JUNE 1973

D A PAMPHLET 27-50-6 HEADQUARTERS, DEPARTMENT OF THE ARMY, WASHINGTON, D. C.

THE NEW FEDERAL RULES OF EVIDENCE-PART III By: CPT Edward J. Imwinkelreid, Instructor, Criminal Law Div., TJAGSA

This is the third in a series of four articles sertion’s truth. Both reject the Morgan view on the Federal Rules of Evidence. In the first that non-assertive, non-verbal conduct consti- two articles, the author described the Rules’ tutes hearsay if the evidence of the conduct is background and compared Articles I through offered to prove the truth of the belief which VI1 of the Rules with the Manual rules. In actuated the ond duct.^ The Manual and Fed- this article, the author completes the compari- eral Rules differ in only one important respect. son. In the last article the author will assess The Manual view is that an extra-judicial the effect which the Rules’ adoption would statement remains incompetent hearsay even have on military evidence law. if the declarant subsequently appears to test- ify and subjects himself to cross-examination. ARTICLE VPII : HEARSAY Most modern commentators are in agreement that the main justification for the hearsay The traditional hearsay doctrine consists of rule is the lack of an opportunity to cross- a general exclusionary rule with numerous examine. For that reason, some commentators exceptions. The Introductory Note to Article have suggested that the rule should not apply VI11 evidences the Advisory Committee’s dis- where the declarant becomes a witness and satisfaction with the traditional doctrine. The available for cross-examinati~n.~The Commit- Note states that: tee adopted this suggestion to a limited ex- Criticisms of this scheme are that it is tent. For example, Rule 801 provides that if a bulky and complex, fails to screen good declaration is admissible as a prior consistent from bad hearsay realistically, and inhib- or inconsistent statement, the statement is also its the growth of the law of evidence.l admissible as substantive evidence. The Man- The Committee seriously considered but finally ual follows the contra, orthodox view that rejected proposals for the outright abolition prior consistent and inconsistent statements of the hearsay rule.* The Committee decided to are admissible solely for rehabilitation or im- content itself with a revision of the list of ex- peachment. ceptions. Given the Committee’s sympathy with the hearsay rule’s critics, the Commit- The Listing of the Exceptions tee’s revision understandably resulted in a 1 dramatic liberalization of the exceptions. Under some of the exceptions to the hearsay rule, the declarant’s unavailability i$ a condi- tion precedent to the statement’s admissibility. The Definition of Hearsay Since the exceptions evolved individually, the The Manual and Federal Rule 801 contain common law did not develop a single test for strikingly similar definitions of hearsay. Both unavailability. Thus, some of the common-law take the position that a hearsay declaration is exceptions require greater showings of un- an assertive statement or conduct by an out- availability than others.@The Manual follows of-court declarant, offered to prove the as- this traditional scheme. The Manual lists the Pam 27-50-6 + 2

TABLE OF CONTENTS arately, and each exception which requires a showing of unavailability The New Federal Rules of Evidence-Part 1 111 contains its own discussion of the requisite I 6 ASPR Committee NoFes showing. 12 Legal Assistance Update Federal Rules 803 and 804 exceptions which the Committee decided to 15 Attorney-Client Guidelines recognize. Rule 804 lists all the exceptions 19 Reorganization of the Reserve which require a showing of the declarant’s un- availability. The Note accompanying Rule 804 23 Patents points out that the development of different 24 SJA SpotlightEurope showings of unavailability was a historical : 26 New Litigation Regulation accident.s The Note asserts that (N)o reason is apparent for making dis- 28 Report From the U. S. Army Judiciary tinctions as to what satisfies unavailabil- 29 Military Justice Items ity for the different exception^.^

30 Claims Items Rule 804 applies a single definition of unavail- ability to all the listed exceptions. 31 Legal Assistance Items The adoption of a single definition of un- 32 JAG School Notes availability would undoubtedly simplify the administration of the hearsay rule in the Fed- 33 Personnel Section eral courts. However, the Committee’s stated t Materials of Interest reason for adopting a single definition is an over-simplification of the relationship between The Judge Advocate General the factors underlying the hearsay exceptions. -- Major General George S. Prugh Each exception is generally based on the con- The Assistant Judge Advocate General currence of two conditions; a necessity for re- Major General Harold E. Parker sorting to the hearsay declaration and a cir- Commandant, Judge Advocate General’s School 1 Colonel John Jay Douglass cumstantial guarantee of trustworthiness.s Editorial Board The circumstantial guarantee serves as a sub- Colonel William S. Fulton, Jr. stitute for ‘the opportunity to confront and Lieutenant Colonel John L. Costello cross-examine the witness.” For the exceptions Editor Captain Stephen L. Buescher requiring a showing of the declarant’s un- Administrative Assistants availability, the declarant’s unavailability sup- Mrs. Helena Daidone , plies the necessity for using the hearsay evi- Miss Dorothy Gross dence. If the declarant is truly unavailable, 1. the stark choice is between using the hearsay

evidence and completely foregoing the valuable I The Army Lawyer is published monthly by The information in the declarant’s possession. Judge Advocate General’s School. By-lined articles However, just as there ar.e degrees of neces- represent the opinions of the authors and do not sity, the circumstantial guarantees of trust- I necessarily reflect the views of The Judge Advocate worthiness in the individual exceptions vary General or the Department of the Army. Manuscripts on topics of interest to military lawyers are invited greatly in their strength. The Committee’s to: Editor, The Army Lawyer, The Judge Advocate analysis of the concurrence of the conditions General’s School, Charlottesville, Virginia 22901. is rather mechanical. In effect, the Committee Manuscripts will be returned only upon specific re- takes the position that as long as there is ne- I quest. No compensation can be paid to authors for cessity, the necessity’s concurrence with any articles published. Funds for printing this publication were ‘approved by Headquarters, Department of the circumstantial guarantee of trustworthiness

Army, 26 May 1911. justifies admission. In principle, it would seem _A Pam 27-50-6 3 that where the circumstantial guarantee is from information transmitted by a person particularly strong, the proponent should not with knowledge . . .”I3 It would certainly be be required to make as strong a showing of reasonable to construe this language to mean necessity as where the guarantee is weak. In- that as part of his foundation for a business creased administrative convenience perhaps record, the proponent must make an affirma- justifies Rule 804’s uniform treatment of un- tive showing that the entrant or one of his in- availability, but the accompanying Note over- formants had personal knowledge of the fact looks the importance of the varying strength or event. If the courts adopt this construction, of the different circumstantial guarantees of the proponent of a business entry would have trustworthiness. to lay a more extensive foundation under Rule 803 than he would under the Manual. Exceptions Recognized in Both the Manual and the Federal Rules The Federal Rule for dying declarations is Most of the exceptions listed in the Manual more liberal than the Manual rule. Rule 804 have counter-parts in the Federal Rules. requires simply that the declarant have be- lieved that death was imminent and that the The Manual and the Federal Rules recognize statement relate to the cause or the circum- the exception for declarations of state of body stances of the impending death. Rule 804 and mind. The only significant difference be- differs from the Manual provision in two im- tween the provisions is that while the Manual portant respects. First, while Rule 804 applies exception is limited to statements of a then the unavailability requirement to dying decla- existing state of mind or body, Rule 803 ex- rations, the declarant need not be dead; “un- tends the exception to statements of past con- availability is not limited to death.”14 The dition if the declarant made the statement for Manual incorporates the accepted view that purposes of diagnosis or treatment. The ra- the declarant must be dead at the time the pro- tionale for the extension is that if the declar- ponent offers his declaration in evidence. Sec- ant is consulting a physician for diagnosis or ond, the Rule does not limit the type of case treatment, he is just as likely to truthfully in which the exception can be invoked. The describe his past symptoms as he is to truth- Manual provides that dying declarations are fully describe his present condition. admissible only in prosecutions for homicide or an offense resulting in death. While the Like the Manual, Federal Rule 803 recog- Manual provision is restrictive, it is more nizes the business entry exception. The Rule liberal than the common-law view, limiting uses a more generic phrase, “records regu- of dying declarations to homicide prosecutions. larly conducted activity.’’ lo The Manual pro- vision is patterned after the Model Act for There is a vast difference between the Man- Proof of Business Transactions ;l1 and the ual and Federal Rule treatment of former proponent need prove only that the record is testimony. The Manual rule is that the testi- a routine entry, made in the regular course of mony is admissible against the accused only if business at or near the time of the fact or he was a party to the prior hearing or action. event recorded. The Manual explicitly states Rule 804 permits the use of former testimony that : if at the prior hearing, the testimony was All other circumstances of the making of offered “at the insistance of or against a party the writing or record, including lack of with an opportunity to develop the testimony personal knowledge by the entrant or by direct, cross, or redirect examination, with maker, may be shown to affect its weight, motive and interest similar to those’’ of the but these circumstances will not affect party the testimony is now offered against.l8 its admissibility.12 This language permits the “substitution of one On its face, Rule 803 is more restrictive. The with the right and opportunity to develop the Rule requires that the entry be made “by or testimony with similar motive and interest.” l6 Pam 27-50-6 4

The accused’s right to confrontation presently civilian defendant by providing that such re- has much greater protection in courts-martial ports are admissible against the Government. than it will have in Federal civilian cases if The Manual’s and Federal Rules’ provisions the Rule is adopted. . concerning excited utterances, past recollec- Rule 803 formulates the official records ex- tion recorded,’ and reputation are substantially ception in the following fashion : similar. Records, reports, statements, or data Exceptions Which Only the Federal Rules compilations, in any form, or public of- R ecognix e fices Qr agencies setting forth (A) the activities of the office or agency, or (B) The Federal Rules recognize numerous ex- matters observed pursuant to duty im- ceptions which the Manual does not mention. . posed by law, or (C) in civil cases and For example, Federal Rule 803 recognizes an . against the government in criminal cases, factual findings resulting from an investi- exception for declarations of present sense im- gation made pursuant to authority grant- pression. The Rule reads that : ed by law, unless the sources of informs A statement describing or explaining an tion or other circumstances indicate lack event or condition made while the de- of trustw~rthiness.~~ clarant was perceiving the event or con- While subdivisions (B) and (C) mention a dition, or immediately thereafter (is ad- duty requiring or an authority permitting the missible) .21 report, subdivision (A)omits any such refer- Several common-law decisions have recognized ence. It is, therefore, arguable that under sub- this exception. The theory underlying the ex- division (A), the proponent need prove only ception is that “substantial contemporaneity that the report relates to the office’s or of event and statement negative the likelihood agency’s activities ; he would not be required of deliberate or conscious misrepresenta: _- to make an affirmative showing that the pf- tion.” 22 ficial was required or authorized to prepare Rule 803 also permits the admission of the report. The Federal Rule seems to be more learned treati s as substantive evidence of liberal than the Manual rule. The Manual re- the truth o,a./ statements contained in the treat- quires that the proponent of any official record ises. The Manual allows counsel to use such establish that the record was made treatises only to cross-examine expert wit- within the scope of his (the official’s) nesses. official duties and (that) those duties in- cluded a duty to know, or to ascertain Rule 804 provides that when the declarant through appropriate channels of informa- is unavailable statements of recent perception tion, the truth of the fact or event, and to are admissible : record such fact or event.l* A statement, not in response to the‘insti- The difference will probably prove to be gation of a person engaged in investigat- slight. Officials have implied authority to ing, litigating, or settling a claim, which maintain registers of transactions which occur narrates, describes, or explains an event on their business premises,le and the military or condition recently perceived by the declarant, made in good faith, not in con- judge could judicially notice a statute or regu- templation of pending or anticipated liti- lation which expressly required or authorized gation in which he was interested. and preparation of the record.*O In one respect, while his recollection was clear (is admis- however, the Federal Rule is clearly more lib- sible) .23 eral than the Manual. In the military, as in To invoke this exception, the proponent must most civilian jurisdictions, the courts have show that : the declarant recently perceived difficulty deciding whether reports of investi- the event or condition ; the declarant made the gation, based upon third party statements, statement while his recollection was clear; af- qualify as official records. Rule 803 aids the firmatively, he made the statement in good ,- Pam 27-50-6 6 faith; and negatively, he did not make the The requirement of authentication or statement in contemplation of any litigation identification as a condition precedent to admissibility is satisfied by evidence suffi- which he was interested in. Although this pro- cient to support a finding that the matter vision is quite liberal, it is not as advanced as in question is what the proponent the Model Code provision, authorizing the ad- claims.27 mission of any hearsay declaration of an un- Rule 902 lists the types of evidence which available declarant. are self-authenticating, that is, which are ad- Finally, it is important to note that both missible without extrinsic evidence of their Rule 803 and 804 conclude with a provision genuineness. As previously mentioned, the that the judge may admit hearsay declarations Manual treats many of the matters listed in which do not fall within the listed exceptions Rule 902 as the subjects of judicial notice. The of he determines that there are “comparable Rule is somewhat broader than the Manual circumstantial guarantees of trustworthi- provision; it treats such items as trade in- ness.” 24 Judges have occasionally asserted scriptions, acknowledged documents, and com- their common-law power to refuse to exclude merical paper as self-authenticating while the technical hearsay when they were convinced Manual makes no mention of these items. that the reason for the rule did not apply in the particular case but rarely has a proposed ARTICLE X: CONTENTS OF WRITINGS, rule or statute purported to broaden the ad- RECORDINGS, AND PHOTOGRAPHS missibility of hearsay in such a sweeping fashion. Article X deals with the best evidence rule. Rule 1001 applies the best evidence rule to ARTICLE IX: AUTHENTICATION writings, recordings, and photographs. The Rule’s inclusion of photographs might at first Article IX contains two basic rules. Rule seem extraordinary. Yet it is arguable that the 901 deals with the ordinary authentication of Manual also applies the best evidence rule to evidence, and Rule 902 deals with self-authen- photographs. Paragraph 143a of the Manual ticating evidence. states that the rule applies when the proponent There are few differences between the Man- attempts to prove the “contents of a writ- ual and Rule 901. Both treat authentication as ing.”z8 Paragraph 143d adds that for purposes the process of proving that an item of evidence of Chapter XXVII, the word, “writing,” in- is what its proponent claims it to be. Nine of cludes “photographic . . . representations of the ten specific examples of authentication facts, events, transactions, . . . places, ideas, or which Rule 901 lists can be found in the Man- other occurrences of things , . .” Thus, it ap- ual. The Manual and the Rules differ with re- pears that under the Manual and Rule 1001, if spect to one example and the procedure for counsel asks the witness to testify about a determining whether evidence has been suffi- photograph’s contents, opposing counsel can object upon the ground that the witness has ciently authenticated. As one of the specific not produced or accounted for the negative or examples of authentication, Rule 901 mentions print. the ancient document doctrine; the proponent can authenticate a document by proving that The Manual and Rule also agree that the the document is 20 years’ old, has an unsus- rule applies only when the document’s terms picious appearance, and was obtained from a are in issue, that is, when the nature of the place of custody natural for such documents.28 fact to be proved or the terms of the offer of The Manual makes no reference to the ancient proof place the document’s terms in issue. document doctrine. Just as it applied the con- Rule 1004 expressly recognizes the collateral ditional relevance concept to witness’ compe- issue exception to the best evidence rule: the tency, the Federal Rules apply the concept to rule is inapplicable if the writing is “not authentication : closely related to a controlling issue.3o In the .,-

Pam 27-50-6 6 f4 absence of an express Manual provision, the issue presented was whether the testator had the Court of Military Appeals has nevertheless requisite mental capacity. The proponent of the will offered evidence that persons wrote letters to recognized the exception. the testator. The inference was that they would Rule 1001 would bring Federal civilian prac- not have sent the letters if they had believed he tice in line with the Manual definition of dup- was mentally incompetent. The court held that licate original. Under the Manual, a subse- the evidence was incompetent hearsay. Note that quently prepared copy seems to qualify as a in Morgn hearsay, the declarant’s belief is trans- duplicate original if it is an identical copy, lated into action rather than a statement. prepared by duplicating process, and to be 4. MCCORMICK,EVIDENCE Q 251 (2nd ed. 1972). used for the same purposes as the original.31 5. Id. at 0 253. Rule 1001 defines duplicate as follows : 6. FED.R.Ev. 804, Advisory Comm. Note. 7. Id. a counterpart produced by the same im- 8. 6 WIGMOREEVIDENCE 0 1420 (3rd ed. 1940). pression as the original, or from the same matrix, or by means of photography, in- 9. Id. at 0 1422. cluding enlargements and miniatures, or 10. FED.R.Ev. 803 (6). by mechanical or electronic re-recording, 11. 30 AM.JuR.2d Evidence 5 930 (1967). or by chemical reproduction, or by other 12. MCM, 1969 (Rev.), para. 144c. equivalent technique which accurately re- 13. FED.R.Ev. 803 (6). produces the 14. FED.R.Ev. 804, Advisory Comm. Note. The Rule uses the term, “counterpart”; and 15. FED.R.Ev. 804(b) (1). in some contexts, the term is used as one of 16. FED.R.Ev. 804, Advisory Comm. Note. art, referring to documents executed at the 17. FED.R.Ev. 803 (8). same time as the original. However, the Rule’s 18. MCM, 1969, (Rev.), para. 144b. use of the term, “re-recording,” and the Com- 19. 5 WICMORE,EVIDENCE Q 1643 (3rd ed. 1940). mittee Note accompanying Rule 1001 clearly 20. MCM, 1969, (Rev.), para. 147a. r suggest that the Committee intended to sanc- 21. FED.R.Ev. 803 (1). tion the use of subsequently-prepared writ- 22. FED.R.Ev. 803, Advisory Comm. Note. ing~.~~The Manual provides that a duplicate 23. FED.R.Ev. 804(b) (2). original is as admissible as the original. Rule 24. FED.R.Ev. 803(24) and 804(b) (6). 1003 adopts the same provision with two ex- 25. Goodale v. Murray et al., 289 N.W. 450, 227 Iowa ceptions ; the judge may require the original’s 843, 126 A.L.R. 1121 (1940). production if 26. At common law, the requisite age was 30 years rather than 20 years. McCormick, Evidence Q 323 (1) a genuine question is raised as to the (2nd ed. 1972). authenticity of the original or (2) in the 27. FED.R.Ev. 901 (a). circumstances it would be unfair to ad- mit the duplicate in lieu of the original.34 28. MCM, 1969, (Rev.), para. 143all). 29. Id. at para. 143d. Foot notes 30. FED.R.Ev. 1004 (4). 31. 1. FED.R.Ev. VIII, Advisory Comm. Note. MCM, 1969, (Rev.), para. 143a(l). 2. Id. 32. FED.R.Ev. 1001 (4). 3. The classis illustration of this view is Wright w. 33. FED.R.Ev. 1001, Advisory Comm. Note. Tatham, 6 C1. 0 F. 670 (1838). In this case, the 34. FED.R.Ev. 1003.

ASPR COMMITTEE NOTES By: LTC Joseph A. Dudxik, Procurement Law Division, OTJAG In the course of my duties as Army Legal and practical one. For those of you who feel Member on the ASPR Committee I have found that the ASPR is in some respects deficient in that, in general, our procurement operating meeting the “real world’’ procurement prob- personnel find the regulation to be a helpful lems faced at the contracting officer level let e Pam 27-50-6 7 me elaborate on the steps the ASPR Commit- through the medium of the Army Lawyer to tee takes to keep in touch with all our readers. announce the locale and schedule of the quarterly ASPR field visits. In addition to sending our proposed ASPR revisions for comment from DoD purchasing, Although suggestions and comments are contract administration, and audit activities, welcomed, the Committee considers them with the Committee has two basic policies which are some measure of restraint. If there is one uni- designed to assure that the Committee does not versal comment that I have received from lose touch with the realities of procurement people who work with ASPR on a daily basis on the operational level. One policy is that the is that it is to6 big and that we change it too Committee members must have had recent frequently. ASPR has grown in the past years operational experience in procurement and until we now find ourselves with a regulation that their terms are not less than two or more which is 3000 pages long and twice a year than four years. As you may be aware, each changes which generally run to 800 pages Department is represented on the Committee each. We on the Committee are sympathetic by a policy and a legal member with the Com- to the complaint that ASPR is becoming in- mittee being chaired by a member who is on creasingly difficult to keep current. Therefore, the staff of the Assistant Secretary of Defense it should not come as a surprise that the Corn- (I&L). That this rotation policy is adhered to nlittee feels that it has an obligation to keep is illustrated by the fact that during the 18 material out of ASPR rather than put it in. months that I have been a member the Com- All suggestions for additions to ASPR receive mittee has had a new chairman, new legal an initial screening on a Departmental level members from the Defense Supply Agency and and then the survivors are further screened the Air Force and a new policy member from by the Committee itself. We hope that this the Department of the Navy. All these new process keeps additions down to material members including the chairman have come which is essential and of general application. from operation procurement assignments. Now, 800 pages per change might not be con- sidered a very effective screening job but The second policy is that once each quarter what also must be considered is the number of the ASPR Committee makes a field trip, of a changes which were initiated from outside week's duration, to procurement activities in a DoD. For example, the recent addition of ma- particular section of the country to give the terial on Cost Accounting Standards was initi- users of the regulation an opportunity to ques- ated by the Cost Accounting Standards Board. tion and suggest. Contrary to popular belief, In fact, more than half of the material pub- the locale to be visited is not selected on the lished in recent ASPR changes had its source basis of climate but rather on the number of outside DoD. In addition to trying to limit the procurement activities in the immediate vicin- material in ASPR the Committee has started ity and the time since the Committee last paid to broaden the scope of the notes and filing in- that area a visit. The field trip for the first structions which accompany each change, so quarter of 1973 was to the Washington, D.C. that you may be selective in your reading of area and was hosted by the Defense Supply new changes. I would appreciate hearing any Agency at Cameron Station, Virginia. Un- comments you have on the notes and filing in- fortunately, this meeting was poorly attended structions. However, please keep in mind that which was a disappointment to the Commit- if we make them too lengthy, a point of di- tee. We all value and consider not only the minishing returns is soon reached. comments and suggestions but also the criti- cisms from field personnel. Hopefully the lack You may have read in a recent issue of Fed- of response to this meeting was due to insuffi- eral Contracts Report an article which quoted cient advance notice and we will do our best a comment from the audience at our recent to remedy this. In the future I will endeavor Cameron Station meeting to the effect that Pam ‘27-50-6 8

the ASPR Committee seems to take prideah agreement on the various approaches. There taking nine months to handle a specific prob- was a time when there was aome sentiment for lem. Lest you be left with an erroneous im- a straight “late is late” rule engendered be- pression let me take this opportunity to re- cause its very simplicity had a certain charm. spond. The Committee is not necessarily happy However comments from both within and about the length of time it takes to process without the Government caused the Commit- some ASPR cases. On the other hand we are tee to modify its views. In fact, the coverage not ashamed of it. The Committee has learned on treatment of late bids/proposals due to from experience that it is far better to spend delay in the mails which will shortly go into some extra time on a matter and to get it as ASPR came as a result of a suggestion from accurate as possible than to be satisfied with industry. The basic reason for the change is a “good enough” job. The self-imposed reviews that contracting officers have frequently been to which every ASPR case is subjected are by unable in recent years to ascertain whether the , their very nature time-consuming. However, late bid or proposal should have arrived be- the consequences of pubhhing something fore the time set for receipt or opening. Gen- which is misleading or incorrect has to be ex- erally, the new ASPR coverage will provide perienced to be believed. We believe that while that if a-bid or proposal is mailed by register- thoroughness may not necessarily be a virtue ed or certified mail prior to.five days before in all situations, it is a necessary ingredient time for receipt or opening it will be consider- in the publication of ASPR. If at times we ed if it arrives before award. Recognizing the seem dilatory in getting out new coverage, frequent instances when a short ‘time frame is just remember we want to be right the first required between award and receipt of best time. As a final note to this point, we frequent- and final offers in negotiated procurement, the ly find that upon more extensive review and Committee adopted the “late is late” rule in study the problem we are trying to solve is this instance. The rule for delay occasioned not as substantial as originally presented by the Government on the installation re- and hence there need not be any change to mains the kame. ASPR. 69-131 Warrenties-Consequential Damages. One of the features of our quarterly field Initial policy in this area was established in trips is a presentation by the ASPR Commit- DPC 86. This case was initiated to consider tee members of current cases. For those of you changes to that coverage as we learned by ex- who have not had an opportunity to attend, perience. The following will be covered when let me describe some of our active cases which the material in this case is published: are nearing completion. Remember, the ASPR 1. High cost items will be defined. Committee initiates approximately 160 to 170 2. Tech Data will be excluded from appli- cases per year of which 60 to 70 cases are con- cability of the clause. sidered active and current at any one time, so you can appreciate that the following cases by 3. A clause will be provided for use in serv- no means exhausts the list. The case number ice contracts. indicates the year in which the case was ’ 4. Provision will be made for flow-down of originated and its position within that year. the clause to subcontractors and direction will For example, Case Number 68-104 was the be given as to which clause will be flowed one hundred and fourth case initiated in the down. calendar year 1968. 5. The contractor will have an affirmative 68-104 Late Bids. The current treatment of liability to reimburse the Government when he late bids and proposals is a long-standing one is covered by insurance. and for that reason the Committee moved with 6. Provision is made for action to be taken a great deal of caution and not without dis- on Foreign Military Sales Contracts. Pam 27-50-6 9 -: 70-19 Wage and Price Eschtion. There has provides for a “Notice of Change” clause been a general rewrite of the material con- which generally requires a contractor to notify tained in 3-404.3, 7-106 and 7-107 to add the contracting officer within a specified num- coverage for high dollar value and fixed-price ber of days from the date he identifies a Gov- contracts with extended periods of perform- ernment action, other than an authorized ance. Paragraph 3-404.3 has been expanded change in writing as constituting a change. and enlarged to contain a great deal more in- The purpose of this clause is to give the con- structional and explanatory material. In par- tracting officer an opportunity to accept or ticular, uniform guidance is given on drafting reject the change before incurred costs elimi- economic price adjustment clauses which ad- nate the freedom to make a choice and make just labor or material costs based upon a pre- a dispute almost inevitable. This clause ap- determined mix of labor and material as well pears in 7-104.86 of the 1973 ASPR. The as a predetermined expenditure rate. Because second part of the case covers engineering of the variables involved between indsstries change proposals and change order accounting. neither a universal cost index nor contract Briefly, the Engineering Change Proposal clauses could be provided. This, like many clause provides authority for the contracting ASPR cases, does not add anything which is officer to request the contractor to prepare startling new, but rather it is an attempt to ECP’s and include the information required improve what we have by adding helpful by MIL-STD-480. It also provides for submis- guidance. sion of a DD Form 633-5 on ECP’s of $100,000 or greater. The Change Order Accounting 71-103 Environmental Protection (E.O. clause provides for recording and accounting 21602). Everyone seems to ask when are we for segregable direct costs of changed work in going to come out with coverage relating to the administration of the Clean Air Act with support of adjustment claims when the change is estimated to exceed $100,000, This coverage respect to Federal contracts. The Committee ri has been approved and should be published in is precluded from taking action until imple- the first revisions of the 1973 ASPR. menting regulations under the Environmental Protection Act have been issued and accord- One case which, although current and ac- ingly this case has been suspended until these tive, is not near publication is the ASPR Com- regulations are issued. mittee’s consideration of the Report of the Commission on Government Procurement. 71-87 Reissuance of ASPR. Your new 1973 The Commission on Government Procurement edition of ASPR is a result of this case. The was created by Public Law 91-129 in Novem- printing of ASPR has been computerized ber 1969 to study and recommend to Congress which should mean more rapid implementation methods “to promote the economy, efficiency and publication of changes. It is anticipated and effectiveness” of procurement by the exec- that ASPR will be republished incorporating utive branch. The report encompasses 149 spe- all previous changes, once every two years. A cific recommendations and is published in four word of caution about the new edition of volumes although a one volume summary is ASPR which you have or shortly will receive. available. The ASPR Committee is responsible The 1973 edition is for optional use only on or for the development of a Department of De- after 1 July and mandatory for use on 1 Au- fense position on 35 of these recommendations. gust. Therefore, until 1 July you must use The balance of the recommendations have been your current edition with changes. Also retain assigned to the various departments within both the index and Appendix 0 from the cur- the Department of Defense to act as a lead rent edition. department in developing Department of De- 70-103 Control of Constructive Changes and fense positions on the recommendations. As Other Claims on Nonconstmtion Contracts. far as I have been able to determine a Departc There are two parts to this case. The first part ment of Defense position has not yet been Pf

1 Pam 27-50-6 10 P taken on the report so my comments on the without appearing to be provincial. However, report must be personal and unofficial. one must recognize the problems which are attendent when authority is separated from On the whole I think the report is a good responsibility. In any event, subsequent treat- one and in general will prove beneficial to the ment of this recommendation should prove of procurement process. The Commission has ex- interest to those having aspirations of hibited a great deal of courage in recognizing be- coming a member of a small, highly competent and confronting problem areas in our procure- cadre of seasoned procurement experts. ment process and suggesting viable solutions. Now I am sure you, as I, will not agree with To those of us who feel that there is need for all these solutions, but I don’t believe any some official recognition that the lot of the recommendation can be dismissed as lacking procurement lawyer is not an easy one, com- in imagination. Let me give you a sample of fort can be taken from the Commission’s ob- the recommendations which I thought were servation that there are approximately 4,000 particularly interesting and thought provok- procurement-related statutes and that these ing. statutes, some permanent and some temporary, contain a welter of disparate and confusing The Commission recommends that an Office restrictions and grants of limited authority of Federal Procurement Policy be established to avoid restrictions. The report concludes that by law and placed in the Executive Branch at the uncoordinated distribution of the procure- a level where it can oversee the development ment statutes throughout the United States and application of procurement policy. The Code together with nonprocurement laws is Commission is careful to say that they are not detrimental as it impedes economy, efficiency, suggesting that there should be centralized and effectiveness in the application of the pro- Federal buying for all agencies, or a central curement statutes. The recommendation is to group involved in agency business decisions I - establish a program for developing the techni- or that there be a huge policy-making bu- cal and formal changes needed to organize and reaucracy issuing all procurement regulations. consolidate the procurement statutes to the ex- The major attributes of the office are identi- tent appropriate in Title 41, Public Contracts, fied in the report and may be summarized as of the United States Code. This is another follows : recommendation which I am sure one could 1. Be independent of any agency having not find much to quarrel with, however, the procurement responsibility. magnitude of the task is somewhat intimidat- ing. 2. Operate on a level above the procurement agencies and have directive rather than merely I have enumerated two of what can be cate- advisory authority. gorized as recommendations which apply gen- erally to the procurement process, now I will 3. Be responsive to Congress. go into a few of the recommendations which relate directly to contract actions. 4. Consist of a small, highly competent cadre of seasoned procurement experts. If there is one recommendation which has been suggested more than once by procure- It seems to me that on the basis of this and ment personnel within the Department of De- other recommendations the Commission has fense it is the Commission’s recommendation recognized a need for greater uniformity in to raise the statutory limit for small pur- our procurement process and has concluded chases. The Commission has recommended in that the establishment of an Office of Federal their report that the ceiling for small pur- Procurement Policy is one way to achieve this chase actions be raised from $2,600 to $10,000. objective. It is difficult to argue against The commission, recognizing the savings po- greater uniformity in our procurement process tential of multi-year service and ADPE con- ,- Pam 27-50-6 11 tracts has also recommended that there be used as remedies for acquisition problems enacted statutory authorization to enter into found in past programs, but that problems in multi-year service contracts with annual ap- contract performance cannot be corrected by propriations. contract procedures for they are rooted in the actions or inactions in earlier phases of the In my review of the report I have noted with acquisition process. The Commission’s recom- some degree of satisfaction how many of the mends the use of contracting as an important recommendations have already been imple- tool of system acquisition, not as a substitute mented at least to some degree in ASPR. For for management of acquisition programs. In example, in regard to review of contractor discussing Socio/Economic programs the Com- procurement systems, the Commission recog- mission was careful to state that they were nizes that both the ASPR and the FPR pro- not suggesting the elimination of any substan- vide for review and approval of contractor tive benefits provided by the various social purchasing systems as a substitute for review and economic programs implemented through and approval of individual transactions, and the procurement process, or that the procure- acknowledges that ASPR provides specific ment process should be disengaged from such criteria and guidance concerning the method objectives. However, the Commission recog- and extent of such reviews and the effects of nized that while the magnitude of the Govern- an approved system on the treatment of in- ment‘s outlays for procurement and grants dividual transactions. Notwithstanding the creates opportunities for implementing select- fine words by the Commission concerning the ed national goals, the pursuit of such oppor- Department of Defense’s review and approval tunities is not without problems. The report of cost-type prime contractor procurement states, systems and transactions, the ASPR Commit- tee has a continuing interest in the contractor The enormity of the dollar figure involved procurement system review (CPSR) concept makes the procurement process appear an not only to make it more efficient but also to attractive vehicle for the achievement of social and economic goals. Its effective- make it more effective. ness in accomplishing such goals is per- Another recommendation by the Commis- haps overrated. The problems engendered sion is that the Government, with appropriate by the utilization of the procurement process in the implementation of national exceptions, generally acts as a self-insurer for goals are that the procurement process the loss of or damage to Government property becomes more costly and time-consuming resulting from any defect in items supplied with the addition of each new social and by a contractor and finally accepted by the economic program. Government. This recommendation appears to However, the report is not against socio/eco- be an adoption of current DoD policy. In addi- nomic programs or even against their imple- tion, the Commission’s recommendation that mentation through the procurement process, the Government apply the policy of self-insur- but rather that the implementation of these ance to subcontractors on the same basis as to programs be reviewed to determine if they prime contractors should be met by the new are cost effective and achieving the results coverage under case 69-131 discussed above. desired. As an illustration of the fact that the Com- If my comments on the Report of the Com- mission faced up to what many consider real mission on Government Procurement seem problem areas in the procurement process, rather bland, it is because positions within the consider some of their comments concerning departments have not solidified at the time I Major Systems acquisitions and Socio/Eco- am writing. However, no matter how you may nomic programs. The Commission recognized feel about the Commission’s recommendations, in the area of Major Systems acquisition that the report itself is a very worthwhile and in- contracting methods and procedures have been teresting document. The report deals not only Pam 27-60-6 12

in conclusions. but also provides a substantive Volume 1 Stock No. 6255-0002 $2.60 basis for these conclusions. The wealth of in- Volume 2 Stock No. 5255-0003 $2.60 formation and background material support- Volume 3 Stock No. 5255-0004 $2.60 Volume 4 Stock No. 5255-0005 $2.85 ing each recommendation can be of very im- mediate and practical benefit to the procure- As Army Legal Member on the ASPR Com- ment lawyer. I therefore can recommend that mittee I am of course interested in your com- you obtain a copy of the report and look ments and suggestions relating to ASPR. Un- through it. Copies of the report can be obtain- fortunately, I am not in a position to offer ed from The Superintendent of Documents, U. you an ASPR research service but I will do S. Government Printing Office, Washington, my best to respond to your inquiries. My ad- D. C. 20402 and the postpaid charge is as dress is: LTC Joseph A. Dudzik, Jr., Army follows : Legal Member, ASPR Committee, Pentagon, Room 2C 440, Washington, D. C. 20310, Tele-

.I phone : OX 72938.

LEGAL ASSISTANCE UPDATE I f1 By: Major Nancy Hunter, Ciuil Law Division. TJAGSA By ‘letter dated 26 February 1973 (see The status. Unfortunately, fund cites are not avail- Amy Lawyer, April 1973), The Judge Advo- able for use in procuring the suggested rugs, cate General rescinded the “McCaw letter” drapes, soundproofing, etc.; rather it is sug- and made major changes in the traditional gested that commanders be invited to inspect legal assistance program. Chapter One of the legal assistance facilities on a regular basis.

Legal Assistance Handbook and AR 608-60 Those visits, along with a real selling job by ,- technically remain in effect, but many of the the LAO/SJA and some scrounging talent, can provisions have been modified to more closely result in present offices being renovated to in- approach the goal of “total legal service to the sure adequate privacy without, of course, giv- military family.” A quick over-view of the old ing up the battle for adequate funding in the and new policies follows : command budget meetings. USE OF RESERVE JAGC OFFICERS4 The The Annual Report of Legal Assistance Ac- supervised use of Reserve JAGC officers in tivities 6 is no longer required. As a practical legal assistance offices continues to be strongly matter, LAOS should maintain some sort of recommended. Many posts have found that re- work measurement system-perhaps even the servists who are members of the local bar can same reportin order to be able to respond to be of great assistance in advising military inquiries from the budget shop and OTJAG clients during duty or non-duty hours, provid- who ask for justification for retaining or in- ing information on local practice to military creasing the number ‘of attorneys working in attorneys, and assisting in obtaining greater legal assistance. acceptance by the local bar of pilot program type activities. RESTRICTIONS ON ACTIVITIES.7 It is in this area that major changes have been made. OFFICE ADHINISTRATIONP While the Le- The new policy provides that a Legal Assist- gal Assistance Officer. and Staff Judge Advo- ance Officer, within the bounds of the Code of cate remain responsible for overall administra- Professional Responsibility : tion of their command legal assistance pro- gram, General Prugh’s . letter reemphasized . . . is authorized to sign letters written the need for physical facilities which insure on behalf of his client; to negotiate with adverse parties; and to perform all pro- complete privacy for attorney-client consulta- fessional functions, short of actual court tions in accord with the attorney’s professional appearance unless authorized to do so by - Pam 27-50-6 13

The Judge Advocate General, to ~ecurean ’ quarters, the United States Army, or the; . appropriate resolution of his client’s prob- United States Government. lem. However, use of a non-command letterhead This policy affects the following areas : (e.g., Fort Blank Legal Service Office, Head- Legal Advice on Criminal Actions: Before the quarters, Ninth Army, Fort Blank), plain change, specific TJAG approval was required bond paper, or a signature block indicating before an LAO could render legal advice or the military rank and Legal Assistance Of- services to a defendant in a criminal action ficer status of the writer will achieve the same brought by the United States. Now the LAO result. Using a rubber stamp reproduction of can inform the defendant of the nature of the suggested disclaimer clause is another pos- possible court proceedings, assist in obtaining sible approach. the services of civilian counsel if the client so Oficial Correspdence.lo The requirement requests, refer him to a pilot program if one is established in the jurisdiction involved, or that legal assistance officers “perform all pro- take other legal action short of becoming the fessional function . . . to secure an appropriate resolution of his client’s problem” by inference attorney of record. lifts the restrictions on LAOS corresponding Negotiation with Adverse Parties: Although directly with Federal or State agencies. The TJAG approval is still required before a mili- new policy also specifically permits direct com- tary attorney can become attorney of record munications between Legal Assistance Officers or appear in a civilian court, he can now ne- on any and all levels. Thus, if you have a client gotiate with adverge parties, sign letters in with a problem involving the law of state X his client’s behalf, and perform “all other pro- and Martindale-Hubbell doesn’t have the ans- fessional functions.’’ Thus, a LAO can negoti- wer, you can call or write one of the legal as- ate a settlement with an insurance company, sistance offices (regardless of service) and/or an opposing attorney or party, and take any the state attorney general in state X for as- other legal action necessary to settle a case sistance. It would be much appreciated if short of actually instituting suit. rulings/interpretations obtained which might Drafting Instruments.s Assuming that time, interest other military members would be for- manpower and facilities are available, LAOS warded to TJAGSA for publication in The are now free to examine and/or draft docu- Amy Lawyer. ments such as separation agreements, easy or complex wills, and assist clients with their Suggestions for further improvements in pro se proceedings. the traditional legal assistance program are also welcome-the Chief, Legal Assistance Of- Signing Letters.RProbably the most annoying restriction on legal assistance activities-not fice, OTJAG, is the man to write. being allowed to sign letters on behalf of clients without the express permission of the PILOT LEGAL ASSISTANCE PROGRAM. supervisory SJA-has been lifted. The 26 Feb letter does contain a suggested disclaimer The pilot program, which affords legal rep- clause : resentation by military or civilian-employee attorneys in civilian courts (civil, criminal, This letter is written in my capacity as a legal assistance officer of the armed forces trial and appellate) to military families unable acting on behalf of my client, to afford legal fees without substantial finan- As such, it reflects my personal, consider- cial hardship, is being continued on a pilot ed judgment as an individual member of basis. The current status of the pilot program the legal profession. It is not to be con- strued as an official view of this head- DoD wide follows : Pam 27-50-6 14

APPROVALS NEGOTIATIONS IN PROGRESS NO INFORMATION Arizona Connecticut (Navy) Alabama*

California (in-state lawyers) District of Columbia (Navy) Arkansas

Colorado (in-state lawyers) North Carolina (Marine Corps) Delaware

Florida (in-state lawyers) Oregon (Army Reserve) Georgia*

Hawaii (in-state lawyers) Pennsylvania (Navy) Idaho

Illinois (in-state lawyers) Virginia (Navy) Indiana* - Iowa Washington (Navy) Michigan

Louisiana (in-state lawyers) NEGOTIATIONS INACTIVE Mississippi

Maine (misdemeanor cases) Kansas Montana

Maryland (in-state supervision) Although the program utiliz- Nebraska ing out of state lawyers was Nevada Masachusetts authorized by the Kansas Bar New Mexico* Association in June 1971, the North Dakota Minnesota local county bar associations Ohio ,- have refused implementation. Missouri Negotiations have been suspended. New Hampshire DISAPPROVALS FOR New Jersey (in-state supervision) OUT OF STATE Oklahoma *

New York LAWYERS South Dakota

Rhode Island Alaska Tennessee

South Carolina Kentucky Utah

Texas The state bar associations of Vermont Alaska and Kentucky refused West Virginia to authorize military lawyers Wisconsin admitted to the bars of other Wyoming states to practice in their courts on behalf of indigent armed forces clients. *States having active Army populations ex- ceeding 1,000 members in the grades of E-4- E-1. Pm27-50-6 1s

The Army currently has programs in opera- some of their heavy workload, is a first step in tion at : selling the program. A JAG officer admitted to practice in the Arizona -Fort Huachuca state makes it easier to assure the local courts Colorado and/or state bars that military clients will -Fitzsimmons Has- be adequately represented. Use of JAGC re- pital, Fort Carson servists as instructors, or self-initiated pro- grams to familiarize LAOS with local law and Iowa USA Weapons Com- -Hq., procedures can aid in showing the courts that mand, Rock Island out-of-state military lawyers are able to com- petently represent their military clients. Other -Aberdeen Proving Ground methods of gaining favorable exposure are to Edgewood Fort work closely with local civilian attorneys rep- George G. Meade resenting military clients, publishing articles Massachusetts-Fort Devens in local newspapers and legal publications, and speaking engagements before civilian organi- Missouri -Fort Leonard Wood zations. LEGAL ASSISTANCE HANDBOOK. DA Pam New Jersey -Fort Dix 27-12 is currently under revision by TJAGSA Fort Monmouth and should be published in the fall of 1973. Suggestions for changes should be directed to The Secretary of the Army has recommend- Major Nancy Hunter, TJAGSA, Charlottes- ed continuation of the expanded legal assist- ville, VA 22901 ; (tel (804) 293-4095). ance program on a permanent basis within CONCLUSIONS: Legal assistance is probably available Army resources. It is expected that a decision on continuation of the program and the best public relations program in which the further guidance will be given by the Secre- JAG officer can participate, whether tradi- tional or pilot. Your continued support and tary of Defense by June, 1973. The ABA con- suggestions are appreciated. tinues to fully support the concept, but it is on a local basis that the program can be best Footnotes implemented. Thus, participation by military attorneys in local and national bar organiza- 1. JAGAA Bulletin 1966-3A, subj.: Administering tions can assist immeasurably in gaining sup- the Army Legal Assistance Program, 4 March 1965. port for expanded legal services for the mili- 2. DA Pamphlet 27-12. tary client, who has been told that one of his 3. Legal Assistance, 28 April 1966. fringe benefits is “free legal service.” Con- 4. Para. B.2, DA Pam 27-12. vincing the local bar that legal representation 6. Para. H.2, DA Pam 27-12; para. 3c, AR 608-60. of financially limited military clients by mili- 6. Para. D, DA Pam 27-12; para. 8, AR 608-60. tary attorneys will not deprive civilian prac- 7. Para. E, DA Pam 27-12. 8. Para. E.7 and E.13, DA Pam 27-12. titioners of legal fees and will in fact relieve 9. Para. E.8, DA Pam 27-12. local legal aid or public defender offices of 10. Para. E.lO, DA Pam 27-12.

ATTORNEY-CLIENT GUIDELINES The following guidelines were prepared by pellate Division, two other captains whose a committee chaired by the Assistant Judge sole duties are in the military justice area, a Advocate General for Military Law and com- distinguished professor of law who works in posed of two captains from the Defense Ap- the civilian legal aid program, the Chiefs of Pam 27-50-6 16 both (appellate divisions, the Chief of the Trial torney-client relationship, although the rela- Judiciary, an experienced staff judge advo- tionship may be for a limited time and pur- cate, and a retired military lawyer who has pose. Where an attorney’s assigned or reason- extensive experience in the military justice ably anticipated military duties indicate that field. These guidelines have been coordinated the relationship is for a limited time and pur- with and approved by The Judge Advocate pose, he must inform the prospective client of General. these limitations. There is no service obliga- tion to appoint an attorney as detailed counsel Military personnel who act in courts- merely because an attorney-client relationship martial, including all Army attorneys, will has been established. However, an attorney apply these principles insofar as -practicable. will not later place himself in the position of However, the guidelines do not purport to en- acting adversely to the client on the same compass all matters of concern to defense matter. counsel, either trial or appellate. As more problem areas are identified, the committee b. Dissolution and The Judge Advocate General will develop a common position and policies for the guid- An. attorney should not normally be ance of all concerned. assigned as a counsel to a case unless he can be expected to remain for the trial. If it ap- ATTORNEY-CLIENT GUIDELINES pears that he will not be available for the trial, the client must be notified at the inception of A. Problem Areas in General the relationship. Military requirements or 1. Applicability of the attorney-client rela- orders to move the attorney as proper person- tionship rules to military criminal practice nel management requires will be respecfed. generally. An attorney will not, without his own agree- ment, be retained on duty beyond his service Military attorneys and counsel are bound by appointment merely to maintain an existing the law, ruIes of ethics, and the highest recog- relationship with respect to a particular case nized standards of professional conduct, The or client. Since there is no authority to hire a Department of the Army has made the Code civilian attorney at Government expense to of Professional Responsibility and the Code of represent a serviceman in a court-martial, no Judicial Conduct of the American Bar Associ- former officer should expect to be retained by ation applicable to all attorneys who appear the Government to represent a serviceman in courts-martial. Whenever recognized civil- with whom that officer had developed an at- ian counterparts of professional conduct can torney-client relationship. It is regarded as be used as a guide, consistent with military unethical for an attorney to arrange that only law, the military practice should conform. he could continue in any particular case. 2. Attorney-client relationship in the mili- c. Content ’ tary criminal practice. a. Establishment The attorney should represent his serviceman client to the fullest extent possible When an officer holds himself out as within the limits of the law and as outlined in an attorney or is designated on orders as a de- pertinent policies and regulations. No infor- tailed defense counsel, he is regarded, for the mation obtained in an attorney-client relation- purposes of these guidelines, as an attorney ship may be used against the interests of the and is expected to adhere to the same stand- client except in accordance with the Code of ards of professional conduct. Any authorized Professional Responsibility. contact with a service member seeking his services as a defense counsel or as an attorney 3. Restrictions in exhausting legal and ad- for himself results, in at least a colorable at- ministrative remedies. Pam 27-50-6 17

Military attorneys will normally confine fessional equal. The military attorney does mot their activities to proceedings provided for in by being associated become the clerk of the the Uniform Code of Military Justice and civilian counsel. Army regulations. (See B3 below.) They will be guided by local policies as to the extent that c. Resolution of conflicts between civilian and military counsel. a military defense counsel is allowed to handle other matters, e.g., general legal assistance. Where the conflict concerns defense B. Problems Amociated with Trials tactics, the military counsel must defer to the civilian counsel if the accused has made the 1. Steps to insure that conflicts of attorney’s civilian counsel chief counsel. If counsel are or counsel’s duty do not arise because of mul- co-counsel, the client should be consulted as to tiple clients. any conflicts between counsel. Where the mili- Ordinarily, attorneys should represent only tary counsel determines that the civilian one client where there are multiple accused. counsel is conducting himself contrary to the Where the conflict is apparent from the of- Code of Professional Responsibility or violat- fenses, the staff judge advocate should insure ing the law, he should first discuss the p-mb- that the attorney is not put in a position where lem with the civilian counsel. If the matter cannot be resolved, it is the duty of the mili- he represents clients with conflicting interests. - However, it is the duty of the trial defense tary counsel to inform the accused of the civil- counsel to recognize when a conflict of interest ian counsel’s actions. The military counsel will prevent his properly representing multiple should inform the civilian counsel of his in- clients and to bring it to the attention of his tention to discuss the matter with the accused. clients, the staff judge advocate, and the mili- If the accused approves of the civilian coun- tary judge, where appropriate. sel’s conduct, the military counsel must in- form the accused that he will have to inform 2. Relationship between military and civilian the convening authority or request an Article defense counsel. 39 (a) session, whichever is appropriate, and a. Propriety of steps taken by the mili- ask to be relieved of his responsibilities as tary counsel in assisting the accused in obtain- counsel. The military counsel must also inform ins civilian defense counsel, the accused that, as an officer of the court, he has a duty to report any unethical behavior, Military counsel will not recommend fraud on the court, or any other impropriety any specific civilian counsel. The best method affecting the integrity of the proceedings. is to show the accused a list of local attorneys. This list should be compiled by personnel in 3. Collateral civil court proceedings. the staff judge advocate’s office and represent- atives of the local bar association. This would a. Extent of military counsel’s ability to insure that local attorneys, who would have no initiate and prosecute such proceedings. interest in such referrals, would not appear Military defense counsel’s ability to act on the list. The accused must be told that the in such matters is regulated by Army policy list is not exclusive and that he is not limited in para 1-4, AR 27-40. to the services of a local attorney. The listing of an attorney is not necessarily an indorse- b. Responsibility with respect to habeas ment of his capability or character and the ac- corpus petition under 28 USC 2242. cused should be told that. The choice and re- sponsibility for that choice are solely his. There is no responsibility for military defense counsel to prepare a habeas corpus b. Working relationship petition pursuant to 28 USC 2242 and he is The civilian counsel is expected to prohibited from doing so unless he follows the treat his associated military attorney as a pro- provisions of AR 27-40. However, nothing pro- Pam 27-50-6 18 hibits his explaining a pro se petition to the a. Creation accused. This would entail the accused’s writ- The attorney-client relationship exists ing to the Federal District Court Judge re- between the ascused and counsel designated to questing a writ of habeas corpus or other re- represent the accused as authorized by Article lief. Also, nothing prohibits the military de- 70 of the Urfiform Code of Military Justice. fense counsel’s explaining to the accused his Generally] The Judge Advocate General initi- right to retain civilian counsel in the matter. ally directs the Chief, Defense Appellate Di- c. Extent of participation when civilian vision, to represent an accused, and the Chief, counsel has initiated such proceedings. Defense Appellate Division, as Chief Appel- Military counsel would be acting con- late Defense Counsel, designates other appel- late counsel assigned to the Defense Appellate trary to the spirit of AR 27-40 if he acted Dividon to assist him as appellate defense through civilian counsel to perform a service counsel. The duty of representation is estab- for his client that he could not perform on his own (e.g., preparation of pleadings in habeas lished at the time of the appointment for the corpus proceedings), and he should not do so. purpose of the appointment and the relation- ship remasns in effect until the accused termi- 4. Scope of trial defense counsel’s responsi- nates it, the counsel is relieved from active bility after appellate defense counsel has been duty or duly assigned to other duties, or the appointed. representation ceases upon termination of the After appellate defense counsel has been ap- appellate processes under the Uniform Code of pointed, trial defense counsel should assist the Military Justice. appellate defense counsel where such assist- b. Termination. ance does not interfere with his regularly as- signed duties. Trial defense counsel has an There is less objection to the adminis- ,- obligation to answer pertinent questions posed trative termination of an appellate defense by appellate defense counsel. Trial defense attorney-client relationship than one at the counsel has no right or obligation to assist in trial level. The client has no right to select preparation of briefs for anyone other than specific military appellate defense counsel. appellate defense counsel after appellate de- When the purpose for which the designation fense counsel has been appointed. is made has been accomplished, the relation- ship terminates. The designation may be term- 5. Ability of trial defense counsel to provide inated earlier for administrative purposes. otherwise privileged information when his conduct at trial has been attacked on appeal. . c. Relationship When the issue of trial defense counsel’s Generally, there appears to be no conduct at trial has been raised on appeal, any necessity for face-to-face interviews in an privilege has been waived to the extent neces- appellate defense attorney-client relationship. sary to meet the challenge when the accused Telephonic facilities are available at no cost has argued through his appellate defense coun- to the client for communication between the sel that he was inadequately represented at appellant and his counsel. If the Chief Ap- trial. Trial defense counsel must be allowed to pellate Defense Counsel determines that a protect his professional integrity. In protect- face-to-face interview is essential between ing his professional integrity against such a either himself or a military associate and the challenge, he may reveal, to the extent neces- appellant, necessary travel funds will be pro- sary, otherwise privileged matter. vided, if available. General legal assistance is C. Problems Associated with Appeals provided at the installation to which the ap- pellant is assigned. 1. Appellate defense attorney-client relation- ship. 2. Extent of attorney’s duties. ,- Pam 27-50-6 19

a. Collateral attacks in civilian courts Military attorneys, assigned to the Article 70 mandates appellate coun- installations containing confinement facilities, sel to represent the accused before the mili- have the responsibility to provide counsel to the confined accused when he is entitled to tary appellate courts and to “perform such such counsel. other functions in connection with the review of court-martial cases as the Judge Advocate 3. Conflict between appellate attorneys. General directs.” The proper review of a Divergent views between military appel- court-martial is set out in the Uniform Code late defense counsel and retained civilian of Military Justice and full representation of counsel must be worked out in the same man- the accused does not include collateral attacks ner as at trial (see B2c above). Military in the Federal Courts except as permitted counsel assisting the chief appellate military pursuant to AR 27-40. (See B3 above). defense counsel must defer to the experience and professional views of the Chief Appellate b. Clemency petitions Defense Counsel as an associate in a civilian At the request of the accused, appel- law firm would defer to the senior partner. If late defense counsel may submit clemency pe- irreconcilable differences appear, the assisting titions to the proper Army authority. military counsel should ask to be relieved from the case. The Chief Appellate Defense c. Administrative proceedings in con- Counsel has the discretion to grant this re- finement facilities quest.

REORGANIZATION OF THE JUDGE ADVOCATE GENERAL’S RESERVE PROGRAM On January 11th of this year, the Secre- pendence, the new CONUS structure attempts tary of the Army Robert F. Froehlke and Gen- to integrate the heretofore bifurcated chain eral Creighton W. Abrams, Army Chief of of command which characterized the previous Staff, announced a series of major reorgani- Reserve-Active Army relationship. The Con- zational actions to be implemented during tinental Army Command (CONARC) and calendar year 1973. These changes are to be several specialized, independent commands the framework for an extensive plan to moder- such as the Combat Developments Command nize, reorient, and streamline the organization (CDC) have been dissolved. Their responsibili- of the Army within the Continental United ties and missions have been functionally re- States (CONUS). Secretary Froehlke noted grouped into two Major Army Commands: the that “Our smaller Army of the 1970’s depends Forces Command (FORSCOM) and the Train- on the Reserves for responsive support” and ing and Doctrine Command (TRADOC) . that we must “make drastic changes-if they FORSCOM FORSCOM will be a single field will help the Reserve components.” As a direct headquarters located at Fort McPherson, response to Secretary Froehlke’s invocation, Georgia, and given the mission to supervise significant changes have been made in the or- the unit training and combat readiness of all ganization and training patterns of the Army Army units, including the Army Reserve and National Guard and Army Reserve Compon- the Army National Guard. Under a policy of ents. The plans of The Judge Advocate Gen- decentralization, the Major Army Sub-Com- eral to revitalize the Reserve Component mands (CONUS Armies) will be removed Judge Advocate program are the subject of from the chain of command between the in- this article. stallation commanders of the active Army and COMMAND ORGANIZATION Echoing Sec- FORSCOM. Installation commanders will be retary Froehlke’s emphasis upon Reserve de- given greater authority in order to facilitate Pam 27-50-6 20 the accomplishment of their unit training source of 180,000 military personnel and missions and will now report directly to 49,000 civilians. FORSCOM. JAG RESERVE PROGRAM In any Army The number of CONUS Armies will be re- organizational structure, the Judge Advocate duced from four to three: First U. s. Army General’s Corps has always presented a special at Fort Meade, Maryland; Fifth U. S. Army problem. Although The Judge Advocate Gen- at Fort Sam Houston, Texas; and Sixth U. S. eral has always sought to establish a close Army at the Presidio of San Francisco, Cali- professional relationship between the Corps fornia. These active Army CONUSA Head- and other Army branches, the unique training quarters are responsible for ensuring the read- requirements of the JAG Corps has produced iness of the Army Reserve and Army National a necessary division. The educational needs of Guard by close supervision of and assistance a Judge Advocate are so specialized that the with the training of the Reserve components JAG Corps has been authorized to plan and di- within their assigned geographical areas. To rect its own training program. For this reason, help accomplish this mission nine Army Read- The Judge Advocate General’s School which iness Regions (ARRs) are to be established provides essentially a TRADOC function has as an extension of the CONUS Armies (in remained outside the TRADOC chain of corn- some places these Regions are further sub- mand and continues to be under the direct qvided into groups). Within the ARR’s com- supervision of The Office of The Judge Ad- mand will be a number of traveling, functional vocate General. assistance teams. These teams will contain small elements from each service branch along Having assigned the Reserve-National with other specialists who understand the Guard training mission to FORSCOM, the readiness requirements of each Army Reserve Army originally considered placing one or or Army National Guard component within more active duty Judge Advocate officers in that ARR. An assistance team will visit every each ARR to be employed as members of the Army Reserve component regularly to lend functional assistance teams. However, careful their expertise to solving unit problems, in- examination of this proposal revealed certain struct on new concepts, and monitor the de- problems which led the Army to seek another veloping readiness capability of each compon- alternative. Including both Army Reservists ent. and Army National Guardsmen, a recent sur- vey counted only 1842 Reserve Judge Advocate In total, FORSCOM will command approxi- officers. Compared with the total Reserve-Na- mately 225,000 active military personnel and tional Guard strength of 660,000, it became 37,000 civilians. In addition, it has the respon- apparent that the JAG member of the travel sibility through the CONUS Armies to train group often would only be dealing with non- and control approximately 660,000 Army Re- JAG officers. Secondly, due to certain peculiar- serve and Army National Guard Personnel. ities of the JAG Reserve program, many Judge TRADOC TRADOC will be a single field Advocate Reserve officers are located in iso- headquarters located at Fort Monroe, Virginia lated Judge Advocate units. For example, 923 and given the mission to direct all Army in- JAG Reservists are members of Judge Ad- dividual training and education which includes vocate General Service Organization Detach- the development of better organization, ma- ments. These detachments are functionally teriel reauirements, and doctrine. Its primary structured to provide expertise in a particular function is to concentrate on the training and area of military law and are totally inde- education of the individual soldier, beginning pendent of ‘other FORSCOM units. Not only with an overhauled ROTC program and carry- would the ARR’s Judge Advocate be required ing through almost all active Army Schools. to visit these units alone, he would be given In total, TRADOC will command a manpower the impossible task of learning six areas of Pam 27-50-6 21 legal expertise. And third, although physically been subdivided into the Career Management grouped in a unit, the Judge Advocate’s train- Division and the Reserve Training Division. ing needs are still more individual in nature CAREER MANAGEMENT DIVISION The than they are unit oriented skills. Thus the Army would be trying to supply a TRADOC Career Management Division carries forward most of the same type operations which char- service through the FORSCOM structure. acterized Reserve Affairs before the reorgani- A second alternative considered was to zation; its current chief is Captain Eldon D. place the JAG Reserve training mission under Roberts (Phone : 804-293-7808). Principally TRADOC, but this solution was disregarded the Division assists Army Reserve and Army for several reasons. Although individual edu- National Guard Judge Advocates in the com- cation is the focal point of JAG training re- pletion of branch training and meeting the quirements, some instruction and assistance other requirements for promotion and retired must be given in unit participation and ad- pay. This requires the Division to review and ministration. In addition, the Corps does not evaluate applications requesting the award of have the manpower resources to staff TJAGSA constructive credit in accordance with the pro- and a viable mini-school at another location visions of AR 135-316. In the event of a favor: with the sole function of training Reserve able recommendation, the action paper award- Judge Advocates. ing the credit is signed by the Assistant Com- mandant for Reserve Affairs for The Judge The last alternative and logical choice was Advocate General. to give the mission of JAG Reserve training to the same installation which was responsible In addition, this Division considers and acts for the continued training of active duty Judge upon the applications for appointments and Advocates, The Judge Advocate General’s transfers of those persons seeking to become School. Reserve component Judge Advocate officers without concurrent call to active duty. These ASSISTANT COMMANDANT FOR RE- applications include individuals desiring fed- SERVE AFFAIRS The aforementioned fac- eral recognition in the ARNG. In the first tors culminated in a reorganization of The quarter of calendar year 1973,32 appointment Judge Advocate General’s School and the crea- and 20 branch transfer applications were pro- tion of the Office of the Assistant Comman- cessed for persons applying to the Reserve dant for Reserve Affairs. The Assistant Com- component of the Judge Advocate General’s mandant, currently Lieutenant Colonel Keith Corps and action was taken on 19 applications A. Wagner (Phone : 804-293-7469), received for federal recognition within the ARNG. the overall mission to develop and provide for a program to improve the readiness capability A large portion of the Division’s work is of the Army Reserve Component Judge Ad- generated by its responsibility for managing vocate General’s Corps personnel. This mission the Office of The Judge Advocate General, De- has been broken down more specifically: to partment of the Army, mobilization designee provide for the career management of all program. This function entails processing as- JAGC Reserve officers which includes provid- signment and AT orders for mobilization ing liaison with the United States Army Re- designees to the Office of The Judge Advocate serve Component Personnel and Administra- General, The Judge Advocate General’s School, tion Center; to develop and administer a pro- the U. S. Army Judiciary, and the U. S. Army gram of technical training; and to maintain Claims Service. In total, there are 223 MOB liaison with the individual Reserve or Na- DES Reserve positions authorized for Judge tional Guard components, the Army Readiness Advocate General’s Corps officers within the Region Commanders, and the CONUS Armies. program managed by this Division. These po- To accomplish these functions, the Office has sitions account for more than three-fourths Pam 27-50-6 22 of the total number of MOB DES slots avail- resident legal training programs for Reserve able to members of Judge Advocate General's component JAG officers not on active duty. Corps Reserve Components. Although the Di- Although some resident short course work has vision has no authority over the other one- been offered in the past, the reorganization quarter, it does attempt to monitor their avail- calls for more resident training and a hereto- ability. fore untried program of on-site instruction. There are 366 Reserve component units and 50 Among the less heralded but, nonetheless, state National Guard headquarters which have essential activities of the Division, are the organic JAG personnel, but fortunately these filing and record maintenance responsibilities. are geographically located in 145 different These records inventory all Reserve component cities. Two day on-site teaching programs by Judge Advocates describing them by name, TJAGSA faculty members are presently sched- grade, vocation, status, availability, assign- uled to begin this fall at all 145 locations ment, civilian occupation, professional experi- (Schedules are to be distributed as soon as ence, level of training, and degree of current available). Seventy percent of these 'on-site participation in Reserve training activities. teaching locations will be visited more than These files are required in order to provide twice by experts in several fields of military periodic status reports on the program for the law. Assistant Commandant for Reserve Affairs. To facilitate coordination of the different Probably the most time consuming function Reserve Training programs, i.e. on-site in- of this Division is to respond, on a day-to-day struction, inactive duty training for JAGS0 basis, to the steady stream of inquiries and Detachments (such as working in the legal requests for assistance from Reserve person- assistance office of a neighboring active in- nel throughout the country. These range from stallations), the USAR Schools, annual two such divergent tasks as assisting a Reservist week active duty training, and conference or civilian in finding a unit vacancy in a par- work ; this Division will advise individual com- ticular locale to making referrals of applica- ponents and isolated personnel of what in- tions for correspondence course material and struction is planned for them or available to enrollment to the Division of Nonresident them during the year. In this manner, it is Training, a part of the Academic Department, hoped that the continuing education from which is currently headed by Colonel William TJAGSA personnel can be effectively inte- S. Fulton. grated with the unit or individuals own pro- RESERVE TRAINING DIVISION The Re- gram of self-instruction. The Division will re- serve Training Division of the Office of the ,view and consolidate after action reports from Assistant Commandant for Reserve Affairs the visiting TJAGSA faculty and staff mem- will assume the transferred FORSCOM mis- bers ; these will be used to prepare suggestions sion ; Lieutenant Colonel James N. McCune for improved local as well as overall Reserve will serve as Division chief (Phone: 804-293- readiness. 2028). The Reserve Training mission falls In addition to administering the teaching basically into two interrelated functional program, the Division is responsible for mak- areas : providing technical instruction to all ing staff liaison visits to the U. S. Army Re- Army Reserve and Army National Guards- serve Schools, training sites, and Reserve units men ; and maintaining liaison between the Re- to help solve local administrative programs as. serve Forces, the controlling ARR, and well as to monitor the effectiveness of the on- CONUS Armies. going educational programs and instructional The primary mission of this Division is to material prepared by TJAGSA. Liaison visits administer, as well as help the Academic De- will also be made to the CONUS Armies, the partment formulate, both resident and non- ARR's and Major Reserve Commands to give Pam 27-50-6 -. -. 23 status reports on the readiness capability of staff officers, and three civilians. These person- individual Reserve and National Guard com- nel are a direct transfer from the positions ponents. proposed for the functional assistance teams As a corollary to developing an overall pro- of the FORSCOM ARRs. One new officer will gram of JAG Reserve instruction, the Division be assigned to the Division to help with staff will continue to be responsible for the develop- work and one civilian will be a television tech- nician, who will be in charge of developing new ment and administration of the Judge Advo- training materials to augment and replace cate General’s Reserve Component General many of the now obsolete films being used. Staff Course. This course is considered an equivalent to the Command and General Staff In summary, The Judge Advocate General Course for JAG promotion purposes. through the reorganization of the Army Re- serve and Army National Guard training pro- To supply the large increase in personnel gram has attempted to establish a closer and required to sustain such a teaching and liaison more beneficial relationship between the Ac- program, The Judge Advocate General’s School tive Army Judge Advocate and his counter- will be authorized six new faculty officers, two part in the Reserve.

INTELLECTUAL & INDUSTRIAL PROPERTY - PATENTS By: LTC James E. Noble, Chief,Patents Division, OTJAG Significant events occurred in the field of recognize employee inventors. Trademarks and industrial and intellectual property law during copyrights may be similarly exploited. P the past year. This short article spotlights the Brisk domestic and international commerce major events in the patents area. exists in industrial property, especially in One event was spiced with humor when Sen- patents. Technical data (and know-how) is ator Hart on 22 March 1973 introduced S. generally necessary to practice a patent to the 1321 for the general reform and revision of best advantage and it also is valuable. The the Patent Laws, Title 35 of the United States United States Government negotiates numer- Code, with the following statement : ous cooperative research and development agreements with other countries and foreign “ [I]f we were measuring the ‘potential boredom rate’ of various topics for con- firms. Contractor and government employee versation on a scale of 1 to 100, patents inventions are often patented and our govern- would probably get a 99.” ment now owns approximately 24,000 unex- After Senator Hart provoked industrial prop- pired patents. Department of the Army owns erty lawyers and patent attorneys into won- approximately 4,200 of those patents ; Depart- dering which subject he rated 100, and caused ment of the Navy, 8,400 and Department of them to chafe at being merely 99, he salved the Air Force, 1,800.2 the wound by noting that the dull and essential For the above reasons, Senator Hart’s bill business at hand was a matter not only of life has drawn government and industry attention. style and comfort for each of us, but of Senate 1321, if enacted into law, will substan- health, employment, and maintenance of our tially revise our patent system and change technical superiority. This is so because in- proceedings in the United States Patent Of- dustry uses patents to protect a headstart in fice by introducing a procedure for the de- marketing inventions, to raise capital and to ferred examination of patent applications, and exploit inventions through patent licensing a public counsel to participate and to argue programs. The Department of the Army ob- for the public interest in what is now an ez ’.ntains patents for defensive purposes and to parte patent application procedure. The reader Pam 27-50-6 24 should remember that President Johnson also plement the GSA Regulations and that Direc- sent a sweeping Patent Reform Act to Con- tive will be further amplified in AR 27-60. gress in 1967.3 The Reform Act led to s. 643’ Lists of Department of the Army-owned pat- which eventually bogged down during 1971-72 ents are being prepared for early publication when the ever present patent-antitrust con- in the Federal Register, Patent Office Official troversy focused on “Federal patent law pre- Gazette and in other publications. emption” and the antitrust aspects of “patent The Patents Division in the Office of The licensing.” Judge Advocate General is the agency through - Another concern to industrial property which the patent activities of the Department lawyers is the recently promulgated General of the Army are regulated. The Patents Divi- Services Administration Patent Licensing sion is also the office of liaison with other Regulations.8 Those regulations go into effect governmental activities and departments in on 7 May 1973 and implement President Nix- patent, copyright, trademark and related mat- on’s 1971 Patent Policy Statement. Historical- ters. ly, the Department of Defense military de- Inquiries about obtaining a license on De- partments have granted free, nonexclusive partment of the Army owned patents should licenses to make, use and sell their patented be directed to HQDA (DAJA-PA) , Washing- inventions, as have other government agencies. ton, D. C. 20310. Following President Nixon’s policy, as imple- mented by the GSA Regulations, exclusive li- censes will be available to enhance commercial Footnotes utilization of Government-owned inventions 1. 119 CONG. REC. S. 6378 (daily ed. March 22,1973). and patents. Significantly, the Regulations 2. Unpublished statistics from the Committee on Gov- state “granting of nonexclusive licenses is ernment Patent Policy. 3. S. 1042, 90th Cong., 1st Sess. (1967) and H.R. 6924, preferable.” 90th Cong., 1st Sess. (1967). 4. S. 643, 92d Cong., 1st Sess. (1971). The rules for obtaining an exclusive license 6. The controversy centered on the Scott Amendments to a government patent are not complex: they introduced on April 8, 1970 as Amendment No. 678 provide that certain patents may be designated to S. 2756, 91st Cong., 2d Sess. and reintroduced as for exclusive licensing ; that notifications of Amendment No. 23 and 24 to S. 643 on March 19, these patents be published and that the public 1971. 6. Federal Property Management Regulations (Pat- be informed of prospective exclusive licensees. ents) 41 C.F.R. § 101-4 (1973). A Department of Defense Directive will im- 7. The Directive has not been published.

SJA SPOTLIGHT - U. S. ARMY EUROPE I By: Jim Hergen, CPT,OJA, HQ USAREUR & 7th Army The purpose of the SJA Spotlight should Judge Advocate would perform anywhere else not be, in my opinion at least, to pat ourselves in the world. Therefore, I would like to devote on the collective back by informing you of the the brief time which I am permitted to under- good job we have been doing “over here.” scoring what is different about legal work in After all, who really cares what great things USAREUR; I would also like to look toward we accomplished last year or the year before? the future in an attempt to discern some of the Neither should it be the purpose of these ar- trends which are likely to develop in USARE- ticles to emphasize those areas of our work in UR in the years to come. Perhaps this article USAREUR which are basically the same as a will give you some insight into a few of the - Pam 27-50-6 25 novel legal problems which you might en- ministrative Agreements thereto. How do counter when you come here on an assignment these 1963 Agreements work today? On bal- a year or two hence. ance, pretty well. Nevertheless, trying to solve a 1973 problem with a 1963 Agreement is Much of the everyday work performed in often like trying to get into an old high school the areas of Military Justice, Legal Assistance suit; you can wear it, but it looks a little and Administrative Law is basically the same funny and is strained in places. type of work you would encounter in similar jobs in CONUS, Korea or Turkey. In these The NATO SOFA Supplementary Agree- areas of expertise the military legal system ment applies only in the FRG and is an at- operate largely in a vacuum, the same basic tempt on the part of its framers to provide for problems arising and being disposed of in due the continued presence of substantial U. S. (as course of business without recourse to alien well as British and French) forces in the FRG influences. PecuIiarities and difficulties which while at the same time attempting to recon- do arise result primarily from problems of cile this presence with the growing independ- geography or communications. What really ence and stability of the FRG itself. The long distinguishes the functions of the USARETJR term continued presence of even the most Judge Advocate from those of Judge Advo- friendly foreign forces can lead to friction, cate Officers anywhere else in the world is the misunderstanding and a certain degree of out- unique situation which results from our pres- right hostility between guest and host. In this ence in the Federal Republic of Germany respect we have been most fortunate in main- under the terms of the NATO Status of Forces taining generally good relations with the Ger- Agreement (NATO SOFA) and the Supple- man people. Nevertheless, tremendous shifts mentary Agreement thereto. Although USAR- in world politics, economics, ideology, com- EUR Judge Advocates are stationed in other munications, and emphasis have not gone un- NATO countries (e.g. France, Belgium, Italy, felt by the U. S. forces in Germany. The etc.) the posture of the U. S. Army in the FRG Dollar Crisis, Chancellor Brandt’s Ost Politik, is so unique, and in such a state of continual MBFR, the current “belt tightening” at the flux, that I will direct my remarks to that White House and the views of Senators Mans- country only. field, Proxmire and Fullbright, add a certain degree of excitement to our lives and careers Nazi Germany surrendered to the Allies on here in the FRG. 8 May 1945. The unconditional nature of the surrender effectively terminated German sov- The single most significant factor affecting erignty. Under these circumstances the rights the work of the Judge Advocate in the FRG of the U. S. forces were based on conquest and is the extent of the physical presence of the the terms of the surrender agreement. The U. S. forces. Well over a third of a million Occupation Regime ended officially on 6 May U. %affiliated people occupy approximately 1955 with the coming into effect of the Bonn 800 installations in the FRG. This is quite a Conventions (when the NATO SOFA was sizeable minority when you consider that the signed by the original 12 members in London total population of the FRG is something on on 19 June 1951, Germany was still occupied the order of sixty million, and that the FRG and therefore was not a party). The Bonn herself is only as large as the state of Oregon! Conventions remained in effect until 1 July Where do we train our troops? Where do we 1963, at which time the NATO SOFA and the test our big weapons? Our noisy weapons? Supplementary Agreement became effective What about pollution control and conservation in the FRG. Today all of the rights and obli- efforts of the FRG? How do the U. S. forces gations of the U. S. Forces in the FRG are get the hugh amounts of food, clothing and governed by the terms of these two documents equipment required for so many people? What together with the various Protocols and Ad- are some of the legal problems that arise in Pam 27-50-6 26 the areas of drug control, housing and race U. S. military law and German law (a “con- relations when German and U. S. interests current jurisdiction” offense) and the Ger- come into conflict? mans have the “primary right” to exercise jurisdiction (i.e., generally where the crime a purely legal and financial point of From is against a German national or German prop- view the biggest headaches that we have in erty), the U. military authorities may dis- the FRG the present time are those in- s. at pose of the case unless the Germans demand volving real estate. When I say real estate I (“recall”) jurisdiction within 21 days. In the mean it in the broadest possible sense. After past the FRG has been very good about letting WW I1 the armed forces took the land and us take care of trying our own soldiers, even facilities which were desired. the most For where the crime has been perpetrated against part such facilities were on the outskirts of a German national. Recently, however, there the larger German cities. Also in the days has been evidence of an increase in the number right after WW 11, a not excessive number of of cases which the German prosecutors have military units were mobile-and of course the “recalled.” This trend means that increasing jet plane and the helicopter were not yet off numbers of “our boys” are appearing before the ground. As the FRG gradually recovered German courts ; and historically the American land values went sky high, farmers sold out public and the American Congress have been to industry, and cities and “industrial parks” reluctant in the extreme to sanction wide- swallowed up military casernes. A good ex- spread trials of U. S. soldiers in foreign ample of this problem is Frankfurt, head- courts. Therefore, one of the biggest single quarters for V Corps. After WW I1 the V jobs which confronts USAREUR judge ad- Corps headquarters were well outside the main vocates today is to convince the German public city; today, however, a German citizen is and prosecutors that we can and will bring likely to have a tank or a noisy generator right our U. S. soldier wrongdoers to justice. Since, next door. Local German conservation groups in the words of Lord Macmillan, . in almost are pressing to prevent U. S. troops and ve- “. . every case except the very plainest, it would hicles from damaging forest and recreational be possible to decide the issue either way with areas and are fighting to keep us from increas- reasonable legal justification there are ing our demands for training areas, extensions . . .”, on existing aiport runways, etc. bound to be problems. If and when you get to Germany, you can be assured this will still be One of the other major problem areas in- a hot item. If nothing else, this problem will volves questions of international criminal encourage you to more carefully examine your jurisdiction. When a U. S. serviceman com- own ideas concerning the administration of mits a crime which is punishable both under criminal justice.

NEW LITIGATION REGULATION From: Litigation Division, OTJAG AR 27-40, Litigation, and five other regula- 27-40, Litigation-General Provisions; AR tions concerning civil litigation will be pub- 27-41, Avoiding Unnecessary Litigation-Ad- lished as a consolidated regulation in the near ministrative Collection; AR 27-44, Minor Of- future. Its nOmenClatUre and title Will be AR fenses Committed on Federal Resemations; 27-40, Litigation. The regulation consolidates and AR 27-45, Release of Information. and AR 27-37, Claims in Favor of the United pearance of Witnesses. States Fw Damage to or Loss or Destruction of Army Property; AR 27-38, Claims in Favor The first four chapters of the seven chapter of the United States for the Reasonable Value regulation are essentially the same as Chapter of Medical Care Furnished by The Amy; AR 1-4 of the present AR 27-40. Chapter 5, Affirm- Pam 27-50-6 27 ative Claims, has three Sections dealing with property damage claims requires compliance property claims, medical care claims, and the with the Joint Claims Collection Standards affirmative claims report. Chapters 6 and 7 of the Attorney General and the Comptroller are essentially unchanged in content from AR General, 4 C.F.R. 8 101, whereas medical 27-44 and AR 27-45. care claims may be asserted without refer- ence to regulations of other agencies. Major statements of policy resulting from reorganization of the Army and changes in 5. Judge Advocates asserting property existing guidelines effective 1 July 1973 are damage claims are authorized to compro- as follows: mise claims provided that the compromise does not reduce the claim by more than 1. When requested by the Chief, Litiga- $1,000. They are also authorized to termi- tion Division, OTJAG, and with the con- nate collection action provided the uncollect- currence of the Department of Justice, the ed amount of the claim does not exceed General Counsel, Staff Judge Advocate, or $1,000. Staff Judge Advocates have similar Judge Advocate of an Army activity or com- authority except that the jurisdictional mand, or attorneys assigned to that activity amount is $5.000. Similar jurisdictional or command, are authorized to represent the amounts of Staff Judge Advocates of major Army in matters of representation of Army overseas commands remain at $10,000. employees in early stages of case litigation where no United States Attorney is immed- 6. Recovery Judge Advocates compromise iately available for such representation. and waiver (but not on account of undue Such representation is generally necessary hardship) authority is increased to $5,000. where no United States Attorney or Assist- Compromise and waiver authority of Staff ant U. s. Attorney is available to represent Judge Advocates of major overseas com- an Army employee on short notice and/or mand remains at $10,000. the office requested is in close proximity to the tribunal concerned. 7. Affirmative claims reports for medical recoveries are required on an annual basis. 2. Chief, Regulatory Law Division, OT- Reports for property claim recoveries are JAG and attorneys assigned to that division no longer required. The necessity of main- are designated to represent the Army in all taining records of assertions and collec- regulatory matters relating to environment- tions of property claims remains in effect. al controls. Requests for data from such records will be 3. Assertion of medical care claims based made periodically as required. on the Federal Claims Collection Act, State 8. Area Claims authorities as set forth in workmen's compensation laws, State hos- proposed Appendix F, AR 27-20, are desig- pital lien laws, and control rights under nated Recovery Judge Advocates. Area terms of insurance policies, as well as the claims authorities are authorized to desig- Federal Medical Care Recovery Act, are au- nate additional recovery judge advocates thorized. from Claims ,Processing Authorities or any 4. Claims for property damage and med- other office with JAGC personnel within ical care arising from the same incident may their area of claims responsibility. Excep- be investigated together but are to be as- tions to the area of jurisdicted will be con- serted separately. The reason for this pro- sidered when requested from HQDA (DA- cedure is that the procedure for asserting JA-LT) . Pam ‘27-50-6 28

., REPORT FROM THE U. S. ARMY JUDICIARY ADMINISTRATIVE NOTES 1973, to HQDA (JAAJ-CC) , Nassif Building, Falls Church, .Virginia 22041. Attention is in- a. Reorganization ’of the United States vited to the instructions set forth on page Army Judiciary. On 1February 1973, the Con- 17 of the March 1973 edition of The Army tract Appeals,Division, Bonds Team, and Spe- Lawyer. cial Actions Team from the Office of The Judge Advocate General were reassigned to RECURRING ERRORS IRREGULARI- the U. S. Army Judiciary, in keeping with the AND TIES policy of moving “operating activities’’ from the Army staff to Field Operating Agencies. a. Effective Date of Deferment or Res&- This move enlarged the scope of the missions sion of Deferment of Confinement. The con- and functions of the U. S. Army Judiciary vening authority’s action should include the and made that name inappropriate I for the effective date of any deferment, and rescission new organization. By General Order Number of the deferment, of confinement. The defer- 9 from the Office of The Judge Advocate Gen- ment date is essential to accurately reflect the eral, dated 30 March 1973, the u. s. Army time to be credited toward confinement served, Judiciary was redesignated the United States if any, between the date of sentence and defer- Army Legal Services Agency (USALSA) . ment. The rescission date is essential to re- The Agency is now composed of: U. S. Army flect the beginning or resumption, as appropi- Judiciary, the elements of which are U. S. ate, of the running of the sentence to confine- Army Court of Military Review, Office of ment. Appropriate forms and instructions may Chief Judge, Clerk of Court (includes, Special be found in Appendix 14b and c, pages A14-5 Actions Team), Trial Judiciary, and Exami- and -7, MCM, 1969 (Rev. ea.) . nation and New Trials Division; Defense Ap- b. April 1979 Corrections by ACOMR of pellate Division ; Government Appellate Divi- Initial Promulgating Orders. sion ; Contract Appeals Division ; and, Ad- ministrative Office. (1) Failure to show a Change and its specification on which the accused had been b. Statistical Report of Criminal Activity arraigned. and Disciplinary Infractions in the Armed Forces. Staff Judge Advocates of commands (2) Failure to show amended specifica- concerned are reminded that the report (RCS tions-seven cases. DD-M(SA) 1061), for the period 1 January- 30 June 1973, on the number of military per- (3) Failure to show that the sentence was adjudged by a military judge-two cases. sonnel convicted of felonies in U. S. Federal and State courts, is due by 5 August 1973. (4) Failure to show the correct number HQDA letter, dated 30 June 1971, concerning of previous court-martial convictions that this subject matter is under revision. It is were considered-two cases. anticipated that FORSCOM and TRADOC or (5) Failure to show that plea of guilty the general court-martial jurisdictions will in- a was changed to not guilty-two cases. herit the reporting responsibility of CONARC. (6) Failure to show the date of the AC- c. JAG-2 Quarterly Reports. Staff (R-8) TION-two cases. Judge Advocates of commands having general court-martial jurisdiction should forward (via (7) Setting forth, incorrectly, Charges air mail) the JAG-2 Report for the period of and their specifications that were dismissed 1 April-30 June 1973 not later than 12 July on motion before arraignment. Pam 27-50-6 29 F-.. MONTHLY AVERAGE COURT-MARTIAL NON-JUDICIAL PUNISHMENT RATES PER 1000 AVERAGE STRENGTH MONTHLY AVERAGE AND QUARTERLY JANUARY-MARCH 1973 RATES PER 1000 AVERAGE STRENGTH 1973 General CM Special CM Surnmury CM JANUARY-FEBRUARY BCD NON-BCD I Monthly Auerage Quarterk ARMY-WIDE .17 .10 1.36 .70 Raten Raten CONUS ARMY-WI DE 19.02 67.06 (incl ARADCOM) .18 .lo 1.66 .74 CONUS (incl ARADCOM) 19.66 68.97 MDW .02 .02 .07 - MDW 3.36 10.06 First US Army .32 .14 1.63 .91 First US Army 18.24 64.72 Third US Army .12 .08 1.81 .72 Third US Army 21.83 65.48 Fifth US Army .19 .13 1.68 .98 FifthUS Army 19.66 68.98 Sixth US Army 23 .05 1.65 .31 Sixth US Army 22.36 67.07 USARADCOM .04 - .76 .16 USARADCOM 12.46 37.37 OVERSEAS .16 -11 1.01 .63 OVERSEAS 17.91 63.72 USA Alaska .42 .03 1.67 .42 USA Alaska 22.81 68.44 USA Forces So. Cmd .12 - 1.28 1.36 USA Forces So. Cmd 18.24 64.73 USAREUR .15 .12 .99 .69 USAREUR 19.00 66.99 Pacific Area .16 .10 .93 .46 Pacific Area 14.64 43.92 Note: Above figures represent geographical areas Note: Above figures represent geographical areas under the jurisdiction of the commands and are based under the jurisdiction of the commands and are based on average number of personnel on duty within those on average number of personnel on duty within thos'e areas, excepting ARADCOM personnel. areas, excepting ARADCOM personnel.

MILITARY JUSTICE ITEMS From: Militarg Justics Division, OTJAG fl 1. Article 15 Punishment - Stay Pending cused requests otherwise. A commander is Appeal. not required to stay the serving of any punish- ment until the appeal is actually fled. If part Several questions have arisen concerning of the punishment has been served before the the application of paragraph 3-10 of the 16 appeal is filed, then the remaining portion of March 1973 interim message change to Army the punishment, except those mentioned above, Regulation 27-10. This paragraph concerns the must be stayed until the appeal is completed, stay or deferment of nonjudicial punishment, unless the accused requests otherwise. When other than reduction, forfeiture, or detention an accused indicates a desire to appeal but of pay, when a timely appeal is filed from the needs time to prepare it, a commander may, punishment imposed. To assist in the inter- although he is not required to, stay the serv- pretation of this change, the following guid- ing of punishments, except those mentioned ance is offered: above, to allow time for preparation of the ap- With the exception of punishments of reduc- peal. When in the interests of justice, the com- tion, forfeiture, or detention of pay, there is mander should stay the serving of such not now, nor was there before the recent punishments for a reasonable period of time change, any requirement that a member be to allow the accused to prepare his appeal. In required to start serving his punishments on addition, a commander should not require a the date they were imposed. A commander had punishment to be served in such a way that an discretion in this regard. However, the recent accused is hindered in preparing his appeal. change has taken away this discretion when B timely appeal is filed. In such a case, the com- 2. Article 137. mander must stay the serving of any punish- On 15 February 1973, the CONARC In- ment, other than those mentioned abovk, spector General, during the course of his in- until the appeal is completed, unless the ac- spections of schools and installations, noted Pam 27-50*6 30 -, that responsible individuals were unaware of, 3. Corrected Text Of Article 58a. and not with, 137 Of the On the bottom line of page A2-20 of the (10 U.S.C. Uniform Code of Military Justice volumes of MCM, 1969 (Revised), currently 937) and paragraph 5, Amy Regu1ation 350- in use, quoting the text of Article 58(a), ap- 212, 1 July 1972. The cited authorities require, pears the phrase subsection (a) (1), or among other things, that a course in military (3) . . . .” Read literally, this would appear to justice (course be administered B, say that a sentencewhich as approved included or “at the time of” a serviceman’s reenlist- confinement but not a punitive discharge or ment. This clearly that the required hard labor without confinement would not ~1- training must be given as close as reasonably timately reduce the service member. This is possible to the time Of reenlistment. All Staff a mGp&nt. The official text of the statute read judge dvocatefl should take appropriate ac- “in subsection (a) (l), (2), or (3), . . . .I9 tion to insure compliance with this require- Please make the correction with pen in all ment. copies of MCM.

CLAIMS ITEMS From: U. S. Army Claims Service, OTJAG 1. Damage or loss of motor vehicles inci- adjudication of such a claim may, within the dent to service-on the installation. sound discretion of the adjudicator, be barred from payment by the incident-to-service cri- In the January 1973 issue of The Army teria. Lawyer this Service attempted to formulate guidelines to aid in the adjudication of claims In summary, a car which is properly parked -I\ under paragraph ll-4f(4) of AR 27-20. on the installation should be presumed to be Several questions have been raised as to how parked incident to the claimant’s service un- to apply the incidentito-service rule to cars less the application of such a presumption which are properly parked on the installation. would be unreasonable under the particular It was not the intent of this Service to utilize circumstances. the incident-to-service rule to completely cir- 2. USAREUR Claims Conference. On 5-6 cumscribe payments under paragraph 11-4f April 1973 the annual USAREUR Claims (4) unless the member was performing a di- Conference was held in Munich, Germany. rectly related in scope-of-service type activity. LTC James A. Mounts presented a seminar For instance, the parking of a vehicle in the on Adjudication and Processing of AR 27-20 PX or the other parking lot or outside of a Claims and Carrier Recovery. CPT Thomas service type function on the installation dur- DeBerry discussed NATO SOFA, Medical ing business hours would normally be incident Care Recovery, and Property Recovery to the claimant’s service. Where the vehicle Claims. CW-2 Dieter Kohler presented a sem- is located, however, in a remote area of the inar on Claims Office Administration. The con- installation or parked outside of a service ference provided a forum for the sharing and type function late at night and is parked solely solving of common problems of claims admin- for the convenience of the service member, the istration in Europe. Pam 27-50-6 31 LEGAL ASSISTANCE ITEMS From: Legal Assistance Office,OTJAG FEDERAL INCOME TAX - COMBAT of a member below the grade of com- ZONE EXCLUSION FOR ACCRUED LEAVE missioned officer, such payments are ex- cludable from his gross income, and sec- The Armed Forces Income Tax Council has ond, in the case of a commissioned officer, recently received a letter ruling from the In- such payments are excludable from his ternal Revenue Service clarifying Revenue gross income to the extent that the limit- Ruling 71-343,1971-2 C.B. 92, on the taxability ed exclusion provided by section 112(b) of combat zone accrued leave. of the Code has not been previously ex- hausted by exclusions from income under Revenue Ruling 71-343 generally provided the same section relating to the same that payments attributable to leave earned by period of service. Of course, under section 112(b) of the Code, to the extent the puy- a serviceman in a combat zone are part of ment for unused leave of an officer is at- compensation for active service excludable tributable to leave accrued for any month from gross income to the extent allowed by during any part of which he was in a section 112 of the Code. This ruling left many missing status during the Vietnam con- issues unanswered, and accordingly, the Arm- flict as a result of such conflict, the ex- ed Forces Individual Income Tax Council sub- clusion is not limited. (emphasis added) mitted a request for clarification to IRS. In Some specific examples furnished as clarifica- reply the Service has set forth specific guide- tion are as follows : lines to be used in implementing the original a. Enlisted member uses combat zone leave ruling. These guidelines will be incorporated in a month in which he does not serve in a in a published Revenue Ruling which is combat zone-No exclusion. scheduled for printing and distribution on or about 23 April 1973. The content of the letter b. Enlisted member uses combat zone leave ruling dated 16 April 1973 is basically as in a month in which he serves in combat zone follows : -Exclusion. . . . although the use of leave by a mem- c. Enlisted member gets advance leave and ber of the Armed Forces decreases his then earns leave to cover it in a combat zone- obligation to be present and perform serv- see examples a and b above with respect to ices at his dutv station, this does not ordinarily result in the realization of the exclusion or non-exclusion. gross income to him: that is, a taxable d. Enlisted member is advanced in rate be- amount in addition to his base pay or other forms of taxable compensation. The tween date of earning leave and being reim- latter are affected neither by the accrual bursed. The exclusion is not limited to rate of nor the use of such leave. On the other pay at the date earned. hand. the payment for accrued unused leave to a member of the Armed Forces e. Enlisted member is paid cash for his un- at the time of his discharge is monetary used combat leave at the date of separation- compensation in addition to other forms Exclusion. of compensation . , . . . . since rights to leave accrue by rea- f. Commissioned officer uses combat zone son of active service, if payments for un- leave in a month in which he does not serve in used accrued leave made at the time of a combat zone-No exclusion. discharge from the service are desig- nated . . . as being attributable to unused g. Commissioned officer uses combat zone leave accrued during a period of active leave in a month in which he serves in a com- service for a month or months during bat zone-exclusion of $500 per month applies any part of each of which a member in the Armed Forces of the United States to the total Compensation for month in which served in a combat zone, first, in the case leave is utilized. Since all commissioned of- Pam 27-504 32 ficers presently receive in excess of $500 per ,pointed out that section 7805(b) of the Code month, no additional exclusion would attach. and the regulations thereunder specifically provide that rulings are retroactively applied. h. Commissioned officer is paid lump sum’for Accordingly, (a) if a refund has already been combat zone leave at date of his separation- based on Revenue Ruling 71-343, (b) in light exclusion for the month of separation is limit- of the new Revenue Ruling such refund should ed to any balance of the $500 per month ex- not have been made, and (c) the Statute of clusion not previously used. Since all com- Limitations has not expired with respect to missioned officers presently receive in excess the year for which the refund has been made, of $500 per month, generally no additional exclusion would attach. then the serviceman should amend his return including as income those amounts which were Personnel who received cash settlements for previously erroneously excluded as combat combat accrued leave in 1970 and thereafter zone compensation. may file amended tax returns to claim the ex- clusion if they have not already done so. With As this ruling obviously affects many service respect to those servicemen who have already personnel still on active duty, it is requested filed an amended return and received payment that all local legal assistance officers make for combat zone accrued leave, it should be this information available to their command.

JAG SCHOOL NOTES 1. Basic Class Graduation. Graduation of 3. Departures. TJAGSA will miss the serv- the 68th Basic Class brought to 292 the num- ices of division chiefs, LTC Hugh Overbolt, ber of newly commissioned JAGC officers who Chief of Criminal Law, LTC Dave Fontanella, .n attended basic courses of instruction in FY Chief of Civil Law and MAJ (P) Jim Coker, 73. Major General Harold Parker, Assistant Chief of International and Comparative Law, Judge Advocate General gave the graduation as they depart for new assignments. LTC address. George Russell will replace LTC Overholt. MAJ(P) Dulany O’Roark has been assigned 2. Advanced class Graduation. Assistant Chief of civil Law and MAJ Jim Mc~owan Secretary of the Amy Hadiai A- Hull gave will step up as Chief of ICL. MAJ Jim Endi- the graduation address to the 21st Advanced cott will be replaced as Director of Nonresi- Class on 1 June at Newcomb Hall Auditorium. dent Instruction by LTC(p) Darrell peck. The 42 members of the class included: LTC Leon Ridao of the Philippine Army, Squadron 4. Dining In. TJAGSA held a formal Dining Leader Sheikh Anwar of the Pakistain Air In at the Boar’s Head as the close of the aca- Force, Major Fereydoon “&rani of the Iranian demic year social event. Guests included Gen- Army ; three marines, including one lady, CPT eral Robert Parter, Ret., MAG George Prugh, Eileen Albertson; one Navy officer and 34 TJAG, BG Bruce Babbitt, Asst- TJAG, COl- Army JAGC officers. Assisting in the gradua- lbbert Dyer, bnmander of FSTC and COl tion ceremonies were : Air Vice Marshal Eric Ken HollidaY representing Navy TUG. G. Hall, S.Pk., S.J., P.s.~., COL Pedro c. Pille 5. DA Pam 27-14. Legal Guide for The Of the Philippines, Brigadier General Lewis Soldier, DA Pam 27-14 written at TJAGSA Mann of the USMC and representing the U. S. has been printed and is ready for world-wide Navy, Constantine A. Konopisos. distribution.

I’ Pam 27-50-6 n 33 PERSONNEL SECTION I I From: PP&TO 1 I 1. RETIREMENTS. On behalf of the Corps, Kenny, Peter J. I we offer our best wishes to the future to McKay, William P. Colonel Jack Norton who retired 30 April 1973. Mowry, Richard E. Mullins, Jack 2. PROMOTIONS. Congratulations to the Musil, Louis F. following officers who have been selected for O,Roark, Del promotion to colonel, AUS: Simon, Ernest A. Alley, Wayne E. Suter, Bill Dribben, Charles P. Witt. Jerry V. Dorsey, Frank J. To the following Warrant Officers selected for Hawley, Richard S. promotion to W-4: McNealy, Richard K. Noble, James E. Brochu, Raymond T. I O'Donnell, Matthew B. Koceja, Daniel P. Peck, Darrell L. and the following Warrant Officers selected for Schiesser, Charles W. promotion to W3: To lieutenant colonel, : AUS Mannix, Richard M. Coker, James R. Reca, James J. Hoff, Charles G. Ramsey, Alzie E. Jr.

("1 /- 3. ORDERS REQUESTED AS INDICATED: COLONELS I NAME FROM TO BEDNAR, Richard J. USAWC OTJAG Wash DC CLAUSEN, Hugh J. OTJAG, Wash DC HQ I11 Corps, Texas COOK, Peter €I. Sixth US Army Germany CULPEPPER, Vernon Ft Lewis, Wash First US Army, Balto, Md. HALL, Rupert P. Thailand Ft Lewis, Wash McNEIL, Darrell 0. Ft Belvoir, Va Ft Leonard Wood, Mo MEENGS, Philip G. Okinawa Oft Insp Gen, Wash DC NEINAST, William USAWC OTJAG, Wash DC WATSON, Henry Jr. Ft Leonard Wood, Mo MTMTS, Wash DC ZEIGLER, William USAWC Okinawa LIEUTENANT COLONELS DORSEY, Robert G. Europe MTMTS, Oakland, Ca. PECK, Darrell L. Europe S-F,TJAGSA, Charltsvl, Va. KANE, Peter J. C&GSC Ft Leavenworth, Kansas HQ US Sup Cmd, Hawaii KELLEY, Oliver Korea USA Leg Svc Agcy, w/sta Ft Hood, Texas PIOTROWSKI, Leonard Europe 1 USA Leg Svc Agcy, w/sta Kaiserlautern, Germany SHERWOOD, John T. Army Leg Svc Agcy, w/sta Germany USASTRATCOM, Europe CAPTAINS \ BENDER, John F. Ft Ord, California Europe BOUCHARD, Robert Korea Europe \ BOYAKI, Walter L. Ft Eustis, Va. USA Air Def Center, Ft Bliss, Texas Pam 27-50-6 34

CAPTAINS-Continued NAME FROM TO BURGEE, Michael B. Ft Jackson, S.C. UASA, Vint Hills, Va. COOPER, Thomas R. USA Phys Dis Agcy, w/sta Phys Inst of Pathology, WRAMC Eva1 Bd. Ft Gordon, Ga COPPENRATH, Gerald Ft Monmouth, N.J. Ft Devens, Mass FINNEGAN, Richard Inst of Pathology, Wash DC Europe MORLOCK, Frank J. US Armed Force Inst of Pathology OTJAG, Wash DC HAGAN, William R. Ft Hood, Texas 82d Abn Div, Ft Bragg, N.C. HARGARTEN, James Europe Presidio of S. F. Calif HOlUSE, George W. TJAGSA, Charltsvl, Va. Europe HOWAT, Bruce B., Jr. AmmunitiQn Proc Sup Cmd Joliet Recruiting Cmd, Ft Sheridan, I11 _. Arsenal, I11 JOHNS, Richard B. Korea Europe JOHNSON, Jay S. Fitzsimons Gen Hosp, Texas Inst of Pathology, Wash DC KRIEGER, Paul T. First A, Ft G. G. Meade, Md Ft Gordon, Ga LEDERER, Fredrick USA Sch & Tng Cen, Ft Gordon, Ga S-F, TJAGSA, Charltsvl, Va. MARTY, Kenneth Europe Ft Buchanan, PR MASON, Steven A. Europe Ft Monmouth, N.J. McCOMBS; Don W. Discipl Bks, Ft Leavenworth, Kansas USA Gar, Ft Leavenworth, Kansas McGOWAN, William Korea USA Phys Dis Agcy, Fort Sam Houston, Texas MOORE, Carl G., Jr. Armor Ctr, Ft Xnox, Ky Europe MUELLER, George W. Korea Fort Carson, Colo PABST, John A. Ft Belvoir, Va. OTJAG, Wash DC RODLI, Keith Desert Test Center, Utah Ft Ord, California S TRA SS BURG, Thomas Ft Lewis, Washington Univ of Mich Law School WARRANT OFFICERS JUST, Dale F. Europe Ft Hood, Texas KANE, Roger C. Ft Ord, California USAMED Health Svc Agcy, Ft Sam Houston, Texas YOUNG, Seburn V. Presidio of S. F. California Stu Det 1st USA w/sta Cumberland County College, Vineland, N.J. 4. Congratulations to the following who have received rewards as indicated: Col. Hugh J Clausen Legion of Merit (1st OLC) Jul 71-J~l73 Col. Reid W. Kennedy Legion of Merit Jul 67-Feb 73 Maj. Howard H. Hougen Army Comd Medal (1st OLC) Sep 68-Feb 73 Maj. John F. Naughton Jt Svc Comd Medal Dec 72-Mar 73 Cpt. Joseph V. Aprile Army Comd Medal Aug 70-May 73 Cpt. Kenneth Bernhard Army Comd Medal Dec 70-Aug 72 Cpt. George Finkelstein Army Comd Medal (2d OLC) Dec 71-May 73 Cpt. Norman L. Goldberg Army Comd Medal (1st OLC) May 71-May 73 Cpt. John H. Hammond, Jr. Army Comd Medal Jul 69-Apr 73 Cpt. Denis F. Hynes Army Comd Medal (2d OLC) Sep 71-Apr 73 Cpt. Myron E. Ropella Army Comd Medal Apr 67-Mar 73 Cpt. Anthony Thaxton Army Comd Medal (1st OLC) Jan 71-Jun 73 5. Authorization for Warrant Officers, MOS b. Paragraph 3-3e, Ch 4, AR 570-2, dtd 24 713A Aug 71 is quoted: “One warrant officer legal administrative assistant position is authorized a. As the active duty strength of the Army each headquarters exercising general court- continues to decline, it is imperative that each staff judge advocate take all necessary actions martial jurisdiction.” s - to secure-and retain those positions authorized c. There are presently 128 general court- for his organization. martial jurisdictions in the Army. Of these, /,- Pam - 27-50-6 35 only 42 are authorized a legal administrative 6. UNIT OF CHOICE ENLISTMENT TO technician ; one special court-martial j urisdic- BECOME A LEGAL CLERK. tion is Gtuthorized a warrant officer, MOS Recently Dianne Wilder of Marshalltown, 713A. The Judge Advocate General's Corps Iowa, was the 9,999th individual sworn in over-all authorization for 713A is now MOS under the Fourth Infantry Division Unit of projected to be 54 for the end of FY 73 and is Choice Enlistment Program. This 18-year-old expected to decrease by the end of FY 74. This high school senior is the president of her downward trend in the number of legal admin- chapter of the National Honor Society. She istrative technicians must be stopped if we are enlisted to become a legal clerk at Fort Carson. to retain a sufficient number of our highly qualified legal administrative technicians to 7. ATTORNEY POSITIONS: perform our mission. GS-905-13 (General Attorney (Contract) ) d. With the dwindling of the number of HQ 8th US Army warrant officers authorized the number of war- rants assigned also shrinks. Thus, those units having warrant officers presently assigned who Office of the General Counsel do not have authorizations therefor, will not receive replacements when the incumbent is USA Korea Procurement Agency reassigned. Further, warrants in unassigned positions will be moved to authorized slots. APO S. F. 96301 e. All general court-martial staff judge ad- All interested persons please submit Std vocates are asked to insure that they do not Form 171 to The Personnel, Plans and Train- lose their 713A authorizations and those who ing Office, Office of The Judge Advocate Gen- do not have authorizations should take neces- eral, Washington, D. C. 20310 sary action to procure them for their organi- zations. GS-12 (Attorney-General) Corps of Engineers f. Warrant Officer Applications : OTJAG has on hand over two dozen applications for appointment as warrant officer (legal adminis- Detroit, Michigan trative technician, MOS 713A). TAG closed the 713A field. Applications submitted after All interested persons should contact Mr. 15 April 1973 will be returned without action Shapiro, 313-226-6821. This position must be (DA MSG dtd 161347 Apr 73). Applications filled by 1July 1973. which are at OTJAG will be considered by a board of officers in the near future to de- 8. Goldwater Bill For Law School At Gov- termine those best qualified for appointment. ernment Expense. Senator Goldwater recently The top ten applicants will be placed on a wait- introduced a bill to amend Title 10, United ing list and the remainder of the applications States Code, to authorize the detail of com- will be returned. All personnel who have ap- missioned officers of the military departments plied and have not previously been notified of as students at law schools. Citing the critical their status should forward any additional ma- need for career military attorneys, the bill terial they desire considered by the board. envisions sending regular line officers, not above the grade of captain, with from 2 to 6 The outlook for appointment to warrant of- years of service to civilian law schools. A ficer MOS 713A is not favorable. The end FY maximum of 25 officers from each service 74 authorized strength is 54 but 69 warrant could enter the program each year. For each officers (MOS 713A) will be on active duty on year of training, the officer would incur an 30 June 1973. additional year of obligated service. Pam 27-50-6 36 i-h CURRENT MATERIALS OF INTEREST Courses tary justice system, including the task force report Senator Bayh’s proposed legisla- TJAGSA Courses-Corrections. The 67th and tion. Procurement Attorney Course will meet from 3-14 Dec. 1973. The 1st Reserve Senior Officers “The Federal Medical Care Recovery Act : A Legal Orientation Course will be held from 5-7 Case Study for the Creation of Federal Com- Dec. 1973. The Service School Legal Instruc- mon Law,” 18 Villanova L. Rev. 353 (1973). tors Conference will be held 27-28 Nov. 1973 This article examines the history and current and the US. Army Reserve Judge Advocate operation of the FMCRA. Conference will be 15-1f Nov. 1973.

Articles By Order of the Secretary of the Army: Grove, “Estate Work-A Happy Hunting Ground for the Paralegal,” 19 The Practical CREIGHTON W. ABRAMS Lawyer 73 (March 1973). This article dis- General, United States Army cusses the role of the paralegal in estate work Chief of Staff and will be of interest to legal assistance offices. Official : “Three Views-Reforming Military Justice’’ VERNE L. BOWERS Army, April 1973. These three articles discuss Major General, United States Army current’ ideas concerning reform of the mili- The Adjutant General

UNITED STATES GOVERNMENT PRINTING OFFICE. 1975-734-242/11 i