ mer training for eleven USAR Fourth Army, FSHT; Lt. Col. Fran­ cis R. Boyles, SJA Section, Fourth Schools of the Second Army and one Army, FSHT; Lt. Col. Thomas 0. USAR School _of the First Army, Mitchell, SJA Section, Fourth Army, Virginians topped all other Armies FSHT; Maj. Roy I. Tennant, Jr., SJA in the number of participating Re­ Section, Fourth Army, FSHT; Col. serve Personnel. It is significant to Thomas R. Taggart, SJA Section, note that whereas in prior years the Crew Training Air Force, Randolph student body at these USAR Schools Field; Lt. Col. Luther G. Strange, consisted largely of field grade of­ SJA Section, Crew Training Air ficers, this year junior grade officers Force, Randolph Field; 1st Lt. Ed were predominant. Also, thirty en­ Finck, SJA Section, Crew Training listed law students from Washington Air Force, Randolph Field; Lt. Col. and Lee Law School, Dickinson Law Alfred K. Lee, SJA Section, San An­ School and Ohio State Law School tonio Air Materiel Area, Kelly Field; attended the courses, Two courses Lt. Col. John M. Flatten, SJA Section, were conducted: A basic course taken USAF, Security Services, Kelly Field; by sixteen officers and thirty enlisted 1st Lt. Robert H. Gooch, SJA Sec­ men, and an advanced course con­ tion, USAF, Security Services, Kelly ducted for forty-eight offic-ers. Field; Lt. Col. Arthur J. Shaw, Jr., The School is commanded by Col. SJA Section, Lackland AFB; Capt. M. G. Ramey assisted by Col. J. H. B. Julius E. Slover, SJA Section, Lack­ Peay, Jr., both of Richmond. land AFB; 1st Lt. Patrick D. Sulli­ Korea van, SJA Section, Lackland AFB; 2nd Lt. Jacob Jennings, SJA Section, About a year ago, because of con­ Lackland AFB; Airman 3d Class centration of Judge Advocates of the Harry N. D. Fischer, SJA Section, Army and Air Force at Taegu, an Lackland AFB; Forrest Markward informal social organization was es­ Ft. Worth; Emmett L. Whitsett, Jr.: tablished called the "Taegu Bar As­ San Antonio; Lynn B. Griffith, Waxa­ sociation" which served as a medium hachie; Edward Kliewer, Jr., Dallas; of periodic professional and . social Chas. L. Williams, Henderson. contact between Judge Advocates and The Judge Advocate Journal 51 other lawyers in Korea. More re­ Johnson, General Kim Wang Wong, cently, because of the relocation Colonels Charles R. Bard, Claude E. of Headquarters, the organization Reitzel, and Harold Sullivan, Dean changed its name to "Taeguk" Bar Robert G. Storey and Dr. Jerome Association, the word, "Taeguk" sig­ Hall. nifying universality under the Con­ Many Judge Advocates are becom­ fucian cosmology. Meetings are held ing members of the Korean Bar dur­ by this group about once monthly ing the period of their service there, and attendance usually runs to forty but it is not expected that many will or fifty lawyers. On July 3, 1954, wish to remain for the private prac­ Col. Alfred C. Bowman acted as host tice of law in the Republic of Korea to the group among which were Gen­ after their military tours are com­ eral E. J. McGraw, General Bert pleted.

REGULAR ARMY PROMOTIONS

The following members of the Association were among those promoted in the Regular Army during the past summer: To be colonels: Robert McD. Gray; Edward J. Kotrich; Noah L. Lord; Robert H. McCaw; Palmer W. McGrew; and Clio E. Straight. To be lieutenant co1;:)n"e1s: Maurice Levin and John M. Pitzer.

Use the Directory of Members when you wish local counsel in other juris­ dictions. The use of the Directory in this way helps the Association perform one of its functions to its membership and will help you. You can be sure of getting reputable and capable counsel when you use the Directory of Members.

The Journal is your magazine. If you have any suggestions for .its im­ provement or for future articles, please bring them to the attention of the Editor. We invite the members of the Association to make contributions of articles for publication in the Journal. Publishability oi any article submitted will be determined by the Editor with the advice of a committee of the Board of Directors composed of Lt. Col. Reginald Field, Col. William J. Hughes, Jr., Col. Charles L. Decker, USA, Capt. George Bains, USN, and Col. Louis F. Alyea, USAF. 52 The Judge Adrncate Journal SUPPLEMENT TO DIRECTORY OF MEMBERS JULY, 1953

NEW :MEMBERS

James A. Alexander Milton G. Gershenson 1335 St. Ann Street Brooklyn Law School Jackson, Mississippi 375 Pearl Street Brooklyn 1, New York George W. Baker, Jr. 1214 Mercantile Trust Bldg. Lt. Arnold M. Gold Baltimore 2, Maryland Asst. Staff Judge Advocate Hq., Webb Air Force Base John M. Bates Big Spring, Texas Valley Brook Road John P. Kennedy, Jr. Nashville, Tennessee 609 Law Building William J. Bivens Charlotte 2, North Caroiina 7 Kinkaid Road Murray A. Kivitz Astoria, Oregon 1010 Vermont Avenue, N. W. Washington, D. C. Col. John E. Blackstone Chief, JAG Div., AC & SS Col. Robert L. Lancefield Maxwell AFB, Alabama Army Staff Judge Advocate Hq., Fifth Army Jack L. Bloom 1660 E. Hyde Park Blvd. Box 503 Chicago 15, Illinois Greenville, South Carolina Richard F. -Logan Lt. John W. Cooper P. 0. Box 668 2473d AFRCTC St. Petersburg, Florida 6081 N. 43d Street Milwaukee 9, Wisconsin Charles W. Lusk, Jr. 1415 Hamilton Natl. Bank Bldg. Arthur Crownover, Jr. Chattanooga, Tennessee Stahlman Building Nashville 3, Tennessee Hugh M. Matchett 30 N. Michigan Ave. Lt. Victor A. DeFiori Chicago 2, Illinois JA Sect., Hq. 8th ArmY. APO 301, c/o Postmaster Leroy McEntire, Jr. San Francisco, California Box 1425 Decatur, Alabama Charles W. Ellis Box 463 Richard T. Moore Greer, South Carolina Newbern, Tennessee The Judge Advocate Journal 53

Edward F. Morgan Stokes V. Robertson, Jr. 405 Alston Building P. 0. Box 1947 Tuscaloosa, Alabama Jackson, Mississippi

Clarence C. N eslen Lt. Robert F. Sagle Continental Bank Building Hq. 50th Ftr.-Bmr. Wg. Salt Lake City 1, Utah APO 109, c/o Postmaster New York, New York N. W. Overstreet, Jr. P. 0. Box 961 Henry M. Shine, Jr. Jackson, Mississippi Room 3118, GAO Building Washington 25, D. C. L. Arnold Pyle Clarence R. Trotter 622 Naples Road 709 Market Street Jackson, Mississippi Knoxville, Tennessee William E. Rathman Lt. Justin L. Vigdor Savings & Loan Building OTJAG, Dept. of the Army Middletown, Ohio The Pentagon Washington 25, D. C. John H. Reddy 214 Hamilton Natl. Bank Bldg. Samuel D. Wallace Chattanooga, Tennessee 1516 DuPont Building Miami 32, Florida Harvey Rosenberg Irwin I. Zatz 1010 Vermont Ave., N. W. One N. LaSalle Street Washington, D. C. Chicago, Illinois

CHANGE OF ADDRESS

John B. Abernathy James A. Blalock 4257 South 35th Street 3900 South 7th Street Arlington, Virginia Arlington, Virginia Maj. Philip F. Biggins Lt. Col. Ralph W. Adams Courts & Boards Section Legal Office, Air Defense Command Fort Story, Virginia Colorado Springs, Colorado Col. Alfred C. Bowman Hugh B. Archer Staff Judge Advocate 6624 Rannoch Road Korean Communications Zone Washington 14, D. C. APO 234, c/o Postmaster San Francisco, California Maj. Victor D. Baughman John P. Bradshaw SJA Section, Hqs., MDW 35 Pine Street Washington 25, D. C. Farmington, Missouri 54 The Judge Advocate Journal

Lt. William C. Bullard Henry L. Glenn JA Sec., Hq. 9th Inf. Div. 61 W. 9th Street APO 111, c/o Postmaster New York 11, New York New York, New York Donald H. Grant George H. Cain Oneonta, New York 134 Orchard Street Lt. William T. Griffith Hicksville, New York Hq. 6332nd AB Wing Maj. William G. Catts APO 239, c/o Postmaster 649 Brandywine Street, S. E. San Francisco, California Washington 20, D. C. Maj. F. Ned Hand Lt. Col. James S. Cheney Hq. FEAF, Box 504 OTJAG, USAF APO 925, c/o Postmaster The Pentagon San Francisco, California Washington 25, D. C. Lt. Col. Tom B. Hembree Lt. Col. Franklin W. Clarke 10 Riverside JA Div., Hq. USAREUR Ft. Leavenworth, Kansas APO 403, c/o Postmaster Lt. Paul D. Heyman New York, New York 67-34 150th St., 413A John B. Coman Kew Gardens Hills 67, New York 445 Park Avenue New York 16, New York Edward F. Huber 61 Broadway Kenneth G. Cumming New York, New York Citizens National Bank Bldg. Capt. William H. Huffcut Hampton, Virginia 319 Concord Drive Charles M. Dickson Menlo Park, California 208 W. Craig Lt. Col. Robert C. Hunter San Antonio, Texas SJA Sec., Hq. 4th Armored Div. Fort Hood, Texas Hugh C. Evans 5415 Connecticut Ave., N. W. David D. Jamieson Kenmore Apts., Apt. No. 205 1555 Pratt Street Washington, D. C. Philadelphia· 24, Pennsylvania

Riley Eugene Fletcher Lt. Col. Harry Carl Kait 209 North 18th Street JAGO, Dept. of the Army Corsicana, Texas The Pentagon Washington 25, D. C. Lt. Col. James K. Gaynor JA Sec., Hq. RYCOM Harold R. Kalvin APO 331, c/o Postmaster 401 Broadway San Francisco, California New York 13, New York The Judge Advocate Journal 55

Lt. Col. Alfred Kandel Lt. Col. Charles R. Mabee 123 Legrande Boulevard c/o American Consulate General Greenville, South Carolina APO 206A, c/o Postmaster New York, New York Lt. Col. Bernard A. Katz 206A Palmetto Drive • Lt. Col. John J. Madden Shaw View Heights JA Div., Hq. USAREUR Shaw Air Force Base, South Carolina APO 403, c/o Postmaster New York, New York Harvey A. Katz 2683 Main Street Col. Palmer W. McGrew Glastonbury, Connecticut JA Sec., Hq. Eighth U. S. Army APO 301, c/o Postmaster Maj. Irvin M. Kent San Francisco, California SJA, 373rd TPC APO 863, c/o Postmaster Rufus N. McKnight, Jr. New York, New York c/o Legal Dept., Sunray Oil Corp. P. 0. Box 2039 Col. Doane F. Kiechel Tulsa 2, Oklahoma 3321 Old Dominion Blvd. Alexandria, Virginia Col. Martin Menter Staff Judge Advocate Lt. Col. John P. King, SJA Lackland Air Force Base The Personnel Center, 6020 S. U. San Antonio, Texas Oakland Army Base Oakland, California Alfred R. Myatt, Jr. 30th FA Bn. Maj. Bertram L. Kraus APO 66, c/o Postmaster Hq. Sqd.-Legal Office New York, New York 18th Fighter Bomber Wing APO 970, c/o Postmaster George E. Nagle San Francisco, California 1764 - 18th South Col. Arnold LeBell Seattle 44, Washington Hq., Air War College Air University Maj. Donald W. Nofri Maxwell Air Force Base 1414th AB Group Montgomery, Alabama APO 616, clo Postmaster New York, New York Col. Aldo H. Loos BOJAG, Fort Holabird Thomas R. North Baltimore 19, Maryland Court House Plattsburg, New York Capt. David H. R. Loughrie Air Rearch & Development Command Lt. Col. Donald W. Paffel P. 0. Box 1395 4726 - 24th Road, North Baltimore 3, Maryland Arlington, Virginia 56 The Judge Advocate Journal

Irving Peskoe Lt. Col. James M. Stubbs 6057 S. W. 8th Street Office of Staff Judge Advocate Miami, Florida Hq. Aviation Engineer Force Walters Air Force Base, Texas Col. John Marshall Pitzer Student Detachment Capt. Lee S. Tennyson Army War College Headquarters Squadron Carlisle Barracks, Pennsylvania 315th Troop Carrier Wing (M) APO 963, c/o Postmaster Lt. Lucius J. Polk, Jr. San Francisco, California 121 Glenwood Court San Antonio, Texas Brig. Gen. William T. Thurman 516 C Street Maj. Carl B. Prestin Wright-Patterson Air Force Base Office of the Staff Judge Advocate Ohio Hq., Iceland Air Defense Force APO 81, New York, New York Lt. Sherman E. Unger Hq. 5039th A. B. Wing Lt. Col. Robert R. Renfro Elmendorf AFB Hq. Sq. Sec., 3650 MT Wing APO 942, c/o Postmaster Sampson AFB, New York Seattle, Washington Lt. Col. Waldemar A. Solf Student Detachment Justin L. Vigdor Armed Forces Staff College 400 Central Trust Building Norfolk 11, Virginia Rochester, New York Col. Dell King Steuart Eugene A. Wright 709 Andrus Building County-City Bldg. Minneapolis, Minnesota Seattle 4, Washington Henry C. Stockell, Jr. Philip W. Yager 6611 Ava Drive 4322 Leland Street Jacksonville 11, Florida Chevy Chase 15, Maryland

A strong Association can serve you better. Pay your annual dues. If you are uncertain as to your dues status, write to the offices of the Associa­ tion for a statement. Stay active. Recommend new members. Remember the Judge Advocates Association represents the lawyers of all components of all the Armed Forces.